Legal Professions Outline

Professor Scheflin
1. General
1. Regulation
1. Lawyers are the most regulated
2. Who regulates them? It stems from the separation of powers
1. Legislature and supreme ct collaorate to control them
2. Sup ct has the ultimate authority o!er them
"1# $% sup ct should ha!e the final say
"2# &'( attorney client pri! would e found in the $ode of
)!idence "legislature has the ultimate authority ut it*s not
clear why. (he sup ct honors this adication#
"1# sup ct can in no way alter the legislati!e scheme
when it comes to pri!ileges
2. State &ar
1. State ar created y legislation in 1+2, ut it*s answerale to the $% sup ct
2. State ar has no final authority o!er anything
-. It must e appro!ed y the legislature or y the court
-. State &ar court made to alle!iate cases from the courts of appeal
1. .ot the final authority. (here*s an appeal to the $% sup ct
/. State ar proposes rule0 lawyers in the memership comment on it and send it
ac1.
1. It doesn*t ecome a rule unless it*s the $% sup ct that adopts it
REGULATION OF THE LEGAL PROFESSION
2. (he )thics Regulators
1. $ourts and Legislature
1. (he 2octrine of State Preemption
1. Where the federal go!ernment has the right to act0 it may preempt
state law
"1# 3ed law howe!er don*t generally regulate lawyer conduct0
e4cept when lawyers appear efore the federal triunals
2. (he only ways fed can step in is if the constitution is in!ol!ed or
when there is a federal interest in!ol!ed and the state has
encroached upon it
-. Baron v City of LA "ordinance says they must register as a
loyist if they appear in front of a triunal#
"1# the State &ar %ct preempts the field of regulation of
attorneys only insofar as they are 5practicing law6
"1# practicing law can e seen as the e4clusi!e right to
represent another in court
"2# it*s a misdemeanor to practice law in $% w7o a
license0 ut there is no definition found of what
5practicing law6 is e4actly
"-# the character of the act0 not the place where it
occurs0 is the decisi!e element and if the application
of legal 1nowledge and techni8ue is re8uired
2. (he 2octrine of .egati!e Inherent Powers "Inherent %uthority#
1. (hree aspects of the doctrine
"1# Irreducile inherent authority 9 powers fundamental to the
essence of the ct as a constitutional triunal
"2# .ecessary to the e4ercise of all others 9 powers permitting
the ct to conduct its usiness
"1# )g. Regulation of lawyers
"-# .ecessary in the pursuit of a :ust result 9 powers which arise
from notions of e8uity0 neutrality0 and fairness
2. $% courts ha!e inherent powers0 independent of statute0 deri!ed
from
"1# the courts* e8uitale power deri!ed from the historic power
of e8uity courts and
"2# super!isory or administrati!e powers which all courts
possess to enale them to carry out their duties
-. Whene!er an argument is a!ailale that a serious disad!antage to
the administration of :ustice might occur0 the doctrine may e raised
/. Potter v Eli Lilly 9 "lawyers settle ut don*t inform the :udge#
"1# trial court has sufficient inherent authority to conduct an
in!estigation and a hearing to determine whether its
:udgments accurately reflect the truth
2. (he %merican &ar %ssociation
1. )stalished in 1;,;0 !oluntary organi<ation of lawyers
2. $anons of )thics and =odel $ode of Professional Responsiility were
aandoned
-. %&% =odel Rules of Professional $onduct was officially pulished in 1+;-
-. %merican Law Institute
1. 3ounded in 1+2-0 in!itation only0 prepare Restatements of the Law
2. Restatement -d0 The Law Governing Lawyers
-. $% has it*s own rules
/. (he $% State &ar
1. (he 3unctions of the State &ar
1. >as the authority to sue0 ma1e contracts0 own and maintain
property0 loy efore the Legislature0 create and maintain
programs to assist the pulic in learning of their legal rights0 and
help facilitate lay persons to otain competent legal counsel
2. %dminister a client security fund0 estalish and maintain a
procedure for the aritration of disputes0 regulate admission to the
ar0 draft standards to go!ern the conduct and acti!ities of &ar
memers0 and conduct disciplinary in!estigations and impose pulic
or pri!ate repro!al for willful !iolations of the Rules of Professional
$onduct
-. State ar created y legislation in 1+2, ut it*s answerale to the
$% sup ct
/. State ar has no final authority o!er anything
?. State ar proposes rule0 lawyers in the memership comment on it
and send it ac1.
"1# It doesn*t ecome a rule unless it*s the $% sup ct that
adopts it
2. =andatory ar
1. (o practice law in a :4 you must e a memer of the ar in that :4
"1# $% has mandatory ar
2. $onstitutionality of
"1# Keller v CA "$% &ar loies and puts out political
statements#
"1# it is constitutional for the &ar to ta1e a political
position
"2# if you don*t agree w7 the &ar*s political position0
apply for a refund of your dues that goes to the issue
-. Post9@eller Issues
1. $&P$ A B1/C statesD the Conference of Delegates (reps of local ar
associations# shall not be funded w/ mandatory fees collected by
the State Bar
/. (he State &ar and Rules of )thics
1. (he State &ar doesn*t ha!e the power to ma1e ethical rules that are
inding to $% lawyers
2. (he proposed rule ecomes inding only when it*s officially
adopted y the Supreme $ourt or Legislature
-. $onducts proceedings when complaints against lawyers ha!e een
filed
/. Issues Epinions on ethical matters from time to time
?. (he State &ar $ourts
1. State &ar court made to alle!iate cases from the courts of appeal
"1# .ot the final authority. (here*s an appeal to the $% sup ct
2. Obrien v Jones "e4ec and legis ranches appoint hearing :udges in
the State &ar $ourt#
"1# enefits of a more di!erse perspecti!e achie!ed through
non9:udicial appointment of some hearing :udges. (heir
appointments are su:ect to appro!al y the Supreme $ourt
anyway
?. (he $% Legislature and the Regulation of %ttorneys
1. &usiness and Prof $ode A BCCC9B22; F State &ar %ct
B. (he Scope of )thical Regulation
1. Giolation of a Rule of Professional Responsiility
1. =R ;.? statesD Disciplinary uthority ! lawyer admitted to
practice in this "# is sub"ect to the disciplinary authority of this "#$
regardless of where the lawyer%s conduct occurs& lawyer may be
sub"ect to the disciplinary authority of both this "# and another "#
where the lawyer is admitted for the same conduct
2. $RP$ 191CC"d# statesD Geographic Scope of 'ules ! These rules
shall govern the activities of members in and outside this state$
e#cept as members lawfully practicing outside this state may be
specifically re(uired by a "# in which they are practicing to follow
rules of professional conduct different from these rules
-. R-d A ?2"2# statesD The Standard of Care ! )roof of a violation of
a rule or statute regulating the conduct of lawyers (a* doesn%t give
rise to an implied c/a for professional negligence or breach of
fiduciary duty$ (b* doesn%t preclude other proof concerning the
duty of care or fiduciary duty and (c* may be considered by a trier
of fact as an aid in understanding and applying the standard to the
e#tent the rule was designed for the protection of persons in the
position of the claimant
"1# $omment f statesD % rule or statute that doesn*t mention a
damages remedy doesn*t gi!e rise to a c7a for lac1 of care
or fiduciary duty
/. Hizey v Carpenter "ad legal ad!ice aout <oned property#
"1# =a:orityD .either $PR nor RP$ set the standard of care so
!iolations of the $PR or RP$ do not gi!e rise to an
independent cause of action against the attorney
?. Mirabito v Liccardo "lawyer ga!e ad ad!ice to cousin to in!est in
high tech#
"1# $%PR not intended to create new ci!il c7a
"2# Hou must ha!e an independent c7a "reach of 1 or fiduciary
duty# and then you can ring in the Rules
"-# $% =inorityD though they don*t set the standard of care0 the
rules are rele!ant 7c they relate to the standard of conduct
a lawyer must meet
2. $onduct .ot )4pressly Prohiited
1. Stratore v State Bar "law student lied aout tra!el e4penses to
.H law firms#
"1# Iust ecause it*s not listed as prohiited0 doesn*t mean it*s
allowed
"2# $onduct efore you*re admitted can 1eep you out of the ar
or once you*re admitted0 it can e the asis to punish you or
throw you out
"-# (here*s no SEL for the State &ar0 no matter what the
offense
-. Reporting Giolations
1. =R ;.- statesD 'eporting )rofessional +isconduct ! a lawyer
having ,nowledge that another lawyer has committed a violation
of the ')C that raises a substantial (uestion as to that lawyer%s
honesty$ trustworthiness or fitness as a lawyer in other respects$"or
elie!es that a :udge is unfit# shall inform the appropriate
professional authority
2. $RP$ 19?CC"# statesD greements 'estricting a +ember%s
)ractice ! member shall not be a party to or participate in
offering or ma,ing an agreement which precludes the reporting of
a violation of these rules
-. R-d A ?"-# statesD )rofessional Discipline ! lawyer who ,nows of
another lawyer%s violation of applicable rules of professional
conduct raising a substantial (uestion of the lawyer%s honesty or
trustworthiness or the lawyer%s fitness as a lawyer in some other
respect must report that information to appropriate disciplinary
authorities
"1# $omment i statesD (he rule applies to lawyers whether or
not they*re in the same firm. Reporting to a senior is not
enough unless you thin1 he*ll report it to the proper
authority
/. In $% there is .E affirmati!e ethical duty to report professional
misconduct0 whereas the %&% says that the failure to inform is an
ethical !iolation in itself
/. (he %&% =odel Rules in $%
1. (he %&% rules don*t estalish disciplinary standards in $%
2. (hey ha!e not een adopted in $% and ha!e no legal force on their
own0 ut may e considered as a collateral source0 where there*s no
direct authority in $% and there is no conflict with the pulic policy
of $%
PREVENTIVE POLICING
-. %dmission standards
1. !n re "rancis #$eodore Cano "found all the loopholes to get admitted to the ar#
1. % court is not a sla!e to literal interpretation of its local rules where
in:ustice is the result
2. 3ormal Re8uirements
1. R-d A 2 statesD dmission to )ractice Law ! -n order to become a lawyer
and (ualify to practice law in a "# of admission$ a prospective lawyer must
comply w/ re(uirements of the ,# relating to such matters as education$
other demonstration of competence such as success in a bar e#amination$
and character
2. )ducation
1. =ost states re8uire an undergraduate degree and ha!e age
re8uirement
2. $%
"1# %t least 1; years old and had at least two years of college
wor1 or 5intellectual aility6 e8ui!alent
-. R-d A 20 $omment c statesD =ost states re8uire a minimum of an
undergrad degree from an accredited college and a degree from an
%&% accredited law school
/. $% recogni<es e4ceptions for non accredited law schools "$&P$ A
BCBCe-#
"1# if the student studied for / years at a law school that is
authori<ed or appro!ed to confer professional degrees and
re8uires classroom attendance for at least 2,C hrs7year
"2# a foreign law school wherein )nglish common law is not the
asis of :urisprudence
"-# in a law office in $a under the personal super!ision of a ?9
year acti!e memer of the State &ar of $%
"/# in the chamers and under the personal super!ision of a
:udge of a $% court of record and the :udge ma1es reports
"?# y instruction in law from a correspondence law school
authori<ed or appro!ed y $% to confer professional
degrees0 pro!ided it re8uires ;B/ hrs7year
"B# of y any comination of these methods
?. $% is one of ; states to permit admission to the ar w7o first
attending law school
-. &ar )4am
1. R-d A 20 $omment e statesD Hou ta1e ar courses and the ar e4am
to re!iew a large sweep of legal su:ects and legal rules0 that you
may not ha!e co!ered in school
2. =ost states and $% re8uire passage of that state*s ar as a
condition to practice law in that state
-. $% has no limit on how many times you can ta1e it. (he record
was /; y =a4cy 2ean 3iler
/. $iti<enship and Residence
1. R-d A 20 $omment f statesD Local residence and 'S citi<enship
may not e re8uired as a condition of admission or continued
memershipJ though some states ha!e re8uired an in9state office
"1# S$'S held this criteria ears no reasonale relationship to
the applicant*s aility or fitness to practice law
2. %H v Piper "Passed the ar in .>0 ut didn*t li!e in .>#
"1# .> restricts ar memership to residents 7c it*s important
for lawyers to e familiar with and committed to upholding
local interests
&' Martin v (avis
"1# In @S0 the say that a !isiting attorney shall associate local
counsel efore he or she can appear in the courts or efore
oards or commissions
"2# .on9residents are less a!ailale for many court procedures
)' Ho*ard v Babcoc+
"1# in $% it*s a ig issue aout whether legal pro should e seen
as a usiness or a profession
"1# usinesses ha!e restricti!e co!enants0 trade secrets 9
if you lea!e you can*t practice in the area0 or you
can*t use what you*!e learned from the company
?. Reciprocity
1. R-d A 20 $omment statesD (here is no limit on how many :4 a
lawyer may practice in. >alf the states allow reciprocity
2. If you pass the ar in one state and are in good standing0 you*ll e
admitted to another state ar on motion "i.e. you don*t ha!e to ta1e
the ar#
-. $% is in the ma:ority of states which re8uire an attorney licensed in
another state to pass the $% ar e4am as a condition for admission
to the ar
"1# >owe!er0 the out of state attorney is only re8uired to ta1e a
portion of the full ar e4amination
"2# %n applicant*s prior conduct while practicing law in another
state can :ustify a state ar refusal of permission to ta1e the
ar e4am in $%
/. ,A v "reidan "a woman 2$ resident was ale to got admission
to G% state ar y reciprocity#
-. Sustanti!e Re8uirements
1. %dmissions Proceedings and 2isciplinary Proceedings
1. In admissions0 the urden is on the applicant to show moral fitness0
whereas in disciplinary proceedings0 the urden is on the state ar
to ro!e that an attorney is morally unfit
2. %lmost any e!idence any e considered to determine the applicant*s
character for honesty0 integrity0 and general morality
-. =oral turpitude is loo1ed at for admission refusal
"1# 3actorsD 3raud0 dishonesty0 cheating0 promiscuity0
immorality0 gross antisocial conduct0 inaility to discharge
his duties as an attorney li1e drun1enness or pulic
rawling0 and conduct for personal gain only
2. Good =oral $haracter
1. Good moral character is the $% standard in a disarment case
"1# (o e sure he would not ostruct :ustice or e unscrupulous
as an officer of the court
"2# In e!aluating good moral character they considerD
"1# mental health
"2# honesty and integrity
"-# conduct of one*s personal0 usiness0 and social life
"/# and political eliefs
"-# (hree reasons for a good moral character re8uirement
"1# shielding clients from potential auses "misrep#
"2# safeguarding the legal system from su!ersion
"fraud#
"-# maintaining and protecting a fa!orale image of
lawyers
2. =ental >ealth
"1# $% $ompetence Rule 9 you can e found guilty of
malpractice once. Enly if it happens again0 can you e
found incompetent
"2# !n t$e Matter of -obert #' -o*e "lawyer 1illed his wife and
child and was disarred#
"1# (hough he was not guilty of the crime y reason of
mental disease0 he is found unfit to e a lawyer
"2# >is reinstatement would clearly undermine pulic
confidence and trust in the &ar and ha!e ad!erse
impact upon the pulic*s perception of the integrity
of the legal profession in !iew of his actions
1# the pulic loo1s at his acts0 not his mentality
-. >onesty and Integrity
"1# =R ;.1 statesD Bar dmission and Disciplinary +atters !
n applicant for admission to the bar$ or a lawyer in
connection w/ a bar admission application or in connection
w/ a disciplinary matter$ shall not. (a* ,nowingly ma,e a
false statement of material fact/ or (b* fail to disclose a
fact necessary to correct misapprehension ,nown by the
person to have arisen in the matter$ or fail to respond to a
lawful demand for info from an admissions or disciplinary
authority
"1# $omment statesD (he duty e4tends to persons
see1ing admission to the ar as well as to lawyers
and the rule is su:ect to the ?
th
%mendment
"2# $RP$ Rule 192CC"%# statesD 0alse Statement 'egarding
dmission to the State Bar ! member shall not ,nowingly
ma,e a false statement regarding a material fact or
,nowingly fail to disclose a material fact in connection w/
an application for admission to the State Bar
"1# 2iscussion statesD 1dmission2 includes
readmission
"-# Law students not su:ect to the =odel Rule0 only applicants
"/# $% 9 law students must register w7 the State &ar w7in three
months of entering law school
"?# 2ishonesty in ar applications is ta1en more seriously than
acts against applicants. If you are not sure0 it*s etter to
state it on the application as a 8uestion rather than hoping
they don*t find out
/. $riminal $onduct
"1# .ot e!ery criminal !iolation will result in e4clusion if the
!iolation isD
"1# not serious
"2# not repeated or continuous and
"-# not in!ol!ed w7 deceit0 dishonesty0 or other
character flaws ma1ing the person unfit to practice
law
"2# State &ar may consider acts you ha!e een ac8uitted0
pardoned0 not charged0 or for which charges ha!e een
dismissed as long as they
"1# !iolate community moral standards
"2# in!ol!e dishonesty or fraudulent conduct
"-# in!ol!e economic dishonesty for personal gain
"/# reflect ad!ersely on your fitness to practice law
"?# affect your potential duties as an officer of the court
or as a fiduciary of the client0 or
"B# constitute concealment or failure to disclose rele!ant
material to the State &ar
"-# Litigiousness 9 fed and $% courts oth ha!e this concept. If
person is deemed litigious0 then that person ecomes an
outlaw. Eutlaw is a person who is not entitled to the
protection of the law. Epen season on outlaws.
"1# (he ct will not loo1 at cases that you file and you
lose your first amendment right to petition
grie!ances
"/# Hallinan v Coitte of Bar E.ainers/ t$e CA State Bar
"lawyer participated in auto row sit9ins#
"1# his ci!il disoedience didn*t in!ol!e moral turpitude
"2# although he says he*s going to choose which rules to
oey0 the nature of his acts don*t ear a direct
relationship to his fitness to practice law
?. Social $onduct
"1# %ll of your social conduct is a!ailale for scrutiny y the ar
e4aminers
"1# use of drugs0 alcohol ause0 and financial
irresponsiility
"2# .o recent $% cases hint at the ct*s attitude towards weed
for social pleasure
"1# in the past0 growing weed for personal use was not
considered an automatic re:ection
B. Se4ual conduct
"1# Se4ual orientation or li!ing with someone are not rele!ant
to the aility and fitness to practice law
-. Political !iews
1. (he urden can e placed on the applicant to show good moral
character
2. $onst rights limit the e4ercise of discretion y ar e4aminers and
cts
-. =ere memership in an organi<ation is not a sufficient asis for
e4clusion from the ar
/. State &ar can*t re8uire disclosure of all memerships and
organi<ational affiliationsJ ut they can maintain a list of certain
organi<ations and may as1 aout them
?. State may in8uire into all 1nowing memerships in 5su!ersi!e6
organi<ations or that preach the !iolent o!erthrow of the go!t or
other ma:or crimes
B. State &ar can*t force an applicant to pro!e his loyalty to the go!tJ
ut they can re8uire that the applicant ta1e an Eath supporting the
$onst and the laws
,. (he State can deny admission to an applicant who ostructs the
in!estigation0 refuses to answer legit 8uestions aout 1nowing
in!ol!ement in organi<ations0 refuses to supply info not protected
y pri!ilege or confidentiality0 or otherwise doesn*t cooperate w7
the good moral character in!estigation
/. Racial !iews
1. Baird v A0 ">ale wanted to wor1 w7in the law as a lawyer to ha!e
all minorities deported#
"1# (he incitement of racial hatred for the ultimate purpose of
depri!ing selected groups of their legal rights shows a gross
deficiency in moral character0 particularly for lawyers who
ha!e a special responsiility to uphold the rule of law for all
persons
?. %ttorney Recommendations and 2uty to Re!eal
1. =R ;.1D see ao!e
2. $RP$ Rule 192CC"&# statesD 0alse Statement 'egarding
dmission to the State Bar ! member shall not further an
application for admission to the State Bar of a person whom the
member ,nows to be un(ualified in respect to character$
education$ or other relevant attributes
-. $RP$ Rule 192CC"$# statesD 0alse Statement 'egarding
dmission to the State Bar ! This rule shall not prevent a member
from serving as counsel of record for an applicant for admission
to practice in proceedings related to such admission
/. R-d A ?"-#D see ao!e
?. $% 9 2oesn*t re8uire you to disclose harmful info0 ut it re8uires
you to not further assist the applicant
"1# the duty to the client is superior to the duty to the ar
B. .either $% nor the %&% apply to an attorney who is acting as the
lawyer for a ar applicant 7c the attorney must act as an ad!ocate
for his client
,. Eld %&% $ode says you can*t recommend someone you don*t
personally 1now. (his has een deleted
/. %dmission to 3ederal $ourts
1. Local Rule 2.1 statesD n attorney can%t appear before the district ct
unless he is first admitted to the Bar of or permitted to practice before
that court
2. Local Rule 2.2.1D n attorney not otherwise eligible for admission to the
Central District Bar may nonetheless be granted permission to practice
before the district ct$ either on a pro hac vice basis or for the limited
purpose of representing the 3S or its agencies$ provided certain
conditions are met
-. (he 'S Supreme $ourt
1. %dmission to the ar of the 'SS$ re8uires good moral character0
acti!e practice for ? years in some :40 the endorsement of two
memers of the Supreme $ourt ar0 and the payment of a small fee
/. (he $ourts of %ppeal
1. Sets its own admissions rules su:ect to the authority of the 'SS$
2. %dmission on motion is generally allowed if you are a memer in
good standing of a district ct under the :4 of that $t of %ppeals
?. (he 2istrict $ourts
1. )ach is free to ma1e its own admission rules su:ect to the
authority of the 'SS$
2. =ost re8uire you to e a memer of the state ar where its located
?. Eligations 'pon %dmission
1. %ttorneys Eath and 2uties
1. =R ;./ statesD +isconduct ! -t is professional misconduct for a
lawyer to. (a* violate or attempt to violate the ')C$ ,nowingly
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 pre"udicial to
the administration of "ustice/ (e* state or imply an ability to
influence improperly a govt agency or official/ or (f* ,nowingly
assist a "udge or "udicial officer in conduct that%s a violation of
applicable rules of "udicial conduct or other law
"1# $omment statesD lthough a lawyer is personally
answerable to the entire criminal law$ a lawyer should be
professionally answerable only for offenses that indicate
lac, of those characteristics relevant to law practice
2. $RP$ Rule 1912C statesD ssisting$ Soliciting$ or -nducing
4iolations ! member shall not ,nowingly assist in$ solicit$ or
induce any violation of these rules of the State Bar ct
-. $S&% A BCB, statesD 5ath of dmission$ 6ndorsement on
Certificate ! 6very person admitted shall ta,e an oath to support
the 3S and C state and to faithfully discharge the duties of an
attorney to the best of his ,nowledge and ability
/. $S&% A BCB; statesD Duties of an ttorney ! support the 3S and
state const$ respect the cts$ maintain confidence$ never re"ect a
cause of the defenseless etc&
?. $S&% A B1C- statesD Disobedience of Ct 5rder/ 4iolation of 5ath
or ttorney Duties ! wilful disobedience or violation of an order
of the ct re(uiring him to do or forbear an act connected w/ or in
the course of his profession$ which he out in good faith to do or
forbear$ and any violation of the oath ta,en by him$ or of his
duties as such attorney$ constitute causes for disbarment or
suspension
B. $S&% A B1CB statesD +oral Turpitude$ Dishonesty or Corruption
-rrespective of Criminal Conviction ! The commission of any act
involving moral turpitude$ dishonesty or corruption$ whether the
act is done in the course of his relations as an attorney or
otherwise$ and whether the act is a felony or misdemeanor or not$
constitutes a cause for disbarment or suspension& -f the act is a
felony or misdemeanor$ conviction thereof in a criminal
proceeding is not a condition precedent to disbarment or
suspension from practice therefor
,. $S&% A B1CB.1 statesD dvocacy of 5verthrow of Government !
dvocating the overthrow of the 3S govt or of this State by force$
violence$ or other unconst means$ constitutes a cause of
disbarment or suspension
B. ReadmissionD Rehailitation
1. $RP$ Rule 192CCD see ao!e
2. % $% memer whose license to practice has een re!o1ed after a
disarment hearing might still e ale to return to practice after the passage
of years
1. (he applicant must e genuine in showing remorse
2. $% Sup $t is currently re!iewing a case raising the issue of what
standard must e applied for an applicant for readmission to pro!e
that he or she is now rehailitated
-. Posthumous Readmission
1. !n re Post$1o1s -eadission of C$arles P Ho*ard Sr "trying
to get him reinstated after he had died#
"1# (hough he was a champion of ci!il lierties0 he was a
lawyer w7 tragic human frailties who deser!ed disarment0
as he ac1nowledged y consenting to disarment
/. Who =ay Practice Law?
