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Week 1

Monday, August 20, 2012 2:42 PM

Please review the following and be prepared to discuss: 1. A Rolling Ethic Gathers No Moss, Richard Cohen, Washington Post, May 1, 1988 2. Chapter Two, A Stratified Profession, pages 40-53 and 62-73 3. John Leubsdorf, Legal Ethics Falls Apart, 57 Buffalo L. Rev. 959 (2009), pages 959-962 4. Hypothetical: You Wont Get Caught: Guaranteed 5. Model Rules: 1.0, 3.3, 8.3 and 8.4
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Intro Rules change a lot now (need up-to-date version of book) Increasing importance Especially since Watergate Syllabus is just a best guess Exam Essays, short answers, mulitple choice 36 hour take home Can be picked up dec 7th 8am - dec 19th at 5pm Likely 3 essays 20 short answer or multiple choice Will have access to internet, whatever you want So he'll ask us quesitons on things we'd never be able to google So note Prof. Hirshon's opinions Word limited Probably 2 issue spotters 1 think freely, use your best analysis Here's a topic Or, here's a short article Write about it Midterm Nov. 20th 20 questions similar to what used to be on the MPRE Counts for 20% of the grade However can opt out of the grade Can take the quiz, see grade, then decide to count it In class Doesn't believe in cold calling Expectations Attendance Be prepared e-mail if missing class rhirshon@umich.edu Cell: 207-329-9471 Can text him Goals of class:

1. A Rolling Ethic Gathers No Moss, Richard Cohen, Washington Post, May 1, 1988 Difference between being Moral and being Ethical Can they be in tension? See 'you won't get caught" Tension Representign ATV manufacturers, preventing needed reuglaitons to prevent serious bodily harm Immoral although ethical 2. Hypothetical: You Wont Get Caught: Guaranteed Rules of ethics are not synonymous with morality BH: what happens when you're personal/community morality are in conflict with rules and standards underlying professional code of ethics? Rule 1.1 (competence) if you can't represent client to your fullest -> get out of that case Note Malpractice vs. unethical conduct Malpractice: civil law suit; suits for damges Unethical conduct: file actions with licensing body

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Unethical conduct: file actions with licensing body Violations of rules of ehtics Separate body, often created by the court, investigates and decides whether or not particular lawyer should be sancitoned Sanctions: up to removal of licenses Every state has now adopted the model rules in some sort And has some sort of process Often highest court of state creates a regulatory group headed by bar counsel Compaint is filed with this regulatory group Sanctions CLE (continuing legal eduction) Other remedies Private reprimands

Model Rules: 1.0, 3.3, 8.3 and 8.4 Rule 1.0: Terminology Rule 3.3: Candor Toward the Tribunal Rule 8.3: Reporting Professional Misconduct Rule 8.4: Misconduct

3 Chapter Two, A Stratified Profession, pages 40-53 and 62-73 BH: History of professional responsibility Series of lectures - J. Shartwood - 19th century - at UPenn Heard by Alabama Bar Association person -> codified 1908 - ABA adopts Canon of ethics 1908-1968 - very few changes 1969: Model Code ABA committee of ethics and professional responsibility 12 members with 3 year terms - staggered so 4 members appointed every year Appointed by ABA president elect 1983: Model Rules in leiu of model code 1983-present Changes all the time ABA Process Historically: WASPs controlled bar, controlled ethics; ABA served to preserve this Teddy Roosevelt goaded ABA into taking up ethics Attacked corporate attorney's and other elites in the profession Ethical code: was a political document The Haves writing a set of rules under rubric of professional rules of ehtics for the Have-Nots If entering an old family practice, you didn't have to worry about these Just go join a country club - that's how you solicite clients No advertising Note: Rule 1.5 (Billing and Fees) Gets into very detailed regulations of contingent fees Aba attacked contingent fees- lawyers representing plaitiffs side / workers in suits against corporations (WASPS/ABA elite clients) Takeaway: tension amognst various groups in profession, that tension has affected the drafting of model rules, even to this day. Model rules of professional ethics But not standardized throughout the states Need to look to your own states rules Example: Multijurisdicitonal Practice Admitted 'pro hoc vie ce" (sp?) Admitted for this matter only Local rules of ethics and professional resposnbility in which you can be admitted for somethig Usually invovling associating with local counsel Have locla counsel make a motion for pro hoc vie ce Now: Large law firms trying to loosen these restrictions Serve clients all over the place

4. John Leubsdorf, Legal Ethics Falls Apart, 57 Buffalo L. Rev. 959 (2009), pages 959-962 Dissagregation of the rules Used to be: just look at model rules of state propigated by bars associtations Now: Lots of bodies invovled in legal ehics Congress Administrative bodies Sarbox - created scheme of ethical oversight for lawyers practicing in front of the SEC Bob Hirshon lobbyied against this on grounds of disaggregating the code of ethics Ex: Rule of confidinetniality (traditional rule) versus Sarbox pushign twoards transparency and disclosure Strict disclosrue restrictions provided by the bar associations

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Strict disclosrue restrictions provided by the bar associations Lawyers who practice inf ront o fthe SEC worried about being pulled in different directions Leubsdorf: this dissagregation has Limited freedom of lawyers to pursue their client's interest without restraint Can practice before a particular agency as you would before a court It becomes incumbent for you as a client to know the agency specifc rules These rules, are generally not created by the lawyers (or at least not like the lawyer centric process of the ABA, enforced by bodies created by t eh Highest Court in the land) No such scheme exists within state and federal regulatory bodies Often get non-lawyers dictating these rules The agency specfic rules are generally the same for lawyers and lay people Federal governemtn has increased its activity Specialty bars Patent bars Sec bar Conclusion: we have begun to accept all these individual rules, not as a morality code, but as technical rules of the road Because we won't view these as tied to morality Q: should this being going this way Last week we talked about the difference between ethics and morality Bob: we going to go hard to the technical approach , blurring the moral content of ethical rules

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Week 2
Tuesday, September 11, 2012 4:08 PM

Logistics Free Lunch A number of LLM students NY bar requires at least 2 hours of ethics Amended rules uploaded to ctools Example Rule 1(n) "writing" or "written" "and e-mail" changed to "electronic communication" Changed last month e-mail not inclusive enough Model Rules 8.3: Reporting Professional Misconduct If you know another lawyer has commited a vioaltion fo the rules inform the approrpaite professional authority 8.4: Misconduct It is professional misconduct for a lweyr to: Violate or attempt to violat ethe rules of profession.. (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 invovling dihonesty, fraud, deciet or misrepresetnation Bob: note how broad this is (the engage in (any) conduct) Q: is this a rule you must abide by in life or in your practice 8.4(c) reaches conduct outside the practice of law The bar will stick its business up in your personal life Case on point: bar sanctioned someone for having an affiar leading to divorce 8.4 is a 'gotcha provision' This is how they'll get you for . Something Examples of sanctions under 8.4 Lawyer giving false informaiton on finanancials and used that info to obtain a loan Another lawyer lied about domicile in city counsel election THEN 8.3 What if you know someone has an affair Class Poll: would you report somoene had this affiar So, there's some difference between turning back the Pitney Bowes machine and not reporting But the rules don't make this distinction Bob: No lawyer would follow these, and self reprot and things like that Basically, there are rules you aren't going to follow Review 8.4 applied to things just involving moral terpitude Libertarians would argue governemtn shouldn't have anything to do with this But the libertarians have lost What actually happens: Not actually going to get brought into this This actually gets brought up when you're caught violating some other rule How to govern yourself Most practicing attorney's use a 3 part approach Gut: What does your gut tell you? Would you like this to be on the front page of your local newspaper,
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Would you like this to be on the front page of your local newspaper, would you like your mother to know? Are you feeling a little uneasy abut this situation If yes then Rule: Pick up the book/ go to the web and look at the rules Look in the table of contents - see what might apply If you're going to a large law firm - probably have an Ethics counsel If not, go to mentor, gorup head, etc Business: how does what I'm about to do effect the instiution i.e. how will this effect business Any attorney worth his salt will say "is there a way I can make sure this is no a conflict?" etc Is there a way I can turn a present conflict of itnerst (1.7, 1.8) into something that's not a conflict of interest i.e. it's a former client under 1.9 Duties to former clients are lesser to the duties to current clients Random note from 9.3 (reporting professional misconduct): Lawyer assitance programs Assists lawyers with drug, drinking problems So assiting attorney's in these programs do not provide obligation of disclosing this ifnormation 1.6 rule: if you've obtained this informaotn obtained via attorney-client confidentiality

Classroom Hypotheticals: Ethics anyone? Never let your sense of morals prevent you from doing what is right. Isaac Asimov 1. The Supermarket You are in the checkout line in a supermarket which is part of a national chain. You are not particularly fond of the store because the produce is frequently of poor quality and the service is not very good. Moreover, youre pretty sure youve been shortchanged several times over the last couple of years but didnt discover the errors until you were home. Actually you prefer to shop at the small, locally owned store but its farther away and its prices are substantially higher. The cashier scans your purchases. You pay the cashier who then gives you your change. Having been shortchanged before, this time you check the amount of change you were given and discover that you got back $20 more than you should have. What do you do? What if the error was $1? What if you didnt discover the $20/$1 error until you were home?

