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Legal Ethics - Legal Profession Outline

Based upon class notes -

N.B.: Legal profession/ethical problems are constant and everyday, as opposed to the
sporadic or intermittent applications of the law, which you do to make money and
practice. Therefore, this class is of the utmost importance to the practice of law.

I. Background:
A. Law and the practice of law:
1. representation (or not) of the client may be influenced by
a. your personal ethics and biases
b. other lawyers' ethics and biases
c. the public's biases and opinions
d. ABA model guidelines
B. ABA Model Ethical Guidelines:
1. 1908 - Canons of Professional Ethics
2. 1969 - Model Code of Professional Responsibility (followed closely by Watergate)
3. 1983 - Model Rules of Professional Conduct
a. basis of the legal rules of conduct in most states (including La.)
b. La. adopted the Model Rules - La. Rules of Professional Conduct
4. 2002 - ABA Ethics 2000 commission "tweaked" the Model Rules
a. La. is in the forefront of the adoption of the new rules (problem in 2003)
b. there is a new Restatement
C. legal rules of conduct are in flux (contrary to the laws of contracts, torts, etc.), because
of a variety of modern issues:
1. mobility of the population (and moving from firm to firm and state to state)
2. communications/internet/advertising
3. etc.
II. Sources of Professional Responsibility Law:
A. Rules of Professional Conduct:
1. model rules (from the ABA)
2. state rules and codes - La. S. Ct. adopts the rules of conduct
3. federal court rules - federal courts in La. adopt the La. rules
4. MPRE (multi state test) is based on the model rules
B. caselaw:
1. this case book is not a traditional case book
2. book is organized around problems which are realistic and typical
C. bar association ethics opinions
D. American Law Institute - Restatement (Third) of the Law Governing Lawyers (2000)
III. Relationships Affected by Rules:
A. lawyer-client:
1. conflict of interest
B. lawyer - 3rd party:
1. can't lie to a 3rd party as part of your legal work
C. lawyer-lawyer:
1. opponents
2. partners/firm
D. institutions of the legal system
1. officer of the court - don't get carried away
IV. Ethical Dichotomy:
A. ethics of duty - what you should not do
B. ethics of aspiration - what you should do
C. gray area/the line - between clearly unethical and clearly ethical there's an area of
ambiguity or nebulosity sometimes, but you don't want to cross the line into the
unethical territory
V. Regulation of the Legal Profession:
A. ways to regulate the legal system
1. disciplinary system - principal way to regulate the legal procession
a. in La. - disciplinary board and committees, answering to the La. S. Ct.
b. procedure:
(1) complaint to the board by someone about you (disgruntled client, etc.)
(a) 1:8 lawyers gets turned in each year
(2) prosecutor in BR
(a) complaint filed if there's evidence
(b) lawyer has to respond (1/4 ignore them at first!!!)
(c) due process, etc., etc. - hearing committee, etc.
(3) possible sanctions:
(a) diversion - go to ethics lectures about doing the right thing
(b) private admonition - write you a letter and it goes in your 'file'
(c) public reprimand - goes in back of La. Bar Journal (hehe)
(d) suspension - some years, apply to have it lifted
(e) disbarrment - historically, it was a de facto 5 year suspension, but
S. Ct. last year implemented permanent disbarrment (!!)
2. societal and professional condemnation - also a regulating/motivating effect on the
legal profession
a. you never want to look like an idiot
3. disqualification - client may file to have you disqualified for the case (conflicting
interest, etc., that makes it a conflict of interest for you to participate) or enjoined
a. can be a means of harassing your opponent - not good
4. court-imposed sanctions - frivolous motions, etc. may get you fined or otherwise
sanctioned (e.g. Fed. Rule Civ. Proc. 11)
5. civil liability
a. tort law - legal malpractice
b. contract law - breach of contract (lawyer can sue the client and vice-versa)
c. agency law
6. criminal prosecution - if lawyer participates in client's crime, etc. (fraud, Enron, e.g.)
7. admission process - taking and passing the Bar exam to be licensed to practice
a. application fee
b. character and fitness requirement
c. pass the examination
B. Problem 1: Text, p. 42
1. 3L student cheated on final exam and also hid fact of misdemeanor in earlier life
- attorney was friends with the dean and got him "off" with minor work and dean
wasn't going to tell about the cheating
a. at LoyNO there have been honor code violations, false applications, stealing from
the SBA, etc., so these are not uncommon occurrences

ABA Model Rule 8.1 Bar Admission and Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the
person to have arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary authority,
except that this rule does not require disclosure of information otherwise
protected by Rule 1.6.
- Rule 1.6 deals with confidentiality provisions with client privilege - you don't
have to rat out your client, but you can't lie for him
La. Bar Association Rule 8.1
Identical, with the addition of another item:
(c) Fail to cooperate with the Committee on Professional Responsibility
[Office of Disciplinary Counsel] in the investigation of any matter
before it except for an openly expressed claim of a constitutional privilege.

