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INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999
54 UCLA L. Rev. 999
UCLA Law Review

June, 2007
Article
INTERPRETING COMMUNITIES: LAWYERING ACROSS LANGUAGE DIFFERENCE
Muneer I. Ahmada1
Copyright (c) 2007 Regents of the University of California; Muneer I. Ahmad
As the rapid growth of immigrant communities in recent years transforms the demography of the United States, language
diversity is emerging as a critical feature of this transformation. Poor and low-wage workers and their families in the
aggressively globalized U.S. economy increasingly are Limited English Proficient, renewing longstanding debates about
language diversity. And yet, despite a growing awareness of the challenges posed by limited English proficiency to the
social, economic, political, and cultural well-being of poor immigrants today, relatively little attention has been paid to the
role of language difference in poverty lawyering. This Article confronts the complexities of lawyering across language
difference. Starting with the principal model for poverty lawyering--client-centeredness--it suggests the inadequacy of the
model for meeting the challenges of language difference, particularly when an interpreter is interposed in the paradigmatic
lawyer-client dyad. After exploring the nature of interpretation and the role of interpreters, the Article argues in favor of a
more collaborative relationship among lawyers, clients, and interpreters than is often seen in poverty law practice.
Specifically, it suggests that the disruption effected by the introduction of an interpreter may be more productive than is
typically realized, and invites a normative reconceptualiztion of the traditional lawyer-client relationship. Ultimately, the
Article urges the embrace of an emerging set of practices known as community interpreting, and argues that its increased
attention to cultural context, third-party relationships, and community involvement is consistent with the methods and goals
of community lawyering.
Introduction 1000
I. Five Imperatives for Focusing on Language Difference 1007
A. Demography 1011
B. Legal Obligation 1016
C. Ethical Duty 1019
D. Dignitary Concerns 1024
E. Antisubordination 1030
II. A Primer on Communication: Linguistic Complexity and the Centrality of Culture 1031
III. Role Transformation and Challenges to Client-Centeredness 1043
A. The Traditional Lawyer-Client Dyad and the Refinements of Client-Centeredness 1045
B. The Introduction of the Interpreter, Role Confusion, and Transformation of the Lawyer-Client 1050
Relationship
1. Interpreter as Guardian/Interpreter as Co-client 1054
2. Interpreter as Advocate/Interpreter as Co-counsel 1056
3. Interpreter as Linguistic and Cultural Authority/Interpreter as Expert 1058
C. Disruption of Client-Centered Values and Methods 1059
IV. Reconceptualizing the Role of the Interpreter: Community Interpreting 1062
A. The Advantages of Community Interpreters in the Lawyering Process 1068
B. Limitations of Community Interpreters in the Lawyering Process 1069
C. An Enriched Vision of Community Interpreters: Recalling Interpreters as Experts 1071
V. Reconceptualizing the Lawyer-Client Relationship: Toward Community Lawyering 1075
A. The Fetishized Lawyer-Client Relationship 1076
B. From Community Interpreting to Community Lawyering 1078
© 2011 Thomson Reuters. No claim to original U.S. Government Works. 1

1. Enhanced Attention to Cultural Context 1080

2. Robust Third-Party Relationships 1082
3. Community Immersion 1084
Conclusion 1086
*1000 Introduction
In Merced, California, a twelve-year-old Laotian boy serves as an interpreter for his Hmong-speaking mother and her
English-speaking doctor, and inadvertently mistranslates the doctor’s instructions for her prescription medications; the
mother overdoses.1 In a jail in Prince William County, Virginia, a monolingual Spanish-speaking man is imprisoned for three
months *1001 after criminal charges against him are dismissed, because no one comes to release him and he is unable to
communicate with anyone in the facility.2 And a family court in Long Beach, California refuses to hear a divorce case
because the indigent client failed to provide her own interpreter.3 Cases like these, in the health care system, the criminal
justice system, and the courts, have begun to draw public attention to the ways in which inadequate attention to the country’s
growing language diversity increasingly jeopardizes life and liberty interests, particularly of poor people. And yet, as growth
in immigrant communities dramatically alters the challenges faced by poverty lawyers, one of the critical sites for the
protection and advancement of the interests of poor people--the lawyer-client relationship--remains largely unexplored in the
context of language difference.4 This Article examines the phenomenon of lawyering across language difference, the radical
disruption it effects on the traditional lawyer-client relationship, and the fundamental challenges it poses to the prevailing,
client-centered model of representation for poverty lawyering. Troubling though they may be, I argue that these disruptions
and challenges pose important opportunities for poverty lawyers to reimagine a more open, dynamic, and porous lawyer-
client relationship than exists in traditional lawyering theory and practice.
Shifting immigration policy coupled with international and domestic macroeconomic trends over the past two decades have
produced vast demographic changes, including a large and growing population of Limited English Proficient (LEP) 5
immigrants throughout the United States. *1002 Limited English proficiency increasingly correlates with poverty, as well as
with race and immigration status, thereby posing urgent demands upon poverty lawyers. 6 Indeed, the demographic pressures
are so great that the present and future success of poverty lawyering requires increased attention to how to lawyer across
language difference.7 And yet, the principal model for poverty lawyering--client-centeredness--is inadequate to the
challenges of language difference. As a result, core concerns of client-centeredness, such as the enhancement of client
autonomy and client voice, are compromised, and many lawyers are left ill-equipped to address the needs of LEP individuals
and communities in precisely the moment when lawyering for LEP clients is becoming a vital component of social change.
The core challenge to client-centeredness arises from the integral role of interpreters in the process of lawyering across
language difference. Except in those limited circumstances where poverty lawyers are bilingual, 8 interpreters figure
prominently in the representation of LEP clients. Their very presence disrupts the one-lawyer, one-client, dyadic norm on
which the client-centered model (and traditional lawyering more generally) is premised, and their active engagement injects
the subjectivity of a third person--her thoughts and feelings, attitudes and opinions, personality and perception--into what
previously had been the exclusive province of the lawyer and client. The paradigmatic direct bond of communication
between lawyer and client is now mediated, and therefore modified, by another individual. As a result of this perceived
*1003 intrusion and real disruption, many lawyers view interpreters with suspicion, 9 and may wish to confine the
interpreter’s role to that of a machine, not unlike a telephone, merely transmitting “exact” translations, free of subjectivity,
from one side to the other. And yet, when properly understood, the linguistic complexity and cultural embeddedness of
interpretation reveal the lie of verbatim translation and underscore the inescapable subjectivity of all interpretation.
Once we acknowledge the subjectivity that inheres in interpretation, we can move in one of two directions: either to squelch
that subjectivity and attempt to force the interpreter back into the fictive box of technology; or to embrace the subjectivity,
draw it out further, scrutinize it rigorously, and engage it dialogically. Most lawyers, and the legal system as a whole, attempt
the former. I argue unambiguously for the latter. By accepting the interpreter as a partner rather than rejecting her as an
interloper, by resolving the dynamic of dependence and distrust in favor of collaboration, lawyers can enhance LEP client
voice and autonomy while increasing their engagement in the communities from which their clients hail.
Moreover, by opening ourselves up to the active engagement of interpreters in the lawyer-(interpreter-)client relationship, we
also expand our understanding of the universe of actors, contexts, and discourses that any lawyer-client relationship involves.
The interpreter visibly marks outside influences, considerations, and concerns that animate all lawyer-client relationships.

She literally embodies the third person who, by virtue of her effect on both the lawyer and the client, shapes and alters the
content and form of lawyer-client communication. But even when the lawyer and client speak the same language, even when
there is no interpreter present, there is always a third person in the room. Absent an interpreter, both lawyers and clients still
draw upon or are otherwise influenced by actors and forces that, while not physically manifested in the interview room,
profoundly affect the lawyer-client relationship. A client’s pastor, family considerations, involvement in a community group,
or concern for her reputation in the community may inform her views. Similarly, the expectations of a lawyer’s supervising
attorney, her professional aspirations, or her political commitments may shape the lawyer’s perspective. These third-party
influences operate invisibly within the confines of the client interview room. An examination of lawyering across language
difference, however, can render them visible and thereby generate a more *1004 nuanced understanding of the lawyer-client
relationship, one that more fully accounts for the social contexts in which the lawyer and the client reside.
The challenges of lawyering across language difference, properly understood, can help us begin to reconceptualize the
lawyer-client relationship not as a closed system, as it is traditionally understood, but as a more porous, though still
privileged, relationship in which a range of mediating forces is recognized, negotiated, and embraced.
In Part I of this Article, I review five interrelated phenomena that compel greater attention to the project of lawyering across
language difference: demography, legal obligation, ethical duty, dignitary concerns, and commitments to antisubordination. I
argue that the astonishing growth of the LEP population, its diffusion across both urban and rural areas of the United States,
and the correlations between limited English proficiency and poverty demand reconsideration of poverty lawyers’ legal,
ethical, and political commitments. In Part II, I provide a sociolinguistic overview of communication generally, and of
interpretation in particular, drawing attention to the semantic complexity and inherent cultural embeddedness of all
communication. This discussion foreshadows the fundamental challenges to the traditionally conceived lawyer-client
relationship posed by the introduction of an interpreter into the lawyering process. I take up those challenges directly in Part
III, where I argue that the involvement of an interpreter confounds traditional lawyer and client roles, transforms the very
structure of the lawyer-client relationship, and threatens fundamental values of client-centeredness, such as client autonomy
and client voice. I propose an admittedly troubling typology to describe and better understand the multiple and complex roles
interpreters necessarily play in the lawyering process: interpreter as guardian, interpreter as advocate, and interpreter as
linguistic and cultural authority.10 I suggest that these correlate roughly to interpreter roles as co-client, co-counsel, and
expert.
In Part IV, I explore the emergence, development, and professionalization of a form of interpretation known as community
interpreting. I advocate the integration of properly trained community interpreters by lawyers as vital collaborators in the
lawyering process because of the linguistic and cultural knowledge they bring, and suggest the interpreter-as-expert construct
as a particularly useful framework for engaging interpreters in dialogue about their role, their expertise, and the limits of
both. This constitutes a rejection of the cramped view of interpreters that is often advocated, and an embrace of the role
disruption that the involvement of interpreters creates. Finally, in Part V, I argue that the robust involvement of community
interpreters in the lawyering process *1005 invites a normative reconceptualization of the lawyer-client relationship, away
from the closed, one-lawyer, one-client dyad and toward a more open architecture that embraces multiple actors and
privileges social and cultural context. Thus, the embrace of community interpreting encourages community lawyering.
***
The challenges of lawyering across language difference manifest in such diverse ways that no one scenario, real or imagined,
can capture them all. With this caveat in mind, I nonetheless advance the following dialogue, based loosely on the
experiences of students in the International Human Rights Clinic at American University Washington College of Law, as a
means of introducing some of the key questions I seek to address in this Article.11
Margaret and Grace are law students in an asylum clinic who have been assigned the case of Mae, a young Burmese woman.
Ever since their first client meeting several weeks ago, Reverend Sen, a local Burmese pastor who serves as Mae’s
interpreter, has accompanied Mae. Reverend Sen’s English is very good, and the students are grateful that he has agreed to
help, as they had been unable to find any other volunteers. Although the students believe that Mae has a meritorious claim,
they are concerned that she did not file for asylum within one year of her arrival in the United States, as the asylum statute
requires. They meet with Mae and Reverend Sen to discuss the status of the case, and the following conversation ensues:

Margaret: Mae, you told us earlier that when you got to the U.S. you were very sick and that you stayed at a Burmese church
in Texas. Is that right?
Reverend Sen: (interprets into Burmese)
Mae: Yes.
Margaret: Is there someone there that we could speak to?
Reverend Sen: (without interpreting into Burmese) Why is it necessary for you to speak with them?
Grace: Reverend, would it be possible for you to just translate what we said? If Mae has questions about why we would like
to speak with them, we can answer her then.
Reverend Sen: I have helped many Burmese to apply for asylum, and I don’t see why this information is important. Please
explain it to me before I translate for Mae.
*1006 Margaret: In order to qualify for asylum, Mae must file her application within a year of entering the country, unless we
can show that there were some exceptional circumstances justifying the delay. So, we would like to be able to talk to the
people at the church in Texas to see if they can corroborate the fact that Mae was in poor health when she arrived. That might
help us explain why she is applying late.
Reverend Sen: I understand. I will translate the question.
....
The meeting continues, and a short while later, this exchange ensues:
Grace: Mae, I know this is very difficult for you, but we would like to ask you a few more questions about when the soldiers
attacked you.
Reverend Sen: (interpreting into Burmese)
Mae: (suddenly looking away and starting to tremble) Okay.
Grace: The soldier who raped you, had you ever seen him before?
Reverend Sen (to the students): You already asked her about this incident.
Grace: We just need to get some more detail. The more detail we have, the more credible Mae’s story will be and the better
her chances of getting asylum.
Reverend Sen: I don’t think you should be asking these questions again. It is very difficult for her to answer. Already you can
see she is becoming upset.
Margaret: We don’t mean to upset her, but this is a really important part of her story.
Reverend Sen: Margaret, let me explain to you about Burmese culture. Burmese women are not to talk about such things. She
has been taught that what happened to her is shameful, not just for her but for her entire family. And it is shameful for her to
talk about it now.
Grace: Reverend, as difficult as it is, Mae needs to learn how to answer these questions, because the judge and the
government will probably ask them at trial even if we don’t.
Reverend Sen: (speaking in Burmese to Mae)

Mae: (shaking her head side to side and speaking in Burmese)
Margaret: What did you ask her?
Reverend Sen: I told her that you had some sensitive questions to ask and asked if she would be willing to answer. She said
she will answer your questions.
....
Finally, toward the end of the meeting, the students ask Mae if she would be willing to undergo a medical exam in order to
obtain corroborating evidence of the physical injuries she suffered in Burma. The students explain that it will include a pelvic
exam. Mae agrees. Two weeks later, the students and Mae are in the doctor’s office with another volunteer interpreter--this
time, a woman-- and Mae becomes distraught, as the students discover for the first time that Mae did not previously
understand that a pelvic exam would be involved.
This brief exchange presents three sets of critical questions. First are questions concerning the semantic integrity of the
interpretation: Why did *1007 Mae not understand that a pelvic exam would be involved? Was it because of the manner in
which Reverend Sen interpreted the information, or did the Reverend fail to interpret it at all? Second are questions of
interpreter role: How does the role of the interpreter fit into the established structure of the lawyer-client relationship? Should
Reverend Sen be serving as an advocate for Mae? Should he be her guardian, or a gatekeeper to information? For whom does
the interpreter work, the lawyer or the client? Should he be serving as a cultural expert? How do gender, class, and social
status affect the relationships between the student-lawyers, the interpreter, and the client? And third are questions regarding
fundamental values of client-centeredness: Why is it that Mae speaks so little in this exchange? How can her voice be
amplified? How does the involvement of the interpreter affect her sense of autonomy?
***
II. Role Transformation and Challenges to Client-Centeredness
A. The Traditional Lawyer-Client Dyad and the Refinements of Client-Centeredness
The traditional model of lawyering presumes a single lawyer and a single client. The Model Rules, as well as the Model Code
of Professional Responsibility, are both premised upon this conception of a lawyer-client dyad. Basic lawyer duties, such as
the duty of zealous representation,149 the duty of confidentiality,150 the duty to keep a client informed of developments in the
case,151 and the duty of loyalty,152 are paradigmatically held by one lawyer and owed to one client. There is an inherent logic
to this elemental conception, as lawyer duties are most readily satisfied within a *1046 one-lawyer, one-client model. This
should come as no surprise, given that many of the lawyer’s basic duties are intended to construct the lawyer-client
relationship as a trust relationship,153 and indeed, one of the most sanctified trust relationships we have. 154 That trust is more
easily established between two people than between three or more is intuitive. 155 The traditionally conceived relationship,
then, consists of a line segment in which the lawyer and client form each of the terminal points, with a series of duties
spanning between them.
This is not to say that the traditional conception of the lawyer-client relationship cannot accommodate more than one client or
more than one lawyer. In fact, the ethical rules contemplate each of these scenarios, in the form of multiple client
representation156 and co-counseling arrangements.157 Even these, however, are extrapolations from a set of norms that
essentially contemplate application to a one-lawyer, one-client relationship. The complications that multiple client
representation and co-counseling arrangements introduce into the lawyer-client relationship158 are useful to an analysis of the
involvement of interpreters. At base, however, the process of building trust with a client is altered by the interjection of a
third person. Moreover, unlike group representation, in which the rules of ethics necessitate that all of the clients share at
least some set of interests, or co-counseling, in which all of the lawyers are required to share the same set of duties,
interpreters enter the lawyer-client context free of any such constraints. While an ethics of interpretation exists within the
profession of interpretation,159 no rule of legal ethics governs the duties of the interpreter. 160 *1047 Indeed, it seems safe to

conclude that the rules of ethics never contemplated the presence of an interpreter in the lawyering process. 161
Client-centeredness developed as an intellectual and ethical intervention in the discourse on lawyering, and presents an
enriched normative vision of the lawyer-client relationship.162 Client-centeredness first offers a critique of traditional
lawyering practice, focusing in particular on the location and role of power in the lawyer-client relationship. Specifically,
client-centeredness recognizes the tendency of lawyers to undervalue or disregard the decisionmaking abilities of their
clients, to substitute their judgment for that of their clients, and to construe clients’ cases in overly narrow, legal terms,
without regard to the nonlegal dimensions of clients’ cases and lives. 163 More broadly, the client-centered critique exposes
the dangers *1048 of lawyerly overbearing164 and the damage that it does to client autonomy.165 This critique identifies the
traditional lawyer-client relationship as an unequal one in which the lawyer’s role is central and the client’s is marginal. The
lawyer’s role consists of a series of well-defined professional duties, powers, and abilities for general application to a
population of fungible clients. In short, the lawyer holds and exercises disproportionate power.
Informed by this critique, client-centeredness sets out an alternative model of lawyering that seeks to level the relationship.
The model has both political and practical dimensions, as it attempts to correct for lawyerly overbearing through the use of
various techniques that respect and enhance client autonomy.166 These include close listening strategies, such as the
deliberate use of open-ended questions,167 active listening,168 expressing empathy,169 attention to the use of legal jargon,170
and the structuring of client interviews and counseling sessions so as to privilege client goal identification. 171 These
techniques help to make explicit a previously unmarked set of assumptions about lawyers and clients: that lawyers know
better than clients what the nature of their problem is; that client problems should be understood in legal terms alone; and that
lawyers alone possess relevant expertise. Thus, the client-centered model supplants an invisible, unexamined, and frequently
subordinating code of constructing client meaning with a framework for representation that acknowledges and attempts to
rectify the power disparities of the traditional lawyer-client relationship.172
*1049 In this way, client-centered lawyering techniques are tools of construction of client meaning, not unlike the tools of
construction applied to substantive law.173 This reflects an implicit understanding that, like law itself, the lawyering process
is inherently interpretive. Understanding a client’s problems, identifying the client’s goals, and framing legal claims are all
deeply textured and contingent processes governed by the competing grammars of clients, lawyers, and adjudicators.
While client-centeredness has broad applicability across a range of lawyering contexts, and was conceived with such breadth
in mind,174 it has special application in the context of poverty lawyering. Client-centeredness necessitates careful
consideration of the differences in race, gender, class, age, sexual orientation, immigration status, educational background,
professional privilege, and language, among other characteristics, that inform the power dynamic between an individual
lawyer and client.175 Because these differences are often more pronounced between poverty lawyers and their clients, the
attentiveness to them that client-centeredness demands is especially important.
By necessity, the close attention paid by the lawyer to the client requires of the lawyer a close self-scrutiny as well, so as to
ensure proper forbearance and strategic engagement that further the values of client autonomy. Thus, the ultimate goal of
client-centeredness--a “co-eminent” relationship176-- is pursued through a methodology of critical attention to both lawyer
and client roles. The client-centered approach therefore helps to endow lawyers and clients with individualized qualities,
rather than the generic, categorical ones ascribed by the traditional model of lawyering. Such appreciation of the respective
subject positions of the lawyer and *1050 the client significantly enriches the traditional model by recognizing each
lawyering context as unique, contingent, and demanding of individualized attention. As such, one of the great virtues of the
client-centered approach is its flexibility. The individual evaluation that client-centeredness demands of each lawyer-client
relationship in light of the characteristics of the specific lawyer and client enables a broader range of lawyer-client
relationships than contemplated by the traditional lawyering model.
Client-centeredness therefore represents a major advancement in the project of achieving lawyer-client understanding, in
ways that benefit LEP and non-LEP clients alike, and many of its insights are directly relevant to the project of lawyering
across language difference. But the introduction of an interpreter forces a fundamental restructuring of the lawyer-client
relationship, and, in so doing, threatens the efficacy of client-centered techniques.
B. The Introduction of the Interpreter, Role Confusion, and Transformation of the Lawyer-Client Relationship
The interpreter does not fit comfortably within the structure of even a client-centered lawyer-client relationship. Like the
traditional model, the client-centered relationship is still linear, albeit more level. The lawyer’s appreciation of her own
subject position and that of the client are enhanced, but the fundamental structure of one lawyer, one client remains the same.
The strength of the dyadic model as a cultural feature of lawyering encourages lawyers to imagine the role of the interpreter
as merely a conduit of information--a piece of technology, such as a telephone--that transmits data from one point to
another,177 achieving “perfect identity” between one language and the other. 178 But the culturally informed, deeply textured
nature of language, combined with the interpersonal consequences of the interpreter’s presence, belie such a mechanical
understanding of how *1051 interpreters operate, and expose the fiction of verbatim interpretation. 179 Because interpreters
do not merely transmit information, but mediate it as well, the personhood of the interpreter--her own subject position and
associated biases and interests--cannot be removed from the process.
Because the interpreter brings her own subjectivity to the enterprise, the singular relationship between lawyer and client is
transformed into three distinct relationships: lawyer and interpreter, interpreter and client, and lawyer and client. We might
envision these relationships in a triangular formation--a lawyer-interpreter-client triad--that both multiplies and refracts the
client-centered concern for power as between lawyer and client. It multiplies this concern in that we must now attend to
power not only between lawyer and client, but also between lawyer and interpreter and between client and interpreter. It
refracts the concern because nearly all communication between the lawyer and client is necessarily mediated by the
interpreter. In this regard, client-centeredness is a useful point of departure for an analysis of the complex nature of the
relationships between and among lawyer, client, and interpreter.
For example, the principles of client-centeredness prove useful in selecting an appropriate interpreter. Just as client-
centeredness encourages attention to gender as one potential dimension of power disparity in the lawyer-client relationship, a
similar attentiveness to the gender dynamic as between client and interpreter may also be appropriate. In our clinic, many
female clients who have been victims of sexual violence express a strong preference for a female interpreter, and that
preference is generally honored. This is not merely a matter of subjective client preference, but a recognition of how gender
subordination has figured into the client’s life and may continue to animate and inhibit the lawyer-client relationship.
While such attention to power disparities is highly productive, the conventional tools of client-centeredness do not address
the full complexity of lawyering across language difference. In particular, they are inadequate to the task of managing the
role complications that result when an interpreter is involved. Unlike in the traditional lawyer-client relationship, in which the
regulatory structure of the ethical rules renders lawyer and client roles relatively well-defined and static, the role of the
interpreter is *1052 often diffuse and dynamic. Interposed between the client and the lawyer, interpreters often assume
characteristics of each. Thus, the interpreter may end up answering the lawyer’s question, thereby displacing the client and
compromising her autonomy, or asking the client questions of his own, thereby displacing the lawyer and diminishing her
control. Even if the interpreter’s conduct does not fully displace the lawyer or the client, it may situate the interpreter closer
to one or the other, either in function or in perception. Moreover, the interpreter’s position with respect to the lawyer and the
client may vary across time and according to context. Such role confusion is unsurprising in light of the lack of clear
guidance on the use of interpreters in the lawyering context, and is especially likely to occur with untrained interpreters.
Just as client-centeredness seeks to mitigate the effects of power disparities between lawyers and clients, as applied to the
multiple relationships of LEP representation, it counsels corrections for interpreter distortions as well. Angela McCaffrey has
detailed a series of corrective measures that lawyers can take, including how to identify an appropriate interpreter, prepare the
interpreter for a client interview, and frame appropriate questions for the client. 180 However, approaches such as these leave
unanswered the fundamental question of what role the interpreter should play. Specifically, the question of how a lawyer may
construct a perceptual frame that is shared by the client when their relationship is mediated through the subjective experience
of another remains unresolved.
Any interpreter role other than a technological one is bound to agitate many lawyers, precisely because the dyadic one-
lawyer, one-client norm is so strongly established within the profession. By the traditional account, the lawyer-client
relationship does not accommodate the personhood of the interpreter, thus fueling the lawyerly impulse to confine and
control the interpreter. The inevitable expression of the interpreter’s personhood is likely to be viewed as an unwelcome
intrusion, and the lawyer may feel like she is engaged in a power struggle with an unruly subordinate. 181 While the lawyer’s
desire for control is, in the abstract, understandable, it is unrealistic in light of the linguistic demands of interpretation. Rather
than attempt to repudiate the presence of the interpreter, it would be *1053 more productive to the ultimate goals of
representation--including the client-centered goal of enhancing client autonomy--to embrace the complexity that the

involvement of interpreters necessarily brings.

In everyday practice, interpreters play multiple and conflicting roles. Given what interpreters are expected to deliver, this is
understandable, and potentially productive. At base, we expect interpreters to translate what the lawyer says to the client, and
what the client says to the lawyer. But even a cursory examination of common synonyms for “translate” reveals the
impossibility of the task. On the one hand, the interpreter is expected to engage in objective and determinate activities: to
translate is to “ascertain,” “determine,” “find,” or “find out.”182 On the other, the interpreter’s project is avowedly subjective
and indeterminate. Thus, she is to “reword,” “rephrase,” or “paraphrase.” 183 These latter activities necessarily implicate the
specific life experiences, biases, and assumptions of the interpreter. In this regard, the work of the interpreter in rendering the
words of the lawyer and of the client is not unlike the work of the lawyer in rendering the stories of clients in the vernacular
of legally cognizable claims.184
Once we accept the humanity of the interpreter, her agency, and her subjectivity, we can identify several roles that
interpreters frequently play. I suggest here a typology of three common roles that may be played to varying degrees, at
various times, and in varying combinations. These are the interpreter as guardian, the interpreter as advocate, and the
interpreter as linguistic and cultural authority.185 Each of these constructs is inexact and problematic, but I suggest them for
both their descriptive qualities and their normative potential to meet the client-centered goals of enhancing client autonomy
and client voice. While at first glance unrecognizable in the vernacular of the lawyer-client relationship, these roles can be
*1054 assimilated, tentatively and perhaps uncomfortably, into the more legible categories of co-client, co-counsel, and
expert, respectively. This “translation” into the traditional vocabulary of lawyering helps to render the role of the interpreter
more intelligible, and to provide lawyers with an analytic framework to engage with interpreters in meaningful and
productive ways.
1. Interpreter as Guardian/Interpreter as Co-client
Consider the following scenario: In his limited English, an Arabic-speaking inmate has demanded to see the prison
superintendent. The prison has no interpreter available. However, an Arabic interpreter working with a lawyer representing
another inmate happens to be at the prison, and agrees to assist. Standing outside the inmate’s cell, the interpreter listens as
the inmate hurls invective at the superintendent, swearing repeatedly at him. Rather than translating, the interpreter remains
silent. When the inmate demands that the interpreter translate what he is saying, the interpreter refuses, saying to the inmate
in Arabic that it will only get the inmate in trouble.
Here, the interpreter’s refusal to translate extinguishes the inmate’s agency and replaces it with his own. This substitution of
silence for the inmate’s words is a variation on the far more common phenomenon of interpreters answering questions that
are posed to a client without translating the question for the client or affording her the opportunity to answer the question
herself. In both instances, the interpreter presumes to speak (or not speak) for the client, and may do so out of a sense of what
is best for the client. In this regard, the interpreter acts as a kind of guardian for the client, protecting her interests, on the
assumption that the client is either partially or fully incapacitated and therefore unable to do so herself. Like a guardian, the
interpreter is a constant presence in the lawyer-client relationship.
A similar phenomenon can be seen in the introductory vignette, when the reverend seeks to block the student-lawyers’
questions regarding sexual violence, stating that “[i]t is very difficult for her to answer.” In the case on which this scenario is
based, the students were understandably dismayed by this behavior. They viewed the proper role of the interpreter as an
enabler rather than a gatekeeper. In contrast, the reverend saw himself not merely as an instrument for the students’ use, but
as an independent actor, with his own agency and his own relationship with Mae. In fact, the reverend’s relationship with
Mae preceded the students’ first client meeting, and extended beyond her legal issues to encompass her *1055 spiritual life as
well as her immediate material needs. Older, male, and in a position of authority within the local community, the reverend’s
intervention was undoubtedly nettlesome to the student-lawyers, but was also avowedly protective.
Of course, the interpreter-as-guardian construct deserves vigorous critique for its infantalization and paternalism. Moreover,
not only does such a role subordinate the client, but the interpreter may have his own agenda for the client’s case: As a leader
in the local Burmese community, the reverend may have a concern for the reputation of the community, or of Burmese
“culture,” which is in tension with full disclosure of the sexual violence experienced by Mae. At the same time, the tendency
of some interpreters to embrace the role of self-appointed guardian may reflect as much about the interpreters’ perceptions of
the lawyers as it does about their views toward the client. For example, the reverend’s intervention reflects a skepticism, if
not outright mistrust, of the abilities of the students. It also may reflect a rejection of the special status traditionally conferred
on lawyer-client relationships, and a concomitant elevation of the reverend’s own relationship--as pastor, as provider, and as
elder--with Mae.
I intend the interpreter-as-guardian construct as descriptive rather than normative, for it ultimately entails too great a
displacement of the client’s autonomy. However, it may be productive to consider tentatively the interpreter as a co-client. I
do not mean to suggest that lawyers owe duties to the interpreter. But in a less doctrinal sense, the trust relationship that
lawyers strive for with their clients is not unlike that which may be necessary with an interpreter. This is especially true of
community interpreters who, by virtue of their relationships with clients outside of the interview room, may enter the lawyer-
client relationship with greater credibility than the lawyers themselves. 186 At times, a client may, as an exercise of agency,
choose for the interpreter to speak for her. Rather than assume that the interpreter’s and the client’s interests are aligned, we
might recognize that the client may choose to align with the interpreter, either because of a preexisting relationship, or
because of some real or perceived basis for interpreter-client trust. Thus, the *1056 lawyer-interpreter relationship is a trust
relationship on which the lawyer-client relationship frequently depends.187
2. Interpreter as Advocate/Interpreter as Co-counsel
Rather than merely speaking for clients, interpreters often advocate for them. With interpreters such as Reverend Sen, much
of this advocacy takes place outside the presence of the lawyer--for example, when the interpreter helps the client obtain
housing or intervenes with a client’s social worker. Because the reverend is a community leader first, and an interpreter only
incidentally, his role within the lawyer-client relationship is not easily contained. It is therefore not surprising that his
advocacy on behalf of Mae extends to the student-lawyers. For instance, when the students ask certain questions of Mae, the
reverend refuses to translate them until they first provide a rationale for the inquiries. While on the one hand consistent with
the guardian role discussed previously, it can also be viewed as a form of information bargaining in which negotiating
lawyers frequently engage.188 The reverend’s inquiries are designed not merely to protect, but to gain access to legal
knowledge (for himself and not for the client) that is the typical province of lawyers. This reflects a larger ambition on the
part of the reverend to involve himself in the substantive decisionmaking of how to advance Mae’s asylum claim, and is
informed by his past experience assisting others in his community in successfully obtaining asylum. Indeed, the reverend’s
experience with the asylum process far exceeds that of the student-lawyers.
It is a small step from interpreter as advocate to interpreter as co-counsel, and thus, a hugely disconcerting one for many
lawyers. Certainly, this formulation is the most threatening to the lawyer’s traditional sense *1057 of professional identity, as
it challenges the lawyer’s claim to substantive expertise as well as her ability to control the dynamic of the lawyer-client
relationship. While this may seem consistent with the project of client-centeredness, which seeks to disrupt lawyer claims to
exclusivity of expertise and tendencies toward overbearing, 189 it threatens to dissolve the lawyer’s role entirely.
And yet, in the face of this blurring of roles, the co-counsel formulation provides an opportunity for conscious and deliberate
restructuring of the lawyer’s relationship with the interpreter. Once we accept the insight of client-centeredness that lawyers
must explore both legal and nonlegal dimensions of clients’ problems, 190 the active involvement of the interpreter in
facilitating trust, providing information, and perhaps even strategizing with the lawyer and the client, may seem more
palatable, and even desirable. Lawyers may wish to define primary areas of responsibility and reassert claims to specific
areas of expertise. However, the collaborative, co-counsel model suggests that the lawyer, client, and interpreter relationships
maintain a level of fluidity, permit debate and contestation, and recognize that all three parties may bring expertise to the
table.
Even if one is not comfortable with an expansive co-counsel model, there is a degree of collaboration between lawyers and
interpreters that is often essential, even if unrecognized. This is particularly true with regard to the establishment of client
trust. In the traditional lawyer-client relationship, the establishment and the building of trust are fundamental, and underwrite
much of the conduct of the relationship. This formation of trust is also traditionally within the sole province of the lawyer.
Core ethical obligations, such as the duty of confidentiality, are designed expressly to facilitate the establishment of client
trust. However, where an interpreter is involved, trust must be established with everyone in the room. This implicates the
interpreter in two respects. First, the interpreter is one party with whom trust must be established, with respect to the client
and with respect to the lawyer. Second, just as the interpreter mediates verbal communication between the lawyer and the
client, the interpreter also mediates the trust relationship between the lawyer and the client. In both enterprises, the
personhood of the interpreter figures prominently.

If we consider the earlier example of a client who expresses a preference for a female interpreter, we can understand the
honoring of such a preference in the first instance as a matter of trust as between *1058 client and interpreter. But trust as
between the lawyer and client is derivative of client trust with the interpreter. Thus, to a large degree, trust building, which is
a central lawyer concern in the traditional lawyer-client relationship, is implicitly contracted out to the interpreter. 191
Where client trust depends upon trust between the client and the interpreter, the interpreter is endowed with considerable
power, which necessarily detracts from that of the lawyer. There is, then, a sharing with the interpreter of what in a traditional
lawyer-client relationship would be viewed as quintessentially lawyerly duties. Put more simply, the interpreter--like co-
counsel--does part of the lawyer’s job.
3. Interpreter as Linguistic and Cultural Authority/Interpreter as Expert
Once the linguistic complexity of interpretation is acknowledged, culture--a perceptual and experiential frame within which
language derives meaning-- becomes an essential element of the interpretive process. Interpreters are frequently described as
cultural brokers who, in addition to rendering semantic meaning, provide information about the norms, practices, and beliefs
the client is likely to espouse, so as to determine the meaning of the client’s words. 192 But cultural brokering is
fundamentally a process of ascription, based not on specific knowledge of the lived experience of the client, but instead upon
the interpreter’s understandings and assumptions of what that lived experience must be. As such, cultural brokering is fraught
with the dangers of essentialism, as captured by Reverend Sen’s admonition, “[l]et me explain to you about Burmese
culture,” the implication being that Burmese culture is unitary, static, and universal. And yet, while the integrity of the
interpreter’s cultural assumptions may be questionable, the social nature of language necessitates cultural information in
order for communication to be meaningful, and forms an inescapable, often unmarked element of interpretation, even when
an interpreter professes to be interpreting “only what the client says.”193
*1059 In light of this central role of culture in the interpretive process, we can understand interpreters as enacting the role of
experts in two respects: They possess (or purport to possess, or are assumed to possess) expertise both in the semantics,
grammar, and diction of the languages involved, and with regard to culture. 194 Despite this putative expertise, lawyers rarely
subject interpreters to the level of scrutiny regarding qualifications and reliability to which they would subject other types of
experts.195 Indeed, it is nearly inconceivable that untrained, untested, unpaid volunteers would be used as expert witnesses
with the frequency with which such volunteers are used for legal interpretation.
Subjecting interpreters to more formal expert witness scrutiny can be productive in two regards. First, it forces lawyers to
identify the specific expertise that the interpreter putatively possesses. Second, it demands a substantive evaluation of the
bases for this putative expertise. The former consideration recognizes the multiple practices and knowledge forms that
constitute interpretation, while the latter provides a mechanism for guarding against the dangers of essentialism.
Finally, the interpreter-as-expert model rejects the technological view of interpretation, and instead embraces its unavoidably
testimonial dimension. As an expert, the interpreter is not only rendering information to and from the lawyer and the client,
but also bringing independent knowledge, opinion, and judgment to the enterprise. To varying degrees, then, the interpreter
provides opinion testimony, even in the confines of the client interview room.

SELECTED EXCERPTS FROM RULE 42,
THE ARIZONA RULES OF THE SUPREME COURT,
RULES OF PROFESSIONAL CONDUCT
Rules of Professional Conduct
1. Client-Lawyer Relationship
2. Counselor
3. Advocate
4. Transactions with Persons Other Than Clients
5. Law Firms and Associations
6. Public Service
7. Information About Legal Services
8. Maintaining the Integrity of the Profession
1. LAWYER-CLIENT RELATIONSHIP
ER 1.0. Terminology
(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question
to be true. A person's belief may be inferred from circumstances. .
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural
law of the applicable jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after
the lawyer has communicated adequate information and explanation about the material risks of
and reasonably available alternatives to the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A
person's knowledge may be inferred from circumstances.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.
(m) "Tribunal" denotes a court, an arbitrator in an arbitration proceeding or a legislative body,

administrative agency or other body acting in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument by a party or parties, will render a legal judgment
directly affecting a party's interests in a particular matter.
Comment
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent
of a client or other person (e.g., a former client or, under certain circumstances, a prospective
client) before accepting or continuing representation or pursuing a course of conduct. See ERs
1.2(c), 1.6(a), 1.7(b), 1.8(a), and 1.9(b). The communication necessary to obtain such consent
will vary according to the Rule involved and the circumstances giving rise to the need to obtain
informed consent. The lawyer must make reasonable efforts to ensure that the client or other
person possesses information reasonably adequate to make an informed decision. Ordinarily, this
will require communication that includes a disclosure of the facts and circumstances giving rise
to the situation, any explanation reasonably necessary to inform the client or other person of the
material advantages and disadvantages of the proposed course of conduct and a discussion of the
client's or other person's options and alternatives. In some circumstances it may be appropriate
for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need
not inform a client or other person of facts or implications already known to the client or other
person; nevertheless, a lawyer who does not personally inform the client or other person assumes
the risk that the client or other person is inadequately informed and the consent is invalid. In
determining whether the information and explanation provided are reasonably adequate, relevant
factors include whether the client or other person is experienced in legal matters generally and in
making decisions of the type involved, and whether the client or other person is independently
represented by other counsel in giving the consent. Normally, such persons need less information
and explanation than others, and generally a client or other person who is independently
represented by other counsel in giving the consent should be assumed to have given informed
consent.
ER 1.2. Scope of Representation and Allocation of Authority between Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by ER 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such action on behalf of the client as
is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether
the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not

constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.
Comment
Allocation of Authority between Client and Lawyer
[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be
served by legal representation, within the limits imposed by law and the lawyer's professional
obligations. At the same time, a lawyer is not required to pursue objectives or employ means
simply because a client may wish that the lawyer do so. The decisions specified in paragraph (a),
such as whether to settle a civil matter, must also be made by the client. See ER 1.4(a)(1) for the
lawyer's duty to communicate with the client about such decisions. With respect to the means by
which the client's objectives are to be pursued, the lawyer shall consult with the client as required
by ER 1.4(a)(2) and may take such action as is impliedly authorized to carry out the
representation.
[2] On occasion, however, a lawyer and a client may disagree about the means to be used to
accomplish the client's objectives. Clients normally defer to the special knowledge and skill of
their lawyer with respect to the means to be used to accomplish their objectives, particularly with
respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client
regarding such questions as the expense to be incurred and concern for third persons who might
be adversely affected. Because of the varied nature of the matters about which a lawyer and
client might disagree and because the actions in question may implicate the interests of a tribunal
or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other
law, however, may be applicable and should be consulted by the lawyer. The lawyer should also
consult with the client and seek a mutually acceptable resolution of the disagreement. If such
efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer
may withdraw from the representation. See ER 1.16(b)(4). Conversely, the client may resolve the
disagreement by discharging the lawyer. See ER 1.16(a)(3).
[3] At the outset of a representation, the client may authorize the lawyer to take specific action
on the client's behalf without further consultation. Absent a material change in circumstances and
subject to ER 1.4, a lawyer may rely on such an advance authorization. The client may, however,
revoke such authority at any time.
[4] In a case in which the client appears to have diminished capacity, the lawyer's duty to abide
by the client's decisions is to be guided by reference to ER 1.14.
Independence from Client's Views or Activities
[5] Legal representation should not be denied to people who are unable to afford legal services,
or whose cause is controversial or the subject of popular disapproval. By the same token,
representing a
client does not constitute approval of the client's views or activities.
Agreements Limiting Scope of Representation
[6] The scope of services to be provided by a lawyer may be limited by agreement with the client
or by the terms under which the lawyer's services are made available to the client. Representation
provided through a legal aid agency may be subject to limitations on the types of cases the
agency handles. When a lawyer has been retained by an insurer to represent an insured, for
example, the representation may be limited to matters related to the insurance coverage. A
limited representation may be appropriate because the client has limited objectives for the
representation. In addition, the terms upon which representation is undertaken may exclude
specific means that might otherwise be used to accomplish the client's objectives. Such
limitations may exclude actions that the client thinks are too costly or that the lawyer regards as
repugnant or imprudent.
[7] Although this Rule affords the lawyer and client substantial latitude to limit the
representation, the limitation must be reasonable under the circumstances. If, for example, a
client's objective is limited to securing general information about the law the client needs in
order to handle a common and typically uncomplicated legal problem, the lawyer and client may
agree that the lawyer's services will be limited to a brief telephone consultation. Such a
limitation, however, would not be reasonable if the time allotted was not sufficient to yield
advice upon which the client could rely. Although an agreement for a limited representation does
not exempt a lawyer from the duty to provide competent representation, the limitation is a factor
to be considered when determining the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation. See ER 1.1.
[8] Although paragraph (c) does not require that the client's informed consent to a limited
representation be in writing, a specification of the scope of representation will normally be a
necessary part of the lawyer's written communication of the rate or basis of the lawyer's fee as
required by ER 1.5(b). See ER 1.0(e) for the definition of "informed consent".
[9] All agreements concerning a lawyer's representation of a client must accord with the Rules of
Professional Conduct and other law. See, e.g., ERs 1.1, 1.8 and 5.6.
Criminal, Fraudulent and Prohibited Transactions
[10] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit
a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest
opinion about the actual consequences that appear likely to result from a client's conduct. Nor
does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself
make a lawyer a party to the course of action. There is a critical distinction between presenting
an analysis of legal aspects of questionable conduct and recommending the means by which a
crime or fraud might be committed with impunity.
[11] When the client's course of action has already begun and is continuing, the lawyer's
responsibility is especially delicate. The lawyer is required to avoid assisting the client, for
example, by drafting or delivering documents that the lawyer knows are fraudulent or by
suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a
client in conduct that the lawyer originally supposed was legally proper but then discovers is
criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client
in the matter. See ER 1.16(a). In some cases, withdrawal alone might be insufficient. It may be
necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion,
document, affirmation or the like. In extreme cases, a lawyer may be required to disclose
information relating to the representation to avoid being deemed to have assisted the client's
crime or fraud. See ER 4.1.
[12] Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
[13] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence,
a lawyer must not participate in a sham transaction; for example, a transaction to effectuate
criminal or fraudulent escape of tax liability. Paragraph (d) does not preclude undertaking a
criminal defense incident to a general retainer for legal services to a lawful enterprise. The last
clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or
regulation may require a course of action involving disobedience of the statute or regulation or of
the interpretation placed upon it by governmental authorities.
[14] If a lawyer comes to know or reasonably should know that a client expects assistance not
permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act
contrary to the client's instructions, the lawyer must consult with the client regarding the
limitations on the lawyer's conduct. See ER 1.4(a)(5).
ER 1.3. Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer, and take whatever lawful and ethical measures are
required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and
dedication to the interests of the client. A lawyer is not bound, however, to press for every
advantage that might be realized for a client. For example, a lawyer may have authority to
exercise professional discretion in determining the means by which a matter should be pursued.
See ER 1.2. The lawyer's duty to act with reasonable diligence does not require the use of
offensive tactics or preclude the treating of all persons involved in the legal process with
courtesy and respect.
[2] A lawyer's work load must be controlled so that each matter can be handled competently.
[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's
interests often can be adversely affected by the passage of time or the change of conditions; in
extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position
may be destroyed. Even when the client's interests are not affected in substance, however,
unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's
trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude
the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the
lawyer's client.
[4] Unless the relationship is terminated as provided in ER 1.16, a lawyer should carry through to
conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific
matter, the relationship terminates when the matter has been resolved. If a lawyer has served a
client over a substantial period in a variety of matters, the client sometimes may assume that the
lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal.
Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer,
preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after
the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a
judicial or administrative proceeding that produced a result adverse to the client and the lawyer
and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must
consult with the client about the possibility of appeal before relinquishing responsibility for the
matter. See ER 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client
depends on the scope of the representation the lawyer has agreed to provide to the client. See ER
1.2.
ER 1.4. Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in ER 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer
knows that the client expects assistance not permitted by the Rules of Professional Conduct or
other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
(c) In a criminal case, a lawyer shall promptly inform a client of all proffered plea agreements.
ER 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted or required by paragraphs (b), (c) or (d), or ER
3.3(a)(3).
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary
to prevent the client from committing a criminal act that the lawyer believes is likely to result in
death or substantial bodily harm.
(c) A lawyer may reveal the intention of the lawyer's client to commit a crime and the
information necessary to prevent the crime.
(d) A lawyer may reveal such information relating to the representation of a client to the extent
the lawyer reasonably believes necessary:
(1) to prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another and in furtherance of which the
client has used or is using the lawyer's services;
(2) to mitigate or rectify substantial injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client's commission of a crime or fraud in
furtherance of which the client has used the lawyer's services;
(3) to secure legal advice about the lawyer's compliance with these Rules;
(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer
and the client, to establish a defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to allegations in any proceeding
concerning the lawyer's representation of the client; or
(5) to comply with other law or a final order of a court or tribunal of competent jurisdiction
directing the lawyer to disclose such information.
(6) to prevent reasonably certain death or substantial bodily harm.
Comment
[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a
client during the lawyer's representation of the client. See ER 1.18 for the lawyer's duties with
respect to information provided to the lawyer by a prospective client, ER 1.9(c)(2) for the
lawyer's duty not to reveal information relating to the lawyer's prior representation of a former
client and ERs 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such
information to the disadvantage of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client's
informed consent, the lawyer must not reveal information relating to the representation. See ER
1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of
the client-lawyer relationship. The public is better protected if full and open communication by
the client is encouraged than if it is inhibited. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the lawyer even as to embarrassing or
legally damaging subject matter. The lawyer needs this information to represent the client
effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost
without exception, clients come to lawyers in order to determine their rights and what is, in the
complex of laws and regulations, deemed to be legal and correct. Based upon experience,
lawyers know that almost all clients follow the advice given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the
attorney-client privilege, the work product doctrine, and the rule of confidentiality established in
professional ethics. The attorney-client privilege and work product doctrine apply in judicial and
other proceedings in which a lawyer may be called as a witness or otherwise required to produce
evidence concerning a client. The rule of client-lawyer confidentiality also applies in such
situations where evidence is sought from the lawyer through compulsion of law. The
confidentiality rule, for example, applies not only to matters communicated in confidence by the
client but also to all information relating to the representation, whatever its source. A lawyer may
not disclose such information except as authorized or required by the Rules of Professional
Conduct or other law.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a
client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal
protected information but could reasonably lead to the discovery of such information by a third
person. A lawyer's use of a hypothetical to discuss issues relating to the representation is
permissible so long as there is no reasonable likelihood that the listener will be able to ascertain
the identity of the client or the situation involved.
Authorized Disclosure
[5] Except to the extent that the client's instructions or special circumstances limit that authority,
a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying
out the representation some situations, for example, a lawyer may be impliedly authorized to
admit a fact that cannot properly be disputed or, to make a disclosure that facilitates a
satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice,
disclose to each other information relating to a client of the firm, unless the client has instructed
that particular information be confined to specified lawyers.
[6] The requirement of maintaining confidentiality of information relating to representation