1. (he %uthori<ed Practice of Law
1. What $onstitutes the 5Practice of Law?6
1. =R ?.? $omment statesD (he definition of the 5practice of law6 is
estalished y law and !aries from one :4 to another. Limiting it
ar memers protects the pulic against rendition of legal ser!ices
y un8ualified persons. Hou can employ paraprofessionals and
delegate functions as long as you super!ise and retain
responsiility. Ho can gi!e professional ad!ice to nonlawyers
whose employment re8uires 1nowledge of law "eg. $laims
ad:usters0 social wor1ers#. Lawyers may counsel nonlawyers
appearing pro se
2. R-d A / $omment c statesD 'nauthori<ed Practice y a .onlawyer
9 % person not admitted to practice as a lawyer may not engage in
the unauthori<ed practice of law0 and a lawyer can*t assist a person
to do so
-. $% the State &ar negotiated treaties with associations representing
accountants0 an1s0 mortgage ro1ers0 and others whose usinesses
re8uire the e4ercise of legal :udgments
"1# 2efined the areas within which nonlawyers could gi!e
ad!ice w7o !iolating the unauthori<ed practice laws
"2# 2efined the areas in which licensed attorneys alone were
permitted to practice
/. $% has no official definition of the 5practice of law6
?. People e. re' La*yers !nstit1te of San (ie2o v Merc$ants
Protective Corporation "organi<ation founded to cut down legal
costs for memers#
"1# (he practice of law is not a lawful usiness for a
corporation to engage in
B. (he practice of law encompasses two distinct categories of acti!ity
"1# Representation of another efore a ct or 8uasi9:udicial
triunal or
"2# Eut of ct0 the preparation for another of documents
sustantially affecting legal rights "e4cept where lan1
forms are filled in#0 gi!ing ta4 ad!ice0 gi!ing estate planning
ad!ice0 property ad!ice or will9drafting ad!ice
2. Who may Practice Law?
1. %cti!e =emers of the &ar
"1# $R$P Rule 191CC"&#"1#9"/# statesD Definitions ! (7* Law
0irm ! 89 lawyers whose activities constitute the practice
of law and who share its profits$ e#penses and liabilitiesJ
(8* +ember ! a member of the C State Bar/ (:* Lawyer !
member of the C State Bar or one who%s in good standing
of any 3S court/ (;* ssociate ! an employee or fellow
employee who is employed as a lawyer
"2# Goluntary inacti!e status
"1# %cti!e memers aren*t continuing practice of law
ut don*t want to gi!e up memership or pay dues
"2# If you*re inacti!e0 you can*t practice. &ut you can
reacti!ate you :ust ha!e to pay what part of the ar
dues are left
"-# $osts a minimal amount to maintain the license0 so
you don*t ha!e to reta1e the ar
"/# (rying to a!oid in!oluntary inacti!e status "eg. drug
prolem#
"-# In!oluntary inacti!e status
"1# $ourt throws you out of acti!e status and they sei<e
your practice and assigns your cases and clients to
other lawyers
"2# $an happen 7c of drug prolems0 mental illness0 or
failure to respond to a notice initiating a disciplinary
hearing
"/# )meritus %ttorney
"1# $an re8uest to retire from practice e4cept for
performing free legal ser!ices w7 a 8ualified legal
ser!ice pro!ider or a lawyer referral ser!ice
2. %ttorneys %dmitted pro hac !ice
"1# R-d A -"2# statesD <#al Scope of the )ractice of Law by a
Lawyer ! lawyer currently admitted to practice in a "#
may provide legal services to a client before a tribunal or
administrative agency of another "# or the fed govt in
compliance w/ re(uirements for temporary or regular
admission to practice before that tribunal or agency
"2# $% Rules of $ourt +;- statesD %ttorney in good standing is
allowed to practice in another state on a temporary asis for
the purpose of conducting a particular case ifD
"1# an acti!e memer of the $% State &ar is associated
as an attorney of record
"2# the attorney admitted pro hac !ice is su:ect to $%
court enforcement of rules go!erning the conduct of
attorneys
"-# the attorney is a memer in good standing of another
state ar
"/# a !erified written application is made to the court y
motion0 w7 proof of ser!ice on all interested parties
"?# a fee not in e4cess of K?C if made to the State &ar
"-# $% Rules of $ourt +;- statesD %ttorney can*t ha!e pro hac
!ice ifD
"1# is a resident of $%
"2# is regularly employed in $%
"-# is regularly engaged in sustantial usiness0
professional or other acti!ities in $%
"/# see1s repeated appearances pro hac !ice and there
are no special circumstances in :ustification of the
repeated re8uests
"/# Standard of $% Sup $t
"1# (he ct said it*d e an ause of discretion unless the
:udge can come up w7 a reason why the client
shouldn*t e gi!en the counsel of his choice
"2# .ot ele!ated to a constitutional right0 ut it*s a
preference. %ll things eing e8ual0 you*ll protect the
rights of the client to get the lawyer he wants
"-# If :ust for one case0 then it*s unduly harsh to not let
you practice there. It would e wrong to deny the
client his hand9pic1ed lawyer 9 so it protects the
client*s interests
345 Sanders v -1ssell
"1# $an*t deny pro hac !ice for the wrong reasons li1e
denying the client counsel
365 Leis v "lynt
"1# (he :udge w7o a hearing held that they weren*t
going to get pro hac !ice status and ga!e no reason
why. &oth lawyers were good. S$'S said it was a
matter of local discretion so states can determine
themsel!es the standards for gi!ing ph! status
375 People v Crovedi
"1# (rial ct didn*t allow lawyer 7c he was un1nown to
him. &ut it was Ramsey $lar10 the attorney general
of the 'S. So $lar1 was allowed into the case
385 (r12o v S1perior Co1rt
"1# %n indigent L*s preference for a particular attorney0
while it is to e considered y the trial court in
ma1ing an appointment is not a determinati!e factor
re8uiring the appointment of that attorney
1# it*s wholly w7in the discretion of the trial
court
-. Registered 3oreign Legal $onsultants
"1# R-d A 20 $omment g statesD 3oreign legal consultants are
recogni<ed and the particular law of each state go!erns the
scope of their aility to practice law
"2# Bl1estien v State Bar of CA "lawyer in good standing from
Spain wants to practice in $% dealing with people who ha!e
prolems Spain*s law#
"1# It doesn*t matter what :4 law you*re practicing0
you*re still practicing so you must e a ar memer
"2# Repealed y $% Rules of $ourt +;;0 which statesD
Consultant must agree (7* to abide by the
prevailing rules concerning 0oreign Legal
Consultants$ (8* to be sub"ect to the laws of C$ (:*
to be sub"ect to the disciplinary "# of the C State
Bar and (;* to protect attorney!client privilege to
the same e#tent as attorneys admitted to practice
law in C. +ust also (7* show proof of admission
to a foreign bar$ w/ actual practice for four of the
preceding si# years and (8* good moral character
"-# Rule +.C statesD 0oreign Legal Consultant may not
(7* appear as attorney for another in any court$ (8*
prepare legal papers for another in any court$ (:*
prepare deeds$ mortgages$ or other documents
involving real property$ (;* prepare any will$ trust
or other document involving the administration of a
decedent%s estate$ (=* prepare any document
involving marital relations or child custody or care$
and (>* render professional legal advice o the law
of C or any other state or country other than the
country in which the 0LC is certified. The
certificate must be renewed annually
/. Eut9of State %ttorney %ritration $ounsel
?. Professional Law $orporations
"1# =R ?./"d# statesD )rofessional -ndependence of a Lawyer !
lawyer shall not practice w/ or in the form of a
professional corp or assoc authori?ed to practice law for a
profit$ if. (7* a nonlawyer owns any interest therein$ e#cept
that a fiduciary representative of the estate of a lawyer
may hold the stoc, or interest of the lawyer for a
reasonable time during administration/ (8* a nonlawyer is
a corporate director or officer thereof/ or (:* a nonlawyer
has the right to direct or control the professional "udgment
of a lawyer
"2# $RP$ Rule 191CC"&#"?# statesD Shareholder ! a
shareholder in a professional corporation pursuant to B)C
@ >7>A
"-# In $%0 is a way of a!oiding malpractice liaility
"1# Hou can uy a certain numer of onds and that
sustitutes for you eing co!ered y malpractice
insurance
"/# Cappiello v Boyle "the PL$ forgot to register w7 the state#
"1# (he professional law corporation forgot to register
with the state
"2# Since they technically didn*t e4ist0 they then did not
e4ist in $% and therefore couldn*t practice law
1# (he contracts w7 their clients were !oid
so there is no interference of contract
"-# Ris1 of criminal liaility0 since 1 is !oid you can*t
collect fees on the 1
"/# $S&% A B1B1 statesD 6very law corp must apply to
the State Bar for a certificate of registration$ which
must be renewed annually& B/o it$ the corp is not
entitled to practice law
B. Suspended Lawyers
"1# $RP$ Rule 19-11 statesD 6mployment of Disbarred$
Suspended$ 'esigned$ or -nvoluntarily -nactive +ember !
member shall not employ$ associate professionally w/$ or
aid a person the member ,nows or reasonably should ,now
is a disbarred$ suspended$ resigned$ or involuntarily
inactive member on behalf of the member%s client&
member may however if it%s restricted to research$ drafting
or clerical activities&
"2# 2on*t want to 1eep the lawyer completely out of the loop
7c when they come out of suspension0 they may e so far
ehind the law as to render them incompetent. &ut want to
punish them enough so they don*t miseha!e again
"-# Suspended lawyer cannot render legal ad!ice to the client0
ut he can gi!e legal ad!ice to the acti!e lawyer
"/# $lient and acti!e must e gi!en notice that the guy is
suspended
"?# Cra*ford v State Bar of CA "dad was recommended for
disarment ut they were partners#
"1# 2ad 1ept practicing as a ta4 consultant and shared
profits after he was disarred
"2# 2ad acted independently of his son oth in regard to
matters in!ol!ing legal ad!ice0 and to matters that
can e characteri<ed as such 7c performed in a law
office0 and that son merely had 1nowledge of the
e4istence of them ut not of their progress or
disposition
,. Go!ernment Lawyers
"1# % go!t lawyer who is licensed in one state may appear on
ehalf of the 'S in any court0 e!en though the attorney isn*t
license in that state of federal court
;. Lawyers Licensed in 3ederal $ourts
"1# $% cannot regulate the re8uirements for appearances efore
fed cts located in $%
"2# McC1e 9 whether a lawyer not licensed in $% may appear
in a $% case to remo!e the case to a fed ct not located in
$%. &ecause the appearance is in a $% ct0 $% determines
whether such appearances should re8uire $% licenses
"-# R-d says that fed district cts shouldn*t ha!e a re8uirement
that lawyers ha!e a licence to practice in the state where the
ct sits
+. Iudges
"1# Prohiits ct commissioners0 :udges0 and county cler1s from
practicing law while they remain in the office
"2# If you*re a :udge in $%0 you*re not entitled to practice law
e!en though they are memers of the ar
"1# )4ception 9 small claims court :udges
1C. $ertified Law Students
"1# People v Perez "L appealed from con!iction of second
degree urglary and a certified law student acted under
super!ision of a deputy pulic defender#
"1# $% says that the student must e certified y the ar
and in good standing in his or her second year at
least
1# student may negotiate for the client su:ect
to final appro!al y the super!ising attorney0
and may gi!e legal ad!ice to the client
2# can appear on ehalf of the client in
depositions and can prosecute minor criminal
offenses with a ma4 penalty or fine e8ual to
the ma4 fine for infractions in $%
11. Group Legal Ser!ices Program
"1# % group rings lawyers and clients together0 lawyers charge
less ut ma1e up the difference y way of !olume
"2# People e. rel' La*yers !nstit1te of San (ie2o v MPC "see
ao!e#
12. (he Right to Proceed Pro Se "representing yourself#
"1# $o9counsel 9 attorney can handle any part of the trial L
re8uests and can ta1e o!er the case if the L gets disrupti!e
and needs to e remo!ed
"1# (a1es away the argument that he didn*t ha!e legal
training and didn*t 1now what was going on
"2# Standy counsel 9 cannot gi!e legal or other ad!ice to the
client and does not participate in the trial. &ut if the L is
remo!ed0 he can ta1e o!er the representation and there*s no
automatic mistrial
"-# %d!isory counsel 9 assist the L y gi!ing legal ad!ice and
support ut does not participate in the trial
"/# If it*s a death penalty case0 there automatically has to e a
retrial
345 "aretta
"1# If you let him represent himself0 it*s gonna ta1e
fore!er 7c he has no legal education
"2# If you let him represent himself and he is
incompetent it has to e re!ersed
"B# Barn1 ">e had no legal training and couldn*t spea1
)nglish#
"1# (he ct didn*t thin1 this was enough to e
incompetent. Hou only ha!e to ha!e the
competence to wai!e counsel not to represent
yourself
",# People v 9arcia "L wai!ed his right to counsel and
represented himself and was con!icted of first degree
murder#
1# % L who e4ercises his right to represent
himself cannot later complain that the 8uality
of his defense amounted to a denial of the
effecti!e assistance of counsel
2. (he 'nauthori<ed Practice of Law
1. Lawyers Practicing Law in I4s Where they %re .ot Licensed
1. =R ?.?"a# statesD 3nauthori?ed )ractice of Law 9 lawyer shall
not practice law in a "# where doing so violates the regulation of
the legal profession in that "#
2. $RP$ Rule 19-CC"&# statesD 3nauthori?ed )ractice of Law !
member shall not practice law in a "# where to do so would be in
violation of regulations of the profession in that "#
-. R-d A -"-# statesD <#al Scope of the )ractice of Law by a Lawyer !
lawyer currently admitted to practice in a "# may provide legal
services to a client at a place w/in a "# in which the lawyer isn%t
admitted to the e#tent that the lawyer%s activities arise out of or
are otherwise reasonably related to the lawyer%s practice
/. Birbro*er/ Montalbano/ Condon : "ran+ "out of state lawyer in
$%#
"1# (he law is clear that no one may reco!er compensation for
any part of the ser!ices as an attorney in $% unless he was a
memer of the state ar at the time those ser!ices were
performed
"2# Practice of law entails sufficient contact with the $% client
to render the nature of the legal ser!ice a clear legal
representation
"1# 3ortuitous or attenuated contacts won*t sustain a
finding that the unlicenced lawyer practiced in $%
"2# (hey decline to pro!ide a comprehensi!e list of what
acti!ities constitute sufficient contact must e
decided on a case y case asis
"-# $ompetence in one :4 does not guarantee competence in
another
"/# 3our !ariales
"1# Location7residence of client
"2# %pplicaility of the law
1# $% or another state
"-# Location7residence of the lawyer
"/# Presence
1# Is presence actual or !irtual
2# If you eliminate the presence re8uirement0
then the other elements don*t matter
-# Hou ha!e to ha!e enough to ma1e it
sufficient and they ha!e to e the type to
ma1e it enough
/# =ere fortuitous or attenuated contacts will
not sustain a finding that the unlicenced
lawyer practice law in $%
"?# $R$P 12;2./ statesD -f the legal counsel you want at an
arbitration hearing is not of the C bar$ the a certificate
must be filed with the C bar& This is the pro hac vice rule
again& The state bar isn%t going to e#ercise discretion but
simply accept the certificate
"1# =ust state the attorney is not a $% resident
"2# is a memer in good standing of another state ar
"-# agrees to e su:ect to the :4 of $% to the same
e4tent as $% ar memers
"/# the name of the acti!e memer of the $% ar who is
the attorney of record
?. Condon v McHenry "@at< prepare $ondon*s will ut he was not a
memer of the ar nor did he apply for pro hac !ice#
"1# Proate code ma1es specific allowance for a nonresident to
ser!e as e4ecutor of a will su:ect to proate in $%. (he
e4ecutor has the right to choose independent counsel to
perform the necessary legal ser!ices on ehalf of the estate
"2# It*s insular to assume that only $% lawyers can e trained in
$% law
"-# In the !ery limited setting aritration0 this o!errules
Birbro*er and only in that setting "not of much comfort#
B. !n t$e Matter of 9eor2e ;' M1r2atroyd "$% lawyers solicited in
I. for clients from a plane crash and said they were I. lawyers#
"1# Generally0 the practice of targeted mail solicitations of
prospecti!e clients y lawyers is permitted0 howe!er0 here
I. didn*t appro!e of the form and content
"2# $ourt issued in:unction to stop their solicitation
"-# S$apero 9 permits targeted mailing
2. .onlawyers Practicing Law M %iding and %etting .on9Lawyers
1. =R ?.?"# statesD 3nauthori?ed )ractice of Law ! lawyer shall
not assist a person who is not a member of the bar in the
performance of activity that constitutes the unauthori?ed practice
of law
2. $RP$ 19-CC"%# statesD 3nauthori?ed )ractice of Law ! member
shall not aid any person or entity in the unauthori?ed practice of
law
-. R-d A / statesD 3nauthori?ed )ractice by a Conlawyer ! person
not admitted to practice as a lawyer may not engage in the
unauthori?ed practice of law$ and a lawyer may not assist a person
to do so
/. !n re Carlos "non9attorney to negotiate on ehalf of a creditor
client#
"1# Wor1 of nonlawyers must e super!ised y an attorney. If
the wor1 of the non9attorney employee of a law firm stands
on its own0 such wor1 constitutes the unauthori<ed practice
of law
?. Estate of Mar+s "assisted in preparing her will y her non9lawyer
friends#
"1# % lawyer preparing a will cannot ha!e designated himself a
eneficiary so the non9attorneys don*t get what =ar1s
wanted to lea!e them
"2# (he paramount duty of the ct is to gi!e effect tot the
testator*s intent so the ct only !oided the portions relating
to the non9attorneys
B. People v Landlords Professional Services "e!iction ser!ice offered
to e!ict and sent in their 5counselor6 and ga!e ad!ice#
"1# (hey imply that their ser!ices were not limited to clerical
functions unauthori<ed practice of law
-. Lawyer Simultaneously )ngaging in %nother &usiness or ProfessionD 2ual
Practice
1. %n attorney may e ound y legal ethics despite the fact that he
may ha!e een performing ser!ices under another professional
license
2. !n re Pappas "lawyer7$P% got accounting clients to in!est then
when it went ad0 he denied any attorney9client relationship
"1# can ad!ertise oth professions ut that doesn*t eliminate any
ethical prolems that remain in eing in oth professions
"2# (he asence of an articulated attorney9client relationship on
a transaction doesn*t preclude a finding that he was
oligated to e4ercise his professional legal :udgment on the
client*s ehalf
"-# Generally0 there*s no reason why a lawyer who is also a
$P% or a psychologist or psychiatrist cannot practice oth
professions0 especially if there is no o!erlap tw the two
professional usinesses
-. >ow is the client to 1now under which profession you are acting?