b. the power to sanction comes from the S. Ct.'s licensing - so if the violation is
discovered, the sanction is action on the license
c. this guy should tell the committee all, since the committee has ways of finding
out things anyway - and the National Conference of Bar Examiners does thorough
background checks now
(1) minor problems long ago are often not problematic
(2) recent or major problems are more important
d. factors in fitness analysis:
(1) nature of conduct (felony, misdemeanor, civil violation)
(2) how is the same conduct treated in an already admitted lawyer
(a) some states use the same standards
(b) in La. and many other states, the standards for admission are higher
than for sanctioning already practicing lawyers
(3) incidence of conduct (single occurrence v. pattern)
(4) age at time
(5) passage of time
(6) acceptance of responsibility
e. if there's a problem:
(1) you can get a hearing before the C&F Committee
(2) you can petition the S. Ct.
f. Bar exam:
(1) miserable gauntlet
(2) in La. 70% pass and 30% condition or fail - ultimately most pass
(3) La. has one of the toughest
(a) committee is poorly funded
(b) only recently allowed you to see your exam
(c) try to hide the correct answers - now in La. you can see your exam if
you fail (4 people have found that they were misgraded so far in the past
year or so!!!)
g. ABA accreditation - usually have to graduate from an ABA accredited law school
(1) every 7 years they survey the school and evaluate it
(2) LoyNO was reaccredited last year for another 7 years
h. residency requirements
(1) used to be required to be a resident of the state to be a member of the state bar
(2) S. Ct. decision struck down residency requirements
(3) post-9/11 some states are refusing aliens to take bar
i. reciprocity
(1) some states have variable reciprocity
(2) La. has no reciprocity with anyone
(3) Penn. is traditionally the easiest bar to take and people take that to waive in
j. Pro Hac Vice admission - apply to represent a client in one particular case
(1) you go before the judge hearing the case - usually they let you
(2) you have to have local counsel on board who's a member of the local bar
(3) often abused in cases where there are multiple related cases - reform is pending
C. Why regulate admission to the Bar or have a disciplinary system?
1. protect the interest of the client
2. protect the courts (the system)
3. protect the reputation of the legal profession
4. to control the supply of lawyers (?!?)
D. Problem 2: Text, p. 59
Lawyer's able opponent is not so able anymore due to drinking (incited by personal
difficulties, etc.). Lawyer brings it up to the drunk, and drunk is insulted and tells him
back that he takes on too much work to be efficient. Lawyer is at a loss for what to do
and wonders if he should cut back on his workload. . . .
1. competence is the most basic component of the lawyer's relationship to the client
a. practically speaking, the overworked lawyer (supra) in La. (if there were a few
complaints lodged to ODC) would be placed in diversion and made to go through
the educational CLE about organization of the office, etc. - case would then
be closed (unless he demonstrated recidivism)
b. lawyer who had a drinking problem may be referred to the Lawyer's Assistance
Program - possible violations of Rule 1.1 and 1.3
(1) if you can really prove harm due the to drinking, then sanctions can be
more severe (harm befalling a client due to misconduct)
(2) some courts treat drinking as an illness - ADA, etc. - as a mitigating factor,
if they determine it's "alcoholism," not just heavy drinking
(3) person who admits he's got a drinking problem and tries to get help is looked
upon much more favorably

ABA Model 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.
La. Bar Association Rule 1.1
La. adds the CLE requirement:
(b) A lawyer is required to comply with the minimum requirements of
continuing legal education as prescribed by Louisiana Supreme
Court rule.
a. in La. CLE is required - 15 hours/year total, one hour of ethics and one
hour of professionalism included

ABA Model Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing
a client.
a. La. Rule 1.3 is the same
b. brand new CLE by La. S. Ct. for new lawyers - office practice and organizing your
files, billing, etc., all the mundane stuff about organizing your practice

2. legal malpractice:
a. lack of competence can lead to sanction and also malpractice (delict)
b. La. Civ. Code art. 3002 - lawyer is responsible for damages that may
result from nonperformance of his duty
c. legal malpractice elements:
(1) proof there was a lawyer-client relationship
(a) burden of proof on client/P
(b) client sought and received advice and assistance from lawyer in
his profession
(2) proof of legal negligence
(a) burden of proof on client/P
(b) establish applicable duty of care and breach of duty
(c) lawyer must have exercised at least that degree of care, skill, and
diligence exercised by prudent practicing attorneys in his locale
(d) usually need expert legal witness to establish local standard
(e) usually need expert legal witness to establish breach, but court may
take judicial notice of breach of legal duty
(3) proof of damage due to the negligence
(a) establishment of relationship and breach is prima facie case of loss
(b) client/P generally not required to prove his case-within-the-case
(c) lawyer/D must prove client's case was a loser anyway, so damage
d. ABA and other disciplinary rules are not per se malpractice measures, but
expert witnesses often rely on violations of the rules to demonstrate breach
of standard of care, etc.

N..B.: Louisiana courts consider La. Rules of Professional Conduct to be substantive
law in La.!!! Therefore, violation of Rules counts in malpractice claim in La.
(subject to the usual La. duty-risk analysis of La. tort law - does the Rule
violated protect the client's class of persons from the harm complained of
- usual Hill-Lundin analysis).