applies to government lawyers who may disagree with the policy goals that their representation
is designed to advance.
Disclosure Adverse to Client
[7] Although the public interest is usually best served by a strict rule requiring lawyers to
preserve the confidentiality of information relating to the representation of their clients, the
confidentiality rule is subject to limited exceptions. Paragraph (b) recognizes the overriding
value of life and physical integrity, and requires the lawyer to make a disclosure in order to
prevent homicide or serious bodily injury that the lawyer reasonably believes is intended by a
client. In addition, under paragraph (c), the lawyer has discretion to make a disclosure of the
client's intention to commit a crime and the information necessary to prevent it. It is very
difficult for a lawyer to "know" when such unlawful purposes will actually be carried out, for the
client may have a change of mind.
[8] Paragraph (c) permits the lawyer to reveal the intention of the lawyer's client to commit a
crime and the information necessary to prevent the crime. Paragraph (c) does not require the
lawyer to reveal the intention of a client to commit wrongful conduct, but the lawyer may not
counsel or assist a client in conduct the lawyer knows is criminal or fraudulent. See ER 1.2(d);
see also ER 1.16 with respect to the lawyer's obligation or right to withdraw from the
representation from the client in such circumstances. Where the client is an organization, the
lawyer may be in doubt whether contemplated conduct will actually be carried out by the
organization. Where necessary to guide conduct, in connection with this Rule, the lawyer may
make inquiry within the organization as indicated in ER 1.13(b).
[9] The range of situations where disclosure is permitted by paragraph (d)(1) of the Rule is both
broader and narrower than those encompassed by paragraph (c). Paragraph (c) permits disclosure
only of a client's intent to commit a future crime, but is not limited to instances where the client
seeks to use the lawyer's services in doing so. Paragraph (d)(1), on the other hand, applies to both
crimes and frauds on the part of the client, and applies to both on-going conduct as well as that
contemplated for the future. The instances in which paragraph (d)(1) would permit disclosure,
however, are limited to those where the lawyer's services are or were involved, and where the
resulting injury is to the financial interests or property of others. In addition to this Rule, a
lawyer has a duty under ER 3.3 not to use false evidence.
[10] Paragraph (d)(2) addresses the situation in which the lawyer does not learn of the client's
crime or fraud until after it has been consummated. Although the client no longer has the option
of preventing disclosure by refraining from the wrongful conduct, there will be situations in
which the loss suffered by the affected person can be rectified or mitigated. In such situations,
the lawyer may disclose information relating to the representation to the extent necessary to
enable the affected persons to mitigate reasonably certain losses or to attempt to recoup their
losses. Paragraph (d)(2) does not apply when a person who has committed a crime or fraud
thereafter employs a lawyer for representation concerning that offense.
[11] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential
legal advice about the lawyer's personal responsibility to comply with these Rules. In most
situations, disclosing information to secure such advice will be impliedly authorized for the
lawyer to carry out the representation. Even when the disclosure is not impliedly authorized,
paragraph (d)(3) permits such disclosure because of the importance of a lawyer's compliance
with the Rules of Professional Conduct.
[12] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's
conduct or other misconduct of the lawyer involving representation of the client, the lawyer may
respond to the extent the lawyer reasonably believes necessary to establish a defense. The same
is true with respect to a claim involving the conduct or representation of a former client. Such a
charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a
wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third
person, for example, a person claiming to have been defrauded by the lawyer and client acting
together. The lawyer's right to respond arises when an assertion of such complicity has been
made. Paragraph (d)(4) does not require the lawyer to await the commencement of an action or
proceeding that charges such complicity, so that the defense may be established by responding
directly to a third party who has made such an assertion. The right to defend also applies, of
course, where a proceeding has been commenced.
[13] A lawyer entitled to a fee is permitted by paragraph (d)(4) to prove the services rendered in
an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a
fiduciary relationship may not exploit it to the detriment of the fiduciary.
[14] Other law may require that a lawyer disclose information about a client. Whether such a law
supersedes ER 1.6 is a question of law beyond the scope of these Rules. When disclosure of
information relating to the representation appears to be required by other law, the lawyer must
discuss the matter with the client to the extent required by ER 1.4. If, however, the other law
supersedes this Rule and requires disclosure, paragraph (d)(5) permits the lawyer to make such
disclosures as are necessary to comply with the law.
[15] Paragraph (d)(5) also permits compliance with a court order requiring a lawyer to disclose
information relating to a client's representation. If a lawyer is called as a witness to give
testimony concerning a client or is otherwise ordered to reveal information relating to the client's
representation, however, the lawyer must, absent informed consent of the client to do otherwise
and except for permissive disclosure under paragraphs (c) or (d), assert on behalf of the client all
nonfrivolous claims that the information sought is protected against disclosure by this Rule, the
attorney-client privilege, the work product doctrine, or other applicable law. In the event of an
adverse ruling, the lawyer must consult with the client about the possibility of appeal. See ER
1.4. Unless review is sought, however, paragraph (d)(5) permits the lawyer to comply with the
court's order.
[16] In situations not covered by the mandatory disclosure requirements of paragraph (b),
paragraph (d)(6) permits discretionary disclosure when the lawyer reasonably believes disclosure
is necessary to prevent reasonably certain death or substantial bodily harm.
[17] Paragraph (d) permits disclosure only to the extent the lawyer reasonably believes the
disclosure is necessary to accomplish one of the purposes specified. Where practicable, the
lawyer should first seek to persuade the client to take suitable action to obviate the need for
disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the
lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made
in connection with a judicial proceeding, the disclosure should be made in a manner that limits
access to the information to the tribunal or other persons having a need to know it and
appropriate protective orders or other arrangements should be sought by the lawyer to the fullest
extent practicable.
[18] Paragraph (d) permits but does not require the disclosure of information relating to a client's
representation to accomplish the purposes specified in paragraphs (d)(1) through (d)(5). In
exercising the discretion conferred by this Rule, the lawyer may consider such factors as the
nature of the lawyer's relationship with the client and with those who might be injured by the
client, the lawyer's own involvement in the transaction and factors that may extenuate the
conduct in question. A lawyer's decision not to disclose as permitted by paragraph (d) does not
violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require
disclosure only if such disclosure would be permitted by this Rule. See ERs 1.2(d), 4.1(b), 8.1
and 8.3. ER 3.3, on the other hand, requires disclosure in some circumstances regardless of
whether such disclosure is permitted by this Rule. See ER 3.3(b).
Withdrawal
[19] If the lawyer's services will be used by the client in materially furthering a course of
criminal or fraudulent conduct, the lawyer must withdraw, as stated in ER 1.16(a)(1). After
withdrawal the lawyer is required to refrain from making disclosure of the client's confidences,
except as otherwise provided in ER 1.6. Neither this Rule nor ER 1.8(b) nor ER 1.16(d) prevents
the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or
disaffirm any opinion, document, affirmation, or the like.
Acting Competently to Preserve Confidentiality
[20] A lawyer must act competently to safeguard information relating to the representation of a
client against inadvertent or unauthorized disclosure by the lawyer or other persons who are
participating in the representation of the client or who are subject to the lawyer's supervision. See
ERs 1.1, 5.1 and 5.3.
[21] When transmitting a communication that includes information relating to the representation
of a client, the lawyer must take reasonable precautions to prevent the information from coming
into the hands of unintended recipients. This duty, however, does not require that the lawyer use
special security measures if the method of communication affords a reasonable expectation of
privacy. Special circumstances, however, may warrant special precautions. Factors to be
considered in determining the reasonableness of the lawyer's expectation of confidentiality
include the sensitivity of the information and the extent to which the privacy of the
communication is protected by law or by a confidentiality agreement. A client may require the
lawyer to implement special security measures not required by this Rule or may give informed
consent to the use of a means of communication that would otherwise be prohibited by this Rule.
Former Client
[22] The duty of confidentiality continues after the client-lawyer relationship has terminated. See
ER 1.9(c)(2). See ER 1.9(c)(1) for the prohibition against using such information to the
disadvantage of the former client.
ER 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client or a third person or by a
personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if each affected client gives informed consent, confirmed in
writing, and:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law; and
(3) the representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal.
Comment
General Principles
[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a
client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another
client, a former client or a third person or from the lawyer's own interests. For specific Rules
regarding certain concurrent conflicts of interest, see ER 1.8. For former client conflicts of
interest, see ER 1.9. For conflicts of interest involving prospective clients, see ER 1.18. For
definitions of "informed consent" and "confirmed in writing," see ER 1.0(e) and (b).
[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly
identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether
the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict
is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their
informed consent, confirmed in writing. The clients affected under paragraph (a) include both of
the clients referred to in paragraph (a)(1) and the one or more clients whose representation might
be materially limited under paragraph (a)(2).
[3] A conflict of interest may exist before representation is undertaken, in which event the
representation must be declined, unless the lawyer obtains the informed consent of each client
under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer
should adopt reasonable procedures, appropriate for the size and type of firm and practice, to
determine in both litigation and nonlitigation matters the persons and issues involved. See also
ER 5.1, Comment [2]. Ignorance caused by a failure to institute such procedures will not excuse
a lawyer's violation of this Rule. As to whether a client-lawyer relationship exists or, having once
been established, is continuing, see ER 1.3, Comment [4] and Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must
withdraw from the representation, unless the lawyer has obtained the informed consent of the
client under the conditions of paragraph (b). See ER 1.16. Where more than one client is
involved, whether the lawyer may continue to represent any of the clients is determined both by
the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to
represent adequately the remaining client or clients, given the lawyer's duties to the former client.
See ER 1.9. See also Comments [5] and [28].
[5] Unforeseeable developments, such as changes in corporate and other organizational

affiliations or the addition or realignment of parties in litigation, might create conflicts in the
midst of a representation, as when a company sued by the lawyer on behalf of one client is
bought by another client represented by the lawyer in an unrelated matter. In these
circumstances, the lawyer may withdraw from one of the representations in order to avoid the
conflict. The lawyer must seek court approval where necessary and take steps to minimize harm
to the clients. See ER 1.16. The lawyer must continue to protect the confidences of the client
from whose representation the lawyer has withdrawn. See ER 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to a current client prohibits undertaking representation directly adverse to that client
without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate
in one matter against a person the lawyer represents in some other matter, even when the matters
are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel
betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the
lawyer's ability to represent the client effectively. In addition, the client on whose behalf the
adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's
case less effectively out of deference to the other client, i.e., that the representation may be
materially limited by the lawyer's interest in retaining the current client. Similarly, a lawyer acts
directly adversely to a client if it will be necessary for the lawyer to cross-examine a client who
appears as a witness in a lawsuit involving another client. On the other hand, simultaneous
representation in unrelated matters of clients whose interests are only economically adverse, such
as representation of competing economic enterprises in unrelated litigation, does not ordinarily
constitute a conflict of interest and thus may not require consent of the respective clients.
[7] Although directly adverse conflicts arise most frequently in litigation, they also arise in
transactional matters. For example, if a lawyer is asked to represent a seller in negotiations with a
buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the
lawyer could not undertake the representation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation
[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant
risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action
for the client will be materially limited as a result of the lawyer's other responsibilities or
interests. For example, a lawyer asked to represent several individuals seeking to form a joint
venture is likely to be materially limited in the lawyer's ability to recommend or advocate all
possible positions that each might take because of the lawyer's duty of loyalty to the others. The
conflict in effect forecloses alternatives that would otherwise be available to the client. The mere
possibility of subsequent harm does not itself. The critical questions are the likelihood that a
difference in interests will eventuate and, if it does, whether it will materially interfere with the
lawyer's independent professional judgment in considering alternatives or foreclose courses of
action that reasonably should be pursued on behalf of the client.
Lawyer's Responsibilities to Former Clients and Other Third Persons
[9] In addition to conflicts with other current clients, a lawyer's duties of loyalty and
independence may be materially limited by responsibilities to former clients under ER 1.9 or by
the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's
service as a trustee, executor or corporate director.
Personal Interest Conflicts
[10] The lawyer's own interests should not be permitted to have an adverse effect on
representation of a client. For example, if the probity of a lawyer's own conduct in a transaction
is in serious question, it may be difficult or impossible for the lawyer to give a client detached
advice. Similarly, a lawyer may not allow related business interests to affect representation, for
example, by referring clients to an enterprise in which the lawyer has an undisclosed financial
interest. See ER 1.8 for specific Rules pertaining to a number of personal interest conflicts,
including business transactions with clients. See also ER 1.10 (personal interest conflicts under
ER 1.7 ordinarily are not imputed to other lawyers in a law firm).
[11] When lawyers representing different clients in the same matter or in substantially related
matters are closely related by blood or marriage, there may be a significant risk that client
confidences will be revealed and that the lawyer's family relationship will interfere with both
loyalty and independent professional judgment. As a result, each client is entitled to know of the
existence and implications of the relationship between the lawyers before the lawyer agrees to
undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child,
sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is
representing another party, unless each client gives informed consent. The disqualification
arising from a close family relationship is personal and ordinarily is not imputed to members of
firms with whom the lawyers are associated. See ERs 1.8(l) and 1.10.
[12] A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual
relationship predates the formation of the client-lawyer relationship. See ER 1.8(j).
Interest of Person Paying for Lawyer's Service
[13] A lawyer may be paid from a source other than the client, including a co-client, if the client
is informed of that fact and consents and the arrangement does not compromise the lawyer's duty
of loyalty or independent judgment to the client. See ER 1.8(f). If acceptance of the payment
from any other source presents a significant risk that the lawyer's representation of the client will
be materially limited by the lawyer's own interest in accommodating the person paying the
lawyer's fee or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer
must comply with the requirements of paragraph (b) before accepting the representation,
including determining whether the conflict is consentable and, if so, that the client has adequate
information about the material risks of the representation.
Prohibited Representations
[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as

indicated in paragraph, some conflicts are nonconsentable, meaning that the lawyer involved
cannot properly ask for such agreement or provide representation on the basis of the client's
consent. When the lawyer is representing more than one client, the question of consentability
must be resolved as to each client.
[15] Consentability is typically determined by considering whether the interests of the clients
will be adequately protected if the clients are permitted to give their informed consent to
representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is
prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be
able to provide competent and diligent representation. See ER 1.1 (competence) and ER 1.3
(diligence). In determining whether a multiple-client conflict is consentable, one factor to be
considered is whether the representation will be provided by a single lawyer or by different
lawyers in the same firm.
[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is
prohibited by applicable law. For example, in some states substantive law provides that the same
lawyer may not represent more than one defendant in a capital case, even with the consent of the
clients, and under federal criminal statutes certain representations by a former government
lawyer are prohibited, despite the informed consent of the former client. In addition, decisional
law in some states limits the ability of a governmental client, such as a municipality, to consent
to a conflict of interest.
[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional
interest in vigorous development of each client's position when the clients are aligned directly
against each other in the same litigation or other proceeding before a tribunal. Whether clients
are aligned directly against each other within the meaning of this paragraph requires examination
of the context of the proceeding. Although this paragraph does not preclude a lawyer's multiple
representation of adverse parties to a mediation (because mediation is not a proceeding before a
"tribunal" under ER 1.0(m)), such representation may be precluded by paragraph (b)(1).
Informed Consent
[18] Informed consent requires that each affected client be aware of the relevant circumstances
and of the material and reasonably foreseeable ways that the conflict could have adverse effects
on the interests of that client. See ER 1.0(e) (informed consent). The information required
depends on the nature of the conflict and the nature of the risks involved. When representation of
multiple clients in a single matter is undertaken, the information must include the implications of
the common representation, including possible effects on loyalty, confidentiality and the
attorney-client privilege and the advantages and risks involved. See Comments [29] and [30]
(effect of common representation on confidentiality).
[19] Under some circumstances it may be impossible to make the disclosure necessary to obtain
consent. For example, when the lawyer represents different clients in related matters and one of
the clients refuses to consent to the disclosure necessary to permit the other client to make an
informed decision, the lawyer cannot properly ask the latter to consent. In some cases the
alternative to common representation can be that each party may have to obtain separate
representation with the possibility of incurring additional costs. The cost benefits of common
representation may be considered by the affected client in determining whether common
representation is in the client's interests.
ER 1.9. Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the former client gives informed
consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter
in which a firm with which the lawyer formerly was associated had previously represented a
client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by ERs 1.6 and 1.9(c) that is
material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except
as these Rules would permit or require with respect to a client, or when the information has
become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
Comment
[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with
respect to confidentiality and conflicts of interest and thus may not represent another client
except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly
seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also
a lawyer who has prosecuted an accused person could not properly represent the accused in a
subsequent civil action against the government concerning the same transaction. Nor could a
lawyer who has represented multiple clients in a matter represent one of the clients against the
others in the same or a substantially related matter after a dispute arose among the clients, unless
all affected clients give informed consent. See Comment [9]. Current and former government
lawyers must comply with this Rule to the extent required by ER 1.11.
[2] The scope of a "matter" for purposes of this Rule may depend on the facts of a particular
situation or transaction. The lawyer's involvement in a matter can also be a question of degree.
When a lawyer has been directly involved in a specific transaction, subsequent representation of
other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer
who recurrently handled a type of problem for a former client is not precluded from later
representing another client in a wholly distinct problem of that type even though the subsequent
representation involves a position adverse to the prior client. Similar considerations can apply to
the reassignment of military lawyers between defense and prosecution functions within the same
military jurisdictions. The underlying question is whether the lawyer was so involved in the
matter that the subsequent representation can be justly regarded as a changing of sides in the
matter in question.
[3] Matters are "substantially related" for purposes of this Rule if they involve the same
transaction or legal dispute or if there otherwise is a substantial risk that confidential factual
information as would normally have been obtained in the prior representation would materially
advance the client's position in the subsequent matter. For example, a lawyer who has
represented a businessperson and learned extensive private financial information about that
person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who
has previously represented a client in securing environmental permits to build a shopping center
would be precluded from representing neighbors seeking to oppose rezoning of the property on
the basis of environmental considerations; however, the lawyer would not be precluded, on the
grounds of substantial relationship, from defending a tenant of the completed shopping center in
resisting eviction for nonpayment of rent. Information that has been disclosed to the public
ordinarily will not be disqualifying. Information acquired in a prior representation may have
been rendered obsolete by the passage of time, a circumstance that may be relevant in
determining whether two representations are substantially related. In the case of an
organizational client, general knowledge of the client's policies and practices ordinarily will not
preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a
prior representation that is relevant to the matter in question ordinarily will preclude such a
representation. A former client is not required to reveal the confidential information learned by
the lawyer in order to establish a substantial risk that the lawyer has confidential information to
use in the subsequent matter. A conclusion about the possession of such information may be
based on the nature of the services the lawyer provided the former client and information that
would in ordinary practice be learned by a lawyer providing such services.
ER 1.16. Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent
the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer shall comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering documents and property to which the client
is entitled and refunding any advance payment of a fee that has not been earned. Upon the
client's request, the lawyer shall provide the client with all of the client's documents, and all
documents reflecting work performed for the client. The lawyer may retain documents reflecting
work performed for the client to the extent permitted by other law only if retaining them would
not prejudice the client's rights.
Comment
[1] A lawyer should not accept representation in a matter unless it can be performed
competently, promptly, without improper conflict of interest and to completion. Ordinarily, a
representation in a matter is completed when the agreed-upon assistance has been
concluded. See ERs 1.2(c) and 6.5. See also ER 1.3, Comment [4].
Mandatory Withdrawal
[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that
the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other
law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a
course of conduct a client may make such a suggestion in the hope that a lawyer will not be
constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires
approval of the appointing authority. See also ER 6.2. Similarly, court approval or notice to the
court is often required by applicable law before a lawyer withdraws from pending
litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the
lawyer engage in unprofessional conduct. The court may request an explanation for the
withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute
such an explanation. The lawyer's statement that professional considerations require termination
of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of
their obligations to both clients and the court under ERs 1.6 and 3.3.
Discharge
[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to
liability for payment for the lawyer's services. Where future dispute about the withdrawal may
be anticipated, it may be advisable to prepare a written statement reciting the circumstances.
[5] Whether a client can discharge appointed counsel may depend on applicable law. A client
seeking to do so should be given a full explanation of the consequences. These consequences
may include a decision by the appointing authority that appointment of successor counsel is
unjustified, thus requiring self-representation by the client.
[6] If the client has severely diminished capacity, the client may lack the legal capacity to
discharge the lawyer, and in any event the discharge may be seriously adverse to the client's
interests. The lawyer should make special effort to help the client consider the consequences and
may take reasonably necessary protective action as provided in ER 1.14.
Optional Withdrawal
[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the
option to withdraw if it can be accomplished without material adverse effect on the client's
interests. Withdrawal is also justified if the client persists in a course of action that the lawyer
reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with
such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's
services were misused in the past even if that would materially prejudice the client. The lawyer
also may withdraw where the client insists on taking action that the lawyer considers repugnant
or with which the lawyer has a fundamental disagreement.
[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to
the representation, such as an agreement concerning fees or court costs or an agreement limiting
the objectives of the representation.
Assisting the Client Upon Withdrawal
[9] Ordinarily, the documents to which the client is entitled, at the close of the representation,
include (without limitation) pleadings, legal documents, evidence, discovery, legal research,
work product, transcripts, correspondence, drafts, and notes, but not internal practice
management memoranda. A lawyer shall not charge a client for the cost of copying any
documents unless the client already has received one copy of them.
[10] Even if the lawyer has been discharged by the client, the lawyer must take all reasonable
steps to avoid prejudice to the rights of the client.
[11] Lawyers may fulfill their ethical obligations with respect to client files by returning the file
to the client. File retention policies should be disclosed to the client, preferably in writing and at
the inception of the relationship.
2. COUNSELOR
ER 2.1. Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors, that may be relevant to the client's
situation.
Comment
Scope of Advice
[1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal
advice often involves unpleasant facts and alternatives that a client may be disinclined to
confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put
advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred
from giving candid advice by the prospect that the advice will be unpalatable to the client.
[2] Advice couched in narrowly legal terms may be of little value to a client, especially where
practical considerations, such as cost or effects on other people, are predominant. Purely
technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer
to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral
advisor as such, moral and ethical considerations impinge upon most legal questions and may
decisively influence how the law will be applied.
3. ADVOCATE
ER 3.1. Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a good faith basis in law and fact for doing so that is not frivolous, which may include a
good faith and nonfrivolous argument for an extension, modification or reversal of existing law.
A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could
result in incarceration, may nevertheless so defend the proceeding as to require that every
element of the case be established.
Comment
[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but
also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes
the limits within which an advocate may proceed. However, the law is not always clear and is
never static. Accordingly, in determining the proper scope of advocacy, account must be taken of
the law's ambiguities and potential for change.
[2] The filing of an action or defense or similar action taken for a client is not frivolous merely
because the facts have not first been fully substantiated or because the lawyer expects to develop
vital evidence only by discovery. What is required of lawyers, however, is that they inform
themselves about the facts of their clients' cases and the applicable law and determine that they
can make good faith and nonfrivolous arguments in support of their clients' positions. Such
action is not frivolous even though the lawyer believes that the client's position ultimately will
not prevail. The action is not in good faith, however, if the client desires to have the action taken
primarily for the purpose of harassing or maliciously injuring a person, and is frivolous if the
lawyer is unable either to make a nonfrivolous argument on the merits of the action taken or a
ER 3.3. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client or a witness
called by the lawyer has offered material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by ER 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer which will enable the tribunal to make an informed decision, whether or not the facts are
adverse.
Comment
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a
tribunal. See ER 1.0(m) for the definition of "tribunal." It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative
authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take
reasonable remedial measures if the lawyer comes to know that a client who is testifying in a
deposition has offered evidence that is false.
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that
undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an
adjudicative proceeding has an obligation to present the client's case with persuasive force.
Performance of that duty while maintaining confidences of the client, however, is qualified by
the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary
proceeding is not required to present an impartial exposition of the law or to vouch for the
evidence submitted in a cause; the lawyer must not mislead the tribunal by false statements of
law or fact or evidence that the lawyer knows to be false.
Representations by a Lawyer
[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is
usually not required to have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on the client's behalf, and
not assertions by the lawyer. Compare ER 3.1. However, an assertion purporting to be on the
lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may
properly be made only when the lawyer knows the assertion is true or believes it to be true on the
basis of a reasonably diligent inquiry. There are circumstances where failure to make a
disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in ER
1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in
litigation. Regarding compliance with ER 1.2(d), see Comment [10] to that Rule. See ER 8.4(b),
Comment [2].
Legal Argument
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty
toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but
must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph
(a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction
which has not been disclosed by the opposing party. The underlying concept is that legal
argument is a discussion seeking to determine the legal premises properly applicable to the case.
Offering Evidence
[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be
false, regardless of the client's wishes. This duty is premised on the lawyer's obligation as an
officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer
does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its
falsity.
[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce
false evidence, the lawyer should seek to persuade the client that the evidence should not be
offered. If the persuasion is ineffective and the lawyer continues to represent the client, the
lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be
false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness
to present the testimony that the lawyer knows is false.
[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in
criminal cases. In some jurisdictions, however, courts have required counsel to present the
accused as a witness or to give a narrative statement if the accused so desires, even if counsel
knows that the testimony or statement will be false. Counsel first must attempt to persuade the
accused to testify truthfully or not at all. If the client persists, counsel must proceed in a manner
consistent with the accused's constitutional rights. See State v. Jefferson, 126 Ariz. 341, 615 P.2d
638 (1980); Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978). The obligation of the advocate
under the Rules of Professional Conduct is subordinate to such constitutional requirements. See
also Comment [9].
[8] The prohibition against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its
presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be
inferred from the circumstances. See ER 1.0(f). Thus, although a lawyer should resolve doubts
about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore
an obvious falsehood.
[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows
to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer
reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to
discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate.
Because of the special protections historically provided criminal defendants, however, this Rule
does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer
reasonably believes but does not know that the testimony will be false. Unless the lawyer knows
the testimony will be false, the lawyer must honor the client's decision to testify. See also
Comment [7].
Remedial Measures
[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently
come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client
or another witness called by the lawyer offers testimony the lawyer knows to be false, either
during the lawyer's direct examination or in response to cross-examination by the opposing
lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the
client during a deposition, the lawyer must take reasonable remedial measures. In such situations,
the advocate's proper course is to remonstrate with the client confidentially, advise the client of
the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the
withdrawal or correction of the false statements or evidence. If that fails, the advocate must take
further remedial action. If withdrawal from the representation is not permitted or will not undo
the effect of the false evidence, the advocate must make such disclosure to the tribunal as is
reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal
information that otherwise would be protected by ER 1.6. It is for the tribunal then to determine
what should be done - making a statement about the matter to the trier of fact, ordering a mistrial
or perhaps nothing.
[11] The disclosure of a client's false testimony can result in grave consequences to the client,
including not only a sense of betrayal but also loss of the case and perhaps a prosecution for
perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting
the truth-finding process which the adversary system is designed to implement. See ER 1.2(d).
Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the
existence of false evidence, the client can simply reject the lawyer's advice to reveal the false
evidence and insist that the lawyer keep silent. Thus, the client could in effect coerce the lawyer
into being a party to fraud on the court.
Preserving Integrity of Adjudicative Process
[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent
conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or
otherwise unlawfully communicating with a witness, juror, court official or other participant in
the proceeding, unlawfully destroying or concealing documents or other evidence or failing to
disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a
lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the
lawyer knows that a person, including the lawyer's client, intends to engage, is engaging or has
engaged in criminal or fraudulent conduct related to the proceeding.
Duration of Obligation
[13] A practical time limit on the obligation to rectify false evidence or false statements of law
and fact has to be established. The conclusion of the proceeding is a reasonably definite point for
the termination of the obligation. A proceeding has concluded within the meaning of this Rule
when a final judgment in the proceeding has been affirmed on appeal or the time for review has
passed.
Ex Parte Proceedings
[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters
that a tribunal should consider in reaching a decision; the conflicting position is expected to be
presented by the opposing party. However, in an ex parte proceeding, such as an application for a
temporary restraining order, there is no balance of presentation by opposing advocates. The
object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has
an affirmative responsibility to accord the absent party just consideration. The lawyer for the
represented party has the correlative duty to make disclosures of material facts known to the
lawyer and that the lawyer reasonably believes are necessary to an informed decision.
Withdrawal
[15] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does not
require that the lawyer withdraw from the representation of a client whose interests will be or
have been adversely affected by the lawyer's disclosure. The lawyer may, however, be required
by ER 1.16(a) to seek permission of the tribunal to withdraw if the lawyer's compliance with this
Rule's duty of candor results in such an extreme deterioration of the client-lawyer relationship
that the lawyer can no longer competently represent the client. Also see ER 1.16(b) for the
circumstances in which a lawyer will be permitted to seek a tribunal's permission to withdraw. In
connection with a request for permission to withdraw that is premised on a client's misconduct, a
lawyer may reveal information relating to the representation only to the extent reasonably
necessary to comply with this Rule or as otherwise permitted by ER 1.6.
4. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
ER 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by ER 1.6.
Comment
Misrepresentation
[1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally
has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can
occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is
false. Misrepresentations can also occur by partially true but misleading statements or omissions
that are the equivalent of affirmative false statements. For dishonest conduct that does not
amount to a false statement or for misrepresentations by a lawyer other than in the course of
representing a client, see ER 8.4.
Statements of Fact
[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as
one of fact can depend on the circumstances. Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a party's intentions as to an
acceptable settlement of a claim are ordinarily in this category, and so is the existence of an
undisclosed principal except where nondisclosure of the principal would constitute fraud.
Lawyers should be mindful of their obligations under applicable law to avoid criminal and
tortious misrepresentation.
Crime or Fraud by Client
[3] Under ER 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that
the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the
principle set forth in ER 1.2(d) and addresses the situation where a client's crime or fraud takes
the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or
fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to
give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the
like. In extreme cases, substantive law may require a lawyer to disclose information relating to
the representation to avoid being deemed to have assisted the client's crime or fraud. If the
lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then
under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by ER 1.6.
If disclosure is permitted by ER 1.6, then such disclosure is required under this Rule, but only to
the extent necessary to avoid assisting a client crime or fraud.
ER 4.3. Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall
not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer
shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal
advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows
or reasonably should know that the interests of such a person are or have a reasonable possibility
of being in conflict with the interests of the client.
Comment
[1] An unrepresented person, particularly one not experienced in dealing with legal matters,
might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law
even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will
typically need to identify the lawyer's client and, where necessary, explain that the client has
interests opposed to those of the unrepresented person. For misunderstandings that sometimes
arise when a lawyer for an organization deals with an unrepresented constituent, see ER 1.13(d).
[2] The Rule distinguishes between situations involving unrepresented persons whose interests
may be adverse to those of the lawyer's client and those in which the person's interests are not in
conflict with the client's. In the former situation, the possibility that the lawyer will compromise
the unrepresented person's interests is so great that the Rule prohibits the giving of any advice,
apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may
depend on the experience and sophistication of the unrepresented person, as well as the setting in
which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating
the terms of a transaction or settling a dispute with an unrepresented person. So long as the
lawyer has explained that the lawyer represents an adverse party and is not representing the
person, the lawyer may inform the person of the terms on which the lawyer's client will enter
into an agreement or settle a matter, prepare documents that require the person's signature and
explain the lawyer's own view of the meaning of the document or the lawyer's view of the
underlying legal obligations.
ER 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve
results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Code of
Judicial Conduct or other law.
(g) file a notice of change of judge under Rule 10.2, Arizona Rules of Criminal Procedure, for an
improper purpose, such as obtaining a trial delay or other circumstances enumerated in Rule
10.2(b).
Comment
COMMENT [AMENDED EFFECTIVE DEC. 1, 2002]
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses
involving fraud and the offense of willful failure to file an income tax return. However, some
kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of
offenses involving "moral turpitude." That concept can be construed to include offenses
concerning some matters of personal morality, such as adultery and comparable offenses, that
have no specific connection to fitness for the practice of law. Although a lawyer is personally
answerable to the entire criminal law, a lawyer should be professionally answerable only for
offenses that indicate lack of those characteristics relevant to law practice. Offenses involving
violence, dishonesty, or breach of trust, or serious interference with the administration of justice
are in that category. A pattern of repeated offenses, even one of minor significance when
considered separately, can indicate indifference to legal obligation.
A lawyer who in the course of representing a client, knowingly manifests by words or conduct,
bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation
or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the
administration of justice. This does not preclude legitimate advocacy when race, sex, religion,
national original, disability, age, sexual orientation or socioeconomic status, or other similar
factors, are issues in the proceeding. A trial judge's finding that peremptory challenges were
exercised on a discriminatory basis does not alone establish a violation of this rule.
A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that
no valid obligation exists. The provisions of ER 1.2(d) concerning a good faith challenge to the
validity, scope, meaning or application of the law apply to challenges of legal regulation of the
practice of law.
Lawyers holding public office assume legal responsibilities going beyond those of other citizens.
A lawyer's abuse of public office can suggest an inability to fulfill the professional role of
attorney. The same is true of abuse of positions of private trust such as trustee, executor,
administrator, guardian, agent and officer, director or manager of a corporation or other
organization.
COURT COMMENT TO EXPERIMENTAL 2001 AMENDMENT TO ER 8.4(G)
Arizona is one of only a few states that allow by judicial rules a party to notice a change of judge
without cause. The purpose of the rule is to allow a party to ask for a new judge when a party
may perceive a bias that does not rise to disqualification under the rules allowing a challenge for
actual bias or prejudice. Historically, the reasons for exercising a challenge were not inquired
into. Just as peremptory challenges of jurors lead to abuses of race or gender based
disqualification, however, the peremptory notice of judge has been abused by some to obtain trial
delay.
The rule was amended in 2001 on an experimental basis to make clear that filing a notice of
change of judge for an improper purpose, such as trial delay or other circumstances enumerated
in Rule 10.2(b), is unprofessional conduct. The Court adopted this amendment and the
amendments to Rule 10.2. Rules of Criminal Procedure, in an effort to address abuse of Rule
10.2. If such abuse is not substantially reduced as a result of the amendments at the conclusion of
the one-year experiment on June 30, 2002, the Court at that time will abolish the peremptory
change of judge in most criminal cases as recommended in a proposal by the Arizona Judicial
Council. See R-00-0025.
COMMENT [EFFECTIVE DEC. 1, 2003]
[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so or do so through the acts of
another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a),
however, does not prohibit a lawyer from advising a client of action the client is lawfully entitled
to take.
[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses
are in that category. A pattern of repeated offenses, even ones of minor significance when
[3] A lawyer who in the course of representing a client, knowingly manifests by words or
conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual
orientation, gender identity or socioeconomic status, violates paragraph (d) when such actions
are prejudicial to the administration of justice. This does not preclude legitimate advocacy when
race, sex, religion, national origin, disability, age, sexual orientation, gender identity or
socioeconomic status, or other similar factors, are issues in the proceeding. A trial judge's finding
that peremptory challenges were exercised on a discriminatory basis does not alone establish a
violation of this Rule.
[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief
that no valid obligation exists. The provisions of ER 1.2(d) concerning a good faith challenge to
the validity, scope, meaning or application of the law apply to challenges of legal regulation of
the practice of law.
[…]
8/8/2019 The Asylum Seeker | The New Yorker
Annals of Immigration August 1, 2011 Issue
The Asylum Seeker

For a chance at a better life, it helps to make your bad story worse.
By Suketu Mehta July 25, 2011
met Caroline one Friday evening in the cafeteria of the upscale Manhattan
I supermarket where she had just started working. She was a twenty-something
African immigrant without papers; we’d recently been introduced by a mutual
acquaintance. “Hi, Carol—” I stopped myself, seeing the look on her face.
Caroline was living three lives: as Cecile Diop, a woman with papers who had been in
the country for ten years; as Caroline the African rape and torture victim; and as
herself, a middle-class young woman who wanted to go to college and make a life in
America. It was a continuous exercise in willed schizophrenia. (Names and other
identifying details have been changed throughout.)
I tried again: “Hi, Cecile!”
Cecile Diop, a fellow-expat from central Africa, had lent Caroline her Social Security
number so that she could get the job. Caroline had showed the store manager Cecile’s
I.D., but he couldn’t tell the difference between the two women. She was expecting her
rst paycheck, which she would give to Cecile to cash. “Some of them take half,”
Caroline said, about such arrangements between immigrants.
“I cannot get red,” she explained. “The owner of the name will have trouble.”
Caroline had big eyes, an easy smile, and short hair dyed red-blond. She was dressed in
a denim jacket and jeans and a tight sweater. She walked me around the two oors of
the giant supermarket, pointing out all the places where samples were given out. She
urged me to take some dried fruit. I pierced a dried-banana slice with a toothpick; it
was nearly inedible. Caroline didn’t believe in all this organic and natural stuff. “People
in the United States are a little . . .” She pointed a nger at her head and turned it in
circles.
https://www.newyorker.com/magazine/2011/08/01/the-asylum-seeker 1/16
At the supermarket, she made ten dollars an hour. After Social Security and medical
deductions—which were of no value to Caroline, only to Cecile—she didn’t have
enough money to eat at the store, even with the twenty-per-cent employee discount. “I
can never eat the hot food,” she said. It cost $7.99 a pound. So, surrounded by food of
every description from every country, Caroline brought lunch from home.
As we left the store, Caroline, as an employee, had to submit her bag to a guard for an
inspection. “Do you want me to take things out?” she asked. “I can see the bottom,” the
guard responded, and waved her on. Another guard, a white woman, trying to soften
the humiliation of the inspection, made small talk: “I’ve been looking all over for that
kind of handbag for my daughter. Where did you get it? Herald Square?”
Caroline had come to the United States the previous summer for a family wedding.
When her parents left, she stayed, even after her tourist visa expired.
Now she was working on a story—a four-page document, in French, that she would
give to a lawyer she had hired, and to immigration officials—saying that she was beaten
and raped more than once by government soldiers in her country. “I have never been
raped,” she admitted, giggling with embarrassment.
VIDEO FROM THE N YORKER
How to Write a New Yorker Cartoon Caption: The Try Guys Edition
A clerk in Caroline’s lawyer’s office had suggested, “Why don’t you say you were
circumcised?” Caroline told her that female circumcision wasn’t practiced in her
country. So she had learned how to play a rape victim. She had pangs about lying:
“Telling that story makes me sad, because I know it’s true for someone.”
A friend of mine, a former lawyer who has represented people in asylum cases, had
recently told me about the difficulty of making a persuasive asylum plea these days.
“The immigration people know the stories. There’s one for each country. There’s the
Colombian rape story—they all say they were raped by the . There’s the Rwandan
rape story, the Tibetan refugee story. The details for each are the same.”
It is not enough for asylum applicants to say that they were threatened, or even beaten.
They have to furnish horror stories. It’s not enough to say that they were raped. The
officials require details. Inevitably, these atrocity stories are in ated, as new applicants
for asylum get more inventive about what was done to them, competing with the lore
that has already been established, with applicants whose stories, both real and fake, are
so much more dramatic, whose plight is so much more perilous, than theirs.
e went to a Brazilian restaurant nearby for a drink and supper. Caroline ordered
W a coconut cocktail and a salad with chicken.
“I got my paycheck. Want to see it?” She pulled it out of her bag. She’d worked 64.42
hours in the past couple of weeks, at ten dollars an hour. After deductions, she was left
with a total of $521.69 to give to “the owner of the name.” She was hoping that the real
Cecile wouldn’t take too big a cut; maybe she wouldn’t take any cut at all, even though
she was only an acquaintance.
I asked Caroline how, with a thousand dollars a month, she was going to pay the rent,
four hundred and fty dollars a month, for her one-bedroom apartment in the Bronx;
cover food and transportation; and pay her lawyer, who was charging three thousand
dollars. It turned out that Caroline’s family had to put money in a credit-card account
she has back in Africa. And she had been through worse times. For a week, when she
was living in a friend’s apartment, she had no money for food. She found some rice in
the kitchen, and ate it with the only available condiment—sugar. When December
came, she had no winter clothes—only a thin jacket. “We don’t have winter,” she said of
the climate in central Africa. One of the teachers at the New York Public Library,
where she went for English classes, saw her shivering, and gave her one of her old
coats. “It’s funny,” Caroline said, and laughed, thinking about those times.
Caroline’s parents are supporters of a controversial opposition leader. Government

soldiers ransacked their house in the city twice. Caroline remembered the soldiers as
being very stupid, and from the countryside. Although they didn’t rape her or her
sisters, once they broke a dish over one sister’s head, and they beat her brother. They
were looking for her father. One of her sisters, as she was running from the soldiers, felt
a sharp stab in her foot; she had stepped on a nail. She kept running, with the nail
stuck in her foot.
One night, Caroline was walking home on a deserted street when a group of ve
soldiers commanded her to stop. They searched her bag, and found some condoms.
“You carry condoms?” they asked. They emptied the contents on the ground, and stole
everything she had—her phone, her watch, her earrings, her money. But they let her go.
She had reason to be fearful. Since 1998, millions have died and millions more have
been displaced as a consequence of a tangle of regional wars that have roiled central
Africa. And in many regions rape has become common. Caroline spoke about why
there is so much violence there: “The ministers who are arresting people today—
yesterday, you were arresting them.” Now Caroline wants to live in America, where it’s
easier to make money, and easier to live as a woman. She recently had won a prize in a
drawing at the supermarket: the right to make up her own schedule for the following
week. “I can work more hours!” she told me excitedly.
ne day, I met Caroline at the entrance to a public hospital, a place where people
O aren’t denied treatment because they can’t pay. There was a large red banner
celebrating “uninsured week.” It seemed a relatively orderly madhouse.
To buttress her asylum claim, Caroline needed a letter from the hospital stating that
she had been treated for torture. For months, she had been attending group and
individual psychotherapy sessions, as part of a program for survivors of torture. Today,
she was here for a gynecological exam, which is required for rape victims. She showed
me her appointment slip, which read “Victim of torture.”
Caroline had to come twice a week, for the therapy sessions, and sometimes more often
—this week, it was the gynecological exam and an H.I.V. test. But in the elevator she
said she couldn’t remember the oor where the center for torture survivors was. “When
I was a child, I fell and hurt my head,” she said. “So I can’t remember many things. I
show the scar and say it happened because of torture.”
In the group-therapy sessions, Caroline didn’t volunteer much. Sometimes the stories
she heard were hard for her to listen to. She also has individual sessions with a
psychiatrist, who prescribes antidepressants: Zoloft, Wellbutrin, trazodone. “She gives
me medicine, to make me sleep, to make me calm. I throw it away.” How did she know
what to tell the doctor? She laughed when I asked her this. She read the symptoms
described on the drug inserts—dizziness, sleeping too much or too little, and so forth
—and repeated them to the psychiatrist.
She had had the H.I.V*.* test the previous day. Doctors asked her about the last time
she’d had sex, and who it was with. “I don’t know his name!” Caroline had cried. “I was
raped!”
She recalled, “There was such compassion on their faces.”
She came out of the gynecological examination holding a wad of paper: “They gave me
tissue.” She’d started crying when the doctor told her, “Remove your panties.” Seeing
her break down, the doctor was almost crying, too. Caroline said, “I don’t feel good
about it—lying to people.” The physical exam, though, had been postponed.
Caroline knew people who really had been raped; she had heard their stories. But she
believed that she was far from being the only asylum seeker at the torture survivors’
center who was lying or exaggerating. “Everybody’s story is a mixture of what is true
and what is not,” she said. Caroline had been tutored in how to act like a rape victim by
her landlady in the Bronx, who hadn’t been raped, either, but had successfully applied
for asylum. And Caroline was also getting help in crafting her narrative from a
Rwandan man I’ll call Laurent, who was a sort of asylum-story shaper among central
Africans.
ome months later, on a warm summer evening, I met Laurent at the Senegalese
S restaurant Patisserie des Ambassades. We waited at an outside table for Caroline to
join us.
Laurent was handsome and well mannered, and looked younger than his forty-odd
years. He was a man of enormous self-con dence. His mother was Tutsi and his father
Hutu; he grew up in Burundi and went to university there, before moving to Rwanda
and then to France, where he worked as the manager of an arts troupe. He had relatives
who were murdered, and relatives who murdered.
He talked about what had happened to his country. He knew of a man, he said, who
had killed his best friend. Afterward, the man was haunted by the thought that he
hadn’t buried the body. Since he couldn’t carry the whole body, he cut off his friend’s
head and set off toward the cemetery with it. On the way, he was arrested and thrown
into prison, with his friend’s head for company. “He doesn’t take showers,” Laurent
said.
Laurent had come to America when he was in his thirties. As soon as he arrived at
J.F.K. Airport, he started guring out the ways of America. The rst immigration agent
he saw asked him where he was going to stay in America. Laurent shrugged. He said
he had a phone number for a cousin, and was going to call him when he got out of the
airport. The agent asked him to wait in a holding room for further questioning. He sat
there with a ragged horde of people from all over the world. He thought that he would
be sent back. Then a black immigration agent noticed him, and said, “Hey, brother, go
to that agent over there.” The second agent stamped his passport and let him in,
showing Laurent that it isn’t just in Africa that tribe is important.
Now he taught French in public schools. He found the standards very low. “A C
student from Rwanda will automatically be an A student here,” he said.
When Caroline arrived, she kissed Laurent on both cheeks.
“I will never make appointments with Africans,” he said. “They keep saying, ‘Oh, this is
African time.’ ” He gestured toward his watch. “Three hours late!”
Caroline had just moved into a new apartment, in Rockaway, and she’d had to go to her
apartment from her job, before coming back here. It took her more than an hour each
way, by bus and subway, to get to work. What did she do on the commute? Read?
Listen to music?
She shut her eyes, and her head drooped. “Sleep.”
“You need to be closer to work,” Laurent said. “Once you become Caroline, you can
move.”
But right now she was looking fresh; the evening was beginning to cool, and she was
hungry. She ordered a large platter of tilapia and plantains.
Talking about her new apartment, she said, “I have one big problem: cockroaches. I
have some in my bag sometime.” She held up her purse. “But they are small.”
She’d been working hard. The other day, she’d stood for sixteen hours straight, working
a double shift. She’d been sneezing, and felt cramps. But she was scared of getting sick.
“If something happens to me at work—I’m not me, I’m Cecile. Can you imagine if they
call an ambulance?”
Laurent knew several other people who lived or worked under different names. A
Kenyan, for instance, had invited Laurent home for dinner, with the people he was
staying with. When Laurent called him by his name, he felt his leg being kicked hard
under the table. “I know many Africans who come here and don’t have any dreams,”
Laurent said. “They stay in jobs—grocery stores, delivery, selling illegal DVDs, street
venders. For girls, it’s hair braiding.”
Advising Caroline about her asylum narrative, Laurent said, “When you make up a
story, make it yours. No one knows your story better than you.” He has helped three
people with their stories; two of them were successful in getting asylum.
“To tell you the truth, even my story was made up,” he said. He didn’t apply for asylum
as a Rwandan refugee, because “I didn’t want to compromise my family in Rwanda.” So
his story was about Burundi. “I know the politics of Burundi, and so I could make it
up,” he said. At the asylum hearing, the officer asked him speci c questions about the
geography of his narrative: “Where was the police station? Where was the swimming
pool?” The officer kept referring to geographical data that she had obtained from the
C.I.A., but Laurent’s information was more recent, and he told her so. She checked,
and found that it was true.
His story was that his house in Burundi was attacked, and he ran away, and, when he
went back to look, the house had been bombed. The officer checked the news from the
day he was referring to, and, indeed, a house in that part of that city had been bombed.
Laurent had read the newspaper report as he was constructing his story: “I made that
story mine.”
The officer asked him what he would do if she let him stay in the country, and he told
her that he was planning to go back to school. This pleased her; evidently, most of the
applicants she saw talked about getting jobs. But Laurent knows how to play the
African intellectual. He was granted asylum.
“When I got the news that I got the immigration, I was shaking,” he said. “I wanted to
call my cousin, but I even forgot his number.” He had crossed a line between illegal and
legal, between being deported and freedom. “Now it’s up to me,” he added. “Before, it
was up to them.”
ne day, Caroline’s lawyer received a letter, saying that a hearing on her

O application had been scheduled at the asylum office. I offered to go with her, and,
at her request, I enlisted a French friend, Marie, to act as her translator. Caroline felt
more comfortable making her case in French.
The asylum office was outside the city, in an office block that could have been in any
suburb in the country. We took the elevator up to the office and signed in at security.
Above the security guard’s monitor was a printout that read:
I can only please one person per

day
Today is not your day
Tomorrow is not looking good

either.
The guard took out Caroline’s camera, which was in a brown bag inside her purse. “You
can’t bring this in here.”
“Can we check it?”
“We don’t check nothing. You got to nd a hiding place for it. Like behind a door.”
“What if we take out the battery?”
“You can break it in half, and you still can’t bring it in here. You got to nd a hiding
place.”
I hid the camera behind a door, hoping that it would still be there when we came out.
The waiting room was lled with black-and-white posters of African and Latin-
American refugees. The signs were a forest of “no”s: No Cell Phones, No Eating, No
Drinking, No Cameras, No Chewing Gum. I tried the water fountain; it emitted hot,
undrinkable water, like a soup.
Caroline reviewed the dates in her testimony, like a student preparing for the biggest
exam of her life. She ubbed one of the dates. Her lawyer hadn’t shown up, and she was
anxious. “I don’t know why I go through it,” she said. “I don’t know why I didn’t just go
back. They are racists and xenophobes here.”
From other asylum applicants, Caroline had been told to beware of an immigration
officer, a man I’ll call Novick, who said no to everybody. She hoped she didn’t get
Novick.
A paralegal from Caroline’s lawyer’s office appeared, breathless, and apologized for
being late. Her name was Mrs. Patel, and she waited along with us. Occasionally, the
door to the officers’ section opened; the officers who appeared were white men and an
Asian woman. When they called out a name, two or three people from the waiting area
disappeared inside with them.
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Finally, Caroline’s name was called out, by a rumpled, middle-aged white officer who
stood holding the door open. It was Novick.
We walked down a corridor, past a series of generic, glassed-in offices—one of which

had a cover from the Cuban Communist organ Granma pasted on its window—into
Novick’s office. It was bare yet dishevelled, and contained a few les and a pocket atlas
lying on the oor. There were no family pictures, and the window blinds were drawn,
though through them I could make out a ock of pigeons roosting in a tree. We took
our seats, and the interview began.
Novick made a phone call, asking for a government translator, who could monitor
Marie’s translation, via speakerphone, to make sure that it was accurate.
He turned to Caroline. “Why are you seeking asylum?”
Caroline addressed her responses to Marie: “I am afraid to go back and endure what I
have already endured in my country.”
“How were you mistreated?”

“I was arrested, beaten, and raped.”
“Tell me the details. Why it happened, when.”
“The President of my country was about to be overthrown. My father worked with the
previous government. They arrested my father, and tortured everybody at home.”
“Please provide the details,” Novick said. “How were they tortured?”
“They attacked my brother,” Caroline said, a tear welling up.
“I’m sorry,” Novick said. “How?”
“They shot my brother in the leg.” The tears were owing now, and she asked Novick if
he had any tissues. She searched in her handbag. “I used to have it here but . . .” She
dug out some tissues she had taken from the bathroom.
“They asked for my father,” she continued, wiping her eyes. “My mother and father
walked in the door as my brother was being attacked.” She went into the logistics of
the attack. “They undressed me and one of my sisters and raped us.”
“What about the other sister?” Novick asked.
“They were beating her but not raping her.”
“O.K., so what else happened?” Novick was reading the written statement she had
submitted earlier, and taking notes.
After the rape, she said, she had to have an abortion.
“Is there any documentary evidence of this abortion?”
“Of course not!”
“Why ‘of course’?”
“I don’t want any documentary evidence of this abortion because it happened as a result
of a rape.”
He wanted more details of the rape. Caroline provided them. She also recounted how
soldiers arrested her and some other students, and took them to a detention center.
“They took me by the head and they put my head against their penis. They spat on us.”
As she was saying this, her eyes were almost closed. “They wanted us to do things.”
“What things?” He wanted speci cs. “You were beaten how many times,
approximately?”
She said she had had to go to the hospital; he asked her for the evidence. She said it
was back in Africa.
“How long will it take for you to get it?”
“I don’t know . . . because of all the riots and the pillages.” She continued with her story.
“They arrested us during one of our meetings and took us to a prison. They beat us up
and did horrible things to us.”
“Please describe.”
“They forced us to do fellatio and they put objects in our genitals. They stamped on us,
they trampled us for three days. I suffered many infections because of the rape. My
kidneys got infected.”
“Did you go to the hospital? Do you have evidence?”
“There is evidence, but I don’t have it with me.”
Novick was almost nished. “Anything else you want to say?”
“People are not allowed to express their opinion if they’re against power,” Caroline said
of her country.
“What will happen if you return?”
“I might be killed on the road, because I am a member of the opposition.”
“Why did you stay all these years?”
“I didn’t have the opportunity to leave.”