/. Lawyers and .on9Lawyers in &usiness (ogether
1. =R Rule ?./"# statesD 3nauthori?ed )ractice of Law ! lawyer
shall not assist a person who is not a member of the bar in the
performance of activity that constitutes the unauthori?ed practice
of law
2. $RP$ Rule 19-1C statesD 0orming a )artnership w/ a Con!lawyer
! member shall not form a partnership w/ a person who is not a
lawyer if any of the activities of that partnership consist of the
practice of law
"1# 2iscussionD (his is not intended to go!ern lawyer acti!ities
which cannot e considered to constitute the practice of law
-. R-d A 1C"1# and "2# stateD Limitations on Conlawyer -nvolvement
in a Law 0irm ! nonlawyer may not own any interest in a law
firm$ and a nonlawyer may not be empowered to or actually direct
or control the professional activities of a lawyer in the firm&
lawyer may not form a partnership or other business enterprise w/
a nonlawyer if any of the activities of the enterprise consist of the
practice of law
/. )4periment 9 the 2istrict of $olumia altered its rule in fa!or of lay
partnerships in law firms %&% is monitoring the outcome
"1# what they do in 2$ is allowed0 ut disallowed in $%. So
partners that recei!e profits from oth firms are o1ay from
2$0 ut are !iolating $% rule of mi4ing legal and nonlegal
?. Lawyers Splitting 3ees With .onlawyers
1. =R ?./"a# statesD 3nauthori?ed )ractice of Law ! lawyer shall
not practice law in a "# where doing so violates the regulation of
the legal profession in that "#
"1# $ommentD Protects the pulic from un8ualified
professionals. 2oes not prohiit gi!ing professional ad!ice
to nonlawyers or delegating7super!ising duties to nonlawyer
2. $S&% Rule19-2C"%# statesD 0inancial rrangements w/
Conlawyers ! Ceither a member nor a law firm shall directly or
indirectly share legal fees w/ a person who is not a lawyer e#cept
that. (7* payment of money after the member%s death to the
member%s estate or to specified persons(s*/ (8* when completing
unfinished wor, of a deceased member they may pay the estate/
(:* can include nonlawyer employees in a compensation$ profit!
sharing$ or retirement plan/ or (;* a member may pay a prescribed
registration$ referral$ or participation fee to a lawyer referral
service established in accordance with the State Bar of C
-. R-d A 1C"-# statesD Limitations on Conlawyer -nvolvement in a
Law 0irm ! lawyer or law firm may not share legal fees w/ a
person not admitted to practice as a lawyer$ e#cept that. (a*
payment to dead lawyer%s estate/ (b* finishing a dead lawyer%s
wor, you can pay his estate and (c* can include nonlawyers
employees in a compensation or retirement plan$ even though the
plan is based in whole or in part on a profit!sharing arrangement
/. >=E model 9 is an e4ample of professionals and nonprofessionals.
Lawyers don*t want that model 7c you ha!e accountants deciding
whether someone li!es or dies. It*s inconsistent with the notion of
deli!ering responsiilities y a fiduciary
B. Referral from one Lawyer to another Lawyer
1. $% has a forwarding fee or referral fee
"1# Hou can send the case to another law firm0 ut the other
firm has to agree to recei!e less money. (he total ill
cannot e4ceed the regular price if it had stayed at the
original firm
,. %ncillary &usinesses and Lay In!estors
1. =R ?., statesD 'esponsibilities 'egarding Law!'elated Services !
(a* lawyer won%t be sub"ect to the ')C w/ respect to the
provision of law!related services if the law!related services are
provided. (7* by the lawyer in circumstances that are not distinct
from the lawyer%s provision of legal services to clients or (8* by a
separate entity controlled by the lawyer individually or w/ others if
the lawyer fails to ta,e reasonable measures to assure that a
person obtaining the law!related services ,nows that the services
of the separate entity are not legal services and that the
protections of the client!lawyer relationship do not e#ist& "b* 1law
related services2 are services that might reasonably be done in
con"unction w/ and in substance are related to the provision of
legal services$ and that are not prohibited as unauthori?ed
practice of law when provided by a nonlawyer
2. R-d A 1CD see ao!e
-. %ncillary usinesses pro!ide legal clients w7 the comined e4pertise
of many professionals in a one stop shopping pac1age that can
reduce the total cost of such ser!ices
/. &ecause they must e 1ept distinct0 7c they don*t pro!ide legal
ser!ices0 and 7c they don*t interfere with the independent :udgment
of the lawyers0 they do not !iolate the unauthori<ed practice of law
rules
?. $% has remained silent aout ancillary usinesses ut %&% Rule
?., "pg 2--# 9 ancillary usinesses raise confidentiality prolems
and water down lawyering
"1# old rule prohiited all ancillary usinesses unless under !ery
specific circumstances
"2# it lasted one year and was repealed of 1+C to 1;-
"-# .ow under the new rule ?., ancillary usinesses are
permitted as long as you
"1# dual professions "in house model# 9 if it*s not clear at
any gi!en moment which profession you are eing0
then the client is at ris1 7c he won*t 1now when it*s
confidential or not. (here may also e higher illing
"2# separate entity model 9 the client might not 1now
what the separate distinction is. (he policy is to
ma1e sure that the client is informed. %s long as a
nonlawyer can pro!ide that same ser!ice0 then it can
8ualify as an ancillary usiness
1# as long as the ancillary usiness is not gi!ing
legal ser!ices0 it*s o1ay
B. %ncillary usinesses were a good way for lawyers to ma4imi<e their
ser!ices to clients
7' Arnold and Porter
"1# )stalished outside usinesses run y lay people who will
do wor1 and the lawyers get profit from those usinesses.
"2# It*s not fee splitting 7c the ancillary usinesses don*t do
legal wor1. (hey do estate planning0 tra!el0 whate!er they
can define as not eing the practice of law
"-# (he law firms created these usinesses and therefore own
them and get the profit
"1# the law firm can send usiness to the ancillary
usiness
"2# if people from the outside go to the ancillary
usiness and they refer them to the law firm0 this is
seen as wrongful solicitation
;. Lawyers Restricting the Practice of Law
1. R-d A 1- statesD 'estrictions on the 'ight to )ractice Law ! -n
settling a client claim$ a lawyer can%t offer or enter into an
agreement that restricts the right of the lawyer to practice law$
including the right to represent or ta,e particular action on behalf
of other clients
2. )mployment Epportunities
"1# =R Rule ?.B"a# statesD 'estrictions on 'ight to )ractice !
lawyer shall not participate in offering or ma,ing a
partnership or employment agreement that restricts the
right of a lawyer to practice after termination of the
relationship e#cept an agreement concerning benefits upon
retirement
"1# $ommentD it non only limits their professional
autonomy ut also limits the freedom of clients to
choose a lawyer
"2# $RP$ Rule 19?CC statesD greements 'estricting a
+ember%s )ractice ! (* member can%t ma,e an
agreement$ whether in connection w/ the settlement of a
lawsuit or otherwise$ if the agreement restricts the right of
a member to practice law$ e#cept that this rule shall not
prohibit such an agreement which (7* is a part of an
employment$ shareholders%$ or partnership agreement
among members provided the restrictive agreement doesn%t
survive the termination of the employment$ shareholder$ or
partnership relationship or (8* re(uires payments to a
member upon the member%s retirement from the practice of
law& (B* member shall not be a party to or participate in
offering or ma,ing an agreement which precludes the
reporting of a violation of these rules
"-# R-d A 1-"1# statesD 'estrictions on the 'ight to )ractice
Law ! lawyer can%t enter into a law!firm agreement that
restricts the right of the lawyer to practice law after
terminating the relationship$ e#cept for a restriction
incident to the lawyer%s retirement&
"/# Ho*ard v Babcoc+ "agreement that firm would w7hold
enefits from attorneys that left to start their own firm#
"1# (he restraint of competition among partners is o1
only to the e4tent it protects the reasonale interests
of the usiness see1ing the restraint
1# thus an asolute an on competition w7 the
partnership would e per se unreasonale
2# lawyers may not inhiit competition y
ma1ing the penalties for lea!ing so
unreasonale as to depri!e clients of their
choice of counsel and render lawyers
indentured ser!ants
-. Settlements
"1# =R Rule ?.B"# statesD 'estriction on 'ight to )ractice !
lawyer shall not participate in offering or ma,ing an
agreement in which a restriction on the lawyer%s right to
practice is part of the settlement of a controversy between
private parties
"2# $RP$ Rule 19?CC"%#D see ao!e
"-# R-d A 1-"2# statesD 'estrictions on the 'ight to )ractice
Law ! -n settling a client claim$ a lawyer may not offer or
enter into an agreement that restricts the right of the
lawyer to practice law including the right to represent of
ta,e particular action on behalf of other clients
ESTABLISHING A LAW PRACTICE
?. %ttracting and %ccepting $lients
1. Law 3irm .ame 2esignations
1. =R ,.? statesD 0irm Cames and Letterheads ! (a* lawyer shall not use a
firm name$ letterhead or other professional designation that violates rule
D&7& trade name may be used by a lawyer in private practice if it
doesn%t imply a c#n w/ a govt agency or w/ a public or charitable legal
services organi?e (b* law firm w/ offices in more than one "# may use
the same name in each "#$ but identification of the lawyers in an office of
the firm shall indicate the "# limitations on those not licensed to practice
in the "# where the office is located (c* The name of a lawyer holding a
public office shall not be use in the name of a law firm$ or in
communications on its behalf$ during any substantial period in which the
lawyer isn%t actively and regularly practicing w/ the firm (d* Lawyers may
state or imply that they practice in a partnership or other organi?ation
only when that is the fact
1. $ommentD % firm may e designated y the names of all or some of
its memers0 y dead memers if there*s een continuing succession
in the firm*s identity or y a trade name such as the 5%&$ Legal
$linic6. Lawyers sharing office facilities ut who aren*t partners
can*t call themsel!es 5Smith and Iones6 7c that implies partnership
2. =R ;./"e# statesD +isconduct ! -t is professional misconduct for a lawyer
to state or imply an ability to influence improperly a govt agency or
official
-. $RP$ Rule 19/CC"%#"1# statesD dvertising and Solicitation ! 0or
purposes of this rule$ 1communication2 means any message or offer made
by or on behalf of a member concerning the availability for professional
employment of a member or a law firm directed to any former$ present$ or
prospective client$ including but not limited to any use of firm name$ trade
name$ fictitious name$ or other professional designation of such member
or law firm
1. Standard B !iolationD a communication in the form of a firm name0
trade name0 fictitious name0 or other professional designation which
states or implies a relationship tw any memer in pri!ate practice
and a go!t agency or a pulic or non9profit legal ser!ices
organi<ation
2. Standard , !iolationD a communication which states or implies that
a memer has a relationship to any other memer or a law firm as a
partner or associate0 or officer or shareholder pursuant to &P$ A
B1BC9B1,2 unless such relationship in fact e4ists
-. Standard ; !iolationD a communication which states or implies that
a memer or law firm is 5of counsel6 to another memer or a law
firm unless the former has a relationship w7 the latter "other than as
a partner or associate0 or officer of shareholder pursuant to &P$ A
B1BC9B1,2# which is close0 personal0 continuous0 and regular
/. Standard + !iolationD a communication used y a memer or law
firm in pri!ate practice which differs materially from any other such
designation used y such memer or law firm at the same time in
the same community
/. R-d A +"1# and "2# stateD Law!)ractice 5rgani?ations in General ! (7*
lawyer may practice as a solo practitioner$ as an employee of another
lawyer or law firm$ or as a member of a law firm constituted as a
partnership$ professional corporation$ or similar entity (8* lawyer
employed by an entity described in (7* is sub"ect to applicable law
governing the creation$ operation$ management$ and dissolution of the
entity
?. %ny name may e used so long as it does not misrepresent0 confuse0
decei!e0 mislead0 or create un:ustified e4pectations in the pulic
2. Pulicity and %d!ertising
1. (he (raditional Rules of )ti8uette
1. $S&% A B12+ statesD Buying Claim as +isdemeanor ! 6very
attorney who$ either directly or indirectly$ buys any evidence of
debt or thing in action$ w/ intent to bring suit thereon$ is guilty of
a misdemeanor& -t%s punishable by imprisonment up to > mos$ or a
fine up to E8$=AA or by both
2. Soliciting 9 pulicity0 ad!ertising0 solicitation
"1# Pulicity 9 news paper wants to do a story on you
"2# %d!ertising 9 you call them tell them how good you are "t!0
maga<ine0 radio0 flyers#
"-# Solicitation 9 go out and stop people and tell them you*re a
lawyer and gi!e your card. Self ad!ertising
-. Rationale for anti9solicitation rules
"1# it lowers the reputation of lawyers and the law
"2# it turns the profession of the law into a common trade or
usiness
"-# facilitates the corruption of pulic officials
"/# it causes disrespect for the law
"?# encourages the misrepresentation of a lawyer*s ailities
"B# it suggests an attorney has improper influence on cts
",# it stirs up litigation including much that is aseless or
fraudulent
";# raises the cost of legal ser!ices0 encourages lawyers to
under9represent clients etc
/. $ommon law had anti9litigation ias
"1# - common law crimes
"1# &arratry 9 the practice of stirring up litigation
1# $% Penal $ode A 1?; 9 e4citing groundless
:udicial proceedings
2# $%$E A 1?+ 9 at least three times will lead
to punishment. 'sing the legal process for
harassing and annoying people
"2# $hamperty 9 argain where a -
rd
person has an
interest in on9going litigation and so they continue
the litigation
1# $ontingent fees constitute an e4ception to
the common law crime of champerty
"-# =aintenance 9 li1e champerty ut it*s the
unauthori<ed interference in a suit in which the
person has no interest y supplying money or other
aid
"2# Litigation is an e!il that shouldn*t e encouraged e4cept y
the parties in!ol!ed
"-# %d!ertising disli1ed
"1# 2eases the legal profession 9 it ma1es it li1e a fish
mar1et or car sales
"2# Raised the cost of legal ser!ices 7c of the lawyer*s
cost of ad!ertisement
"-# >arm to the solicited client
1# E!erreaching 9 people pressured to sign up
with lawyers "li1e in9person solicitation#
2# E!ercharging 9 client usiness has to assume
ad costs
-# 'nderrepresentation 9 once the lawyer gets
the lawsuits0 they won*t ha!e enough staff to
handle it
/# 3raudulent claims and misrepresentations
"/# Study 9 found that people li1e the general idea of
ad!ertising0 ut not the particular ad!ertiser
1# (he person on the commercial should not e
the one going into court 7c seen as not
professional
"/# %nti pulicity and ad!ertising rules
"1# 21C1 921C- =odel rules go on and on aout the ad
effects of ad!ertising. (hese are no longer !alid
2. Loopholes for permitting solicitation
1. %&% rules redrafted to allow solicitation for non fee paying clients
2. (hey can ha!e a single line in the classified section of phone
directory
-. $an freely solicit a close friend0 relati!e and former client if the
ad!ice is germane to the former employment
"1# $lass distinctions had an impact on the rules
"2# %d!ertising and soliciting 9 %&% code prohiited
solicitation unless it was to friends0 relati!es0 and former
clients
"1# 3riends and relati!es 9 if you grew up in a
community where no one was a lawyer0 then other
lawyers couldn*t solicit your usiness. If it was a
community where there were lawyers0 then there
was no rules restricting it
"-# Law lists 9 a oo1 "eg. %ttorney*s Register#. Pulishers
paid %&% for permission to pulish this oo1 that contains
names and iographies of selected lawyers of prominence
and firms of stature
"1# Solo practitioners don*t get into these lists0 only
ma:or firms not fair
"/# 3riends 9 :oining country clus and ta1ing a ta4 deduction
for it and e!eryone you meet at the clu is a friend so you*re
soliciting them ta4 free
"1# $riminal lawyers and tort lawyers didn*t really
enefit
/. $an :oin a country clu0 get a ta4 write9off0 and then solicit other
memers
?. $an e in ar sponsored or appro!ed lawyer referral programs
B. $an attract clients for pulic interest
,. $an ha!e their names and the nature of the practice included in
officially sponsored law lists
-. 1+BCNs 3irst amendment protects group legal ser!ices
1. $onst protection in the right of people to assemle into
organi<ations and ad!ise one another concerning their legal rights
2. S$'S says the state cannot
"1# Prohiit an organi<ation from gi!ing legal ad!ice to its
memers
"2# Pre!ent the organi<ation from de!eloping info regarding a
case and turning that info0 along w7 the name of in:ured
memers0 to attorneys
"-# Prohiit organi<ation memers from transporting in:ured
memers to the office of a lawyer and recei!ing
compensation for time and out of poc1et e4penses
"/# Prohiit the organi<ation from negotiating lower attorney
fees
/. 1+,CNs attac1s on ad!ertising restrictions
1. Shift toward allowing ad!ertising
2. B1tton/ Brot$er$ood/ <nited Mine ;or+ers/ and <nited
#ransportation <nion made it clear that the right to associate
included the right to an together to create group legal ser!ice
plans e!en for commercial purposes0 it was also clear that the right
to associate included the right to e4ercise free e4pression y
ad!ertising
?. Late 1+,CNs (he Right to %d!ertise
=' Millsber2
"1# %RE% distriuted pulications and stated that its memers
could get free legal ad!ice from him
"2# >e was found to ha!e solicited professional employment y
ad!ertising y using the maga<ine to ad!ertise his name0 his
s1ills and the fact that he was a memer of the $% State &ar
>' B1s$an
"1# 2isseminated to the media a !ariety of laudatory statements
aout his aility and personal accomplishments as an
attorney
"2# >is references to himself in laudatory terms as a specialist in
!arious fields of law !iolated oth the spirit and letter of
rule 2
"1# % memer of the state ar shall not solicit
professional employment y ad!ertisement or
otherwise
&' ,alentine v C$ristensen
"1# When the ar see1s to discipline an attorney for a
communication incident to protected speech0 in addition to
showing that the attorney intended y his communication to
generate usiness for his law practice0 it must demonstrate
that the communication or part thereof was principally
directed toward this end
"2# Giolation of rule 2 would re8uire a showing of either
"1# (he material aout the attorney was principally
directed at persuading the recipients to hire him in
his capacity as an attorney
"2# Er the material in the pamphlets was principally
directed at generating lecture dates so that he could
then procure clients from the lecture audiences
"-# =ere wilfulness0 either a desire to solicit usiness or
sustantial certainty that the ad would generate usiness0 is
the only state of mind the ar need ha!e demonstrated
)' Bates
"1# =odern approach to ad!ertising and solicitation
"2# $onstitutional analysis
"1# %d!ertising y lawyers can*t e su:ected to a
lan1et suppression0 ut must e regulated only if it
is decepti!e or confusing
"2# (he term 5legal clinic6 is not decepti!e or confusing
"-# %d!ertising 5!ery reasonale prices6 is permissile if
it is accurate
"/# (he ads don*t ha!e to state that some of the ser!ices
performed0 such as otaining name changes0 do not
re8uire a lawyer
"?# %nd dignity cannot e a standard used y the ar to
regulate lawyer ads
"-# %&% now said that ads for routine legal ser!ices were now
permissile in newspapers
4' !n re -MJ
"1# =ailing professional announcement cards to persons other
than lawyers0 clients0 former clients0 personal friends0 and
relati!es were permissile
B. $ourts are split on lawyer access to police0 go!t0 and other records
from which lists of potential clients could e constructed
"1# States ha!e legitimate pri!acy interests and its regulation is
reasonale
7' Jacoby and Meyers
"1# $an cut costs to clients y streamlining
"1# >iring paralegals under the super!ision of lawyers
allows for routine tas1s to e done cheaper
"2# If they only do routine cases0 they can de!elop
procedures to handle those routine cases
1# paralegal filling out forms and the lawyer
loo1 it o!er
"-# =eets demands of the middle class who can*t afford
more e4pensi!e attorneys
8' ,A State Board P$aracy
"1# o!erruled ,alentine
"2# in!alidate state rules prohiiting lawyers from ad!ertising in
newspapers and other media
B. Regulating $ontent
1. =R ,.1 statesD Communications Concerning a Lawyer%s Services !
lawyer shall not ma,e a false or misleading communication
about the lawyer or the lawyer%s services& communication is
false or misleading if it (a* contains a material misrep of fact or
law$ or omits a fact necessary to ma,e the statement considered a s
while not materially misleading/ (b* is li,ely to create an
un"ustified e#pectation about results te lawyer can achieve$ or
states or implies that the lawyer can achieve results by means that
violate the ')C or other law/ or (c* compares the lawyer%s
services w/ other lawyers% services$ unless the comparison can be
factually substantiated
"1# $ommentD (his go!erns all communications 9 whate!er
means are used to ma1e 1nown a lawyer*s ser!ices
2. =R ,.2 statesD dvertising ! (a* lawyer may advertise services
through public media$ such as a phone or legal directory$
newspaper or other periodical$ outdoor advertising$ radio or tv$ or
through written or recorded communication (b* copy or
recording of an ad or communication shall be ,ept for two years
after its last dissemination along w/ a record of when and where it
was used (c* lawyer shall not give anything of value to a person
for recommending the lawyer%s services e#cept he may (7* pay the
reasonable costs of ads permitted (8* pay the usual charges of a
not!for!profit lawyer referral service or legal service org and (:*
pay for a law practice (d* ny communication shall include the
name of at least one lawyer responsible for its content
-. $RP$ Rule 19/CC"%#"2#9"/# stateD dvertising and Solicitation !
