Topic Rule Case Law

Chapter 1. Practice of Law

Practice of law 5.5 (UPL)
Limits on non- 5.3 (non-lawyer assistants)
lawyers 5.5 (UPL)
5.3 (non-lawyer assistants) Brumbaugh (blank forms, p°32): allowed IF no assistance
Working with 5.4 (professional independence of lawyers) Dacey (books, p°38): allowed IF no personal contact (right to
non-lawyers 5.5 (UPL) represent yourself in court)
Parsons (legal software, p°40): allowed IF not personalized
Ancillary 1.8(a) (business transactions with current clients)
businesses 5.7 (law-related services)
5.5 (UPL) Birbrower (p°48): out of state practice NY-CA, attorney in violation
Unauthorized 8.5 (choice of law) because of criterion of physical presence
practice by
➪ amendment of Rule 5.5 to permit multijurisdictional practice under
lawyers
certain circumstances
R.14 (p°62 & 74) Morris (p°64): LCR created upon initial contact with client who
1.13(a) (organization as client: represent the reasonably believes he is consulting a lawyer in that capacity
company) Westinghouse (p°67): LCR created upon exchange of confidential
1.13 (f) (organization as client: client with information + reasonable belief
Creating the
interests adverse to the company) Board of Professional Responsibility (p°74): the lawyer’s morals
lawyer-client
1.13 (g) (organization as client: dual should not interfere, he is ethically obligated to follow the law and do
relationship
representation) nothing in opposition to the client’s moral and legal choices
6.2 (declining court appointments) Nathanson (p°77): the lawyer’s Ist Amdt rights should not interfere
with the defense of the client and with the State compelling interest
in eliminating discrimination on the basis of gender
Ending the 1.16 (declining or terminating representation) Whiting (p°86): pressure by client may be a cause for granting
lawyer-client permission of withdrawal; duty not to make frivolous claims (Rule
relationship 3.1)
1.1 (competence) Wilkinson (p°98): intern lawyer (not allowed to practice), the
5.1 (partners, managers, supervisory lawyers) supervising attorney is liable for (1) non-supervision of the
Discipline
5.3 (non-lawyer assistants) subordinate attorney (5.1) and (2) non-supervision of the non-lawyer
8.4 (misconduct) (5.3)
R.48 and seq. (p°103) Ziegelheim (p°107): advice to settle, policy to encourage
Malpractice 1.18 (duties to the prospective client) settlements (but case presents issues of facts)
liability 1.2(c) (agreements limiting scope of
representation)