“Why not?”
“I hadn’t been invited before. The threats and arrests had intensi ed.”
On the way out, I noticed a stack of brown les outside another officer’s door. On one
of them was a sheet of paper that said, in large black letters:
CONGRESSIONAL
INTEREST!
CONGRESSIONAL
INTEREST!
CONGRESSIONAL
INTEREST!
CONGRESSIONAL
INTEREST!
CONGRESSIONAL
INTEREST!
The camera was where I had left it.
We took the bus back to the city with the paralegal, Mrs. Patel. Caroline asked why her
lawyer hadn’t been there for the hearing. “Because it takes up too much time,” Mrs.
Patel said. “He can’t wait till two in the afternoon.”
Caroline closed her eyes, exhausted.
ast year, about fty thousand people applied for asylum here. Of successful asylum
L applicants, thirty-two per cent were Chinese. Less than ve per cent came from
central Africa. In all, 21,113 applicants were given asylum: 11,244 by asylum officers
like Novick and 9,869 by immigration judges.
The current political climate in the country is not favorable for asylum seekers. The
number of people granted asylum has been decreasing—last year saw almost a
thousand fewer successful applications than the previous year. Although there are no
statistics on the number of applications that are fraudulent, immigration attorneys have
a sense of the prevalence of such fraud, and the reasons that petitioners perpetrate it.
Jason Dzubow is a lawyer who specializes in asylum cases in Washington, D.C., and
runs a blog called The Asylumist. “Large parts of their stories are true, and then some
people augment cases with things that are not true,” he says. Dzubow represents a
number of university-educated Ethiopians who were arrested by the dictatorship in
their home country, as a signi cant percentage of their classmates had been. If they go
to the asylum coaches, or “case builders,” in the immigrant community, they will likely
be urged to embellish their stories with tales of torture and beatings, because it is
thought that being arrested alone will not make a strong enough case for asylum.
The majority of asylum seekers in America, immigration experts have told me, really
would be at serious risk if they were returned to their countries. As for Caroline, there
is no doubt that her family was brutally assaulted because of her parents’ political
affiliations. She does indeed have a “well-founded fear of persecution” if she returns.
But she felt that she had to augment the story with a rape because the immigration
system can better comprehend such a story; Novick kept asking her for more details of
the rape because a rape story was what was expected from a female petitioner from her
country. The system demanded a certain kind of narrative if she was to be allowed to
stay here, and she furnished it. She had read the expected symptoms of persecution, and
repeated them upon command.
couple of weeks later, Caroline was told to return to the asylum office, to hear the
A decision on her case. She asked Marie and me to go with her. Which way would
her life go? Africa or America? Novick had decided.
This time, there was only one other applicant in the office, a woman in a shalwar
kameez. “You have been approved,” the clerk told Caroline, handing her a letter.
“Congratulations.”
But, the clerk warned her, the approval was conditional on a name check. The agency
had to make sure that hers was the name on the application. Luckily, the name on the
application was the one she was born with, and not any of those which she picked up
later.
Caroline was crying, waving her hands in front of her face to cool it.
The female guard at the elevator noticed Caroline’s tears, and smiled: “Uh-oh, someone
got granted!”
Downstairs, we read the letter. It was a sunny day, and Caroline jumped up and down,
clutching my arm and crying, “I am legal! I can be Caroline!”
She noticed that we were standing in a huge parking lot. “There are a lot of cars in this
country.”
few months later, Caroline moved to a town in the Midwest, because she had a
A friend who had an apartment there, and she could live cheaply until she found a
job. She now works for a company where her French-language skills come in handy.
She is married to a white American man. She owns a car, and goes to church every
Sunday. In her new life, she pays her taxes and has never taken a dime from the
government. To many, she is a model American.
I keep thinking of the day Caroline moved from shadow to light. After she got the
news that she’d been granted asylum, we celebrated at an anonymous-looking bar in an
anonymous-looking office building near the asylum office. It was eleven o’clock in the
morning, and we ordered a bottle of champagne. When the tab came, Caroline, for the
rst time since I’d known her, got it. She gave the waitress a credit card. The waitress
came back and said, “It’s not approved.” I offered mine, but Caroline dug into her purse
and brought out cash.
The champagne owed fast. When we were nearly at the end of the bottle, Marie told
us that in France it’s said that “whoever drinks the last drop will get married this year.”
I took the bottle and shook the last drop into Caroline’s glass. “Where do you see
yourself in ten years?” I asked her.
“I want to be une femme accomplie,” Caroline said. An accomplished woman. “I can

study. I can be an actress. I can go under my own name. Cecile?” She looked around the
empty bar, feigning puzzlement. “Who is Cecile?”
“C’est ni,” Marie said.
“Ça commence,” Caroline replied. ♦

August 1,
This article appears in the print edition of the August 1, 2011
2011, issue.
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RIGHTS TALK AND COLLECTIVE ACTIO N
RIGHTS TALK AND COLLECTIVE ACTION
!50
,5,
way a focus on winning new rights leads to passive reliance on

the state to grant those rights rather than a broad struggle for
justice, among other concerns. 1 The Workplace Project's experi
•••
ence challenges these images, painting a much more complex What does it mean to teach about rights, especially in a way that
picture of how talk about rights interacts with organizing. supports collective action?2 In a damp church basement, in a· le
The Workplace Project sought to teach about rights in a way gal services office's conference room, in a public school class
that supported collective action, and il:s vision was largely real room as the janitors sweep the halls in the evening, a typical pre
ized. The Project began providing information about labor laws sentation about the law goes something like this. An expert
because workers urgently wanted i�, because it was hard to find stands up and says, These are your rights. People in the audience
elsewhere, and because knowledge about rights was a critical raise their hands and say, This is my problem. How can Ifix my prob·
component of the effort to improve working conditions. But /em? The expert says, This is what you need to do to vindicate your
over time, talk about rights came to serve broader purposes rights; I and others like me can help you.
within the organization. For many members, learning about In some situations, this approach may give people all the in
their rights was a first step toward feeling that they had the formation they need. But for immigrant workers seeking to im
capacity to act to challenge the conditions under which they prove their working conditions, the standard presentation poses
worked. Beyond this individual transformation, talk about problems. Despite its underlying message about reliance on ex
rights became a kind of "story" that drew the group's members perts, community education about rights is often described as a
together, motivated them to organize, and explained their strug tool for "empowerment." Its vision of empowerment is an indi
gle to the public. And discussions of rights became a spring, vidual one. In hearing about their rights on the job, participants
board that launched a vision of justice that went far beyond the may be "empowered" to know and advocate for their rights, to
law's provisions. In these internal ways, rights talk-a phrase "stand up for themselves." Yet violations of the law in the under
that encompasses all the ways people develop their identities in J , ground economy are structural. They are not anomalous prob
relation to rights and use rights to frame their claims on oth } Jems; instead they define how business is done. In this context,
ers-was a strong complement to organizing. Once the group / individual action to resolve individual problems is unlikely to
turned to action to enforce or win rights, more tensions with or-} f�et far. Individual legal action may result in temporary relief (al·
ganizing came to the fore. These tensions were particularly evi�.J ,,,'(hough it just as likely may not), but it will do little or nothing
"'f'
dent when rights talk translated into individual legal representa,,:: �)(\-CO keep the problem from happening again within weeks or
tion, as with the legal clinic, and when the organization sought;}' ;/months.
t>:.
1
to establish rights through the legislature, as with the Unpaid(

,,, A second problem is the more subtle suggestion inherent in
Wages Prohibition Act. �}uch a presentation that the outer limit of what those in atten
.11
,! ,�. ,
might face criminal prosecution and deportation.” 364 F.3d at 1064. Because disclosure of
related matters indirectly touching on immigration status could form part of the predicate for
detention or criminal prosecution, compelled disclosure could violate that plaintiff’s rights under
the Fifth Amendment to the U.S. Constitution. Zuniga v. Morris Material Handling, Inc., 2011
WL 663136, *5-6 (N.D. Ill 2011); Andrade v. Madra’s Café Corp., 2005 WL 2430195 (E.D.
Mich. 2005)(order of the Magistrate).
VI. RETALIATION AGAINST UNDOCUMENTED CLAIMANTS
A. Adverse Employment Actions in Retaliation Against a Title VII Claimant
The perceived risk to undocumented claimants seeking to enforce their employment

rights is clear and pervasive – even if the actual risk is difficult to assess. Undocumented
complainants making discrimination claims have a heightened vulnerability, which formed the
basis for the Rivera v. NIBCO, Inc., court’s decision to disallow claimants’ inquiry regarding
immigration status in the discovery phase of trial. 364 F.3d 1057, 1064-64 (9th Cir. 2004). This
context of heightened vulnerability, on the one hand, makes undocumented workers especially
susceptible to subtle retaliation while, on the other hand, it often makes the employer’s
retaliatory motive particularly difficult to determine or prove. Yet the employee does have the
burden to demonstrate that an employer’s actions and motives were retaliatory and in order to
show retaliation, the employee must prove that the employer’s action would “dissuade a
reasonable worker from making or supporting a charge of discrimination.” Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).
Moreover, it is often uncertain what constitutes retaliation in an employment context

where the employer is not legally permitted to employ the worker and the worker is not legally
permitted to work. An employer who terminates an undocumented employee who has lodged a
discrimination complaint can readily claim that the employer was merely trying to comply with
the IRCA prohibition against employing an unauthorized worker. An instructive example is
provided by two rulings in E.E.O.C. v. The Restaurant Co., 448 F.Supp.2d 1085 (D. Minn.
2006)(denying discovery of immigration status) and 490 F.Supp.2d 1039, 1051 (D. Minn.
2007)(denying employer’s motion for summary judgement). In that case the defendant employer
suspended an employee who had previously complained of sexual harassment by a manager,
until the employee could prove her work-authorized immigration status. In the first ruling, the
court determined that the employer’s claim that it acted out of a good faith desire to comply with
the immigration laws could indeed satisfy the employer’s burden of offering a legitimate non-
discriminatory reason for its action (thereby shifting the burden back to the employee to show
the proffered reason was pretextual). 448 F.Supp. at 1087-88.81 In the court’s second ruling it
denied the employer’s motion for summary judgment ruling that there was a genuine fact dispute
about whether the employer knew about the plaintiff’s unauthorized immigration status before
she made her complaint.
81
Interestingly, the case was only before the court at that point on a dispute about whether the employer could
conduct discovery into the plaintiff’s immigration status. The court prohibited that discovery reasoning the at that
stage in the litigation all that was in issue in the retaliation claim was whether the employer had a good faith belief
that the plaintiff was undocumented – not whether the plaintiff actually was undocumented. 448 F.Supp. at 1088
Page 27 Employment Litigation by Immigrant Employees

Certainly, plaintiffs do not disagree that defendant has an obligation to verify that
its employees have proper work authorization documents. However, plaintiffs
argue that an employer cannot turn a blind eye to its employee's work
authorization status, and then later use it as a pretext to terminate an employee
when she complains about sexual harassment….If a jury finds that defendant
knew about Torres's immigration status prior to the harassment investigation, it
could reasonably infer that defendant's proffered reason for the adverse
employment actions was pretextual.82
B. Adverse Employment Actions in Retaliation Against an FLSA Claimant
While the law has become quite clear that the Hoffman Plastic rationale does not in any
way limit the rights of undocumented FLSA claimants to seek unpaid overtime and minimum
wages (see Sec. IV.C. above), Hoffman may limit their remedies for employer retaliation
prohibited under 29 U.S.C. §215(a)(3) of the FLSA. Some courts, citing Hoffman, have held that
undocumented workers may not obtain reinstatement and back pay as remedy for unlawful
FLSA retaliation, though they may still seek compensatory and punitive damages. E.g., Renteria
v. Italia Foods, Inc., 02 C 485, 2003 WL 21995190, *6 (N.D. Ill. Aug. 21, 2003); Singh v. Jutla
& C.D. & R's Oil, Inc., 214 F.Supp.2d 1056, 1061–61 (N.D.Cal.2002). In declining to allow
front pay or back pay as remedies for an FLSA retaliatory discharge claim brought by
undocumented claimants, the Renteria court stated that it was following Hoffman Plastic and that
“awarding back pay [and front pay] to undocumented aliens contravenes the policies embodied”
in the Hoffman Plastic decision even outside of the context of an NLRA claim. The Renteria
court distinguished between these remedies and other remedies that it did allow – namely
compensatory damages which the court said did “not assume the undocumented worker's
continued (and illegal) employment by the employer.” 83
C. Retaliatory Threats or Reporting to Immigration Authorities
Courts have ruled that an employer’s reporting of workers to immigration officials can
constitute retaliation, when it is done because the worker tried to enforce his or her rights. Sure-
Tan v. NLRB, 467 U.S. 883 (1984)(NLRA); Montano-Perez v. Durrett Cheese Sales, Inc., 666 F.
Supp. 2d 894, 901-02 (M.D. Tenn. 2009); Centeno-Bernuy v. Perry, 302 F.Supp.2d 128
(W.D.N.Y. 2003); Singh v. Jutla & C.D. & R's Oil, Inc., 214 F.Supp.2d 1056 (N.D. Cal. 2002);
Contreras v. Corinthian Vigor, 103 F.Supp2d 1180 (N.D.Cal. 2000); AM Property Holding
Corp., Maiden 80/90 NY LLC and Media Technology, 350 NLRB No. 80, 86 (2007). Courts have
also held that a threat to report employees to immigration officials can constitute retaliation,
even in the absence of actual reporting. Aponte v. Modern Furniture Mfg. Co., LLC, No. 14-CV-
4813 (ADS)(AKT), 2016 WL 5372799, at *18 (E.D.N.Y. Sept. 26, 2016); Bartolon-Perez v.
Island Granite & Stone, 108 F. Supp. 3d 1335, 1338-39 (S.D. Fla. 2015); Perez v. Jasper
Trading, Inc., No. 05 CV 1725 (ILG)(VVP), 2007 WL 4441062, at *3 (E.D.N.Y. Dec. 17, 2007).
Compensatory and punitive damages may be awarded in such cases of retaliation. See Renteria,
2003 WL 21995190 (N.D. Ill. Aug. 2, 2003); and Singh, Id.84 Bringing this case law to the
82
490 F.Supp. at 1051.
83
Renteria v. Italia Foods, Inc., 02 C 485, 2003 WL 21995190, *6 (N.D. Ill. Aug. 21, 2003).
84
There is currently a circuit split over whether punitive damages are available at all in FLSA retaliation cases.
Compare Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108, 112 (7th Cir.1990) (punitive damages

attention of an employer or defense counsel when this form of retaliation is anticipated may be
helpful in deterring potential retaliation before it occurs.
In addition, an employer who may be engaged in or considering this form of retaliation

against a worker, should be encouraged to understand that the employer may in essence be
reporting itself or subjecting itself to investigation, since it is the employer that is ordinarily in
violation of the IRCA when an unauthorized immigrant is hired with actual or constructive
knowledge.
If an employer works with local law enforcement to arrest or detain undocumented

employees trying to assert their rights, both the employer and the law enforcement agency may
face civil liability. In Montano-Perez v. Durrett Cheese Sales, Inc., 666 F. Supp. 2d 894 (M.D.
Tenn. 2009), plaintiff-employees were fired after they assembled at their workplace to request
overdue pay. When the plaintiffs refused to leave the premises without their unpaid wages, the
employer called the county sheriff’s department. Durrett Cheese Sales, 666 F. Supp. 2d at 898.
Plaintiffs alleged that the employer and the sheriff’s department “work[ed] together to defeat the
plaintiffs’ wage complaints.” Id. The plaintiffs were arrested and detained overnight, then
transported to an immigration detention facility after sheriff’s department personnel reported
plaintiffs to immigration authorities. Id. at 898-99. Plaintiffs brought suit against the employer,
as well as the sheriff’s department and several individuals in the department. Id. The Middle
District of Tennessee upheld claims that the sheriff’s department defendants violated the FLSA’s
retaliation provisions,85 42 U.S.C. § 1981 (race discrimination in the making and enforcement of
contracts), 42 U.S.C. § 1985(3) (conspiracy to violate civil rights), and 42 U.S.C. § 1983
(violations of the NLRA, § 1981, and the Fourth Amendment).86 Id. at 901-07. In so holding, the
Court repeatedly cited the plaintiffs’ allegation that the sheriff’s department defendants worked
with the employer to violate plaintiffs’ employment rights, as well as the allegations that
sheriff’s department personnel “laughed at Plaintiffs, referenced Plaintiffs’ race and national
origin, and made statements regarding their intent to send Plaintiffs ‘back to Mexico.’” Id.
D. Social Security No-Match Letters
The so-called Social Security “no-match” letter is a letter sent by the Social Security
Administration (SSA) to employers and employees when the names or social security numbers
listed on the employer’s W-2 forms do not match the SSA records. The purpose of the no-match
letter is to alert the employee that the earnings reported on her W-2 are not being properly
available), with Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933-35 (11th Cir.2000) (punitive damages not
available). Additionally, the majority of district courts in the Fifth Circuit until recently held that compensatory
damages for emotional distress were not available either in FLSA retaliation cases, but the Fifth Circuit recently
joined the uniform view of the rest of the federal circuits in clarifying that compensatory damages are available.
Pineda v. JTCH Apartments, L.L.C., 843 F.3d 1062, 1065 (5th Cir. 2016).
85
The Court noted that the issue of non-employer civil liability for FLSA violations was one of first impression in
the Sixth Circuit. Durrett Cheese Sales, 666 F. Supp. 2d at 902 n. 4. The Court did not take a position on the issue,
and instead invited additional briefing. Id. The plaintiffs ultimately settled their claims against the sheriff’s
department defendants. Montano-Perez v. Durrett Cheese Sales, Inc., No. 3:08-1015, 2011 WL 128793, at *1 (M.D.
Tenn. Jan. 14, 2011).
86
The Court rejected the plaintiffs’ claim for § 1983 relief for violations of the FLSA. Durrett Cheese Sales, 666 F.
Supp. 2d at 905-06.

8/8/2019 Tips for Making Effective PowerPoint Presentations
Tips for Making E ective

PowerPoint Presentations
8/8/2017
Slideshows are quick to produce, easy to update and e ective to

inject visual interest into the presentation.
However, slideshows can also spell disaster even for

experienced presenters. The key to success is to make certain
your slideshow is a visual aid and not a visual distraction.
Tips for Making E ective PowerPoint Presentations

Use the slide master feature to create a consistent and simple design template. It is ne to vary the
content presentation (i.e., bulleted list, 2-column text, text & image), but be consistent with other
elements such as font, colors, and background.
Simplify and limit the number of words on each screen. Use key phrases and include only essential
information.
Limit punctuation and avoid putting words in all capital letters. Empty space on the slide will
enhance readability.
Use contrasting colors for text and background. Light text on a dark background is best. Patterned
backgrounds can reduce readability of text.
Avoid the use of ashy transitions such as text y-ins. These features may seem impressive at rst,
but are distracting and get old quickly.
Overuse of special e ects such as animation and sounds may make your presentation “cutesy” and
could negatively impact your credibility.
www.ncsl.org/legislators-staff/legislative-staff/legislative-staff-coordinating-committee/tips-for-making-effective-powerpoint-presentations.aspx 1/7
Use good quality images that reinforce and complement your message. Ensure that your image
maintains its impact and resolution when projected on a larger screen.
If you use builds (lines of text appearing each time you click the mouse), have content appear on
the screen in a consistent, simple manner; from the top or left is best. Only “build” screens when
necessary to make your point because builds can slow your presentation.
Limit the number of slides. Presenters who constantly “ ip” to the next slide are likely to lose their
audience. A good rule of thumb is one slide per minute.
Learn to navigate your presentation in a non-linear fashion. PowerPoint allows the presenter to
jump ahead or back without having to page through all the interim slides.
Know how to and practice moving forward AND backward within your presentation. Audiences
often ask to see the previous screen again.
If possible, view your slides on the screen you’ll be using for your presentation. Make sure slides
are readable from the back row seats. Text and graphical images should be large enough to read,
but not so large as to appear “loud.”
Have a Plan B in the event of technical di culties. Remember that transparencies and handouts
will not show animation or other special e ects.
Practice with someone who has never seen your presentation. Ask them for honest feedback
about colors, content, and any e ects or graphical images you’ve included.
Do not read from your slides. The content of your slides is for the audience, not for the presenter.
Do not speak to your slides. Many presenters face the direction of their presentation rather than
their audience.
Do not apologize for anything in your presentation. If you believe something will be hard to read or
understand, don’t use it.
When possible, run your presentation from the hard disk rather than a oppy disk. Running from a
oppy disk may slow your presentation.
The Seven Deadly Sins of PowerPoint Presentations

By Joseph Sommerville
It’s not surprising PowerPoint© slideshows have become the norm for visuals in most business
presentations. Slideshows are quick to produce, easy to update and e ective to inject visual interest
into the presentation. However, slideshows can also spell disaster even for experienced presenters.
The key to success is to make certain your slide show is a visual aid and not a visual distraction. For
the best results, avoid these common “seven deadly sins” of PowerPoint© presentations.
1. Slide Transitions And Sound E ects: Transitions and sound e ects can become the focus of
attention, which in turn distracts the audience. Worse yet, when a presentation containing several
e ects and transitions runs on a computer much slower than the one on which it was created, the
result is a sluggish, almost comical when viewed. Such gimmicks rarely enhance the message
you’re trying to communicate. Unless you are presenting at a science ction convention, leave out
the laser-guided text! Leave the fade-ins, fade-outs, wipes, blinds, dissolves, checkerboards, cuts,
covers and splits to Hollywood lmmakers. Even “builds” (lines of text appearing each time you
click the mouse) can be distracting. Focus on your message, not the technology..

2. Standard Clipart: Death to screen beans! PowerPoint© is now so widely used the clipart included
with it has become a “visual cliché.” It shows a lack of creativity and a tired adherence to a standard
form. First, make certain that you need graphical images to enhance your message. If you do, use
your own scanned photographs or better-quality graphics from companies such as PhotoDisc
(www.photodisc.com) or Hemera’s Photo Objects (www.hemera.com). Screen captures can add
realism when presenting information about a Website or computer program. Two popular screen
capture programs are Snagit (www.techsmith.com) for Windows and Snapz Pro
(www.ambrosiasw.com) for Macintosh. Both are available as shareware.

3. Presentation Templates: Another visual cliché. Templates force you to t your original ideas into
someone else’s pre-packaged mold. The templates often contain distracting backgrounds and poor
color combinations. Select a good book on Web graphics and apply the same principles to your
slides. Create your own distinctive look or use your company logo in a corner of the screen.

4. Text-Heavy Slides: Projected slides are a good medium for depicting an idea graphically or
providing an overview. Slides are a poor medium for detail and reading. Avoid paragraphs,
quotations and even complete sentences. Limit your slides to ve lines of text and use words and
phrases to make your points. The audience will be able to digest and retain key points more easily.
Don’t use your slides as speaker’s notes or to simply project an outline of your presentation.

5. The “Me” Paradigm: Presenters often scan a table or graphical image directly from their existing
print corporate material and include it in their slide show presentations. The results are almost
always sub-optimal. Print visuals are usually meant to be seen from 8-12 inches rather than viewed
from several feet. Typically, these images are too small, too detailed and too textual for an e ective
visual presentation. The same is true for font size; 12 point font is adequate when the text is in
front of you. In a slideshow, aim for a minimum of 40 point font. Remember the audience and
move the circle from “me” to “we.” Make certain all elements of any particular slide are large
enough to be seen easily. Size really does matter.

6. Reading: A verbal presentation should focus on interactive speaking and listening, not reading by
the speaker or the audience. The demands of spoken and written language di er signi cantly.
Spoken language is shorter, less formal and more direct. Reading text ruins a presentation. A
related point has to do with handouts for the audience. One of your goals as a presenter is to
capture and hold the audience’s attention. If you distribute materials before your presentation,
your audience will be reading the handouts rather than listening to you. Often, parts of an e ective
presentation depend on creating suspense to engage the audience. If the audience can read
everything you’re going to say, that element is lost.

7. Faith in Technology: You never know when an equipment malfunction or incompatible interfaces
will force you to give your presentation on another computer. Be prepared by having a back-up of
your presentation on a CD-ROM. Better yet is a compact- ash memory card with an adapter for the
PCMCIA slot in your notebook. With it, you can still make last-minute changes. It’s also a good idea
to prepare a few color transparencies of your key slides. In the worst-case scenario, none of the
technology works and you have no visuals to present. You should still be able to give an excellent
presentation if you focus on the message. Always familiarize yourself with the presentation,
practice it and be ready to engage the audience regardless of the technology that is available. It’s
almost a lost art.
Joseph Sommerville has earned the title “The Presentation Expert” for helping professionals design,
develop and deliver more e ective presentations. He is the principal of Peak Communication
Performance, a Houston-based rm working worldwide to help professionals develop skills in
strategic communication.
Tips for E ective PowerPoint Presentations

Fonts
Select a single sans-serif fonts such as Arial or Helvetica. Avoid serif fonts such as Times New
Roman or Palatino because these fonts are sometimes more di cult to read.
Use no font size smaller than 24 point.
Use the same font for all your headlines.

Select a font for body copy and another for headlines.
Use bold and di erent sizes of those fonts for captions and subheadings.
Add a fourth font for page numbers or as a secondary body font for sidebars.
Don’t use more than four fonts in any one publication.
Clearly label each screen. Use a larger font (35-45 points) or di erent color for the title.
Use larger fonts to indicate importance.

Use di erent colors, sizes and styles (e.g., bold) for impact.
Avoid italicized fonts as these are di cult to read quickly.
Avoid long sentences.
Avoid abbreviations and acronyms.

Limit punctuation marks.
No more than 6-8 words per line
For bullet points, use the 6 x 6 Rule. One thought per line with no more than 6 words per line and
no more than 6 lines per slide
Use dark text on light background or light text on dark background. However, dark backgrounds
sometimes make it di cult for some people to read the text.
Do not use all caps except for titles.
Put repeating elements (like page numbers) in the same location on each page of a multi-page
document.
To test the font, stand six feet from the monitor and see if you can read the slide.
Design and Graphical Images

Use design templates.
Standardize position, colors, and styles.

Include only necessary information.
Limit the information to essentials.
Content should be self-evident

Use colors that contrast and compliment.
Too may slides can lose your audience.
Keep the background consistent and subtle.
Limit the number of transitions used. It is often better to use only one so the audience knows what
to expect.
Use a single style of dingbat for bullets throughout the page.
Use the same graphical rule at the top of all pages in a multi-page document.
Use one or two large images rather than several small images.
Prioritize images instead of a barrage of images for competing attention.
Make images all the same size.

Use the same border.
Arrange images vertically or horizontally.
Use only enough text when using charts or graphical images to explain the chart or graph and
clearly label the image.
Keep the design clean and uncluttered. Leave empty space around the text and graphical images.
Use quality clipart and use it sparingly. A graphical image should relate to and enhance the topic of
the slide.
Try to use the same style graphical image throughout the presentation (e.g., cartoon, photographs)
Limit the number of graphical images on each slide.

Repetition of an image reinforces the message. Tie the number of copies of an image to the
numbers in your text.
Resize, recolor, reverse to turn one image into many. Use duplicates of varying sizes, colors, and
orientations to multiply the usefulness of a single clip art image.
Make a single image stand out with dramatic contrast. Use color to make a dramatic change to a
single copy of your clip art.
Check all images on a projection screen before the actual presentation.
Avoid ashy images and noisy animation e ects unless it relates directly to the slide.
Color
Limit the number of colors on a single screen.
Bright colors make small objects and thin lines stand out. However, some vibrant colors are
di cult to read when projected.
Use no more than four colors on one chart.
Check all colors on a projection screen before the actual presentation. Colors may project
di erently than what appears on the monitor.
General Presentation
Plan carefully.
Do your research.
Know your audience.

Time your presentation.
Speak comfortably and clearly.
Check the spelling and grammar.
Do not read the presentation. Practice the presentation so you can speak from bullet points. The
text should be a cue for the presenter rather than a message for the viewer.
Give a brief overview at the start. Then present the information. Finally review important points.
It is often more e ective to have bulleted points appear one at a time so the audience listens to the
presenter rather than reading the screen.
Use a wireless mouse or pick up the wired mouse so you can move around as you speak.
If sound e ects are used, wait until the sound has nished to speak.
If the content is complex, print the slides so the audience can take notes.
Do not turn your back on the audience. Try to position the monitor so you can speak from it.
Additional Resources
Download Interactive Slide Show | Designing E ective PowerPoint Presentations | 53 slides
Legislative Sta Services
Copyright 2019 by National Conference of State Legislatures
TRIAL PREPARATION 101
-or-
So, You’ve Sued the Bastards. Now what?
I. Why This Topic?

A. Taking a case to trial is the most powerful weapon in our arsenal.
1. In today’s climate, a great many opposing lawyers are afraid to
take cases to trial.
2. Most defendants are afraid to take cases to trial.
a. Cost and disruption to business are far greater.
b. Possibility of adverse publicity is far greater.
c. Outcomes are less certain.
d. Especially when an insurance carrier is involved, primary goal is
to manage or cap risk.
3. Making clear that you are willing and preparing to take a case to
trial—not just holding your breath, crossing your fingers, and
hoping for a settlement—is the best way to get leverage.
B. The best way to settle a case is to prepare it for trial.
C. Trials are the highest form of the lawyer’s art and are really, really
fun.
II. Trial Preparation Process.

A. Trial prep must begin at the start of a case, and continue throughout
its life.
B. Case intake/assessment.
1. What are the legal/fact issues?
2. What is the relief?
3. How hard will it be to prove this case?
a. What are the good facts?
b. What are the bad facts?
c. Are there witnesses? Are they available? Who controls them?
4. What court do I prefer?
a. Do I have a choice?
b. Who will be the judge?
c. Where do jury pools come from?
d. How sophisticated are the legal issues?
e. What are pleading/summary judgment standards?
f. Do I benefit from trial by ambush?
5. What is the theme of the case?
a. Silver bullet/elevator speech.
b. Practice on friends, colleagues, and family, and revise as case
evolves.
6. How will the case/client/relief sought present to a court? Jury?
C. Case development/discovery.
1. How is my theme holding up? How must it evolve?
2. What witnesses will help me prove my case? Documents?
3. What witnesses can damage my case, and how can I incorporate
or neutralize them? Documents?
4. How did my client/witnesses hold up in deposition? How about
theirs?
5. How do I get my stuff into evidence?
a. What is my theory of admissibility as to each piece of
evidence?
b. What foundation/testimony do I need for each piece of
evidence? Do I have it in depos, or do I need to get it?
c. Will the other side stipulate? (Will you stipulate to theirs?)
d. Are RFAs useful to establish authenticity?
e. Will I need certified copies of public records?
6. What holes remain in my case that I must close before the end of
discovery?
7. Will I need an expert?
a. If so, start looking now.
b. Be careful about what you put in writing.
c. Will the expert need a report?
i. Federal court—yes.
ii. State court—no.
iii. Make sure you tell expert when report is/is not
required—some write one automatically, increasing cost
and affecting element of surprise.
d. Must I disclose the expert?
i. Federal court—yes, if testifying (as opposed to
consulting).
ii. State court—hell no.
8. What trial preparation products can I get a head start on?
a. Trial brief.
b. Motions in limine/other pre-trial motions.
c. Jury instructions (jurty trial only).
d. Voir dire questions (jury trial only).
e. Opening statement.
f. Outline of direct.
g. Outline of cross.
h. Demonstrative exhibits.
i. Preliminary notes on closing.
9. What motions/objections do I expect from the other side?
a. Motions in limine/other forms of objections to evidence?
b. Motions for directed verdict on some or all claims?
10.What steps can I take to ensure the availability of witnesses at
trial?
a. Agreement from other side?
b. Subpoenas?
c. Telephone/video testimony?
11.When should I start witness prep?
a. Client and other key witnesses are the priority.
b. Substance.
c. Number of sessions. (Hint: Key witnesses should have more
than one).
12.What equipment does courtroom have for electronics, display
screens, remote testimony writing on easel or whiteboard, etc.?
Will I have to arrange for or bring my own? (Hint: Call judge’s
clerk, visit the courtroom).
13.What special procedures does court follow, especially in jury
trials? (Hint: Call the judge’s clerk).
a. Voir dire.
b. Challenges, both for cause and peremptory.
c. Objections/side bars.
d. Handling of exhibits.
e. Juror notetaking.
f. Juror notebooks.
g. Standing, sitting, using podium during examination.
14. What arrangements must be made for court/jury view outside of
courtroom?
15. Should I put trial prep on hold pending mediation/settlement
discussions? (Hint: This is a trick question).
D. Final trial preparation.
1. Final means “final”—if you have waited until now to begin, you’re
way too late.
2. I usually estimate two full days of intensive trial prep for every day
of trial, e.g., ten days of final prep for a trial scheduled for 5 days.
3. Block out and protect the time—meetings, hotlines, other cases
must take a back seat.
4. Time will be used for—
a. Final decisions re who will do what at trial (if more than one
lawyer).
b. Final versions of trial preparation products, described below.
c. Final witness prep.
d. Decision on final witness order and scheduling.
e. Decision on final exhibit order (e.g., chron order, by subject, by
witness).
f. Final meeting with other side to agree on exhibits, deposition
excerpts, stipulations, witness availability.
g. Final visit to courtroom to get lay of the land and test
electronics.
h. Arrangements to allow unusual items/objects into the
courthouse.
i. Final arrangements for court/jury field trip.
5. Do not ease off the gas if, as often occurs, the other side finally
gets serious about settlement.
a. If possible, designate a member of the trial team or—better
yet—another lawyer to deal with the negotiations.
b. Do not waste your time unless the other side makes an offer
showing that a deal is imminent.
E. Trial preparation does not end when the trial starts.
1. Trials are fluid events, not scripted performances.
2. Your strategy/presentation must evolve depending on witness
performance, rulings by the court, and so on.
3. Oregon’s trial by ambush tradition frequently requires cold cross
of a witness you never knew existed or late night regrouping.
III. Trial Preparation Products.

A. Deliverables for Court.
1. Trial memo.
a. Not a “brief” which argues entire case.
b. Pieces include short summary of claims, defenses, relief
sought, and discussion of principal evidentiary or legal issues
that may arise at trial.
2. Motions in limine/other pre-trial motions.
3. Instructions (jury trial only).
4. Verdict form (jury trial only).
5. Agreed (if possible) description of case (jury trial only).
6. List of witnesses.
a. Normally required in jury trial to ferret out challenges for
cause.
b. Sometimes required in court trial to determine need for
disclosure or recusal.
7. Juror notebooks (jury trial only).
8. Stipulated facts.
9. Exhibit list for clerk.
B. Trial notebook.
1. Operative pleadings.
2. Jury seating chart (jury trial only).
3. Voir dire questions (jury trial only).
4. Instructions/verdict form submitted by each side (jury trial only).
5. Exhibit list.
6. Outline of opening statement.
7. Tab with outline of direct examination for each witness whom you
will handle.
8. Tab with outline of preliminary cross of each witness whom you
will handle.
9. Preliminary outline of closing.
C. Presentation materials.
1. Exhibits—
a. Pre-marked copies (binders preferred) for court, opponent,
witness.
b. Originals for clerk.
c. Objects/equipment that will be offered (e.g. the gun in a
murder trial, the machinery that injured the plaintiff, etc.).
d. Equipment for displaying exhibits/deposition excerpts
electronically, if you do that.
e. Equipment for showing video, if you have one.
f. Foam board blow-ups of key exhibits/testimony.
2. Demonstratives.
a. Easel, paper, markers for writing.
b. Foam board blow-ups (timelines, maps, photographs, etc.).
c. Electronic picture show, video, or other props for
opening/closing.
d. Objects used for demonstrations, but not offered into
evidence.
3. Deposition excerpts for reading into evidence.
4. Deposition transcripts for impeachment.
5. Supplies—pens, pencils, highlighters, sticky notes, pads.
D. Miscellaneous.
1. Request to exclude witnesses, if you think that helps.
2. Arrive early to claim your preferred seat if court does not have
designations for plaintiff and defendant.
8/2/2019 The DOL’s Proposed Joint Employer Rule: Frances Perkins Would not be Pleased | On Labor
The DOL’s Proposed Joint Employer Rule:

Frances Perkins Would not be Pleased
Kate Grif th
Published April 17th, 2019
On April 1, 2019, the U.S. DOL proposed a new interpretation of joint employer liability under the
Fair Labor Standards Act (FLSA). DOL’s four-factor test focuses exclusively on whether an entity
“actually exercises the power to” hire and re, supervise and control working conditions,
determine rates and methods of payment and maintain employment records. This proposal is in
con ict with the language of the Fair Labor Standards Act (the FLSA) and the dominant sentiments
expressed during the legislative process that led to the FLSA’s enactment in June of 1938. Frances
Perkins, widely recognized as the administrative architect of the FLSA and DOL Secretary from
1933 until 1945, would not be pleased.
Frances Perkins was the U.S. Secretary of Labor from 1933 to 1945 and the rst woman
appointed to the U.S. Cabinet.
Let’s start with the statutory language. The story really should begin and end there. The FLSA
de nes employer as an entity that acts either “directly or indirectly in the interest of an employer.”
How can this broad and exible language be squared with the proposed rule’s narrower
designation of an entity as an employer only if it “actually exercises the power to” do the four
qualifying actions? Rules must be consistent with the statutory language. This proposed rule is
not. The actual exercise of such things as keeping records, or doing the hiring, is clearly narrower
than the FLSA’s reference to indirect acts in the interest of an employer. So, the rule fails on
statutory language alone.
https://onlabor.org/the-dols-proposed-joint-employer-rule-frances-perkins-would-not-be-pleased/ 1/3
A comprehensive study of thousands of pages of legislative history from 1937 and 1938 brings the
aws of the proposed rule into even starker relief. The legislative record illustrates that members
of Congress made a concerted e ort to draft the law so that business formalities, such as the ways
businesses structure themselves, could not be determining factors of the FLSA’s reach. Yet, the
proposed rule is attempting to do just that.
The FLSA’s New Deal framers foresaw the challenges of complex business forms, such as
subcontracting relationships. They sought to address them with pliable language that would make
it more di cult for business formalities, including the use of intermediary entities, to hamper the
FLSA’s fundamental goal: to ensure “a fair day’s pay for a fair day’s work.” In other words, if
business A in uences wages and working conditions through business B, it does not evade
coverage just because business B is the sole entity that “actually exercises the power to” do such
things as maintain employment records.
One such historical example is legislative consideration and ultimate rejection of numerical limits
—a set minimum number of employees in a business—for purposes of FLSA coverage. Congress
feared a set minimum of employees for coverage would encourage businesses to splinter o parts
of the business to avoid liability. Throughout the FLSA’s legislative path, legislators echoed
Secretary Perkins’ multiple admonitions that numerical limits would “encourage the formation of
small units of persons employing less than 20 or less than 15 persons.”
In a similar vein, early language in the proposed bill clari ed that Congress did not want
businesses who should be responsible under the FLSA to avoid coverage thresholds by using
“controlled companies,” a “subsidiary,” or “any other means or device” that would distance them
from the workers whose wages and working conditions they in uenced.
Legislative discussion of industrial homework, and small sweatshop contractors, provides

another example of legislative intent to ensure that the use of intermediaries did not provide a
loophole in the FLSA’s reach. Legislators were very concerned that businesses who engaged
workers o of their premises would be excluded from the FLSA. Robert Jackson, then assistant
Attorney General and later Supreme Court justice, successfully implored legislators that “the
factory which sends out and makes use of people in their homes are not exempted just because
they are using premises they do not pay any rent for.” Simply put, the message of the legislative
history is that business formalities, like delegating the actual exercise of hiring and recordkeeping
to a separate business entity, were not meant to block the FLSA’s blanket-like coverage.
This legislative history, and the broad “to su er or permit to work” de nition of “employ” that
resulted in the nal version of the bill, shows a clear intent to deem some indirect relationships
between workers and businesses as employment relationships. The proposed rule’s “actually
exercises” language erroneously excludes indirect forms of in uence over wages and working
conditions that can give rise to obligations under the FLSA.
Application to a modern day example illustrates the DOL’s folly. A study of 44 contracts between
franchisors and franchisees in the fast-food industry in 2016 revealed a new intermediary theory
of joint employment. Namely, some franchisors exhibit considerable in uence over franchisees’
managers in areas that relate to the wages and working conditions of front-line workers. Thus,
franchisors not only extensively in uence the actions of their franchisees, they also in uence the
franchisees’ supervisorial managers. Is franchisor in uence over franchisees’ managers (as
intermediaries) similar to the lead company in uence over controlled companies and
subcontractors that Congress found to be relevant in the late 1930s? The FLSA’s language and
legislative history implore courts and the DOL to consider all forms of indirect in uence over
wages and working conditions in their inquiries. However, the DOL’s proposed rule wrongly
limits consideration only to the immediate party that actually executes the acts of wage setting,
hiring, record keeping and the like.
The FLSA’s purposes are as important today as they were in the late 1930s. The U.S. Court of
Appeals for the Ninth Circuit, sitting en banc, recently encapsulated the FLSA’s
underlying goals well:
Congress enacted the [FLSA] in 1938 in response to a national concern that the price of
American development was the exploitation of an entire class of low-income workers.
President Roosevelt, who pushed for fair labor legislation, famously declared: ‘The test of our
progress is not whether we add more to the abundance of those who have much; it is whether
we provide enough for those who have too little.’ The FLSA thus safeguards workers from
poverty by preventing employers from paying substandard wages in order to compete with one
another on the market.
The FLSA’s legislative history shows broad awareness that the use of business intermediaries, or
other business formalities, can frustrate this laudable purpose. The DOL’s proposed rule
promotes the very frustration that the FLSA’s language and its framers sought to prevent.
Regardless of formalities, all businesses who allow work to be done on their behalves and who are
in a position to prevent wage and hour abuses have an obligation to do so.
© 2019 On Labor | http://onlabor.org/the-dols-proposed-joint-employer-rule-frances-perkins-would-not-be-

pleased/
8/2/2019 The NLRB’s Joint Employer Rule Fails its Own Test | On Labor
The NLRB’s Joint Employer Rule Fails its

Own Test
Andrew Strom
Published September 17th, 2018
The Trump appointees on the NLRB have proposed a new “joint employer” rule that they claim
will foster “predictability and consistency.” But, it is readily apparent that the proposed rule will
not accomplish these goals. The proposed rule will, however, result in fewer joint employer
ndings, which is precisely the point.
Before discussing the joint employer rule, it’s important to understand why it matters. We are
living in an era of what David Weil has called “the ssured workplace,” where giant powerful
corporations use contracting, outsourcing, and franchising to pro t from the labor of workers
without taking responsibility for their working conditions. The joint employer concept allows
workers in these ssured workplaces to bargain with the entities that actually have the power to
https://onlabor.org/the-nlrbs-joint-employer-rule-fails-its-own-test/ 1/3
increase their wages or to provide them with full-time work rather than limiting bargaining to the
entity that appears on the worker’s paycheck.
The proposed rule is designed to overturn the Board’s 2015 decision in Browning-Ferris
Industries of California, Inc. In Browning-Ferris, the Board recognized that, beginning in 1984,
without acknowledging and addressing earlier contrary precedents, the Board had begun
narrowing the circumstances where it would nd two entities to be joint employers. During those
thirty years, the Board never changed the wording of the legal standard – it always purported to
nd two (or more) entities to be joint employers if they “share or codetermine those matters
governing the essential terms and conditions of employment.” But, before Browning-Ferris, the
Board had announced that it was no longer su cient for a putative joint employer to possess the
authority to control terms and conditions of employment; there also needed to be evidence that it
had exercised the authority. The Board had further narrowed the joint employer test by requiring
that any control exercised by the would-be joint employer must be “direct and immediate,” and not
“limited and routine.”
In Browning-Ferris, the Board recognized that its earlier decisions were not consistent with the
common law de nition of an employment relationship. Regarding the right to control, in the
Browning-Ferris case, BFI retained the right to “discontinue the use of any personnel” employed
by its sta ng agency, Leadpoint “for any or no reason.” Where a client has the right to control, it
may not always need to exercise that right expressly. As I explained once in a di erent context, if
your boss tells you he “hopes” you will do something, you will probably do what he asks. The
same goes for contractors and clients. If a client complains about a worker, the contractor will
probably take action even without a direct order from the client.
The Board similarly recognized in Browning-Ferris that a client can exercise control over the day-
to-day work of its contractor’s employees without directly telling them how to do their jobs. For
instance, BFI established where work stations were, it determined the speed of the production
line, it gave direction on when workers could stop the line, and it determined the speci c tasks
that needed to be completed during each shift. Experienced workers in many elds, whether they
are janitors or nurses, rarely need instruction about how to perform their work. But that doesn’t
mean that no one is exercising control over their work.
As soon as Browning-Ferris was announced, the business lobby and the Republican public
relations machinery cranked up a phony narrative about the case creating uncertainty, and in in
Orwellian twist, they claimed it would harm small contractors. The argument was rarely spelled
out, but the theory was that rather than risk being a joint employer with its contractor, the large
corporation would just hire the workers directly. What was particularly absurd about this
argument was that the joint employer test under wage and hour law has always been much more
expansive than the test used by the NLRB and the potential for liability is much greater, yet that
has not stopped the ssuring of the workplace.
When Trump’s appointees took o ce, they quickly issued a decision overturning Browning-
Ferris, but the Board was forced to vacate that decision when its ethics o cer determined that
Member Emanuel should not have participated in the case. As Board Member McFerran has
pointed out in her dissent to the proposed rule, a di erent recusal standard applies to rulemaking
than to adjudication and thus “the Board is perhaps able to avoid what might otherwise be
di cult ethical issues.”
So, what does the new rule say? It reiterates that two entities will be joint employers if they “share
or codetermine the employees’ essential conditions of employment,” but it goes on to provide that
“[a] putative joint employer must possess and actually exercise substantial direct and immediate
control over the employees’ essential terms and conditions of employment in a manner that is not
limited and routine.” The rst clue that the Trump Board Members are not actually concerned
with “predictability and consistency” is their insertion of the word “substantial” into the test. How
is anyone to know in advance where the dividing line is between “substantial”
and insubstantial control?
The proposed rule includes a series of examples designed to lend clarity to an otherwise opaque
test, but the examples leave many unanswered questions. For instance, the rule o ers two
examples of a client exercising some control over wages. In the rst, Company B establishes a
maximum reimbursable labor expense while otherwise leaving Company A free to set the wages
and bene ts of those employees. In the second example, Company B establishes the wage rate
that Company A must pay to its employees. Under the new rule, the Board will only nd a joint
employer relationship in the second example. But, how much discretion must Company A
possess for Company B to avoid a joint employer nding? What if, as in Browning-Ferris,
Company B insists that Company A may not pay its employees more than Company B pays its own
employees who do similar work
Regarding hiring and ring, there is an example of a client that has complained about particular
workers and reminded its contractor of its right to cancel its contract without cause. The example
states that but for the client’s input, the contractor would not have imposed discipline or would
have imposed lesser discipline. In that case, the Board would nd a joint employer relationship.
But, what if the client didn’t include the heavy-handed reminder of its contractual right? Wouldn’t
the contractor already be aware of the contractor’s power? And, once the client speaks up, how
can anyone establish the counterfactual of what the contractor would have done if the client
had remained silent?
If the Republican Board Members believe that the policies set forth in the NLRA would best be
served by making it harder for workers to bargain with the entities that have the power to give
them the raises they desperately need, the Board Members should come right out and say that.
The test in the new rule is just as fuzzy as the test in Browning-Ferris – something that is probably
inevitable given the myriad circumstances where the joint employer issue arises. The rule only
enhances “predictability” in that it is predictable that it will be easier for corporate titans to avoid a
joint employer nding.
© 2019 On Labor | http://onlabor.org/the-nlrbs-joint-employer-rule-fails-its-own-test/
8/2/2019 Federal judge blocks ICE from making civil arrests at Massachusetts courthouses
Federal judge blocks ICE from making civil arrests at

Massachusetts courthouses
Joey Garrison, USA TODAY Published 7:09 p.m. ET June 20, 2019 | Updated 9:41 a.m. ET June 21, 2019
Immigration and Customs Enforcement agents at a home in Atlanta on Feb. 9, 2017, during a targeted enforcement operation aimed at immigration fugitives, re-entrants
and at-large criminal aliens. (Photo: Bryan Cox, Bryan Cox, AP)
BOSTON — A federal judge in Boston ruled Thursday that immigration officials temporarily can't make civil arrests of people visiting Massachusetts
courthouses, the first preliminary injunction like it nationally as a lawsuit challenging the practice plays out in court.
U.S. District Judge Indira Talwani issued the decision in a written order. It comes less than two months after the district attorneys of Suffolk and Middlesex
counties and public defenders sued the U.S. Immigration and Customs Enforcement over the agency's policy of making civil immigration arrests
inside state courthouses.
The judge said the order does not limit ICE’s ability to make criminal arrests of individuals or civil arrests of people brought to Massachusetts courthouses
while in state or federal custody.
Instead, she said it prevents ICE from "civilly arresting parties, witnesses, and others
attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouse."
Her order comes as President Donald Trump has sought a strict enforcement of federal immigration and deportation policies and as some Democrats
have called to abolish ICE.
More: Judge indicted for helping undocumented immigrant evade ICE wants pay during suspension (/story/news/nation/2019/05/30/judge-shelley-
joseph-wants-pay-indicted-helping-undocumented-immigrant-evade-ice/1290020001/)
At issue in the Massachusetts dispute is a January 2018 ICE directive that authorized civil arrests in courthouse. Suffolk County District Attorney Rachael
Rollins and Middlesex County District Attorney Marian Ryan, both Democrats, have led the lawsuit challenging the directive.
They argue that everyone appearing in court has a common law privilege against civil arrests – and that any ICE policy that permits civil courthouse
arrests is in excess of the power granted by the Immigration and Naturalization Act.
ICE has argued that the plaintiffs lack an “injury in fact” and therefore don't have standing to bring the claim.
In siding with the plaintiffs' request for the preliminary injunction, the judge wrote, "Criminal defendants will be unable to vindicate their rights if they are
taken into ICE custody prior to appearing in court or if witnesses in their defense are too fearful to visit a courthouse.
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"None of these harms can be remedied after the conclusion of this litigation," she added. "Therefore, the court finds that the plaintiffs have alleged
irreparable
harm sufficient to warrant an injunction."
More: ICE will increase family deportations, according to acting director Mark Morgan (/story/news/politics/2019/06/04/ice-increase-deportations-families-
undocumented-criminals/1345044001/)
A preliminary injunction, like the one ordered by Talwani, comes ahead of a final judgement in a case.
In a statement on the judge's decision, ICE spokesman John Mohan said the agency has no direct comment at this time.
“While ICE respects that the court has issued its ruling, we are currently reviewing the court’s decision," he said.
Rollins said she is "thrilled with today's ruling." She added, "As my staff and I closely review the decision, we look forward to continuing our vital work in
courthouses across Suffolk County that will be positively impacted by today’s ruling."
She said looks forward to address the media in the coming days to "discuss what this important ruling means for the communities we serve.
While the lawsuit challenging the ICE directive plays out, Boston federal court is home to another ICE-related case brought by the Trump-appointed U.S.
Attorney for the District of Massachusetts Andrew Lelling.
In that case (/story/news/nation/2019/05/30/judge-shelley-joseph-wants-pay-indicted-helping-undocumented-immigrant-evade-ice/1290020001/), District