2. I Deserved that Grade Anyway You get your grade back on a final exam. You can tell from the professors notes in the margin that he made an error in calculating your grade. He gave you an A rather than the B you should have received. This course is relevant for your career path and will allow you to graduate with high honors. If you get a B, you will graduate with honors. What are you going to do?

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going to do?

3. My Wife will Love Me Youve just checked into a suite at the Westin at Cabos San Lucas. Its a beautiful day so you open the window to allow the sea breeze into your room. On the window sill is a beautiful gold and diamond bracelet. The bracelet appears to be new. It would make a great gift for your wife. You are quite sure that if you turn in the bracelet to hotel management, the person to whom you give the bracelet will only give it to his or her significant other. What do you do?

4. Airline Industry: I got even Airlines have complex fare structures. Fares for exactly the same flight may differ depending upon a variety of factors such as when the ticket was purchased, the length of stay prior to the return, etc. Moreover, airlines now typically charge passengers a $100 fee for changing reservations. Yet, they do not generally offer compensation to their customers for flights cancelled prior to the scheduled date of departure. Instead, airlines book passengers scheduled to travel on a cancelled flight on an alternative flight that may or may not meet the passengers needs. Airlines also overbook and then offer cash or coupons (that may be difficult to use) to passengers bumped due to the overbooking. What are your thoughts about the following: a. According to news reports, a Supreme Court Justice went on a duck hunting trip with the Vice President of the United States. The Justice bought a round trip ticket which was significantly cheaper than a one way ticket. He had no intention of using the second leg since he flew back on a government plane with the Vice President. The Supreme Court Justice paid only $218 for the roundtrip ticket compared to $698 for a one way ticket. Bob: Scalia goes duck hunting with the VP b. A managing partner of a well known law firm booked a one way flight to a non-hub city which included a stop at the airlines hub. The passenger got off the plane at the hub city (he had no intention of traveling onto the non-hub city) and saved himself $600.

5. Law School Bookstore The law schools bookstore return policy allows textbooks to be returned for a full refund through the 2nd week of classes each semester. The policy is intended to give the students flexibility in case they need to drop a course. Professors often send out reading lists at the beginning of a semester and many students order copies of the textbooks online where the prices are substantially cheaper than at the bookstore. The books purchased online must be shipped and often take a week or more to arrive. In order to keep up with the reading assignments during the first 2 weeks, some students buy the more expensive books at the bookstore and return them before the refund deadline. Is there anything unethical about taking advantage of the bookstore policy to buy the books and return them by the deadline
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taking advantage of the bookstore policy to buy the books and return them by the deadline even if there is no intention of keeping the textbook?

6. Insurance claim Accordingly to a study conducted by the Consumer Federation of America, US insurance companies systematically overcharge customers and underpay home and auto claims. Overcharges average $870 over a 4-year period and in fact, your insurance company was cited as one of the worst offenders. Your car was recently damaged in a hit-and-run accident. Your local mechanic, who is a good friend, is willing to increase the estimate for repairs by $500 (the amount of the deductible in your policy) and refund it to you if the garage gets the repair work. Assume you really need the money. Should you file the claim for the inflated loss? Or should you even give the repair business to your mechanic friend?
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Rules 5.1 and 5.2 Telephone Dillemna Hypo You are an associate working with one of the firms senior partners on a large real estate transaction. You are on the phone with opposing counsel, negotiating some of the smaller issues which have yet to be resolved. You tell opposing counsel that you are putting her on speaker phone because you need to look at some documents while you talk; but you assure her that no one else is in the office and that the door is closed. Ten minutes later the partner you are working with on this project enters your office. You are about to announce his presence when after hearing the voice of opposing counsel on the speaker phone he puts his fingers to his lips. What do you do?

Seems like 8.4 might apply Rule 5.2 Repsonbilities of a subordinate lawyer a) A lawyer is boudn by the urle sof Professional Conduct notwithstanding that the lawyer acted at the direction of another perosn b) A subordiante lawyer sdoes not violate the Rules of Professsional Condcut if that lawyer acts in accordance with a supervisory lawyer's reasoanble interpreataion of an arguable question of professional duty i. 5.1 Responisblities of Partners, Managers, and Supervisory Lawyers

The Parable of the Sadhu Does this have an applicability to law firm culture Note: Number one problem before bar with large law firms Conflicts of interest Number one problem overall Comingling of Funds 1.5: keep funds in separate accounts Retainers Often lawyers dipping into retainers for operations, etc

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Week 3
Tuesday, September 18, 2012 4:09 PM

Rule 8.1 Bar Admission and Disciiplnary matters Note: like 8.4, applies to nonprofessional condcut But also note it applies to non-attornies (i.e. applicats for admission to the bar) Both admittees and laywers shall not Note: Text says "lawyer in connection with a bar admission) Interpreted to mean An admittee who didn't give orrect informaiton and go on to become a lawyer - no sigh of relief Knowingly make a false statement of mateiral fact; or Fail to disclsoe a fact necessary to correct a misapprehension known byt eh 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 discolsoure of infomriaton otherwise protected by rule 1.6 Note: So 8.1 isn't just admissions to the bar, its any investigatiosn you could be invovled in as a practicing lawyer `Note: 8.1 is usually an add-on charge The add-on charge, of making a false statemtn of material fact , is usually worse than what you're being investigated for Disciplianry counsel likley to say 'you never cooperated with me' even if you're free on the undelrying charge, you'll be charged with 8.1 Section (b) known as the co-operation clause Requries co-operation in discplinary process This trips people up because 8.1 is an independent basis to be charged upon. Could be triggered by fialing to respond to a letter from bar counsel So make sure you do that Note: 8.1 can trigger 8.4 for lying But 8.1 is braoder than 8.4 because triggered by failures to disclose Note: the no-harm, no-foul rule does not apply to 8.1 If, as a result of your violation, no one was hurt, can still be sanctioned under 8.1 Note: false statements or failures to disclsoe in bar passage of one state can still come and bite you in other states I In re: Griffin Allowed to take bars 2 times Then not allowed to b/c of character and fitness No plan to get out of debt Lots of missed payments Failed

1.15: Safekeepign Proeprty Notes: Just about every state has IOLTA (interest on Lawyers Trust Account) See Michigan 1.15

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In Re Jo Fairbairn Had used funds from trust account to pay operating expenses Did pay it back F: Jo had control of the books To make payments Mortgage payments Patent office Issue: consequence for clients if they don't pay on time Loss of clients patent rights That could lead to malpractice suit Pay roll taxes And it's a felony to not pay everything when its due Did this benefit the respondent (referee said no) Court: erroneous - clearly benefitted She and husband partners in firm She avoided jail time for failing to pay payroll taxes Referee recommended 6months suspension, can not be in charge of client trust accounts Court: 13 month suspension and indefintely barred from handling client accounts Relevant things for determining censure Nature of the misconduct Moving money from one account to another Does it matter that it was unintentional No Cumulative weight fo the violations Note: Misappropration of client funds usually merits disbarement Note: even if accountant at big firm does it, but the lawyer who signs there names still liable Harm to the public Basically per se harm to the public Harm to the legal professional Breach of trust

Mitigating factors Severe psychological disorder Must cause the violation So just showing you have it, not enough Extraordinary stress Referee- no Court: yes Contribution to community Must be beyond normal lawyer Lawyers already have 6.1 obligation for pro bono

Must be purer than caeser's wife Must be really above and beyond Restitution (not motivated by fear of being caught) Here: timing important She started to repay before caught
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She started to repay before caught No harm to clients Severity of sanction (not the liability, just the penalty) will take into consdieration whether anyone was harmed Notes: Lack of history not a mitigating factor However, if you have a history, it can be viewed as an aggravating factor Aggravating factors Selfish motive