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 1.8(h) (agreements limiting liability and
settlement of claim)
R.53(d): in malpractice suits arising from
Ineffective
criminal cases, the defendant must prove (1)
assistance of
lawyer failed to act properly and (2) but for that
counsel
failure, the result would have been different
1.2 (allocation of authority)
1.3 (promptness and diligence)
1.4 (communication b/ lawyer and client)
2.1 (advisor: independent professional
judgment, candid advice)
Decision- 3.2 (expediting litigation)
making b/ 1.16 (declining or terminating representation)
lawyer and 1.14 (client with diminished capacity)
client R.21: lawyer doesn’t have to carry out
instructions that the lawyer reasonably believes
are contrary to professional rules or other law,
or which the lawyer reasonably believes to be
unethical.
R.23: emergency situations
Chapter 2. Business, Technology and Marketing of Legal Services
Marketing legal 1.1 (competent representation)
services
7.3 (direct contact with prospective clients)
Solicitation
Lerner (p°115): encouraging mediation // adversarial proceedings
with independent attorneys, clear right to limit representation but
violated the terms of 1.8(h) when client agreed not to sue the lawyer
Rompilla (p°122): ineffective counsel in death penalty trial,
compared to the reasonable lawyer standard, where lawyer lacked
the reasonable efforts to review the file, investigate mitigating factors
Torture Memos
Jones v. Barnes (p°143): an attorney doesn’t have to raise every
(non-frivolous) issue, right to choose for effective arguments
(dissent: right to effective assistance of counsel)
Schools of Township (p°153): client has the burden of proving that
but for the negligence complained of, the client would have been
successful in prosecution or defense of action in question.
Boyd (p°154): the lawyer who followed the client’s instruction to
delay the matter is immunized against malpractice
Gilmore (p°156):
Chappell (p°161): lawyer helped client pursue illegal acts, violated
1.2(d), 3.3(a)(2), 8.4(b) and (c)
Ohralik (p°196): solicitation in a hospital bed is illegal, the absence
of harm is not relevant
Primus (p°203): lawyer was not motivated by financial gain despite
solicitation, she was motivated by personal political beliefs and to
advance the civil liberties objectives and to communicate an offer of
free assistance
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 7.1 (false or misleading communication of Zang (p°215): false and misleading ads, despite absence of actual
services) harm
7.2 (advertising) Cahill (p°230): Central Hudson balancing test
7.3 (direct contact with prospective clients) (1) expression protected by Ist Amdt
7.4 (field of practice and specialization) (2) commercial speech
7.5 (firm names and letterheads) a. that is (a) not false or misleading and (b) does not
Advertising concern unlawful activities
b. may be restricted (a) only in the service of a
substantial governmental interest, and (b) only
through means that directly advance that interest
(burden of proof on the State)
(3) regulation (a) directly advances that interest and (b) is
narrowly tailored
1.4(b) (explanation to the extend reasonably necessary)
Fees and
1.5 (fees)
billing
7.1 (false or misleading communication of services)
1.5 (fees)
Hourly billing
1.8(i) (COI: proprietary interest in the cause of action)
R.18 and 25 (p°264, 279) Lawrence (p°280): while the amount of the fee seems
1.5 (fees) disproportionate for 5-month worth of work, facts and circumstances
1.8(a) (COI: business transaction with client) surrounding the revised retainer agreement have not, at this time,
1.8(d) (COI: literary or media rights) been sufficiently developed to determine whether or not the
1.8(e) (COI: financial assistance to client) agreement was unconscionable at the time it was made
Contingent
1.8(f) (COI: compensation from another)
fees
1.8(i) (COI: proprietary interest in the cause of
action)
1.15 (safekeeping client’s property)
2.1 (advisor)
5.4 (professional independence of lawyer)
R.38(f) (p°294): prevailing litigants in some Private Attorney General
types of litigation are entitled to recover attorney Perdue (p°298): fee enhancement, lodestar may be raised under
Court-awarded fees from an opposing party exceptional circumstances
attorney’s fees Evans (p°305): a fee waiver can be approved by the court, there is
no ban on settlement agreements that include a waiver of attorney’s
fees (Congressional intent)
Chapter 3. Attorney-Client Privilege and Duty of Confidence
R.68 (p°319): ACP, rule of evidence, no exception, waivable by client (or attorney under his implied powers)