(* Communication means any message or offer made by or on
behalf of a member concerning the availability for professional
employment of a member or a law firm directed to any former$
present$ or prospective client including (8* any stationery$
letterhead$ business card$ sign$ brochure$ or other comparable
written material describing such member$ law firm$ or lawyers (:*
any ad (regardless of medium* of such member or law firm
directed to the general public or any substantial portion thereof
(;* any unsolicited correspondence from a member or firm
directed to any person or entity
/. $RP$ Rule 19/CC"2# statesD communication or a solicitation
shall not (7* contain any untrue statement or (8* contain any
matter$ or present or arrange any matter in a manner or format
which is false$ deceptive$ or which tends to confuse$ deceive$ or
mislead the public or (:* omit to state any fact necessary to ma,e
the statements made$ in the light of circumstances under which
they are made$ not misleading to the public or (;* fail to indicate
clearly$ e#pressly$ or by conte#t$ that it is a communication or
solicitation$ as the case may be or (=* be transmitted in any
manner which involves intrusion$ coercion$ duress$ compulsion$
intimidation$ threats$ or ve#atious or harassing conduct (>* state
that a member is a 1certified specialist2 unless the member holds
a current certificate as a specialist
?. $RP$ Rule 19/CC")# statesD The Board of Governors will adopt
the standard which shall only be used as presumptions affecting
the burned of proof in disciplinary proceedings& These are
binding upon all members
B. $RP$ Rule 19/CC"3# statesD member shall retain for two years a
true and correct copy or recording of any communication made by
written or electronic media& 3pon written re(uest$ the member
shall ma,e such copy or recording available to the State Bar
"1# Standard ? !iolationD a communication e4cept professional
announcements0 see1ing professional employment for
pecuniary gain0 which is transmitted y mail "on en!elope
too# or e8ui!alent means which doesn*t ear the word
5%d!ertisement06 or 5.ewsletter6 or similar words in 12 pt
print on the first page
"2# Standard 12 !iolationD a communication0 e4cept
professional announcements0 in the form of an ad primarily
directed to see1ing professional employment primarily for
pecuniary gain transmitted to the general pulic y mail or
t!0 radio0 newspaper or maga<ine which does not state the
name of the memer responsile for the communication. If
it*s for a law firm0 it shall state the name of at least one
memer responsile for it
"-# Standard 1? !iolationD a communication which states or
implies that a memer is ale to pro!ide legal ser!ices in a
language other than )nglish unless the memer can actually
do it or the communication also states in the language of the
communication "a# the employment title of the person who
spea1s such language and "# that the person isn*t a memer
of the State &ar of $%0 if that*s the case
,. $S&% A B1?,.1 statesD Co ad shall have false$ misleading or
deceptive statements or omit to any necessary fact to ma,e the
statements made not false$ not misleading$ and not deceptive
;. 3actual info in ads0 such as name0 date of irth0 fees for routine
legal ser!ices0 fields of practice0 offices held0 articles or oo1s
pulished0 military ser!ice0 memership in professional and pri!ate
organi<ations0 degrees etc0 is permitted
+. Central H1dson says the go!t may freely regulate commercial
speech that concerns unlawful acti!ity or that is false or misleading
"1# $ommercial speech that doesn*t fall into those categories
may e regulated if the go!t satisfies a test
"1# (he speech in!ol!ed in the case is commercial
speech entitled to const protection
"2# (he go!t can assert a sustantial interest in support
of its regulation limiting the speech
"-# (he go!t can demonstrate that the restriction on
commercial speech directly and materially ad!ances
that interest
"/# (he regulation must e narrowly drawn so that the
e4tent of regulation is in reasonale proportion to
the state interest ser!ed
1C. 2ignity
"1# regulation on the asis of dignity is impermissile
"2# %s long as it*s truthful0 non decepti!e0 the %&% can*t
regulate it e!en if it*s of such low dignity
11. Statements of 8uality
"1# 5&etter6 is more superior than 5est6. &etter is more
comparati!e
"2# (o say that you*!e won ;CO of cases creates unreasonale
e4pectations in consumers
"-# Mason v "lorida Bar "=ason*s ad said he was 5%G Rated0
the >ighest Rating =artindale9>uel .ational aw
2irectory6#
"1# 3L prohiits statements made y lawyers in ads or
written communications that are self laudatory
"2# >is ad must include a full e4planation as to the
meaning of the %G rating so it doesn*t mislead the
pulic
"-# Lawyer ads are constitutionally protected forms of
speech0 ut can e regulated to protect the pulic
"/# Central H1dson test
1# Whether the state*s interests in limiting the
speech are sustantial
2# Whether the challenged regulation ad!ances
these interests in a direct and material way
-# Whether the e4tent of the restriction on
protected speech is in reasonale proportion
to the interests ser!ed
12. Statement of $osts
"1# $RP$ 19/CC Standard 1/ !iolationD a communication which
states or implies 5no fee w7o reco!ery6 unless such
communication also e4pressly discloses whether t not the
client will e liale for costs
"1# Standard 1B !iolationD an unsolicited communication
see1ing primarily pecuniary gain which sets forth a
specific fee or range of fees where in fact the
memer charges a greater fee than ad!ertised w7in
+C days following the ad
"2# 3ull disclosure is re8uired
1-. Statements of Results0 Warranties or Guarantees
"1# $RP$ 19/CC Standard 1 !iolationD communication which
contains guarantees0 warranties0 or predictions regarding the
result of the representation
"2# %ny statement asserting an assured outcome or result is
misleading
1/. $lient and $elerity )ndorsement
"1# $RP$ 19/CC Standard 2 !iolationD a communication which
contains testimonials aout or endorsements of a memer
unless such communication also contains an e4press
disclaimer such as 5this testimonial or endorsement doesn*t
constitute a guarantee0 warranty0 or prediction regarding the
outcome of your legal matter6
1?. 2ramati<ations
"1# =R ,.2"a# and "#D see ao!e
"2# $RP$ 19/CC Standard 1- !iolationD a communication which
contains a dramati<ation unless such communication
contains a disclaimer which states 5this is a dramati<ation or
words of similar import6
1B. 3ields of Practice0 Speciali<ation and $ertification
"1# =R ,./ statesD Communication of 0ields of )ractice !
lawyer may communicate the fact that he does or doesn%t
practice in particular fields of law& Fe shall not state or
imply that he is a specialist in a particular field of law
e#cept (a* a lawyer admitted to engage in patent practice
may use the designation )atent ttorney (b* a lawyer
engaged in dmiralty practice may use 1dmiralty2 and
(c* a lawyer may say that he has been certified as a
specialist in a field of law by a named organi?ation
"2# $RP$ 19/CC"2#"B#D see ao!e
,. Regulating (iming
1. S$apero 9 (argeted mailing was permissile
"1# (he first amend limits a state*s aility to dictate the form
and content y which an attorney solicits legal usiness0 and
that regulatory interference w7 attorney ad!ertising may not
e permitted asent a showing that a sustantial state
interest would e ser!ed y such regulation
"2# In $% and %&% has prohiited in person as solicitation "19
/CC2#
"1# if you call it solicitation0 you*re already putting it in
a category that is not protected e!en if true
"2# if you call it ad!ertisement0 you*re putting it in a
category that is protected as long as it*s truthful
"-# $% says it*s ad!ertising0 and the %&% would say it*s
ad!ertising
"1# if it*s in person or on telephone it*s solicitation
"2# the only distinction tw %&% and $% is if it*s root
telephone
"-# since there*s no telephone here0 it*s clearly
ad!ertising under oth so loo1 at Bates and after
"/# Lawyers argued that since it was truthful0 it*s protected
speech
"1# the state ar says that e!en if it*s truthful0 it can e
restricted on the asis of another principle "essential
!ulneraility#
"2# certain messages not deli!ered in person or on
phone can e so intrusi!e or o!erreaching 7c of the
!ulneraility of the people that it contains the same
e!ils that they loo1 at to condemn solicitation
2. !n re A%!S "(he day after his son*s remains were identified from
the Loc1erie terrorist plane crash0 the dad got a letter of
solicitation in the mail#
"1# Was false and misleading ad 7c it failed to indicate fees and
said they were e4perts in personal in:ury
"2# RP$ ,.-1 is against direct solicitation of clients who are
!ulnerale and proaly not ale to ma1e a reasoned
:udgment on their ehalf
"1# It*s meant to pre!ent social harms such as
harassment and o!erreaching
"-# $t shall not impose discipline for truthful letters of
solicitation sent more than two wee1s after such a disaster
occurs and loss ecomes 1nown
3)5 -avic$/ Koster/ #obin/ Olec+na/
"1# )!ils of in9person solicitation for pecuniary gain
after an accident include
1# Intrusion upon pri!ate grief
2# (arnishment of the legal profession
-# (he opportunity for fraud0 undue influence0
intimidation0 o!erreaching0 and other
!eracious conduct
/# (he e4ertion of pressure w7 a demand for an
immediate response0 w7o gi!ing an
opportunity for comparison or reflection
-. "L bar v ;ent for it "3L &ar prohiits personal in:ury lawyers
from sending targeted direct9mail solicitations to !ictims and their
relati!es for -C days following an accident or disaster#
"1# Gi!e a reasonale time to prohiit the contact. (hey*re not
saying you can*t do it0 they*re :ust saying you can*t do it
until after -C days
"2# Protecting !ulnerailities
"-# Gi!es any state ar the right to regulate ad!ertising
particularly direct targeted mailing under a specified time
limit
"1# drawac1 9 if the contract is made after -C days0 it*s
!oidale after a certain amount of time. Hou can
ha!e parallel legislation that eliminates the
enforceaility of the contract when it*s een signed
after such circumstances
-. Solicitation
1. 2irect Solicitation 9 In9person contact
1. =R ,.- statesD Direct Contact w/ )rospective Clients 9 lawyer
shall not by in!person or live telephone contact solicit professional
employment from a prospective client w/ whom the lawyer has no
family or prior professional relationship when a significant motive
is for the lawyer%s pecuniary gain. "b* lawyer shall not solicit
from a prospective client by written or recorded communication or
by in!person or telephone contact even when not otherwise
prohibited if (7* the prospective client has made ,nown to the
lawyer a desire not to be solicited (8* the solicitation involves
coercion$ duress or harassment (c* 6very written communication
shall include the words 1dvertising +aterial2 on the outside
envelope and at the beginning and ending of any recorded
communication (d* a lawyer may participate w/ a prepaid or group
legal service plan operated by an organi?ation not owned by the
lawyer which uses in!person or telephone contact to solicit
memberships for the plan from persons who are not ,nown to need
legal services in a particular matter covered by the plan
2. $RP$ 19/CC"&# statesD 1Solicitation2 means any communication.
(7* Concerning the availability for professional employment of a
member or a law firm in which a significant motive is pecuniary
gain and (8* which is (a* delivered in person or by telephone or (b*
directed by any means to a person ,nown to the sender to be
represented by counsel in a matter which is a sub"ect of the
communication
-. $RP$ 19/CC"$# statesD solicitation shall not be made by or on
behalf of a member or firm to a prospective client w/ whom the
member or firm has no family or prior professional relationship$
unless the solicitation is protected by the 3S or C Const
"1# Standard - !iolationD % communication which is deli!ered
to a potential client whom the memer 1nows or should
ha!e 1nown is in such a physical0 emotional0 or mental state
that he would not e e4pected to e4ercise reasonale
:udgment as to the retention of counsel
"2# Standard / !iolationD % communication which is transmitted
at the scene of an accident or at or en route to a hospital0
emergency care center0 or other health care facility
/. O$rali+ v State bar assn "%ttorney !isited accident !ictim in the
hospital0 she hired him and then re!o1ed her consent and lawyer
refused to withdraw#
"1# State has a compelling interest to pre!ent o!erreaching0
undue influence0 fraud0 intimidation0 pri!acy0 and conflicts
of interest that di!ide the loyalty owed to a client
"2# (hings to consider
"1# whether in9person solicitation for political0 as
opposed to commercial0 purposes could e
prohiited
"2# whether direct phone contact could e prohiited
?. %orris v AL state bar "1+ mo. old ay died when left in day care
!an and lawyer sent a wreath to funeral home w7 ad letter attached#
"1# 2isciplinary Rule 291C- 9 lawyer can*t solicit on ehalf of
his professional employment from a prospecti!e client0
when the moti!e is for his pecuniary gain. Solicit includes
contact in person or y phone
"2# 2R 191C2 9 a lawyer shall not engage in any other conduct
that ad!ersely reflects on his fitness to practice law
"-# .orris 1new that his conduct ordered on what was
permissile and what is prohiited y the ar
2. Indirect SolicitationD &y Intermediaries
1. Lawyers prohiited from soliciting indirectly y lay persons as
intermediaries who ma1e the direct contact w7 potential clients
2. Runners and cappers
"1# $S&% A B1?1 statesD 'unner or Capper is any person$
firm$ association or corporation acting for consideration in
any manner as an agent for an attorney or firm$ whether
the attorney is admitted in C or any other "#$ in the
solicitation for the attorney or firm
"2# $S&% A B1?2 statesD )rohibition of Solicitation ! -t%s
unlawful for any person to act as a runner or capper for
any attorneys or to solicit any business for any such
attorneys in and about the prisons$ "ails$ hospitals0 courts
or any public institution
"-# $S&% A B1?- statesD 4iolations/ )enalty ! ny one acts as
runners or cappers will be in "ail not more than a year
"/# $S&% A B1?/ statesD ny contract for professional services
secured by a runner or a capper is void
"?# Where an attorney hires third parties to do the solicitation0
it*s not protected y the 1
st
amendment
"B# % lawyer that employs runners or cappers in the solicitation
of usiness may e held criminally liale on a theory of
aiding and aetting and may also e charged w7 conspiracy
",# %ny go!t employee who is found guilty under this section
shall forfeit the right to his office and employment
";# -1bin v 9reen "Law firm solicited moile home par1
residents as clients in anticipation of litigation against Ruin
o!er par1 conditions and this is a normal pattern for them#
"1# $ommon law arratry was the offense of fre8uently
e4citing and stirring up suits and 8uarrels and was
punished as a misdemeanor
-. Etaining Referrals and Recommendations
"1# Lay solicitation of attorney usiness is allowed
"2# =R ,.2cD dvertising ! )rohibits a lawyer from giving
anything of value to someone in e#change for
recommendations or referrals
"1# (hree e4ceptions
1# paying the reasonale costs of ads or
communications permitted y the Rules
2# paying the usual charges of a no profit
lawyer referral ser!ice or legal ser!ice
organi<ation
-# uying a law practice
"-# $RP$ 19-C2"&# statesD 0inancial rrangements w/
Conlawyers ! )ermits a gift in circumstances where it
wouldn%t be construed as a payment or a promise of further
gifts for further recommendations
"/# $RP$ 19-C2"$# statesD +ember shall not compensate$
give$ or promise anything of value to the press$ radio$ tv in
anticipation of or in return for publicity of the member but
the incidental provision of food or drin, shall not be a
violation
"?# $RP$ 19/CC Standard 1C !iolationD a communication which
implies that the memer or firm is participating in a lawyer
referral ser!ice which has een certified y the $% &ar or as
ha!ing satisfied the =inimum Standards of Lawyer Referral
Ser!ices in $%0 when that is not the case
"B# $RP$ 19BCC statesD Legal Services )rograms ! member
shall not participate in a nongovt program recommending$
or paying for legal services which allows any :
rd
person to
interfere w/ his professional "udgment$ client!lawyer
privilege$ or allows unlicenced persons to practice law
"1# 2iscussionD participation in a =SLRS$9appro!ed
lawyer referral ser!ice is encouraged
",# $RP$ 292CC"&# statesD 0inancial rrangements mong
Lawyers ! member shall not compensate$ give$ or
promise anything of value to any lawyer for the purpose of
recommending or securing employment of the member or
the member%s firm by a client$ or as a reward for having
made a recommendation resulting in employment of the
member or his firm by a client
";# $an pay memers of the media for fa!orale pulicity
"+# %&% =odel Rules and the $RP$ says that lawyers may
participate in state appro!ed Lawyer Referral Ser!ices
/. $lass %ction Solicitation
"1# =R ,.2 $omment /D Rule ,.2 and ,.- don*t apply to notice
to memers of a class action
"2# % client can solicit potential new usiness for an attorney0
ut at the attorney*s instigation
-. Soliciting Law 3irm $lients
1. R-d A +"-# statesD Law!)ractice 5rgani?ations ! bsent an
agreement w/ the firm providing a more permissive rule$ a lawyer
leaving a law firm may solicit firm clients. (a* prior to leaving the
firm (i* only w/ respect to firm clients on whose matters the lawyer
is actively and substantially wor,ing (ii* only after the lawyer has
ade(uately and timely informed the firm of the lawyer%s intent to
contact firm clients for that purpose and (b* after ceasing
employment in the firm$ to the same e#tent as any other non!firm
lawyer
2. Where associates in a law firm lea!e and form a partnership of their
own
-. (he client has a right to 1now of the a!ailaility of legal ser!ices
and the attorney has a right to communicate truthful information
aout his or her a!ailaility
B. 3ees and $lient Property
1. 3ee Setting
1. General Principles
1. =R 1.?"a# statesD 0ees ! lawyer%s fee shall be reasonable& The
factors to be considered in determining the reasonableness of a fee
are (7* the time and labor re(uired$ the novelty and difficulty of
the (uestions involved$ and the s,ill re(uisite to perform the legal
service properly (8* the li,elihood$ if apparent to the client$ that
the acceptance of the employment will preclude other employment
by the lawyer (:* the fee customarily charged in the locality for
similar legal services (;* the amount involved and the results
obtained (=* the time limitations imposed by the client or by the
circumstances (>* the nature and length of the professional
relationship w/ the client (D* the e#perience$ reputation$ and
ability of the lawyer or lawyers performing the services and (G*
whether the fee is fi#ed or contingent
2. =R 1.1B"d# statesD Declining/Terminating 'epresentation ! 3pon
termination of rep$ a lawyer shall ta,e steps to the e#tent
reasonably practicable to protect a client%s interests$ such as
giving reasonable notice to the client$ allowing time for
employment of other counsel$ surrendering papers and property to
which the client is entitled and refunding any advance payment of
fee that has not been earned. The lawyer may retain papers
relating to the client to the e#tent permitted by other law
-. $RP$ -9,CC"2#"2# statesD Termination of 6mployment/ )apers$
)roperty$ and 0ees ! member whose employment has terminated
shall promptly refund any part of a fee paid in advance that has
not been earned& This is not applicable to a true retainer fee
which is paid solely for the purpose of ensuring the availability of
the member for the matter
/. $RP$ /92CC statesD 0ees for Legal Services ! (* member shall
not enter into an agreement for$ charge$ or collect a illegal or
unconscionable fee (B* 6#cept where parties thin, the fee will be
affected by later events$ 3nconscionability of a fee shall be
determined by (7* the amount of the fee in proportion to the value
of the services performed (8* the relative sophistication of the
member and the client (:* the novelty and difficulty of the
(uestions involved and the s,ill needed to perform the legal
service properly (;* the li,elihood$ if apparent to the client$ that
the acceptance of the particular employment will preclude other
employment by the member (=* the amount involved and the results
obtained (>* the time limitations imposed by the client or by the
circumstances (D* the nature and length of the professional rel w/
the client (G* the e#perience$ reputation$ and ability of the member
or members performing the services (H* whether the fee is fi#ed or
contingent (7A* the time and labor re(uired$ (77* the informed
consent of the client to the fee
"1# $ompared to =R 1.?