Note: Bar notified because bank had requirement to report overdrawn IOLTA To avoid these issues She should have had the clients pay up front for these fees Or she could have immediately requqested the money after sending the checks (delay before cashing) She could have sent a bill tu to the cleint who hadn't paid their expenses up front Compare 1.15 with Michgians Has allthe model rules plus Definitiaonl stage re: IOLTA and trust accounts How IOLTA accoutns hsould be dealt with Michigan Trust Accounts Article History of IOLTA Legal Services Corporation Created by congress, non-partisan, fund legal aid programs Regan Administration became hostile to legal services corporation Didn't like it when Legal Aid socieity's were suing state of california ABA lawyers (white conservatives) marched on washington against Regan's actions But this scared people who supported legal aid Supreme Court Judge from florida came up with idea: Create IOLTA accounts But required state by state approval b/c rule: if I'm a client, and I give you money, you have to segregate this money Banks would never pay interest on this client trust accounts They were basically just pocketing the potential interest So lawyers can't earn the interest, b/c its client money But designate non-profit group whose purpsoe is to fund legal aid to the poor 1.15: independent oblgiation to determine whether or not your client is going to have net interest Right now, with interest rates laow, we don't really have to worry about this But obligated t tell cleint: you can earn net interest Can charge client Bank service charges Your own cost in setting up the account Including attorney's time in setting up and monitoring an account So if interest that would be created is eaten up by administrative fees

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Week 4
Tuesday, September 25, 2012 4:11 PM

Hypotheticals Starting Out I Personal Injury Case; should he take it Has only done business litigation before If he took the case, would he run afoul of 1.1 (competence) 1.1: a lawyer shall provide competent represtentation to a client. Comepetent represetnation requires the elgal knowledge, skill, thoroughness and preparation reasonably necessary for the represensaetnation. Q: what if there was a Bar Assocaition program or something to support him i.e. take the case and see if he can get some informal advice Or does he have to do more, name her co-counsel Q: what would be the difference between taking an asbestos case and knowing nothing about asbestos Here: business litigator versus perosnal injury Is that a bigger difference? Bob: if bar is so high, rule is so strict as if to say you have to have all this knowledge beofre you take the case, you'll never take th ecase The bar is not that high If Tom had decidedd to take the case, and makes himself competent, that's okay Competency does not mean best It allows for somebody to take their first case Just need to handle it comeptently Put in the effort Do the research Q: does he have obligation to disclose that he's never done this sort of case before Here: personal injury, contignecy fee, Doesn't matter that he will take longer Q: must he disclose his inexperience to the client? Does he owe Client a duty to know his level of experience You may not have to (1.1 doesn't need you to) But practically, you need to craft one of these statements to tell a client (if you're not in a large law firm that would clealry be competent) "I want you to know I have not had much expereince litigating personal injru, but you've been a client of mine for a long time. I will make this my mission to learn what I need, and bring someone in to handle your case. I'm going to keep treating you as my best cleint. Keeping no stones unturtned" Questions: Is there legal malpractice if you're incompetent but win(handle case incompetently, never brought yourself up to speed)? Only an If there is an injury for legal malpractice However, bar counsel can still sanction you for incompetence (violation of 1.1) Notes The interplay of these rules and civil litigation Civil ligitaiotn: no harm, no foul Model Rules: don't have to damage somone to be liable Fiduciary relationship with cleints once client attorney relationship begins Attorney must put clients interest above her own But before the relationship begins? Class Notes Page 12

But before the relationship begins? When Betty comes in and you're deciding whther or not to take the case Assume brand new client for this Prior thinking to taking the case, no fiduciary relationship with client Things about 1.1 Comments changed - look at ctools changes Comment 6: greatly changed Talks about what an attorney that contracts with other lawyers as a joint relationship Lawyer should keep abreast of changes in the law accroding with the risks associated with relevant technology Technological relevance requirement on all attorney's in the profession 1,.5 Fees Factors you can charge for Lawyers shall not arrainge ccontignent fees for defendants in criminal case Division of fee between lawyers who are not in the same firm may be made only if Proportion to the services performed Client agrees to arrangement Fee is reasonable Q: referral fees for referrign cases States that have this phraseaology, the quesiton comes down to What services are you performing Stay in the case? Bob: states differ dramtically on 1.5 Some states very libeal on splitting fees Other states where you can't split fees/ get contigent fees Standard referral fee: 1/3 of lawyers fee (so 1/3 of 1/3) Q: in a state that takes the proprtion to the services perforemd langauge, will you deserve this 1/3? Sometimes: if you have hand-holding Hand-holding: attorney can collect portion of the fee for doing nothing but being on back and call with Becky, running interference with the attorney on the case, etc So that's how you get around the rule

Hypo II 2 new matters: 1) incorproating small boutique; 2) handling domestic divorce case Should you take the incorporation matter? Yes Should yout ake the domestic divorce case? Differnce: mistakes not as easily remedited Note: wher eyou derive the incompetence is irrelevant Someone helpign you Reaserach Etc What should you charge for fees- it'll take you a lot longer than Tom There's an elemenet of reasonablness Clients can complain So can't end up charging twice as much as more experinced lawyer would charge for incorporation just because you'd take twice a slong 1.5 factors (3) fee customarily chargfed for similar legal services notes: alternative fee arraingment A lot of work that was once handled on an hourly basis not handled on a flat fee Requried to sened client engagement letter Class Notes Page 13

flat fee Requried to sened client engagement letter Required by rule in some states to be sent to every client ("in writing") Some states just say "preferably in writing" so not required in wiritng But most do it anyway Best practice Engagmenet letter content Scope of representation (1.2) Basis of charge under 1.5 Document you look to when things aren't going well Bob: if you decide to take these cases, do you think you should be informing your domestic relations client differently than your incorproration clent Rule: 1.5/ 1.4 Have to go through weeds yourself, figure out what is materially important to inform your client i.e. may have to dtell client you haven't done the incorproaiton before Just important to be competent

1.5 Fees Keep it in writing Not in writing, can't sue Engagement letter Define scope under 1.2 1.5( Fees) : set out hours and expenses Note: 1.5(a) ai lawyer shall not make an agreement for charge or colelct an unreaosnable fee or an unreaonable amount for expenses Note: statemnt of billing policies in letters generally just cut and pasted onto this letter Squiggle factors beyond hourrly rates Difficulty of project Etc etc 1.5: reference to expenses (unreasoanble amount of expenses) Used to not have this, would charge a lot of expenses When you had something as a legitimate expense; like billign 25 cents a page for printing Note: look at the docuemtns, particulary engagment letters for exam Required, in some states, that you go to fee dispute panel if there is a dispute Include that in your letter Letter about conflict - not your lawyer Can't mention the client you have giving arise to the conflict Even if it's out in public, if client wants you to keep it confidential, you can't mention it Disengagment letter Bob: better to termiante relationship, although some lawyers balk at sending these letters out because worry won't get further business Let them know you're not monitoring changes in legal context anymore Avoid being sued for that Or if you end up on the other side of that client, might find yourself thrown off the case See company purchased by Eastman Kodak - hd never sent a disengagment letter

Professor Militant: How useful are the ethical rules in dealing with this problem?

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How useful are the ethical rules in dealing with this problem? Note: 1.2(b): lawyers do not esposue the polticial views of their clients Are there impediemnts to zelous advocacy (1.3 comments) in representing someone abhorrent No metnion of business conflicts in rules But that's a big issue Bob: you should have yellow lights flashing for rperpesenting Prof. Militant Because of: you don't want to represent a client who is already getting in your face These are the people likely to sue you for malpractice

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Week 5
Tuesday, October 02, 2012 4:08 PM

Guest: Steve Scudder Center for Pro Bono and Standing Committee on Pro Bono What Pro Bono is doing on a national level

Video National Celebration of Pro bono (celebrateprobono.com) Chief Justice of Penns: Ronald Castille