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 (1) communication (R.69): convey information
and any document or other record revealing
such expression
(2) made b/ privileged persons (R.70)
a. client, including prospective client and
client’s agents
b. client’s lawyer, including lawyer’s agents
(3) in confidence (R.71): reasonable
expectation of confidentiality, that no one
will learn the contents of the communication
except the privileged persons
(4) for the purpose of obtaining or providing
legal assistance for the client (R.72):
communication made to or to assist a
person
Attorney-client
a. who is a lawyer or who the client or
privilege (ACP)
prospective client reasonably
believes to be a lawyer
b. whom the client or prospective client
consults for the purpose of obtaining
legal assistance
Waivers of ACP
Selective waivers: a party who voluntarily
discloses privilege material to the government
cannot retain the privilege as to private parties.
Mistaken disclosures: claw-back and quick peek agreements, FRE 502 (disclosures and work product)
Duties of the party receiving privileged info
Crime-fraud exception: R.82 (p°372)
Upjohn (p°332): (1) communications b/ the lawyer and the
corporation’s employees are privileged and (2) the work-product
doctrine is applicable, where the gvnt failed to show necessity to
overcome the protection
Grand Jury Under Seal (p°340): client must show that his
subjective belief that an attorney-client relationship existed was
reasonably under the circumstances. // 1.13(f)
Hatcher (p°353): defendants knew the conversations with lawyers
while in prison were being recorded; there is no ACP because they
could not reasonably expect that their conversations would remain
private
Erie (p°324): emails were privileged, they were sent for the
predominant purpose of soliciting or rendering legal advice
Moistureloc (p°347): communication to non-lawyer agents (PR firm)
of the representation counts as a waiver of the ACP, unless their
services are necessary to the legal representation (Kovel doctrine)
Westinghouse (p°358): rejects the selective waiver
Nilta (p°369): the party moving to disqualify an opposing counsel
that had access to documents before they were deemed privileged
by the court must prove:
1. opposing counsel’s reviewing the privileged docs caused
actual harm
2. disqualification is necessary because the trial court lacks any
lesser means to remedy the harm
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 Obligations under the DOC (1.6): not reveal information related to the representation of a client
“Information related to the representation” Belge (p°382): the attorney conducted his own investigation and
NY Rule 1.6: gained during or relating to the discovered the bodies in the course of representation, so he had no
representation of client obligation to tell something. The exceptions did not apply.
 1.6(a): not reveal client information
 1.8(b) (COI): not use client information related to the representation of a client UNLESS he gives informed consent
 1.6(c) (p°379): prevent improper disclosures, i.e. make reasonable efforts to safeguard confidential client
information
 1.18(b): not reveal OR use information related to the representation of a prospective client to the disadvantage of
that client UNLESS information had become generally known (1.9(c))
 1.9(c): not reveal OR use information related to the representation of a former client to the disadvantage of that
client UNLESS information had become generally known
Exceptions of DOC (1.6(b)): permits the lawyer to disclose information to the extend reasonably necessary
1.6(b)(1) (prevent death or SBH) Spaulding (p°389): while Defendant’s counsel had no specific
Duty of ethical obligation to disclose Plaintiff’s life-threatening condition, they
Confidence had reason to know that Plaintiff would not have agreed to the same
(DOC) settlement had he known of it.
Alton Logan (p°392):
➪ changed ABA Rule 1.6(b)(1)
Protect the victims when the client has misused the lawyer’s services
 1.6(b)(2): prevent commission of (1) a crime or fraud (2) reasonably certain to result in substantial injury
➪ crime or fraud has not yet occurred
 1.6(b)(3): prevent, rectify or mitigate (1) the effects of crime or fraud (2) reasonably certain to result or has resulted
from the client’s commission of a crime or fraud
➪ lawyer does not learn of the client’s crime or fraud until after it has been consummated
Lawyer self-protection
 1.6(b)(4): seek ethics advice
 1.6(b)(5): establish a claim or defense in a controversy with a client
 1.6(7): detect and resolve COI arising from the lawyer’s change of employment ONLY if it would not compromise
ACP or prejudice the client
Chapter 4. Conflicts of Interest
1. Current ACR (R.14, p°62) Dow Chemical (p°410): there is no COI when with a former client in
an unrelated matter