Judge Shelley Richmond Joseph and a court officer, Wesley MacGregor, face obstruction charges for preventing immigration agents from arresting an
undocumented immigrant after a court hearing by allowing him to leave the courthouse through a back door. Both defendants have pleaded not guilty.
Contributing: Associated Press
Reach Joey Garrison on Twitter @joeygarrison.
Read or Share this story: https://www.usatoday.com/story/news/nation/2019/06/20/federal-judge-blocks-ice-making-civil-arrests-massachusetts-

courthouses/1516119001/
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8/2/2019 Letters From Washington: Your Employees Could Be Undocumented - The New York Times
Letters From Washington: Your Employees

Could Be Undocumented
By Miriam Jordan
May 16, 2019
LOS ANGELES — The Trump administration is notifying tens of thousands of employers

that the names of some of their employees do not match their Social Security numbers, a
move that is forcing businesses across the country to brace for the loss of thousands of
workers who lack legal status.
The Social Security Administration has mailed “no-match letters” to more than 570,000
employers since March, sending shock waves through the hospitality, construction and
agriculture industries, which rely heavily on undocumented workers. The letters have left
many employers conflicted, uncertain whether to take action that could result in losing
workers or to risk fines down the road.
The notices do not necessarily require employers to take action, but direct them to take
steps to reconcile mismatches, which would require contacting the workers. Undocumented
workers who are notified of the letters by their employers often choose to quickly resign,
fearing scrutiny from federal immigration authorities. But employers who do nothing could
also face enforcement actions.
“There is a high level of anxiety over these no-match letters,’’ said Angelo Amador,
regulatory counsel at the National Restaurant Association, which represents about one
million food-service establishments. He said the association has been barraged with emails
and phone calls from concerned companies.
An estimated 7.8 million undocumented immigrants were in the labor force in 2016,
according to the Pew Research Center. Most pay Social Security taxes for which they
receive no credit because they are using a made-up Social Security number. For years, the
Social Security Administration notified employers when the number on an employee’s W-2
form did not match a name on file.
The government officially suspended the use of no-match letters in 2012, although the
practice had actually been discontinued years earlier, after the government faced litigation.
The resumption appears to be a response to the “Buy American, Hire American” executive
https://www.nytimes.com/2019/05/16/us/immigrants-undocumented-no-match.html 1/5
order signed by President Trump to protect American workers and reduce illegal
immigration.
While there are many possible reasons for discrepancies between names and Social
Security numbers, including typographical errors, clerical mistakes and name changes, the
lack of lawful immigration status is a common one.
Most employers had not seen no-match letters in more than a decade, prompting some to
say they wondered whether their return was politically motivated.
“The timing is interesting, given the priority placed by this administration on immigration,”
said Mr. Amador. “We are waiting to see whether this turns into immigration enforcement.”
Mark Hinkle, the Social Security Administration’s acting press secretary, did not respond to
a question about whether the administration was sharing its data with the Immigration and
Customs Enforcement agency.
“Social Security is committed to maintaining the accuracy of earnings records used to

determine benefit amounts to ensure people get the benefits they have earned,” he said in
an emailed statement. “If we cannot match the name and SSN reported on a W-2 to our
records, we cannot credit earnings to a worker’s record.”
The administration of President George W. Bush tried, and failed, to introduce a “no-match”
program in 2007 that would have held companies liable for employing unauthorized workers
by imposing stiff penalties on them. The program was initiated after Congress failed to pass
a bill to legalize the nation’s estimated 11 million undocumented immigrants.
But the American Civil Liberties Union, United States Chamber of Commerce, unions and
trade groups won a lawsuit later that year that claimed the policy could lead to
discrimination against or termination of native-born American workers and legal immigrant
workers. The suit also claimed that the regulation would pose a heavy burden on employers.
The latest letters appear to avoid the legal pitfalls identified in the earlier litigation because,
unlike those drafted under the Bush program, the current letters do not threaten employers
with enforcement action or penalties.
Immigration lawyers have been inundated with inquiries in recent months. Kathleen
Campbell Walker, who practices in El Paso, said that one of her clients, a small restaurant
chain, could lose a third of its work force. Another, which boasts 50,000 workers in multiple
states, had also been alerted of discrepancies by the government.
Jeff Joseph, an immigration lawyer in Denver, said that half of the dairy farms he represents
have received no-match letters in the last two months.
The $1.3 trillion construction industry, which relies on large numbers of undocumented
immigrants, is among the hardest hit.
“At a time of low unemployment, we need to be out there finding workers and lobbying for
sensible immigration reform instead of reacting to no-match letters,” said Stan Marek, chief
executive of Marek Brothers, a large construction company with operations in Texas and
Georgia that has received dozens of no-match letters.
Employers in agriculture, a sector where undocumented immigrants dominate the work

force, reported a substantial number of no-match letters as well.
In California’s agricultural-rich San Joaquin Valley, 49 growers and other businesses that
collectively employ 39,978 workers have been alerted by the government that 24,132
employees had irregularities.
While employers must give workers a chance to rectify any discrepancy, “as soon as you tell
the workers, they are going to disappear,” said Manuel Cunha Jr., president of the Nisei
Farmers League in Fresno, whose members have received no-match letters.
Among them is a fourth-generation farmer who grows peaches, nectarines and almonds on
800 acres. Two weeks ago, he was notified that about half of his 400 workers have issues and
given 60 days to address the problems.
“This could shut us down,” said the grower, who employs several workers who have been
with the business for more than two decades. He declined to be named out of concern that it
would harm him and his workers. “It’s very concerning for us,” he said. “We just want to run
our farm. Now they are putting us in this position to regulate documents.”
Only some states require employers to use the E-Verify government electronic verification
system that checks new hires’ documents. In most states, when undocumented immigrants
are hired, their employers may not know they lack legal status. They put the workers on the
payroll and withhold necessary taxes, as is done for all workers.
“The irony is, if the employers and workers hadn’t been paying taxes, the businesses
wouldn’t have been sent the no-match letter,” said Mr. Cunha of the farmer’s group.
He and others predicted that the new measure would very likely push many workers
underground and into the cash economy.
The Social Security Administration announced in July that it planned to resume sending no-
match letters in 2019, and in March began mailing them to employers who had submitted at
least one W-2 form with a name and Social Security number combination that did not match
its records. The notices direct employers to take steps to correct information online within
60 days.
Because most employers received their letters in April or in recent weeks, many are still
debating what course of action to take ahead of their deadline.
The mere receipt of a no-match letter does not lead to penalties. But Immigration and
Customs Enforcement routinely asks firms subjected to I-9 audits whether they have
received no-match letters, which can be used to prove that they had “constructive
knowledge” of employing undocumented immigrants and raise the potential for criminal
charges and hefty fines.
As part of the Trump administration’s crackdown on illegal immigration, ICE has

dramatically increased worksite enforcement. In fiscal 2018, which ended Sept. 30, the
agency initiated 5,981 I-9 audits, compared to 1,360 the previous year.
The Social Security Administration’s current no-match letter instructs employers to register
online to view the names of workers with discrepancies, which creates a record.
It states, “IMPORTANT: This letter does not imply that you or your employee intentionally
gave the government wrong information about the employer’s name or SSN. This letter
does not address your employee’s work authorization or immigration status.”
But it remains unclear whether the Social Security Administration will share information
about discrepancies with the immigration-enforcement agency.
“These employers are low-hanging fruit for ICE,” said Mr. Joseph, the attorney in Denver.
“Employers are left holding the bag unless and until there is clear guidance from the
government about what we should do,” said Michael Neifach, an attorney in Reston, Va.,
who was an ICE general counsel during the Bush administration.
Earlier this month, 46 Democratic members of Congress signed a letter to the acting
commissioner of the Social Security Administration, Nancy A. Berryhill, demanding
suspension of the notifications.
“These no-match letters are simply one more scare tactic meant to target immigrant
communities,” said Representative Jesús “Chuy” García, the Illinois Democrat who
organized the letter.
Another letter, signed by 146 labor and immigrant-advocacy organizations, argued that no-
match letters are ineffective, imperil American citizens and could overwhelm the Social
Security Administration.
Many employers have complained that the resumption of no-match letters is a piecemeal
approach that fails to address the difficulty many employers face in finding legal workers.
“The only remedy to this mess is comprehensive immigration reform,” said Mr. Cunha of the
farmers’ league.
“People are desperate for workers; workers are desperate for legal status,” said Mr. Marek,
the developer. “What we need is a solution.”
A version of this article appears in print on May 16, 2019, Section A, Page 19 of the New York edition with the headline: ʻNo Matchʼ Notices Roil
Industries That Rely on Undocumented Workers
8/2/2019 They Got Hurt at Work. Then They Got Deported. — ProPublica
After Yuliana Rocha Zamarripa hurt her knee at work, an investigator working for her
employer’s insurance carrier reported her for using a false Social Security number. (Scott
McIntyre for ProPublica)
They Got Hurt at Work. Then They Got

Deported.
How insurance companies use a Florida law to get undocumented
immigrants arrested and deported when they get injured on the job —
and what it means in Trump’s America.
by Michael Grabell, ProPublica, and Howard Berkes, NPR News, Aug. 16, 2017, 5 a.m. EDT
This story was co-published with NPR.
Leer en español.
At age 31, Nixon Arias cut a profile similar to many unauthorized

immigrants in the United States. A native of Honduras, he’d been in the
country for more than a decade and had worked off and on for a
landscaping company for nine years. The money he earned went to
building a future for his family in Pensacola, Florida. His Facebook page
was filled with photos of fishing and other moments with his three boys,
ages 3, 7 and 8.
But in November 2013, that life began to unravel.
The previous year, Arias had been mowing the median of Highway 59 just
over the Alabama line when his riding lawnmower hit a hole, throwing Privacy - Terms
https://www.propublica.org/article/they-got-hurt-at-work-then-they-got-deported 1/16
him into the air. He slammed back in his seat, landing hard on his lower
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back.
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Arias received pain medication, physical therapy and steroid injections
through his employer’s workers’ compensation insurance. But the pain in
his back made even walking or sitting a struggle. So his doctor
recommended an expensive surgery to implant a device that sends
electrical pulses to the spinal cord to relieve chronic pain. Six days after
that appointment, the insurance company suddenly discovered that Arias
had been using a deceased man’s Social Security number and rejected not
only the surgery, but all of his past and future care.
Desperate, Arias hired an attorney to help him pursue the injury benefits
that Florida law says all employees, including unauthorized immigrants,
are entitled to receive. Then one morning after he dropped two of his boys
off at school, Arias was pulled over and arrested, while his toddler watched
from his car seat.
Arias was charged with using a false Social Security number to get a job
and to file for workers’ comp. The state insurance fraud unit had been
tipped off by a private investigator hired by his employer’s insurance
company.
With his back still in pain from three herniated or damaged discs, Arias
spent a year and a half in jail and immigration detention before he was
deported.
However people feel about immigration, judges and lawmakers

nationwide have long acknowledged that the employment of unauthorized
workers is a reality of the American economy. From nailing shingles on
roofs to cleaning hotel rooms, some 8 million immigrants work with false
or no papers nationwide, and studies show they’re more likely to get hurt
or killed on the job than other workers. So over the years, nearly all 50
states, including Florida, have given these workers the right to receive
workers’ comp.
But in 2003, Florida’s lawmakers added a catch, making it a crime to file a

workers’ comp claim using false identification. Since then, insurers have
avoided paying for injured immigrant workers’ lost wages and medical
care by repeatedly turning them in to the state.
Workers like Arias have been charged with felony workers’ comp fraud
even though their injuries are real and happened on the job. And in a
challenging twist of logic, immigrants can be charged with workers’ comp
fraud even if they’ve never been injured or filed a claim because legislators
also made it illegal to use a fake ID to get a job. In many cases, the state’s
insurance fraud unit has conducted unusual sweeps of worksites, arresting
a dozen employees for workers’ comp fraud after merely checking their
Privacy - Terms
Social Security numbers.
What’s quietly been happening to workers in Florida, unnoticed even by

immigrant advocates, could be a harbinger of the future as immigration
Enter your email enforcement expands under President Donald Trump. Sign Up
One of Trump’s first executive orders broadened Immigration and

Customs Enforcement’s priorities to include not just those convicted of or
charged with a crime, but any immigrant suspected of one. The order also
targets anyone who has “engaged in fraud or willful misrepresentation in
connection with any official matter or application before a governmental
agency.” That language could sweep in countless injured unauthorized
workers because state workers’ comp bureaus and medical facilities
typically request Social Security numbers as part of the claims process.
In the last few months, a Massachusetts construction worker who

fractured his femur when he fell from a ladder was detained by ICE shortly
after meeting with his boss to discuss getting help for his injury. In Ohio,
Republican lawmakers pushed a bill that would have barred
undocumented immigrants from getting workers’ comp. It passed the
state’s House of Representatives before stalling in the Senate in June.
To assess the impact of Florida’s law on undocumented workers,

ProPublica and NPR analyzed 14 years of state insurance fraud data and
thousands of pages of court records. We found nearly 800 cases statewide
in which employees were arrested under the law, including at least 130
injured workers. Another 125 workers were arrested after a workplace
injury prompted the state to check the personnel records of other
employees. Insurers have used the law to deny workers benefits after a
litany of serious workplace injuries, from falls off roofs to severe electric
shocks. A house painter was rejected after she was impaled on a wooden
stake.
Flagged by insurers or their private detectives, state fraud investigators

have arrested injured workers at doctors’ appointments and at depositions
in their workers’ comp cases. Some were taken into custody with their
arms still in slings. At least 1 in 4 of those arrested were subsequently
detained by ICE or deported.
State officials defended their enforcement, noting that the workers,

injured or not, violated the law and could have caused financial harm if the
Social Security numbers they were using belonged to someone else.
Moreover, the law requires insurers to report any worker suspected of
fraud.
“We don’t have the authority or the responsibility to go out and start
analyzing the intent of an insurance company or anybody else when they
submit a complaint to us,” said Simon Blank, director of the Florida
insurance fraud unit. “It would be unfortunate,” he said, if insurers turned
in injured workers “just to do away with claims.” Privacy - Terms
Blank insisted that his investigators’ efforts have nothing to do with

immigration. But ProPublica and NPR’s review found that more than 99
Enter your email percent of the workers arrested under the statute were Hispanic Sign Up
immigrants working with false papers.
While Florida’s statute is unique, insurers, hardline conservatives and

some large employers have been battling across the country for the past 15
years to deny injury benefits to unauthorized immigrants, with occasional
success. In a little-noticed ruling last fall, an international human rights
commission criticized the United States for violating the rights of
unauthorized immigrants, including a Pennsylvania apple picker who was
forced to settle his case for a fraction of the cost of his injury and a Kansas
painter who was unable to get the cast removed from his broken hand until
he was deported to Mexico.
In Florida, cases against such workers have become standard practice for a
group of closely affiliated insurers and employers. The private
investigative firm they employ has created a wall of shame, posting the
arrests it’s been involved in on its website. Critics say the arrangement
encourages employers to hire unauthorized immigrants, knowing they
won’t have to pay for their injuries if they get hurt on the job.
“It’s infuriating to think that when workers are hurt in the United States,
they’re essentially discarded,” said David Michaels, the most recent head
of the federal Occupational Safety and Health Administration. “If
employers know that workers are too afraid to apply for workers’
compensation, what’s the incentive to work safely?”
The law’s real-life ramifications came as a surprise to one of the lawyers

who helped draft it and who had no idea it had been used to charge
hundreds of workers who’d never been hurt on the job.
“How is there insurance fraud if there’s no comp claim?” asked Mary Ann
Stiles, a longtime business lobbyist and attorney for insurers. “That would
not be what anybody intended it to be.”
In Arias’ case, records show he never wrote the false Social Security
number on any of the various forms related to his claim. It was printed
automatically by the insurance carrier, using information from his
employer. But that didn’t stop the state attorney from charging him with
42 counts of insurance fraud — one for every form the number appeared
on.
As part of the prosecution, investigators demanded Arias pay back

$38,490.51 to Normandy Harbor Insurance for the medical care and
benefits checks he’d already received for his injury. The insurer declined to
comment. Back in Honduras, Arias, who struggles with chronic back pain,
has been unable to find more than odd jobs. And he hasn’t seen his three
Privacy - Terms
U.S.-born sons in more than two years.
The whole time in detention, “I was always asking, ‘Why? What’s the
reason I’m here? I haven’t done anything, I haven’t stolen anything, I
Enter your email haven’t killed anyone,’” Arias said by phone from his rural village in the Sign Up
state of Copán. “I was just working for my kids.”
The website of Command Investigations, located just outside Orlando,

boasts of its success in hunting down workers’ comp fraud, posting like
trophies a gallery of mugshots of mostly Hispanic men and women. But
most of those pictured weren’t nabbed jet-skiing with a fake knee injury.
They are legitimately injured workers who Command investigators caught
using false Social Security numbers.
Command, which tipped the state

off to Arias, opened up shop in
2012 and quickly rose to
prominence in Florida by catering
to the lucrative employee leasing
industry. Unlike temp agencies,
which find workers and task them
to businesses, employee leasing
companies promise to lower
businesses’ overhead by hiring
their employees on paper and
then leasing them back. The basic
premise is that by pooling the risk
of several small businesses, Command Investigations boasts of its
leasing companies can bargain for fraud arrests on its website, but most of
those pictured are legitimately injured
better insurance rates. Such a
workers caught using false Social
setup is especially attractive to Security numbers.
mom-and-pop firms in dangerous
industries, such as construction.
One of Command’s first big clients was Lion Insurance, whose affiliate
SouthEast Personnel Leasing serves as the employer of record for more
than 200,000 employees nationwide. According to its website, SouthEast
generates $2.3 billion in annual revenue — about as much as clothing
retailer J. Crew or the restaurant chain Red Lobster.
Since 2013, nearly 75 percent of the injured immigrants arrested in Florida

for using false IDs were turned in by Command — and half worked for
SouthEast, ProPublica and NPR found. SouthEast has had 43 injured
workers arrested for using false Social Security numbers — more than any
other company.
One reason: SouthEast, as well as its insurance carrier, Lion, and its claims
processor, Packard Claims, are all owned by the same person. The unusual Privacy - Terms
arrangement gives the company more control over injury claims and a
consistency other firms specializing in high-risk industries can’t provide.
Enter your email But critics say it benefits SouthEast in more pernicious ways: Knowing that Sign Up
Lion and Packard can deny the claims of unauthorized workers allows
SouthEast to offer discounts to contractors that other leasing firms can’t.
“They sign up these companies knowing full well that 95 percent of the
employees are immigrant workers,” said Cora Cisneros Molloy, who
recently began representing injured workers after two decades defending
employers and insurers. “Only after an accident occurred do they
determine they’re going to do an investigation and check that Social
Security number.”
Controlling the empire from a six-story office building surrounded by

palm trees in Holiday, Florida, is John Porreca, 68, who grew up in
Philadelphia and worked in the leasing business before buying SouthEast
with his wife in 1995. Despite owning one of the largest private companies
in Florida, Porreca has managed to stay out of the public eye, showing up
in the local press only rarely, such as when he donated the money for a
baseball field for disabled children or bought a $4 million beachfront
mansion, the size of which rankled neighbors.
Porreca didn’t respond to multiple messages left at his office or home over
the course of a month. In an email, Brian Evans, an attorney for SouthEast,
said Porreca declined to comment other than to say that SouthEast
“strictly adheres” to the law and is not responsible for what happened to its
workers, even though the company’s investigators reported them to the
state.
Command’s president Steve Cassell also declined interview requests,

citing confidentiality agreements with his clients.
Bram Gechtman, a Miami attorney who has represented several injured

SouthEast workers, said the sheer number of cases in which Lion and
Packard discovered workers’ false IDs only after they were injured raises
the question of why SouthEast doesn’t do more to screen its hires.
“If I had a situation where I had all these people defrauding my company
over and over and over again, allegedly, I would do something to try to stop
it,” he said, “unless there was another reason why I didn’t want it to stop.”
Command and SouthEast have recently expanded to other states. Last

year, a woman in Georgia was arrested for identity theft after a cart ran
over her foot at a meatpacking plant and Command turned her in to the
state workers’ comp bureau. In California, two staffing agencies sued
SouthEast, saying its claims processor routinely denied workers’ comp
claims based on immigration status, leading to litigation that increased the
cost of the claims.
Privacy - Terms
For workers, welcomed without

question until they get hurt,
Enter your email getting caught in Command and Sign Up
SouthEast’s dragnet can upend

otherwise quiet lives. Berneth
Javier Castro originally came to
the United States on a tourist visa
in 2005 searching for the woman
he’d loved and lost during the war
in Nicaragua in the 1980s.
Unable to find her and facing

debts back home for his house and
his daughter’s school, Castro, now
52, overstayed his visa and found
work at a St. Augustine roofing Lucía Escobar lives outside Miami, but her
company in 2007. Initially, he was husband is now in Nicaragua after he was
injured in a roo ing accident and an
paid in cash under the table. But
insurance investigator reported him to the
after a few months, the company state, setting off immigration
said he needed a Social Security proceedings. (Scott McIntyre for
ProPublica)
number to continue working. So
he bought one. It was the only way
he could get work, he said.
In 2011, Castro finally reconnected with Lucía Escobar using modern

technology — he found her on Facebook. Escobar, 48, who had received
asylum and is now a U.S. citizen, was going through a divorce. They began
talking every day and planned to be together once the divorce was final.
Like many unauthorized workers, Castro feared he’d be deported if he

reported an injury. So when he sliced his pinkie on some copper sheeting
and got nine stitches, he stayed quiet and kept working. But a few months
later, when he wrenched his back passing a load of tiles to a coworker on a
roof, the company sent him to a clinic.
There, a company representative filled out the form since it was in English,
Castro said. He didn’t recall the Social Security number he’d used, so the
representative got it from the company and put it on the form.
The clinic gave Castro some pills for the pain. But when he returned for the
follow-up appointment, he was told there was a problem with his Social
Security number. Castro never returned and treated his back with heating
pads and pain relief balms. He figured that was the end of it and continued
working for the company for nearly a year.
Then in November 2013, state investigators turned up at his home and

arrested him for insurance fraud. He had been turned in by a Command
investigator working for Lion. Privacy - Terms
The workers’ comp fraud charges were eventually dropped, but Castro
pleaded no contest to fraudulently using someone else’s identity. He spent
Enter your email five months in jail and was facing deportation before a judge granted him a Sign Up
voluntary departure to Nicaragua.
“The fake number, I understood because I needed it to work, but I didn’t

understand the fraud,” Castro said by phone from Managua. “I’m not an
irrational man. I’m not a criminal. So I didn’t understand where I might
have committed fraud. It didn’t make sense to me. I never filled out a
document asking for anything looking for compensation.”
Escobar sensed something was wrong when she suddenly stopped hearing
from him. Then his phone was disconnected. “Every day, I went on
Facebook, hoping and writing to him,” she said.
Months later, when he finally called her from Nicaragua, she was at once
relieved and despondent. In 2015, after her divorce was final, she flew to
Nicaragua and married him. But they still live separately, Castro in
Nicaragua and Escobar outside Miami, where she cares for her grandson.
They are applying for Castro to return, but the conviction could stand in
his way.
“It’s sad because when you get married, you want to be with your
husband,” Escobar said. “We waited for so long to be together.”
Escobar talks on a video call with her husband in Nicaragua. They are applying for him to
return, but his conviction for using a false Social Security number could stand in their way.
(Scott McIntyre for ProPublica)
Over the years, numerous courts have upheld the rights of unauthorized
workers to receive compensation for workplace injuries, the minimum Privacy - Terms
wage and protection from retaliation for joining unions. The rights stem
from their status as employees regardless of their status as immigrants.
A Florida appeals court, for example, ruled in 1982 that “an alien illegally
in this country” is entitled to workers’ comp benefits.
That presumption was thrown into doubt in 2002 when the U.S. Supreme
Court ruled that a group of undocumented plastics workers fired for union
activities weren’t entitled to back pay because of their immigration status.
Insurers and large employers immediately flooded the courts with
petitions designed to claw back labor protections for unauthorized
immigrants. Leading the fight in Florida were employee leasing firms.
The petitioners argued that undocumented immigrants weren’t entitled to

workers’ comp since their employment was obtained illegally. Lawmakers
in several states, from Colorado to North Carolina, introduced bills to block
claims by unauthorized workers.
As states courts and legislatures rejected that argument, insurers began

pushing to deny immigrants disability benefits, arguing that once their
unauthorized status was known, they couldn’t return, like other workers,
to less intensive jobs. That reasoning succeeded in Michigan and
Pennsylvania, but not in Delaware and Tennessee.
In the last few years, employers and insurers have begun using a new
tactic, arguing that they should only be responsible for paying lost wages
based on what the immigrant would have made in their home country. In
Nebraska, for example, meatpacker Cargill tried to cut off benefits to
Odilon Visoso, who was injured when a 200-pound piece of beef fell on his
head, saying it was too difficult to determine what he could earn in
Chilpancingo, Mexico, a crime-ridden city controlled by drug cartels near
his rural, mountainous village. Nebraska’s Supreme Court told the
company to use Nebraska wages.
Florida’s 2003 law was part of a sweeping overhaul aimed at lowering costs
for employers. According to a state Senate review, the division of
insurance fraud had pushed for the provision, arguing that “many times
illegal aliens are in league with unethical doctors and lawyers who bilk the
workers’ compensation system.” It was easier to prove that immigrants
had lied about their identities, the agency said, than to prove their injuries
were fabricated.
In recent interviews, however, representatives from the state fraud unit

and insurance industry couldn’t identify a single case where immigrants
had worked with doctors and lawyers to defraud workers’ comp. Instead,
they noted that false Social Security numbers impede insurers’ ability to
investigate claims. In addition, they said, those claims could prevent the
people whose identity was stolen from getting benefits if they are injured
Privacy - Terms
in the future.
Stiles, the attorney who was a key architect of the law, said the state’s
construction industry was rife with fraud at the time and there was a lot of
Enter your email concern about illegal immigration. She said even immigrants who are Sign Up
“truly injured” should be denied benefits if they’re using illegal documents

for their claim and “they shouldn’t be here in the first place.”
“I think we’re a nation of laws and we ought to be able to enforce those

laws,” she said. “And if the federal government won’t do it, sometimes the
state has to help itself.”
Within months of the provision passing, though, the Senate’s Banking and
Insurance Committee recommended reconsideration, raising concerns
that legitimately injured workers could be disqualified. But that advice was
never heeded. The first criminal cases under the law showed up in 2006.
The law netted laborers, farmworkers, roofers and landscapers. Several,
like Arias, were hurt while working on public projects — renovating
schools or pouring concrete at the zoo. But ProPublica and NPR also found
arrested workers who’d been injured at McDonald’s and Best Western and
turned in by major insurers like Travelers, The Hartford and Zurich.
In one case, state investigators found that more than 100 workers were all
using a Social Security number belonging to a 10-year-old girl.
In another in 2014, an attorney for

an injured worker complained to
the state that a fruit-packing
company frequently used
immigration status as leverage in
settlements. Instead of going after
the company, investigators raided
the plant and arrested 106
immigrants, including the injured
man’s wife.
One of SouthEast’s first cases

involved a hotel housekeeper at
the Comfort Suites in Vero Beach.
Yuliana Rocha Zamarripa was
cleaning a hotel room in 2010 While Rocha was in jail, the father of her
when she slipped on a bathroom children began sexually assaulting her 10-
year-old daughter. “I was left shattered,”
floor and slammed her knee on she said. (Scott McIntyre for ProPublica)
the bathtub, leaving her with pain
and swelling so severe she was
unable to walk.
Lion sent her to a doctor, but quickly denied her claim based on a false
Social Security number.
Privacy - Terms
Rocha’s mother had brought her to the United States from Mexico when
she was 13, and when she turned 17, her father bought her the fake ID so
Enter your email she could work. Sign Up
With few options, Rocha, now 32, settled her workers’ comp case for less
than $6,000 plus attorney fees. But she never got the medical care she
needed. The week before she was to receive the check, she was arrested
while making breakfast for her 4-year-old son.
Rocha spent the next year cycling through jail and immigration detention,
separated from her three children. She couldn’t sleep, worrying what
would happen to them if she were deported.
“I said the Lord’s Prayer all the time, and I would end by asking, ‘God, give
me a chance to return to my children. Don’t let anything bad happen to
them,’” she said. “I had a feeling that something was not right.”
Rocha’s instincts were correct. While she was in jail, the father of her
children started sexually assaulting their 10-year-old daughter, according
to his arrest warrant. “I was left shattered,” Rocha said tearfully, “because I
didn’t know what was happening.”
With the help of an attorney, Rocha pleaded to a lesser charge — “perjury

not in an official proceeding” — and was finally released. Because of what
happened to Rocha’s daughter, the attorney was able to get Rocha’s
deportation canceled and help her obtain a green card.
Rocha eventually received her settlement but had to spend all of it

securing her release and dealing with immigration. She now walks with a
limp because her injury didn’t heal correctly.
“I think it’s an injustice what happened to me,” she said. “All because I fell,
I slipped.”
The sting had been meticulously planned for weeks. The day before,
detectives had scoped out the site — a two-story office building resembling
a Spanish colonial mansion near downtown Fort Myers. Before the arrest,
they tucked out of sight to surveil the building’s back entrance from across
the street, according to the detective’s case report.
The time and manpower wasn’t to nab a gang member or drug dealer, but a
coordinated effort with Command to snare a 27-year-old roofer who was at
a court reporter’s office to testify in a deposition for his workers’ comp
case. A year earlier in 2014, Erik Martinez was working on a roof when a
nail ricocheted and hit him in the left eye. He was seeking medical care
and lost wages, but like many construction workers, he was using a false
Social Security number.
Privacy - Terms
Though it was ostensibly a Florida Department of Financial Services

operation, a state detective had worked closely with an attorney for Lion
Enter your email on a plan to alert officers in the final minutes of the deposition. In between Sign Up
questions, the attorney emailed the detective, at one point providing a

description of Martinez’s clothing.
“We moved our position to the back parking lot,” the detective wrote in his
report, “where we awaited word that the deposition was nearing an end.”
Upon receiving confirmation, the detectives moved in, arresting Martinez
as he exited the office.
Despite the extensive effort, the state attorney declined to prosecute. But
the detective’s narrative reveals a larger story: In most of the injury cases
reviewed by ProPublica and NPR, state fraud detectives were handed a
packet from private investigators with nearly all the information needed to
make an arrest.
During an hourlong interview in Tallahassee, Simon Blank, who heads the

department’s Division of Investigative and Forensic Services, said his
detectives conduct their own investigations and make their own decisions.
Arrests at depositions, he said, only occur when they have a hard time
locating somebody.
“The thing that you need to keep mind is these people are committing
identity theft,” Blank said. “They’re taking somebody else’s Social Security
number or somebody else’s personal information to obtain the work.”
While Blank repeatedly expressed compassion for immigrant workers who

are legitimately injured, he noted that people whose Social Security
numbers are used could face problems with their credit or getting medical
care if a claim that wasn’t theirs showed up in their records.
The widow of the Mississippi man whose Social Security number Arias was
using, Carolyn Lasseter, said it hadn’t affected her, but she doesn’t “feel
sorry for people that are over here illegally.” When she bought a house after
her husband’s death, the bank informed her that a different man had used
his number to take out, and pay on, a loan, but it was easily fixed.
Blank’s office has been accused by some attorneys of unconstitutionally

using the workers’ comp law to engage in immigration enforcement. “The
real intent behind what they’re doing is to regulate immigration,” said
Florida immigration attorney Jimmy Benincasa, “because they don’t feel
the federal government is doing enough.”
He and others point to a 2012 U.S. Supreme Court ruling that shot down a
series of Arizona immigration statutes, including one that made it a crime
for unauthorized immigrants to apply for, solicit or perform work.
Privacy - Terms
“Congress decided it would be inappropriate to impose criminal penalties

on aliens who seek or engage in unauthorized employment,” the court
Enter your email wrote. “It follows that a state law to the contrary is an obstacle to the Sign Up
regulatory system Congress chose.”
The court noted that while federal law makes it a crime to obtain
employment through fraudulent means, the forms and documents that
workers submit to get jobs can only be used for federal prosecution — not
for state enforcement.
“Our agency is not in the business of going after illegal people,” Blank said.
“There’s quite a lot of other circumstances why people use fake names and
IDs and Social Security numbers aside from immigration. You have people
who might have other legal problems. You have people who are wanting to
stay off the books for specific reasons, whether its divorces or liens put
against them.”
Among the nearly 800 cases that ProPublica and NPR identified, only five
fit the reasons Blank cited. Blank seemed unaware that earlier this year, his
own office’s annual report noted that “nearly 100 percent” of the suspects
investigated under the statute were undocumented workers.
“It appears that it’s being applied in a discriminatory fashion,” said Dennis
Burke, the former U.S. attorney in Arizona who challenged that state’s
immigration statutes. “How do you justify your enforcement being 99
percent Latino surnames?”
Burke predicted Florida would have a tough time defending the law if it’s
ever heard on constitutional grounds. After the Arizona ruling in 2012, one
attorney challenged the Florida statute’s constitutionality, but both Florida
and U.S. supreme courts declined to take the appeal. Unlike Arizona’s law,
the statute doesn’t mention immigrants specifically. But Burke said the
enforcement data and the stated intent to target immigrant fraud rings are
problematic.
Told of what had happened to some of the arrested workers, Blank said he
felt for those people but reiterated his agency’s obligation to protect the
workers’ comp system.
“I guess that is a question that our legislature should maybe look into,” he
said. “What is the balance between the harm and the benefit that’s being
accomplished?”
Privacy - Terms
In 2015, Juvenal Dominguez Quino was arrested for using a false Social Security number in
his claim. “My son was watching” from a window, he said. “He saw when they put the
handcuffs on me.” (Scott McIntyre for ProPublica)
Juvenal Dominguez Quino worries what will happen to his 8-year-old son
with special needs if he gets deported. Dominguez, 43, has lived in the
United States for 19 years. But his life was thrown into uncertainty in 2014
when a construction trench he was working in collapsed, burying him in
dirt and causing him to sprain his knee.
A month later, Command turned him in to state investigators after he

provided a false Social Security number to an insurance adjuster.
Dominguez said he told the adjuster he didn’t have papers and had made
the number up in order to work — details that by themselves wouldn’t
preclude him from receiving workers’ comp. But Dominguez said the
adjuster insisted she needed the number to pay him benefits. Sunz
Insurance and North American Risk Services, who handled the claim,
declined to comment.
Dominguez was arrested in January 2015 as he was getting his son ready
for school.
“My son was watching” from a window, he said, choking up. “He saw when
they put the handcuffs on me.”
At the time, Dominguez still couldn’t bend his knee, so he had to sit with
his legs extended across the backseat of the police car.
Dominguez pleaded no contest, and the judge sentenced him to two years
probation and ordered him to pay back nearly $19,000 in restitution to the
insurance company. He was detained by ICE and put into deportation
proceedings.
Privacy - Terms
Michael DiGiacomo, owner of Platinum Construction, which employed

Dominguez, was surprised to hear what had become of him. DiGiacomo
Enter your email said Dominguez was a reliable worker, and he didn’t know his documents Sign Up
were fake. After Dominguez got hurt, he said, his injury was in the hands
of the leasing company and their insurer.
“It really sucks for him because, you know, you come and you want to
work; it sucks to have to deal with that after you got hurt,” he said. “They
should have at least paid for his medical bills since he was hurt on the job.”
Dominguez’s attorney has argued

for a judge to cancel his
deportation because of the
harmful effect it would have on
his U.S.-born son. His attorney is
hopeful he will get a visa to stay.
Even if he does, the insurance

company scored a victory — it got
Dominguez and his medical costs
to go away. “I didn’t want to do
any more of anything,” he said of
his physical therapy. “I didn’t
want to claim anything else. I just
wanted to live with it because I
knew that it would only bring me Dominguez worries what will happen to
more problems.” his 8-year-old son, who has special needs,
if he is deported. Dominguez was arrested
after a construction trench collapsed on
Nixon Arias’ attorney Brian Carter
him. (Scott McIntyre for ProPublica)
said what the state and insurance
companies are doing amounts to
entrapment and ethnic profiling.
“Nobody looks at whether or not the Social Security number is valid for an
individual named Tom Smith,” he said. “The insurance companies are
using this little issue over a Social Security number to avoid any financial
responsibility, and in my opinion, ethical responsibility to take care of
these individuals.”
In the end, turning in Arias didn’t get the insurer off the hook. Because the
state attorney offered a plea deal, Normandy would’ve had to convince a
workers’ comp judge that Arias had not only used a fake Social Security
number but that he had done so to obtain benefits. If it couldn’t, it would
have had to pay for medical treatment and lost wages potentially totaling
hundreds of thousands of dollars, Carter said. So with Arias in Honduras,
Normandy offered $49,000 plus attorney’s fees.
Sent back to a country he hadn’t lived in for 15 years, Arias felt he had no
Privacy - Terms
choice but to take the offer. “I arrived empty-handed,” he said. “I didn’t
have means to put a roof over my head or feed myself or buy medications.”
Enter your email Despite having the settlement money, Arias said he doesn’t trust the Sign Up
doctors in Honduras to perform a delicate back surgery. “Here, they’re
more likely to send you to the cemetery,” he said. He hopes the United
States might allow him to reenter for humanitarian reasons, just to let him
get the operation — and perhaps see his kids.
Research contributed by Meg Anderson and Graham Bishai of NPR and Sarah
Betancourt of ProPublica. Translation services contributed by Donatella Ungredda.
Do you have information about how immigrant workers are being treated in the age of
Trump? Contact Michael at michael.grabell@propublica.org.
Michael Grabell
Michael Grabell writes about economic issues, labor, immigration
and trade. In 2018, he was part of a team that was a inalist for the
Pulitzer Prize for public service for their coverage of President
Trump’s family separation policy.
michael.grabell@propublica.org Michael Grabell

@MichaelGrabell Signal: 347-573-3030
Privacy - Terms
Negotiating on Behalf of Immigrant Workers
It is important to be well prepared for phone negotiations with employers or opposing counsel. Every negotiation
is different but some themes remain consistent. This handout summarizes some common considerations and helpful
strategies to keep in mind for WRC phone negotiations. Bear in mind that the particular facts of a case might present
issues that are not discussed here. The scripts and suggested responses below are intended as a general guide to give you
an idea of how a call could proceed. Always discuss the specifics of the case with your supervising attorney before
placing a call. .You should not read from this document or try to follow any of the suggestions verbatim. Always use
language that is natural to you
As a law student, always remember, you are ethically obligated to consult with both your client and your
supervising attorney throughout settlement negotiations and certainly before accepting any offer.
Planning and preparation for initial phone call

o Know the facts of your case and have relevant documents/correspondence in front of you during the call.
o Talk to your client and make sure you understand their goals and priorities (recover wages, try to improve
working conditions, educate employer, avoid retaliation, get a W2 or other information).
o Brainstorm as many scenarios as you can and prepare responses.
o Think about your opponent’s interests and the ways they match or differ from your client’s.
o Consider carefully what information or evidence should remain confidential for strategic or privacy reasons.
o Role play with another student and supervising attorney.
Goals for Conversation

o Tone:
 Be friendly: “calling to see how we can resolve this matter quickly and amicably”
 Give the employer the benefit of the doubt (maybe they made a mistake)
 “We would like to help resolve this matter,” “follow up our after our letter,” “touch base”
o Active listening (and note-taking):
 Obtain information. Let the employer do the talking; use questions to encourage them to offer information
 Identify counter-arguments, obstacles to accomplishing your goals, and new facts
 Listen for employer to acknowledge wrong-doing or certain aspects of the claim
o Be flexible and stay focused on your client’s goals:
 Be ready to follow unexpected turns in the conversation (including the examples listed on this guide)
 Don’t let the employer derail the conversation; return the focus of the call to your client’s rights and goals
and why compliance is in everyone’s best interest
 If you are unsure how to handle a situation that has arisen on the call, you can always explain that you
need to speak to your supervising attorney before proceeding.
o Offer information in persuasive and respectful manner:
 Give strong facts and legal arguments in a simple, conversational, and persuasive manner.
 Convey your belief in the strength of your case and desire for an agreement/resolution without need for
further legal action
1
Possible script for beginning of phone call
o “Hi, may I please speak with Mr./Ms [Employer]?”
o “My name is ___ and I am a law student calling from the University of Arizona Workers’ Rights Clinic. We
provide legal advice and assistance to low-wage workers in Tucson, and today I am calling you because we
represent [Mr./Ms. client]. We wanted to talk to you about work that [Ms./Mr. Client] did for you October and
November of last year for which s/he told us s/he wasn’t paid. Do you have an attorney representing you in this
matter?”
*important*: if the employer has an attorney, immediately ask for the name and do not communicate further.
o “Based on the information that [client] provided to us, it looks like s/he is still owed $___ for the work s/he
performed for you. S/he has a right to claim $__ , or three times that amount in court, but S/he’s hoping that won’t
be necessary. That’s why I’m calling now, to discuss this with you to see how we can resolve the situation.”
Answering machine
o If it is an employer’s cell phone or home phone, use best judgment whether to leave a message (and how detailed)
o If it is a business phone, leave your name and number and mention you are calling from the University of Arizona
Workers’ Rights Clinic to speak with ___.
How will the Employer respond?

The call could go in many different directions from here. This chart outlines some typical employer/opposing counsel
responses and suggested responses for WRC law student representatives.
Scenario Examples Tips/Strategies Suggested Responses

“I have been It helps to be upbeat, “Great, this is why we like to reach out to the
Agreeable trying/wanting to pay but I give them the benefit of employer before taking any action, we assumed you
did not have a current the doubt, act as though had been trying to pay the wages due and we are glad
Employer address” you assumed they were we can facilitate easy payment.”
willing to pay the
wages due and you just “Go ahead and mail a check, made payable to worker
wanted to call to clear to our address or feel free to drop the check off at our
up the office between 9-5”
confusion/facilitate
easy payment. “We completely understand your situation and we are
willing to work with you to set up a payment plan.
When can you meet with us here in the office to
discuss paying in installments?”
Make a note in the file
Employer and consider alternative
next steps.
hangs up
If the employer
threatened you or the
client on the phone, you
may want to call back
to discuss the illegality
of retaliation, see notes
on how to respond to
threats or retaliation
below.
2
Employer “I can’t believe he called Be firm in your “Our Law Clinic takes threats seriously and we want
verbally you, I’ll tell you, that response about to make sure you are aware that any negative actions,
makes me so mad. I know unlawful retaliation. including the threats you just made on the phone, are
threatens where he lives and he presumed to have been taken in retaliation for our
worker or knows I do. He has some Take accurate notes of client’s attempts to enforce their workplace rights.
clinic with of my equipment too. I am what was said, date, Such retaliation is illegal under Arizona and federal
retaliation, going to have to call the time. law and carries steep penalties.”
police report, police.”
After speaking with “This is the first I’ve heard about the stolen property,
or anything “You better watch out. I supervising attorney, why didn’t you mention it before? What is it? I have
else don’t take it lightly when notify the client after to tell you, the laws define retaliation in a way that
someone calls and the call and tell them to assumes threats like this are retaliatory because you
threatens me on the phone inform us immediately only brought this up after you received the demand
without even knowing if anything bad letter. None of this is relevant to the wages that are
anything about me.” happens. Also verify owed to him/her. I need to know if you are interested
the accuracy of the in paying the wages owed and resolving the matter
[Employer claims worker employer’s statements informally or whether we will have to proceed to a
stole something, still has by discussing them legal action.”
employer’s property, with client.
abused a patient, etc.] “I ask you to refrain from speaking to our client or
going near his property. If we hear of any further
negative actions taken on your part, we will take
immediate action to protect [client’s] interests.”
“It is our sincere hope that we are able to resolve this

matter amicably; we only want to recover the wages
for the work __ performed on __. If we are able to
work something out now, it would avoid any labor
complaint or legal action.”
“Are you willing to discuss this matter with us in an

effort to resolve it?
“I don’t have the money Make sure the ER “I understand the difficult situation you must be in,
Employer right now. Believe me; I’d knows you heard but I think we can work together to figure this all out.”
pay her/him if I could. I his/her concerns and
makes like her/him. She/he did that you acknowledge “I understand your financial troubles, but our client
excuses re good work for me. I just their situation. has bills to pay and kids to feed too. He/she did the
financial need to put food on the work to earn money to feed his/her family and the law
hardships or table for my own kids.” Make sure they says you have to pay your workers. So, we are going
waiting for understand we want to to have to figure out a solution. Would you be willing
“I didn’t get paid either. I work with them to to pay in installments? Why don’t we meet in person
payment on can’t pay your client until I reach a fair resolution. to discuss a solution that works for everyone.”
the project get paid on the contract.”
Remind them of their “When do you expect to be paid?”
legal obligations.
“Well, it is unfortunate how tough business can be
sometimes, but in this situation, you are still
responsible under state and federal wage laws to pay
your workers, regardless of whether you were paid. It
is just what the law says. You are the employer for
our client, and it does not matter what happens
between you and your contractor.”
“We much prefer to work this out through a friendly

negotiation but the law says our client has the right to
get the wages he/she earned. We are willing to help
them with a legal action if necessary but we really
hope we can just work it out with you.”
3
“I know I still owe him/her Acknowledge the “Well, Mr./Ms.___ has provided a detailed written
Employer money but it is not that disagreement and the account of the days and hours worked so we would be
much. If that is what fact that we frequently more than happy to compare those with your written
claims to owe he/she told you, it is a encounter such records from the time that the work was done. Please
less money blatant lie.” disputes. Explain that email or fax copies of your records to us at the Law
the payroll documents Clinic. We should be able to figure this out easily.”
will sort it out.
Note, if needed: “State and federal law give employees
and their legal representatives the legal right to copy
and inspect payroll documents. We are exercising this
right now.”
Employer does not have “State and federal law requires employers to maintain
Any records or demands to see accurate copies of all records. There are no legal
worker’s evidence requirements for workers to keep payroll records.
discussion And if an employer doesn’t keep those records, judges
about records look to the employees’ records or testimony to
or evidence determine the wages owed.”
“There are civil penalties for employers who failed to

maintain records. And the courts presume that the
employer did not pay the minimum wage if there are
no payroll records. So, if you do not have any
records, we can work together to resolve this without
having to go before a judge.”
“Yeah, you know, she/he Make sure you “Yeah, it is kind of a tough situation because the state
Employer did work for me, but I had acknowledge this and federal law says that the employer is required to
to go back and redo all the concern and take notes pay the employee for all hours worked, regardless of
claims worker work she/he did. She/he so you are able to how they performed the job. If you are not happy
did a poor job totally screwed it up. verify the accuracy of with your employee’s performance you can talk to
She/he did not even finish this statement with the them or even fire them. But, you still have to pay
the last job and I told worker. them for the work they performed.”
her/him to go home. She
broke one of my tools that Explain the law in basic “The incident you described is unrelated to the wages
I had to pay $300 dollars terms that are due. The law says you are not able to deduct
to fix.” money from wages for any reason without the
workers’ written consent.”
If this is a minimum wage situation: “The law says

you have to pay workers at least the minimum wage
for all hours worked.”
Employer “He/she was not even an “Well if I understand the situation correctly, our client
claims worker employee – I just hired performed work under your supervision and we think
him/her to do that one job. that under the law, s/he was an employee entitled to
was an I don’t have to pay the the minimum wage/overtime. We would like to work
independent minimum wage.” with you to figure this out and get the wages that are
contractor and legally owed to this worker. At this point, there is no
not entitled to need for any legal action because we hope we can
minimum resolve this situation in a friendly way.”
wage or
overtime
4
“She/he is illegal. There Make sure to take “His/Her immigration status is completely irrelevant.
Employer are major problems with accurate notes of this You already hired him/her and s/he already performed
her/his identity; she/he conversation. the work. The laws are very clear that in this situation
brings up gave me a false social you have to pay the worker for all hours worked.”
immigration security number. I have After speaking with
status been meaning to call the your supervising “We also want to make sure you know that it is illegal
immigration authorities attorney, be sure to talk to retaliate in any way. Immigration status is
about this but I was going to your client about this completely irrelevant, but if you try to contact
to be nice. If she/he tried conversation so they immigration authorities after having received this
anything I will call them are aware that the threat demand letter or if you take any other negative action,
for sure. I do not have to was made. Tell them to that is illegal. Our clinic takes this very seriously and
pay her/him.” talk to us immediately we will do everything we can to protect our client’s
if anything happens. rights in the face of illegal retaliation.”
“Yeah, we are willing to Assume the employer is First try: “Well, I understand your concern, however,
Employer pay but we need a social merely trying to in this situation you already hired him, he already did
security number first” comply with their IRS the work and he has the right to be paid under state
demands obligations and has no and federal law. The work was performed and it has
payroll bad intentions. (But be to be paid for even if you forgot to comply with your
paperwork prepared to respond to IRS obligations when you hired __.”
(social retaliatory threats)
security (Speak with your supervising attorney about the
different ways to resolve this problem.)
number or a
W-4 or I-9
form)
Ending the phone call