History of Model Rule 6.1 Early america 1645 virginia statute - prohibted lawyers from practicing for a fee Federal and state consitutions establish system of courts -- jurisdictions sought to control admission Lawyers required to give oaths similar to those in Europe: "faithfully and industriously aid everybody, the poor man quite as willingly as the rich man" Bar associations were formed- local, state, national First written code of ethics- alabam 1887 "clients ability to pay can never justify a charge for more than a service is worth; though his poverty may require a less charge in some isntances and sometimes not at all Aba Canons of professional Ethics - 1908 "the profession is not merely a money-getting trade Q: where did the pro bono ethos go between 1887 and 1908? Model Code of Professional Resposnbliity -1969 "the rendition of free legal services to those unable to pay reaonble fees continues to be an obligation of each lawyer" Montreal Resolution -1975 Affirming "The basic responsbility of each lawyer engaged int eh practice of law to provide public interest legal services" with specficis Model code of prof condcut 1983 Preamble langauge and aspirational rule "a lawyer should render public interst legal service" with guidance on how to discharge that responsbility Toronto Resoltuion -1988 "devote a reaonble amount of time, but in no less event less than 50 hours per year" Q: what si the role of apro bono /public service provision in lawyer ethical rules? Is it based on the inherent defintion of our profession or based on unmedt legal needs Toronto - was about meeting unmet legal needs Model Rule 1993 The improtant concepts, defitnions and guidance of the Montreal and torotno esolutiosn were not tin the model rules But states were adopting the montreal and toronto guidelines A wave of legal needs studies reinforced how necessary it was for lwaweyrs to do pro bono work Fudnign for staff attorney legal services progreams was on the declien - the private bar needed to step up Law students/ lawyers needed gidance ABA standing Committee on lawyers public services repsonblity - proposed urle that
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ABA standing Committee on lawyers public services repsonblity - proposed urle that mianted core value of 83 rule but added quantifiable measures Additon of langauge specifyyign 50 horus as the minimum necessary to meet pro bono obligation Address needs study with suggestion that 40 of the 50 hours be provided to poor Articulaing specific ways thhrough which remaning 10 hours of pro bono service oculd be fulfilled Replaicing the part of the 83 rule that allowed donations in lieu of service with langauge encouraging finacial contiruiotiosn "inadditon to" the laweyr's pro bono service Notably, despite some states condmidering mandatory pro bono, the committee rejected compuslory pro bono Revised again in 2007 Curren Version Every lawyer has a professional repsonbltiy tto provide legal service sto those unable pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year Provide a substantial majority of the 50 hours to Persons of limtied means or Chairtable, religoius, civic, community govenremtnal educaiotnal organizaitons in matters which are primairly address the needs of persons of limited means Provide any additonal service thorugh: Delive.y of Substainly reduced fee to persons of limtied means; or Participation in activities for improving the law, the legal system or the legal profession In addition :should contribute to legal aid organizations Q: closest vote in ABA dlegate history Lots of factions Ethicists Pure - din't like non-mandatory rule in Prof Ethics This is the only non-mandatory rule in the code Anti-Quants- people objected to having any quantification People who think Pro Bono shouldn't be in the Code Bob led the fight for this B3 on 'improvign legal profession' was just to get votes Delegates voting on this qualified for this Bob: All other ethical rules had been promulgated by the ethical committee This was the first that came from elsewhere So some objection was turf related Legal Services and Pro bono reform Legal Services Corporation Act of 1974: required a delivry systems sutdy to dermine which approach (Staff model, judicare, contract, pro bono, mixed) was most effective and cost efficient Fundign under the Delivery Stystems Study began in 1977 with 38 bar demosntration programs and 60 staff programs incldued The DSS was compelted in june 1980 but was incocnlcussive about the best sytem No other model performed better thant eh staff model, pro bono met LSC's feasiblty and performance criteria 1980 - fewer than 100 organized pro bono programs across the country; 9,700 attornes did private attorny invovlement work thorugh LSC LSC borard issued an instruction to programs in janurary, 1982 regarding allocaiton of 10% of LSC funds for private attorny invovlement Feb and march 1982 three regional conferenes to assist in developing private bar programs By sept 1982, 90% of LSC programs hasd PA I activites inp alce, with 85% using pro bono as the priamry model 42,00 invovled in PAI in 1982
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the priamry model 42,00 invovled in PAI in 1982 1984 - LSC enacted 45 CFR 1614, a regualtion replaced the 10% instruciton with a more detailed 12.5% From 1980-. Reduced budget for legal aid And restritions on what the programs could do Pro bono has grown in conjunction/response to this

Pro bono Service of Japanese Lawyers

Note: Some voluntary bar assocaitiosn require that once you're members must do pro bono But no state bars require it Pop Quiz on 6.1 Look at the effing comments

Addressing the Justice Gap Carnegie Report Require law students to perform pro bono Take ethics

Class Notes Page 18

Week 6
Tuesday, October 09, 2012 4:09 PM

Note: next week- go to ethics of witness coaching - not on syllabus ( I think he said week 10) Role playing: Marcus and Justin Wheewwww Dough Richmond Bio Managing Director of Aeon Aeon - world's largest brokerage company Manages risk analysis group Legal malpractice Bob met Dough when working on the West Coast Firm went to Aeon - their broker for legal malpractice Wanted to do professional devleopment for associates Litigators Aeon sent them Doug Well known for Insurance practice Also well known as a legal ehticist Testified on several occasions Written lots of articles Only has a 50% chance he has any idea what he's talking about Praciced in 300 person firm Incident Anonymous petition Associate suing partner- associate spanked by a partner for fuckng something selse Was this ethical t spank associate? Where's the rule against beating your associates? Show an ethics rule that says you can't do it genrelaly Conduct prejudical to the adminsitration of justice Doug asked: so how should my client know he couldn't corpreally punish his associate? Professor: I don't know Doug: look at all sorts fo torts/ cirminal law Condcut offesnsive Sue for prima facie tort This led to a career representing lawyers Also plaintiffs lawyers he worked with asked him to represent him So he learned ehtic rules because improtant to his practice 62 settlements against lawsuits exceed 20 million Lots of settlements and jdugments in 3-19 million range This is what really effects insrued cleints the most Ethics rules estalbish a standard of care Example: 1.1 - duty to provide competent representation Know one mere act of negligence doesn't make you incompentent for ethics rules 1.3 - diligence requiremtn; but someday more diligent than others Lawyers probably fail to aprpeciate how much the rules effect yoru life outsid eof legal services See dishonest conduct 8.4 d- conduct prejudical to the administration of justice Courts know it when they see it Ethical rules are only one of many sets fo duties and things you have on you as a lawyer
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Courts know it when they see it Ethical rules are only one of many sets fo duties and things you have on you as a lawyer See also: agency law- lawyer client relationship Also agency law for law firm Once you become a partner int eh law firm - parternshi plaw, corporaiton law, governs behavior Problem for laweyr: a practical problem - on a daily basis , its difficult to appreciate all the pricniples and rules apply to what you're doing Challenge over our carers: be aware of thigns that might threaten oruselves, clients

Things that trip up lawyers in practice Risk of representing dishonest client Person comes to you for a transaction -wants to buy or sell some proeprties-hve to make reps and warranties to financial instituions Need to check for conflicts of interests Dude is Charles Ponzi Qualcomm broadcomm litigation Patent infringement suit Qualcomm corproate representive in dpeosition Qualcomm kept 100's of thousansd sof e-mails related to the claim Revelead during testiomny Judge flipped shit Referred alweyrs miscondcut to Cal. bar California procedure: Trust client up to the point they give you a reason not to Then professional repsonsblity to find out what the truth is Rule 1.2: not to assist client in fruad Also aiding and abbeding liablity Tort law Requires Breach of duty by client You know about it Substantially assist or encoruage it May be mere legal representation in the matter with knoweldge of breach of duty Conflicts of interests Direct adversity Can't represent oppsoing parties in litigation Everything else- 1.7 Objectivity reaosnbly questioned But Doug says you're likely to get sued for this shit if soemthing goes wrong Call your clients back Lawyers don't feel a need to keep clients infomred about matters Honesty issues You have your reputations That counts more fo ryou than anything else

Bob: one of the things this class is about Can the ethics capture a sense of the lawyer's morality No harm no foul isn't a defense for legal ethics violations Bob: young lawyers are being coerced into facing these ethical dilemmas
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No harm no foul isn't a defense for legal ethics violations Bob: young lawyers are being coerced into facing these ethical dilemmas Problem: as disciplianry panels grow at bar divsiions, need to justify size, so need to prosecute more claims Rules 5.1: Resposnbilities of Partners, Managers, and Supervisory lawyers A partner or laweyr with supervisory authorities really ahs to do some steps to make sure lawyers underneath him, are complying with professional resposnblity Managing partners have responsilbity to oversee professional conduct of those they are supervising 5.2: Resposnbilities of Subordinate lawyer Lawyer bound by rules of porfessional conduct notwithstanding lawyer acted at the discretion of another person A subordinate lawyer does not vioatle the rules of professionabl conduct if that lawyer acts in acordance with asuperivosry lawyer's reasonable resolution of an arguable question of professional duty Bob: courts really look at this Was this an arguable question? 8.3: ReprotingProfessional Misconduct 8.3a - problem- worry that 9.4(a) - knowinlgy assist Lawyer who knows 8.4: Misconduct