3. duty to turn another lawyer in:

La. Bar Association Rule 8.3 Reporting professional misconduct
(a) A lawyer possessing unprivileged knowledge of a violation of
this code shall report such knowledge to a tribunal or other authority
empowered to investigate or act upon such violation.
(b) A lawyer possessing unprivileged knowledge or evidence concerning
another lawyer or a judge shall reveal fully such knowledge or evidence
upon proper request of a tribunal or other authority empowered to
investigate or act upon the conduct of lawyers or judges.
(c) This rule does not require disclosure of information otherwise protected
by Rule 1.6 or information gained by a lawyer or judge while serving
as a member of an approved lawyers assistance program and/or as a
member of the Ethics Advisory Service Committee of the Louisiana
State Bar Association to the extent that such information would be
confidential if it were communicated subject to attorney-client privilege.
a. this rule is broader than the ABA Model Rule 8.3, in that the lawyer must report
any violation he has knowledge of, not something on the level of "raising a
substantial question of" fitness to practice - i.e. the lawyer need not make a
substantive judgment, he just has to pass it on the an appropriate tribunal
b. this rule pretty much takes word for word ABA DR 1-103 in (a) and (b)
c. you don't have to turn him in Problem 2, because you learned about the drinking
in the context of representing a client (unless your client consents to it)
(1) La. Committee has taken out part (c) in it's revision sent to the S. Ct.
(2) threatening an opposing lawyer with turning him in is extortion

4. professional misconduct: Rule 8.4 turns violation of every other rule into "professional
misconduct" and make you liable to sanctions

ABA Model Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or
official; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation
of applicable rules of judicial conduct or other law.

5. ABA Standards for Lawyers Disciplinary (1986) factors:
a. duty violated
b. lawyer's mental state
c. actual or potential injury from misconduct
d. existence of aggravating or mitigating factors
6. In Re Himmel, 533 N.E.2d 790 (Ill. 1988) Text, p. 78
Client was injured in a motorcycle accident and retained a lawyer, who then settled
with the insurance company. However, lawyer kept the money ("converted" it). Client
then hired Himmel to get her money from the lawyer, and Himmel found out, through
nonprivileged means, that lawyer had indeed converted funds, in violation of Code of
Professional Conduct, etc. However, Himmel did not turn lawyer in to Commission, in
violation of Rule 1-103(a) of the Code, but was successful in getting client some of the
money back, and he charged her no fee.
Before the S. Ct.: Court noted that Himmel was a good lawyer, with no previous
complaints, over 11 years of practice. Court also noted that Himmel got some of the
client's money for her and didn't even charge her. However, the serious nature of
Himmel's actions (helping to cover up the other lawyer's malfeasance) was reason for
the Court to suspend his license for one year.

VI. Lawyer-client relation:
A. relationship:
a. contract - not necessarily in writing (retainer agreement), except for some cases,
but there must be a "contract" (conventional obligation) by consent of the parties
b. after the contract starts, you are in a fiduciary relationship
(1) "fiduciary" - charged with caring for someone else's affairs (e.g. tutor, executor)
(2) obligations of the lawyer/fiduciary:
(a) competence & diligence
(b) loyalty
(c) confidentiality
c. governed by contract law, agency law, tort law, and even constitutional law
- we'll talk mostly about concepts of agency law
B. Problem 4:
Lawyer takes a case from a troublesome client on the condition that the client's wish
to harass and destroy the opponent are not followed (attorney only wants to sue, not
pursue a vendetta). Later, the client becomes to aggravating and lawyer wants to let him
go. Can he?
1. can the lawyer pick and chose what claims to pursue - limit the scope of the case?

ABA Model Rule 1.2 Scope of representation
(a) A lawyer shall abide by a client's decisions concerning the objectives of
representation, subject to paragraphs (c), (d) and (e), and shall consult with
the client as to the means by which they are to be pursued. A lawyer shall
abide by a client's decision whether to accept an offer of settlement of 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.
(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.
(c) A lawyer may limit the objectives of the representation if the client consents
after consultation.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal and fraudulent, but a lawyer may discuss
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.
(e) When a lawyer knows that a client expects assistance not permitted by the
Rules of Professional Conduct or other law, the lawyer shall consult with
the client regarding the relevant limitations on the lawyer's conduct.

C. stages of formation:
1. initial meeting
a. retention letter - specifics of fees, scope of representation (including whether you
will pursue any appeals, how long you'll keep records, etc.
b. non retention letter - tells "client" that you are not their lawyer (not taking the case)
c. oral agreement - weaker stance, but still legitimate, but dangerous
d. left open - meet someone at a cocktail party and they tell you their story - does
this obligate you? - very dangerous
2. consent of the parties:
a. client's belief that you're his lawyer, if reasonable, will usually determine that the
relationship exists
3. scope of the representation:

ABA Model Rule 3.1 Meritorious claims and contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis 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.
a. La. Rule 3.1 is the same

ABA Model Rule 4.4 Respect for rights of third persons
In representing a client, a lawyer shall not use means that have no substantive
purpose other than to embarrass, delay, or burden a third person, or use
methods of obtaining evidence that violate the legal rights of such a person.
a. La. Rule 4.4 is the same

4. getting out of the case:
a. a client can always fire the lawyer, anytime
b. a lawyer can get rid of a client if it won't materially adversely effecting the case,
following the rule infra:

ABA Model Rule 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.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing
a client if withdrawal can be accomplished without material adverse effect
on the interest of the client, or if:
(1) the client persists in a course of action involving the lawyer's services
that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime
or fraud;
(3) a client insists upon pursuing an objective that the lawyer considers
repugnant or imprudent;
(4) 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;
(5) the representation will result in an unreasonable financial burden
on the lawyer or has been rendered unreasonably difficult by the
client; or
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect the 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 that has not been earned. The
lawyer may retain papers relating to the client to the extent permitted by
other law.