"1# re:ects inclusion of customary fees in the locality
"2# added three more items for considerationD 1020 11
?. $S&% A B1/; statesD Contracts for services/ bills 9 "a* where the
e#pense will e#ceed E7AAA$ the contract for services shall be in
writing (and signed by both parties* stating any basis of
compensation$ the general nature of the services$ and the
responsibilities of the attorney and client (b* all bills shall clearly
state the basis thereof (c*failure to comply renders the agreement
voidable at the option of the client&
"1# 3ailure to meet these re8uirements ma1es the contract
!oidale
"2# (his does not apply where
"1# emergency rendition of legal ser!ices to protect
rights of client where a writing is impractical
"2# an implied arrangement on the same terms as
ser!ices pre!iously supplied to and paid for y the
client
"-# client00 in writing and after full disclosure0 1nowingly
wai!es the written agreement
"/# the client is a corporation
B. $S&% A B1/+ statesD Britten 0ee Contract. Confidential
Communication ! written fee contract shall be deemed to be a
confidential communication
,. R-d A -/ statesD 'easonable and Lawful 0ees ! lawyer may not
charge a fee larger than is reasonable in the circumstances or that
is prohibited by law
;. B1s$an v State Bar of CA "he charged K-CCC 7c he was familiar
with the opposing attorney*s tactics#
"1# you can*t set your fees ased solely on who the opposing
counsel is
+. -yan v B1tera/ Bea1san2/ Co$en : Brennan "fi4ed fee K1
million#
"1# the agreement was clear and unamiguous and was agreed
upon fairly y sophisticated parties
2. 3ee 3ormalities
1. =R 1.?"# statesD 0ees ! Bhen the lawyer hasn%t regularly
represented the client$ the rate of the fee shall be communicated to
the client$ preferably in writing$ before or w/in a reasonable time
after commencing the representation
"1# $omment 1D a copy of the lawyer*s usual fee schedule is
sufficient
"2# $omment 2D a lawyer may get ad!ance payment"e!en
proprietary interest#0 ut must return any unearned portion
"-# $omment -D lawyer can*t enter an agreement whose terms
might induce him to improperly shorten his ser!ices or
perform them in a way contrary to the client*s interest
-. =inimum 3ee Schedules
1. %&% Epinions say that minimum fee schedules cannot e
mandatory0 ut they also say that a practice of setting fees elow
the minimum can su:ect an attorney to discipline
2. =inimum fee schedules are unlawful price9fi4ing if they are
"1# mandatory
"2# or ha!e the effect of creating uniform fees
/. $ontingent 3ees
1. (he %&% =odel Rules and the Restatement (hird
"1# =R 1.?"c# statesD 0ees ! fee can be contingent on the
outcome e#cept where it%s prohibited by law& -t shall be in
writing and shall state the method by which the fee is to be
determined
"1# $ommentD where there are etter options for the
client than a contingency fee0 these options should
e offered and e4plained to the client
"2# =R 1.?"d# statesD 0ees ! lawyer shall not enter into an
arrangement for$ charge$ or collect (7* any fee in a
domestic relations matter$ where the amount is contingent
upon the securing of a divorce or upon the amount of
alimony or support$ or property settlement or (8* a
contingent fee for representing a I in a criminal case
"-# =R 1.;":#"2# statesD Conflict of -nterest. )rohibited Tr#ns !
lawyer shall not ac(uire a proprietary interest in the c/a
or sub"ect matter of litigation$ e#cept that the lawyer may
(7* ac(uire a lien granted by the law to secure the lawyer%s
fee or e#penses and (8* contract w/ a client for a
reasonable contingent fee in a civil case
"/# =R -./"# statesD 0airness to 5pposing )arty/Counsel !
lawyer shall not falsify evidence$ counsel or assist a
witness to testify falsely$ or offer an inducement to a
witness that is prohibited by law
"1# $omment -D It*s o1ay to pay a witness*s e4penses or
compensate an e4pert witness on terms permitted y
law. =ost :4 say you can*t pay an occurrence
witness any fee for testifying nor can you pay an
e4pert witness a contingent fee
"?# R-d A -? statesD Contingent 0ee ! lawyer can have a fee
contingent on the outcome e#cept where the fee (a* is
contingent on success in prosecuting or defending a
criminal proceeding (b* is contingent on a specified result
in a divorce proceeding or proceeding concerning child
custody (8* 3nless otherwise stated$ the lawyer is entitled
to get the fee only when and to the e#tent the client receives
payment
"1# $ommentD (wo situations where the cts will re:ect
the contingent fee*s ris1 calculation
1# where the li1elihood of reco!ery is !ery high
and so the lawyer ears little ris1 of losing
sustantial reco!ery
2# the client*s reco!ery is apt to e so large that
the lawyer*s fee wold e disproportionately
large compared to the ser!ices performed
and the ris1 assumed
2. (he $% Rules
"1# $S&% A B1/B statesD Limitations/ )eriodic )ayments !
ttorney shall not get contingency fee in an action for
in"ury against a health care provider for professional
negligence in e#cess of the following limits. (7* ;AJ of the
first E=AK recovered (8* ::&:J of the ne#t E=AK (:* 8=J
of the ne#t E=AAK$ (;* 7=J of any amount on which the
recovery e#ceeds E>AAK& -f periodic payments are
rewarded$ the ct shall place a total value on these
payments based upon the pro"ected life e#pectancy of the L
"2# $S&% A B1/, statesD Contingency 0ee Contracts/ Contents
! t the time the , is entered$ the lawyer shall give client a
duplicate copy of the ,$ signed by both parties$ in writing
and shall include (7* a statement of the agreed upon
contingency fee rate (8* statement how disbursements and
costs incurred will affect the contingency fee and the
client%s recovery (:* statement as to what e#tent the client
could be re(uired to pay any e#tra compensation to the
lawyer (;* unless the claim is sub"ect to @ >7;>$ a
statement that the fee is not set by law but is negotiable btw
them (=* if sub"ect to @ >7;>$ a statement that the rates are
the ma# limits for the contingency fee and they may
negotiate a lower rate
"1# $ommentD Giolation of this section renders the
contract !oidale y the client0 who then must pay a
reasonale fee to the attorney for ser!ices rendered
"-# $S&% A B1/,.? statesD 'ecovery of Claims Btw +erchants
! @ >7;D doesn%t apply to contingency fee contracts for
recovery claims btw merchants if the merchant employs 7A
or more individuals& Bhere there%s no written contract$ a
lawyer may not (a*get more than 8AJ of the firs E:AA (b*
7GJ of the ne#t E7DAA$ (c* 7:J of sums collected in e#cess
of E8AAA& The following minimum charges may be charged
(a* E8= in collections of ED=!E78= (b* ::&:J of collections
less than ED=
-. (he Re!erse $ontingent 3ee
"1# (he contingency rests on the amount sa!ed the client0
pro!ided the amount sa!ed is reasonaly determinale0
reasonale in amount under the circumstances0 and the
client*s agreement to the fee arrangement is fully informed
3>5 ABA "oral Opinion ?&@&7&
"1# (he =R do not prohiit
"2# the amount demanded cannot automatically e the
numer from which the sa!ings is calculated since
the P usually o!erstates the amount
/. $ontingent 3ees and 2ischarged or .egligent $ounsel
"1# R-d A -, statesD )artial or Complete 0orfeiture of
Lawyer%s Compensation ! lawyer in clear and serious
violation of duty to a client may be re(uired to forfeit some
or all of his compensation& Considered are gravity and
timing of the violation$ its willfulness$ its effect on the
value of the lawyer%s wor, for the client$ any other
threatened or actual harm to the client$ and ade(uacy of
other remedies
"2# R-d A /C statesD 0ees on Termination 9 -f the relationship
ends before the lawyer has completed the services and the
fees have not been forfeited under @ :D$ a lawyer who
w/draws or is discharged can get the lesser of the fair
value of the services and the ratable proportion of the
compensation provided by any other contract btw lawyer
and client if "a* the discharge or w/drawal isn%t
attributable to misconduct of the lawyer (b* the lawyer has
performed severable services (c* allowing contractual
compensation wouldn%t burned the client%s choice of
counsel or the client%s ability to replace counsel
"-# $%
"1# When an attorney w7 a contingency fee is discharged
y the client0 he is entitled to reco!er the reasonale
!alue of the ser!ices rendered efore his discharge
measured on the asis of 8uantum meruit
"2# the client has the right to discharge an attorney for
any reason or no reason at all
"-# whether 8uantum meruit reco!ery is arred should
depend on the egregiousness of the particular
conduct in!ol!ed
"/# Situations where lawyers may e re8uired to w7draw
"1# refusal y client to pay agreed9upon fees7e4penses
"2# unlawful client conduct
"-# client demands you perform illegally or
unprofessionally
"/# client suing :ust to harass0 and has no merit
"?# client ma1ing you wor1 w7 a lawyer you can*t
cooperate with
"B# physical7mental incapacity of the lawyer
",# client*s conduct that ma1es it unreasonaly hard to
do the wor1
?. $ontingent 3ees and Litigation Support Ser!ices
"1# OAeda v S$arp Cabrillo Hospital "P hired a consulting
ser!ice and a lawyer#
"1# where the lawyer doesn*t ha!e the e4pertise0 he
must see1 out others for assistance
"2# lawyer may ha!e to reduce his own fee so that the
P*s fee doesn*t ecome e4cessi!e
B. $ontingency 3ees and Structured Settlements
"1# $RP$ ?9-1C"&# statesD )rohibited Contact w/ Bitnesses 9
member shall not directly or indirectly pay$ offer to pay$
or pay compensation to a witness contingent upon the
content of the witness%s testimony or the outcome of the
case& 6#cept where prohibited$ a member may advance$
guarantee$ or ac(uiesce in the payment of (7* e#penses
reasonably incurred by a witness in attending or testifying
(8* reasonable compensation to a witness for loss of time in
attendance or testifying (:* a reasonable fee for the
professional services of an e#pert witness
3>5 State Bar of CA Standin2 Coittee on Professional
-esponsibility and Cond1ct "oral Opinion =??)@=&4
"1# when the settlement or :udgment is not a single sum0
ut rather an periodic payment
"2# $% $ode of $i! Pro A BB,., statesD The court shall
place a total value on these payments based upon
the pro"ected life e#pectancy of the L and include
this amount in computing the total award from
which attorney%s fees are calculated
2. 3ee Splitting
1. With .on9Lawyers
1. =R ?./"a#D see ao!e
2. $RP$ 19-2C"%#D see ao!e
-. R-d A 1CD see ao!e
/. General ruleD it*s unethical practice to split fees w7 a nonlawyer. It
discourages
"1# the lay practice of law
"2# lawyers7nonlawyers practicing together0 which is unethical
"-# solicitation y runners and cappers
"/# lay interference w7 the independent :udgment of lawyers
"?# ine4pert legal ad!ice
2. With Lawyers in the 3irm
1. .o ethical issues aout how a firm di!ides its income among its
memers
2. =R ?.B statesD 0ee split$ though not based on responsibility$ is a
valid retirement benefit
-. R-d /, $omment g statesD 0ees may be split w/ (7* former
partners or associates under separation or retirement agreements
and (8* members of a dissolved law firm for post!dissolution wor,
on matters handled by the firm before it dissolved
-. With Lawyers not in the 3irm
1. =R 1.?"e# stateD 0ees ! division of fee btw lawyers who aren%t in
the same firm may be made only if (7* the division is in proportion
to the services performed by each lawyer$ or by written agreement
w/ the client$ each lawyer assumes "oint responsibility for the
representation (8* the client is advised of and doesn%t ob"ect to the
participation of all the lawyers (:* the total fee is reasonable
"1# $ommentD the client doesn*t ha!e to 1now how much each
gets
2. $RP$ 292CC"%# statesD 0inancial rrangements mong Lawyers !
member shall not divide a fee w/ a lawyer who is not a partner$
associate or shareholder w/ the member unless. (7* the client has
consented in writing after a full disclosure that sets the terms of
the division (8* the total fee charged by all lawyers is not
increased solely b/c of the division and is not unconscionable
"1# an attorney can otain a fee e!en though he does no wor1
and assumes no responsiility for the case
-. R-d A /, statesD 0ee!Splitting btw Lawyers not in the Same 0irm !
division of fees btw lawyers who are not in the same firm may be
made only if. (7*(a* the division is in proportion to the services
performed by each lawyer (b* by agreement w/ the client$ the
lawyers assume "oint responsibility for the representation (8* the
client is informed of and doesn%t ob"ect to the division$ its terms$
and the participation of the lawyers involved (:* the total fee is
reasonable
/. $%
"1# 'nli1e %&% and R-d0 $% permits referral fees
"2# %rguments fa!oring
"1# discourages attorneys from ta1ing cases they*re not
competent to handle
"2# a an hurts small firms who can*t asor a large
caseload and who can*t afford to turn them away
w7o a fee
"-# lessen the rate of malpractice
"/# 1eeps general practitioners in touch w7 specialists0
thus raising their 1nowledge le!el
-. $ollecting the 3ee
1. %ttorneys* Liens
1. =R 1.;":#"1# statesD Conflicts of -nterest/ )rohibited Transactions
! lawyer shall not ac(uire a proprietary interest in the c/a or
sub"ect matter of litigation he is conducting0 e#cept the lawyer may
ac(uire a lien granted by the law to secure his fee or e#penses
2. R-d A /- statesD Lawyer Liens ! lawyer may decline to deliver to
a client any document prepared by him or at his e#pense if the
client has not paid all fees and disbursements due for the lawyer%s
wor, in preparing the document and nondelivery wouldn%t
unreasonably harm the client
-. (wo types of liens allowedD charging and retaining
/. $harging Liens "specific0 nonpossessory#
"1# is an e8uitale interest for the lawyer in the ultimate
reco!ery of the client
"2# memoriali<es the det owed y the client and gi!es the
lawyer a preference o!er creditors who don*t hold e8uitale
security interests
"-# does not e4ist at common law so must e created y
contract
"1# does not ha!e to use the word 5lien6
"2# intent to use a charging lien must e clearly stated
"-# the mere e4istence of a contingency fee contract
doesn*t create a lien
"/# ;eiss v Marc1s
"1# a charging lien does sur!i!e the discharge of an
attorney y the client0 ut only to the e4tent of the
reasonale !alue of the ser!ices rendered
"2# if the former client is unsuccessful0 there is nothing
for the lien to operate on0 so the discharged attorney
gets nothing
"-# the charging lien cannot e estalished until after the
client is awarded a :udgment or recei!es a settlement
?. Retaining Liens "general0 possessory#
"1# =R 1.1B"d#D see ao!e
"2# $PR$ -9,CC"2#D see ao!e
"-# applies to papers and property coming into the hands of the
attorney as an attorney for the client
"/# CA Optoetrists v S1perior Co1rt Sacraento "attorney
w7held docs of no K !alue when he was fired#
"1# In $%0 a charging lien is authori<ed y statue in a
few situations and may e freely contracted0 ut
there is no such statutory or :udicial authori<ation
for a retaining lien "yet#
"2# to enforce the lien would condone a !iolation of the
ethical duties owed y a lawyer to his client.
$ontracts that !iolate professional ethics are !oid
"?# catch 22 9 the client can*t pay the money for the file and
thus can*t win the case to get the money to pay for the file
"B# 3iles eing held
"1# Wor1ing files
"2# Wor1 product
1# asolute wor1 product in $% 9 lawyers
theories and impressions in thin1ing aout
the case
1# $% $i! Pro -9,CC says it asolutely
cannot e disco!ered y the other
side
2# $% $i! Pro -9/CC says the client has
the right to these files
B. Security Interests
"1# =R 1.? $omment 2 statesD (he oser!ance of the ethical
oligation of a lawyer to hold in!iolate confidential info of
the client facilitates the full de!elopment of facts
essential to proper representation of the client and
encourages people to see1 early legal assistance
"2# =R 1.;":#D see ao!e
"-# $RP$ -9-CC statesD voiding -nterests dverse to a Client
! +ember shall not enter into a business tr#n w/ a client/ or
,nowingly ac(uire an ownership or pecuniary interest
adverse to a client$ unless each of these has been satisfied.
(a* the tr#n and its terms are fair and reasonable to the
client and are fully disclosed and transmitted in writing to
the client in a manner which should reasonably have been
understood by the client (b* the client is advised in writing
that the client may see, the advice of an indep lawyer of
the client%s choice and is given a reasonable chance to see,
that advice (c* the client thereafter consents in writing to
the terms of the tr#n or the terms of the ac(uisition
"1# does not apply to where the memer is retained y
the client
"2# does not apply where the memer and client each
ma1e an in!estment on terms offered to the general
pulic
"-# does apply where the memer wishes to otain an
interest in client*s property in order to secure the
amount of the memer*s past due or future fees
"/# R-d A -B statesD 0orbidden Client!Lawyer 0inancial
rrangements 9 (7* lawyer may not ac(uire a proprietary
interest in the c/a or sub"ect matter of litigation he%s
conducting e#cept the lawyer may (a* ac(uire a lien to
secure the lawyer%s fee or e#penses and (b* contract w/ a
client for a contingent fee in a civil case (8* a lawyer can
ma,e a loan covering court costs and e#penses of
litigation$ the repayment of which to the lawyer may be
contingent on the outcome of the matter
"?# Ha*+ v State Bar of CA "lawyer too1 a promissory note
secured y a deed of trust in real property to secure fee
payment#
"1# cannot ac8uire interest that*s contrary to the client*s
interest
"B# (wo types of situations
"1# Is the su:ect matter of the litigation Aes
1# the attorney cannot ha!e a security interest
in it
2# Aes had good moti!es0 yet was sanctioned
for getting a security interest in it
1# the ethical thing to do was to let the
client lose initially
"2# Is not the su:ect matter of litigation Ha*+
1# e!en though it*s an ad!erse conflicting
interest where the lawyer can foreclose and
cut off the client*s rights0 it can still e done
as long as the re8uirements of the ethical
rules are met
2# he didn*t meet the $% rule re8uirements
though
1# you*re in a usiness relationship w7
the client since you ha!e interest in
his property "i# the agreement must
e fair and reasonale to the client
"ii# must e clearly e4plained to the
client "iii# client must e told in
writing that he should ha!e an indep
attorney loo1 at the terms of the
relationship
2# if it*s not in the usiness arrangement
or security interest papers0 the failure
to put that clause in the 1 is a ethical
!iolation and you cannot get around
it "i# tere is no !efense 9 e!en if
it*s een told to the client0 the failure
to tell the client to get outside lawyer
to loo1 at it is a !iolation
/. 3ee 2isputes w7 $lients
1. =andatory %ritration
1. =R Rule 1.? $omment ?D If a procedure has een estalished for
resolution of fee disputes0 such as aritration or mediation0 the
lawyer should conscientiously consider sumitting to it
2. $S&% A B2CC statesD 6stablishment of a System and )rocedure/
rbitration and +ediation ! The board of governors shall
establish$ maintain and administer a system and procedure for the
arbitration and mediation of disputes concerning fees$ costs$ or
both$ charged for professional services by members of the state
bar
"1# policyD to alle!iate the disparity in argaining power in
attorney fee matters which fa!ors the attorney y pro!iding
an effecti!e0 ine4pensi!e remedy to a client which doesn*t
necessitate the hiring of a second attorney
"2# mediation is !oluntary for the attorney and the client
"-# unless the client agreed in writing to mandatory aritration0
it is !oluntary for the client ut mandatory for the attorney
"/# they may agree to e ound y the aritration decision0 or
they may apply for a trial after the decision
-. R-d A /2 statesD 'emedies and B/) ! (7* fee dispute btw lawyer
and client may be ad"udicated in any appropriate proceeding$
including a suit by the lawyer to recover an unpaid fee$ a suit for a
refund by a client$ an arbitration to which both parties consent
unless applicable law renders the lawyer%s consent unnecessary$ or
in the ct%s discretion a proceeding ancillary to a pending suit (8*
The lawyer has the burden of persuading the trier of fact of the
e#istence and terms of any fee contract$ the ma,ing of any
disclosures to the client re(uired to render a contract enforceable$
and the e#tent and value of the lawyer%s services
2. Suing $lient for 3ees
1. .ot recommended 7c it reflects poorly on the lawyer
2. $an e countersued for malpractice or unreasonale fees and
disciplinary fees can e charged against you
-. $ollection =ethods
1. R-d A /1 statesD 0ee Collection +ethods 9 -n see,ing
compensation from a client or former client$ a lawyer may not
employ collection methods forbidden by law$ use confidential info
when not permitted$ or harass a client
2. Bl1estein v State Bar of CA "lawyer threaten criminal charges to
collect payment for ser!ices in ci!il matter#
"1# this is e4tortion tactics
?. 3ee 2isputes with the Go!ernment
1. 3ee 3orfeiture 9 no person can use the money they stole from other people
to pay for an attorney of his choice
2. Reporting $ash 3ees 9 if you get more than K1C0CCC in cash you ha!e to
report it to the IRS
B. 2uty to Safeguard $lient*s Property and 3unds
1. =R 1.1? statesD Safe,eeping )roperty ! lawyer shall hold property of
clients that is in a lawyer%s possession in c#n w/ a representation separate
from the lawyer%s own property$ in a separate account in the same state
when the lawyer%s office is located and a complete record thereof
2. =R 1.1B"d# $omment +D )!en if the lawyer is unfairly discharged y the
client0 a lawyer must ta1e all reasonale steps to mitigate the conse8uences
to the client
-. $RP$ -9,CC"2#D see ao!e
/. $RP$ /91CC"&# statesD )reserving -dentity of Client 0unds/)roperty 9
member shall (7* promptly notify a client of the receipt of the client%s
funds$ securities$ or other properties (8* identify and label securities of a
client upon receipt and place them in a safe deposit bo# or other place of
safe,eeping as soon as practicable (:* maintain complete records of all
funds$ securities$ and other properties (;*promptly pay or deliver$ as
re(uested by the client$ any funds$ securities$ or other properties in
possession of the member which the client is entitled to receive
?. $RP$ /91CC"$# statesD The Board of Govs have the authority to adopt
standards as to what 1records2 shall be maintained by members
B. R-d A /? statesD Surrendering )ossession of )roperty ! (7* lawyer must
promptly deliver$ to the client funds or other property in the lawyer%s
possession belonging to a client& (8* lawyer may retain possession of
funds or property if (a* the client consents (b* the client is entitled to the
property$ the lawyer possesses the property for purposes of the
representation$ and the client has not as,ed for delivery of it (c* the
lawyer has a valid lien on the property (d* there are substantial grounds
for dispute as to the person entitled to the property (e* delivering the
property to the client would violate a court order or other legal obligation
of the lawyer
,. R-d A /B statesD Documents 'elating to a 'epresentation ! (7* lawyer
must ta,e reasonable steps to safeguard docs in his possession relating to
the representation of a client (8* on re(uest a lawyer must allow a client
to inspect and copy any doc relating to the representation$ unless
substantial grounds e#ist to refuse (:* unless a client consents to non!
delivery or substantial grounds e#ist for refusing$ a lawyer must deliver to
the client at an appropriate time and promptly after the representation
ends$ such originals and copies (;* a lawyer may decline to deliver to a
client an original or copy of any doc under circumstances permitted by @
;: Liens
;. Cleveland Bar Association v Beloc+ "lawyer used client funds when in
hiding from the mo#
1. .o circumstances e!er :ustify the delierate misappropriation of
client*s funds for a lawyer*s personal enefit
+. $ommingling
1. $RP$ /91CC"%# statesD ll funds held for the client by a lawyer$
including advances for costs$ and e#penses$ shall be deposited in a
ban, account labeled 1Trust ccount6or similar$ maintained in
C$ or w/ written consent of the client$ in any other "# where there
is a substantial relationship btw the client and that "#& Co funds
belonging to the member shall be deposited therein or otherwise
commingled e#cept (7* funds reasonably sufficient to pay ban,
charges (8* in the case of funds belonging to a client in part CD
the lawyer in part$ the member%s part must be w/drawn at the
earliest reasonable time after the member%s interest in that portion
becomes fi#e& Bhen the right of the member to receive a portion
of trust funds is disputed by the client$ the disputed portion shall
not be w/drawn until the dispute is finally resolved
2. R-d A // statesD Safeguarding and Segregating )roperty !
lawyer holding funds of a client in c#n w/ a representation must
ta,e reasonable steps to safeguard the funds& The lawyer must
hold it separate from his property$ ,eep records of it$ deposit funds
in an account separate from his own$ identify tangible ob"ects$ and
comply w/ related re(uirements imposed by regulatory authorities.
