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Contents

Contents

i

ii

Editorial Advisors

iv

v

Dedication Page

xi

Table of Contents

Acknowledgments

PART I - Introduction

3

Chapter 1 Lawyers, Role, and Law

3

A.

Lawyers and Role (Model Rules of Professional Conduct: Preamble and Scope Restatement (Third) of the Law Governing Lawyers § 1)

3

Lawyers’ Roles: The Client-Lawyer Relationship

7

Freedman & Smith, Understanding Lawyers’ Ethics

10

Rhode, In the Interests of Justice: Reforming the Legal Profession

14

15

B.

Lawyers and Law (Model Rule of Professional Conduct 8.4 Restatement (Third) of the Law Governing Lawyers §§ 5, 6)

15

The Law Governing Lawyers: Sources of Law

18

19

Chapter 2 Judicial Regulation of Lawyers

20

A.

Judicial Regulation of the Practice of Law

20

Campbell v. Asbury Automotive, Inc.

24

B.

Bar Admission (Model Rule 8.1)

25

In re Application of Converse

30

30

C.

Professional Discipline (Model Rules 5.1, 5.2, 8.4 RLGL § 5)

30

The Law Governing Lawyers: Professional Discipline

34

Kentucky Bar Association v. Helmers

37

PART II - Lawyers and Clients: Fiduciary Duty

41

Chapter 3 Beginning the Client-Lawyer Relationship

41

A.

Access to Justice (Model Rules 1.2(c) & (d), 6.1, 6.2, 8.4(c))

41

Lawyers and Clients: Service Pro Bono Publico

46

Bothwell v. Republic Tobacco Co.

51

51

B.

Unpopular Clients (Model Rule 1.2(b) and Comment [5])

51

52

C.

Actual and Implied Client-Lawyer Relationships (Model Rules: Scope ¶ [17]; 1.18(a) and Comments [1] & [2]; RLGL §§ 14, 15)

52

The Law Governing Lawyers: Actual and Accidental Clients

56

Togstad v. Vesely, Otto, Miller & Keefe

60

Practice Pointers: Nonengagement, Engagement, and Disengagement Letters

62

ABA Formal Opinion 10-457: Lawyer Websites

65

67

Chapter 4 Competence

67

A.

Knowledge, Skill, Thoroughness, and Preparation (Model Rules 1.1, 1.3)

67

Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Orr

70

70

B.

Malpractice and Breach of Fiduciary Duty (Model Rules 1.1-1.4 RLGL §§ 14, 48, 49, 52)

70

Sickler v. Kirby

73

74

Bayview Loan Servicing, LLC v. Law Firm of Richard M. Squire & Associates, LLC

76

76

The Law Governing Lawyers: Tort Liability

83

C.

Nonclient Duties (Model Rules 1.1, 2.3, 4.1, 8.4(c) RLGL §§ 51, 95, 98)

83

Greycas, Inc. v. Proud

87

Cruze v. Hudler

92

93

Chapter 5 Control and Communication

94

A.

Abandonment (Model Rule 1.3 RLGL § 16)

95

Maples v. Thomas

99

Lawyers and Clients: Criminal Defense

B.

Control (Model Rules 1.2, 1.4 RLGL §§20-23, 26, 27)

1.

Authority Between Client and Lawyer

2.

Authority of Lawyer to Act for Client

Machado v. Statewide Grievance Committee

3.

Authority in Representing Organizations Model Rules 1.13(a) & (b) RLGL §96

4.

Authority in Representing Clients with Diminished Capacity Model Rule 1.14 RLGL §24

Attorney Grievance Commission of Maryland v. Framm

C.

Communication (Model Rules 1.2, 1.4, 2.1 RLGL §§16, 20-23, 49)

dePape v. Trinity Health Systems, Inc.

Chapter 6 Confidentiality

A.

B.

Fiduciary Duty (Model Rules 1.6, 1.8(b) RLGL §§ 59, 60)

Matter of Anonymous

Perez v. Kirk & Carrigan

Lawyers’ Roles: The Directive Lawyer and Fiduciary Duty

C.