Cases Bodhatch Timeline Hired in 1986 Becomes an associate, largely because of efforts of McDonald Has special expertise with FERC, needs that for penzoil 99% for Penzoil Butler and Binion didn't have washington office till they had McDonald McDonald brought in Penzoil McDonald had basically been shopping himself around - insiting someone would have to start a washington office Bohatch becomes partner in Feb. 1990 Spring 1990 - Bohatch suspicious of MacDonald, goes to Partner Powers to reprot suspected overbilling (violations of 1.5) Bohatch seeing time sheets and feeling like he remembered the days, knew wasn't billing 8 hours on some days when he said he was Thought guy was ahrdly ever around Plenty of evidence not in court opinion showing this guys billing was fucked up Disptue between Bohatch and Powers in Deposition Bohatch said powers said "This confirms my suspicious" Opened MAcDonald's desk - found diary with notations for what he's doing Diary reveals disparity Bohatch brings to attention of Payne - managing partners Then tells Powers she told Payne, - this is where Powers starts backtracking July 15th - meets with managing partner Payne- Payne says he'll investigate
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July 15th - meets with managing partner Payne- Payne says he'll investigate Very next day: Bohatch told to find a new job Suggests MAcDonald told about this He probably flipped out Penzoil said the bills were fine Dissent: what's the use learning to do the right thing when its trobulesome to do right and ain't no trouble to do wrong and the wages are just the same Concurrence: agree in judgment, disagree with reaosnabing because should find that if someone gets it right in complaint, then she should get awarded damages for wrongful termination Bob: Thinks she would have done better, if Note: Key to 1.5 - unreasoanble fee So b/c penzoil could say fee is reaosnble, no claim under 1.5 Bob: she should have known where the client was going Not sure if client would be too embarassed The fact that penzoil di not complain, weighted mightily in this case Q: Was Bohatch mandated to report this violation under 8.3 Bob: should it be a matter of public policy to protect someone who reproted While texas court says that must violate statute, or constitution Bob: Rules are adopted by the judicairy 3 equal branches Statutory comes from legilsative and executive Only branch that oversee lawyers professional condcut is jduges So Bob thinks judges should look to lawye'rs ethis for public policy

Gadlidge (Assoicate can't sue/ referral scheme) Dude got a talking to - > told to send more referrals He sort of refused Then fired hime Issue: he thinks the referral is unethical Court: you can fire that associate Bob: should law firms be forced to k

Class Notes Page 22

Week 7
Thursday, October 18, 2012 4:12 PM

Compare Wisconsin Article to Bohatch Bob: if you hold the power (i.e. client relationships, money, etc) then that is going to provide a protective wall in most american law firms American Law firms are more and more based on a model where surivval based on income flow Note: most laf firms have 3 bucket system for partner compensation 1 bucket: reciepts by working time keeper i.e. billable hours 2nd bucket: recipets by billing attorney From client relationship 3rd bucket: So partners in Bohatch could have been pissed at McDonalds, because of effect on how the compensation model was working So dependign on your book of business, you can get away with it In Wisconsin, dude had no power in the firm

Witness Coaching Definition: asking questions of a witness that really have the effect of altering the witnesses story, altering in clients favor Two extremes in client questioning: Open ended questions: Usually neutral No witness coaching Direct approach: Focused Not going to run into ehtical issues re:cocaching with open-ended questions But may never get information you want from the witness The punchline: Remember cover vs. overt: Overt: "it would really be helpful if you could testify to:" Don't do this Both parties know what's going on here, lawyer is asking client to lie This diminishes the lawyer And the client may choose to lie, diminishes the cleint Covert: strongly implying No matter what the author of this article says, just about every attorney that practices in this area uses direct, covert approach Article says this is probalby a bad thing, could lead to ethical problems Bob: hasn't seen a sanction from using the covert approach Grades of Witness coaching Grade 1: knowing and itnentionally Grade 2: Covertly inducing, Grade 3: no intent, but mere quesitons keys the witnesses story Bob: no cases in that even Grade 2 is held liable, probably no way to distingusih between grade 2 and grade 3 Issue: adversarial nature of our legal representaiton - you want to win for your side, the other side wants to win as well
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wants to win as well

Exercise F: Automobile collision case Marcsu's client hit Only neutral witness is Justin Unobstructed view Could see everything Q: who is at fault Did Marcus's client have a green light? Anatomy of a murder Jimmy Stewart Bob: zealous advocacy requires lawyers to present all ptions to client Including what the law is Bob: up to your own individual ethics as far as how clsoe to the line you get.

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Week 8
Tuesday, October 23, 2012 4:10 PM

Guest Speaker: Sam Damren Bio: Partner at Dykma Former Wayne County Prosecutor Real life application application of rules

Special Responsibilities of a prosecutor Model Rule 3.8 Overview Subsectuions The proescutor in a crimianl case shall: Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause Sam: reallly low bar More probable than not At trial need proof beyond a reasonable doubt Think about how disruptive charging someone is on that person Overcharging: Vertical overcharging Some prosecutor (unethical) charges something higher to get a plea bargain (i.e. unarmed robbery, charge with armed robbery b/c one witness says maybe had a gun, even though think probably didn't) What if 1 witness says armed robbery, 4 say unarmed robbery Now you have probable cause to charge armed Prsoecutor thinks bring this up, but use it to make it more clear this person guilty of unarmed robbery But still wrong: you're negotiating with the jury, not presenting to the jury Horizontal overcharging Ex: take a particular crime, and divide it up into a number of sub-parts so what seems like one criminal act can be seen as a number of crimes, a number of charges - gain leverage for plea, or negotiate with the jury Ex2: d has committed 10 acts of mail fraud as presented to the prosecutor, but know that there are 90 other acts Do you cahrge with 10 or charge with 100 Issue: leverage - 100 counts of 5 years each Could let plea guilty to 2 or 3 Tactical charging: Ex: suspect for emezzlement, evidence took it from a public safe on a certain day; but also know that D is going to deny took money from safe on that day and that one of his witnesses will be his wife, will say she was with him that day and he didn't take any money; but you have evidence that d public servant also authorized the overpayment of overtime to his secretary, who was his girlfriend;
Class Notes Page 25

overpayment of overtime to his secretary, who was his girlfriend; you have probable cause to charge that as a separate count; so you do, get an indigment; go to trial - present: Evidence agianst embezzler taking money out of public safe Wife takes stance- says she was there Then introduce evidence the husband had an affair/ misspalicaiton of public funds (have probable cause, but not going to win this case) So now you have "Wife really knows his husband, he's having an affair" What makes you think he'd have any hestiation Prosecutors: we don't really need to overcharge Sam: compared to 1975, they're right Drug offenses used to be subject to parole guideliens So could overcharge as much as you wanted, but if parole guideliens say get out in 3-5 years, you just add them up Not controlled by judge, prosecutor, just parole board And that's as much as they'd do But now, "basketball scores", 80-120 years, sort of shit; i.e. heavy sentences for drug cases Now 50% of prisons is mules, mid-level drug delaers Parole guideliens gone People serve the entire sentence now So people will take the fuckign plea now Sam: biggest charade in criminal jsutice is when defendents plea guilty in court Go to prison for 5 years or chance at life if you don't take the plea bargain What would any rational person do in this situation? Basically you have everyone: judge, prosecutor, defense council to pleas guilty And the judge is the person who sentences you, do you want to piss him off by turning down plea bargain Make reasoanble efforts to assure that the accused ahs been advised to the right to, and the proedure for obtainign, counsel and has been given reaonble opportunity to obtain counsel Sam: this rule is a joke: SCOTUS - you have right o effective defense counsel, even at the plead stage Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing Problem: represetend waive rights to preliminary hearing, appeal Makes timely disclsoure to the defense of all evidence or inofmraiton know to the prosecutor that tends to negate the guilt fo the accused or mitigates the offense, and , in ocnenction with sentencing, disclsoe to the defense and to the tribunal all unpriviliged mitigating informaiton known to the prosecutor, except whe tneh prosecutor is relieved of this rsponblity by a protective order of the tribunal (Brady violation) Sam: don't see this around here, see it in Texas, Louisianna Not subpoena a lawyer ina grand jury or other criminal proceeding to present evidence aobut a past or prseent client unless the prosecutor reaonbly believes. i.e. can't subpoena laywers- tet your informaiton som other way
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evidence aobut a past or prseent client unless the prosecutor reaonbly believes. i.e. can't subpoena laywers- tet your informaiton som other way Sam: if you're investigating a case, you'll subpoena everyone, wife, mother, wife's employer, maybe just send people out to talk A lot of things you can do to put pressure on people to take your plea deal No prohibition in these rules against a prosecutor doing that Except for statemtns that are necessary to inform the public of the nature an extent of the prosecutor's action and that serve a legitimate law enforcement purpsoe, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemenation i.e. prosecutor don't demeen SAM: problem - policy, FBI do this all the time When a prosecutor knows a new, credible and material evidence creating a reaosnable likelihood that a convicted defendeant did not commit an offense of which the d was convicted, the prosector shall: Promptly disclsoe tat evidence to an appropraite court or authority, and If the conviction was obtained in the prosecutor's jurisdiciton Promplty disclsoe that evidence to the d unless a court authorizes delay, and Sam: The model rules aren't up to the task of reuglating prosecutors These rules prohibit nothing, can be used as cover for doing bad things