 Goals (depending on nature of call)
o Pin down a date by which the ER will mail a check made payable to the client to our address;
o Schedule a meeting with the ER to discuss the matter further;
o Establish a date when you will follow up or expect to receive information from ER.
 Possible Scripts
o “I appreciate your time and I hope you will consider working with us to resolve this matter without any
need for legal action. I will make a note in the file so the Clinic Director knows we spoke and you are not
willing to pay wages due at this time. Please don’t hesitate to contact me if you would like to follow-up.”
o “I will send you a letter summarizing our client’s legal claims and will follow up with you regarding that
letter. Do you have an email address you would like me to send it to? [be sure to get good mailing/email
addresses]”
o “We will advise our client of his/her right to file a claim regarding this issue, but please contact me if you
would like to try to resolve this before that happens.”
o If retaliation was an issue during the call or if the client as a particularly acute fear of retaliation:
“Please remember that retaliation taken against our client is illegal under state and federal law. If we hear
of negative action taken against our client we will take every legal action to protect their rights.”
Record-Keeping and Follow-up

o Type up a summary of the phone call in the case activity sheet, including important information learned, any
retaliatory threats, agreement, next steps, or expected action on the employer’s part. Also record all contact
information used (telephone number) and or obtained
o Speak to your supervising attorney and client immediately if there were any retaliatory threats.
o Communicate any settlement offers to your supervising attorney and strategize about how to communicate
this information (and other related information or legal advice) to the client.
o Mark any relevant follow-up dates on your calendar.
5
SELECTED EXCERPTS FROM RULE 42,
THE ARIZONA RULES OF THE SUPREME COURT,
RULES OF PROFESSIONAL CONDUCT
Rules of Professional Conduct
1. Client-Lawyer Relationship
2. Counselor
3. Advocate
4. Transactions with Persons Other Than Clients
5. Law Firms and Associations
6. Public Service
7. Information About Legal Services
8. Maintaining the Integrity of the Profession
1. LAWYER-CLIENT RELATIONSHIP
ER 1.0. Terminology
(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question
to be true. A person's belief may be inferred from circumstances. .
(d) "Fraud" or "fraudulent" denotes conduct that is fraudulent under the substantive or procedural
law of the applicable jurisdiction and has a purpose to deceive.
(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after
the lawyer has communicated adequate information and explanation about the material risks of
and reasonably available alternatives to the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A
person's knowledge may be inferred from circumstances.
(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.
(m) "Tribunal" denotes a court, an arbitrator in an arbitration proceeding or a legislative body,

administrative agency or other body acting in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument by a party or parties, will render a legal judgment
directly affecting a party's interests in a particular matter.
Comment
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent
of a client or other person (e.g., a former client or, under certain circumstances, a prospective
client) before accepting or continuing representation or pursuing a course of conduct. See ERs
1.2(c), 1.6(a), 1.7(b), 1.8(a), and 1.9(b). The communication necessary to obtain such consent
will vary according to the Rule involved and the circumstances giving rise to the need to obtain
informed consent. The lawyer must make reasonable efforts to ensure that the client or other
person possesses information reasonably adequate to make an informed decision. Ordinarily, this
will require communication that includes a disclosure of the facts and circumstances giving rise
to the situation, any explanation reasonably necessary to inform the client or other person of the
material advantages and disadvantages of the proposed course of conduct and a discussion of the
client's or other person's options and alternatives. In some circumstances it may be appropriate
for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need
not inform a client or other person of facts or implications already known to the client or other
person; nevertheless, a lawyer who does not personally inform the client or other person assumes
the risk that the client or other person is inadequately informed and the consent is invalid. In
determining whether the information and explanation provided are reasonably adequate, relevant
factors include whether the client or other person is experienced in legal matters generally and in
making decisions of the type involved, and whether the client or other person is independently
represented by other counsel in giving the consent. Normally, such persons need less information
and explanation than others, and generally a client or other person who is independently
represented by other counsel in giving the consent should be assumed to have given informed
consent.
ER 1.2. Scope of Representation and Allocation of Authority between Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the
objectives of representation and, as required by ER 1.4, shall consult with the client as to the
means by which they are to be pursued. A lawyer may take such action on behalf of the client as
is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision
whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether
the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not

constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.
Comment
Allocation of Authority between Client and Lawyer
[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be
served by legal representation, within the limits imposed by law and the lawyer's professional
obligations. At the same time, a lawyer is not required to pursue objectives or employ means
simply because a client may wish that the lawyer do so. The decisions specified in paragraph (a),
such as whether to settle a civil matter, must also be made by the client. See ER 1.4(a)(1) for the
lawyer's duty to communicate with the client about such decisions. With respect to the means by
which the client's objectives are to be pursued, the lawyer shall consult with the client as required
by ER 1.4(a)(2) and may take such action as is impliedly authorized to carry out the
representation.
[2] On occasion, however, a lawyer and a client may disagree about the means to be used to
accomplish the client's objectives. Clients normally defer to the special knowledge and skill of
their lawyer with respect to the means to be used to accomplish their objectives, particularly with
respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client
regarding such questions as the expense to be incurred and concern for third persons who might
be adversely affected. Because of the varied nature of the matters about which a lawyer and
client might disagree and because the actions in question may implicate the interests of a tribunal
or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other
law, however, may be applicable and should be consulted by the lawyer. The lawyer should also
consult with the client and seek a mutually acceptable resolution of the disagreement. If such
efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer
may withdraw from the representation. See ER 1.16(b)(4). Conversely, the client may resolve the
disagreement by discharging the lawyer. See ER 1.16(a)(3).
[3] At the outset of a representation, the client may authorize the lawyer to take specific action
on the client's behalf without further consultation. Absent a material change in circumstances and
subject to ER 1.4, a lawyer may rely on such an advance authorization. The client may, however,
revoke such authority at any time.
[4] In a case in which the client appears to have diminished capacity, the lawyer's duty to abide
by the client's decisions is to be guided by reference to ER 1.14.
Independence from Client's Views or Activities
[5] Legal representation should not be denied to people who are unable to afford legal services,
or whose cause is controversial or the subject of popular disapproval. By the same token,
representing a
client does not constitute approval of the client's views or activities.
Agreements Limiting Scope of Representation
[6] The scope of services to be provided by a lawyer may be limited by agreement with the client
or by the terms under which the lawyer's services are made available to the client. Representation
provided through a legal aid agency may be subject to limitations on the types of cases the
agency handles. When a lawyer has been retained by an insurer to represent an insured, for
example, the representation may be limited to matters related to the insurance coverage. A
limited representation may be appropriate because the client has limited objectives for the
representation. In addition, the terms upon which representation is undertaken may exclude
specific means that might otherwise be used to accomplish the client's objectives. Such
limitations may exclude actions that the client thinks are too costly or that the lawyer regards as
repugnant or imprudent.
[7] Although this Rule affords the lawyer and client substantial latitude to limit the
representation, the limitation must be reasonable under the circumstances. If, for example, a
client's objective is limited to securing general information about the law the client needs in
order to handle a common and typically uncomplicated legal problem, the lawyer and client may
agree that the lawyer's services will be limited to a brief telephone consultation. Such a
limitation, however, would not be reasonable if the time allotted was not sufficient to yield
advice upon which the client could rely. Although an agreement for a limited representation does
not exempt a lawyer from the duty to provide competent representation, the limitation is a factor
to be considered when determining the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation. See ER 1.1.
[8] Although paragraph (c) does not require that the client's informed consent to a limited
representation be in writing, a specification of the scope of representation will normally be a
necessary part of the lawyer's written communication of the rate or basis of the lawyer's fee as
required by ER 1.5(b). See ER 1.0(e) for the definition of "informed consent".
[9] All agreements concerning a lawyer's representation of a client must accord with the Rules of
Professional Conduct and other law. See, e.g., ERs 1.1, 1.8 and 5.6.
Criminal, Fraudulent and Prohibited Transactions
[10] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit
a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest
opinion about the actual consequences that appear likely to result from a client's conduct. Nor
does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself
make a lawyer a party to the course of action. There is a critical distinction between presenting
an analysis of legal aspects of questionable conduct and recommending the means by which a
crime or fraud might be committed with impunity.
[11] When the client's course of action has already begun and is continuing, the lawyer's
responsibility is especially delicate. The lawyer is required to avoid assisting the client, for
example, by drafting or delivering documents that the lawyer knows are fraudulent or by
suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a
client in conduct that the lawyer originally supposed was legally proper but then discovers is
criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client
in the matter. See ER 1.16(a). In some cases, withdrawal alone might be insufficient. It may be
necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion,
document, affirmation or the like. In extreme cases, a lawyer may be required to disclose
information relating to the representation to avoid being deemed to have assisted the client's
crime or fraud. See ER 4.1.
[12] Where the client is a fiduciary, the lawyer may be charged with special obligations in
dealings with a beneficiary.
[13] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence,
a lawyer must not participate in a sham transaction; for example, a transaction to effectuate
criminal or fraudulent escape of tax liability. Paragraph (d) does not preclude undertaking a
criminal defense incident to a general retainer for legal services to a lawful enterprise. The last
clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or
regulation may require a course of action involving disobedience of the statute or regulation or of
the interpretation placed upon it by governmental authorities.
[14] If a lawyer comes to know or reasonably should know that a client expects assistance not
permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act
contrary to the client's instructions, the lawyer must consult with the client regarding the
limitations on the lawyer's conduct. See ER 1.4(a)(5).
ER 1.3. Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. Comment
[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer, and take whatever lawful and ethical measures are
required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and
dedication to the interests of the client. A lawyer is not bound, however, to press for every
advantage that might be realized for a client. For example, a lawyer may have authority to
exercise professional discretion in determining the means by which a matter should be pursued.
See ER 1.2. The lawyer's duty to act with reasonable diligence does not require the use of
offensive tactics or preclude the treating of all persons involved in the legal process with
courtesy and respect.
[2] A lawyer's work load must be controlled so that each matter can be handled competently.
[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's
interests often can be adversely affected by the passage of time or the change of conditions; in
extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position
may be destroyed. Even when the client's interests are not affected in substance, however,
unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's
trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude
the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the
lawyer's client.
[4] Unless the relationship is terminated as provided in ER 1.16, a lawyer should carry through to
conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific
matter, the relationship terminates when the matter has been resolved. If a lawyer has served a
client over a substantial period in a variety of matters, the client sometimes may assume that the
lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal.
Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer,
preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after
the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a
judicial or administrative proceeding that produced a result adverse to the client and the lawyer
and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must
consult with the client about the possibility of appeal before relinquishing responsibility for the
matter. See ER 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client
depends on the scope of the representation the lawyer has agreed to provide to the client. See ER
1.2.
ER 1.4. Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's
informed consent, as defined in ER 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer
knows that the client expects assistance not permitted by the Rules of Professional Conduct or
other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
(c) In a criminal case, a lawyer shall promptly inform a client of all proffered plea agreements.
ER 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted or required by paragraphs (b), (c) or (d), or ER
3.3(a)(3).
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary
to prevent the client from committing a criminal act that the lawyer believes is likely to result in
death or substantial bodily harm.
(c) A lawyer may reveal the intention of the lawyer's client to commit a crime and the
information necessary to prevent the crime.
(d) A lawyer may reveal such information relating to the representation of a client to the extent
the lawyer reasonably believes necessary:
(1) to prevent the client from committing a crime or fraud that is reasonably certain to result in
substantial injury to the financial interests or property of another and in furtherance of which the
client has used or is using the lawyer's services;
(2) to mitigate or rectify substantial injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client's commission of a crime or fraud in
furtherance of which the client has used the lawyer's services;
(3) to secure legal advice about the lawyer's compliance with these Rules;
(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer
and the client, to establish a defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to allegations in any proceeding
concerning the lawyer's representation of the client; or
(5) to comply with other law or a final order of a court or tribunal of competent jurisdiction
directing the lawyer to disclose such information.
(6) to prevent reasonably certain death or substantial bodily harm.
Comment
[1] This Rule governs the disclosure by a lawyer of information relating to the representation of a
client during the lawyer's representation of the client. See ER 1.18 for the lawyer's duties with
respect to information provided to the lawyer by a prospective client, ER 1.9(c)(2) for the
lawyer's duty not to reveal information relating to the lawyer's prior representation of a former
client and ERs 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use of such
information to the disadvantage of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in the absence of the client's
informed consent, the lawyer must not reveal information relating to the representation. See ER
1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of
the client-lawyer relationship. The public is better protected if full and open communication by
the client is encouraged than if it is inhibited. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the lawyer even as to embarrassing or
legally damaging subject matter. The lawyer needs this information to represent the client
effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost
without exception, clients come to lawyers in order to determine their rights and what is, in the
complex of laws and regulations, deemed to be legal and correct. Based upon experience,
lawyers know that almost all clients follow the advice given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the
attorney-client privilege, the work product doctrine, and the rule of confidentiality established in
professional ethics. The attorney-client privilege and work product doctrine apply in judicial and
other proceedings in which a lawyer may be called as a witness or otherwise required to produce
evidence concerning a client. The rule of client-lawyer confidentiality also applies in such
situations where evidence is sought from the lawyer through compulsion of law. The
confidentiality rule, for example, applies not only to matters communicated in confidence by the
client but also to all information relating to the representation, whatever its source. A lawyer may
not disclose such information except as authorized or required by the Rules of Professional
Conduct or other law.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a
client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal
protected information but could reasonably lead to the discovery of such information by a third
person. A lawyer's use of a hypothetical to discuss issues relating to the representation is
permissible so long as there is no reasonable likelihood that the listener will be able to ascertain
the identity of the client or the situation involved.
Authorized Disclosure
[5] Except to the extent that the client's instructions or special circumstances limit that authority,
a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying
out the representation some situations, for example, a lawyer may be impliedly authorized to
admit a fact that cannot properly be disputed or, to make a disclosure that facilitates a
satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm's practice,
disclose to each other information relating to a client of the firm, unless the client has instructed
that particular information be confined to specified lawyers.
[6] The requirement of maintaining confidentiality of information relating to representation

applies to government lawyers who may disagree with the policy goals that their representation
is designed to advance.
Disclosure Adverse to Client
[7] Although the public interest is usually best served by a strict rule requiring lawyers to
preserve the confidentiality of information relating to the representation of their clients, the
confidentiality rule is subject to limited exceptions. Paragraph (b) recognizes the overriding
value of life and physical integrity, and requires the lawyer to make a disclosure in order to
prevent homicide or serious bodily injury that the lawyer reasonably believes is intended by a
client. In addition, under paragraph (c), the lawyer has discretion to make a disclosure of the
client's intention to commit a crime and the information necessary to prevent it. It is very
difficult for a lawyer to "know" when such unlawful purposes will actually be carried out, for the
client may have a change of mind.
[8] Paragraph (c) permits the lawyer to reveal the intention of the lawyer's client to commit a
crime and the information necessary to prevent the crime. Paragraph (c) does not require the
lawyer to reveal the intention of a client to commit wrongful conduct, but the lawyer may not
counsel or assist a client in conduct the lawyer knows is criminal or fraudulent. See ER 1.2(d);
see also ER 1.16 with respect to the lawyer's obligation or right to withdraw from the
representation from the client in such circumstances. Where the client is an organization, the
lawyer may be in doubt whether contemplated conduct will actually be carried out by the
organization. Where necessary to guide conduct, in connection with this Rule, the lawyer may
make inquiry within the organization as indicated in ER 1.13(b).
[9] The range of situations where disclosure is permitted by paragraph (d)(1) of the Rule is both
broader and narrower than those encompassed by paragraph (c). Paragraph (c) permits disclosure
only of a client's intent to commit a future crime, but is not limited to instances where the client
seeks to use the lawyer's services in doing so. Paragraph (d)(1), on the other hand, applies to both
crimes and frauds on the part of the client, and applies to both on-going conduct as well as that
contemplated for the future. The instances in which paragraph (d)(1) would permit disclosure,
however, are limited to those where the lawyer's services are or were involved, and where the
resulting injury is to the financial interests or property of others. In addition to this Rule, a
lawyer has a duty under ER 3.3 not to use false evidence.
[10] Paragraph (d)(2) addresses the situation in which the lawyer does not learn of the client's
crime or fraud until after it has been consummated. Although the client no longer has the option
of preventing disclosure by refraining from the wrongful conduct, there will be situations in
which the loss suffered by the affected person can be rectified or mitigated. In such situations,
the lawyer may disclose information relating to the representation to the extent necessary to
enable the affected persons to mitigate reasonably certain losses or to attempt to recoup their
losses. Paragraph (d)(2) does not apply when a person who has committed a crime or fraud
thereafter employs a lawyer for representation concerning that offense.
[11] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential
legal advice about the lawyer's personal responsibility to comply with these Rules. In most
situations, disclosing information to secure such advice will be impliedly authorized for the
lawyer to carry out the representation. Even when the disclosure is not impliedly authorized,
paragraph (d)(3) permits such disclosure because of the importance of a lawyer's compliance
with the Rules of Professional Conduct.
[12] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's
conduct or other misconduct of the lawyer involving representation of the client, the lawyer may
respond to the extent the lawyer reasonably believes necessary to establish a defense. The same
is true with respect to a claim involving the conduct or representation of a former client. Such a
charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a
wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third
person, for example, a person claiming to have been defrauded by the lawyer and client acting
together. The lawyer's right to respond arises when an assertion of such complicity has been
made. Paragraph (d)(4) does not require the lawyer to await the commencement of an action or
proceeding that charges such complicity, so that the defense may be established by responding
directly to a third party who has made such an assertion. The right to defend also applies, of
course, where a proceeding has been commenced.
[13] A lawyer entitled to a fee is permitted by paragraph (d)(4) to prove the services rendered in
an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a
fiduciary relationship may not exploit it to the detriment of the fiduciary.
[14] Other law may require that a lawyer disclose information about a client. Whether such a law
supersedes ER 1.6 is a question of law beyond the scope of these Rules. When disclosure of
information relating to the representation appears to be required by other law, the lawyer must
discuss the matter with the client to the extent required by ER 1.4. If, however, the other law
supersedes this Rule and requires disclosure, paragraph (d)(5) permits the lawyer to make such
disclosures as are necessary to comply with the law.
[15] Paragraph (d)(5) also permits compliance with a court order requiring a lawyer to disclose
information relating to a client's representation. If a lawyer is called as a witness to give
testimony concerning a client or is otherwise ordered to reveal information relating to the client's
representation, however, the lawyer must, absent informed consent of the client to do otherwise
and except for permissive disclosure under paragraphs (c) or (d), assert on behalf of the client all
nonfrivolous claims that the information sought is protected against disclosure by this Rule, the
attorney-client privilege, the work product doctrine, or other applicable law. In the event of an
adverse ruling, the lawyer must consult with the client about the possibility of appeal. See ER
1.4. Unless review is sought, however, paragraph (d)(5) permits the lawyer to comply with the
court's order.
[16] In situations not covered by the mandatory disclosure requirements of paragraph (b),
paragraph (d)(6) permits discretionary disclosure when the lawyer reasonably believes disclosure
is necessary to prevent reasonably certain death or substantial bodily harm.
[17] Paragraph (d) permits disclosure only to the extent the lawyer reasonably believes the
disclosure is necessary to accomplish one of the purposes specified. Where practicable, the
lawyer should first seek to persuade the client to take suitable action to obviate the need for
disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the
lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made
in connection with a judicial proceeding, the disclosure should be made in a manner that limits
access to the information to the tribunal or other persons having a need to know it and
appropriate protective orders or other arrangements should be sought by the lawyer to the fullest
extent practicable.
[18] Paragraph (d) permits but does not require the disclosure of information relating to a client's
representation to accomplish the purposes specified in paragraphs (d)(1) through (d)(5). In
exercising the discretion conferred by this Rule, the lawyer may consider such factors as the
nature of the lawyer's relationship with the client and with those who might be injured by the
client, the lawyer's own involvement in the transaction and factors that may extenuate the
conduct in question. A lawyer's decision not to disclose as permitted by paragraph (d) does not
violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require
disclosure only if such disclosure would be permitted by this Rule. See ERs 1.2(d), 4.1(b), 8.1
and 8.3. ER 3.3, on the other hand, requires disclosure in some circumstances regardless of
whether such disclosure is permitted by this Rule. See ER 3.3(b).
Withdrawal
[19] If the lawyer's services will be used by the client in materially furthering a course of
criminal or fraudulent conduct, the lawyer must withdraw, as stated in ER 1.16(a)(1). After
withdrawal the lawyer is required to refrain from making disclosure of the client's confidences,
except as otherwise provided in ER 1.6. Neither this Rule nor ER 1.8(b) nor ER 1.16(d) prevents
the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or
disaffirm any opinion, document, affirmation, or the like.
Acting Competently to Preserve Confidentiality
[20] A lawyer must act competently to safeguard information relating to the representation of a
client against inadvertent or unauthorized disclosure by the lawyer or other persons who are
participating in the representation of the client or who are subject to the lawyer's supervision. See
ERs 1.1, 5.1 and 5.3.
[21] When transmitting a communication that includes information relating to the representation
of a client, the lawyer must take reasonable precautions to prevent the information from coming
into the hands of unintended recipients. This duty, however, does not require that the lawyer use
special security measures if the method of communication affords a reasonable expectation of
privacy. Special circumstances, however, may warrant special precautions. Factors to be
considered in determining the reasonableness of the lawyer's expectation of confidentiality
include the sensitivity of the information and the extent to which the privacy of the
communication is protected by law or by a confidentiality agreement. A client may require the
lawyer to implement special security measures not required by this Rule or may give informed
consent to the use of a means of communication that would otherwise be prohibited by this Rule.
Former Client
[22] The duty of confidentiality continues after the client-lawyer relationship has terminated. See
ER 1.9(c)(2). See ER 1.9(c)(1) for the prohibition against using such information to the
disadvantage of the former client.
ER 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation
involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client or a third person or by a
personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if each affected client gives informed consent, confirmed in
writing, and:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law; and
(3) the representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal.
Comment
General Principles
[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a
client. Concurrent conflicts of interest can arise from the lawyer's responsibilities to another
client, a former client or a third person or from the lawyer's own interests. For specific Rules
regarding certain concurrent conflicts of interest, see ER 1.8. For former client conflicts of
interest, see ER 1.9. For conflicts of interest involving prospective clients, see ER 1.18. For
definitions of "informed consent" and "confirmed in writing," see ER 1.0(e) and (b).
[2] Resolution of a conflict of interest problem under this Rule requires the lawyer to: 1) clearly
identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether
the representation may be undertaken despite the existence of a conflict, i.e., whether the conflict
is consentable; and 4) if so, consult with the clients affected under paragraph (a) and obtain their
informed consent, confirmed in writing. The clients affected under paragraph (a) include both of
the clients referred to in paragraph (a)(1) and the one or more clients whose representation might
be materially limited under paragraph (a)(2).
[3] A conflict of interest may exist before representation is undertaken, in which event the
representation must be declined, unless the lawyer obtains the informed consent of each client
under the conditions of paragraph (b). To determine whether a conflict of interest exists, a lawyer
should adopt reasonable procedures, appropriate for the size and type of firm and practice, to
determine in both litigation and nonlitigation matters the persons and issues involved. See also
ER 5.1, Comment [2]. Ignorance caused by a failure to institute such procedures will not excuse
a lawyer's violation of this Rule. As to whether a client-lawyer relationship exists or, having once
been established, is continuing, see ER 1.3, Comment [4] and Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily must
withdraw from the representation, unless the lawyer has obtained the informed consent of the
client under the conditions of paragraph (b). See ER 1.16. Where more than one client is
involved, whether the lawyer may continue to represent any of the clients is determined both by
the lawyer's ability to comply with duties owed to the former client and by the lawyer's ability to
represent adequately the remaining client or clients, given the lawyer's duties to the former client.
See ER 1.9. See also Comments [5] and [28].
[5] Unforeseeable developments, such as changes in corporate and other organizational

affiliations or the addition or realignment of parties in litigation, might create conflicts in the
midst of a representation, as when a company sued by the lawyer on behalf of one client is
bought by another client represented by the lawyer in an unrelated matter. In these
circumstances, the lawyer may withdraw from one of the representations in order to avoid the
conflict. The lawyer must seek court approval where necessary and take steps to minimize harm
to the clients. See ER 1.16. The lawyer must continue to protect the confidences of the client
from whose representation the lawyer has withdrawn. See ER 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to a current client prohibits undertaking representation directly adverse to that client
without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate
in one matter against a person the lawyer represents in some other matter, even when the matters
are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel
betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the
lawyer's ability to represent the client effectively. In addition, the client on whose behalf the
adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's
case less effectively out of deference to the other client, i.e., that the representation may be
materially limited by the lawyer's interest in retaining the current client. Similarly, a lawyer acts
directly adversely to a client if it will be necessary for the lawyer to cross-examine a client who
appears as a witness in a lawsuit involving another client. On the other hand, simultaneous
representation in unrelated matters of clients whose interests are only economically adverse, such
as representation of competing economic enterprises in unrelated litigation, does not ordinarily
constitute a conflict of interest and thus may not require consent of the respective clients.
[7] Although directly adverse conflicts arise most frequently in litigation, they also arise in
transactional matters. For example, if a lawyer is asked to represent a seller in negotiations with a
buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the
lawyer could not undertake the representation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation
[8] Even where there is no direct adverseness, a conflict of interest exists if there is a significant
risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action
for the client will be materially limited as a result of the lawyer's other responsibilities or
interests. For example, a lawyer asked to represent several individuals seeking to form a joint
venture is likely to be materially limited in the lawyer's ability to recommend or advocate all
possible positions that each might take because of the lawyer's duty of loyalty to the others. The
conflict in effect forecloses alternatives that would otherwise be available to the client. The mere
possibility of subsequent harm does not itself. The critical questions are the likelihood that a
difference in interests will eventuate and, if it does, whether it will materially interfere with the
lawyer's independent professional judgment in considering alternatives or foreclose courses of
action that reasonably should be pursued on behalf of the client.
Lawyer's Responsibilities to Former Clients and Other Third Persons
[9] In addition to conflicts with other current clients, a lawyer's duties of loyalty and
independence may be materially limited by responsibilities to former clients under ER 1.9 or by
the lawyer's responsibilities to other persons, such as fiduciary duties arising from a lawyer's
service as a trustee, executor or corporate director.
Personal Interest Conflicts
[10] The lawyer's own interests should not be permitted to have an adverse effect on
representation of a client. For example, if the probity of a lawyer's own conduct in a transaction
is in serious question, it may be difficult or impossible for the lawyer to give a client detached
advice. Similarly, a lawyer may not allow related business interests to affect representation, for
example, by referring clients to an enterprise in which the lawyer has an undisclosed financial
interest. See ER 1.8 for specific Rules pertaining to a number of personal interest conflicts,
including business transactions with clients. See also ER 1.10 (personal interest conflicts under
ER 1.7 ordinarily are not imputed to other lawyers in a law firm).
[11] When lawyers representing different clients in the same matter or in substantially related
matters are closely related by blood or marriage, there may be a significant risk that client
confidences will be revealed and that the lawyer's family relationship will interfere with both
loyalty and independent professional judgment. As a result, each client is entitled to know of the
existence and implications of the relationship between the lawyers before the lawyer agrees to
undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child,
sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is
representing another party, unless each client gives informed consent. The disqualification
arising from a close family relationship is personal and ordinarily is not imputed to members of
firms with whom the lawyers are associated. See ERs 1.8(l) and 1.10.
[12] A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual
relationship predates the formation of the client-lawyer relationship. See ER 1.8(j).
Interest of Person Paying for Lawyer's Service
[13] A lawyer may be paid from a source other than the client, including a co-client, if the client
is informed of that fact and consents and the arrangement does not compromise the lawyer's duty
of loyalty or independent judgment to the client. See ER 1.8(f). If acceptance of the payment
from any other source presents a significant risk that the lawyer's representation of the client will
be materially limited by the lawyer's own interest in accommodating the person paying the
lawyer's fee or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer
must comply with the requirements of paragraph (b) before accepting the representation,
including determining whether the conflict is consentable and, if so, that the client has adequate
information about the material risks of the representation.
Prohibited Representations
[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as

indicated in paragraph, some conflicts are nonconsentable, meaning that the lawyer involved
cannot properly ask for such agreement or provide representation on the basis of the client's
consent. When the lawyer is representing more than one client, the question of consentability
must be resolved as to each client.
[15] Consentability is typically determined by considering whether the interests of the clients
will be adequately protected if the clients are permitted to give their informed consent to
representation burdened by a conflict of interest. Thus, under paragraph (b)(1), representation is
prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be
able to provide competent and diligent representation. See ER 1.1 (competence) and ER 1.3
(diligence). In determining whether a multiple-client conflict is consentable, one factor to be
considered is whether the representation will be provided by a single lawyer or by different
lawyers in the same firm.
[16] Paragraph (b)(2) describes conflicts that are nonconsentable because the representation is
prohibited by applicable law. For example, in some states substantive law provides that the same
lawyer may not represent more than one defendant in a capital case, even with the consent of the
clients, and under federal criminal statutes certain representations by a former government
lawyer are prohibited, despite the informed consent of the former client. In addition, decisional
law in some states limits the ability of a governmental client, such as a municipality, to consent
to a conflict of interest.
[17] Paragraph (b)(3) describes conflicts that are nonconsentable because of the institutional
interest in vigorous development of each client's position when the clients are aligned directly
against each other in the same litigation or other proceeding before a tribunal. Whether clients
are aligned directly against each other within the meaning of this paragraph requires examination
of the context of the proceeding. Although this paragraph does not preclude a lawyer's multiple
representation of adverse parties to a mediation (because mediation is not a proceeding before a
"tribunal" under ER 1.0(m)), such representation may be precluded by paragraph (b)(1).
Informed Consent
[18] Informed consent requires that each affected client be aware of the relevant circumstances
and of the material and reasonably foreseeable ways that the conflict could have adverse effects
on the interests of that client. See ER 1.0(e) (informed consent). The information required
depends on the nature of the conflict and the nature of the risks involved. When representation of
multiple clients in a single matter is undertaken, the information must include the implications of
the common representation, including possible effects on loyalty, confidentiality and the
attorney-client privilege and the advantages and risks involved. See Comments [29] and [30]
(effect of common representation on confidentiality).
[19] Under some circumstances it may be impossible to make the disclosure necessary to obtain
consent. For example, when the lawyer represents different clients in related matters and one of
the clients refuses to consent to the disclosure necessary to permit the other client to make an
informed decision, the lawyer cannot properly ask the latter to consent. In some cases the
alternative to common representation can be that each party may have to obtain separate
representation with the possibility of incurring additional costs. The cost benefits of common
representation may be considered by the affected client in determining whether common
representation is in the client's interests.
ER 1.9. Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the former client gives informed
consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter
in which a firm with which the lawyer formerly was associated had previously represented a
client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by ERs 1.6 and 1.9(c) that is
material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except
as these Rules would permit or require with respect to a client, or when the information has
become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
Comment
[1] After termination of a client-lawyer relationship, a lawyer has certain continuing duties with
respect to confidentiality and conflicts of interest and thus may not represent another client
except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly
seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also
a lawyer who has prosecuted an accused person could not properly represent the accused in a
subsequent civil action against the government concerning the same transaction. Nor could a
lawyer who has represented multiple clients in a matter represent one of the clients against the
others in the same or a substantially related matter after a dispute arose among the clients, unless
all affected clients give informed consent. See Comment [9]. Current and former government
lawyers must comply with this Rule to the extent required by ER 1.11.
[2] The scope of a "matter" for purposes of this Rule may depend on the facts of a particular
situation or transaction. The lawyer's involvement in a matter can also be a question of degree.
When a lawyer has been directly involved in a specific transaction, subsequent representation of
other clients with materially adverse interests clearly is prohibited. On the other hand, a lawyer
who recurrently handled a type of problem for a former client is not precluded from later
representing another client in a wholly distinct problem of that type even though the subsequent
representation involves a position adverse to the prior client. Similar considerations can apply to
the reassignment of military lawyers between defense and prosecution functions within the same
military jurisdictions. The underlying question is whether the lawyer was so involved in the
matter that the subsequent representation can be justly regarded as a changing of sides in the
matter in question.
[3] Matters are "substantially related" for purposes of this Rule if they involve the same
transaction or legal dispute or if there otherwise is a substantial risk that confidential factual
information as would normally have been obtained in the prior representation would materially
advance the client's position in the subsequent matter. For example, a lawyer who has
represented a businessperson and learned extensive private financial information about that
person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who
has previously represented a client in securing environmental permits to build a shopping center
would be precluded from representing neighbors seeking to oppose rezoning of the property on
the basis of environmental considerations; however, the lawyer would not be precluded, on the
grounds of substantial relationship, from defending a tenant of the completed shopping center in
resisting eviction for nonpayment of rent. Information that has been disclosed to the public
ordinarily will not be disqualifying. Information acquired in a prior representation may have
been rendered obsolete by the passage of time, a circumstance that may be relevant in
determining whether two representations are substantially related. In the case of an
organizational client, general knowledge of the client's policies and practices ordinarily will not
preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a
prior representation that is relevant to the matter in question ordinarily will preclude such a
representation. A former client is not required to reveal the confidential information learned by
the lawyer in order to establish a substantial risk that the lawyer has confidential information to
use in the subsequent matter. A conclusion about the possession of such information may be
based on the nature of the services the lawyer provided the former client and information that
would in ordinary practice be learned by a lawyer providing such services.
ER 1.16. Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent
the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer shall comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client, allowing
time for employment of other counsel, surrendering documents and property to which the client
is entitled and refunding any advance payment of a fee that has not been earned. Upon the
client's request, the lawyer shall provide the client with all of the client's documents, and all
documents reflecting work performed for the client. The lawyer may retain documents reflecting
work performed for the client to the extent permitted by other law only if retaining them would
not prejudice the client's rights.
Comment
[1] A lawyer should not accept representation in a matter unless it can be performed
competently, promptly, without improper conflict of interest and to completion. Ordinarily, a
representation in a matter is completed when the agreed-upon assistance has been
concluded. See ERs 1.2(c) and 6.5. See also ER 1.3, Comment [4].
Mandatory Withdrawal
[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that
the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other
law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a
course of conduct a client may make such a suggestion in the hope that a lawyer will not be
constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires
approval of the appointing authority. See also ER 6.2. Similarly, court approval or notice to the
court is often required by applicable law before a lawyer withdraws from pending
litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the
lawyer engage in unprofessional conduct. The court may request an explanation for the
withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute
such an explanation. The lawyer's statement that professional considerations require termination
of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of
their obligations to both clients and the court under ERs 1.6 and 3.3.
Discharge
[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to
liability for payment for the lawyer's services. Where future dispute about the withdrawal may
be anticipated, it may be advisable to prepare a written statement reciting the circumstances.
[5] Whether a client can discharge appointed counsel may depend on applicable law. A client
seeking to do so should be given a full explanation of the consequences. These consequences
may include a decision by the appointing authority that appointment of successor counsel is
unjustified, thus requiring self-representation by the client.
[6] If the client has severely diminished capacity, the client may lack the legal capacity to
discharge the lawyer, and in any event the discharge may be seriously adverse to the client's
interests. The lawyer should make special effort to help the client consider the consequences and
may take reasonably necessary protective action as provided in ER 1.14.
Optional Withdrawal
[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the
option to withdraw if it can be accomplished without material adverse effect on the client's
interests. Withdrawal is also justified if the client persists in a course of action that the lawyer
reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with
such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's
services were misused in the past even if that would materially prejudice the client. The lawyer
also may withdraw where the client insists on taking action that the lawyer considers repugnant
or with which the lawyer has a fundamental disagreement.
[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to
the representation, such as an agreement concerning fees or court costs or an agreement limiting
the objectives of the representation.
Assisting the Client Upon Withdrawal
[9] Ordinarily, the documents to which the client is entitled, at the close of the representation,
include (without limitation) pleadings, legal documents, evidence, discovery, legal research,
work product, transcripts, correspondence, drafts, and notes, but not internal practice
management memoranda. A lawyer shall not charge a client for the cost of copying any
documents unless the client already has received one copy of them.
[10] Even if the lawyer has been discharged by the client, the lawyer must take all reasonable
steps to avoid prejudice to the rights of the client.
[11] Lawyers may fulfill their ethical obligations with respect to client files by returning the file
to the client. File retention policies should be disclosed to the client, preferably in writing and at
the inception of the relationship.
2. COUNSELOR
ER 2.1. Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations
such as moral, economic, social and political factors, that may be relevant to the client's
situation.
Comment
Scope of Advice
[1] A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal
advice often involves unpleasant facts and alternatives that a client may be disinclined to
confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put
advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred
from giving candid advice by the prospect that the advice will be unpalatable to the client.
[2] Advice couched in narrowly legal terms may be of little value to a client, especially where
practical considerations, such as cost or effects on other people, are predominant. Purely
technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer
to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral
advisor as such, moral and ethical considerations impinge upon most legal questions and may
decisively influence how the law will be applied.
3. ADVOCATE
ER 3.1. Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a good faith basis in law and fact for doing so that is not frivolous, which may include a
A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could
result in incarceration, may nevertheless so defend the proceeding as to require that every
element of the case be established.
Comment
[1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but
also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes
the limits within which an advocate may proceed. However, the law is not always clear and is
never static. Accordingly, in determining the proper scope of advocacy, account must be taken of
the law's ambiguities and potential for change.
[2] The filing of an action or defense or similar action taken for a client is not frivolous merely
because the facts have not first been fully substantiated or because the lawyer expects to develop
vital evidence only by discovery. What is required of lawyers, however, is that they inform
themselves about the facts of their clients' cases and the applicable law and determine that they
can make good faith and nonfrivolous arguments in support of their clients' positions. Such
action is not frivolous even though the lawyer believes that the client's position ultimately will
not prevail. The action is not in good faith, however, if the client desires to have the action taken
primarily for the purpose of harassing or maliciously injuring a person, and is frivolous if the
lawyer is unable either to make a nonfrivolous argument on the merits of the action taken or a
ER 3.3. Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client or a witness
called by the lawyer has offered material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a
criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the
proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise protected by ER 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the
lawyer which will enable the tribunal to make an informed decision, whether or not the facts are
adverse.
Comment
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a
tribunal. See ER 1.0(m) for the definition of "tribunal." It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative
authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take
reasonable remedial measures if the lawyer comes to know that a client who is testifying in a
deposition has offered evidence that is false.
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that
undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an
adjudicative proceeding has an obligation to present the client's case with persuasive force.
Performance of that duty while maintaining confidences of the client, however, is qualified by
the advocate's duty of candor to the tribunal. Consequently, although a lawyer in an adversary
proceeding is not required to present an impartial exposition of the law or to vouch for the
evidence submitted in a cause; the lawyer must not mislead the tribunal by false statements of
law or fact or evidence that the lawyer knows to be false.
Representations by a Lawyer
[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is
usually not required to have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on the client's behalf, and
not assertions by the lawyer. Compare ER 3.1. However, an assertion purporting to be on the
lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may
properly be made only when the lawyer knows the assertion is true or believes it to be true on the
basis of a reasonably diligent inquiry. There are circumstances where failure to make a
disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in ER
1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in
litigation. Regarding compliance with ER 1.2(d), see Comment [10] to that Rule. See ER 8.4(b),
Comment [2].
Legal Argument
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty
toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but
must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph
(a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction
which has not been disclosed by the opposing party. The underlying concept is that legal
argument is a discussion seeking to determine the legal premises properly applicable to the case.
Offering Evidence
[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be
false, regardless of the client's wishes. This duty is premised on the lawyer's obligation as an
officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer
does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its
falsity.
[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce
false evidence, the lawyer should seek to persuade the client that the evidence should not be
offered. If the persuasion is ineffective and the lawyer continues to represent the client, the
lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will be
false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness
to present the testimony that the lawyer knows is false.
[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in
criminal cases. In some jurisdictions, however, courts have required counsel to present the
accused as a witness or to give a narrative statement if the accused so desires, even if counsel
knows that the testimony or statement will be false. Counsel first must attempt to persuade the
accused to testify truthfully or not at all. If the client persists, counsel must proceed in a manner
consistent with the accused's constitutional rights. See State v. Jefferson, 126 Ariz. 341, 615 P.2d
638 (1980); Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978). The obligation of the advocate
under the Rules of Professional Conduct is subordinate to such constitutional requirements. See
also Comment [9].
[8] The prohibition against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its
presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be
inferred from the circumstances. See ER 1.0(f). Thus, although a lawyer should resolve doubts
about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore
an obvious falsehood.
[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows
to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer
reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to
discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate.
Because of the special protections historically provided criminal defendants, however, this Rule
does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer
reasonably believes but does not know that the testimony will be false. Unless the lawyer knows
the testimony will be false, the lawyer must honor the client's decision to testify. See also
Comment [7].
Remedial Measures
[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently
come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer's client
or another witness called by the lawyer offers testimony the lawyer knows to be false, either
during the lawyer's direct examination or in response to cross-examination by the opposing
lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the
client during a deposition, the lawyer must take reasonable remedial measures. In such situations,
the advocate's proper course is to remonstrate with the client confidentially, advise the client of
the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the
withdrawal or correction of the false statements or evidence. If that fails, the advocate must take
further remedial action. If withdrawal from the representation is not permitted or will not undo
the effect of the false evidence, the advocate must make such disclosure to the tribunal as is
reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal
information that otherwise would be protected by ER 1.6. It is for the tribunal then to determine
what should be done - making a statement about the matter to the trier of fact, ordering a mistrial
or perhaps nothing.
[11] The disclosure of a client's false testimony can result in grave consequences to the client,
including not only a sense of betrayal but also loss of the case and perhaps a prosecution for
perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting
the truth-finding process which the adversary system is designed to implement. See ER 1.2(d).
Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the
existence of false evidence, the client can simply reject the lawyer's advice to reveal the false
evidence and insist that the lawyer keep silent. Thus, the client could in effect coerce the lawyer
into being a party to fraud on the court.
Preserving Integrity of Adjudicative Process
[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent
conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or
otherwise unlawfully communicating with a witness, juror, court official or other participant in
the proceeding, unlawfully destroying or concealing documents or other evidence or failing to
disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a
lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the
lawyer knows that a person, including the lawyer's client, intends to engage, is engaging or has
engaged in criminal or fraudulent conduct related to the proceeding.
Duration of Obligation
[13] A practical time limit on the obligation to rectify false evidence or false statements of law
and fact has to be established. The conclusion of the proceeding is a reasonably definite point for
the termination of the obligation. A proceeding has concluded within the meaning of this Rule
when a final judgment in the proceeding has been affirmed on appeal or the time for review has
passed.
Ex Parte Proceedings
[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters
that a tribunal should consider in reaching a decision; the conflicting position is expected to be
presented by the opposing party. However, in an ex parte proceeding, such as an application for a
temporary restraining order, there is no balance of presentation by opposing advocates. The
object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has
an affirmative responsibility to accord the absent party just consideration. The lawyer for the
represented party has the correlative duty to make disclosures of material facts known to the
lawyer and that the lawyer reasonably believes are necessary to an informed decision.
Withdrawal
[15] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does not
require that the lawyer withdraw from the representation of a client whose interests will be or
have been adversely affected by the lawyer's disclosure. The lawyer may, however, be required
by ER 1.16(a) to seek permission of the tribunal to withdraw if the lawyer's compliance with this
Rule's duty of candor results in such an extreme deterioration of the client-lawyer relationship
that the lawyer can no longer competently represent the client. Also see ER 1.16(b) for the
circumstances in which a lawyer will be permitted to seek a tribunal's permission to withdraw. In
connection with a request for permission to withdraw that is premised on a client's misconduct, a
lawyer may reveal information relating to the representation only to the extent reasonably
necessary to comply with this Rule or as otherwise permitted by ER 1.6.
4. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
ER 4.1. Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is prohibited by ER 1.6.
Comment
Misrepresentation
[1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally
has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can
occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is
false. Misrepresentations can also occur by partially true but misleading statements or omissions
that are the equivalent of affirmative false statements. For dishonest conduct that does not
amount to a false statement or for misrepresentations by a lawyer other than in the course of
representing a client, see ER 8.4.
Statements of Fact
[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as
one of fact can depend on the circumstances. Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a party's intentions as to an
acceptable settlement of a claim are ordinarily in this category, and so is the existence of an
undisclosed principal except where nondisclosure of the principal would constitute fraud.
Lawyers should be mindful of their obligations under applicable law to avoid criminal and
tortious misrepresentation.
Crime or Fraud by Client
[3] Under ER 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that
the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the
principle set forth in ER 1.2(d) and addresses the situation where a client's crime or fraud takes
the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client's crime or
fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to
give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the
like. In extreme cases, substantive law may require a lawyer to disclose information relating to
the representation to avoid being deemed to have assisted the client's crime or fraud. If the
lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then
under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by ER 1.6.
If disclosure is permitted by ER 1.6, then such disclosure is required under this Rule, but only to
the extent necessary to avoid assisting a client crime or fraud.
ER 4.3. Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall
not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer
shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal
advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows
or reasonably should know that the interests of such a person are or have a reasonable possibility
of being in conflict with the interests of the client.
Comment
[1] An unrepresented person, particularly one not experienced in dealing with legal matters,
might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law
even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will
typically need to identify the lawyer's client and, where necessary, explain that the client has
interests opposed to those of the unrepresented person. For misunderstandings that sometimes
arise when a lawyer for an organization deals with an unrepresented constituent, see ER 1.13(d).
[2] The Rule distinguishes between situations involving unrepresented persons whose interests
may be adverse to those of the lawyer's client and those in which the person's interests are not in
conflict with the client's. In the former situation, the possibility that the lawyer will compromise
the unrepresented person's interests is so great that the Rule prohibits the giving of any advice,
apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may
depend on the experience and sophistication of the unrepresented person, as well as the setting in
which the behavior and comments occur. This Rule does not prohibit a lawyer from negotiating
the terms of a transaction or settling a dispute with an unrepresented person. So long as the
lawyer has explained that the lawyer represents an adverse party and is not representing the
person, the lawyer may inform the person of the terms on which the lawyer's client will enter
into an agreement or settle a matter, prepare documents that require the person's signature and
explain the lawyer's own view of the meaning of the document or the lawyer's view of the
underlying legal obligations.
ER 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve
results by means that violate the Rules of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable Code of
Judicial Conduct or other law.
(g) file a notice of change of judge under Rule 10.2, Arizona Rules of Criminal Procedure, for an
improper purpose, such as obtaining a trial delay or other circumstances enumerated in Rule
10.2(b).
Comment
COMMENT [AMENDED EFFECTIVE DEC. 1, 2002]
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses
are in that category. A pattern of repeated offenses, even one of minor significance when
A lawyer who in the course of representing a client, knowingly manifests by words or conduct,
bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation
or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the
administration of justice. This does not preclude legitimate advocacy when race, sex, religion,
national original, disability, age, sexual orientation or socioeconomic status, or other similar
factors, are issues in the proceeding. A trial judge's finding that peremptory challenges were
exercised on a discriminatory basis does not alone establish a violation of this rule.
A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that
no valid obligation exists. The provisions of ER 1.2(d) concerning a good faith challenge to the
validity, scope, meaning or application of the law apply to challenges of legal regulation of the
practice of law.
Lawyers holding public office assume legal responsibilities going beyond those of other citizens.
A lawyer's abuse of public office can suggest an inability to fulfill the professional role of
attorney. The same is true of abuse of positions of private trust such as trustee, executor,
administrator, guardian, agent and officer, director or manager of a corporation or other
organization.
COURT COMMENT TO EXPERIMENTAL 2001 AMENDMENT TO ER 8.4(G)
Arizona is one of only a few states that allow by judicial rules a party to notice a change of judge
without cause. The purpose of the rule is to allow a party to ask for a new judge when a party
may perceive a bias that does not rise to disqualification under the rules allowing a challenge for
actual bias or prejudice. Historically, the reasons for exercising a challenge were not inquired
into. Just as peremptory challenges of jurors lead to abuses of race or gender based
disqualification, however, the peremptory notice of judge has been abused by some to obtain trial
delay.
The rule was amended in 2001 on an experimental basis to make clear that filing a notice of
change of judge for an improper purpose, such as trial delay or other circumstances enumerated
in Rule 10.2(b), is unprofessional conduct. The Court adopted this amendment and the
amendments to Rule 10.2. Rules of Criminal Procedure, in an effort to address abuse of Rule
10.2. If such abuse is not substantially reduced as a result of the amendments at the conclusion of
the one-year experiment on June 30, 2002, the Court at that time will abolish the peremptory
change of judge in most criminal cases as recommended in a proposal by the Arizona Judicial
Council. See R-00-0025.
COMMENT [EFFECTIVE DEC. 1, 2003]
[1] Lawyers are subject to discipline when they violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do so or do so through the acts of
another, as when they request or instruct an agent to do so on the lawyer's behalf. Paragraph (a),
however, does not prohibit a lawyer from advising a client of action the client is lawfully entitled
to take.
[2] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses
are in that category. A pattern of repeated offenses, even ones of minor significance when
[3] A lawyer who in the course of representing a client, knowingly manifests by words or
conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual
orientation, gender identity or socioeconomic status, violates paragraph (d) when such actions
are prejudicial to the administration of justice. This does not preclude legitimate advocacy when
race, sex, religion, national origin, disability, age, sexual orientation, gender identity or
socioeconomic status, or other similar factors, are issues in the proceeding. A trial judge's finding
that peremptory challenges were exercised on a discriminatory basis does not alone establish a
violation of this Rule.
[4] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief
that no valid obligation exists. The provisions of ER 1.2(d) concerning a good faith challenge to
the validity, scope, meaning or application of the law apply to challenges of legal regulation of
the practice of law.
[…]
Yes, No, or Maybe: The Importance of Developing a
Philosophy of Lawyering in an Era of Immigration Upheaval
By K. Craig Dobson
A
few years ago, a friend asked me to represent her on a DUI charge. I had never handled a criminal case, and I really
didn’t know where to begin. I asked some experienced colleagues for help, and they emphatically recommended a
book by Bubba Head, one of the best DUI attorneys in the state of Georgia and possibly the United States. I bought
the book and read it, and then asked follow-up questions of my colleagues. I asked one lawyer about the procedure that he
used to test the equipment at the police station that measures blood alcohol content. The colleague laughed and said that
nobody really did everything that Bubba recommended in his book. In what seemed to be his way of justifying the fact that
he had never tested the electrical systems, etc. at the police station, he said that this would likely just make some people mad,
namely the judge and the prosecutor, and ultimately hurt not only this client, but also my reputation and thus future clients.
And further, local lawyers could not charge the fees that Bubba was rumored to have charged so it was not economical to
put in this level of time and effort. Though the book was universally recommended by colleagues, they apparently did not
intend for me to follow Bubba’s advice that closely.
This raises a number of issues that are also applicable in the immigration context, particularly in immigration court. In this
era of immigration upheaval, lawyers need to know how far they can go and how far they should go in representing their
AILA Doc. No. 17092930. (Posted 9/29/17)