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Current client
v. current
client
1.7(a)
2. Concurrent COI:
 1.7(a)(1): direct adversity
 1.7(b)(2): risk of material adversity
1. Lawyer reasonably believes he’s competent
and can diligently represent both clients
2. Representation is not prohibited by law
3. The clients are not opposing themselves in
Exceptions the same proceeding or litigation
1.7(b) ➪ Positional conflict: clients have opposing
interests in unrelated matters
4. Client’s informed consent confirmed in
writing
a. Revoking consent
b. Waivers: consent to future conflict
1.8(g) (aggregate settlement of claims)
1.8(a) (enter business transactions)
1.8(b) (use confidential information)
1.8(c) (solicit substantial gift)
Client’s 1.8(b) (acquire literary rights based on
interests v. confidential info)
lawyer’s
interests 1.8(e) (financial assistance to clients)
1.8 1.8(f) (compensation from 1/3P)
1.8(g) (aggregate settlements)
1.8(h) (agreements limiting liability)
1.8(i) (proprietary interest in the cause of action)
Murray (p°411): the lawyer did not have a LCR with the
policyholders, because he represented the corporation, not the
shareholders or the constituents (1.13)
Carnegie (p°436): protecting against COI resulting from multiple
representation, when the client has a reasonable expectation that
they are represented and that the lawyer does nothing to dispel that
belief
Sanford (p°422): when representing multiple defendants with
different claims, liabilities and testimonies, the lawyer could not
reasonably believe he would be able to provide competent
representation to each affected client
Williams (p°447): lawyer disqualified, he cannot advocate two
conflicting legal positions in two capital murder appeals pending
simultaneously in the same court
Ware (p°439): in some situations, dual representation is never
appropriate, even if both parties are willing to consent. It is improper
for a lawyer to represent both the husband and the wife at any stage
of the separation and divorce proceeding even with full disclosure
and informed consent
Beets (p°456): transfer of literary right to the attorney’s son,
unethical but not a violation of VIth Amdt as there was no proof of
actual COI.
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 1.8(j) (A/C sexual relations) Inglimo (p°459): consensual relations with the client’s girlfriend in
his presence; no evidence of sexual relation b/ the client and the
attorney.
Grimm (p°463): the respondent’s ability to attend objectively to the
financial aspects of his professional relationship with the client was
destroyed by his intimate involvement with her. As a result, she was
forced to litigate the issue of fees owed and place in an openly
adversarial position with former trusted counsel.
1.8(k) (extension of prohibitions to the law firm)
3.7 (advocate witness rule)
1.9 (duties to former client) Westinghouse (p°472): the substantial relationship is determined
Current client by asking whether it could reasonably be said that during the former
v. former client representation that attorney might have acquired information related
to the subject matter of the subsequent representation
Former and 1.11 (former government officers and Babineaux (p°479): the city failed to show that plaintiff’s counsel (1)
current employees) was substantially and personally involved in a previous matter and
government (2) possessed confidential government information that could be
lawyers used to the material disadvantage of the city
Third Party 2.4 (lawyer serving as 1/3P neutral)
Neutrals 1.12 (former 1/3P neutral)
1.10 (imputation of COI) Lasalle (p°488): the screening process was put in place too late
Hempstead (p°491): lawyer is not “associated” with Jaspan and thus
Vicarious his conflict should not be attributed to it
disqualification Kassis (p°498): the lawyer had a substantial role in the case and the
screening procedure are not sufficient

VIth Amdt (right to conflict-free representation) Kliti (p°504): actual v. potential COI, duty of the court to inquire
Federal Rule Crim. Procedure 44: joint Holloway (p°505): automatic reversal where trial court didn’t
representation investigate conflict after D brought it up
Cuyler (p°507): limited presumption of prejudice in cases where a D
Conflict of
fails to make a timely objection to conflicted simultaneous
interests in
representation if the D demonstrates that counsel “actively
criminal cases
represented conflicting interests” and that “an actual conflict of
interest adversely affected his lawyer’s performance.”
Burger (p°508): defendant must prove ineffective assistance of
counsel

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Waiver of the right to conflict-free counsel
VIth Amdt (right to counsel of choice): may be
limited by the court in case of COI
Cancilla (p°510): D’s counsel was engaged in criminal conduct with
the D’s co-conspirators.
Winkler (p°511): contingent fee only if the defendant was found not
guilty but COI did not affect representation
Flores (p°512): a waiver is sufficient if it was made knowingly and
intelligently, with sufficient awareness of the relevant circumstances
and likely consequences
Wheat (p°517): the court must recognize a presumption in favor of
petitioner’s counsel of choice but that presumption can be overcome
by a demonstration of actual or serious potential for conflict