Practical advice Rules 5.3, 5.5, 5.5,

Note: updated version of rules (look for updated text on Ctools) 5.3: Title now: Responsibilities Regarding Nonlawyer Assistance Issue: states all over the lot What if not acting in lawyer capacity- own a real eastate title company- have employees who violate rules of conduct? Some states- not a lawyer capcity - not a violtion Other states- but you are a lawyer- these people are assoicated So beware of what capacity you're in Usually no question- laywer in law firm overseeing paralegals Bob: originally 5.3 related only to partners Now: a lawyer who indiviually or togehr with other laweyers possesses comparable managerial authority in a law firm" b/c lots of strata in the firm - of counsel, etc
Amended comments: Large change: Note- for final exam - will expect to be up to date on the comments Look online Issue: outsourcing Law firms using servies from outside companies firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the

Class Notes Page 27

lawyers professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also
Pasted from <http://www.americanbar.org/groups/professional_responsibility/publications/model_ rules_of_professional_conduct/rule_5_3 _responsibilities_regarding_nonlawyer_assistant/comment_on_rule_5_3.html>

Rule 5.4: Professional Indpendence of a Lawer Bob: no change here Can you give status reprot to someone who reccommended you Also see insurance company selecting lawyer in representing you in accident How to handle: duality of client Same client But issue - managing cost of litigation Insurance company might start directing Fight back: say 5.4 prohibits this Prohibitions No sharing fees with non-lawyers Can't go into a partnership with non-lawyers Person who reccomends, employs, or pay lawyer can't regulate laweyr's professional judgment in rendering such legal services Lawyer shall not practice with or in the form of a professional coproation or association authorizred to practice law for a profit, if: Nonlawyer owns any interest therein Nonlawyer is a coproarte director or officer thereof or occupies the position of similar responislbiltiy in any form of assoication other than a corporation; or A nonlaywer ahs the right to direct or control the professional jdugmet of a lawyer Rule 5.5: Unauthorized Practice o fLAw; Multijurisdictional Practice of law Change: section(d) a lawery admitted in athor sate and not dispbarred or supsended from practice in any may provide legal services thorugh an office or other systemtic and continuous presence in this jurisdiction that
i.e. means rule 5.5 include sthis issue King and King Hypo What if limited his professional services to advice about heir partnership, their tax filing, would that amoutn to vioaltion of 5.5? Issue here- assiting another person in unauthorized practice of law - violates section 5.5

Class Notes Page 28

Week 9
Tuesday, October 30, 2012 4:10 PM

Thursday - Group Role Playing See groups in Ctools Announcement Will have 2 hypotheticals 2 teams of 5 We'll be acting as ethics committees

In re Aarons Q: from 6.1 pro bono- isn't one way to handle the need for legal reprsentation by allowing nonlawyers handle more work Social Policy: Bob: we struggle to create a system, and we don't necessarily get it perfectly correct all the time But we have this unauthorized practice law Statutory in nature Meant for the protection of the public Non-lawyers not bound by rules of ehtics Lawyers are governed by 5.3, 5.5 (unauthorized practice of law) 5.5 really about being in the wrong jurisdiction Who enforces UPL laws? Some State statutes enforced by attorney general Means need to get him onboard Delaware- more proactive - private bar can bring suit In Re Aarons: Lawyers brought suit for Unauthroized Practice of law

Triparte Relationship: 1. Attorney Whartons law practice consists primarily of insurance defense work. Hamilton Casualty Co. has hired her to defend Silas Combs in a negligence case. The plaintiff in the case alleges that Combs rice field was plowed negligently, so as to cause a large quantity of water to escape into plaintiffs adjoining tomato field. The water caused plaintiffs tomatoes to rot before harvest. Plaintiffs complaint demands $125,000 in damages. Combs insurance policy with Hamilton Casualty has a top liability limit of $100,000. After extensive discovery, the case was set for trial. Six weeks before the trial date, plaintiffs lawyer called Wharton and offered to settle the case for $90,000. What are Whartons ethical obligations in this situation?
Triparte relationships 3 parties Insurer Underwriter Insured Attorney Adhesion contracts construed agaisnt parties that write it Insurance contract one sided, so adhesions cntract Policy recgonition of unequal bargaining power When you buy an insurance policy- 2 duties
Class Notes Page 29

When you buy an insurance policy- 2 duties Duty to indemnify you Duty to defend you Issue: so insurance company provides lawyer Every jurisdiction regards the insrued as the client of the reatiend lawyer Some jurisidcitons provide that the insurer is also a client 1.8(F) and 5.4(C) all about non-clients infleuncing alwyers representation So issue in jurisdictions where insurer also a client Look at the policy: Often written so the isnurer is a co-client These same jursidciton also make sure that insureds is protected by 1.8(f) - informed consent, no intereference in professional jdugment, informaiton kept confidential Hypo: Obligations Tell insured offer to settle was made Tension - 90k or 0 is same for the insured- since policy up to 125k But isnruer might still want to keep pushing REMEMBER 1.2 client authorizes settlement

SarbanesOxley: 2. Regulations adopted pursuant to the Sarbanes-Oxley Act can be found at 17 C.F.R. Part 205. These regulations impose a mandatory reporting duty to the clients chief legal officer or chief executive officer when a securities lawyer becomes aware of credible evidence that the client is materially violating a federal or state securities law. The CLO must investigate and report back to the securities lawyer. If the securities lawyer believes that the CLO did not achieve an appropriate response from the client, the securities lawyer must report the evidence to the board of directors, the audit committee of the board, or the outside directors. Moreover, the regulations define securities lawyer broadly. Not only do these regulations apply to lawyers who represent a securities issuer before the Securities and Exchange Commission, and lawyers who transact business with, or communicate with, the SEC. The regulations also apply to lawyers who give advice about a document that will be filed with the SEC, or who give advice about whether information must be filed with the SEC. For example, a company might ask the litigator who is defending it in a products liability case to write an opinion about the companys potential exposure in the case. If the litigator realizes that the opinion letter will go into the companys stock prospectus, the litigator has become a securities lawyer. How do these provisions compare with ABA Model Rule 1.13?

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Class Notes Page 30

Week 10
Thursday, November 01, 2012 4:11 PM

Hypos: Witness lawyers One is cheaper than two Cottage of your dreams Will have time to talk amongst ourselves to talk about material posted on cTools Divided inot groups Dealing with one of the hypotheticals Will have to read both hypotheticals Hypos: new matter coming in, implicates rules 1.7 and 1.9 We'll be the ehtics committees

SARBOX and 1.13 1.13 extensively revised after Enron Prior: confidentiality as emobided in 1.6 was sacrosanct If a lawyer believed a person of authority was engaged in improper conduct likely to lead to financial harm to the compnay Recourse: resign Problem: give up makign 10 m in attorney fees from enron b/c you discover it was a scam Most significant chagne:Limited exception to confidentiality Permits lawyer to go outside orgnaization Relating to misconduct by the partiuclar employee That is likely to cause substantial harm to the orgnaization 2 types of conduct that can trigger duty to act Vioaltion of legal duty to organization Violation of a law that might reasonably be imputed to an organizaitn After adotpion: case f: Lawyer representing zoning board Zoning board ignored standards it was supposed to live by for the adoption of a variance Lawyer knew that on case after case it was impsoing their own standards, different than standrad in law Discliplinary action against lawyer for fialing to take agianst under 1.13 Duty to reprot up to authorities any misconduct known by attorney Hypo: how does Arbx and 1.13 compare Model rule Requires lawyer to climb corproate latter Hwn knows Reaosnably likely to cause substantial corpaote injru Sarbox Credible evidencefor which it would be unreaosnable for a purdent lawyer to find reasonbley likely Bob: issue: this is much broader than 1.13 Is Sarbox applies- follow it and that greater duty Penalties are high
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Penalties are high Problem: disaggreagtaion of ehtical rules Hypo: Cottage of your dream

The Cottage of Your Dreams: 3. After attorney Sarah graduated from law school, she opened her own law office in a small seaside village. She longs for a cottage on the beach, but she has been unable to find one at the right price. Client Willis has retained her to help him find a way out of his financial distress. Among his few solid assets is a lovely cottage on a secluded end of the beach. Willis has been unable to pay the taxes on the cottage, and Sarah has advised him to put it up for public auction. a. At the auction, may Sarah have her brother bid for her as undisclosed principal? b. Suppose, instead, that Sarah simply agrees to buy the cottage directly from Willis, subject to the tax debt. Under what, if any, circumstances would that be proper? c. Suppose, instead, that Sarah agrees to lend Willis enough money to pay off the back taxes on his cottage. Under what, if any, circumstances would that be proper?
Rule 1.7: Conflict of Interest: Current clients "or by the personal interst of the lawyer" Brother in law secretly at as agent No cool Deal directly If informed consent, confiremd in witing + lawyer reasoanbly believes that lawyer will be able to provide competent and diligent representaiton to each affected client Informed consent- rule 1.0 - make reference in yoru exam to those defined terms in your exame- refence 1.0 if the toher rule uses that rule Sarah agrees to lend Willis money to pay off back taxes on his cottage Issue 1.8(b) -bsuienss tranasctiosn with client