Yes, No, or Maybe: The Importance of Developing a Philosophy of Lawyering in an Era of Immigration Upheaval 1 of 7
clients. In this writing, I will argue that the answer lies not only in the applicable ethics rules and laws, but also resides within
each individual lawyer.
The ethics rules require that we diligently and competently represent our clients, relegating the “zealousness” language to the
comments and the preamble.1 (The preamble to the federal rules does, however, state that nothing in those rules is intended
to relieve the lawyer of her duty to zealously represent her client.2) Without the express requirement of zealousness, perhaps
the first question we should ask is whether an immigration lawyer should represent her client with zeal. Professor Elizabeth
Keyes, in her salient article, Zealous Advocacy: Pushing the Borders in Immigration Litigation,3 answers the question with a
resounding “yes” when it comes to clients in immigration court proceedings. She argues that the odds are stacked against the
immigrant, and zealous representation is one of the few things we can do to make sure that justice is done. But other lawyers
may disagree with this “client-centered” approach, espousing a different “philosophy of lawyering,” or more specifically,
“philosophy of practice.”4 Professor Nathan Crystal, in his groundbreaking work, Developing a Philosophy of Lawyering,5
delineates several different philosophies of practice that a lawyer may adopt. Professor Keyes’ philosophy of practice would
clearly fall within the category of what I believe Professor Crystal would call “client-centered.”6 While it is doubtful that
most lawyers practice in a “client-centered” way7, I firmly believe that that is the aim for most of us in the profession. I would
also guess that most lawyers feel that this is in fact the only way there is to practice—as a “client-centered,” “hired gun.” With
this as the only acceptable goal, lawyers can become overwrought with guilt and dissatisfaction for falling short. But in fact,
the ethics rules give us a lot of latitude. By developing a philosophy of lawyering, lawyers can—within the scope of applicable
laws and ethics rules—define for themselves a way of practicing law that is consistent with their long-term vision for their
lives and their values. This will lead to increased contentment among lawyers within the profession, with the ensuing benefits
passed along to clients. And clients will benefit as well by receiving clear articulations of lawyers’ philosophy of practice so
that they can make informed decisions about which lawyer to hire. In fact, Professor Crystal argues that such disclosure
should be required.8 The goal of this writing is to briefly introduce lawyers to the concept of a philosophy of practice, to
illustrate by way of example how various philosophies might play out in immigration practice, and to demonstrate the benefit
to both lawyers and clients of such an organized approach to discretionary decisions within the practice of law.
Professor Crystal delineates philosophy of practice into four main categories: a self-interested philosophy of lawyering, a
morality-based philosophy of lawyering, a philosophy of lawyering centered around institutional values, and a philosophy of
lawyering that is client-centered.9 The range of various philosophies of practice is broad and the subject of a great deal of le-
gal scholarship.10 Additionally, one’s philosophy of practice need not fit neatly into one of the categories, but may instead be
1 See generally ABA Model Rules of Professional Conduct. The word “zealous” does not appear in the text of the rules.
2 “Nothing in this regulation should be read to denigrate the practitioner’s duty to represent zealously his or her client within the bounds of the law.” 8 CFR 1003.102.
3 Keyes, Elizabeth (2015) “Zealous Advocacy: Pushing Against the Borders in Immigration Litigation,” Seton Hall Law Review: Vol. 45 : Iss. 2 , Article 3. Available at:
http://scholarship.shu.edu/shlr/vol45/iss2/3.
4 The concept of “philosophy of lawyering” is broad and encompasses a lawyer’s work/life balance, involvement in the development of the profession, and the practice
of law itself. See generally Nathan M. Crystal, Using the Concept of a “Philosophy of Lawyering” in Teaching Professional Responsibility (2007) 51 St. Louis U.L.J. 1235
(2007). This article focuses on the latter, what Professor Crystal calls “philosophy of practice,” defining it as “that part of a lawyer’s overall ‘philosophy of lawyering’
that focuses on a lawyer’s philosophy in making discretionary decisions in the practice dimension.” Id at 1241.
5 Nathan M. Crystal, Developing a Philosophy of Lawyering, 14 Notre Dame J.L. Ethics & Pub. Pol’y 75 (2000).
6 Nathan M. Crystal, Using the Concept of a ‘Philosophy of Lawyering’ in Teaching Professional Responsibility (2007) 51 St. Louis U.L.J. 1235 at 1245.
7 Professor Crystal notes that “[s]ome empirical studies (although limited in number and scope) of the behavior of criminal defense lawyers, lawyers in small com-
munities, lawyers in nonlitigation activities, and lawyers in large law firms cast doubt on the claim that neutral partisanship accurately describes the conduct of most
lawyers. Indeed, some of these studies suggest that the problem with the way lawyers conceive of their role is the opposite of neutral partisanship; lawyers are not
sufficiently zealous in representing their clients because they are concerned about protecting their reputations, preserving relationships with other lawyers, judges, or
officials, or advancing their own interests.” Nathan M. Crystal, Developing a Philosophy of Lawyering, 14 Notre Dame J.L. Ethics & Pub. Pol’y 75, 88 (2000).
8 Professor Crystal states that “[c]lients…are entitled to more than word of mouth or the luck of the draw. Clients are entitled to receive from their lawyers a clear
expression of the lawyer’s philosophy of representation.” Nathan M. Crystal, Developing a Philosophy of Lawyering, 14 Notre Dame J.L. Ethics & Pub. Pol’y 75, 94
(2000).
9 Nathan M. Crystal (2007) 51 St. Louis U.L.J. 1235 at 1245 (Chart 3).
10 See Nathan M. Crystal (2007) 51 St. Louis U.L.J. 1235 at 1251.

a complex combination of various aspects of each.11 This brief hypothetical will help illustrate how a philosophy of practice
may influence a lawyer’s decisions in real life.
Hypothetical
In order to show contrast among various philosophies of practice, including the client-centered approach advocated by
Professor Keyes, I will use a question she addresses in her article: “Have you EVER committed a crime or offense for which
you have not been arrested?”.12 Assume that, while completing Form I-918 for a client who is in removal proceedings, he
reveals to a lawyer that he has committed several crimes. He admits to stealing a watch on his 18th birthday and he tells
the lawyer that he frequently jaywalks. He further states that his lawyer must, of course, keep these facts a secret. The I-918
petition for U status is the only defense the client has in removal proceedings. With this brief example, I will begin by
analyzing how a self-interested philosophy of practice might look in the immigration context.
A Self-Interested Philosophy of Lawyering
After careful consideration, lawyers might decide that they will generally exercise any discretion they may have in favor
of themselves.13 To avoid potential ethical entanglements, the lawyer follows a self-interested approach to discretionary
decision-making. He tells the client that he cannot proceed without disclosing these offenses on the I-918. He further
tells the client that he must conduct research to determine whether stealing the watch was in fact a crime involving moral
turpitude and whether it is subject to the petty offense exception under INA § 212(a)(2)(A)(ii)(II). The self-interested
lawyer charges a high, but reasonable, hourly rate and tells that client that this will cause the legal fee to increase substantially.
If the petty offense exception applies, then the client will then have to disclose the shoplifting offense on his I-918 and the
lawyer will draft a brief to USCIS explaining how the petty offense exception applies, again adding to the already substantial
legal fee. The self-interested lawyer might then explain that other lawyers disagree with the duty to disclose prior offenses
and that the client is free to seek the opinions of other lawyers.14
While such an approach may seem absurd and extremely prejudicial to the client at first, a closer look may reveal that
this actually benefits the client in the long run. If the petty offense exception does apply, then the client could disclose the
shoplifting (and perhaps include some general statement that says he jaywalks on a regular basis and cannot recall every
offense). If the petty offense exception does not apply, then a waiver could be filed. Perhaps there is a small chance that
someone witnessed him shoplifting or that he bragged to his friends about doing so. If the client is successful with his
petition, he would never again have to worry about his failure to disclose. If one of these people contacted USCIS to report
the shoplifting or perhaps turned the client in to local authorities, this would not give rise to his losing his status and once
again facing proceedings.15
11 See Nathan M. Crystal (2007) 51 St. Louis U.L.J. 1235 at 1245.

12 See Keyes, Elizabeth (2015) “Zealous Advocacy: Pushing Against the Borders in Immigration Litigation,” Seton Hall Law Review: Vol. 45 : Iss. 2, Article 3 at 532
quoting I-918, Petition for U Nonimmigrant Status, at 3, U.S. Citizenship and Immigration Services, available at http://www.uscis.gov/i-918 (last visited Feb. 28,
2015).
13 See Nathan M. Crystal (2007) 51 St. Louis U.L.J. 1235 at 1244, 1245.
14 ABA Model Rule 1.3 requires the lawyer to act with “reasonable diligence and promptness,” and Comment 1 says the “lawyer must…act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” But the comment further states that a “lawyer is not bound, however, to
press for every advantage that might be realized for a client.”
15 The disclosure per se may lead to criminal charges being initiated. As this is a serious consequence under criminal law, it may be wise to insist that the client consult
with criminal defense counsel if this is beyond the scope of the lawyer’s engagement.

If the client insisted on not revealing the shoplifting on his application, the immigration lawyer might seek leave to withdraw
from the case, citing a breakdown in the lawyer/client relationship. In the event that the judge were to deny the motion,
the lawyer would have no choice but to continue with the representation pursuant to ABA Model Rule 1.16 and applicable
federal rules. As the I-918 is filed with USCIS, it might be possible for the lawyer to limit the scope of his representation
and insist that the client hire separate counsel for the U petition, but this would nonetheless require substantial cooperation
of the client.
The self-interested lawyer would be unlikely to propose checking the “no” box on Form I-918 as this may increase the risk of
violating ABA Rule 4.1 or 3.3.16 Furthermore, an “overzealous” prosecutor might even seek criminal charges against a lawyer
pursuing this option, making this an even more unlikely choice for the lawyer who has adopted this philosophy of practice.17
A Morality-Based Philosophy of Lawyering
Under a morality-based philosophy of lawyering, “lawyers are morally accountable for the actions that they take on behalf
of their clients and must be prepared to defend the morality of what they do.”18 Under this philosophy, lawyers cannot
claim that they are merely a “hired gun” and that they are not morally responsible for their actions so long as they comply
with laws and ethics rules. Of course, one problem with a morality-based philosophy of lawyering is that moral values are
subjective.19 This problem also makes it more difficult to demonstrate how this rule might apply. Honesty would be a moral
value that presumably all lawyers would consider important, but their interpretation of the technical aspects of the I-918
question under discussion may vary. In our example involving the I-918, one lawyer may interpret their duty of honesty,
based upon religious or moral values, to require him to either withdraw from the case or convince the client to proceed
checking the “yes” box. Another might value honesty as much as the first, but interpret this differently within the context
of his overall obligation to serve his client and the technical interpretation of the question. Assume that his client is from
Honduras. The lawyer might consider his obligation to interpret any gray area in favor of his client, given the risk that his
client might otherwise face returning to Honduras—a small country where he would face grave danger—in the future. The
lawyer may be concerned that his client stole an expensive watch and committed a crime that is not covered under the petty
offense exception, is punishable by at least a year in jail, and therefore is subject to a waiver for which there is no guarantee
of approval. The lawyer might consider the Judeo-Christian value of welcoming the stranger to compel him to interpret the
gray area in favor of helping his client remain here and avoid the suffering he would face in Honduras. As justification for
his action, he might interpret the question on the I-918 as overly broad, unfair, and decide that honesty does not require
checking the “yes” box. (A detailed discussion to follow under the “client-centered” section.)
16 The lack of clarity as to whether Rule 3.3 or 4.1 applies in this situation provides another good example for analysis of philosophy of practice. Beyond the clarity
provided by the plain meaning of the definition of tribunal in the ABA Model Rules, the NYSBA makes a strong argument in Opinion 1011 that service centers
and field offices are not tribunals. However, the opinion cites several court opinions that have reached contrary conclusions. The opinion points out that, in each case
cited, either the lawyer did not dispute the issue or the court provided no explanation as to why it reached its conclusion. Even Hazard & Hodes state, “without
citing authority, ‘Rule 3.3(d) applies to such matters as applications before the Patent Office and other ex parte presentations’).” NYSBA Opinion 1011 (quoting
Hazard & Hodes, The Law of Lawyering § 29.3, at 29-7 (2007 Supp.). It is likely that the client-centered lawyer would consider Rule 4.1 to apply when there is a
lack of clarity as to whether a previous statement need be corrected. The self-interested lawyer would be more likely to err on the side of considering service centers
“tribunals” for purposes of Rule 3.3.
17 Cyrus Mehta, Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?, at http://blog.cyrusmehta.com/CyrusMehta/
wp-content/uploads/wp-post-to-pdf-enhanced-cache/2/crime-without-punishment-have-you-ever-committed-a-crime-for-which-you-have-not-been-arrested.pdf.
18 Nathan M. Crystal, Using the Concept of a ‘Philosophy of Lawyering’ in Teaching Professional Responsibility (2007) 51 St. Louis U.L.J. 1235 at 1242.
19 Nathan M. Crystal, Developing a Philosophy of Lawyering, 14 Notre Dame J.L. Ethics & Pub. Pol’y 75, 90 (2000).

An Institutional Values-Based Philosophy of Lawyering
Those concerned about the subjective nature of a “philosophy of morality” might instead choose a “philosophy of institutional
value.” There are many complex theories espoused by ethics scholars, and a detailed analysis of each is beyond the scope of
this writing.20 For illustrative purposes, I will use Professor Crystal’s more general definition of a “philosophy of institutional
values” as “approaches based on social or professional values or norms rather than principles of morality.”21 In this case, a
lawyer might argue that, after long and deliberate consideration, the law has been drafted to take crimes involving moral
turpitude seriously. Federal regulations give form instructions great weight, and this would presumably extend to answering
every question on the forms.22 Though regulations are not passed by elected officials, they are promulgated after notice to
and comment by the public. He might then decide that it makes sense that the lawyer’s own moral views are subjugated
to those of the state.23 He might decide that the question should be answered in the affirmative in our example because
the shoplifting offense is clearly the kind of thing the drafters were looking for.24 In Professor Keyes’ words, “[p]erhaps
answering yes shows respect or even some awe for the legal system, the same system that drew the lawyer into the profession
in the first place.”25
A lawyer who follows an institutional values-based philosophy would likely have faith in “the system,” believing that the laws
and courts are essentially fair and just. A lawyer who finds our current laws and court system to be deeply flawed and in need
of dramatic change would be less likely to choose such a philosophy. On the other hand, a lawyer might express his views
that the system needs change (and even work toward making the change happen) while at the same time believing that in
gray areas his personal code of ethics must give way to institutional values until such change occurs. To give an analogous
political example to illustrate the point more clearly, it is widely known that John McCain has sometimes voted to confirm
certain Presidential nominees who he would not have chosen personally and who might work against some of the laws and
policies he believes to be important. Citing the maxim that “Elections have consequences,” he might vote to confirm such a
candidate so long as he or she is competent.
A Client-Centered Philosophy of Practice
Using a client-centered philosophy of practice, the lawyer would “take any action that will advance the client’s interest so
long as the action does not clearly violate a rule of ethics or other law (the principle of professionalism).”26 Professor Keyes
argues forcefully that such a philosophy be adopted by all immigration court lawyers, given the gravity of the matters before
the tribunal and the unfairness under current regulations and laws.27 With regard to answering in the affirmative on the
broad question posed on the I-918, she argues that “the defensible path of saying ‘no’ even when possibly the truth is ‘yes,’ is
20 For an overview of some important philosophies of institutional values, see Nathan M. Crystal, “ Using the Concept of a ‘Philosophy of Lawyering’ in Teaching Profes-
sional Responsibility (2007) 51 St. Louis U.L.J. 1235 at 1242-1244.
21 Professor Crystal notes that “philosophies of morality and institutional values are not inconsistent because institutional values often embody moral principles.” Na-
than M. Crystal, Using the Concept of a ‘Philosophy of Lawyering’ in Teaching Professional Responsibility (2007) 51 St. Louis U.L.J. 1242, 1243.
22 See 8 CFR 103.2(a).
23 Perhaps this line of thinking most closely aligns with Professor Brad Wendell’s philosophy of lawyering briefly outlined by Professor Crystal. Nathan M. Crystal, Using
the Concept of a ‘Philosophy of Lawyering’ in Teaching Professional Responsibility (2007) 51 St. Louis U.L.J. 1243, 1244.
24 The drafters of the form are apparently fishing for an admission under INA § 212(a)(2)(A)(i), though certain responses may lead an officer to believe the client is
a “drug abuser or addict” under INA §212(a)(1)(A) or give them “reason to believe” that the client “is or has been an illicit trafficker in any controlled substance…”
under INA §212(a)(2)(C)(i).
25 Keyes, Elizabeth (2015) “Zealous Advocacy: Pushing Against the Borders in Immigration Litigation,” Seton Hall Law Review: Vol. 45 : Iss. 2 , Article 3 at 533.
26 Nathan M. Crystal, Using the Concept of a ‘Philosophy of Lawyering’ in Teaching Professional Responsibility (2007) 51 St. Louis U.L.J. 1241.
27 See generally Keyes, Elizabeth (2015) “Zealous Advocacy: Pushing Against the Borders in Immigration Litigation,” Seton Hall Law Review: Vol. 45 : Iss. 2 , Article
3 at 532, FN 268.

a choice made by the zealous advocate.”28 But she admits that “for the risk-averse among us, this choice comes dangerously
close to a collision with duties to the legal system.”29 As immigration lawyer and ethicist Cyrus Mehta points out in his article
on the subject in the negative could lead to problems with “an overzealous prosecutor or bar investigator,” but he also provides
an in-depth illustration of just how complicated and unclear the matter really is.30 The Board of Immigration Appeals (BIA)
has held that “a valid admission of a crime for immigration purposes requires that the alien be given an adequate definition
of the crime, including all essential elements, and that it be explained in understandable terms.”31 The argument that some
make is unless the client has been presented with the law under these terms, he or she cannot possibly answer the question in
the affirmative. This might then lead one to the conclusion that in practice only a criminal defense lawyer might be required
to check “yes,” as only they would know all the essential elements of the crime. But there might exist the rare circumstance
in which an individual might have officially made a previous admission before a government official, thereby satisfying these
requirements and necessitating an affirmative answer. And a lawyer might further argue that if this question were to be
interpreted as a broad “catch all,” then virtually everyone would have to check the “yes” box. The lawyer could argue that the
government must be aware that most lawyers and foreign nationals who prepare these forms do not interpret the forms in
this broad manner. Otherwise, nearly everyone—almost certainly those who drive automobiles—would be answering “yes”
to the question and explaining that they have broken traffic laws (often misdemeanors under state law) countless times and
have possibly committed other crimes that they were not even aware of. Perhaps the most compelling argument of all in the
context is that “guilt” with respect to a particular crime is a legal term. Checking the “yes” box when a client has not been
convicted according to INA Section 101(a)(48)(A) essentially involves the client’s own lawyer assuming the role of both
judge and jury with respect to the conduct in question.32 Furthermore, checking the “yes” box could lead to fundamentally
unfair results for those who were never charged with a crime. Assume the client checks the “yes” box, though his conduct
was never called into question by authorities. This might then lead to further inquiry by immigration officials and an official
admission under INA 212(a)(2), ultimately resulting in a finding that he is “inadmissible” under immigration law. Another
client who has done the same thing is charged with shoplifting, which ultimately results in “pre-trial intervention” (PTI).
The client makes no formal admission, completes a program under state law that allows him to avoid jail time, and avoids a
final disposition that qualifies as a conviction under INA 212(a)(2). He checks the “no” box to the “Have you ever committed
a crime or offense…” question and provides a copy of the certified original disposition showing successful completion of PTI
in response to another question on the form, asking whether he has ever been arrested or charged with a crime. No further
questions are asked of this client, and he is not found inadmissible. This provides strong support for the lawyer who checks
the “no” box in our hypothetical situation, but serious risks remain, which is why this option would likely only be selected by
the client-centered lawyer.
The self-interested lawyer works to minimize his personal risk and prioritizes himself when representing his client. The
morality-based lawyer prioritizes her personal ethical system. The lawyer who adopts an institutional values approach
prioritizes the broader ethical system of the whole over that of the individual. But the truly client-centered lawyer prioritizes
the client above all else.
30 Cyrus Mehta, Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?, at http://blog.cyrusmehta.com/CyrusMehta/
wp-content/uploads/wp-post-to-pdf-enhanced-cache/2/crime-without-punishment-have-you-ever-committed-a-crime-for-which-you-have-not-been-arrested.pdf
(last accessed July 5, 2017).
31 Matter of K, 7 I&N Dec. 594 (BIA 1957).
32 See Keyes, Elizabeth (2015) “Zealous Advocacy: Pushing Against the Borders in Immigration Litigation,” Seton Hall Law Review: Vol. 45 : Iss. 2 , Article 3 at 532.

Developing Your Own Philosophy of Practice
Every lawyer should formally draft her or his own philosophy of practice.33 You have a philosophy of lawyering whether
you are aware of it or not.34 If you are not aware of it, then your clients probably do not know what it is either. Develop a
written philosophy and hone it through time. This allows you to clarify your thoughts and can be an invaluable guide when
making difficult decisions. Professor Crystal makes several suggestions as to how lawyers might provide their philosophy of
lawyering to clients. I strongly support lawyers providing a philosophy of practice (or better yet, their more comprehensive
philosophy of lawyering) to their clients because this allows the client to make an informed decision about who to hire, but
I stop short of suggesting this as a requirement. A lawyer’s website would be the ideal place to post this and reference to it
in the engagement letter would be a good idea.35 While it would seem likely that a client would only choose a lawyer with a
client-centered practice, there are plenty of examples in which a client might prefer a different kind of lawyer. An evangelical
Christian might choose a lawyer who makes her discretionary decisions based upon the guiding principles of her religion. A
lawyer who espouses a philosophy of practice based in institutional values might, out of respect for the rule of law, develop
a deep understanding of her field of practice and thus provide outstanding legal representation to her clients. And a client
might choose to hire a lawyer despite her having a more of a self-interested philosophy of practice, provided she has stellar
track record of success.
Lawyers also benefit from having a philosophy of practice. It is this lawyer’s opinion that many lawyers are unhappy with
their work because they are not living in a manner that is consistent with their vision and values. Developing a written
philosophy of lawyering can help the lawyer along the path to greater career satisfaction. Those who work as employees
may decide to quit their job and work someplace else or start their own firms. Others might decide to change the way they
practice. And as immigration lawyers face increasingly more difficult ethical decisions, a formal, written philosophy of
practice can serve as the bedrock upon which these decisions are made. The hypothetical in this article provides one such
example.
Immigration lawyers should not only know the immigration laws, but also the criminal statutes that could possibly affect
their clients and them.36 And to effectively represent our clients, we must know the ethics rules inside and out. Put another
way, every lawyer should be an expert in the Rules of Professional Conduct, including the comments thereto. Lawyers must
be keenly aware of the rules that do not allow for discretion,37 and they must exercise clear and sound judgment as to the
boundaries of discretion.38 Now more than ever, lawyers need a set policy to guide them in discretionary matters, and clients
deserve to know how their lawyers will handle these issues before hiring the lawyer. Developing a formal philosophy of
practice is a way to achieve this.
33 See Nathan Crystal’s articles on the subject.

34 “Because discretion is so pervasive in the practice of law, lawyers develop, either thoughtfully or haphazardly, a general approach for making these decisions.” Devel-
oping a Philosophy of Lawyering, 14 Notre Dame J.L. Ethics & Pub. Pol’y 75, 75 (2000).
35 See Developing a Philosophy of Lawyering, 14 Notre Dame J.L. Ethics & Pub. Pol’y 75, 97 (2000).
36 Cyrus D. Mehta and Alan Goldfarb, Up Against a Wall: Post-Election Ethical Challenges for Immigration Lawyers, Jan. 11, 2017, (AILA Doc. No. 17011200).
37 For example, a lawyer may not charge a contingency fee in a criminal case or certain family law matters. See Rule 1.5(d).
38 See, for example, the reasonableness requirements of ABA Model Rule 1.7.

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THE INSEPARABILITY OF
PROFESSIONALISM AND PERSONAL
SATISFACTION: PERSPECTIVES ON
VALUES, INTEGRITY AND HAPPINESS
LAWRENCE S. KRIEGER*
This article suggests a more effective approach to professional-

ism trainingbased on a modern understandingof human nature. It
explains (1) the many empirically established connections between
life satisfaction and the values and motivations that would promote
professional behavior among lawyers, and (2) the role of character
integrity in maintainingphysical and emotional wellness. It then de-
scribes an approach to teaching this material in the classroom or
clinical setting, in order to foster both professionalism and career sat-
isfaction among law students.
There is a lot of talk about "professionalism" in law schools and
the legal profession today, with little evidence of positive impact. Stu-
dents continue to turn away from public service careers1 , and there is
no suggestion of a diminution of hyper-aggressive litigation tactics.
One crucial reason that our rhetoric fails is that it is contradicted by
the competitive, outcome-oriented institutional values one typically
finds dominating law schools and the highly visible and commercial-
ized segments of the profession. It is reasonable that law students
and young lawyers "tune out" the noble but dissonant messages about
professionalism, but the regrettable result is that many of them fail to
really comprehend the foundations of their future working life.
Professionalism training typically amounts to telling law students
and lawyers that they should act in certain ways, for generally noble
reasons including the high calling of our profession; and that they'd
better do so, for more coercive reasons including the potential for bar
discipline. Neither of these motives - guilt or fear - is likely to be
effective in producing the desired result. 2 Rarely, if ever, is one's ac-
tual life experience - including one's happiness and career satisfaction
* Clinical Professor of Law, Florida State University College of Law. This essay is
based on a presentation to the Annual Conference of the Section on Clinical Education of
the Association of American Law Schools, May, 2003.
1 In 2002 and 2003 respectively, 3.4% and 3.2% of new law graduates took public
interest positions. National Association for Law Placement, Salary Summary Reports, at
http://www.nalp.org/nalpresearch/newgrads.htm (last visited Feb. 15, 2005).
2 The discussion of intrinsic motivation later in this paper will clarify that actions based
on such imposed motivations are themselves unsatisfying, and thus are not likely to persist.
CLINICAL LAW REVIEW [Vol. 11:425
- raised as part of the professionalism discussion. This fact further

enables students to distance themselves from a discussion they per-
ceive as theoretical rather than personal.
I will argue (1) that satisfaction and professional behavior are in-
separable manifestations of a well-integrated and well-motivated per-
son; and (2) that depression and unprofessional behavior among law
students and lawyers typically proceed from a loss of integrity - a dis-
connection from intrinsic values and motivations, personal and cul-
tural beliefs, conscience, or other defining parts of their personality
and humanity. I then suggest ways to create more relevant and effec-
tive teaching about professionalism, by showing students that their life
experience will be enhanced on many levels if they culture their values
and integrity to model the wise, compassionate lawyer-statesperson 3 .
As we proceed I will refer to humanistic theory and empirical
science to provide an understanding of human nature that supports
these conclusions and suggestions. I will offer further support by sum-
marizing the results of empirical studies on law students that I have
been able to conduct in the past four years.
VALUES AND PERSONAL SATISFACTION AS A PERSPECTIVE FOR

TEACHING PROFESSIONALISM
I begin with a strong dose of the truth for my students. This is

something too rarely done at our schools, for reasons I have discussed
in detail elsewhere.4 I tell students the truth about the dismal results
of surveys on attorney mental health and career satisfaction, and I tell
them the truth about the egregiously low standard of behavior often
encountered among attorneys and judges in the real world they are
preparing to enter. In case they don't believe me, I recount stories
from my own litigation days, and then I pull out the big guns - jour-
nals of their student peers now in clinical litigation programs (and who
have given permission to share their observations), describing the ma-
nipulative, abusive, egotistical, and often plainly dishonest actions of
some members of our profession. Sharing these truths, and particu-
larly those regarding the unhappiness and ill health in the profession,
feels like a bold step because students are unlikely to encounter this
information in their other courses. Not surprisingly, students are
3 ANTHONY T. KRONMAN, THE LOST LAWYER (1993). Professor Pang's discussion of

the qualities of professionalism share much with the Kronman analysis, as do other defini-
tions of professionalism raised in this conference. We are all going beyond the bare-bones
idea of technical competence to embrace the values of law practice as a calling.
4 See Lawrence Krieger, InstitutionalDenial About the Dark Side of Law School, and
Fresh Empirical Guidancefor Constructively Breaking the Silence, 52 J. LEGAL EDUC. 112
(2002).
Spring 2005] Inseparability of Professionalism and PersonalSatisfaction 427
often taken aback when they see data summaries showing lawyers to
have the highest incidence of depression of any occupation in the
United States 5 , or to suffer other forms of emotional distress up to 15
times more frequently than the general population. 6 Nonetheless, the
truth is both necessary and helpful, and I encourage teachers to use
it.7 Experience has shown that students devote their full attention
once confronted with evidence that their own wellness and life satis-
faction may soon become, if they are not already, genuine personal
concerns.
I transition to the positive side of our topics by focusing on the
values and motivations common to most people. This is a particularly
helpful focus for related reasons. First, certain common motivators
promote professional behavior, while others undermine it. It is no co-
incidence that there is a perception among the public, scholars, and
bar leaders alike that values like money, power, and an uncompromis-
ing drive to win are displacing values like integrity, decency, and mu-
tuality among many lawyers. The second reason for this focus makes
the discussion most relevant to students and lawyers: Those values and
motivations that promote or attend professionalism have been empiri-
cally shown to correlate with well being and life satisfaction, while those
that undermine or discourage professionalism empirically correlate
with distress and dissatisfaction. These conclusions are supported by
both recent empirical studies and classical humanistic theory describ-
ing psychological health and maturity.
PROFESSIONALISM AND SATISFACTION AS DUAL EXPRESSIONS OF

PSYCHOLOGICAL MATURITY
I present professionalism to law students as a combination of de-

veloped legal skills and various personal virtues that we typically seek
in lawyers: broad vision/wisdom, integrity and honesty, compassion,
respect for others and for differences, unselfishness, the desire to
serve others and one's community, self-confidence, individualism, and
a real commitment to justice. Classic humanist Abraham Maslow, one
of the first psychologists to explore the positive side of human nature,
relates many of these professional qualities to his "hierarchy of human
needs". Because most law students are familiar with Maslow's theo-
ries from a basic psychology course, the parallels he draws between
5 William Eaton, J. Anthony, W. Mandel, & R. Garrison., Occupationsand the Preva-

lence of Major Depressive Disorder,32 J. Occ. MEDICINE 1079 (1990).
6 Connie J. A. Beck, Bruce Sales, & Andrew H. Benjamin, Lawyer Distress: Alcohol
Related Problems and Other Psychological Concerns Among a Sample of Practicing Law-
yers, 10 J. L. & HEALTH 1, 2 (1995).
7 See infra pp. 441-45 (summarizing the data utilized).
life satisfaction and behavior that we consider ideal for a professional

are well-received.
Maslow delineated "lower" and "higher" human needs, and ob-
served that motivation toward the different levels of need produces
markedly different levels of life satisfaction. The lower needs include
survival, security, belonging, competence, and respect from others.
People focused mainly on any of these needs experience "deficiency
motivation" - a strong drive to fulfill these basic needs that is accom-
panied by minimal life satisfaction. The experience is one of effort
punctuated by "moments of episodic relief". 8 By contrast, people pur-
suing primarily the higher needs for self-esteem and self-actualization
experience "growth motivation", in which they are seeking the highest
levels of personal development and self-expression. This quality of
motivation provides an entirely different life experience, marked by
persistent satisfaction and fulfillment. Maslow found such people to
be peaceful, unworried, accepting, and to experience a constant sense
of gratitude, satisfaction, "overflowing abundance" and fresh appreci-
ation for life. 9 Their lives are also enriched by exceptional levels of
fun, joy, and love. 10
Maslow described people experiencing the fulfillment of growth
motivation to be psychologically mature, and he observed in them the
following character traits that exemplify professionalism: self-govern-
ance and individuality; universal, holistic thinking; undistorted percep-
tion of reality; superior awareness of truth; service orientation and
desire for the good of others; and highly democratic personality.1 1 He
concludes that this level of maturity produces "the most ethical of
12
people".
By contrast, deficiency motivation will keep people more nar-
rowly focused on "looking good", winning, or gaining money or pres-
tige, because the lower needs for security, belonging and gaining
respect generally depend on influencing other people and obtaining
limited resources from the environment. At the same time, such peo-
ple feel pressure to satisfy these needs, in order to experience the epi-
sodic relief previously mentioned. People experiencing deficiency
motivation are therefore unlikely to manifest the same level of ethics
and morality as others who are more psychologically mature, and
8 ABRAHAM H. MASLOW, MOTIVATION AND PERSONALITY 57 (2d ed. 1970).

9 Id. at 153-63. Much of this material is also summarized in Lawrence S. Krieger,
What We're Not Telling Law Students (and Lawyers) That They Really Need to Know: Some
Thoughts in Action Toward Revitalizing the Profession from its Roots, 13 J. LAW and
HEALTH 1, 20-25, 35-36 (1998).
10 ABRAHAM H. MASLOW, TOWARD A PSYCHOLOGY OF BEING 209 (2d ed. 1968).
11 MASLOW, MOTIVATION, supra note 8 at 153-72.
12 Id. at 168.
Spring 2005] Inseparabilityof Professionalism and PersonalSatisfaction 429
more likely to venture into manipulative, abusive or deceptive behav-

ior in order to meet their needs.
Modern Research On Values, Motivation And Happiness

Recent psychological research supports Maslow's correlations be-
tween types of motivation and levels of happiness. Modern psychol-
ogy classifies both values and motivation as either intrinsic or
extrinsic. A person is intrinsically motivated when he chooses a self-
directed action which he genuinely enjoys or which furthers a funda-
mental life purpose, while extrinsically motivated choices are directed
towards external rewards (i.e. money, grades, honors), avoidance of
guilt or fear, or pleasing/impressing others.1 3 The intrinsic values
share the personal growth and interpersonal focus of the "higher" hu-
manistic needs - they direct one towards self-understanding, close re-
lationships with others, pro-social/helping outcomes, and community
improvement. On the other hand, the modern extrinsic values share
the environment-dependent focus of the "lower" needs in Maslow's
hierarchy.14 They embody a more contingent worth, external rewards
orientation - toward money, luxuries, influence and appearance.
Empirical research for the past two decades has shown that when
intrinsic values and motivation dominate a person's choices she tends
to experience satisfaction and well-being, whereas when extrinsic val-
ues and motivation are most important to her she will experience
angst and distress. 15 As with the humanistic analysis, those (intrinsic)
values and motivations that promote happiness are by their very na-
ture likely to produce professional behavior, while those (extrinsic)
values and motivations that produce frustration and angst are often
associated with the loss of lawyer professionalism. For example, an
attorney who strongly values community betterment and who seeks to
improve her relatedness to others will create a much more positive
effect in her practice of law than one who is "in it for the money" or
who has a primary need to impress others with her case outcomes,
appearance, or acquisitions. Similarly, one who is genuinely seeking
personal improvement will be more thoughtful about her effect on
13 See generally, Kennon M. Sheldon & Tim Kasser, Goals, Congruence, and Positive
Well-Being: New Empirical Support for Humanistic Theories, 41 J. HUM. PSYCHOL. 30
(2001).
14 Maslow noted that values provided from external sources "have proven to be fail-
ures". MASLOW, TOWARD A PSYCHOLOGY OF BEING, supra note 10 at 206.
15 Sheldon & Kasser, supra note 13 at 42; Tim Kasser & Richard M. Ryan, A Dark Side
of the American Dream: Correlatesof FinancialSuccess as a Central Life Aspiration, 65 J.
PERS. & SOC. PSYCHOL. 410 (1993); Tim Kasser & Richard M. Ryan, Further Examining
the American Dream:Differential Correlatesof Intrinsic and Extrinsic Goals, 22 PERSONAL-
ITY & SOC. PSYCHOL. BULL. 281 (1996).
and treatment of other people, while one who is solely focused on

gaining the win or the money is more likely to go to improper lengths
for the desired result. Attorneys who are deeply committed to their
own values are less likely to pursue the values or desires of their cli-
ents with unethical or abusive tactics. And a lawyer who chose her
career path for the most fundamental intrinsic reason - because she
genuinely enjoys the work - will generate a better work product1 6 and
be consistently happy at work, thereby creating a positive effect on
her clients, adverse counsel, court personnel. The converse is also
true - an attorney who does the work primarily for the money or to
bolster his image will be more frustrated with the process, less effec-
tive, and much less pleasant to work with (or against).
Modern Research On Psychological Needs And Happiness

The correlation between happiness or satisfaction and profes-
sional behavior is further supported by recent empirical research on
human needs. This research again confirms much of Maslow's earlier
work. It demonstrates that well-being results from experiences of self-
esteem, relatedness to others, autonomy, authenticity, and competence.
Fulfillment of any of these needs provides a sense of well-being and
thriving, while lack of such experiences produces distress, depressed
mood or loss of vitality. Self-esteem and relatedness show the very
strongest correlation to happiness. 17 As we look to our ideals for at-
torneys, we see again that the preferred professional behaviors will
tend to fulfill these basic human needs and hence support a satisfying
life experience. The truly professional lawyer will be competent in le-
gal skills, but- beyond that she will feel closely connected to others in
her community because she respects and is respected by them. She
will experience the authenticity and integrity that comes from loyalty
to her deepest values, and she will feel good about herself for all of
the above reasons.
The converse is also true. A lawyer who is selfish, greedy, dis-
honest, or overzealous may retain her livelihood and technical compe-
tence, but her well-being will suffer as the rest of her fundamental
16 It is well established that intrinsic motivation improves performance. See, e.g., Bar-
bara Glesner Fines, Competition and the Curve, 65 U.M.K.C. L. REv. 879 (1997); see also
Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining
Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being 22
BEHAV. Sci. & LAW 261, 281 (2004). This study is discussed in some detail infra.
17 See Krieger, InstitutionalDenial, supra note 4, at 119-122 (discussing this research on
basic human needs and their satisfaction in law school and practice, citing Kennon M.
Sheldon, J. Arndt & Houser-Marko, What is Satisfying About Satisfying Events? Testing 10
Candidate PsychologicalNeeds, 80 J. PERS. & Soc. PSYCHOL. 325 (2001). The fundamental
needs are listed on the last page of the appendix in summary form for classroom use.
Spring 2005] Inseparabilityof Professionalismand PersonalSatisfaction 431
needs go unfulfilled. She will not be respected by others in her profes-

sional community, nor will she long feel good about herself. She will
experience the distress that comes with loss of conscience, intrinsic
valuing, and integrity - all aspects of personal authenticity. All of
these disconnections from her self and others strip life and work of
their meaning, leaving an emptiness that can breed a compulsion for
more work, more money, excessive alcohol or food, or other addictive
tendencies.
UnderstandingIntegrity As Physical And Psychological Health

One more principle that illuminates the relationship between per-
sonal satisfaction and professionalism is integrity. Integrity is clearly a
foundation of professionalism, but its effect on personal well-being is
perhaps even more direct. In fact, integrity is conceptually synony-
mous with health. Although we may commonly think of "health" in
terms of the body and "integrity" in terms of the personality or char-
acter, the essence of each is the same - a condition of wholeness or
integrated functioning within one's self.1 8 Furthermore, the function-
ing of the personality and of the physiology are closely interrelated: a
person's level of personal integrity affects his physical health and well-
being directly. 19 For example, if a person is psychologically depressed
her immune system becomes impaired. More directly relevant to our
discussion, lying or deceptive behavior, which clearly manifests a loss
of character integrity, is often attended by the experience of psycho-
logical anxiety and physical stress (increased heart rate, damp palms,
etc.).,2 Conversely, if a person overcomes a physical illness or injury
(a diminished level of integrated physical functioning) her psychologi-
cal experience improves.
These important realizations again create for law students con-
crete, personally relevant connections between professionalism and
their own health and well-being. We may certainly discourage lying,
deception, manipulation of fact or law, or abuse of people or process
18 See RANDOM HOUSE NEW WORLD DICTIONARY 609 (Revised ed. 1988) (stating that
"healing" involves restoring function to its whole, integrated state); see also Sharon
Dolovich, Ethical Lawyering and the Possibility of Integrity, 70 FORDHAM L.REV. 1629,
1650 (2002) (defining integrity as a state of integration or undivided wholeness and provid-
ing an in-depth discussion of integrity in the context of professionalism).
19 See LAWRENCE S. KRIEGER, THE HIDDEN SOURCES OF LAW SCHOOL STRESS:
AVOIDING THE MISTAKES THAT CREATE UNHAPPY AND UNPROFESSIONAL LAWYERS 14-15
(2005) (pamphlet on file with author, lkrieger@law.fsu.edu) available at http://
www.law.fsu.edu/academic-programs/humanizing-lawschool/booklet.php.
20 Polygraphs monitor physical functions such as heart rate, blood pressure, and gal-
vanic skin resistance to detect changes associated with dishonesty. These changes also cor-
relate with the stress response. MARK A. ROTHSTEIN & LANCE LIEBMAN, EMPLOYMENT
LAW: CASES AND MATERIALS 186-187 (5th ed. 2003); Id. at 5 (5th ed. Supp. 2004).
because such behavior is "unprofessional". But the impact will be

multiplied if we also explain that such behavior erodes integrity by
separating the lawyer from key parts of her self - her conscience, sense
of decency and/or intrinsic values. The results are likely to include
loss of her professional reputation along with physical and emotional
stress that will ultimately undermine her health.21
It is also important for students to understand the various ways
that both legal education and early lawyering experiences can tend to
erode integrity by separating people from their personal values and
beliefs, conscience, truthfulness, and intrinsic needs for caring and co-
operation. 22 This erosion of integrity is a harsh reality that is sup-
ported by psychological research summarized below, and students
exposed to this research seem to understand its personal implications
immediately. To the extent that we impart awareness 23 of this poten-
tial and its negative consequences for health, happiness, and profes-
sional reputation, students will be empowered and encouraged to
focus on their integrity (including their values, ideals, desires, in-
stincts, and conscience) during law school and into their legal careers.
21 See BRAD BLANTON, RADICAL HONESTY XXV (1996) (appearing in Krieger, supra
note 19 at 14). Maslow recognized that both mental and physical illness could result from
loss of intrinsic values or any of the other "defining characteristics of humans", and that
such illness would likely be more severe than the traditional psychopathologies. MASLOW,
supra note 10 at 193, 206. For our purposes, such defining characteristics would also in-
clude conscience and the instinct for truthfulness and justice.
22 Dolovich, supra note 18 at 1671-72, acknowledges that the pressures of law school
and practice can erode integrity:
Each (lawyer) will have experienced firsthand the power of an institution to influ-
ence one's sense of self ... . I mention the power of law school to structure moral
perspectives . . . as evidence that even as adults our identities are capable of great
shifts, and that the engine of these shifts is often to be found in the social structures
in which we operate. The danger, of course, is that perspectives may well be shifted
in ways that undermine rather than enhance ethical character or behavior.
Specific descriptions of these undermining processes in action may be found in Patrick J.
Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and
Unethical Profession, 52 VAND. L. REV. 871 (1999); Note, Making Docile Lawyers: An
Essay on the Pacification of Law Students, 111 HARV. L. REV. 2027 (1998); Robert P.
Schuwerk, The Law Professor as Fiduciary: What Duties Do We Owe to Our Students? 45
S. TEX. L. REV. 753, at 761-780 (2004); Krieger, supra note 19. The first article discusses
large firm practice; the others focus on processes within law schools.
23 There is little to assist professors in clearly conveying all of these interrelated con-
cepts to students and new lawyers. I have created one such resource written specifically for
law students; see supra note 19. This booklet addresses law students directly, summarizing
the connections between motivation, values, stress, integrity and professionalism and sug-
gesting ways to prevent the loss of integrity and health in their broadest sense. Readers
are also invited to consult the appendices here for assistance in developing a presentation
for law students or lawyers. These topics hopefully will attract ongoing attention and be-
come the basis of more thorough papers and treatises.
Spring 2005] Inseparabilityof Professionalism and Personal Satisfaction 433
Recent Research On Law Student Values And Well-Being

I promised at the outset to outline the results of research that I
have conducted on law students. The grim results of this research will
hopefully bring home the importance of teaching students about the
role of intrinsic values in the quest for professionalism and personal
satisfaction.
Professor Ken Sheldon 24 and I studied two very diverse law
schools from orientation to the end of the first year; we also followed
one of the classes through their entire three years of law study. 25 The
principal results were:
In both schools, incoming students were happier, more well-ad-
justed, and more idealistic/intrinsically oriented than a comparison un-
dergraduate sample. This refutes the idea that problems in law
schools and the profession may result from self-selection by people
26
with skewed values or who are already unhappy.
Well-being and life satisfaction fell very significantly during the
first year. More fundamentally, the generally intrinsic values and
motivations of the students shifted significantly towards more extrin-
sic orientations. These shifts have distinct negative implications for the
students' future well-being. In the sample followed for the final two
years of law school, these measures did not rebound. Instead, stu-
dents experienced a further and troubling diminution of all of their
valuing processes (both intrinsic and extrinsic) beginning in the sec-
ond year, suggesting a sense of disinterest, disengagement, and loss of
enthusiasm. 27 This loss of valuing is a serious occurrence and a likely
cause of the continued loss of well-being measured among these stu-
dents.2 8 It may well mark the beginning of the destructive "values-
29
neutral" approach of many lawyers.
24 Department of Psychology, University of Missouri-Columbia.