Evidentiary Protections: Attorney-Client Privilege and Work Product Immunity (RLGL §§ 68-77)

The Bounds of the Law: Court Orders

Hughes v. Meade

Upjohn Co. v. United States

In re Vioxx Products Liability Litigation

Swidler & Berlin v. United States

D.

Express or Implied Authority and Waiver

1.

Express or Implied Authority (Model Rules 1.0(e), 1.6 RLGL §§ 61-62)

In re Pressly

2.

Privilege and Work Product Waiver (RLGL §§ 73, 78-81, 86, 91-92)

3.

Lawyer Receipt of Inadvertently or Anonymously Sent Information (Model Rules 4.4(b), 8.4(d) RLGL §§ 78, 91)

Merits Incentives, LLC v. The Eighth Judicial District Court of the State of Nevada

Chapter 7 Confidentiality Exceptions: Physical and Financial Injury

A.

1.

Fiduciary Duty (Model Rule 1.6(b)(1) RLGL §§ 59, 66)

Hawkins v. King County

Spaulding v. Zimmerman

2.

Privilege and Work Product (Model Rule 1.6(b)(1) RLGL §§ 82, 93)

Purcell v. District Attorney for the Suffolk District

B.

1.

Fiduciary Duty (Model Rules 1.0(d), 1.2(d), 1.6(b)(2) and (3), 1.13, 1.16, 2.1, 3.3, 3.9, 4.1, 8.4(c) RLGL §§ 67, 94)

In re American Continental Corporation/Lincoln Savings & Loan Securities Litigation

ESG Capital Partners, LP v. Stratos

The Bounds of the Law: Fraud

The Opinion Letter

2.

Privilege and Work Product: Client Crime or Fraud (Model Rules 1.6(b)(6) RLGL §§ 82, 93)

United States v. Chen

Lawyers’ Roles: The Instrumental Lawyer and the Bounds of the Law

Chapter 8 Confidentiality Exceptions: Lawyer Interests and Compliance with Other Law

A.

Seeking Advice, Self-Defense, and Compensation Disputes (Model Rule 1.6(b)(4) and (5) RLGL §§ 64, 65, 83)

Meyerhofer v. Empire Fire & Marine Insurance Co.

B.

Compliance with Law or Court Order: Physical Evidence (Model Rules 1.6(b)(6), 3.4(a), 8.4(b) RLGL §§ 63, 86, 119)

New York Penal Law (2016)

People v. Belge

C.

Compliance with Law or Court Order: Practice Before a Tribunal (Model Rules 1.0(m), 1.6(b)(6), 3.3, 8.4(c) and (d) Model Code of Judicial Conduct, Rule 2.9 (A)(4) RLGL § 63)

1.

Representations of Fact and Law (Model Rules 3.3, 5.2, 5.3)

People v. Casey

The Bounds of the Law: Crime

2.

Failure to Disclose Facts (Model Rules 1.6(b)(6), 3.3, 3.4, 8.4(c) RLGL § 120)

In re Forrest

3.

Failure to Disclose Law (Model Rules 1.6(b)(6), 3.3 RLGL §§ 63 and 120)

Matter of Hendrix

4.

False Evidence (Model Rules 1.6(b)(6), 3.3 RLGL §§ 63 and 120)

United States v. Shaffer Equipment Co.

5.

Criminal Defense (Model Rules 1.6(b)(6), 3.3 RLGL §§ 63 and 120)

D.

Detecting Conflicts of Interest (Model Rules 1.6(b)(7); 1.7, Comment [3]; 5.1)

Lawyers’ Roles: Zealous Representation Within the Bounds of the Law

Chapter 9 Conflicts of Interest: Loyalty and Independent Judgment

A.

Introduction (Model Rule 1.7 RLGL § 121)

Maritrans GP Inc. v. Pepper, Hamilton & Scheetz

B.

Joint Representations

1.

Divorce and Dissolution (Model Rules 1.7, 1.12, 2.4 RLGL § 122)

State Bar of Texas, Opinion No. 583

2.