D. Problem 5:
1. Long time client tells you he's going to be sued. You interview some possible witnesses
and make notes. Also, at a party, his banker tells you he's in financial trouble. Then
you're subpoenaed and asked what client told you, what notes you took. Also, someone
informally asked you if the guy really is in financial difficulty.
a. attorney-client privilege: (8 Wigmore, Evidence, 2292 at 554)
(1) legal advice of any kind is sought
(2) from a professional legal advisor in his capacity as such
(3) the communications relating to that purpose
(4) made in confidence
(5) by the client
(6) are at his instance permanently protected
(7) from disclosure by himself or by the legal advisor
(8) except the protection be waived
b. work product immunity: (Hickman v. Taylor, 329 U.S. 495 (1947))
(1) no unwarranted inquiries into the files and metal impressions of attorney
(2) information other than mental impressions may be discoverable if witnesses
are no longer available or difficult to get
(3) work product applies to material prepared in preparation for litigation, even
for litigation that can reasonably be anticipated (In Re Sealed Case, 146 F.3d
881 (D.C.Cir. 1998))
(4) work product: (Restatement (Third) The Law Governing Lawyers 136)
(a) ordinary - tangible material or its intangible equivalent in unwritten or oral
form, other than underlying facts, prepared by a lawyer for litigation then
in progress or in reasonable anticipation of future litigation
(b) opinion - opinions or mental impressions of a lawyer (everything else is
ordinary work product)
(5) work product cannot be waived only by the client - lawyer has to agree, also
(6) in this case, the banker is probably not a privileged person and so the discussion
with the banker is not privileged - if you make the case that it's work-product,
the facts are discoverable from the banker
(7) not codified in Fed. R. Civ. P. 26(3)(b)
2. confidentiality and privilege are governed by:
a. Rules of professional conduct
b. Law of evidence
c. Law of agency
d. Law of procedure

ABA Model Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a
client unless the client consents after consultation, except for disclosures
that are impliedly authorized in order to carry out the representation,
and except as stated in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer
believes is likely to result in imminent death or substantial bodily
harm; or
(2) 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 the conduct in
which the client was involved, or to respond to allegations in any
proceeding concerning the lawyer's representation to the client.
a. attorney-client privilege does not shield facts, just communication
b. most widely used exception to attorney-client privilege:
(1) crime-fraud exception - lawyer advising client how to commit fraud (covered
in La. Code Evid. art. 506)
c. critical issue - confidential information "relating to representation of a client"
is much broader than what is privileged under attorney-client privilege
(1) BUT this is not a rule of evidence - it's a disciplinary rule and may lead to
a charge of malpractice, etc. - but you can't refuse to answer when subpoenaed
(2) attorney-client privilege scope is much narrower than Disciplinary Rule 1.6,
as is the work-product doctrine

N.B.: From this class, need to be able to distiguish between Rule 1.6(a) and the evidence
rules, the couple of types of work-product, and crime-fraud exception . . . .

Restatement (Third) Law Governing Lawyers 68 "Attorney-Client Privilege"
Except as otherwise provided in this Restatement, the attorney-client
privilege may be invoked . . . with respect to:
(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or providing legal assistance for the client.

Restatement (Third) Law Governing Lawyers 70 "Privileged Persons"
Privileged persons within the meaning of 68 are the client (including a
prospective client), the client's lawyer, agents of either who facilitate
communications between them, and agents of the lawyer who facilitate the
representation.

Restatement (Third) Law Governing Lawyers 71 "In Confidence"
A communication is in confidence within the meaning of 68 if, at the time
and in the circumstances of the communication, the communicating person
reasonably believes that no one will learn the contents of

E. Problem 7:
1. Local psychiatrist has a $100k breach of contract claim against a local firm and
brings her case to the lawyer, who charges her 44%. She is freaked, and he says that
the usual fee is 1/3, but the lawyer says that he's twice as good as the usual lawyer,
so it's a bargain. Same lawyer handled a succession for less than 6% and told her to
keep quiet on it, since it's a low-ball figure and it'll make the other lawyers mad. Then
he handles a case on contingency for 1/3 and pushes the client to settle so he gets a
quick (but low) amount and doesn't have to work hard for it.
a. legal fees are "regulated" to protect clients and to protect the legal profession