Role Playing Groups 1 and 2 Groups 3 and 4 Erik Second Hypothetical

Groups 1 and 2 Current Client? Retention letter

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Week 11
Thursday, November 15, 2012 10:41 AM

Please review and be prepared to discuss: 1. Lecture on Attorney Client Privilege and Confidentiality 2. Discussion Problems: Confidentiality 3. Model Rules: 1.4, 1.6, 1.8, and 3.4
Pasted from <file:///C:\Users\Erik\Downloads\Syllabus+Fall+2012+_1_%20(4).doc>

Attorney-client privileige and ocnfidenitality Privilege Prevents outsider from compelling you as attorney or client to reveal communications with each other Five C's Communictoin From Client To Counsel In Confidence For reciving Counsel or advice Once five conditions in plae, have priviliege Any one missing, privlige doesn exist Both rules aimed at creating candor between client and lawyer Need to provide comfort level to clients in order to represent them Hickman v. Taylor: Work Product Protects material prepared in litigation unless party shows special nee Preserves proper function of adversarial system Allow attorney's to preaprare material without that material being avaialble to the opposing side

1. In your law school course in evidence law, you studied (or will study) the attorney-client privilege. Briefly stated, the attorney-client privilege gives the client a legal right to prevent a witness from revealing confidential communications between the client and his or her attorney, or between their respective agents. The holder of the privilege is the client; the attorney can invoke the privilege on behalf of the client, but not on the attorneys own behalf. The privilege applies whenever a governmental body can use the twin powers of subpoena and contempt to compel the giving of information. How does the attorney-client privilege differ from the attorneys ethical duty to preserve the clients confidential information? Consider the following situations: a. While standing around at a P.T.A. potluck supper, lawyer L gossips with a friend about the reasons that Ls client V wants to divorce her husband. Does the attorneyclient privilege apply at P.T.A. potluck suppers? Does the ethical duty?
Ethical Duty- not in a court room

b. Lawyer L is defending client X in a drunk driving case. Through her own

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b. Lawyer L is defending client X in a drunk driving case. Through her own investigation, L learns from a loquacious bartender that X stops in for several double martinis every night after work. Does the attorney-client privilege protect that information? If not, is L free to reveal it to whomever she wishes? No a-c privilege, not a communication from client to attorny, but protected by confidentialtiy because related to rperprsetnation. c. Client Y tells lawyer L in confidence that he wants to purchase Blackacre to build a new shopping center. Acting as an undisclosed principal, lawyer L instructs her agent to buy Blackacre, hoping to turn a quick profit on resale to Y. Has L violated the attorney-client privilege? Has she violated the ethical duty? Has not vioalted a-c, has violated conflict of interest (1.8b) - use informaiton trelating to represtnation to disaadvnatage a client d. Suppose instead that lawyer L buys Greenacre, which adjoins Blackacre, knowing that it will triple in value when Y builds the shopping center on Blackacre. Has L violated the ethical duty?
Maybe not, unless it dsadvanatges the client, but I don't think it would b/c the property was going to appreciate in value regardless.

Bob: not a violation of confidneitality, everyone would know that the property around this property would go up Used to be a violation under 1.8(b) when it was written more broadly Not sanctionable per se But 3 prisms of clnflicts What's your gut tell you Look at rules Consider business implicatins Taking advantage of this mayb look poorly to clients Here, technically not a conflict, but client not terribly happy Note: this wasn't a secuirties case- that'd be insider trading (felony) thus an ehtical violation e. Client Z told lawyer L in confidence: Yesterday I intentionally burned down my barn because I need the fire insurance money. I want you to represent me in collecting on my insurance policy. L declined to represent Z, who then hired lawyer M to pursue the insurance claim. (Having learned his lesson, Z did not tell M about intentionally burning the barn.) The insurance company refused to pay, asserting that Z burned the barn to get the insurance money. At the trial of Zs insurance claim, the insurance company lawyer called L to the witness stand and asked: What did Z tell you about burning the barn? (1) Should the court sustain Zs claim of attorney-client privilege? Yes, confidential information between a clietn and his attorney, before a tribunal, But Bob: FRAUD exception to attorney-cleint privilege
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But Bob: FRAUD exception to attorney-cleint privilege So note, can't rely on blanket rule of attorney-client privilege, need to know the case law (2) When Z left Ls office, should L have warned the insurance company that Z was planning to file a fraudulent claim? Under 1.6(b)(2) - prevent crime or fraud, he could have waarned the insurance company, but had no obligation to To extent lawyer believes reasoanbly necessary toprevent client from committing crime or fraud Action would be reasonably certain to In furtherance of But note: in furtherance of which the client has used or is usign the lawyers services/ must be in connection with the lawyer's representaiton Bob thinks that in this case, 1.6 might not apply, b/c not in connection 2. Dorman is in jail, awaiting trial for the first-degree murder of a young girl. Attorney Anthony is appointed by the court to defend Dorman. Dorman tells Anthony in confidence that he killed not only that girl, but also two other young girls. Dorman tells Anthony where he hid the other two bodies. Anthony goes to the hiding place and discovers that Dorman has told him the truth. Nobody else knows that the other two girls are dead; their parents and the police are searching for them as runaway children. What should Anthony do?
Again, 1.6(b)(2) - prevent reaosanbly certain death or boidly harm, could argue because he's killed before, likely to kill again. Problem: comemnt- must be reasonbly certain to occur.

So ethics of profession don't allow this, but morality probably demands and you report this

3. On the afternoon of August 11th last year, a woman walked into your law office, stated her name, and said in confidence: Im the driver the police are looking for in that fatal hit and run accident last week. You agreed to represent her, and you advised her about the wisdom of surrendering to the police, but she rejected your advice. The police have never discovered the identity of the hit and run driver. Just prior to the expiration of the statute of limitations, the parents of the hit and run victim filed a wrongful death action against a Jane Doe defendant. Acting on a hunch, the parents lawyer has subpoenaed you as a deposition witness and has asked you for the names of all persons who consulted you on the afternoon of August 11th . What should you do? Inform the driver you;ve been supbeoned (b/c of 1.4 communication) and probably see if she wants you to invoke attorney-client privilege on her behalf related to communications, but you probably do have to turn over the names. Her presence in your office isn't communication between the lawyer and attorney.

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4. Your law practice includes some criminal defense work. A few minutes ago, one of your steady clients stormed into your office, waiving a pistol and announcing that he just killed his probation officer. You have urged him to allow you to surrender him to the authorities, but he has refused, stating that they will catch him sooner or later and that he wants to enjoy his last bit of freedom. He has laid the pistol on your desk, and he is about to walk out. What should you do about the pistol? Rule 1.15: safeguarding property - idnfify proeprty and safegaurded Byt see 3.4 - unlawfully obstruct party's access to evidence, can't conveal But pistol not protected by attorney-cleint privilege 5. Your client, Enos Furman, is in the business of leasing expensive equipment to farmers. First, he arranges long term equipment leases with the farmers. Then he borrows money from banks to purchase the equipment; he uses the long term leases as security for the bank loans. You have acted as Furmans lawyer in ten of these lease-loan transactions over the past two years. Today he revealed to you, in strict confidence, that some of the leases he used in those transactions were fake he forged them and thus tricked the banks into lending him money which he has long since spent. He has solemnly promised you that he will never do that again, and he has asked you to serve as his lawyer in a series of new lease-loan transactions. What are your ethical obligations in this situation?
Communicatiosn are subject to Attorney cleint priviliege, if you reasoanbly believe he'd commit this fraud again you could reveal it, or (pertinent here) to rectify 1.6(b)(2)(and 3). But if objects morally, should not continue representation b/c of 1.1 comeptence.