3pon receiving funds$ he must promptly notify the client
-. Stevens v State Bar of CA "lawyer deposited K into his usiness
account instead of the client*s trust account#
"1# must ha!e separate usiness account and client account
"2# $omining them is one of the most serious ethical offenses
and most harshly punished
1C. IEL(%
1. Interest on Lawyers (rust %ccount program 9 the interest earned
on the client trust accounts finance legal ser!ices for poor people
>' P$illips v ;A Le2al "o1ndation
"1# Since it*s all client money in the client account0 the clients
are entitled to the interest
"2# (he issue has not een resol!ed. (he state doesn*t ha!e the
right to claim the interest0 ut they ha!e the right to say
how it*s dispersed
11. $lient Security 3und
1. Part of ar dues and disperses the money according to the
persuasi!eness of the client*s case
2. If you ascond or lea!e the client destitute or ta1e their money0 this
fund will reimurse client !ictims of lawyer misconduct
-. 2oes not compensate for malpractice or fee claims0 ut only for
money lost y the attorney*s criminal or wilful conduct
THE ATTORNE"#CLIENT RELATIONSHIP
,. (he 2uty of $ompetence and $are
1. )thical 2uty of $ompetence
1. =R 1.1 statesD Competence ! lawyer shall provide competent
representation to a client which re(uires the legal ,nowledge$ s,ill
thoroughness and preparation reasonably necessary for the
representation
2. $RP$ -911C statesD 0ailing to ct Competently ! (a* member shall not
intentionally$ rec,lessly$ or repeatedly fail to perform legal services w/
competence (b* competence means to apply (7* diligence$ (8* learning and
s,ill0 (:* and mental$ emotional and physical ability reasonably necessary
for the performance of such service (c* -f a member doesn%t have
sufficient learning and s,ill the member may perform such service
competently by (7* associating w/ or professionally consulting another
lawyer reasonably believed to be competent$ or (8* by ac(uiring sufficient
learning and s,ill before performance is re(uired
1. 2iscussionD 2uty to super!ise the wor1 of a suordinate attorney
and nonlawyer employees. % lawyer may gi!e ad!ice when he
doesn*t ha!e the s1ill in an emergency
2. % single act of negligence is non9actionale
-. R-d A 1B statesD Lawyer%s Duties to a Client 9 lawyer must (7* proceed
in a manner reasonably calculated to advance a client%s lawful ob"ectives
(8* act w/ reasonable competence and diligence (:* comply w/ obligations
concerning the client%s confidences and property$ avoid conflicting
interests$ deal honestly w/ the client$ and not use advantages arising from
the client!lawyer relationship in a manner adverse to the client and (;*
fulfill valid contractual obligations to the client
/. (he relationship is contractual and there is an assumption of duty of due
care
?. If it*s a criminal L0 the lawyer has a responsiility under the B
th
amend to
gi!e 5effecti!e assistance of counsel6
B. =andatory $ontinuing Legal )ducation "=$L)#
1. (he rule0 re8uires all acti!e memers of the ar0 to complete -B
hours of appro!ed legal education w7in -B month periods
designated y the ar
"1# at least eight must e in either legal ethics or law practice
management
"2# no fewer than four of the eight must address legal ethics
"-# none of the re8uired hours needs to e in the attorney*s area
of practice
2. )4emptions from =$L) re8uirements "A BC,C and rule +?;#
"1# Retired :udges
"2# Efficers and elected officials of the $%
"-# 3ull9time professors at accredited law schools
"/# 3ull9time employees of $%
"?# 3ull time federal employees
&' ;arden
"1# Ian 10 2CCC amendments to &P$ reduced the numer of
re8uired =$L) hours from -B to 2? in a three year period
of time
"1# eliminated the e4emption for retired :udges
"2# &y 1+++0 the total numer of states w7 =$L) programs
rose to /C
2. 2uty of 2iligence
1. =R 1.- statesD Diligence ! lawyer shall act w/ reasonable diligence and
promptness in representing a client
2. R-d A ?2"1# statesD Standard of Care ! lawyer who owes a duty of care
must e#ercise the competence and diligence normally e#ercised by lawyers
in similar circumstances
1. $omment cD 2iligence includes an in8uiry into the facts0 analysis of
law0 e4ercise of professional :udgment0 communication w7 the
client0 rendering of practical and ethical ad!ice0 and drafting of
documents
-. Should not ta1e on caseloads that pre!ent them from gi!ing full
consideration to each client
/. (he duty may e !iolated e!en though the client ultimately suffers no
pre:udice or legal loss
?. (he duty may not e a!oided y delegating responsiility for some tas1s to
others
-. 2uty to $ommunicate
1. =R 1./ statesD Communication ! (7* a lawyer shall ,eep a client
reasonably informed about the status of a matter and promptly comply w/
reasonable re(uests for info (b* and shall e#plain a matter to the e#tent
reasonably necessary to permit the client to ma,e informed decisions
1. $ommentD $lients can e denied info0 at least for some period of
time0 if getting the info would ha!e a serious ad!erse effect and led
to serious setac1s
2. $RP$ -9?CC statesD Communication ! member shall ,eep a client
reasonably informed about relevant developments$ including promptly
complying w/ reasonable re(uests for info and copies of significant docs
when necessary to ,eep the client informed
-. R-d A -C statesD Lawyer%s Liability to a :d )erson for Conduct on Behalf
of a Client ! 3nless disclaimed at the time of contracting$ a lawyer is
sub"ect to liability to :
rd
persons in contracts the lawyer entered into on
behalf of a client if (a* the client%s e#istence or identity was not disclosed
to the :
rd
person (b* the , is btw the lawyer and a :
rd
person who provides
goods used by lawyers and who$ as the lawyer ,nows or should ,now$
relies on the lawyer%s credit& The lawyer is liable to :
rd
party for damages
pro#imately caused by lawyer%s acting w/o authority from client if the
lawyer (a* tortiously misrepresents to the :
rd
party that he had the
authority to ma,e a ,
/. R-d A -1 statesD Termination of a Lawyer%s uthority ! (7* lawyer must
give notice when terminating representation (8* a lawyer%s actual
authority to represent a client ends when (a* client discharges him (b* the
client dies$ or the corporation loses its capacity to f#n (c* the lawyer
w/draws (d* the lawyer dies or becomes physically or mentally incapable$
is disbarred or suspended$ or is ordered to cease representing a client (e*
the representation ends as provided by , or b/c the lawyer has completed
the contemplated services (:* lawyers authority to act for a client w/
respect to another person ends when the other person ,nows facts from
which it can be reasonably inferred that the lawyer lac,s actual authority
?. Settlement Effers
1. $RP$ -9?1C statesD Communication of Settlement 5ffer ! (*
+ember shall promptly communicate to the member%s client (7* all
terms and conditions of any offer made to the client in a criminal
matter and (8* all amounts$ terms$ and conditions of any written
offer of settlement made to the client in all other matters
"1# 2iscussionD In criminal matter he must disclose all offers
whether written or oral. In ci!il matters0 he must disclose
any oral offers if they are 5significant6
/. =alpractice
1. $i!il $ases 9 )lements for a $ause of %ction
1. R-d A ,C statesD /C )rivilege/ 1)rivileged person2 ! are the
client (including prospective*$ the client%s lawyer$ agents of either
who facilitate communications btw them$ and agents of the lawyer
who facilitate the representation
2. R-d A ,1 statesD /C )rivilege/ 1-n Confidence2 ! if at the time
and in the circumstances of the communication$ the person
reasonably believes that no one will learn the contents of the
communication e#cept a privileged person or w/ another person w/
whom communications are protected under similar privilege
-. R-d ,/ statesD )rivilege for a Govt Client ! a/c privilege e#tends to
a communication of a govt org and of an indiv employee or other
agent of a govt org as a client w/ respect to his personal interest
/. R-d A ,? statesD )rivilege of Co!clients ! -f two or more people are
"ointly represented by the same lawyer$ a communication of either
co!client is privileged as against :
rd
persons$ and any co!client
may invo,e the privilege$ unless it has been waived by the client
who made the communication (8* unless co!clients have agreed
otherwise$ a communication is not privileged as btw the col!clients
in a subse(uent adverse proceeding btw them
?. R-d ,B statesD )rivilege of Common!interest rrangements 9 -f two
or more clients w/ a common interest in a matter are represented
by separate lawyers and they agree to e#change info$ a
communication of any such client is privileged as against :
rd

persons& ny such client may invo,e the privilege$ unless it has
been waived by the client who made the communication (8* 3nless
the clients have agreed otherwise$ a communication is not
privileged as btw clients in a subse(uent adverse proceeding btw
them
B. Suset of malpractice
"1# Eccurring in the conte4t of representing criminal Ls
"1# if you*re charged w7 murder and lawyer fails to intro
motions to suppress any of the e!idence or
testimony.
"2# you argue malpracticeD ut for the lawyers failure to
file those motions0 i wouldn*t ha!e een con!icted.
% reasonale lawyer would*!e done it
"2# $riminal malpractice
"1# $an get a money :udgment against the lawyer
"-# Ineffecti!e assistance of counsel
"1# B
th
amendment constitutional issue that lets the client
ha!e the con!iction re!ersed
,. $ompetence
"1# &efore0 if you were sued for incompetence0 you could
defend yourself y showing that you were truly dum
"1# It was a su:ecti!e standard of proof and you didn*t
ha!e to compare yourself to a reasonale attorney
"2# =odel Rule 1.1 9 competent representation re8uires legal
1nowledge .... reasonaly necessary
"-# $% Shall not intentionally0 rec1lessly fail to perform w7o
competence
"1# Hou*re not incompetent if you low it out of
negligence one time0 ut you are if you do it another
;. L1cas v Ha "eneficiaries sue the lawyer who prepared the will
7c he used wrong phraseology and caused them to lost money#
"1# (he lac1 of pri!ity tw Ps and Ls doesn*t preclude Ps from
maintaining an action in tort against L
"1# (hey are entitled to reco!er as third party
eneficiaries "attorney liale to non9client#
"2# >owe!er0 (he $% law on perpetuities is so confusing that
most anyone would get it wrong there is no c7a
+. Sit$ v Le*is "lawyer negligently failed in the di!orce action to
assert her community interest in the husand*s retirement enefits#
"1# (he lawyer assumes an oligation to his client to underta1e
reasonale research
"2# &y underta1ing representation of P0 L lawyer assumed the
duty to familiari<e himself w7 the law
"-# (he !iolation of the ethical duty of diligence is actionale as
malpractice
1C. Jones Motor Copany v Holt+ap " lawyers negligently failed to
ma1e a timely effecti!e re8uest for a :ury 7c didn*t pay fee#
"1# whether the loss of a procedural ad!antage cannot gi!e rise
to a malpractice suit 7c the ad!antage was not essential to
the protection of the client*s sustanti!e rights. >e
would*!e lost anyway
"2# Cline v ;at+ins 9 % negligent lawyer isn*t relie!ed of his
responsiility ecause he is replaced y another lawyer
2. $i!il $ases 9 $ontriution M )8uitale Indemnity
1. Indemnity was not a!ailale at common law
2. (he two parties are :ointly and se!erally liale to the P
-. (he passi!e party can shift the entire urden of loss incurred y
settlement or :udgment to the acti!e tortfeasor
-. $i!il $ases 9 %ssignment
=' 9oodley v ;an+ and ;an+
"1# $ommon lawD If a client has a c7a against a lawyer0 that c7a
cannot e sold or assigned
"2# Legislature last centuryD re!ersed the common law rule and
made most of the c7a assignale
"-# 2oes the common law rule or statutory rule apply to
lawyers
"1# (he statutory rule applies and thus are not
assignale. (his would e champerty
"2# Some states do permit c7a against lawyers to e
assigned
2. Goluntary assignment
"1# $lient delierately sells off the asset of the lawsuit to get
some ad!antage0 usually money
"2# Where one enterprise uys out the assets of another
enterprise
"1# If a company has a potential lawsuit against a law
firm. $an that suit e part of the transferale assets?
"2# Goluntary 7c the company wants to sell it
"-# )4ceptionD this is permitted
-. In!oluntary assignment
"1# %lthough the client has the asset of the lawsuit0 he has not
e4pressed the want to present it0 ut loses the opportunity
to ring it 7c it*s een in!oluntarily transferred
"2# Sno*0 %1ffer/ En2stron v #anasse
"1# (he c7a against the law firm was purchased y the
law firm at an e4ecution sale0 where the law firm
gets to put the !alue on the case themsel!es
"2# $lient owes the law firm money0 ut the firm messed
up in their ad!ocacy. (he !alue of the legal
malpractice action is crucial. 'sually the !alue is
determined y a :ury. When the assets are sold in an
e4ecution sale0 the firm uys the lawsuit against
itself.
"-# '( Sup $t as1s
1# whether legal malpractice actions are
assignale in '( court a!oided the
8uestion y saying that it was in!oluntary
assignment
2# whether there can e an in!oluntary transfer
1# yes 7c it*s an asset capale of
!aluation that creditors ha!e access
to.
2# the court permits in!oluntary
transfers
-# if in!oluntary transfers are allowed0 do you
allow the person who the action is against to
purchase it as an in!oluntary transfer "i.e.
law firm?
1# as a matter of pulic policy0 law firms
are not allowed to uy off suits
against them 7c they*ll de!alue it at
a !ery low amount
/. (he assignment rules are not uniform across the country and $%
has not adopted any of the e4ceptions from the 9oodley case
/. $i!il $ases 9 Eligations to (hird Parties "non9clients#
1. R-d A /2D see ao!e
2. R-d A ,, statesD Duration of )rivilege ! 3nless waived or sub"ect
to e#ception$ the a/c privilege may be invo,ed at any time during
or after the relationship btw client or prospective client and lawyer
-. R-d A ,; statesD greement$ Disclaimer$ or 0ailure to 5b"ect ! n
a/c privilege is waived if the client$ the lawyer$ or another
authori?ed agent of the lawyer (7* agrees to waive the privilege (8*
disclaims protection of the privilege and (a* another person
reasonably relies on the disclaimer to his detriment (b* or reasons
of "udicial admin re(uire that the client not be permitted to revo,e
the disclaimer or (:* in a proceeding before a tribunal$ fails to
ob"ect properly to an attempt by another person to give or e#act
testimony or other evidence of a privileged communication
/. .egligence
"1# Mason v Levy "original lawyer replaced y new ones who
lost 7c of negligently letting the SEL run#
"1# the Ls owed no duty to P lawyer to prosecute the
case in any particular mannerJ the duties are owed to
the client
"2# oth sets of lawyers were negligent0 ut e8uitale
indemnity is not allowed so there can e no shift in
lame. (he P may reco!er 1CCO from either party0
ut the Ls cannot di!ide up the amount tw them
"-# e!en if the lawyers represented the P concurrently0
they still ha!e no e8uitale indemnity 7c their duty
is to the client0 not to one another
"2# R-d says there*s four situations where a duty to use due
care may e e4tended to non9clients
"1# A ?1"1# 9 prospective client 9 duty of care owed
particularly the oligation to maintain confidences
and the duty to a!oid accepting ad!erse employment
"2# A ?1"2# 9 duty of care where the lawyer*s conduct
has in!ited or induced reliance y the non9client on
the lawyer*s opinion or pro!ision of other legal
ser!ices
"-# A ?1"-# 9 intended beneficiaries of the lawyer*s
wor1 for the client. When the primary o:ecti!e of
the representation of the client is to confer a enefit
upon the non9client
"/# A ?1"/# 9 to eneficiaries when an attorney
represents a fiduciary as a client
?. $riminal =alpractice
1. ;iley v Co1nty of San (ie2o "was con!icted of attery and claims
that he had ineffecti!e counsel#
"1# In ci!il malpractice cases he elements for a c7a for
professional negligence are
"1# (he duty of the lawyer to use such s1ill0 prudence
and diligence as memers of the profession
commonly posses
"2# % reach of that duty
"-# % pro4imate causal connection tw the reach and
the resulting in:ury
"/# %ctual loss of damage
"2# In criminal malpractice cases0 the clear ma:ority of cts also
re8uire proof of actual innocence as an additional element
"1# you can e clearly negligent and yet not e
answerale to the client
"-# %llowing a con!icted criminal to sue is li1e letting him
profit from his own wrongdoing
"/# ProlemD you only let someone innocent sue0 ut the reason
they*re suing is 7c they were found guilty due to ineffecti!e
counsel
?. Super!ision
1. Super!isory Lawyers
1. =R ?.1 statesD 'esponsibilities of a )artner or Supervisory
Lawyer ! (a* a partner in a firm shall ma,e reasonable efforts to
ensure that the firm has measures giving reasonable assurance
that all lawyers in the firm conform to the ')C (b* a lawyer
having direct supervisory authority over another lawyer shall
ma,e reasonable efforts to ensure that the other lawyer conforms
to the ')C (c* lawyer shall be responsible for another lawyer%s
violation "!icarious liaility# of the ')C if (7* the lawyer orders or$
w/ ,nowledge of the specific conduct$ ratifies the conduct involved
or (8* the lawyer is a partner in the same firm$ or has direct
supervisory authority over the other lawyer$ and ,nows of the
conduct at a time when its conse(uences can e avoided or
mitigated but fails to ta,e reasonable remedial action
2. R-d A 12 statesD Duty of a Lawyer Sub"ect to Supervision ! (7*
lawyer must conform to the re(uirements of an applicable lawyer
code even if the lawyer acted at the direction of another lawyer or
other person (8* lawyer under the direct supervisory authority of
another lawyer doesn%t violate an applicable lawyer code by
acting in accordance w/ the supervisory lawyer%s direction based
on a reasonable resolution of an arguable (uestion of professional
duty
-. $% has no e8ui!alent set of rules0 ut most li1ely adopts it in
practice
2. Suordinate Lawyers
1. =R ?.2 statesD 'esponsibilities of a Subordinate Lawyer ! (a*
lawyer is bound by the ')C despite that the lawyer acted at the
direction of another person (b* a subordinate lawyer doesn%t
violate the ')C if that lawyer acts in accordance w/ a supervisory
lawyer%s reasonable resolution of an arguable (uestion of
professional duty
2. R-d A 1- statesD see ao!e
-. Super!ising $lient
=' Coppoc+ v State Bar of CA
"1# $% e!en applied the same super!isory standards to the
client 7c the lawyer 1new what the client was doing and
loo1ed away
B. Ineffecti!e %ssistance of $ounsel
1. %t trial
1. Stric+land v ;as$in2ton "L thin1s his death sentence should e
set aside 7c his lawyer didn*t loo1 into his mental state or
in!estigate character witnesses#
"1# %n error y counsel0 e!en if unreasonale0 doesn*t warrant
setting aside the :udgment if the error had no effect on the
:udgment
"1# %ny deficiencies in performance must e pre:udicial
to the L in order to constitute ineffecti!e assistance
under the constitution
"2# (o get a re!ersal of a death sentence0 the L must show that
counsel*s performance was deficient y using the 2 prong
test
"1# Performance prong 9 counsel made errors so serious
that counsel was not functioning as the counsel
guaranteed the L y the B
th
amendment
1# $ounsel*s performance has to fall elow the
pre!ailing standard of care
2# reasonaleness standard. Hou could e
negligent0 yet still effecti!e
"2# Pre:udice prong 9 the deficient performance
pre:udiced the L y showing that counsel*s errors
were so serious as to depri!e the L of a fair trial0 a
trial whose result is reliale
1# pre:udice is presumed when counsel is
urdened y actual conflict of interest
S1llivan
2# limited presumption 9 L doesn*t ha!e to
pro!e pre:udice ut two other things "i# he
was under an actual conflict of interest
presumaly at trial "ii# that conflict affected
the lawyer*s performance ma1ing it
inade8uate
-# if you can show that the outcome of the case
would ha!e een different
"-# gi!en the o!erwhelming aggra!ating factors0 there is no
proaility that the omitted e!idence would ha!e changed
the conclusion the ineffecti!eness claim is w7o merit
2. the standard for attorney performance is that of reasonaly effecti!e
assistance "o:ecti!e standard#
"1# it*s a constitutional standard that arose from the B
th