La./ABA Model Rule 1.5 Fees
(a) A lawyer's fee shall be reasonable. The factors to be considered in
determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the
lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, the basis or rate
of the fee shall be communicated to the client, preferably in writing,
before or within a reasonable time after commencing the representation.
(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 writing 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. Upon
conclusion of a contingent fee matter, the lawyer shall provide the client
with a written statement stating the outcome of the matter, and if there is
a recovery, showing the remittance to the client and the method of its
determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of
which is contingent upon the securing of a divorce or upon the
amount of alimony or support, or property settlement in lieu
thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of 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, by written agreement with the client, each lawyer assumes joint
responsibility for the representation:
(2) the client is advised of and does not object to the participation of all
the lawyers involved; and
(3) the total fee is reasonable.
a. in the New Orleans area, contingency fees on fender-benders, etc. run about
40%... sometimes 1/3 before filing, or more after filing, or even more (45%)
for appeal
b. the items in part (a) have to be considered in their totality - different lawyers may
come up with different figures
c. the current model does not require the client's signature - the new revision will

2. suppose the lawyer charges $200/hr with minimum increment of .25 (15 minutes)
- then he can do $200 of "work" by reading 10 minutes of mail (charging 4 clients
for a minimum 15 minutes each for reading 2 minutes of letters - do the math)
- ABA Formal Op. 93-379 (1993) on reasonable fees
Rather than looking to profit. . . the lawyer who has agreed to bill solely on
the basis of time spent is obliged to pass the benefits of . . . economics on to
the client. The practice of billing several clients for the same time or work
product, since it results in the earning of an unreasonable fee, . . . is contrary
to the mandate of . . . Model Rule 1.5."
3. fixed fees:
a. criminal cases most often - vary for lawyers, their reputations, etc.
(1) e.g. $1500 for DWI case
b. incentive is to keep costs down, get done quickly
c. inherent conflict between effort and financial reward (basically, between the
client's interest and the lawyer's interest) which tempts to churning the file,
except for fixed fee arrangements, which tempt to get done quickly
d. the only thing that had no similar linkage to speak of is contingent fee,
although there is some temptation to get done fast but you need to win

N.B.: Always negotiate the best fee agreement you can, but once you accept the case,
do the best job you can and do what you need to do, irrespective of the fee
arrangement.

4. lawyer's bank accounts:
a. lawyer's account
(1) operating
(2) other
(a) payroll
(b) capital
(c) petty cash
b. client trust account - if you don't have this, and you co-mingle your personal $$
with the clients' $$, then you go to lawyer's jail!!!
(1) individual
or
(2) pooled
(a) IOLTA - being debated at the constitutional level
(b) other
c. give client a disbursment sheet to describe where the money went
d. La. Bar Assoc. - have a booklet on how to do this, etc.

VII. Loyalty to the Client:
A. possible conflicts:
1. client's interest v. lawyer's self-interest
a. lawyer may have interest (e.g. stock in the potential defendant) that may interfere
with his client's interest (even a pro bono arrangement goes against client's
interests, e.g.)
2. client's interest v. interest of another client
a. usually have more than 1 client, since you have to make $$
b. if client A and client B are suing each other, easiest case of conflict
(1) 1.7(a) forbids you from suing your own client
c. suppose the clients are business competitors or one is a subsidiary of the other
(1) 1.7(b) governs material limitation problems
3. client's interest v. interest of a previous client
a. can you sue a former client
b. what is a "former client"?
4. client's interest v. interest of a third party
a. insurance company may be paying the lawyer - so the third party, while not the
actual client, has influence on the lawyer's interest
(1) can you represent the company and the insured at the same time?
b. someone else in the firm is adverse to your client - can he sue? if he's in the
out of town office? Rule 1.10
c. if you used to be at a firm that is adverse to your client - does that disqualify you?
- concept of lawyer mobility
- imputation of conflict of interest - imputed disqualification
5. client's interest v. abstract idea
B. Problem 9:
Couple wants to divorce, but are trying to remain friends. They don't want another
lawyer, because it's expensive. The settlement seems amicable and fair. What's the
problem?
1. loyalty is a key part of a fiduciary relationship - must be loyal to your client
a. here, who's the client - two masters (Matthew 6:24) problem
2. in this case, would the woman deserve more money (than $1k/mo)?
3. in this case, suppose the court wasn't happy that the kids split up (boy with father
and girls with mother)
4. potential bickering over property settlement
5. good rule of thumb: "If it's a close call, bring in another of lawyer."
a. this increases legal fees
b. this may foment more litigation and acrimony
c. this may result in more dirty laundry being hung out
6. this scenario is facially a lawsuit - representing plaintiff and defendant -"direct
adversity" clause in Rule 1.7 (most would think so)
a. adverse representation of one client
b. confidentiality (between the parties)
7. "Consult" or "Consultation" - denotes communication of information reasonably
sufficient to permit the client to appreciate the significance of the matter in question
a. new rules will have "informed consent" verbiage
8. "Reasonable" or "Reasonably" - denotes conduct of a reasonably prudent and
competent lawyer (objective standard)
9. waive a conflict:
a. must have consent
b. must be reasonably waivable
c. must have written confirmation (may be a letter or whatever - they don't actually
have to sign it, but it's good to have a confirmatory signature)

AMA Model Rule 1.7 Conflict of Interest: General Rule
(a) A lawyer shall not represent a client if the representation of that client will
be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely
affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may
be materially limited by the lawyer's responsibilies to another client or to
a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely
affected; and
(2) the client consents after consultation. When representation of multiple
clients in a single matter is undertaken, the consultation shall include
explanation of the implications of the common representation and the
advantages and risks involved.