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Week 12
Tuesday, November 27, 2012 4:09 PM

Advertising Bates Arizona Rule - limiting attorney advertising Does not violate Sherman Act b/c state action But does violate first amendment Bob: Laywers, prior to 1977, will tell you two cases that changed landscape of our profession Bates Goldfarb (did away with minimum fee schedules from county bar associations) Bar arguments (6) Undermine the sense of dignity and self worth of profession

Bates: 1st amendment arguments Inhernetly mislaeding nature of attorney advertising Court: whatever, more disclosure not less Adverse effect on adminsitration of justice, stir up litigation Court: right but not dispositive Bad economic effects of adverstisitng, i.e. add to overhead, will have to increase fees. Court: disagrees: Barrier to entry for young attorney's (because forcing young practicioners, with shallow wallets, to comete Court: not persuaded this obstacel any greater than ones that already exist Difficulty of enforcing other measures Important cases on Adversitisng after Bates Ohralik (1978): may ban in-person solicitation Uphold state discplinary action agaisnt a lawyer who in person solicits cases from teenage girls injured in automobile accident Old fashioned accident chaser Learned of accident Casually acquianeted with one of the girls, call s parents Meets parents at home Goes t hospital, offers to represetnat the girl (loosely acquianted with) Asks fgirls to sign contingent fee arrangment, which she does after discussing things with her parents Learns the 2nd girl is unrepresented Goes uninvited to second girls home Tells her about reprsenataion of first girl Note from BOB: uninsured motorist coverage cost next to nothing, get that And it probably won't cost anything to get the low limit up to the regular car insurance limit Tells her about continency fee She says okay Next day, second girls mom calls, says she's changed her mind Ohralik refused to withdraw, insists binding contract, threatens to sue for fee First girl fires Ohralik because of treatment of second girl Ohralik sues first girl to recover on contignency fee Gets recovery
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Ohralik sues first girl to recover on contignency fee Gets recovery First Girl Complains to the bar Ohralik suspended indefintely Supreme Court upholds suspsension Rejects that in-person solicaition is due as much 1st ammendment protection as print advertisments States may impose complete ban on in-person solicitation In re Primus (1978) Primus is lawyer- works for ACLU Writes letter to women who attended a meeeting about ACLU's potential reprsetrnation Bar: suspends - written advertising - not allowed, see Bates Court: This must be allowed, reverses suspension No financial motivation ACLU There is commercial speech and political speech ACLU takes these cases to make political points So more careful about probhitions in reagrds to political speech In re RMJ (1982) F: Lawyer has violated Mizzou's rules on Lawyer Advertising Advertisment uses words "real estate, personal injury" Avoids magic words: Torts, property law Sends annoucnements about practice to indivduals he doesn't know Mizzou bar seeks to disbar SCOTUS: Overturns Mizzou bar, this is allowed, print advertising Zauder 1985 Lawyer seeking women who used Birth Control 10k owmen had sued manufacturer, expected that there are 1,000's of women harmed who haven't sued Runs ads in Ohio newspaprers, solicits readers to bring suit against manufacturer Then initaties over 100 law suits Ohio: dispcilnes Zauder This isn't like just putting in an ad generally, this is targetign a certain class of women, this is beyond Bates Scouts: overturns Ohio, this is allowed 3 prong test: Written advertisments do not invade privacy Less likely to create atopmsphere of overreachign, undue includnece Less pressure on potential client Stirring up litigation not necessarily an evil Schapero 1988 Targeted letter More like in-person or like targeted newspaper (like Zuader) State: Scotus: trageted letters okay Dissent: Scalia Particularly harsh, and still on the court Peal 1990 Illinois discipline Peal for saying on Letter head: certified national xxxxxxxxxx) Certification legitimate, thorough SCOTUS: 5-4: Shouldn't sanction them But state could require a disclaimer if you're going to say this i.e. put disclaimer that this certifiaction not recognized by State Bar
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But state could require a disclaimer if you're going to say this i.e. put disclaimer that this certifiaction not recognized by State Bar Dissent: Shouldn't be able to advertise anyway ABA 7.4: Went for IT inc 1995 Upheld FLA limitation 2 FLA rules restricitng right of lawyer to send targeted right to accident victims or their families within 30 days of accident or disaster Reasons why lawyers should want to do this: Wanting to get in their and gather evidence, after 30 days, evidence migh tnot be available Particularly medical issues, these dissipate SCOTUS : 5-4 Upheld limitation: enough is enough Governmet may regulate commercial speech as long as not misleading if 3 prong test There is a substantial government interest in support of the regulation The restriction on commerical speech advances the interest The regulation is narrowly drawn Here: Substantial interest: protecting privacy of perosnal injury victims from intrusive contact by laweyrs Florida Bar had 2 year study of lawyer advertising and soliciation Supports bars conention that the florida public viewed direct mail soliciations immediately after accident as an intrustion of privacy that reflected poorly on the profession Narrowly tailored? Yes- 30 day window Bob: see Bates: court rejceted the udnermining sense of dignity and self-worth state interest

Advertising and Solicitation Hypotheticals 1. Suppose you have just opened your law practice in a town where you do not know many people. In which of the following ways may you seek to build your clientele? a. May you join a social club for the sole purpose of meeting new people and luring them as clients? Yes(7.1(b)), but careful with "luring" (see comment 4: b/c pecuniary interest, if you are to ever engage in conversations that were aggressive at the social club, trying to lure candidates, that's a violation of rules) b. May you call on other lawyers at their offices and let them know that you are willing to take on work that they are too busy to handle? Used to be barred, but now can do it. Bob: be careful though, b/c you may find yourself having a client you never thought you have triggering duties towards them c. May you volunteer to give a seminar on estate planning for the local chapter of Young Businesswomen of America, hoping to get legal business from some of those who attend? yes

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d. May you list your name with the local court as a person who is willing to take court-appointed cases? May you contribute to the re-election campaign fund of a local judge, hoping to secure good court appointments from the judge?

Yes Yes may contribute to fund, but may not "pay to play" - so itnent matters here e. May you list your name with the lawyer referral service run by the local bar association? How does such a lawyer referral service operate? Yes but be wary of private referral services f. May you place advertisements for your services? In what media? What restrictions are there on the content of your advertising?

g. May you publish a brochure that describes your law practice, states the kinds of matters you handle, and provides a schedule of the fees you charge for a variety of routine legal services? May you put the same information on a website? May you use www.winbig.com as your site address? Yes, yes fees, yes website, no winbig" h. May you advertise yourself as a Super Lawyer or Best Lawyer when you have been included in a Super Lawyers poll for a magazine advertising supplement or in Best Lawyers in America? Yes, but need to tie it specifically to whatever it was. Can't do a generic "I'm the best lawyer in town"

2. Suppose that the Surgeon General has recently determined that prolonged exposure to a chemical known as DNXP causes a type of blood disease in humans. DNXP is used in the manufacture of certain types of plastics, and many plastics workers have contracted the disease. Lawyer Lovette practices personal injury and workers compensation law in a town that has four plastics factories. She would like to represent afflicted plastics workers who wish to bring legal proceedings against their employers and the manufacturers of DNXP.
a. May she put an ad in the local newspaper, informing plastics workers of their legal rights respecting exposure to DNXP and inviting interested persons to contact her?

b. The town business directory provides a separate directory listing of all plastics workers, giving their names, postal addresses, e-mail addresses, and telephone numbers. May Lovette send an informative letter via the postal service to each plastics worker, inviting the worker to contact her for further information? Is your answer the same if Lovette uses e-mail rather than the postal service? c. May Lovette hire a team of telephone callers who will use the business directory
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c. May Lovette hire a team of telephone callers who will use the business directory to hire a team of telephone callers who will use the business directory to phone each plastics worker, give a brief description of the DNXP problem, and invite the worker to contact Lovette for more information? d. May Lovette stand on the public sidewalk outside the gates of one of the plastics factories at quitting time and pass out handbills that state her willingness to represent workers in DNXP cases? May she initiate conversations with workers on that subject? May she initiate such communications in a real-time Internet chatroom? 3. On your way down the courthouse hall after a hearing, you saw a tired-looking woman holding a crying infant. She was obviously confused and needed help. When you spoke to her, she handed you a paper and asked in halting English where she was supposed to go. The paper was a summons to appear that morning in an unlawful detainer action filed by her landlord. When you responded to her in her native language, her face broke into a wide smile. You briefly explained to her the nature of an unlawful detainer hearing, and you asked if she had a lawyer. When she said no, you offered to represent her at the hearing for a modest fee. Was your offer proper? Would it be proper if you had offered to represent her for free?
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Week 13
Tuesday, December 04, 2012 4:11 PM

News Story: Last Month Harbard Law Grad working for McDermot Pressed for money - has high school student, wants him to go to privat eschool Lies on students applicatoin to private school re: income Discovered - discpilinary council got a hold of it

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Week 15: Lying

Thursday, December 06, 2012 4:12 PM

Rule 4.1 Truthfulness in Statements to others But see comment two on statmetns of fact Certain context- nto a statmetn of fact 3.3 Candor toward tribunal But look at settlement engotiations Some tension:

Bob's Catalogue of excuses from practice "I didn't lie" My statement, literally true, just misleading "speaking on a subject on which there is no real truth, just putting matters in the best light" "I lie if you insist on calling that, but ethically permissible under rules so not really a lie, or it wasn't a lie, it was an omission, or maybe I lied, but no one believed me so no harm" "I lied, but my lie was justified by the very nature of things" "lie justified by special ehtics of lawyering, specifically zealous representation "lie belongs to someone else; i.e. the client" I'm just the messenger But what if you know it's a lie? "only lying because my opponent lied as well" Sort of a self defense "ends justify the means"

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