amendment right to effecti!e counsel
-. (he &7P is so high that many states ha!e had no re!ersal for
ineffecti!e assistance of counsel
"1# .eed demonstrale proof of innocence
"2# (his case asically says that the only time it should e
re!ersed is when an innocent person has een con!icted
;. 3ormation of %ttorney9$lient Relationship
1. When is the %ttorney9$lient Relationship )stalished?
1. R-d A 2B statesD Lawyer%s ctual uthority ! lawyer%s act is
considered to be that of a client when (7* the client has e#pressly or
impliedly authori?ed the act (8* authority concerning the act is reserved to
the lawyer or (:* the client ratifies the act
2. %pplies not :ust when the lawyer agrees to represent the client. (hey ha!e
oligations to non clients e!en though there*s no fee recei!ed0 no contract0
no memo of an agreement and there*s no actual wor1 done for the alleged
client
-. $% has the strictest protection in the nation for client confidences
"1# an a7t rel may e estalished e!en where the attorney is an
imposter0 is not licensed0 is suspended0 or is disarred
2. Who is the $lient?
1. Representing $lients 'nder a 2isaility
1. =R 1.1/ statesD Client 3nder a Disability ! (a* Bhen a client%s
ability to ma,e ade(uately considered decisions is impaired$
whether b/c of minority$ mental disability or other reason$ the
lawyer shall maintain a normal client!lawyer relationship w/ the
client (b* a lawyer may see, the appointment of a guardian or ta,e
other protective action w/ respect to a client$ only when the lawyer
reasonably believes that the client cannot ade(uately on his own
2. R-d A 2/ statesD Client w/ Diminished Capacity ! (7* Bhen a
client%s capacity to ma,e ade(uately considered decisions$ whether
b/c of minority$ physical illness$ mental disability$ or other$ the
lawyer must maintain a normal client!lawyer relationship w/ the
client and act in the best interest of the client (8* lawyer rep a
client w/ diminished capacity and for whom no guardian or other
rep is available to act$ must$ pursue the lawyer%s reasonable view
of the client%s ob"ectives or interests as the client would define
them if able to ma,e ade(uately considered decisions$ even if the
client e#presses no wishes or gives contrary instructions (:* -f a
client w/ diminished capacity has a guardian or other person
legally entitled to act for the client$ the client%s lawyer must treat
that person as entitled to act w/ respect to the client%s interests in
the matter$ unless (a* the lawyer represents the client in a matter
against the interests of that person or (b* that person instructs the
lawyer to act in a manner that the lawyer ,nows will violate the
person%s legal duties toward the client (;* lawyer representing a
client w/ diminished capacity may see, the appointment of a
guardian or ta,e other protective action w/in the scope of the rep
when doing so is practical and will advance the client%s ob"ectives
or interests
"1# $omment cD % lawyer may properly w7hold from a
disaled client information that would harm the
client
-. $% has not addressed the prolem of the disaled client in its ethics
rules
/. (wo roles the attorney may perform
"1# %d!ocacy 9 attorney see1s to secure full legal rights for the
client0 e!en if the client will therey e denied much needed
treatment
"2# Paternalism 9 attorney decides what is est for the client and
acts accordingly0 e!en if the client does not appear to want
that choice
?. C$essan "$% death penalty# told his lawyers that he didn*t want
them to appeal the death penalty and wanted to die 7c he had done
something awful in a formal life and this death would wipe the slate
clean
"1# 2o you act in ad!ocacy "autonomy# or paternalism
"1# %utonomy is fa!ored o!er paternalism
2. Representing 3iduciaries
1. R-d A ?1"/# statesD Duty of Care to Certain Conclients ! lawyer
owes a duty to use care to a nonclient when and to the e#tent that
(a* the lawyer%s client is a trustee$ guardian$ e#ecutor$ or fiduciary
acting primarily to perform similar f#ns for the nonclient (b* the
lawyer ,nows that appropriate action by the lawyer is necessary w/
respect to a matter w/in the scope of the rep to prevent or rectify
the breach of a fiduciary duty owed by the client to the nonclient$
where (i* the breach is a crime or fraud or (ii* the lawyer has
assisted or is assisting the breach (c* the nonclient is not
reasonably able to protect its rights and (d* such a duty would not
significantly impair the performance of the lawyer%s obligations to
the client
"1# $omment hD
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2. Parents and $hildren
"1# Laare "=% case 9 dad fled country with the 1ids and mom can*t
find one of them. She sues the dad*s lawyer 7c the lawyer 1new
aout it#
"1# court said that the lawyer had no duty to the child.
>e represented the father0 not oth
"2# the 1nowledge of the father*s action didn*t create a
duty to the child to do anything
"2# #1s$ins+y "$% case 9 attorney hypnoti<ed the daughter to
find out if she was molested y the father#
"1# purest dicta therefore not inding on anyone
"2# found that there is a duty. (he issue is not
undi!ided duty to client0 ut is the pulic policy
argument that children are in need of protection0
e!en sometimes from their fol1s
"-# duty is to protect the child e!en at the e4pense of
your loyalty to the client
-. Guardians and Wards
"1# =R 1.1/ $omment /D If the lawyer represents the guardian
as distinct from the ward0 and is aware that the guardian is
acting ad!ersely to the ward*s interest0 the lawyer may ha!e
an oligation to pre!ent7 rectify the guardian*s misconduct
"2# Morales v "ield "lawyers represent fiduciary and tell
eneficiary he doesn*t ha!e to do anything and should e assured
that his interests will e protected
"1# lawyers ma1e gratuitous statements to the
eneficiary and he relied on them to his detriment
the lawyer should e responsile
"-# - possile fact patterns
"1# intentional 9 lawyer and fiduciary conspire to !iolate
the eneficiary the eneficiary can sue either the
attorney or fiduciary
1# claim from tort theory of intentional
wrongdoing0 not 7c of the status of eing
the representati!e of the fiduciary
"2# negligent 9 negligent lawyer failed to disco!er
fiduciaries !iolation of eneficiary
1# different from L1cas 7c in Lucas the
interests of the client and -
rd
party are e4actly
identical. (here is harmony tw what the
fiduciary wants to gi!e and what the -
rd
party
wants to get. >ere there is disharmony 7c
the fiduciary is cheating the -
rd
party
"-# non negligent nor has acti!ely participated in the
harm
1# Morales principle is re:ected "that you*re
liale simply 7c you*re in!ol!ed in fiduciary
triangle#0 ut the fact pattern where they
created e4pectation is reaffirmed in the
Jo$nson case p BB+ "you can reco!er 7c
you*re lured into it y the statements of the
attorney#
2# triangular relationship cases
-. Representing )ntities
1. =R 1.1- statesD 5rgani?ation as Client ! (a* lawyer employed by
an org represents the org acting through its constituents (b* -f a
lawyer for an org ,nows that an employee of the org is violating a
legal obligation to the org$ the lawyer shall proceed in the best
interest of the org (c* -f despite the lawyers efforts$ the highest
authority of the org doesn%t stop violating the law or in"uring the
org$ the lawyer may resign (d* a lawyer shall e#plain the identity
of the client when it is apparent that the org%s interests are adverse
to those of the constituents (e* a lawyer rep an org may also rep
any constituent& -f the org%s consent to the dual representation is
re(uired the consent shall be given by an appropriate official of
the org other than the indiv who is to be represented
2. $RP$ -9BCC statesD 5rgani?ation as Client ! (a* -n rep an org$ a
member shall conform his rep to the concept that the client is the
org itself$ acting through its highest authori?ed officer$ employee$
body$ or constituent overseeing the particular engagement (b* -f a
member rep an org ,nows that an agent of the org is violating a
law reasonably imputable to the org$ the member shall not violate
his duty of protecting all confidential info (c* if the highest
authority of the org insists on violating the law that in"ures the
org$ the lawyer is limited his right and duty to resign (d* a member
shall e#plain the identity of the client for whom he acts$ whenever
it is apparent that the org%s interests are adverse to the
constituent& The member shall not mislead the constituent into
believing that he can communicate confidential info to the lawyer
in a way that will not be used in the org%s interest if that is adverse
to the constituent (e* a member rep an org may also rep any
constituent& -f the org%s consent to the dual rep is re(uired$ the
consent shall be given by an appropriate constituent of the org
other than the indiv who is to be represented
-. )ntity (heory
"1# Rule 1.1-a 9 entity theory 9rep of an organi<ation ma1es the
lawyer recogni<e the client constituent as a legal fiction and to
recogni<e the entity as an astract
"2# Rule 1.1- two triggers set up 9
"1# %ctual7potential legal !iolation to the organi<ation 9
reach of fiduciary duty
"2# Giolation of law which reasonaly might e imputed
to the organi<ation and is li1ely to lead to sustantial
in:ury to the organi<ation
"-# Rule 1.1-c 9 In the corporate world0 the worst thing a lawyer can
do is s8ueal on a client. (hey*d rather see the entity fall0 than
s8ueal
"1# Seems the o$$osite is what is consistent with entity
theory
"/# Rule 1.1-d $reates a form of =iranda warning
"1# If you can ma1e it unreasonale for the constituent
to elie!e that the attorney is acting as his personal
attorney0 then the conflict ne!er arises. %nything
shared with the attorney y the constituent is
discloseale to the entity
"2# (hough the idea is right0 the actual wording is not
1# Says you shall e4plain your relationship to
the constituent when it*s already apparent
that the entity is in conflict with the
constituent
1# this is too late. It*s etter to e4plain
the identity of the client efore
anything ecome apparent
"?# Rule 1.1-e 9 If there*s a conflict0 it might e cured y consent
/. % $orporation and it*s Efficers
"1# Mee$an v Hopps "3ormer president of org sued y org#
"1# lawyer represents the corporation0 not the indi!idual
"2# %lthough his actions would*!e enefitted the pres
"employment contract#0 it doesn*t create an attorney7client
relationship
"-# since the confidences weren*t personal0 ut y fiduciary
theory were re8uired to e communicated to the lawyer0
the pres was duty ound to gi!e them to the entity
"/# &efore they sign the employment contract they are in an
arms length relationship "at ad!erse positions#
1# (he lawyer doesn*t owe a duty in this arms
length situation to the president 7c all he was
doing was representing the corporation
"2# 9oldstein v Lees "(he entity lawyer resigned to wor1 for a
director in a suit against the entity
"1# (he lawyer owes a fiduciary duty to the entity and the
attorney can*t :ump ship and side with any faction
cannot rep the director or the shareholders
"2# $% 9 an attorney cannot reco!er for ser!ices
rendered if those ser!ices are rendered in
contradiction to the re8uirements of professional
responsiility
"-# a director has a right to get confidential info0 ut no
e4clusi!e right to get it from formal counsel
"-# (ic+erson v S1perior Co1rt 3"errito5 "lawyer had
represented 2 and later refused to answer 8uestions aout him in
deposition o!er the disappeared entity
"1# %s long as there is a holder of the pri!ilege in e4istence at
the time disclosure is sought0 the attorney has the duty to
e4ercise the pri!ilege unless the holder of the pri!ilege
instructs him not to do so
?. $losely >eld $orporations
"1# >a!e limited numer of shareholders0 ut Prolem is
identifying the constituents from the entity is difficult to do
here
"2# ;oods v S1perior Co1rt "lawyer represented the family
corporation0 and now they are getting a di!orce#
"1# It*s not representation of concurrent clients unless
you find that y representing the entity the lawyer
was also representing the parties indi!idually
"2# %sent consent or wai!er0 the attorney of a family
owned usiness0 corporate or otherwise0 should not
represent one owner against the other in a
dissolution action
"-# Reaffirms the rule that you represent the entity and
you can*t prefer any of it*s constituents and
definitely not to the point of representing them
3&5 "latt
"1# 2is8ualification is proper to a!oid any appearance of
impropriety. 2ual rep of clients w7 ad!erse interests
is impermissile "in the asence of informed consent#
and re8uires automatic dis8ualification
"/# S+arbrevi+ v Co$en "corporate attorney conspired w7
ma:ority shareholders to defraud the minority sharehoder#
"1# %n attorney representing a corporation doesn*t
ecome the representati!e of its stoc1holders merely
7c the attorney*s actions on ehalf of the
corporation also enefit stoc1holdersJ as attorney
for the corporation0 counsel*s first duty is to the
corporation
"2# %nalysis
1# loo1 for attorney client relationship
1# if so0 then a duty is automatically
owed
2# has the attorney ac8uired confidential
information in such a way that the attorney
has a duty to protect that information?
-# has ad!ice or reliance een enduced
/# e4press fiduciary duty?
?# Lucas ! >amm "Goodman ! @ennedy#
theory?
1# the P is the intended eneficiary and
you*re negligence has cause him
harm
B# fiduciary duty implied from the P*s status
"?# !n re Ban+s "(he entity acted unethically and illegally in
order to pre!ent from going an1rupt#
"1# (he firm represented oth =ichel and the
corporation at the time the contract was drawn and
that it could not suse8uently0 when the interests of
its clients were in opposition0 represent either one in
a dispute o!er the application of the contract w7o
the consent of oth
"2# $%
1# Hou can represent oth the entity and the
indi!idual. &ut once their interests ecome
ad!erse0 you must step down from
representing the entity. Hou can still
represent the indi!idual. Seems weird that
you*d gi!e up on the entity. &ut it*s :ustified
7c it*s thought that you*re connection with
the constituent indi! would e so close that
if you had stuc1 with the entity0 you
wouldn*t ha!e the degree of loyalty that you
should ha!e
B. % Partnership and its Partners
"1# -esponsible Citizens v S1perior co1rt
"1# attorney representing a partnership doesn*t
necessarily ha!e a duty to a partner "accepts entity
theory#
1# $% applies entity theory in practically all
situations in!ol!ing an organi<ation
"2# $% Rule -9BCCa and e
1# "e# says that if you rep the entity you can
also rep the constituent under certain
circumstances
"-# If you represent the partnership0 you don*t
automatically represent the indi!idual. Iust as if you
rep the entity you don*t automatically rep the indi!
"/# ;oods is factually distinguished
1# >ere the contro!ersy is tw one owner of
the usiness and a -
rd
party and the usiness
is not the source of the conflict
,. Partnerships 9 General and Limited Partners
3=5 Jo$nson v S1perior Co1rt
"1# 3actors which would determine whether the
partnership attorney has estalished an attorney9
client relationship w7 the indi!idual partners
1# the si<e of the partnership
2# the nature and scope of the attorney*s
engagement
-# the 1ind and e4tent of contracts tw the
attorneys and the indi! partners
/# the attorney*s access to financial info relating
to the indi! partner*s interests
?# primary attention should e gi!en to whether
the totality of the circumstances0 including
the parties* conduct0 implies an agreement y
the partnership attorney not to accept other
representations ad!erse to the indi! partner*s
personal interests
"2# $ourt says that
1# (he lawyer owes fiduciary duty to limited
partners 7c the general partner also owes a
duty to the limited partners and the two of
them "lawyer and general partner# cannot
conspire to act against them
1# Similar to not eing ale to ta1e sides
+. (he %ttorney9$lient Pri!ilege
@@om_ : _m _@ mm m o omm mono@ mm m o _@omoo omoo@mo_ on _o_nmn _
@mom@:
)ssentially the client*s pri!ilege0
though the lawyer can assert it for
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1. (hree types
1. &tw the attorney7client or a third party7client
"1# %ttorney7client 9 eg. Epen up a restaurant together
"2# (hird party7client 9 when one party is willing to pay for the
representation of the client
"1# eg. 2ad pays for my defense cost
"2# lawyer can*t accept the money w7o the client*s
consent "i# if there is consent0 the lawyer doesn*t
ha!e duty to the -
rd
party to gi!e them any info
aout the representation
2. =ultiple clients
"1# Lawyer simultaneously represents multiple clients
"2# )g. $lass action0 many criminal Ls in the same case or in
difference cases etc
"-# In pursuing the interests of one client and would in effect e
hurting the other client
"/# Rule of thum 9 cannot sue a current client
"?# While you can rep multiple0 if their interests ecome
actually ad!erse0 you must step down in representation
-. Successi!e or consecuti!e clients
"1# Hou rep a client and the representation ends0 then new
client whose interests are ad!erse to the former client
"2# With concurrent clients 9 each is owed undi!ided loyalty and
the duty to maintain confidences and secrets
"-# With successi!e clients0 you can sue your old client on a
different topic0 ut the oligation of non9disclosure still
stands
"/# Hou can sue former clients in unrelated cases0 ut you can*t
sue concurrent clients in unrelated cases
2. $onflicts don*t necessarily preempt representation
1. =ost conflicts are curale if the parties are willing to wai!e the
conflict
2. $% 9 non9curale non9wai!ale conflicts -9BCC
"1# $an*t rep the P and L at trial in the same case e!en if they
oth say it*s o1ay
"2# A a adopts entity theory
"-# A re:ects the internal !iolation trigger and di!ides the other
trigger from the =odel Rule
"1# .o maintaining and outside lawyer*s second opinion
"/# A c0 d0 and e follow =odel Rules and =iranda warning ideas
2. (he %ttorney9$lient Pri!ilege and $onfidentiality
1. State v Beatty "patient confess to psychiatrist she committed crimes and he
turned her into the authorities#
1. Pulic policy ehind te physician9patient pri!ilege statute is to
inspire confidence in the patient so as to encourage him to ma1e full
disclosures to his medical ad!isers the physician may properly
treat his patient
2. Same is intended for a7c relationship
2. (he .ature and Purpose of the Pri!ilege
1. (he a7c pri!ilege is not constitutionally ased
2. )!ery state has it*s own !ersion of the pri!ilege
-. R-d A B; statesD /C )rivilege ! The a/c privilege may be invo,ed
w/ respect to (7* a communication (8* made btw privileged persons
(:* in confidence (;* for the purpose of obtaining or providing
legal assistance for the client
/. %7$ pri!ilege contains the following elements
"1# a client
"2# see1ing legal ad!ice
"-# from a person the client elie!es to e an attorney
"/# engages w7 that attorney in gi!ing or recei!ing a
communication
"?# made in confidence or intended to e confidential
"B# which the client doesn*t consent to e disclosed
-. (he $% )!idence $ode
1. (he a7c pri!ilege in $% only applies in court
2. A +?C statesD Lawyer ! means a person authori?ed$ or reasonably
believed by the client to be authori?ed to practice law in any state
or nation
-. A +?1 statesD Client ! a person who consults a lawyer for the
purpose of retaining the lawyer or securing legal service or advice
from him in his professional capacity
/. A +?- statesD Confidential communication btw client and lawyer !