***N.B.: Rule 1.7 is the most important rule of all of the Model Rules!!!!!!***


ABA Model Code DR 5-105 Refusing to Accept or Continue Employment if the Interests
of Another Client May Impair the Independent Professional Judgment of the
Lawyer.
(A) A lawyer shall decline proffered employment if the exercise of his
independent professional judgment in behalf of a client will be or is likely
to be adversely affected by the acceptance of the proffered employment,
or if it would be likely to involve him in representing differing interests,
except to the extent permitted under DR 5-105(C).
(B) A lwayer shall not continue multiple employment if the exercise of his
independent professional judgment in behalf of a client will be or is likely
to be adversely affected by his representation of another client, or if it would
be likely to involve him in representing differing interests, except to the
extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent
multiple clients if it is obvious that he can adwquately represent the interest
of each and if each consents to the representation after full disclosure of
the possible effect of such representation on the exercise of his independent
professional judgment on behalf of each.
(D) If a lawyer is required to decline employment or to withdraw from
employment under a Disciplinary Rule, no partner or associate, or any
other lawyer affiliated with him or his firm may accept or continue such
employment.

C. Benefits and costs of conflicts of interest rules:
1. benefits:
a. promote trust via undivided loyalty
b. enhance representation through zeal and independence
c. safeguard confidentiality
d. prevents exploitation of clients (in theory)
2. costs:
a. increased litigation costs (end up with more lawyers on a case)
b. interference with expectations of autonomy (you want to pick your own
lawyer - don't want the court to interfere with your choice)
c. pretext for harassment (conflicts rules come up most often in real life - especially
in criminal defense cases, but also in civil litigation)
D. Remedies for conflicts:
1. professional discipline
a. usually not
2. disqualification in litigation
a. file a motion and get him kicked off
b. usually course of action
3. injunction in non-litigation
a. uncommon, but you get a judge to enjoin him
4. malpractice liability
a. if you lose your case and find out your lawyer was conflicted, you can prove that
your lawyer was conflicted and win a malpractice award
5. fee forfeiture
a. he doesn't have to pay for all the work you billed for, if the court agrees

E. Problem 10:
Man represents a bank and it wants to foreclose on a company that was his time-to-time
client. Also, he want to sue a 2nd bank for a different client and his bank client told
him not to do it, because they didn't like the implication (on improper prepayment
penalties).
1. is there a conflict? if so, what kind?
a. threshhold issue - is old client present or former client?
- is a lawyer-client relationship still ongoing?
- obligations are different for different times in the relationship until it terminates
- lawyers usually don't admit former clients - they want to always have clients
- Rule 1.7(a) does not let you sue your own client ("directly adverse") unless you
get a waiver and the relationship is not reasonably affected by the action
b. if this is a former client (and you're sent a termination letter) - go to Rule 1.9
c. if you didn't represent the former client, but a wholly-owned subsidiary, what's
the difference? it's a different person, on the one hand, but how much overlap
is there between the parent and subsidiary (you may have an effect and may
be limited under Rule 1.7(b))
2. to sue the 2nd bank, there's no 1.7(a) or 1.9(a) problem - no current or former client
a. you're (possibly) influenced by your current client bank
(1) positional conflict - your argument for one client may be opposite that used
in representation of another client - may be fit under Rule 1.7(b), but it may
be under 1.7(a) as direct adversity if it may end up in the same court (e.g.
the same appeals court or supreme court)
(2) not a really concrete rule in positional conflicts - look to the relationship,
business concerns, and really what stature the result will be in the court for
both clients (controlling, persuasive, etc.)

ABA Model Rule 1.9 Conflict of Interest: Former Client
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or substantially related
matter in which that person's interests are materially adverse to the
interests of the former client unless the former client consents after
consultation.
(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 interest 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 consents after consultation.
(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 Rule 1.6 or Rule 3.3 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 Rule
1.6 or Rule 3.3 would permit or require with respect to a client.
a. "hot potato" - try to fire one client quickly before you sue for another client
in an unrelated matter (court's frown upon this as gold-digging)

ABA Model Rule 1.10 Imputed Disqualification: General Rule
(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, 1.8(c), 1.9 or 2.2.
(b) When a lawyer has terminated an association with a firm, the firm is
not prohibited from thereafter representing a peson 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.
(c) A disqualification prescribed by this rule may be waived by the affected
client under the conditions stated in Rule 1.7.
a. "firm" - lawyers in a private firm, lawyers in the legal department of a coporation
or other organization, or in a legal services organization
F. Problem 11:
Lawyer represents corporation and two employees in criminal federal antitrust case.
U.S. attorney offers a deal, because he is running for office and wants the case to be
resolved, etc. Therefore, lawyer recommends that two individuals plead and get no
jail time, and the corporation gets off the hook for treble damages.
1. conflicts of interest - lawyer can get the best for the company by letting the
employees take the fall, or the employees can fight it and try to pin blame on
corporation, also a client
a. especially if one client goes for a plea bargain, there ends up a terrible conflict
in a lawyer representing both
b. representing a company and employees is a conflict
c. always go to Rule 1.7