25 The results are described in detail in Sheldon & Krieger, supra note 16. A fourth
year of currently unpublished data demonstrate additional significant declines in satisfac-
tion of students' basic human needs for self-esteem, relatedness, autonomy/authenticity,
and even competence.
26 For a further defense of the health of incoming law students and the likely negative
role of legal education, see Krieger, Institutional Denial, supra note 4.
27 The process of law student anomie and disengagement has been observed and de-
scribed before. Docile Lawyers, supra note 22. Barbara A. Glesner, Fear and Loathing in
the Law Schools, 23 CONN. L. REV. 627 (1991); R. GRANFIELD, MAKING ELITE LAWYERS
(1992); M. Gulati ET AL., The Happy Charade: An Empirical Examination of the Third
Year of Law School, 51 J. LEGAL EDUC. 383 (2001). However, this phenomenon has not
previously been documented through empirical study of personal valuing processes.
28 See supra nn. 21, 22 and accompanying text.
29 "It is a delusion of young, inexperienced lawyers to think that they can separate their
personal from their professional lives and their personal from their professional morality.
The current jargon refers to this dichotomy as 'role-defined' ethics. It is true intellectual
rubbish." Daniel R. Coquillette, Professionalism: The Deep Theory, 72 N. C. L. REV. 1271,
The findings that students became depressed and unhappy in the

first year and remained so throughout law school are consistent with
previous studies. 30 Our further investigation of values and motivation
was the first such study of which I am aware. All of the data provides
empirical support for the concern that our legal training has precisely
the opposite impact on students from that suggested by our rhetoric -
it appears to undermine the values and motivation that promote pro-
fessionalism 31 as it markedly diminishes life satisfaction. All indica-
tions are that when students graduate and enter the profession they
are significantly different people from those who arrived to begin law
school: They are more depressed, less service-oriented, and more in-
clined toward undesirable, superficial goals and values.
1272 (1994). I cite this article and discuss the profound fallacies involved in practicing law
without ideals or values in Krieger, Not Telling, supra note 9 at 9-11; see also John Mixon
& Robert P. Schuwerk, The Personal Dimension of Professional Responsibility, 58 LAw
AND CONTEMPORARY PROBLEMS 87 (1995). This article discusses the demoralizing effect
of common teaching techniques in law schools:
These traditional techniques desensitize students to the critical role of interpersonal
skills. .. in all aspects of an ethical law practice. They also set students' moral com-
passes adrift on a sea of relativism, in which all positions are viewed as "defensible"
or "arguable" and none as "right" or "just", and they train students who recognize
and regret these developments in themselves to put those feelings aside as nothing
more than counter-productive relics from their pre-law lives.
Id. at 102; MARY ANN GLENDON, A NATION UNDER LAWYERS 40-50, 78 et. seq. (1994)
(discussing the general shift among attorneys, in recent years, from independent moral
judgment to unmitigated client loyalty and the distress that may result from conflicts be-
tween the attorney's personal morality and that of the client).
30 See G. Andrew Benjamin., The Role of Legal Education in ProducingPsychological
Distress Among Law Students and Lawyers, AM. B. FOUND. REs. J. 225 (1986) (confirming
and extending a previous study put forth in Stephen Shanfield & G. Andrew H. Benjamin,
Psychiatric Distress in Law Students, 35 J. LEGAL EDUC. 65 (1985)).
31 This movement toward extrinsic values and motivation is also contrary to the natu-
ral, beneficial direction of maturation and actualization. Kennon M. Sheldon, J. Arndt &
L. Houser-Marko, In Search of the Organismic Valuing Process: The Human Tendency to
Move Towards Beneficial Goal Choices, 71 J. PERSONALITY 835 (2003). Decades ago the
Dean of Harvard Law School observed:
For some years now I have been concerned about the effect of our legal education on
the idealism of our students. I have great faith in our students. They are surely as
good, as earnest, as sincere, as their predecessors who have come through the years.
They bring to this school a large measure of idealism. Do they leave with less? And if
they do, is that something we can view with indifference? If they do, what is the
cause? What do we do to them that makes them turn another way?
Ervin N. Griswold, Intellect and Spirit, 81 HARV. L. REV. 292, 300 (1967). Preliminary
analysis of our data did indicate a potential brighter side to the three-year study. Students
who had an intensive clinical experience along with the training described in this article
had significantly more intrinsic, service-oriented motivation for their first career choice
than the remainder of their class. They are therefore predicted to experience significantly
greater career and life satisfaction over time. These apparent effects require further analy-
sis and confirmation.
Teaching this Material

These insights are only useful if they are effectively communi-
cated to law students and lawyers. My approach to teaching this ma-
terial is explicit. 32 I first have students (or lawyers) reflect and write
out their "eulogies" as a practical exercise described in more detail
below. I then discuss through a combination of lecture and question/
discussion as appropriate to the group and the time available: (a) the
qualities of an ideal professional; (b) the scientific research on attor-
neys and law students that demonstrates the existence of important
problems (very high emotional distress levels in the profession; loss of
intrinsic values and motivation combined with increasing depression
and distress after students begin law school); and (c) research on gen-
eral populations to provide an aspirational understanding of the goals,
motives and needs typical of healthy, happy people.
I then encourage integration of the materials by having students
consider their written eulogies, identify the character traits embodied
in them, and compare those traits to the qualities of the ideal profes-
sional previously discussed. I also have students compare all of these
traits and qualities with the listing of intrinsic and extrinsic values and
the human needs previously explained. (The handout I provide that
lists all of the adaptive values, needs, and motivations is also provided
in the appendix.) If time allows I then have students break into pairs
or small groups and discuss with each other their conclusions. I then
ask everyone to come together and share insights which I list for the
class.
The "Eulogies" Exercise To Discern Intrinsic Values

Experience has shown that this exercise makes the discussion of
values and professionalism relevant for students and lawyers. It helps
participants identify their deepest values and goals, although I do not
divulge this purpose before doing the exercise in order to avoid bias-
ing the results. I usually present this exercise early in the meeting for
the same reason. I ask participants to imagine a future time when
they are retired and away from their current environment, perhaps
traveling in a pleasant place. I have them imagine visiting a small,
33
quiet gathering which then turns out to be a preview of their funeral.
32 As I present this material it comfortably informs from two to three hours of class
time; one hour is also possible with focus and time discipline. Another approach to teach-
ing similar material is offered in Laurie A. Morin, Reflections on Teaching Law as Right
Livelihood: Cultivating Ethics, Professionalism, and Commitment to Public Service from
the Inside Out, 35 TULSA L.J. 227 (2000).
33 This exercise is adapted from STEVEN R. COVEY, THE SEVEN HABITS OF HIGHLY
EFFECTIVE PEOPLE 96-97 (1989). Some teachers use variations that eliminate the specter
of a funeral (i.e. retiring, relaxing, and looking back on life to discern those things that
I then ask them to briefly write down the eulogies about themselves
that, if they could attend their own funeral, they would like to hear
from important others - their life partner or best friend, a respected
lawyer or judge that has known them in practice, a member of another
community they valued during their life (church, neighborhood, ser-
vice club, etc.), and if time allows, their child or another young person
they had known. They may also be asked to write down the things
that they would most like to be able to say about themselves - the
things about which they feel best when looking back on their life.
The results of this exercise are illuminating, because they show
students and lawyers the kinds of things that matter most deeply to
them. Participants are often surprised by the results. Almost invaria-
bly the qualities and values expressed in these eulogies are the most
traditional human values and virtues: patience, decency, fairness,
humility, courage, caring, integrity, willingness to work hard for
worthwhile goals, helpfulness to others (family, friends, clients or
community), and so forth. No one thus far in my experience has
drafted a eulogy focused on a luxurious home, high grade point aver-
age, law review membership, or extraordinary income. In fact, the
room usually erupts in laughter when such eulogies are proposed after
the writing exercise. And so participants discover, just as theory and
research predict, that their deep personal sense of success 34 expresses
intrinsic rather than extrinsic goals and values, and that a life with
integrity, meaning, caring, and helping indeed fulfills their basic needs.
I also note that intrinsic goals and values are noncompetitive by
nature. The virtuous qualities that typically surface in the eulogies are
all unlimited. In law school parlance, everyone can be in the Top Five
mattered the most), but I find the eulogies make the point very strongly without causing
particular distress.
34 As we look at the qualities shared by the intrinsic values and motivations and the
basic needs, some themes emerge that invalidate the modern picture of "success". First,
there is a distinct focus on people rather than things. The two strongest needs are self
esteem and relatedness to others, and two of the remaining three needs, autonomy, au-
thenticity, are subjective and personal as well. Both intrinsic motivations (enjoyable pro-
cess and values-directedness) are person-oriented, as are the intrinsic values (personal
acceptance/growth, intimate relationships, and building community). The second theme
that is apparent in those healthy needs and values is an emphasis on growth, integration,or
movement toward higher levels of organization either within the person, between persons
or within communities. The third common factor is an orientation toward satisfying
processes ratherthan specific outcomes. This is essentially the definition of the most funda-
mental intrinsic motivation - choosing action because the "doing" itself is enjoyable and
satisfying. This process orientation is also inherent in the intrinsic values - personal
growth, close relationships, helping others/building community. By contrast, the extrinsic
values and motivations - for money, power, influence, fame, status, or comparative/com-
petitive advantage - share a much more external and outcome-dependent orientation. This
orientation unfortunately typifies our social view of success.
Spring 2005] Inseparabilityof Professionalismand Personal Satisfaction 437
Percent in kindness, patience, etc., and this tempers the felt need to be
"successful" in the competitive sense 35 that is so common among law
students and lawyers. Participants can see that their core desires are
attainable regardless of how well they compete in law school and later
practice, so long as they maintain focus on the deeper purposes they
have just identified. As a final point, the fact that these kinds of val-
ues are consistently identified in the eulogies exercise confirms that
they are truly intrinsic - they do appear to constitute a part of the
mature human nature to which people broadly aspire. 36 Thus, when
we favor them we are most authentic and we tend to experience well-
being and meaning in life; when we ignore them we act outside our
nature and begin to suffer.
I recommend that students regularly refer to these eulogies in or-
der to maintain a healthy perspective on the natural drive for competi-
tive excellence and the rewards that may accompany it. It is also
important to be realistic here, so that people do not feel that they
need to discount or ignore their natural desire for recognition, com-
forts or material affluence. On the practical level, every life in the
active world does express a blending of intrinsic and extrinsic goals,
values, and motivations. Extrinsic goals and desires for good pay,
high grades, or prestige are fully compatible with a healthy, happy life,
so long as they do not predominate over intrinsic values as one's pri-
mary purpose for undertaking action.
The principal lessons involve learning the relative benefits of in-
trinsic over extrinsic pursuits and learning the power of choice. Each
decision about attitude and behavior tilts the balance toward or away
from predicted happiness and ideal professional actions. Based on the
content of human nature, the message for any professional in training
is the same as for any other person: If you focus your life on gaining
wealth, popularity, prestige, or influence you are making a fundamen-
tal mistake, assuming that you want to feel satisfied with your self and
your work. If you focus your life on growth of self, relationships, and
community, your life will feel meaningful and satisfying. You will
avoid the frustration, confusion, isolation, depression and addictions
35 I employ a second practical exercise to cultivate a realistic sense of humility in stu-

dents. This exercise helps them discover the few meaningful things impacting the outcome
of their cases that they can control and the many factors that are beyond their control.
This exercise has the beneficial effect of shifting students' focus from the outcomes of their
work to the process of their preparation, and thereby also substantially mitigates the stress
of competitive activity such as the adversarial process. See Appendix I infra.
36 Recent research is beginning to confirm the humanistic observation that the natural
growth process includes progression from "lower" external, contingent needs to internal,
self-directed "higher" needs. See supra note 11; see also K. M. Sheldon, ET AL. supra note
31.
common to many in our society and our profession. 37

When students understand these realities - that professionalism
and life/career satisfaction are essentially inseparable within the na-
ture of human beings, and that quality of life and professional reputa-
tion both manifest from the choice of optimal goals, values, and
motives - the discussion of professionalism acquires immediate per-
sonal relevance. However, these lessons require repetition and reflec-
tion to effect the core changes in attitudes and priorities that may be
needed. This is particularly true given the largely extrinsic orientation
of law schools and practice settings in which many students are im-
mersed. Ongoing reference to and reinforcement of these concepts in
class will help, as will reflective writing. In-house or externship clinics
are perhaps the ideal educational setting for students to confirm these
lessons in their own experience, by observing themselves and others
(including lawyers, judges, teachers and other students) to discern the
connections between values, motivation, professional reputation, and
life/career satisfaction. Reflective writing or discussion assignments
then assist students in dedicating appropriate attention in order to re-
alize these lessons to the point of personal conviction.
CONCLUSION
There is a bottom-line message for law students and lawyers in all

of this: If you have the wrong values and motives, your life will not
feel good regardless of how good it looks. And there is a bottom-line
message for law teachers: Do everything possible so that the law
school experience preserves and strengthens, rather than dampens,
the enthusiasm, idealism, and integrity (in its broadest sense) of your
students. Because intrinsic pursuits and basic need satisfaction are
foundational to both professionalism and personal satisfaction, we
need to model and encourage them persistently if we genuinely intend
to produce happy, thriving, professional lawyers. When we clearly ex-
plain to students that, within their own nature the capacity for great
fulfillment coexists with the choice to embody the traits and values
traditionally associated with professionalism, they are more likely to
follow that fortunate path. It is my hope that the work presented here
will encourage and assist you in developing your own teaching ap-
38
proach towards these ends.
37 As a side benefit, such people are likely to be well-satisfied with comforts because
their positive and constructive choices will create positive, constructive outcomes, good
will, and the practical benefits that follow.
38 There are both a web site and a list serve discussion devoted to this purpose. Florida
State University College of Law, Humanizing Dimension for Law School Page, at http://
www.law.fsu.edu/academic-programs/humanizing-lawschool.php.
APPENDIX I
Control Exercise
Most students using this exercise experience significant, ongoing stress
relief and enhanced well-being, based on the powerful reality check it
provides. I constantly receive references to this exercise; it can help
greatly in learning to enjoy law practice, if consistently considered dur-
ing a clinic (and after graduation as well). If your program involves
student journals, be advised that I receive more journal entries on this
one balancing principle than any other. I also often inject this principle
into my journal assignments, since students and lawyers so typically
'stress' over things they can't control - a poor practice that needs to be
perceived as a choice!
1. Have students consider all of the primary activities involved in liti-
gating, or otherwise processing, a case or issue relevant to your pro-
gram/course. Then ask them to decide which aspects of each activity
they can or cannot control. The initial assignment can be given as
homework or in class. Follow up in class by having students discuss
their thoughts in pairs or small groups for a few minutes, and then
synthesize by having them give thoughts for the entire class which you
record on the chalkboard. People often overlook very basic elements
impacting their work; you may have to prompt them with such crucial
considerations as the underlying events themselves ( the facts); the
controlling statute, cases, rules of procedure, etc. (the law) which will
determine the outcome; and the personalities/biases/preferences of
each person they work for, with, and against.
2. Once students have written and discussed in pairs or small groups, I
establish this simple outline on the board for us to fill in with full class
discussion:
Matters I Can't
Stage of Proceeding Matters I Can Control Control
Through class discussion we ultimately develop something like

the following (a criminal case example):
Stage of Case Can Control Can't Control

Crime/Events (facts of nothing Everything
case)
Bond Hearing -my preparation & rea- -facts, law, procedural
sonable presentation; rules;
-my motives; -personality and behav-
-my behavior toward ior of everyone else
client, judge, adversary, (client, adversary, and
etc. judge);
Client Interview my preparation, facts; truthfulness of
motives, respectful client; client apprecia-
behavior toward client tive or abusive, cooper-
ative or not
Negotiations my prep, motives, opposing counsel's atti-
respectful, professional tudes, motives, behav-
behavior ior toward me
Motion Hearings my motives, prepara- motives/behavior of
tion, presentation, pro- opposing counsel, wit-
fessional behavior nesses, judge; outcome
of hearing
Trial same as above all of
the above, plus biases/
motives of jury (if
app.); outcome of trial
Many more stages of consideration are possible of course, and

this can be amended to conform to your type of course work. Also, I
emphasize that obviously this does not mean the lawyer cannot influ-
ence the litigation or have an impact on the outcome through her pro-
fessional work. But it is a sobering experience, and one rarely
discussed in law school, to realize that (short of unethical behavior)
one has little, if any, control over many crucial things, including both
the facts and the law that apply to one's case. It becomes very clear
that there are great limits on one's influence, and that control is usu-
ally beyond one's ability except with regard to one's own actions, mo-
tives, etc. Given the typical emphasis on producing wanted outcomes,
this realization greatly moderates anxiety and stress, and encourages a
positive shift toward intrinsic motivation, self-acceptance, and in-
creased work satisfaction.
Spring 2005] Inseparability of Professionalismand PersonalSatisfaction 441
APPENDIX II
This appendix contains key graphics which summarize my teach-

ing approach to law students and lawyers. Below I briefly describe the
content and relevance of each item. Teachers are welcome to
reproduce and use (or adapt) this material as you find helpful. Please
advise me if you do so, for my information only.
The first graphic is a definition of professionalism which has
served well for many years with such groups. It may be used at the
beginning of a class or presentation, for background, and then later to
have students/participants integrate these qualities with the informa-
tion on needs and values presented in the subsequent graphics. (For
example, to what extent are those human needs, or the intrinsic val-
ues/motivations, embodied by these professional qualities? To what
extent are the values identified in your eulogy expressed by profes-
sional behavior?)
The second graphic shows the very high levels of emotional dis-
tress among practicing lawyers. This was a very large study by a team
of clinical psychologists. Note that the expected level of clinical dis-
tress for each measure is 2.3% of the population, whereas up to 36%
of the lawyers are indicating that level of dysfunction. We cannot ex-
pect the professional qualities in the previous graphic when people
feel this way; attention is necessary. Side notes: (1) the Brief Symp-
tom Inventory used here is a preliminary screening inventory; these
results do not represent final diagnoses by practicing psychologists. (2)
Interpersonal Sensitivity is the need to compare favorably with other
people, and is an indication of insecurity or low self-esteem. The very
high level of distress on this scale may relate directly to the emphasis
on appearances and comparative worth (relative salaries, class stand-
ing, grade point average, etc.) in law schools and the profession.
The third graphic shows the very high levels of clinical depression
(Beck Depression Inventory) reported by law students throughout
their three years of law school and beyond. They entered law school
with statistically normal levels of depression but never recover, as a
group, to that level. It is important to remind listeners that these are
group data, and do not mean that each of them is experiencing these
phenomena. The data show trends only (i.e. don't get depressed over
this information, but pay attention! The following information will
provide a guide to avoid these problems.)
The fourth graphic shows the results in our (Sheldon-Krieger)
study at the end of the first year of law school. These students entered
law school with stronger well-being, intrinsic values and motivation
than a comparison undergraduate group, but showed very marked,
negative changes in well-being, life satisfaction, values and motivation.
These changes are consistent with, and may be seen to predict, the
problems of distress, dissatisfaction, and lack of professional values
observed in lawyers.
The fifth graphic summarizes the human needs, values, and moti-
vation styles, and can be given to students or lawyers as a checklist for
guidance in building and maintaining a balanced, satisfying life experi-
ence. The extrinsic (maladaptive) values which are common to law
school and law firm cultures, and which produce distress and dissatis-
faction, are listed at the bottom of the page for contrast. If the 'eulo-
gies' exercise is used in your presentation (see text), it complements
this information on healthy values, needs and motivation well: the
eulogies almost invariably reflect these needs and values. (Graphics
follow.)
THE PROFESSIONAL
* BROAD VISION, GOOD JUDGEMENT (WISE)
* COMMITTED TO VALUES
* GREAT INTEGRITY (INDIVIDUAL)
* SELF SECURE, UNSELFISH
* DEEP REGARD FOR HUMANITY
* RESPECTFUL (SELF AND OTHERS)
* COMPASSIONATE
* SERVICE-ORIENTED
* TECHNICAL COMPETENCY
Spring 2005] Inseparabilityof Professionalism and PersonalSatisfaction
... LAWYER DISTRESS

Source: JOURNAL OF LAW AND HEALTH, Volume 10:1 (1996)
Subscale Lawyers Above 98th Percentile
Obsessive-Compulsive 19.0%
Interpersonal Sensitive 35.3%
Depression 23.4%
Anxiety 30.4%
Phobic Anxiety 10.3%
Paranoid Ideation 12.5%
Social Alienation and Isolation 26.6%
Current Alcohol Abuse 20.0%

Projected Alcohol Abuse 68.0%
Beck, Sales, and Benjamin
DEPRESSION AMONG LAW STUDENTS

(Benjamin et al., 1986 Am. Bar Found. Research, 225)
45%
40%
...
...
..
....
...
-... ....
..
.. .-.. ...
...
. ....................
..
35%
30%
25%
20%
/ 17.90% Students)
15%
10% ........ .......
............................................................
...........................................
.......................
........
.................
.............................................
-.......................
5%
0%
Pre-Law 1st Year 3rd Year 2 Yrs 0-78 Years
PostGrad Practice
-Law Students -* General Population Maximum - 9% I

TIME2: CHANGES IN AW STUDENT WELL-BEING, VALUES, AND MOTI-

VATION FROM AUGUST 2000 TO MARCH 2001 (SHELDON AND
KRIEGER)
Variables August March p value (change)
Well-Being
Aggregate Well-being<<>> 4.85 3.88 <.001*
Positive Affect 3.79 3.29 .001*
Negative Affect 2.47 2.66 .003*
Life-Satisfaction 3.53 3.25 .001*
Symptoms 1.95 2.21 .001*
Beck Depression 6.12 7.94 .001*
Values
Relative Intrinsic Value<<>> 5.14 4.75 .004*
Orientation
Financial Success (E) 3.29 3.30 .820
Appealing Appearance (E) 2.31 2.47 .001*
Social Popularity (E) 2.31 2.30 .870
Community Contribution (I) 3.87 3.74 .007*
Personal Growth (I) 4.49 4.44 .180
Emotional Intimacy (I) 4.69 4.64 .110(*)
Motivation for Goals
Relative Self-Determination <> 4.27 3.65 .001*
External Motivation (E) 1.57 1.76 .001*
Introjected Motivation (E) 2.38 2.34 .640
Identified Motivation (I) 4.29 4.17 .120(*)
Intrinsic Motivation (I) 3.93 3.57 .001*
* denotes statistically significant, or (*) marginally significant results.

Significance tests compare the differences between the undergraduate
sample and the law sample, and the nursing sample and the law sample.
Supporting Well Being and Professionalism:

Adaptive Needs, Values, and Motivation
1) HUMAN NEEDS (experiences produce sense of well-being,
thriving):
- Self-Esteem (sense of self-respect, having positive qualities, satis-
faction with one's self
- Relatedness (feel well-connected to others generally, closeness, inti-
macy with important others
- Authenticity (choices based on true values/interests, express one's
true self)
- Autonomy (ability to make choices one prefers, to do things as one
wants)
- Competence (feel very capable, mastering hard challenges, success-
ful at difficult tasks)
- Security (feel safe from threat/uncertainty, have comfortable rou-
tines/habits, life predictable)
2) ADAPTIVE MOTIVATION, VALUES, AND GOALS (produce sense

of well being, meaning, satisfaction)
- Internal Motivation - (taking action which is satisfying or enjoya-
ble in itself, or which supports an important personal value/goal)
- Intrinsic Values/Goals - (toward self-acceptance and develop-
ment, helping others, intimacy, community)
CONTRAST:
- Extrinsic goals, values and motivation
(produce tension, irritation, dissatisfaction)
- money/luxury
- popularity/influence
- grades and other competitive/external outcomes
Drafting a Settlement and General Release Agreement: Single

Plaintiff Employment Dispute Checklist
Practical Law Checklist 9-522-0993
© 2019 Thomson Reuters. No claim to original U.S. Government Works.

Drafting a Settlement and General Release Agreement:..., Practical Law Checklist...
Drafting a Settlement and General Release Agreement:

Single Plaintiff Employment Dispute Checklist
by Practical Law Labor & Employment
Maintained • USA (National/Federal)
A Checklist outlining the key provisions for employers to consider when drafting and negotiating a settlement agreement in a
single plaintiff employment dispute, including a release of legal claims against the employer. This Checklist is based on
federal law, but will be useful to employers in all jurisdictions. For information on state law requirements, see the State Q&A
Tools under Related Content. For more detailed negotiation and drafting strategies, see Employer-Side Strategies for
Negotiating a Severance or Settlement Agreement Checklist.
Consider Drafting Responsibilities and Preliminary Definitions

• Employer’s counsel generally should prepare the first draft of the settlement and general release agreement.
• Define the parties to the agreement. Unless there is clearly no legitimate business interest to include corporate affiliates,
there is little practical downside to being over-inclusive. Employers should consider various factors, such as:
• the nature of the employer’s business;
• the employer’s ownership; and
• its ownership structure.
• Consider including whereas clauses in the introduction of the agreement to describe the background or purpose of the
agreement.
Prioritize Key Employer Terms When Drafting Agreement

Withdrawal of Court or Agency Proceedings
• Specify in the agreement that the employee agrees to dismiss or withdraw with prejudice all actions pending against the
employer, including any:
• federal or state court lawsuits;

• Equal Employment Opportunity Commission (EEOC) charges or state-equivalent fair employment practices
agency (FEPA);
• unfair labor practice (ULP) charges with the National Labor Relations Board (NLRB); or
• complaints with the Department of Labor (DOL) or state-equivalent agency.

• Consider whether the employee must withdraw the underlying claims or lawsuit by a certain date. If so, include language
specifying the time frame.
• Identify the acceptable form for the employee to dismiss the underlying actions. If applicable, consider attaching a
Stipulation of Dismissal with Prejudice to the agreement (see Standard Document, Stipulation of Dismissal).
• Condition the employer’s obligation to make any payment or provide other benefits on, as applicable, the employee’s:
• delivery of a signed stipulation of dismissal to the employer’s counsel;
• filing of a stipulation of dismissal with the court by a certain date;
• withdrawal of any pending agency proceeding, and, if possible, further conditioned on the agency’s consent to the
withdrawal (see Legal Update, NLRB Refuses to Approve Withdrawal of ULP Charge Parties Agreed to in Wage
and Hour Settlement); and
• representation that the employee is not party to any other administrative actions or proceedings against the employer.
For a sample withdrawal provision, see Standard Document, Settlement and Release of Claims Agreement: Single Plaintiff
Employment Dispute: Withdrawal and Stipulation of Dismissal.
Non-Admission Clause
• To minimize risk in the event of future litigation between the parties, include a non-admission clause that:
• states that the agreement is not to be considered an employer admission of any wrongdoing or noncompliance with
the law; and
• specifically disclaims any employer liability.
For more information, see Standard Document, Settlement and Release of Claims Agreement: Single Plaintiff Employment
Dispute: No Admission of Liability.
Settlement Payment and Other Consideration

• Include a section defining the consideration provided to the employee in exchange for entering into the agreement and
releasing legal claims against the employer. Specifically, the payment section should describe:
• the amount of the settlement payment;
• if applicable, the structure of the payments and how each payment is categorized;
• when the payment will be made to the employee, for example, within a certain number of days after the court enters a
dismissal order; and
• any other nonmonetary items that are provided as additional consideration, such as the waiver or modification of an
otherwise enforceable non-compete provision or granting of a mutual release (see Standard Document, Waiver
and Release of Non-Compete Obligations).
• Do not rely on payments to which the employee is otherwise entitled, such as earned commissions or bonus payments,
as consideration supporting the release.
• Consider the tax implications of the payment structure. Employers should also consider including an indemnification
provision in the event they are assessed taxes on the settlement payment, especially if any portion of the payment is
characterized as something other than wages, such as:
• attorneys’ fees;
• emotional distress damages; or
• damages for physical injury or sickness.
Dispute: Payment and Practice Note, Settlement Payments for Employment-Based Claims: Taxation and Reporting.
General Release of Claims

• Determine the scope of the legal claims to be released by the employee. Employers typically draft the release of claims
section as broadly as possible.
• Specifically name each of the employment claims the employee is waiving. Include all federal, state, and local claims
that can be released. For more information, see Employment Claims in Release Agreements: State Q&A Tool:
Question 1.
• Draft the release so that it runs in favor of the employer’s successors and assigns, and include language authorizing the
employer to assign the agreement (see Standard Document: Settlement and Release of Claims Agreement: Single
Plaintiff Employment Dispute: Drafting Note: Successors and Assigns).
• Carve out from the release any claims that cannot be released under federal, state, or local law, such as the right to
receive unemployment or workers’ compensation benefits, which cannot be released in many states. For more
information, see Employment Claims in Release Agreements: State Q&A Tool: Question 2.
• If the release includes claims under the Age Discrimination in Employment Act (ADEA) or if the employee is over 40,
confirm that the agreement meets the requirements of the Older Workers Benefit Protection Act (OWBPA). For more
information, see Practice Note, Age Discrimination: Release of Claims Must Be Knowing and Voluntary.
• Public companies or other employers covered by the Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd-Frank Act) should not require employees to waive their rights to monetary recovery should they file a charge or
complaint with the SEC or other federal agencies (see Legal Update, Company Settles with SEC for Violating
Whistleblower Protection Rule in Severance Agreements).
For more information on release language, see Standard Document, Settlement and Release of Claims Agreement: Single
Plaintiff Employment Dispute: Release of Claims.
Include Factual Representations and Employee Acknowledgments for Non-Waivable

Claims

• Consider including employee acknowledgements of certain facts regarding any claims that cannot be legally waived, for
example, that the employee:
• has been paid all wages, bonuses, and commissions;
• has been provided or has not been denied any leave under the Family and Medical Leave Act (FMLA);
• has no known injuries that may be compensable under state workers’ compensation law.
Dispute: Employee Acknowledgments.
Be Cautious with Confidentiality Provisions

• Spell out what the employee is prohibited from disclosing or discussing. This may include:
• the settlement negotiations;
• the terms and conditions of the settlement; and
• the existence of the settlement agreement.

• Address exceptions for certain disclosures. Common exceptions include:
• the employee’s spouse;
• the employee’s attorney;
• the employee’s tax advisor;
• employee communications with securities regulators (see FINRA Regulatory Notice 14-40); and
• disclosure pursuant to subpoena or as required by law.
• Ensure the agreement is clear that the confidentiality provision is not intended to infringe on the employee’s Section 7
rights under the National Labor Relations Act (NLRA) (see Practice Note, Employer-Side Strategies for Negotiating a
Severance or Settlement Agreement: Single Plaintiff Employment Dispute: Impact of NLRB Rulings on Standard
Provisions).
• Specify what the parties can say if they are asked about the dispute. Settlement agreements often specify that the
parties respond to inquiries by simply stating that the matter has been resolved.
• If settling with a current employee, include the required whistleblower protections under the Defend Trade Secrets Act
(DTSA) (see Standard Clause, Notice of Immunity Under the Defend Trade Secrets Act (DTSA) Provision).
• If settling any sexual harassment claim, determine whether:
• the benefit of including a confidentiality provision that prevents the employee from disclosing the settlement terms is
worth the loss of a tax deduction for the settlement amount and attorneys’ fees. The Tax Cuts and Jobs Act
prevents employers from taking a tax deduction for settlement payments and attorneys’ fees related to claims of
sexual harassment or abuse paid or incurred on or after December 22, 2017 if the agreement includes a
confidentiality or nondisclosure provision (26 U.S.C. § 162(q)); and
• any #MeToo-inspired laws prohibit or restrict the employer’s ability to include a confidentiality provision (see Article,
Expert Q&A on #Metoo-Inspired Employment Laws: Confidentiality Provisions in Settlement Agreements).
Dispute: Confidentiality and Practice Note, Employer-Side Strategies for Negotiating a Severance or Settlement Agreement:
Single Plaintiff Employment Dispute: Special Considerations for Sexual Harassment Settlements with Confidentiality
Provisions.
Clearly Define Non-Disparagement

• Consider including a non-disparagement clause to minimize the risk that an employee will make disparaging comments
about:
• the employer;
• the employer’s employees and officers; and
• third parties associated with the employer, for example, the employer’s existing and prospective customers or
suppliers.
• Expressly state that the non-disparagement provision is not intended to infringe on the employee’s Section 7 rights
under the NLRA (see Practice Note, Employer-Side Strategies for Negotiating a Severance or Settlement Agreement:
Single Plaintiff Employment Dispute: Impact of NLRB Rulings on Standard Provisions).
• Clearly define disparagement to increase the likelihood of enforceability.
Dispute: Non-Disparagement.
No Rehire Provisions
• Minimize the risk of a retaliation claim in the event a former employee reapplies for employment by including a no rehire
provision which specifies that an employee:
• waives all rights to reinstatement with the employer; and
• agrees that the employee will not seek or accept future employment with the employer or its corporate affiliates.
Dispute: Waiver of Future Employment and Practice Note, Employer-Side Strategies for Negotiating a Severance or
Settlement Agreement: Single Plaintiff Employment Dispute: Waiver of Future Employment Provision.
Merger Clause
• Clarify that the separation and release of claims agreement contains the entire agreement relating to the dispute and
supersedes all prior communications and writings on the subject.
• If applicable, specifically identify any agreements between the employer and employee that remain in full force and
effect, for example, confidentiality and non-compete agreements.

Dispute: Entire Agreement.
Consider Additional Provisions for the Employer’s Benefit

Decide whether additional provisions are appropriate. Depending on the facts and circumstances, the employer may consider:
• An acknowledgement clause in which the employee agrees that the release of claims is knowing and voluntary (see
Standard Document, Settlement and Release of Claims Agreement: Single Plaintiff Employment Dispute: Knowing and
Voluntary Acknowledgment).
• A return of documents clause in which the employee agrees to return copies of documents produced during discovery
(see Standard Document, Settlement and Release of Claims Agreement: Single Plaintiff Employment Dispute: Return
of Documents).
• A successors and assigns clause in which the employee agrees to not to assign the agreement or any of his claims
against the employer, but also agrees that the agreement inures to the benefit of the employer’s successors and
assigns (see Standard Document, Settlement and Release of Claims Agreement: Single Plaintiff Employment Dispute:
Successors and Assigns).
• A governing law clause that specifies which state’s law governs the agreement, keeping in mind that state law may limit
the ability to apply the law of the state other than where the employee works (see, for example, Legal Update, California
to Prohibit Choice of Law and Venue Provisions in Employment Contracts). If the employer prefers to seek enforcement
in a particular jurisdiction, include an exclusive venue provision, if permitted (see Standard Document, Settlement and
Release of Claims Agreement: Single Plaintiff Employment Dispute: Governing Law, Jurisdiction, and Venue).
• An arbitration clause if the employer prefers this forum to a state or federal court, using caution if settling sexual
harassment claims in certain jurisdictions (see Standard Document, Settlement and Release of Claims Agreement:
Single Plaintiff Employment Dispute: Arbitration and Practice Note, Employment Arbitration Agreements (US):
Legislative Measures Restricting Mandatory Arbitration).
• An attorneys’ fees and costs clause to provide the employer the potential to recover its fees if it has to sue for
enforcement (see Standard Document, Settlement and Release of Claims Agreement: Single Plaintiff Employment
Dispute: Attorneys’ Fees and Costs).
• A severability clause to preserve the enforceability of the overall agreement if the release of a particular claim or other
provision is deemed overbroad or otherwise unenforceable (see Standard Document, Settlement and Release of
Claims Agreement: Single Plaintiff Employment Dispute: Severability).
• A Section 409A clause to help ensure that the payments and benefits under the agreement are provided consistent with
the requirements of Internal Revenue Code (IRC) Section 409A (see Standard Document, Settlement and Release of
Claims Agreement: Single Plaintiff Employment Dispute: Section 409A and Standard Clauses, Section 409A
Employment Agreement Provisions).
• Restrictive covenants in exchange for the settlement payment, such as a non-compete or non-solicitation provision
(see Practice Note, Employer-Side Strategies for Negotiating a Settlement or Severance Agreement: Single Plaintiff
Employment Dispute: Restrictive Covenants).
Be Prepared to Respond to Common Employee Demands

Depending on the circumstances, employees may negotiate for:
• Continuation of group health plan benefits under Consolidated Omnibus Budget Reconciliation Act (COBRA), or the
employer’s payment of the employee share of premiums to continue coverage (see Practice Note, COBRA Overview).

• Pro-rated bonus or incentive pay for the year in which the termination occurred.
• Accelerated vesting of pension plan benefits and stock options (see Practice Note, Terminating a Senior Executive:
Key Compensation and Benefits Issues).
• Waiver or modification of existing restrictive covenants, such as a non-compete or non-solicitation agreement (see
Standard Document, Waiver and Release of Non-Compete Obligations).
• Characterizing the settlement payment as something other than wages for tax purposes, such as attorneys’ fees or
emotional distress damages (see Practice Note, Employer-Side Strategies for Negotiating a Settlement or Severance
Agreement: Single Plaintiff Employment Dispute: Characterizing the Cash Payment).
• Mutuality of terms requested by the employer, such as:
• the general release, so that the employer also releases the employee from any claims;
• non-disclosure provisions;
• non-disparagement clauses, which the employer should only agree to on behalf of a defined group of individuals,
typically senior executives or the employee’s former manager; and
• the prevailing party’s right to recover attorneys’ fees, so the employee also has the opportunity to recover fees if the
employee has to sue for enforcement.
• (See Practice Note, Employer-Side Strategies for Negotiating a Settlement or Severance Agreement: Single Plaintiff
Employment Dispute: Mutuality of Terms.)
• The employer’s agreement not to contest unemployment insurance (UI) benefits. However, employers should not agree
to any terms that require them to:
• ignore requests for information from the state UI agency; or
• provide any information that is knowingly false.
• (29 U.S.C. § 3303(f) and Practice Note, Employer-Side Strategies for Negotiating a Settlement or Severance
Agreement: Single Plaintiff Employment Dispute: Agreement Not to Contest Unemployment Insurance Benefits.)
• A neutral reference, or specified terms about how the employer will respond to reference requests.
• Outplacement services.
• The right to retain certain company property, such as a laptop, mobile phone, or other PDA.
• The ability to remain on the employer’s payroll for a period of time following termination or to provide consulting services
for the employer.
For more about common employee requests and strategies for responding to them, see Practice Note, Employer-Side
Strategies for Negotiating a Severance or Settlement Agreement: Single Plaintiff Employment Dispute: Responding to
Common Employee Demands.

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Satisfaction: Perspectives on Values, Integrity and Happiness." Clinical Law Review,
vol. 11, no. 2, Spring 2005, pp. 425.
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THE INSEPARABILITY OF
PROFESSIONALISM AND PERSONAL
SATISFACTION: PERSPECTIVES ON
VALUES, INTEGRITY AND HAPPINESS
LAWRENCE S. KRIEGER*
This article suggests a more effective approach to professional-

ism trainingbased on a modern understandingof human nature. It
explains (1) the many empirically established connections between
life satisfaction and the values and motivations that would promote
professional behavior among lawyers, and (2) the role of character
integrity in maintainingphysical and emotional wellness. It then de-
scribes an approach to teaching this material in the classroom or
clinical setting, in order to foster both professionalism and career sat-
isfaction among law students.
There is a lot of talk about "professionalism" in law schools and
the legal profession today, with little evidence of positive impact. Stu-
dents continue to turn away from public service careers1 , and there is
no suggestion of a diminution of hyper-aggressive litigation tactics.
One crucial reason that our rhetoric fails is that it is contradicted by
the competitive, outcome-oriented institutional values one typically
finds dominating law schools and the highly visible and commercial-
ized segments of the profession. It is reasonable that law students
and young lawyers "tune out" the noble but dissonant messages about
professionalism, but the regrettable result is that many of them fail to
really comprehend the foundations of their future working life.
Professionalism training typically amounts to telling law students
and lawyers that they should act in certain ways, for generally noble
reasons including the high calling of our profession; and that they'd
better do so, for more coercive reasons including the potential for bar
discipline. Neither of these motives - guilt or fear - is likely to be
effective in producing the desired result. 2 Rarely, if ever, is one's ac-
tual life experience - including one's happiness and career satisfaction
* Clinical Professor of Law, Florida State University College of Law. This essay is
based on a presentation to the Annual Conference of the Section on Clinical Education of
the Association of American Law Schools, May, 2003.
1 In 2002 and 2003 respectively, 3.4% and 3.2% of new law graduates took public
interest positions. National Association for Law Placement, Salary Summary Reports, at
http://www.nalp.org/nalpresearch/newgrads.htm (last visited Feb. 15, 2005).
2 The discussion of intrinsic motivation later in this paper will clarify that actions based
on such imposed motivations are themselves unsatisfying, and thus are not likely to persist.
- raised as part of the professionalism discussion. This fact further

enables students to distance themselves from a discussion they per-
ceive as theoretical rather than personal.
I will argue (1) that satisfaction and professional behavior are in-
separable manifestations of a well-integrated and well-motivated per-
son; and (2) that depression and unprofessional behavior among law
students and lawyers typically proceed from a loss of integrity - a dis-
connection from intrinsic values and motivations, personal and cul-
tural beliefs, conscience, or other defining parts of their personality
and humanity. I then suggest ways to create more relevant and effec-
tive teaching about professionalism, by showing students that their life
experience will be enhanced on many levels if they culture their values
and integrity to model the wise, compassionate lawyer-statesperson 3 .
As we proceed I will refer to humanistic theory and empirical
science to provide an understanding of human nature that supports
these conclusions and suggestions. I will offer further support by sum-
marizing the results of empirical studies on law students that I have
been able to conduct in the past four years.
VALUES AND PERSONAL SATISFACTION AS A PERSPECTIVE FOR

TEACHING PROFESSIONALISM
I begin with a strong dose of the truth for my students. This is

something too rarely done at our schools, for reasons I have discussed
in detail elsewhere.4 I tell students the truth about the dismal results
of surveys on attorney mental health and career satisfaction, and I tell
them the truth about the egregiously low standard of behavior often
encountered among attorneys and judges in the real world they are
preparing to enter. In case they don't believe me, I recount stories
from my own litigation days, and then I pull out the big guns - jour-
nals of their student peers now in clinical litigation programs (and who
have given permission to share their observations), describing the ma-
nipulative, abusive, egotistical, and often plainly dishonest actions of
some members of our profession. Sharing these truths, and particu-
larly those regarding the unhappiness and ill health in the profession,
feels like a bold step because students are unlikely to encounter this
information in their other courses. Not surprisingly, students are
3 ANTHONY T. KRONMAN, THE LOST LAWYER (1993). Professor Pang's discussion of

the qualities of professionalism share much with the Kronman analysis, as do other defini-
tions of professionalism raised in this conference. We are all going beyond the bare-bones
idea of technical competence to embrace the values of law practice as a calling.
4 See Lawrence Krieger, InstitutionalDenial About the Dark Side of Law School, and
Fresh Empirical Guidancefor Constructively Breaking the Silence, 52 J. LEGAL EDUC. 112
(2002).
often taken aback when they see data summaries showing lawyers to
have the highest incidence of depression of any occupation in the
United States 5 , or to suffer other forms of emotional distress up to 15
times more frequently than the general population. 6 Nonetheless, the
truth is both necessary and helpful, and I encourage teachers to use
it.7 Experience has shown that students devote their full attention
once confronted with evidence that their own wellness and life satis-
faction may soon become, if they are not already, genuine personal
concerns.
I transition to the positive side of our topics by focusing on the
values and motivations common to most people. This is a particularly
helpful focus for related reasons. First, certain common motivators
promote professional behavior, while others undermine it. It is no co-
incidence that there is a perception among the public, scholars, and
bar leaders alike that values like money, power, and an uncompromis-
ing drive to win are displacing values like integrity, decency, and mu-
tuality among many lawyers. The second reason for this focus makes
the discussion most relevant to students and lawyers: Those values and
motivations that promote or attend professionalism have been empiri-
cally shown to correlate with well being and life satisfaction, while those
that undermine or discourage professionalism empirically correlate
with distress and dissatisfaction. These conclusions are supported by
both recent empirical studies and classical humanistic theory describ-
ing psychological health and maturity.
PROFESSIONALISM AND SATISFACTION AS DUAL EXPRESSIONS OF

PSYCHOLOGICAL MATURITY
I present professionalism to law students as a combination of de-

veloped legal skills and various personal virtues that we typically seek
in lawyers: broad vision/wisdom, integrity and honesty, compassion,
respect for others and for differences, unselfishness, the desire to
serve others and one's community, self-confidence, individualism, and
a real commitment to justice. Classic humanist Abraham Maslow, one
of the first psychologists to explore the positive side of human nature,
relates many of these professional qualities to his "hierarchy of human
needs". Because most law students are familiar with Maslow's theo-
ries from a basic psychology course, the parallels he draws between
5 William Eaton, J. Anthony, W. Mandel, & R. Garrison., Occupationsand the Preva-

lence of Major Depressive Disorder,32 J. Occ. MEDICINE 1079 (1990).
6 Connie J. A. Beck, Bruce Sales, & Andrew H. Benjamin, Lawyer Distress: Alcohol
Related Problems and Other Psychological Concerns Among a Sample of Practicing Law-
yers, 10 J. L. & HEALTH 1, 2 (1995).
7 See infra pp. 441-45 (summarizing the data utilized).
life satisfaction and behavior that we consider ideal for a professional

are well-received.
Maslow delineated "lower" and "higher" human needs, and ob-
served that motivation toward the different levels of need produces
markedly different levels of life satisfaction. The lower needs include
survival, security, belonging, competence, and respect from others.
People focused mainly on any of these needs experience "deficiency
motivation" - a strong drive to fulfill these basic needs that is accom-
panied by minimal life satisfaction. The experience is one of effort
punctuated by "moments of episodic relief". 8 By contrast, people pur-
suing primarily the higher needs for self-esteem and self-actualization
experience "growth motivation", in which they are seeking the highest
levels of personal development and self-expression. This quality of
motivation provides an entirely different life experience, marked by
persistent satisfaction and fulfillment. Maslow found such people to
be peaceful, unworried, accepting, and to experience a constant sense
of gratitude, satisfaction, "overflowing abundance" and fresh appreci-
ation for life. 9 Their lives are also enriched by exceptional levels of
fun, joy, and love. 10
Maslow described people experiencing the fulfillment of growth
motivation to be psychologically mature, and he observed in them the
following character traits that exemplify professionalism: self-govern-
ance and individuality; universal, holistic thinking; undistorted percep-
tion of reality; superior awareness of truth; service orientation and
desire for the good of others; and highly democratic personality.1 1 He
concludes that this level of maturity produces "the most ethical of
12
people".
By contrast, deficiency motivation will keep people more nar-
rowly focused on "looking good", winning, or gaining money or pres-
tige, because the lower needs for security, belonging and gaining
respect generally depend on influencing other people and obtaining
limited resources from the environment. At the same time, such peo-
ple feel pressure to satisfy these needs, in order to experience the epi-
sodic relief previously mentioned. People experiencing deficiency
motivation are therefore unlikely to manifest the same level of ethics
and morality as others who are more psychologically mature, and
8 ABRAHAM H. MASLOW, MOTIVATION AND PERSONALITY 57 (2d ed. 1970).

9 Id. at 153-63. Much of this material is also summarized in Lawrence S. Krieger,
What We're Not Telling Law Students (and Lawyers) That They Really Need to Know: Some
Thoughts in Action Toward Revitalizing the Profession from its Roots, 13 J. LAW and
HEALTH 1, 20-25, 35-36 (1998).
10 ABRAHAM H. MASLOW, TOWARD A PSYCHOLOGY OF BEING 209 (2d ed. 1968).
11 MASLOW, MOTIVATION, supra note 8 at 153-72.
12 Id. at 168.
Spring 2005] Inseparabilityof Professionalism and PersonalSatisfaction 429
more likely to venture into manipulative, abusive or deceptive behav-

ior in order to meet their needs.
Modern Research On Values, Motivation And Happiness

Recent psychological research supports Maslow's correlations be-
tween types of motivation and levels of happiness. Modern psychol-
ogy classifies both values and motivation as either intrinsic or
extrinsic. A person is intrinsically motivated when he chooses a self-
directed action which he genuinely enjoys or which furthers a funda-
mental life purpose, while extrinsically motivated choices are directed
towards external rewards (i.e. money, grades, honors), avoidance of
guilt or fear, or pleasing/impressing others.1 3 The intrinsic values
share the personal growth and interpersonal focus of the "higher" hu-
manistic needs - they direct one towards self-understanding, close re-
lationships with others, pro-social/helping outcomes, and community
improvement. On the other hand, the modern extrinsic values share
the environment-dependent focus of the "lower" needs in Maslow's
hierarchy.14 They embody a more contingent worth, external rewards
orientation - toward money, luxuries, influence and appearance.
Empirical research for the past two decades has shown that when
intrinsic values and motivation dominate a person's choices she tends
to experience satisfaction and well-being, whereas when extrinsic val-
ues and motivation are most important to her she will experience
angst and distress. 15 As with the humanistic analysis, those (intrinsic)
values and motivations that promote happiness are by their very na-
ture likely to produce professional behavior, while those (extrinsic)
values and motivations that produce frustration and angst are often
associated with the loss of lawyer professionalism. For example, an
attorney who strongly values community betterment and who seeks to
improve her relatedness to others will create a much more positive
effect in her practice of law than one who is "in it for the money" or
who has a primary need to impress others with her case outcomes,
appearance, or acquisitions. Similarly, one who is genuinely seeking
personal improvement will be more thoughtful about her effect on
13 See generally, Kennon M. Sheldon & Tim Kasser, Goals, Congruence, and Positive
Well-Being: New Empirical Support for Humanistic Theories, 41 J. HUM. PSYCHOL. 30
(2001).
14 Maslow noted that values provided from external sources "have proven to be fail-
ures". MASLOW, TOWARD A PSYCHOLOGY OF BEING, supra note 10 at 206.
15 Sheldon & Kasser, supra note 13 at 42; Tim Kasser & Richard M. Ryan, A Dark Side
of the American Dream: Correlatesof FinancialSuccess as a Central Life Aspiration, 65 J.
PERS. & SOC. PSYCHOL. 410 (1993); Tim Kasser & Richard M. Ryan, Further Examining
the American Dream:Differential Correlatesof Intrinsic and Extrinsic Goals, 22 PERSONAL-
ITY & SOC. PSYCHOL. BULL. 281 (1996).
and treatment of other people, while one who is solely focused on

gaining the win or the money is more likely to go to improper lengths
for the desired result. Attorneys who are deeply committed to their
own values are less likely to pursue the values or desires of their cli-
ents with unethical or abusive tactics. And a lawyer who chose her
career path for the most fundamental intrinsic reason - because she
genuinely enjoys the work - will generate a better work product1 6 and
be consistently happy at work, thereby creating a positive effect on
her clients, adverse counsel, court personnel. The converse is also
true - an attorney who does the work primarily for the money or to
bolster his image will be more frustrated with the process, less effec-
tive, and much less pleasant to work with (or against).
Modern Research On Psychological Needs And Happiness

The correlation between happiness or satisfaction and profes-
sional behavior is further supported by recent empirical research on
human needs. This research again confirms much of Maslow's earlier
work. It demonstrates that well-being results from experiences of self-
esteem, relatedness to others, autonomy, authenticity, and competence.
Fulfillment of any of these needs provides a sense of well-being and
thriving, while lack of such experiences produces distress, depressed
mood or loss of vitality. Self-esteem and relatedness show the very
strongest correlation to happiness. 17 As we look to our ideals for at-
torneys, we see again that the preferred professional behaviors will
tend to fulfill these basic human needs and hence support a satisfying
life experience. The truly professional lawyer will be competent in le-
gal skills, but- beyond that she will feel closely connected to others in
her community because she respects and is respected by them. She
will experience the authenticity and integrity that comes from loyalty
to her deepest values, and she will feel good about herself for all of
the above reasons.
The converse is also true. A lawyer who is selfish, greedy, dis-
honest, or overzealous may retain her livelihood and technical compe-
tence, but her well-being will suffer as the rest of her fundamental
16 It is well established that intrinsic motivation improves performance. See, e.g., Bar-
bara Glesner Fines, Competition and the Curve, 65 U.M.K.C. L. REv. 879 (1997); see also
Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining
Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being 22
BEHAV. Sci. & LAW 261, 281 (2004). This study is discussed in some detail infra.
17 See Krieger, InstitutionalDenial, supra note 4, at 119-122 (discussing this research on
basic human needs and their satisfaction in law school and practice, citing Kennon M.
Sheldon, J. Arndt & Houser-Marko, What is Satisfying About Satisfying Events? Testing 10
Candidate PsychologicalNeeds, 80 J. PERS. & Soc. PSYCHOL. 325 (2001). The fundamental
needs are listed on the last page of the appendix in summary form for classroom use.
Spring 2005] Inseparabilityof Professionalismand PersonalSatisfaction 431
needs go unfulfilled. She will not be respected by others in her profes-

sional community, nor will she long feel good about herself. She will
experience the distress that comes with loss of conscience, intrinsic
valuing, and integrity - all aspects of personal authenticity. All of
these disconnections from her self and others strip life and work of
their meaning, leaving an emptiness that can breed a compulsion for
more work, more money, excessive alcohol or food, or other addictive
tendencies.
UnderstandingIntegrity As Physical And Psychological Health

One more principle that illuminates the relationship between per-
sonal satisfaction and professionalism is integrity. Integrity is clearly a
foundation of professionalism, but its effect on personal well-being is
perhaps even more direct. In fact, integrity is conceptually synony-
mous with health. Although we may commonly think of "health" in
terms of the body and "integrity" in terms of the personality or char-
acter, the essence of each is the same - a condition of wholeness or
integrated functioning within one's self.1 8 Furthermore, the function-
ing of the personality and of the physiology are closely interrelated: a
person's level of personal integrity affects his physical health and well-
being directly. 19 For example, if a person is psychologically depressed
her immune system becomes impaired. More directly relevant to our
discussion, lying or deceptive behavior, which clearly manifests a loss
of character integrity, is often attended by the experience of psycho-
logical anxiety and physical stress (increased heart rate, damp palms,
etc.).,2 Conversely, if a person overcomes a physical illness or injury
(a diminished level of integrated physical functioning) her psychologi-
cal experience improves.
These important realizations again create for law students con-
crete, personally relevant connections between professionalism and
their own health and well-being. We may certainly discourage lying,
deception, manipulation of fact or law, or abuse of people or process
18 See RANDOM HOUSE NEW WORLD DICTIONARY 609 (Revised ed. 1988) (stating that
"healing" involves restoring function to its whole, integrated state); see also Sharon
Dolovich, Ethical Lawyering and the Possibility of Integrity, 70 FORDHAM L.REV. 1629,
1650 (2002) (defining integrity as a state of integration or undivided wholeness and provid-
ing an in-depth discussion of integrity in the context of professionalism).
19 See LAWRENCE S. KRIEGER, THE HIDDEN SOURCES OF LAW SCHOOL STRESS:
AVOIDING THE MISTAKES THAT CREATE UNHAPPY AND UNPROFESSIONAL LAWYERS 14-15
(2005) (pamphlet on file with author, lkrieger@law.fsu.edu) available at http://
www.law.fsu.edu/academic-programs/humanizing-lawschool/booklet.php.
20 Polygraphs monitor physical functions such as heart rate, blood pressure, and gal-
vanic skin resistance to detect changes associated with dishonesty. These changes also cor-
relate with the stress response. MARK A. ROTHSTEIN & LANCE LIEBMAN, EMPLOYMENT
LAW: CASES AND MATERIALS 186-187 (5th ed. 2003); Id. at 5 (5th ed. Supp. 2004).
because such behavior is "unprofessional". But the impact will be

multiplied if we also explain that such behavior erodes integrity by
separating the lawyer from key parts of her self - her conscience, sense
of decency and/or intrinsic values. The results are likely to include
loss of her professional reputation along with physical and emotional
stress that will ultimately undermine her health.21
It is also important for students to understand the various ways
that both legal education and early lawyering experiences can tend to
erode integrity by separating people from their personal values and
beliefs, conscience, truthfulness, and intrinsic needs for caring and co-
operation. 22 This erosion of integrity is a harsh reality that is sup-
ported by psychological research summarized below, and students
exposed to this research seem to understand its personal implications
immediately. To the extent that we impart awareness 23 of this poten-
tial and its negative consequences for health, happiness, and profes-
sional reputation, students will be empowered and encouraged to
focus on their integrity (including their values, ideals, desires, in-
stincts, and conscience) during law school and into their legal careers.
21 See BRAD BLANTON, RADICAL HONESTY XXV (1996) (appearing in Krieger, supra
note 19 at 14). Maslow recognized that both mental and physical illness could result from
loss of intrinsic values or any of the other "defining characteristics of humans", and that
such illness would likely be more severe than the traditional psychopathologies. MASLOW,
supra note 10 at 193, 206. For our purposes, such defining characteristics would also in-
clude conscience and the instinct for truthfulness and justice.
22 Dolovich, supra note 18 at 1671-72, acknowledges that the pressures of law school
and practice can erode integrity:
Each (lawyer) will have experienced firsthand the power of an institution to influ-
ence one's sense of self ... . I mention the power of law school to structure moral
perspectives . . . as evidence that even as adults our identities are capable of great
shifts, and that the engine of these shifts is often to be found in the social structures
in which we operate. The danger, of course, is that perspectives may well be shifted
in ways that undermine rather than enhance ethical character or behavior.
Specific descriptions of these undermining processes in action may be found in Patrick J.
Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and
Unethical Profession, 52 VAND. L. REV. 871 (1999); Note, Making Docile Lawyers: An
Essay on the Pacification of Law Students, 111 HARV. L. REV. 2027 (1998); Robert P.
Schuwerk, The Law Professor as Fiduciary: What Duties Do We Owe to Our Students? 45
S. TEX. L. REV. 753, at 761-780 (2004); Krieger, supra note 19. The first article discusses
large firm practice; the others focus on processes within law schools.
23 There is little to assist professors in clearly conveying all of these interrelated con-
cepts to students and new lawyers. I have created one such resource written specifically for
law students; see supra note 19. This booklet addresses law students directly, summarizing
the connections between motivation, values, stress, integrity and professionalism and sug-
gesting ways to prevent the loss of integrity and health in their broadest sense. Readers
are also invited to consult the appendices here for assistance in developing a presentation
for law students or lawyers. These topics hopefully will attract ongoing attention and be-
come the basis of more thorough papers and treatises.
Recent Research On Law Student Values And Well-Being

I promised at the outset to outline the results of research that I
have conducted on law students. The grim results of this research will
hopefully bring home the importance of teaching students about the
role of intrinsic values in the quest for professionalism and personal
satisfaction.
Professor Ken Sheldon 24 and I studied two very diverse law
schools from orientation to the end of the first year; we also followed
one of the classes through their entire three years of law study. 25 The
principal results were:
In both schools, incoming students were happier, more well-ad-
justed, and more idealistic/intrinsically oriented than a comparison un-
dergraduate sample. This refutes the idea that problems in law
schools and the profession may result from self-selection by people
26
with skewed values or who are already unhappy.
Well-being and life satisfaction fell very significantly during the
first year. More fundamentally, the generally intrinsic values and
motivations of the students shifted significantly towards more extrin-
sic orientations. These shifts have distinct negative implications for the
students' future well-being. In the sample followed for the final two
years of law school, these measures did not rebound. Instead, stu-
dents experienced a further and troubling diminution of all of their
valuing processes (both intrinsic and extrinsic) beginning in the sec-
ond year, suggesting a sense of disinterest, disengagement, and loss of
enthusiasm. 27 This loss of valuing is a serious occurrence and a likely
cause of the continued loss of well-being measured among these stu-
dents.2 8 It may well mark the beginning of the destructive "values-
29
neutral" approach of many lawyers.
24 Department of Psychology, University of Missouri-Columbia.