info transmitted btw a client and his lawyer in the course of that
relationship and in confidence
?. A +?/ statesD Lawyer!client privilege ! the client has a privilege to
refuse to disclose$ and to prevent another from disclosing a
confidential communication btw client and lawyer if the privileged
is claimed by the holder of the privilege$ an person authori?ed to
clam the privilege by the holder or the person who was the lawyer
at the time of the confidential communication& Co person may
claim the privilege if there is no holder of the privilege in
e#istence or if he is instructed by a person authori?ed to permit
disclosure
B. A +?? statesD Bhen lawyer re(uired to claim privilege ! lawyer
shall claim the privilege whenever he is present when the
communication is sought to be disclosed and is authori?ed to
claim the privilege
,. A +12 statesD Baiver of privilege ! The right of any person to claim
a privilege is waived w/ respect to a communication protected by
such privilege if any holder of the privilege$ w/o coercion$ has
disclosed a significant part of the communication or has consented
to such disclosure made by anyone
;. Policy 9 the legal system could not e reliale and effecti!e0 unless
full protection of client confidences could e guaranteed
+. In criminal cases0 the pri!ilege also ser!es to preser!e a L*s
pri!ilege against self9incrimination
1C. When a party asserts the a7c pri!ilege0 it is that party*s urden to
pro!e the preliminary fact that a pri!ilege e4ists
/. Lawyer and $lient
1. R-d A ,C statesD /C )rivilege. )rivileged )ersons ! are the client
(prospective included*$ the client%s lawyer$ agents of either who
facilitate communications btw them$ and agents of the lawyer who
facilitate the representation
2. R-d A ,2 statesD /C )rivilege. Legal ssistance as the 5b"ect of a
)rivileged Communication ! communication is made for the
purpose of obtaining or providing legal assistance if it is made to
or to assist a person. (7* who is a lawyer or who the client or
prospective client reasonably believes to be a lawyer and (8* whom
the client or prospective client consults for the purpose of
obtaining legal assistance
-. R-d A ,- statesD )rivilege for an 5rgani?ational Client ! Bhen a
client is a corp$ unincorp assoc$ partnership$ trust$ estate$ sole
proprietorship$ or other for!profit or non!profit org$ the a/c
privilege e#tends to a communication that (7* otherwise (ualifies
as privileged under @ >G!D8 (8*is btw an agent of the org and a
privileged person (:* concerns a legal matter of interest to the org
and (;* is disclosed only to (a* privileged persons and (b* other
agents of the org who reasonably need to ,now of the
communication in order to act for the organi?ation
/. <pAo$n v <S "pharmaceutical co accused of paying foreign officials
to guarantee usiness#
"1# the pri!ilege only protects disclosure of communicationsJ it
doesn*t protect disclosure of the underlying facts y those
who communicated w7 the attorney
"2# 5$ontrol group6 9 the people who hold the pri!ilege are
those that run the entity or control itJ it allows them to run
the company w7o fear of disco!eraility
"-# lower employees don*t ha!e the pri!ilege. If they did then
there would e lan1et silence and the P can*t find anything
out
"/# )lements which trigger protection7pri!ilege under <pAo$n
"1# must e a communication
"2# made y an entity employee "constituent#
"-# at the direction of an entity officer "employee is
induced
"/# to an entity attorney
"?# who is acting in the capacity of an entity attorney
"B# for the purpose of the entity otaining legal ad!ice
from the entity attorney
"?# 2oes not apply where
"1# an attorney 8uestions former employees
"2# where an employee !oluntarily pro!ides the attorney
w7 information w7o eing re8uested y an entity
officer to do so
"B# What is !ital is that the communication e made in
confidence for the purpose of otaining legal ad!ice from
the lawyer. If what is sought is not legal ad!ice ut ad!ice
of another 1ind0 no pri!ilege e4ists
?. C$adbo1rne v S1perior Co1rt 3Sit$5"Smith fell on a sidewal1
negligently maintained y $hadourne# 9 $% answer to <pAo$n
"1# % communication is not protected y the a7c pri!ilege0 e!en
when made in the course of professional employment0
unless the client intends that it e treated in confidence
"1# here there was no direct chain of communication
"2# re:ects the control group test an ga!e a new 119step formula
for fle4iility "find a comination that wor1s#
B. <S v -o*e "two associate lawyers to in!estigate another lawyer*s
handling of client funds#
"1# Since he as1ed lawyers to conduct the in!estigation0 he is
:ustified in e4pecting that the communications w7 these
lawyers e pri!ileged
"2# &y !irtue of eing a law firm0 they could e their own
lawyers and clients
,. McCoric+ v S1perior Co1rt 3%elson5 "3irm 1new that .elson
intended to sue them so they hired another law firm to defend#
"1# If the communication has ut a single purpose0 and that
purpose is for transmittal to an attorney in the course of
professional employment0 then the pri!ilege applies
"2# Prior to such employment0 the communications of attorneys
tw themsel!es don*t en:oy the protections of the a7c
pri!ilege
"-# So long as the =c$ormic1 firm created the docs for its own
use0 the intended use was not a confidential transmittal to an
attorney or indeed any transmittal at all
"/# it*s asurd that a lawyer can e oth a lawyer and a client
;. Hoiles v S1perior Co1rt 3"reedo %e*spapers5 "minority
shareholder and director of family corp re8uests related documents#
"1# $orporations en:oy a7c pri!ileges and in closely held
corporations
3>5 9oldstien v Lees
"1# the shareholder*s don*t ha!e access to confidential
info0 ut the directors did0 as part of their fiduciary
duty
"2# >oiles has not rought the suit as a director0 only as
shareholder
3&5 9arner
"1# %n attac1 on the notion that shareholder*s don*t
ha!e access to confidential information
1# Shareholder*s )4ception "deri!ati!e suit
e4ception#9 allowed them to
1# if shareholders are suing the entity to
sa!e entity from harm from the
directors and ma:ority shareholders0
then the only way they can do that is
if they ha!e access to confidential
info. It doesn*t !iolate the safety of
the entity 7c this suit would purge
them of the people who are polluting
it
2# not all fed courts follow this
e4ception
2# >oiles says this can*t e an e4ception
1# (he $% cts ha!e adicated the right
to decide 8uestions of pri!ilege in
lieu of legislati!e action
2# Whate!er the legislature decides
cannot e altered y the courts
-# (he ultimate authority in regards to
pri!ilege is the legislature
/# )!en if they wanted it to e an
e4ception0 they can*t do it
+. )4 Parte $ontact With 3ormer )ntity )mployees
"1# =R /.2 statesD Communication w/ )erson 'epresented by
Counsel ! -n representing a client$ a lawyer shall not
communicate about the sub"ect of the representation w/ a
person the lawyer ,nows to be represented by another
lawyer in the matter$ unless the lawyer has the consent of
the other lawyer or is authori?ed by law to do so
"1# $ommentD (his does not prohiit communication w7
a represented person concerning matters outside the
representation
"2# =R /.- statesD Dealing w/ 3nrepresented )erson ! -n
dealing on behalf of a client w/ a person who is not
represented by counsel$ a lawyer shall not state or imply
that the lawyer is disinterested& Bhen the lawyer ,nows or
reasonably should ,now that the unrepresented person
misunderstands the lawyer%s role in the matter$ the lawyer
shall ma,e reasonable efforts to correct the
misunderstanding
"1# $ommentD 2uring the lawyer*s representation of a
client0 the lawyer shouldn*t gi!e ad!ice to an
unrepresented person other than the ad!ice to otain
counsel
"-# $RP$ 291CC statesD Communication w/ a 'epresented
)arty ! (a* Bhile rep a client$ a member shall not
communicate directly/indirectly about the sub"ect of the
rep w/ a party the member ,nows to be represented by
another lawyer in the matter$ unless the member has the
consent of the other lawyer (b*2party2 includes (7* an
officer$ director$ or managing agent of a corp or assoc$
and a partner or managing agent of a partnership or (8*
an assoc member or an employee of an assoc$ corp$ or
partnership$ if the sub"ect of the communication is any act
or omission of such person in connection w/ the matter
which may be binding upon or imputed to the org for
purposes of civil or criminal liability or whose statement
may constitute an admission on the part of the org (c* This
rule shall not prohibit (7* communications w/ a public
officer$ board$ committee$ or body (8* communications
initiated by a party see,ing advice or representation from
an indep lawyer of the party%s choice or (:*
communications otherwise authori?ed by law
"/# R-d A +; statesD Statements to a Conclient ! lawyer
communicating on behalf of a client w/ a nonclient may not
(7* ,nowingly ma,e a false statement of material fact or
law to the nonclient (8* ma,e other statements prohibited
by law (:* fail to ma,e a disclosure of info re(uired by law
"?# R-d A ++ statesD 'epresented Conclient. The General
nti!Contact 'ule ! lawyer rep a client in a matter may
not communicate about the sub"ect of the rep w/ a
nonclient whom the lawyer ,nows to be represented in the
matter by another lawyer or w/ a representative of an
organi?ational nonclient so represented unless (a* the
communication is with a public officer (b* the lawyer is a
party and represents no other client in the matter (c* the
communication is authori?ed by law (d* the communication
reasonably responds to an emergency or (e* the other
lawyer consents
"B# R-d A 1CC statesD Definition of a 'epresented Conclient 9
(7* a natural person represented by a lawyer and (8* a
current employee or other agent of an org represented by a
lawyer (a* if the employee or other agent supervises$
directs or regularly consults w/ the lawyer concerning the
matter or if the agent has power to compromise or settle
the matter (b* if the acts or omissions of the employee or
other agent may be imputed to the org for purposes of civil
or criminal liability in the matter or (c* if a statement of
the employee or other agent wold have the effect of binding
the org w/ respect to proof of the matter
",# R-d A 1C2 statesD -nformation of a Conclient Known to Be
Legally )rotected ! lawyer communicating w/ a nonclient
in a situation permitted may not see, to obtain info that the
lawyer reasonably should ,now the nonclient may not
reveal w/o violating a duty of confidentiality to another
imposed by law
";# R-d A 1C- statesD Dealings w/ an 3nrepresented Conclient
! -n the course of rep a client and dealing w/ a nonclient
who is not rep by a lawyer (7* the lawyer may not mislead
the nonclient$ the pre"udice of the nonclient$ concerning
the identity and interests of the person the lawyer
represents (8* when the lawyer ,nows or reasonably should
,now that the unrepresented nonclients misunderstands the
lawyer%s role in the matter$ the lawyer must ma,e
reasonable efforts to correct the misunderstanding when
failure to do so would materially pre"udice the nonclient
"+# %alian #r1c+ Lines v %a+ano ;are$o1se "former memer
of a corporate ad!ersary*s control group#
"1# Ence this person is a former memer of the control
group0 they are no longer a current memer of the
control group0 thus they are not a part of the entity0
and thus are not protected and thus can e contacted
"2# $% rule says a former memer of the entity can e
contacted
1C. $urrent memers of the entity
3=5 AAA
"1# $urrent people not in the control group can e
contacted
1# control group includes the e4tension in $%
291CC 2 9 people who aren*t running or
managing it ut ha!e a way to su:ect it to
liaility
3>5 Mills Landen ;ater Co
"1# Still in control group in a different capacity. $an*t
ha!e contact with that person
11. Summary
"1# Enly those who are currently in the entity and are w7in the
definition of "#1 or "#2 fall w7in the definition of $% Rule
291CC
"2# (he %&% =R /.2 doesn*t e4ist as a separate rule
12. 3ederal Prosecutors and )4 Parte $ontacts
"1# R-d A ++D see ao!e
"2# <S v Lopez "criminal goes ehind his lawyer*s ac1 to ma1e
plea argain with the lawyer of the coL. .ew lawyer steps
in and helps Lope< w7o telling Lope<*s lawyer#
"1# Lyons had an ethical duty to a!oid communicating
directly with Lope< regarding the criminal
prosecution so long as Lopes was represented y
(arlow
1-. (he Pri!ilege and Go!ernment Lawyers
"1# R-d A ,/ statesD )rivilege for a Governmental Client !
unless applicable law otherwise provides$ the attorney!
client privilege e#tends to a communication of a govt org
and of an indiv employee or other agent of a governmental
org as a client w/ respect to his or her personal interest
"2# !n re 9rand J1ry S1bpoena (1ces #ec1 "federal grand
:ury compel the production of document of $linton*s
in!ol!ement in Whitewater#
"1# White >ouse may not use the a7c pri!ilege to a!oid
complying w7 the supoena issued in this case y
federal grand :ury calling for the notes in 8uestion
"2# there is not wor1 product immunity for materials
merely 7c they were prepared while some other
person0 such as =rs. $linton0 was anticipating
litigation
"-# !n reB Br1se -' Lindsey 39rand J1ry #estiony5
"1# where one consults an attorney not as a lawyer ut
as a friend or as a usiness ad!iser0 the consultation
is not professional nor the statement pri!ileged
"2# when an e4ecuti!e ranch attorney is called efore a
fed grand :ury to gi!e e!idence aout alleged crimes
w7in the e4ec ranch0 that attorney shall pro!ide that
e!idence
1# unli1e a pri!ate practitioner0 the loyalties of a
go!ernment lawyer therefore cannot and
must not lie solely w7 his or her client agency
"-# A ?-?"# statesD all government employees
including lawyers$ are duty!bound not to w/hold
evidence of federal crimes
1/. $onfidential communications
"1# R-d A B+ statesD /C )rivilege. Communication ! is any
e#pression through which a privileged person underta,es
to convey info to another privileged person and any doc or
other record revealing such an e#pression
"2# R-d A ,1 statesD /C )rivilege. -n Confidence ! if at the
time and in the circumstances of the communication$ the
communicating person reasonably believes that no one will
learn the contents of the communication e#cept a
privileged person or another person w/ whom
communications are protected under a similar privilege
"-# R-d A ,2D see ao!e
"/# State "ar "ire and Cas1alty Copany v S1perior Co1rt
3#aylor5 "fraudulently w7held earth8ua1e insurance
co!erage#
"1# the crime7fraud e4ception precluded application of
the a7c pri!ilege
"2# a7c pri!ilege only protects the communication0 not
underlying facts
"-# the communications were made in connection w7
disco!ery underta1en during litigation there is a
reasonale relationship tw the communications and
the alleged fraud
"?# <S v Ba1er "man made false statements on his an1ruptcy
petition and his lawyer testified against him and !iolated the
pri!ilege#
"1# test for in!o1ing crime9fraud e4ceptions
1# whether there is reasonale cause to elie!e
that the attorney*s ser!ices were utili<ed in
furtherance of the ongoing unlawful scheme
2# the e4ception applies e!en where the
attorney is unaware that his ad!ice may
further an illegal purpose
"2# since lawyer told him not to lie0 his ad!ice was not
in furtherance of the fraud 7c he 2I2 lie
1?. What the Pri!ilege 2oes .ot $o!er
"1# R-d A ,+ statesD Subse(uent Disclosure ! The a/c privilege
is waived if the client$ the client%s lawyer$ or another
authori?ed agent of the client voluntarily discloses the
communication in a non!privileged communication
"2# R-d A ;C statesD )utting ssistance or a Communication in
-ssue ! (7* the a/c privilege is waived for any relevant
communication if the client asserts as to a material issue in
a proceeding that (a* the client acted upon the advice of a
lawyer or that the advice was otherwise relevant to the
legal significance of the client%s conduct (b* a lawyer%s
assistance was ineffective$ negligent$ or otherwise wrongful
(8* the a/c privilege is waived for a recorded
communication if a witness (a* employs the communication
to aid the witness while testifying (b* employed the
communication in preparing to testify$ and the tribunal
finds that disclosure is re(uired in the interests of "ustice
"-# R-d A ;B statesD -nvo,ing the )rivilege and -ts 6#ceptions !
(7* Bhen an attempt is made to introduce in evidence or
obtain discovery of a privileged communication (a* a
client$ a personal representative of an incompetent or
deceased client$ or a person succeeding to the interest of a
client may invo,e or waive the privilege$ either personally
or through counsel or another authori?ed agent (b* a
lawyer$ an agent of the lawyer$ or an agent of a client from
whom a privileged communication is sought must invo,e
the privilege when doing so appears reasonably
appropriate unless the client (i* has waived the privilege
(ii* has authori?ed the lawyer or agent to waive it (8*
person invo,ing the privilege must ordinarily ob"ect
contemporaneously to an attempt to disclose the
communication and if the ob"ection is contested$
demonstrate each element of the privilege (:* a person
invo,ing a waiver of or e#ception to the privilege must
assert it and$ if the assertion is contested$ demonstrate
each element of the waiver or e#ception
"/# (he a7c pri!ilege does not co!er all interactions0
discussions0 and meetings that occur tw the client and his
or her legal representati!e
"?# 2etails of %ttorney9$lient Relationship
"1# 3act of )mployment or =eeting 2ates
1# the fact that an attorney has een employed0
and the dates on which the attorney and
client meet0 are not co!ered y the pri!ilege
2# .E :4 permits the pri!ilege on this info
"2# 3ee Information
1# $S&% A B1/+ statesD Britten 0ee Contract
Confidential Communication ! written fee
contract shall be deemed to be a
confidential communication w/in the
meaning of @ >A>G(e*
2# .o $% case addresses the issue of whether
the identity of the client who is a party to the
fee agreement is confidential
"-# $lient Identity and the Last lin1 2octrine
1# $reated in the 1+BCNs in the +
th
$ircuit
"including $%# 9 is a minority e4ception
2# Generally the identity of the client is not
pri!ileged info0 ut there are limited times
when disco!ery of that identification would
lead to disco!ery of pri!ileged information
-# % client*s identity and fee arrangement may
e pri!ileged when the person in!o1ing the
pri!ilege is ale to show that a strong
possiility e4ists that disclosure of the info
would implicate the client in the !ery matter
for which legal ad!ice was sought
/# can*t e disco!erale if it*s the last lin1 in the
chain that the go!t needs to get e!idence for
action
"B# Pre9e4isting &usiness Records M Personal Papers
"1# "is$er v <S "summons directing an attorney to
produce docs deli!ered to him y his ta4payer client#
1# pre9e4isting docs which could ha!e een
otained y court process from the client
when he was in possession may also e
otained from the attorney y similar process
following transfer y the client in order to
otain more informed legal ad!ice
2# these papers are not pri!ate papers and so
can e disco!ered
",# Physical )!idence
"1# People v Meredit$ "guys murder and ro and he
confesses to his lawyer where the wallet is#
1# an oser!ation y defense counsel or his
in!estigator0 which is the product of a
pri!ileged communication0 may not e
admitted unless the defense y altering or
remo!ing physical e!idence has precluded
the prosecution from ma1ing that same
oser!ation
2# since the lawyer had mo!ed the wallet0 his
testimony is admissile
-# to e4tend the a7c pri!ilege to a case in which
the defense remo!ed e!idence might
encourage defense counsel to race the police
to sei<e critical e!idence
";# )4ceptions to the Pri!ilege
"1# Lawyer9$lient &reach of 2uty )4ceptions
1# =R 1.B statesD Confidentiality of -nfo ! (a*
lawyer shall not reveal info relating to
representation of a client unless the client
consents after consultation$ e#cept for
disclosures that are impliedly authori?ed in
order to carry out the representation (b*
lawyer may reveal such information to the
e#tent the lawyer reasonably believes
necessary. (7* to prevent the client from
committing a criminal act that the lawyer
believes is li,ely to result in imminent death
or substantial bodily harm or (8* to
establish a claim or defense on behalf of the
lawyer in a controversy btw 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
2# R-d A ;- statesD Lawyer Self!protection 9
The a/c privilege doesn%t apply to a
communication that is relevant and
reasonably necessary for a lawyer to employ
in a proceeding (7* to resolve a dispute w/ a
client concerning compensation or
reimbursement that the lawyer reasonably
claims the client owes the lawyer or (8* to
defend the lawyer or the lawyer%s associate
or agent against charge by any person that
the lawyer$ associate$ or agent acted
wrongfully during the course of
representing a client
-# $% says that you can re!eal that info e!en in
the asence of such a proceeding
1# .ot decided where it*s the attorney
who reaches the duty
"2# (he $rime93raud )4ception
1# $% )!idence $ode A +?B statesD Crime or
0raud ! There is no privilege under this
article if the services of the lawyer were
sought or obtained to enable or aid anyone
to commit or plan to commit a crime or a
fraud
2# !n re 9rand J1ry S1bpoena "company
ma1es and e4ports gloal positioning units
and illegally sold to Iran w7o a license#
1# the pri!ilege does not e4tend to
communications which solicit or offer
ad!ice for the commission of a crime
or fraud
2# in furtherance of their scheme0 the
$orporation sought its counsel*s
legal assistance in otaining e4port
licenses to oth countries
-# there is sufficient showing that the
crime9fraud e4ception could apply
"-# (he Ioint9$lients )4ception
1# R-d A ,? and ,BD see ao!e
"/# (he Property )4ceptions
1# R-d A ;1 statesD Dispute Concerning a
Decedent%s Disposition of )roperty ! The
a/c privilege doesn%t apply to a
communication from or to a decedent
relevant to an issue btw parties who claim
an interest through the same deceased
client$ either by testate or intestate
succession or by inter vivos tr#n
"?# (he 3iduciary )4ception
1# R-d A ;/ statesD 0iduciary!Lawyer
Communications ! -n a proceeding where a
trustee of an e#press trust or similar
fiduciary is charged w/ breach of fiduciary
duties by a beneficiary$ a communication is
not privileged if it (a* is relevant to the
claimed breach and (b* was btw the trustee
and a lawyer who was retained to advise the
trustee concerning the administration of the
trust
"B# (he 2eri!ati!e Suit )4ception
1# R-d A ;? statesD Communications -nvolving
a 0iduciary w/in an 5rg ! -n a proceeding
btw an organi?ational client and
shareholders or other constituents of the
organi?ation toward whom the directors$
officers$ or similar persons managing the
org bear fiduciary responsibilities$ the a/c
privilege of the organi?ation may be w/held
from a communication if the tribunal finds
that (a* those managing the org are charged
w/ breach of their obligations toward the
shareholders$ or other constituents or
toward the organi?ation itself (b* the
communication occurred prior to the
assertion of the charges and relates directly
to those charges and (c* the need of the
re(uesting party to discover or introduce
the communication is sufficiently
compelling and the threat to confidentiality
sufficiently confined to "ustify setting the
privilege aside
"+# Wai!er of the Pri!ilege
"1# R-d A ,+ ;C and ;BD see ao!e
"1C# (ermination of the Pri!ilege
"1# R-d A ,,D see ao!e
TABLE OF CO%PARISON& ETHICS RULES ON CLIENT CONFI'ENCE
%ny
$rime
2eath7
In:ury
$riminal
3raud
.on9
criminal
3raud
Prior
$rime or
3raud
'sing
Lawyer*s
Ser!ices
Prior
Per:ury7
3raud on
(riunal
Engoing
$lient
$rime or
3raud
%&%
=odel
Rule
=ust not
1.B"a#
=ay
1.B"#"1#
=ust not
1.B"a#
=ust not
1.B"a#
=ust not
1.B"a#
=ust
-.-"a#"2#
=ust
/.1"# see
also
1.2"d#
$% =ust not
ABCB;"e#
&P$
=ust not
ABCB;"e#
&P$
=ust not
ABCB;"e#
&P$
=ust not
ABCB;"e#
&P$
=ust not
ABCB;"e#
&P$
=ust not
ABCB;"e#
&P$
=ust not
ABCB;"e#
&P$
TABLE OF CO%PARISON& LAW"ER SCREENING
(uris!i)tion A$$li)a*le rule S)reening *+
Rule,
Rule Pro-ision Note
%&% =odel Rules of
Professional
$onduct
.o 1.+"# and
1.1C"a#
$% Rules of
Professional
$onduct
.o $% has no ethics
rule on this
su:ect
TABLE OF CO%PARISON& WRITTEN FEE AGREE%ENTS
(uris!i)tion A$$li)a*le Rules Contingent Oters
%&% =odel Rules of
Professional $onduct
=ustD 1.?"c# PreferredD 1.?"#
$% Statutory Pro!isions =ustD AB1/, of &P$ =ustD "if not a
corporation and o!er
K1CCC# AB1/; &P$
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oeco_oeq o__ oxo_ooo: o_ o: oo_ xoqo o. qc
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o cooxo co oo coooo ex e_o x xec .oqo o
o q_ oo : xo oo o o: ox ocooqo _
o:coe:_x ex o. ce_x_ ex. x aoo: . eq _ : :_
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ox . o: :_o___ ex coo q_ oo x
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xx ceocooqo oq _ :_ooeq: _qo: xe_ c_ . o. e
x o oooqo o. qc oq.oco_ : :_co .o:coe:_x
ooe_q_: _e ceq.o. q_ooo oq.exoo_oeq aoo:_ ooq
x .ec_xoq _qcxoooqo_oqo _o coo q_ o: qe_ o
q o::_ _o o::_ o: _oo_ _o x oo_oeq e_
o. o _o :oo _ooqo o: _o oe xqo q_ o oxqoq
o o xo oo o . ceoo_qoco_oeq _ _ o: ceq.o.
q_ooo
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o oo x o:o__exq : o oqo. x_ q_ .o
o: qe_ o _x_ oo x oq. x c o oqo o__exq :
coqqe_ x o. x qex _: oq.exoo_oeq
_oc_: oq. x cex.: ox qe_ xo oo o . _oc_: o
oco ox o oexoooo . oq o o __ x _e ex .xeo oq
o__exq : ox qe_ xe_ c_ . oq _o o: o : o__
_o o __ x o: xe_ c_ . ec_o q_: ox xe_ c
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e x _e o__exq : ex o. _o .eooqoq_ _xe:
e. _o o q xo_oeq e. _o .ec_o q_ o: _e o _ o
ooo o. oc __o q_oco_oeq e. o::ocoo o. q
c a__xqoqo e x x cex.: ex o o_q o: qe_ o _
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q.o q_
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qo q_ o ooe__ ce_x_ .o_ :
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c m_ n mcom: moo
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