ABA Model Rule 4.3. Unrepresented Persons
In dealing on behalf of a client with a person who is not represented by counsel,
a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands
the lawyer's role in the matter, the lawyer shall make reasonable efforts to
correct the misunderstanding.
a. lawyer should not give advice to unrepresented person except the advice to obtain
counsel

ABA Model Rule 1.13(a)(d) (e) Organization as client
(a) A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents.
. . .

(d) In dealing with an organization's directors, officers, employees, members,
shareholders or other constituents, a lawyer shall explain the identity of
the client when it is apparent that the organization's interests are adverse to
those of the constituents with whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its
directors, officers, employees, members, shareholders or other constituents,
subject to the provisions of Rule 1.7. If the organization's consent to the dual
representation is required by Rule 1.7, the consent shall be given by an
appropriate official of the organization other than the individual who is to
be represented, or by the shareholders.

Fed. R. Crim. Proc. 44(c) Joint Representation.
Whenever two or more defendants have been jointly charged pursuant to
Rule 8(b) or have been joined for trial pursuant to Rule 13, and are
represented by the same retained or assigned counsel or by retained or assigned
counsel who are associated in the practice of law, the court shall promptly
inquire with respect to such joint representation and shall personally advise
each defendant of his right to the effective assistance of counsel, including
separate representation. Unless it appears that there is good cause to believe
no conflict of interest is likely to arise, the court shall take such measures as
may be appropriate to protect each defendant's right to counsel.

U.S. Constitution Amendment VI - In all criminal constitutions the accused shall enjoy
the right to a speedy and public trial, by an impartial jury . . . ; to be confronted
with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defence.

2. evaluating criminal conflicts:
a. disparate culpability?
(1) effect on plea negotiation? (e.g. D.A. will offer driver a deal in a case where
the other guy is the shooter)
(2) effect on sentencing?
b. inconsistent defenses?
c. likelihood that each defendant will testify?

ABA Standards for ACJ: Defense Standard 4-3.5(c)
(c) Except for preliminary matters such as initial hearings or applications for
bail, defense counsel who are associated in practice should not undertake
to defend more than one defendant in the same criminal case if the duty
to one of the defendants may conflict with the duty of another. The potential for conflict of interest in representing multiple defendants is so
grave that ordinarily defense counsel should decline to act for more than
one of several codefendants except in unusual situations . . . .
a. conflict panels - groups of private lawyers who sign on to handle criminal indigents
who can't get their own lawyers but who present a conflict with the Public
Defenders' Offices (e.g. partners in crime are arrested and the P.D. can't represent
both of them - one partner needs a lawyer from "outside" the P.D. Office)

ABA Model Rule 3.8(a-b). Prosecutors
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported
by probable cause.
. . .
a. prosecutor should not bring charges for the purposes of furthering his career
b. look at Rule 1.7(b) also

ABA Model Rule 1.8(d)(f). Conflict of Interest: Prohibited Transactions
(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.
. . .
(f) A lawyer shall not accept compensation for representing a client from one
other than the client unless:
(1) the client consents after consultation;
(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

G. Problem 12:
Lawyer represents a high school classmate and takes 10% business stock as payment.
Then, after company is doing well, she uses insider information to buy adjacent land
to new plant (good profit). Finally, company president tells her she's done such a
good job, to draw up the papers for transfer of his Mercedes to herself.

ABA Model Rule 1.8(a)(b). Conflict of Interest: Prohibited Transactions
(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 reasoanble to the client and are fully disclosed and transmitted
in writing to the client in a manner which can be reasonably
understood by the client;
(2) the client is given a reasonable opportunity to seek the advice of
independent counsel in the transaction; and
(3) the client consents in writing thereto.
(b) A lawyer shall not use information relating to representation of a client to
the disadvantage of the cleint unless the clinet consents after consultation,
except as permitted or required by Rule 1.6 or Rule 3.3.
(c) A lawyer shall not prepare an instrument giving the lawyer or a person
related to the lawyer as parent, child, sibling, or spouse any substantial
gift from a client, including a testamentary gift, except where the client
is related to the donee.
. . .
a. new amendment is that 1.8(a) includes signed informed consent and that the
client is advised that he can consult independent counsel