25 The results are described in detail in Sheldon & Krieger, supra note 16. A fourth
year of currently unpublished data demonstrate additional significant declines in satisfac-
tion of students' basic human needs for self-esteem, relatedness, autonomy/authenticity,
and even competence.
26 For a further defense of the health of incoming law students and the likely negative
role of legal education, see Krieger, Institutional Denial, supra note 4.
27 The process of law student anomie and disengagement has been observed and de-
scribed before. Docile Lawyers, supra note 22. Barbara A. Glesner, Fear and Loathing in
the Law Schools, 23 CONN. L. REV. 627 (1991); R. GRANFIELD, MAKING ELITE LAWYERS
(1992); M. Gulati ET AL., The Happy Charade: An Empirical Examination of the Third
Year of Law School, 51 J. LEGAL EDUC. 383 (2001). However, this phenomenon has not
previously been documented through empirical study of personal valuing processes.
28 See supra nn. 21, 22 and accompanying text.
29 "It is a delusion of young, inexperienced lawyers to think that they can separate their
personal from their professional lives and their personal from their professional morality.
The current jargon refers to this dichotomy as 'role-defined' ethics. It is true intellectual
rubbish." Daniel R. Coquillette, Professionalism: The Deep Theory, 72 N. C. L. REV. 1271,
The findings that students became depressed and unhappy in the

first year and remained so throughout law school are consistent with
previous studies. 30 Our further investigation of values and motivation
was the first such study of which I am aware. All of the data provides
empirical support for the concern that our legal training has precisely
the opposite impact on students from that suggested by our rhetoric -
it appears to undermine the values and motivation that promote pro-
fessionalism 31 as it markedly diminishes life satisfaction. All indica-
tions are that when students graduate and enter the profession they
are significantly different people from those who arrived to begin law
school: They are more depressed, less service-oriented, and more in-
clined toward undesirable, superficial goals and values.
1272 (1994). I cite this article and discuss the profound fallacies involved in practicing law
without ideals or values in Krieger, Not Telling, supra note 9 at 9-11; see also John Mixon
& Robert P. Schuwerk, The Personal Dimension of Professional Responsibility, 58 LAw
AND CONTEMPORARY PROBLEMS 87 (1995). This article discusses the demoralizing effect
of common teaching techniques in law schools:
These traditional techniques desensitize students to the critical role of interpersonal
skills. .. in all aspects of an ethical law practice. They also set students' moral com-
passes adrift on a sea of relativism, in which all positions are viewed as "defensible"
or "arguable" and none as "right" or "just", and they train students who recognize
and regret these developments in themselves to put those feelings aside as nothing
more than counter-productive relics from their pre-law lives.
Id. at 102; MARY ANN GLENDON, A NATION UNDER LAWYERS 40-50, 78 et. seq. (1994)
(discussing the general shift among attorneys, in recent years, from independent moral
judgment to unmitigated client loyalty and the distress that may result from conflicts be-
tween the attorney's personal morality and that of the client).
30 See G. Andrew Benjamin., The Role of Legal Education in ProducingPsychological
Distress Among Law Students and Lawyers, AM. B. FOUND. REs. J. 225 (1986) (confirming
and extending a previous study put forth in Stephen Shanfield & G. Andrew H. Benjamin,
Psychiatric Distress in Law Students, 35 J. LEGAL EDUC. 65 (1985)).
31 This movement toward extrinsic values and motivation is also contrary to the natu-
ral, beneficial direction of maturation and actualization. Kennon M. Sheldon, J. Arndt &
L. Houser-Marko, In Search of the Organismic Valuing Process: The Human Tendency to
Move Towards Beneficial Goal Choices, 71 J. PERSONALITY 835 (2003). Decades ago the
Dean of Harvard Law School observed:
For some years now I have been concerned about the effect of our legal education on
the idealism of our students. I have great faith in our students. They are surely as
good, as earnest, as sincere, as their predecessors who have come through the years.
They bring to this school a large measure of idealism. Do they leave with less? And if
they do, is that something we can view with indifference? If they do, what is the
cause? What do we do to them that makes them turn another way?
Ervin N. Griswold, Intellect and Spirit, 81 HARV. L. REV. 292, 300 (1967). Preliminary
analysis of our data did indicate a potential brighter side to the three-year study. Students
who had an intensive clinical experience along with the training described in this article
had significantly more intrinsic, service-oriented motivation for their first career choice
than the remainder of their class. They are therefore predicted to experience significantly
greater career and life satisfaction over time. These apparent effects require further analy-
sis and confirmation.
Teaching this Material

These insights are only useful if they are effectively communi-
cated to law students and lawyers. My approach to teaching this ma-
terial is explicit. 32 I first have students (or lawyers) reflect and write
out their "eulogies" as a practical exercise described in more detail
below. I then discuss through a combination of lecture and question/
discussion as appropriate to the group and the time available: (a) the
qualities of an ideal professional; (b) the scientific research on attor-
neys and law students that demonstrates the existence of important
problems (very high emotional distress levels in the profession; loss of
intrinsic values and motivation combined with increasing depression
and distress after students begin law school); and (c) research on gen-
eral populations to provide an aspirational understanding of the goals,
motives and needs typical of healthy, happy people.
I then encourage integration of the materials by having students
consider their written eulogies, identify the character traits embodied
in them, and compare those traits to the qualities of the ideal profes-
sional previously discussed. I also have students compare all of these
traits and qualities with the listing of intrinsic and extrinsic values and
the human needs previously explained. (The handout I provide that
lists all of the adaptive values, needs, and motivations is also provided
in the appendix.) If time allows I then have students break into pairs
or small groups and discuss with each other their conclusions. I then
ask everyone to come together and share insights which I list for the
class.
The "Eulogies" Exercise To Discern Intrinsic Values

Experience has shown that this exercise makes the discussion of
values and professionalism relevant for students and lawyers. It helps
participants identify their deepest values and goals, although I do not
divulge this purpose before doing the exercise in order to avoid bias-
ing the results. I usually present this exercise early in the meeting for
the same reason. I ask participants to imagine a future time when
they are retired and away from their current environment, perhaps
traveling in a pleasant place. I have them imagine visiting a small,
33
quiet gathering which then turns out to be a preview of their funeral.
32 As I present this material it comfortably informs from two to three hours of class
time; one hour is also possible with focus and time discipline. Another approach to teach-
ing similar material is offered in Laurie A. Morin, Reflections on Teaching Law as Right
Livelihood: Cultivating Ethics, Professionalism, and Commitment to Public Service from
the Inside Out, 35 TULSA L.J. 227 (2000).
33 This exercise is adapted from STEVEN R. COVEY, THE SEVEN HABITS OF HIGHLY
EFFECTIVE PEOPLE 96-97 (1989). Some teachers use variations that eliminate the specter
of a funeral (i.e. retiring, relaxing, and looking back on life to discern those things that
I then ask them to briefly write down the eulogies about themselves
that, if they could attend their own funeral, they would like to hear
from important others - their life partner or best friend, a respected
lawyer or judge that has known them in practice, a member of another
community they valued during their life (church, neighborhood, ser-
vice club, etc.), and if time allows, their child or another young person
they had known. They may also be asked to write down the things
that they would most like to be able to say about themselves - the
things about which they feel best when looking back on their life.
The results of this exercise are illuminating, because they show
students and lawyers the kinds of things that matter most deeply to
them. Participants are often surprised by the results. Almost invaria-
bly the qualities and values expressed in these eulogies are the most
traditional human values and virtues: patience, decency, fairness,
humility, courage, caring, integrity, willingness to work hard for
worthwhile goals, helpfulness to others (family, friends, clients or
community), and so forth. No one thus far in my experience has
drafted a eulogy focused on a luxurious home, high grade point aver-
age, law review membership, or extraordinary income. In fact, the
room usually erupts in laughter when such eulogies are proposed after
the writing exercise. And so participants discover, just as theory and
research predict, that their deep personal sense of success 34 expresses
intrinsic rather than extrinsic goals and values, and that a life with
integrity, meaning, caring, and helping indeed fulfills their basic needs.
I also note that intrinsic goals and values are noncompetitive by
nature. The virtuous qualities that typically surface in the eulogies are
all unlimited. In law school parlance, everyone can be in the Top Five
mattered the most), but I find the eulogies make the point very strongly without causing
particular distress.
34 As we look at the qualities shared by the intrinsic values and motivations and the
basic needs, some themes emerge that invalidate the modern picture of "success". First,
there is a distinct focus on people rather than things. The two strongest needs are self
esteem and relatedness to others, and two of the remaining three needs, autonomy, au-
thenticity, are subjective and personal as well. Both intrinsic motivations (enjoyable pro-
cess and values-directedness) are person-oriented, as are the intrinsic values (personal
acceptance/growth, intimate relationships, and building community). The second theme
that is apparent in those healthy needs and values is an emphasis on growth, integration,or
movement toward higher levels of organization either within the person, between persons
or within communities. The third common factor is an orientation toward satisfying
processes ratherthan specific outcomes. This is essentially the definition of the most funda-
mental intrinsic motivation - choosing action because the "doing" itself is enjoyable and
satisfying. This process orientation is also inherent in the intrinsic values - personal
growth, close relationships, helping others/building community. By contrast, the extrinsic
values and motivations - for money, power, influence, fame, status, or comparative/com-
petitive advantage - share a much more external and outcome-dependent orientation. This
orientation unfortunately typifies our social view of success.
Percent in kindness, patience, etc., and this tempers the felt need to be
"successful" in the competitive sense 35 that is so common among law
students and lawyers. Participants can see that their core desires are
attainable regardless of how well they compete in law school and later
practice, so long as they maintain focus on the deeper purposes they
have just identified. As a final point, the fact that these kinds of val-
ues are consistently identified in the eulogies exercise confirms that
they are truly intrinsic - they do appear to constitute a part of the
mature human nature to which people broadly aspire. 36 Thus, when
we favor them we are most authentic and we tend to experience well-
being and meaning in life; when we ignore them we act outside our
nature and begin to suffer.
I recommend that students regularly refer to these eulogies in or-
der to maintain a healthy perspective on the natural drive for competi-
tive excellence and the rewards that may accompany it. It is also
important to be realistic here, so that people do not feel that they
need to discount or ignore their natural desire for recognition, com-
forts or material affluence. On the practical level, every life in the
active world does express a blending of intrinsic and extrinsic goals,
values, and motivations. Extrinsic goals and desires for good pay,
high grades, or prestige are fully compatible with a healthy, happy life,
so long as they do not predominate over intrinsic values as one's pri-
mary purpose for undertaking action.
The principal lessons involve learning the relative benefits of in-
trinsic over extrinsic pursuits and learning the power of choice. Each
decision about attitude and behavior tilts the balance toward or away
from predicted happiness and ideal professional actions. Based on the
content of human nature, the message for any professional in training
is the same as for any other person: If you focus your life on gaining
wealth, popularity, prestige, or influence you are making a fundamen-
tal mistake, assuming that you want to feel satisfied with your self and
your work. If you focus your life on growth of self, relationships, and
community, your life will feel meaningful and satisfying. You will
avoid the frustration, confusion, isolation, depression and addictions
35 I employ a second practical exercise to cultivate a realistic sense of humility in stu-

dents. This exercise helps them discover the few meaningful things impacting the outcome
of their cases that they can control and the many factors that are beyond their control.
This exercise has the beneficial effect of shifting students' focus from the outcomes of their
work to the process of their preparation, and thereby also substantially mitigates the stress
of competitive activity such as the adversarial process. See Appendix I infra.
36 Recent research is beginning to confirm the humanistic observation that the natural
growth process includes progression from "lower" external, contingent needs to internal,
self-directed "higher" needs. See supra note 11; see also K. M. Sheldon, ET AL. supra note
31.
common to many in our society and our profession. 37

When students understand these realities - that professionalism
and life/career satisfaction are essentially inseparable within the na-
ture of human beings, and that quality of life and professional reputa-
tion both manifest from the choice of optimal goals, values, and
motives - the discussion of professionalism acquires immediate per-
sonal relevance. However, these lessons require repetition and reflec-
tion to effect the core changes in attitudes and priorities that may be
needed. This is particularly true given the largely extrinsic orientation
of law schools and practice settings in which many students are im-
mersed. Ongoing reference to and reinforcement of these concepts in
class will help, as will reflective writing. In-house or externship clinics
are perhaps the ideal educational setting for students to confirm these
lessons in their own experience, by observing themselves and others
(including lawyers, judges, teachers and other students) to discern the
connections between values, motivation, professional reputation, and
life/career satisfaction. Reflective writing or discussion assignments
then assist students in dedicating appropriate attention in order to re-
alize these lessons to the point of personal conviction.
CONCLUSION
There is a bottom-line message for law students and lawyers in all

of this: If you have the wrong values and motives, your life will not
feel good regardless of how good it looks. And there is a bottom-line
message for law teachers: Do everything possible so that the law
school experience preserves and strengthens, rather than dampens,
the enthusiasm, idealism, and integrity (in its broadest sense) of your
students. Because intrinsic pursuits and basic need satisfaction are
foundational to both professionalism and personal satisfaction, we
need to model and encourage them persistently if we genuinely intend
to produce happy, thriving, professional lawyers. When we clearly ex-
plain to students that, within their own nature the capacity for great
fulfillment coexists with the choice to embody the traits and values
traditionally associated with professionalism, they are more likely to
follow that fortunate path. It is my hope that the work presented here
will encourage and assist you in developing your own teaching ap-
38
proach towards these ends.
37 As a side benefit, such people are likely to be well-satisfied with comforts because
their positive and constructive choices will create positive, constructive outcomes, good
will, and the practical benefits that follow.
38 There are both a web site and a list serve discussion devoted to this purpose. Florida
State University College of Law, Humanizing Dimension for Law School Page, at http://
www.law.fsu.edu/academic-programs/humanizing-lawschool.php.
APPENDIX I
Control Exercise
Most students using this exercise experience significant, ongoing stress
relief and enhanced well-being, based on the powerful reality check it
provides. I constantly receive references to this exercise; it can help
greatly in learning to enjoy law practice, if consistently considered dur-
ing a clinic (and after graduation as well). If your program involves
student journals, be advised that I receive more journal entries on this
one balancing principle than any other. I also often inject this principle
into my journal assignments, since students and lawyers so typically
'stress' over things they can't control - a poor practice that needs to be
perceived as a choice!
1. Have students consider all of the primary activities involved in liti-
gating, or otherwise processing, a case or issue relevant to your pro-
gram/course. Then ask them to decide which aspects of each activity
they can or cannot control. The initial assignment can be given as
homework or in class. Follow up in class by having students discuss
their thoughts in pairs or small groups for a few minutes, and then
synthesize by having them give thoughts for the entire class which you
record on the chalkboard. People often overlook very basic elements
impacting their work; you may have to prompt them with such crucial
considerations as the underlying events themselves ( the facts); the
controlling statute, cases, rules of procedure, etc. (the law) which will
determine the outcome; and the personalities/biases/preferences of
each person they work for, with, and against.
2. Once students have written and discussed in pairs or small groups, I
establish this simple outline on the board for us to fill in with full class
discussion:
Matters I Can't
Stage of Proceeding Matters I Can Control Control
Through class discussion we ultimately develop something like

the following (a criminal case example):
Stage of Case Can Control Can't Control

Crime/Events (facts of nothing Everything
case)
Bond Hearing -my preparation & rea- -facts, law, procedural
sonable presentation; rules;
-my motives; -personality and behav-
-my behavior toward ior of everyone else
client, judge, adversary, (client, adversary, and
etc. judge);
Client Interview my preparation, facts; truthfulness of
motives, respectful client; client apprecia-
behavior toward client tive or abusive, cooper-
ative or not
Negotiations my prep, motives, opposing counsel's atti-
respectful, professional tudes, motives, behav-
behavior ior toward me
Motion Hearings my motives, prepara- motives/behavior of
tion, presentation, pro- opposing counsel, wit-
fessional behavior nesses, judge; outcome
of hearing
Trial same as above all of
the above, plus biases/
motives of jury (if
app.); outcome of trial
Many more stages of consideration are possible of course, and

this can be amended to conform to your type of course work. Also, I
emphasize that obviously this does not mean the lawyer cannot influ-
ence the litigation or have an impact on the outcome through her pro-
fessional work. But it is a sobering experience, and one rarely
discussed in law school, to realize that (short of unethical behavior)
one has little, if any, control over many crucial things, including both
the facts and the law that apply to one's case. It becomes very clear
that there are great limits on one's influence, and that control is usu-
ally beyond one's ability except with regard to one's own actions, mo-
tives, etc. Given the typical emphasis on producing wanted outcomes,
this realization greatly moderates anxiety and stress, and encourages a
positive shift toward intrinsic motivation, self-acceptance, and in-
creased work satisfaction.
Spring 2005] Inseparability of Professionalismand PersonalSatisfaction 441
APPENDIX II
This appendix contains key graphics which summarize my teach-

ing approach to law students and lawyers. Below I briefly describe the
content and relevance of each item. Teachers are welcome to
reproduce and use (or adapt) this material as you find helpful. Please
advise me if you do so, for my information only.
The first graphic is a definition of professionalism which has
served well for many years with such groups. It may be used at the
beginning of a class or presentation, for background, and then later to
have students/participants integrate these qualities with the informa-
tion on needs and values presented in the subsequent graphics. (For
example, to what extent are those human needs, or the intrinsic val-
ues/motivations, embodied by these professional qualities? To what
extent are the values identified in your eulogy expressed by profes-
sional behavior?)
The second graphic shows the very high levels of emotional dis-
tress among practicing lawyers. This was a very large study by a team
of clinical psychologists. Note that the expected level of clinical dis-
tress for each measure is 2.3% of the population, whereas up to 36%
of the lawyers are indicating that level of dysfunction. We cannot ex-
pect the professional qualities in the previous graphic when people
feel this way; attention is necessary. Side notes: (1) the Brief Symp-
tom Inventory used here is a preliminary screening inventory; these
results do not represent final diagnoses by practicing psychologists. (2)
Interpersonal Sensitivity is the need to compare favorably with other
people, and is an indication of insecurity or low self-esteem. The very
high level of distress on this scale may relate directly to the emphasis
on appearances and comparative worth (relative salaries, class stand-
ing, grade point average, etc.) in law schools and the profession.
The third graphic shows the very high levels of clinical depression
(Beck Depression Inventory) reported by law students throughout
their three years of law school and beyond. They entered law school
with statistically normal levels of depression but never recover, as a
group, to that level. It is important to remind listeners that these are
group data, and do not mean that each of them is experiencing these
phenomena. The data show trends only (i.e. don't get depressed over
this information, but pay attention! The following information will
provide a guide to avoid these problems.)
The fourth graphic shows the results in our (Sheldon-Krieger)
study at the end of the first year of law school. These students entered
law school with stronger well-being, intrinsic values and motivation
than a comparison undergraduate group, but showed very marked,
negative changes in well-being, life satisfaction, values and motivation.
These changes are consistent with, and may be seen to predict, the
problems of distress, dissatisfaction, and lack of professional values
observed in lawyers.
The fifth graphic summarizes the human needs, values, and moti-
vation styles, and can be given to students or lawyers as a checklist for
guidance in building and maintaining a balanced, satisfying life experi-
ence. The extrinsic (maladaptive) values which are common to law
school and law firm cultures, and which produce distress and dissatis-
faction, are listed at the bottom of the page for contrast. If the 'eulo-
gies' exercise is used in your presentation (see text), it complements
this information on healthy values, needs and motivation well: the
eulogies almost invariably reflect these needs and values. (Graphics
follow.)
THE PROFESSIONAL
* BROAD VISION, GOOD JUDGEMENT (WISE)
* COMMITTED TO VALUES
* GREAT INTEGRITY (INDIVIDUAL)
* SELF SECURE, UNSELFISH
* DEEP REGARD FOR HUMANITY
* RESPECTFUL (SELF AND OTHERS)
* COMPASSIONATE
* SERVICE-ORIENTED
* TECHNICAL COMPETENCY
Spring 2005] Inseparabilityof Professionalism and PersonalSatisfaction
... LAWYER DISTRESS

Source: JOURNAL OF LAW AND HEALTH, Volume 10:1 (1996)
Subscale Lawyers Above 98th Percentile
Obsessive-Compulsive 19.0%
Interpersonal Sensitive 35.3%
Depression 23.4%
Anxiety 30.4%
Phobic Anxiety 10.3%
Paranoid Ideation 12.5%
Social Alienation and Isolation 26.6%
Current Alcohol Abuse 20.0%

Projected Alcohol Abuse 68.0%
Beck, Sales, and Benjamin
DEPRESSION AMONG LAW STUDENTS

(Benjamin et al., 1986 Am. Bar Found. Research, 225)
45%
40%
...
...
..
....
...
-... ....
..
.. .-.. ...
...
. ....................
..
35%
30%
25%
20%
/ 17.90% Students)
15%
10% ........ .......
............................................................
...........................................
.......................
........
.................
.............................................
-.......................
5%
0%
Pre-Law 1st Year 3rd Year 2 Yrs 0-78 Years
PostGrad Practice
-Law Students -* General Population Maximum - 9% I

TIME2: CHANGES IN AW STUDENT WELL-BEING, VALUES, AND MOTI-

VATION FROM AUGUST 2000 TO MARCH 2001 (SHELDON AND
KRIEGER)
Variables August March p value (change)
Well-Being
Aggregate Well-being<<>> 4.85 3.88 <.001*
Positive Affect 3.79 3.29 .001*
Negative Affect 2.47 2.66 .003*
Life-Satisfaction 3.53 3.25 .001*
Symptoms 1.95 2.21 .001*
Beck Depression 6.12 7.94 .001*
Values
Relative Intrinsic Value<<>> 5.14 4.75 .004*
Orientation
Financial Success (E) 3.29 3.30 .820
Appealing Appearance (E) 2.31 2.47 .001*
Social Popularity (E) 2.31 2.30 .870
Community Contribution (I) 3.87 3.74 .007*
Personal Growth (I) 4.49 4.44 .180
Emotional Intimacy (I) 4.69 4.64 .110(*)
Motivation for Goals
Relative Self-Determination <> 4.27 3.65 .001*
External Motivation (E) 1.57 1.76 .001*
Introjected Motivation (E) 2.38 2.34 .640
Identified Motivation (I) 4.29 4.17 .120(*)
Intrinsic Motivation (I) 3.93 3.57 .001*
* denotes statistically significant, or (*) marginally significant results.

Significance tests compare the differences between the undergraduate
sample and the law sample, and the nursing sample and the law sample.
Supporting Well Being and Professionalism:

Adaptive Needs, Values, and Motivation
1) HUMAN NEEDS (experiences produce sense of well-being,
thriving):
- Self-Esteem (sense of self-respect, having positive qualities, satis-
faction with one's self
- Relatedness (feel well-connected to others generally, closeness, inti-
macy with important others
- Authenticity (choices based on true values/interests, express one's
true self)
- Autonomy (ability to make choices one prefers, to do things as one
wants)
- Competence (feel very capable, mastering hard challenges, success-
ful at difficult tasks)
- Security (feel safe from threat/uncertainty, have comfortable rou-
tines/habits, life predictable)
2) ADAPTIVE MOTIVATION, VALUES, AND GOALS (produce sense

of well being, meaning, satisfaction)
- Internal Motivation - (taking action which is satisfying or enjoya-
ble in itself, or which supports an important personal value/goal)
- Intrinsic Values/Goals - (toward self-acceptance and develop-
ment, helping others, intimacy, community)
CONTRAST:
- Extrinsic goals, values and motivation
(produce tension, irritation, dissatisfaction)
- money/luxury
- popularity/influence
- grades and other competitive/external outcomes
A LEGAL CLINIC AND ORGANIZING A LEGAL CLINIC AND ORGANIZING
186
provides effective help in a respectful way, and does a good job of ten, stiffed. He explains his notation system to the Project mem
explaining the link between individual issues and the systemic ber who sits at his side holding a calculator. At a third table, a
problem of which they are sympcoms, some people who come in woman in her twenties holds her mother's hand as the older
that way may consider staying to become involved in the organi� woman, in evident pain, explains to another organizer how she
zation's collective strategies for change. The group's reputation was forced to clean up chemical spills with no protective gloves
in the community as a trustworthy and committed organization while working as a janitor at a cosmetic company.
will grow. And the group will gain invaluable information abo ut Intermittently, volunteers and members and organizers rise to
the range of problems community members face. look for the lawyer and other organizers around the office. Here
All is not so simple, of course. When a legal clinic seeks to fur the conversation draws on collective memory: "Did we report
ther the goals of an organizing efforc as well as of its individual that factory to the Department of Labor last year? "Is this the
,i', clients, there are always tensions. Some grow from the contrast same guy in the blue truck that didn't pay Wilfredo-what hap
between individual legal representation, with its emphasis on a pened when we picketed him?" "What happened with the other
lawyer's winning the case for the client, and collective action> chemical case that we turned in to OSHA?" And, as other staff
with its focus on a community working together to resolve its and members and volunteers are drawn into the discussions at
collective problems. Much can go astray in the attempt to make the tables, memory moves toward strategy. "Can you get other
a single claim bear the burden of these two very different sets of workers to come to a meeting?" "We can ask Project members to
expectations. Other tensions, easier to avoid with forewarning, join you to visit that employer and demand chat the owner pay
arise from missteps in the planning of the clinic or the organiz you." "You should get workers' compensation. But here's how to
ing effort or the amalgam of the two. get a doctor to take care of you first." Then a refrain, rising from
••• each of the tables at some point, from the organizer and the vol
. unteer and the member: "If we support you in your case, we will
' ask you to support us in fighting for better working conditions
It is Monday, clinic day at the Workplace Project in the mid-
199os. In the large and sunny meeting room, clusters of peo� Is this a legal aid center? Is it a union? What exactly is being
pie gather around mismacched tables. At one, a small group of /X(r:·pffered, and what asked in return? The answer is complicated.
women tell a volunteer law student how each was told to "put a} ,ffei,The workers come for help. And the clinic is there to help them.
plug in it" when she asked to use the bathroom at the factory} 1
f;,}:-But it is also there as a way to introduce them to the Workplace
where they worked. At another, a day laborer, knit cap pulled;
�w "IIl,i,:/1roject, a place that strives to be "a center of immigrant workers,
down over his head and two-year-old son on his knee, bends ove"t\ �tnot a lawyer's office," and to draw them into its work. These are
I
a small notepad on which he has recorded che days he worked/; \.(riot necessarily confluent goals. Indeed, they feel contradictory:
for a man in a blue truck and the days he was paid-or, more of�j Jthe one seeking to resolve problems quickly for workers, the
I.\
8/8/2019 Why I Left Immigration Law | Dissent Magazine
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Why I Left Immigration Law

Why I Left Immigration Law
The U.S. immigration system demands penance from immigrants for the
privilege of staying in the country and reinforces tired stereotypes about
the global South. After four years, I could no longer be part of it.
Jawziya F. Zaman July 12, 2017
Since Trump's inauguration, immigrant rights activists and concerned citizens have been united in
countrywide protests. But we should push our critique further. (Kenneth Lu / Flickr)
There’s a young woman sitting across the desk from me. My work is to map her life
onto 8.5 by 11 inches—the dimensions of my intake sheet. She doesn’t yet know that
her experiences are a haphazard accumulation of evidence, the building blocks of a
case to be decided by a robed figure who will dispense justice and forget her face
before the ink dries. I ask the usual questions about where she’s from, when she
came to the United States, and why she is afraid of returning to her home country. I
evaluate her answers for what I can use for her asylum application. She tells me
https://www.dissentmagazine.org/online_articles/left-immigration-law 1/11
three things about herself. She’s from a Muslim country, her family is religious, and
she’s a lesbian. I immediately relax into my chair. “You just won your case,” I want to
say but don’t.
Instead, I give her a primer on asylum law and walk her through procedures,
deadlines, and the required forms of evidence. Although we’ll prepare the strongest
case possible, I say, there are no guarantees of success. But I’m silently whittling her
story to the shape I know will lead to the desired outcome. I’ll frame her experiences
within readily available descriptions of a regressive religion and a society steeped in
patriarchy. I’ll paint a picture of yet another oppressed Muslim woman whom the
United States must save from her backward culture. I’ll draw on media articles and
the State Department’s annual country reports on human rights practices to support
my argument that the experiences of sexual minorities in her country can be easily
reduced to one truth: suffering, persecution, or death. I’ll speak to a few academics
who study the country, and provide the court with an expert letter from whichever
one corroborates my conclusions without complicating the issue. In my head, we’ve
already won the case. Over a year later in court, we do.
I practiced immigration law in San Francisco for four years, spent three of those
years wrestling my own discontent, and finally quit two months before Donald
Trump won the election. It wasn’t immediately obvious why my chosen profession
had me dreading each day. I loved my colleagues and found the larger community of
immigration attorneys warm, supportive, and deeply committed to helping their
clients. Many judges in my jurisdiction made decisions based on fairness and
compassion. When I won cases, particularly for undocumented clients, I saw
tangible benefits—a parent wasn’t deported, or a family stayed together, or an
asylum seeker no longer had to fear returning to her home country.
My frustration with the job, I learned, had to do with how I felt implicated in the
flawed premises of immigration law, including its reductionist narratives about other
countries and its dehumanization of foreigners. In virtually every case involving
defense against deportation, the law insisted that I reinforce tired stereotypes about
the global South and force clients to undergo a ritual flagellation before they could
be granted the privilege of remaining in the country.
Eight days after Donald Trump assumed the presidency, two events occurred that
highlighted how U.S. immigration law distorts a lawyer’s relationship with the rest of
the world. As airports across the country closed the gates to Muslims and refugees
from seven countries, immigration activists took to the streets, crowds chanted “let
them in,” immigration attorneys provided free legal services, and people formed
protective circles around Muslim congregations who offered prayers.
Less than twenty-four hours later in a small Yemeni village, U.S. Navy SEAL Team 6
killed at least twenty civilians in a raid ostensibly conducted to collect vital
intelligence that would protect the United States from future terrorist attacks.
Afterwards, official justifications grew muddled and contradictory; the military
released what it claimed was an intelligence video seized during the raid—and then
hastily removed it after discovering it had been posted online since 2007. At least
nine Yemeni children, one of whom one was a newborn baby and another an eight-
year-old girl, were killed in the military operation. But there were no mass protests
for the village destroyed, no candlelit vigils for the dead.
What explains this unwillingness to acknowledge the Muslims the United States
murders in Yemen (or Somalia, Sudan, Syria, Iraq, Libya, Afghanistan, and Pakistan)
while crying for the Muslims we turn away at U.S. airports? Is it only by virtue of
seeking entry into this country that foreigners become human beings worthy of our
regard?
In the context of immigration law, this disconnect is ironic precisely because many
immigrants who come to this country—legally and illegally—are a product of U.S.
foreign policy, both economic and military, that has played a part in decimating
countries all over the globe. Decades of intervention and occupation in Afghanistan,
for instance, have contributed to creating the world’s second largest refugee
population after Syria. Crippling sanctions and the subsequent military invasion in
Iraq have displaced millions. Free-trade policies with our southern neighbors have
fuelled massive economic migration to the north, and the current Central American
humanitarian crisis has its roots, at least partially, in street gangs deported from Los
Angeles. But to add insult to injury, the law demands that immigrants renounce the
place of their birth and take a kind of medieval oath of fealty to the United States.
Here’s how.
Before many undocumented immigrants can legalize their status and remain in the
country, the government must grant what’s called a waiver of inadmissibility.
“Inadmissibility” is a term of art for certain actions—such as entering the country
without valid documentation or lying to the government—that prevent immigrants
from gaining legal status and being allowed to remain. An immigrant’s waiver
application must prove that her U.S.-citizen (or, in some cases, green card–holding)
parents or spouse would face extreme hardship in the United States if she were
deported. She must also show that her relatives cannot be expected to relocate to a
foreign country if such deportation were inevitable. In this way, one central feature
of every successful waiver application I filed was proving that my client’s country of
birth was unfit to house her American relative.
There’s an easy formula immigration attorneys follow to make that case. We

inventory our clients’ lives, excavate fragments of their past—collect this bit of
ugliness, that bit of violence—and cobble together a selective biography that
contrasts the grinding reality of what they left behind to the infinite possibility that
America represents. The stories we tell the government always have the same plot
and cast of characters. There are hardworking parents or absent ones, and too many
children, set against the grim backdrop of poverty, crime, and unemployment. There
might be conflict with a neighbor, a partner, or a gang. The infrastructure crumbles
while a corrupt, often brutal, government looks on. After we complete this banal
picture of Third World dysfunction, we disrupt it by placing an American in the
middle of it. Suddenly, it all seems so much worse. Subjecting one of our own to the
daily reality of citizens of the global South is the legal definition of extreme hardship.
Our narratives about the rest of the world consist of interchangeable anecdotes of
suffering, scarcity, and repression. There’s no room for complexity here, and nuance
only muddles the case. We tell ourselves that what we describe on paper is just the
facts absent interpretation—the client narrates and we transcribe. But the law
demands just one story from our clients about their lives and where they come from,
and it’s not a story of resilience and success. This narrative obstructs the possibility
that an immigrant’s relationship with the country of her birth might be complicated
in ways we don’t understand—that she could be forced from her home and still have
no other, or that she could loathe it and long for it at the same time.
But black-and-white keeps immigrant families together, not shades of gray. Over
time, the names of our clients’ countries become sounds that call forth a series of
images unanchored from political context and history—images of gang violence,
hungry children, and oppressed women. We think we know the most important
thing there is to know about these places: people leave. We don’t understand what it
means to stay, and the millions who do are unintelligible; we have no relationship
with those people and their choices. And we’ll never have to give them more than a
cursory glance because the sum of their lives has been distilled into helpful
statistics about poverty and violence that increase the likelihood of winning our
cases.
It’s the stories we tell about other countries that cause immigration attorneys rage
and sympathy for would-be immigrants affected by the Trump administration’s
draconian policies. We know better than anyone the bleak places they’ve left behind.
“Let them in!” we cry with a kind of self-righteous indignation, and when the other
side asks, “But why?” we give each other knowing looks and roll our eyes. We name
the government racist, xenophobic, and Islamophobic in response without
acknowledging that this bitter tug of war reveals something peculiar about
immigration law. The bedrock upon which the defense and the prosecution build
their arguments in virtually every case is the same: America is the superior option—
it’s better than wherever you came from.
Whether it’s the government attorney trying to deport immigrants or the attorney
fighting to keep them in the country, both share a steadfast belief in the future
promise of America, its uncommon hospitality. The only difference is, one side is
motivated by bald-faced nativism while the other is motivated by a desire to save
black and brown people from their tyrannical governments and their oppressive
cultures. In the meanwhile, neither pays much attention to the hypocrisy of a
country that congratulates itself on being inclusive and welcoming of immigrants
while ignoring its part in creating conditions that make many of their native
countries unlivable. We turn our watery gazes to the airport and the children we
murdered in Yemen fade from the news because their lives and deaths are pointless
abstractions.
But if they’d applied for U.S. visas and been rejected, we’d be outraged.
After I quit my job, I went to London to volunteer at Reprieve, an organization that

works to hold the United States and other governments accountable for
counterterrorism policies that result in indefinite detention, torture, and the death of
innocent people. Since leaving the country, I’ve watched the worsening plight of
immigrants in Trump’s America with dismay. There are reports of increased
immigration enforcement raids all over the country, and last month, the House of
Representatives passed an act denying many federal grants and funding to
sanctuary cities and states that shelter immigrant communities and limit
cooperation with federal immigration law enforcement. Most recently, a Supreme
Court decision allowed a section of President Trump’s revised travel ban to remain in
place temporarily, until a final decision on the merits of the case is reached later this
year. For now, travelers from six Muslim-majority countries will be banned from
entering the country unless they can prove “bona fide” ties with U.S.-based family
members or entities.
This shifting legal and policy landscape has unleashed a heartening wave of
resistance. Immigrant rights activists and concerned citizens have been united in
countrywide protests. Organizations that work to further immigrant rights have been
inundated with donations. Attorneys have taken the battle to the courts. Civil rights
groups are holding know your rights trainings and offering free legal consultations
to immigrant communities. Such individual and group defiance in the face of
difficult odds represents the best of the United States since President Trump took
office. But we should push our critique further and reflect on how immigration law
demands penance from immigrants—something that dates back long before the
current White House occupant began signing his executive orders.
Unlike other kinds of law where an attorney’s job might be to argue that her client
did nothing wrong, a lot of immigration law begins with an admission of guilt. We
concede that our clients entered the country illegally, or stayed longer than they
were supposed to, or lied to the government about their marital status, or whatever
else. Different circumstances call for different forms of legal relief, but a central
feature in many of our cases is that our client did wrong and now he’s terribly sorry.
Confession and penance are akin to sacraments in immigration law, and the process
of asking the government to pardon your client’s digressions is a disconcerting
combination of formulaic and theatrical.
There are forms, exhibit lists, and piles of evidence to prove our client is a good
person even though he broke the law. Being good is a prosaic business that
translates to paying taxes, having a steady paycheck, and going to church. The
client narrates his good deeds in a written statement that should explain in some
detail why he did wrong, how he’s learnt his lesson, and why he shouldn’t be
deported. The statement forms the basis of the client’s oral testimony in his court
hearing, and this is where the drama happens. In the many hours I spent preparing
clients for their public confession—in legal terms, testifying in court—I emphasized
the importance of appearing sorry in addition to being sorry. I warned them that if
either the judge or the government for one second sensed evasiveness or
defensiveness from them, the case was lost. Some clients understood the
performance that was expected of them better than others.
In one such case, I struggled to explain the significance of demeanor to a dignified

and introverted Korean client in his sixties. He sat rigid during each of our meetings,
spoke in short, halting sentences, and refused eye contact. I felt that this process
must be as distasteful to him as it was to me and I was embarrassed at subjecting
him to invasive inquiries about his personal life. When I pressed him on that most
important question—are you sorry for lying about your marriage—he tightened his
jaw, looked away, and answered in monosyllables. I couldn’t get him to do better.
In court, we faced an unusually punitive government attorney who saw my client’s

discomfort and exploited it to her fullest. She fired variations of the same question
and pounced angrily if his answers seemed uncertain. It was going badly. I could see
from his increasing nervousness that he was concerned about the outcome of his
case and I was, too, until five minutes before the hearing concluded. I asked him in
closing if he had anything he’d like to say to the judge before she made her final
decision. He was silent for a long moment and then dignity gave way to necessity.
The old man bowed his head and began to weep. He said he was sorry and
ashamed, and begged that he be allowed to stay in the United States. Through
tears, he explained that he had no other home, and implored the judge not to
separate him from his family. It was exactly what I’d hoped would happen. I felt sick.
We won the case.
Since the law requires an immigrant’s identity to be reduced to an abject

powerlessness, attorneys teach their clients the obligatory theatrics that help win
their cases. I give up. I’m sorry. I did something bad but I’m good. Forgive me. Please
let me stay. And when we’re successful, we congratulate ourselves on a job well
done and don’t ask what it means to be complicit in a system that rewards misery
and defeat while punishing resilience and strength.
Before I left the United States, I spent much time wondering why our legal system is
so intent on shaming immigrants before granting them any rights. For
undocumented immigrants, especially, the unspoken assumption seems to be that
they demand what isn’t owed.
Nowhere is this suspicion more evident than in asylum hearings where the law
requires maniacal levels of consistency from those least likely to display it. Any
immigration attorney will tell you that inconsistency is the guillotine that hangs over
every asylum case. If the client’s written statement says she wore a green sweater on
Tuesday, she can’t say it was blue when she testifies in court. It sounds absurd—and
it is—but we lose sleep over these details because they have the power to change
the outcome of our cases. If the client is deemed inconsistent by the government,
then she’s not credible. And if she’s not credible, then she obviously made the whole
thing up, including the rape or the murder or the torture that caused her to flee from
her home country.
I recall my first asylum hearing on a domestic violence claim where the male judge
tried to determine whether my client was credible in response to a government
attorney’s skepticism about where, how, and how frequently her partner raped her.
As she described a short period of time during which she was raped repeatedly, the
judge stopped her to ask for clarification about what the instrument of penetration
was each time. My client seemed puzzled and I closed my eyes and hoped he wasn’t
initiating the heinous line of questioning I thought he might be. No such luck. To
dispel the client’s confusion, he added helpfully, “What I mean is, did he use his
fingers that time, or his penis?” We continued in this fashion for a few minutes until
both he and the government attorney were satisfied that she had described the
details consistently and was therefore credible. Tuesday’s rape was with his fingers.
Wednesday’s rape was with his penis. Congratulations, your asylum application has
been granted.
The nature of trauma defies consistent retellings of it but the law demands that
immigrants resist the natural workings of human psychology and memory to win
their cases. I struggled with this tension each time I prepared my clients to testify in
court. I asked them a hundred personal questions and paid attention to what they
weren’t saying. I pressed and nudged at the outskirts of their silence until it yielded
the information I needed. After the facts would emerge over a period of many hours
and disjointed flashbacks, I taught them to impose order and chronology onto their
trauma. In doing so, I forced them to relive and recount that which they wanted
most to forget.
During an intensive month-long preparation period for another domestic violence–

based asylum case, I watched the effect of this process on my client. She’d come to
each meeting increasingly bleary-eyed and exhausted. The more we practiced, the
less she seemed to remember. During one meeting, she’d insist an event took place
ten years ago and during the next, she was certain it happened last year. She’d trail
off in the middle of sentences, her face blank. At her job cleaning offices, she’d stare
out of the window on the tenth floor and think about jumping. “I don’t sleep
anymore,” she told me each time we met. I could do little other than offer her tea or
sit with her in silence or hug her. I’d tell her she didn’t have the luxury of giving up,
and if nothing else, she had to stop thinking about jumping out of windows for her
four little children who needed their mother alive and well. Then, I’d steer her back
toward describing the unspeakable acts of violence that produced each of those
children, the same violence that made sleep impossible every night.
A few weeks after we won that case, my client came to the office with her children
obediently in tow. They sprawled on the sofa in the waiting room, utterly
disinterested in the stranger who’d monopolized too much of their mother’s time in
the past several months. She looked more rested than I’d ever seen her. “Are you
finally sleeping?” I demanded. She laughed and told me that she was, and that was
one day I didn’t wonder how to stop being an immigration attorney.
It’s results like these that made my eventual decision to leave the practice so
difficult. Is the dehumanizing process worth the successful outcome? Most, if not
all, immigrants and attorneys would say yes, and it’s difficult to disagree. My own
discomfort with the constraints of the legal framework within which I acted
necessarily gave way to the real world consequences of each case. Immigrants do
come to the United States to better their lives and to give their children
opportunities they would not have had in their native countries. Sexual minorities
from conservative countries do find safety and self-expression in the United States.
But this is only a small piece of a multifaceted truth for which the law does not—and
perhaps cannot—account. And as lawyers, we are often locked in a fast-paced
process whose daily urgency inhibits our thinking critically about the complexity of
lived realities, the global structures that lead so many people to come to this
country in the first place, and the insidiousness of a legal system that looks upon
immigrants with suspicion or pity.
Nevertheless, it’s vital that all of us—immigrant rights activists and immigration
attorneys, both former and current—debate the many flaws in our immigration laws
and remain vigilant, not just against President Trump’s immigration policies, but
against reducing immigrants’ home countries to crude stereotypes, and their lives to
the sum of their past hardships and the future promise of America.
Jawziya F. Zaman practiced immigration law in the United States for four years.
She recently moved to Pakistan, where she is working on issues of criminal justice
reform with Karachi’s Legal Aid Office.
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NINA RABIN 8/29/2011

For Educational Use Only

INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

54 UCLA L. Rev. 999

UCLA Law Review

INTERPRETING COMMUNITIES: LAWYERING ACROSS LANGUAGE DIFFERENCE

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INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

1. Enhanced Attention to Cultural Context 1080

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 2

INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 3

INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

Reverend Sen: (interprets into Burmese)

Margaret: Is there someone there that we could speak to?

Reverend Sen: I understand. I will translate the question.

Reverend Sen: (interpreting into Burmese)

Mae: (suddenly looking away and starting to tremble) Okay.

Reverend Sen: (speaking in Burmese to Mae)

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 4

INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

Mae: (shaking her head side to side and speaking in Burmese)

Margaret: What did you ask her?

II. Role Transformation and Challenges to Client-Centeredness

A. The Traditional Lawyer-Client Dyad and the Refinements of Client-Centeredness

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 5

INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

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INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

involvement of interpreters necessarily brings.

1. Interpreter as Guardian/Interpreter as Co-client

INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

2. Interpreter as Advocate/Interpreter as Co-counsel

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INTERPRETING COMMUNITIES: LAWYERING ACROSS..., 54 UCLA L. Rev. 999

3. Interpreter as Linguistic and Cultural Authority/Interpreter as Expert

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 10

Rules of Professional Conduct

(m) "Tribunal" denotes a court, an arbitrator in an arbitration proceeding or a legislative body,

(b) A lawyer's representation of a client, including representation by appointment, does not

Allocation of Authority between Client and Lawyer

Independence from Client's Views or Activities

Agreements Limiting Scope of Representation

Criminal, Fraudulent and Prohibited Transactions

(a) A lawyer shall:

(4) promptly comply with reasonable requests for information; and

ER 1.6. Confidentiality of Information

(6) to prevent reasonably certain death or substantial bodily harm.

[6] The requirement of maintaining confidentiality of information relating to representation

Disclosure Adverse to Client

Acting Competently to Preserve Confidentiality

ER 1.7 Conflict of Interest: Current Clients

(2) the representation is not prohibited by law; and

[5] Unforeseeable developments, such as changes in corporate and other organizational

Identifying Conflicts of Interest: Directly Adverse

Identifying Conflicts of Interest: Material Limitation

Lawyer's Responsibilities to Former Clients and Other Third Persons

Personal Interest Conflicts

Interest of Person Paying for Lawyer's Service

[14] Ordinarily, clients may consent to representation notwithstanding a conflict. However, as

ER 1.9. Duties to Former Clients

(1) whose interests are materially adverse to that person; and