1. conflicts in this case:
a. obligation for ongoing services for 1 year v. 10%
(1) stockholder interests can be counter to the interests of the company or the
CEO - so she may be in conflict with her client on business decisions, etc. or
salary the CEO gets, etc.
(2) does the lawyer represent the corporation, or her friend the CEO? - may
cause role confusion (is she my lawyer, or is she a shareholder today?)
b. buying the land adjacent
(1) may come in conflict when company wants to expand over that land
(2) should not use confidential information
(3) ABA Rules do not condemn this if corporation does not suffer from it - it
is contrary to the Restatement, but not covered by the Rules unless the
action adversely affects the client
c. giving the lawyer the car - gratutity
(1) Rule 1.8(c) forbids the lawyer from preparing the papers - she can take the gift
but not papers
(2) usually, this comes up in the lawyer making up a will - the lawyer can't put
himself in a will unless he's related to the donee
d. what if the lawyer was romantically involved with her friend, the CEO:
(1) potential abuse of fiduciary relationship
(2) loss of emotional distance required for professional judgment
(3) conflicts of interest between lawyer and client
(4) confusion in distiguishing pofesisonal from personal communications

Restatement (Second) of Agency
Section 397: Unless otherwise agreed, an agent is subject to a duty to his
principle to act solely for the benefit of the principal in all matters connected
with his agency.
Section 398:

Restatement of Law Governing Lawyers (2000)
Section 60(2): Absent informed consent, " a lawyer who uses confidential
information

N.B.: Remember that in La., the Supreme Court has the exclusive agent for regulating
lawyers in the state. Therefore, all La. disciplinary rules apply to lawyers, and if
a plaintiff attempts to apply an external law (e.g. agency law) to a lawyer, the
lawyer has argument that the agency law does not apply, since the Supreme
Court alone can make rules/laws for lawyers in the state.

H. Problem 13:
Landlord's son-in-law rents from him and has a slip-and-fall. He says he's okay so the
father-in-law doesn't report the incident to his insurance company. Son-in-law later files
suit for personal injury. Lawyer for insurance company handles the case and one of the
parties tells her some confidential information - whose lawyer is she? Conflict between
handling insurer and insured?
1. contract between insurance company and insured provides that lawyer is supplied
and paid for by company - but the lawyer is paid for by premium (i.e. insured's) $$$,
so who does the lawyer represent???
a. Louisiana Direct Action Statute - plaintiff can sue insured and the company
directly
b. reservation of rights - company continues to defend the case but reserves right
to contest coverage (esp. if he loses to the plaintiff) after the case is over
- once the reservations of rights letter has gone out to an insured, you (the lawyer)
can't represent both because they're adverse (unless they consent, but usually the
company gets another lawyer to represent themselves, and the original lawyer
stays on with the insured)
c. bad faith law - while formerly, the insurance company could gamble with the
the insured's premium money a little bit, current legislation generally states that
if an insurance company unreasonably fails to settle a claim, they can potentially
be liable for all damages, even those above policy limits
2. generally, always go to Rule 1.7 and decide which client(s) you can represent without
conflict, and in particular for insurance work, Rule 1.8(f) about not accepting money
for compensation for one client from someone other than the client unless the client
consents, there's no interference with your judgment, and information must be
confidential
3. control of litigation - often the company will try to dictate your work (depositions,
etc.) - however, you're the client's laywer and you have to decide based on your ideas
on the law and facts of the case, and your client's best interest
I. Problem 14:
Lawyer takes a malpractice matter against a doctor, and then remembers that she
represented the doctor in an adoption matter in the past (closed now). Doctor is upset
that doctor is "his lawyer" and suing him. Can the lawyer sue or not?
1. new proposed Rule 1.18 - you have a duty of confidentiality to a prospective client
who reveals confidences even though you have not officially taken the case (and may
not, perhaps)
2. however, no duty of loyalty to a prospective client who does not hire you
3. Rule 1.7(a) - you can't sue your own client due to loyalty, but what about this case
where the relationship is over (5 years ago)
a. confidentiality does not drop off after the case is terminated, but loyalty does not
continue (for the most part) after a case is closed

N.B.: Loyalty ---> determines whether you can actually sue them or not
Confidentiality ---> refers to the leak or cross-reference of confidential material

4. new client's representation may suffer is lawyer has some loyalty to ex-client (bias),
although you are usually concerned with the rights, etc. of the ex-client - Rule 1.9(a)
a. same or substantially related matter (this is where the controversy usually falls,
since lawyers usually don't switch sides in an active matter - it's usually an old case)
(1) determine "substantial relatedness" - compare "matters"
(a) matter - "any judicial or other proceedin, 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. . . ." See MR 1.11(d)(1).
(b) same or stubstantially related
- similarity of facts relevant to each matter
- similarity of legal issues relevant to each matter
(c) other considerations:
- lawyer's actual involvement with each matter
- lawyer's access to confidential information regarding each matter
(d) in La. the S. Ct. defines "substantially related" means that a reasonable
person couldn't tell the difference between matter A and matter B
b. interests are materially adverse
c. without consent
5. these conflicts are usually brought to light not in disciplinary situations, but a former
client moves the court to disqualify opposing counsel under the claim of ex-attorney
conflict
6. analysis of former-client conflicts:
a. was there ever an attorney-client relationship at all
b. are the interests of the former and current client adverse
c. is there a substantial relationship between the two matters?
- this is usually the controversy
d. has the former client consented

N.B.: Most of these conflicts occur when a partner of a former lawyer takes a case.

J. Problem 15:
Imputation of Conflicts of Interest - ON THE TEST!!! IMPORTANT!!!

 

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