Litigation Co-Parties (Model Rules 1.7, 1.8(b), 1.10 RLGL § 128)

The Law Governing Lawyers: Losing a Client by Disqualification or Injunction

Johnson v. Clark Gin Service, Inc.

3.

Joint Criminal Defense (Model Rules 1.7, 1.8(b), 1.10 RLGL § 129)

4.

Employer and Employee (Model Rules 1.7, 1.8(b), 1.13 RLGL §§ 128, 129, 131)

Sanford v. Commonwealth of Virginia

5.

Real Estate Transactions (Model Rules 1.7, 1.8(b) RLGL § 130)

Anderson v. O’Brien

6.

Business Planning (Model Rules 1.7 and Comment [7], 1.8(b), 1.10 RLGL §§ 60, 130)

7.

Estate Planning (Model Rules 1.7 and Comment [27], 1.8(b), 1.10)

C.

Simultaneous Representation of Adversaries (Model Rules 1.7, 1.10, 1.13 RLGL § 121)

Western Sugar Coop. v. Archer-Daniels-Midland Co.

Eastman Kodak Company v. Sony Corporation

Lawyers and Clients: Representing Organizations

D.

Positional Conflicts (Model Rule 1.7, Comment [24] RLGL § 128, Comment f)

Chapter 10 Conflicts of Interest: Specific Rules

A.

B.

Client and Lawyer Interests

1.

Business Transactions with Clients (Model Rules 1.7, 1.8(a) & (k) RLGL § 126)

Liggett v. Young

It Wasn’t the Money

2.

Gifts (Model Rule 1.8(c) RLGL § 127)

3.

Media Rights (Model Rule 1.8(d))

4.

Litigation Funding (Model Rule 1.8(e))

5.

Aggregate Settlements (Model Rule 1.8(g) RLGL § 37)

Burrow v. Arce

The Law Governing Lawyers: Loss of Fee or Other Benefits

6.

Limiting Lawyer Liability (Model Rule 1.8(h))

7.

Lawyer Proprietary Interest in Litigation (Model Rule 1.8(i))

8.

Sexual Relationships with Clients (Model Rule 1.8(j))

Iowa Supreme Court Attorney Disciplinary Board v. Monroe

9.

Close Personal Relationships (Model Rule 1.7)

C.

Client and Third-Person Interests (Model Rules 1.7, 1.8(f), 1.14, 5.4(c) RLGL § 134)

D.

Insurance Defense (Model Rules 1.7, 1.8(f), 1.14, 5.4(c) RLGL § 134, Comment f)

Lawyers and Clients: Insurance Defense

Paradigm Insurance Co. v. The Langerman Law Offices, P.A.

Chapter 11 Conflicts of Interest: Former, Prospective, Imputed, and Government Clients

A.

Former Client Conflicts (Model Rule 1.9 RLGL § 132)

Western Sugar Coop. v. Archer-Daniels-Midland Co.

Oasis West Realty, LLC v. Goldman

B.

Prospective Client Conflicts (Model Rules 1.0(k), 1.18 RLGL § 15)

Keuffer v. O.F. Mossberg & Sons, Inc.

C.

Imputed Client Conflicts (Model Rules 1.0(c), 1.7, 1.9, 1.10 RLGL § 124)

Martin v. Atlanticare

My Lawyer Switched Sides; Don’t Worry, There’s a Screen

Practice Pointers: Implementing a Conflicts Control System

D.

Government Client Conflicts (Model Rules 1.11 RLGL § 133)

Lawyers and Clients: Representing Governments

E.

Adjudicators, Arbitrators, and Mediators (Model Rules 1.12, 7.6)

Chapter 12 Fees and Client Property

A.

Hourly Fees (Model Rule 1.5 RLGL § 34)

ABA Formal Opinion 93-379: Billing for Professional Fees, Disbursements, and Other Expenses

Matter of Fordham

End Billable Hour Goals . . . Now

B.

Contingent Fees (Model Rule 1.5 RLGL § 35)

ABA Formal Opinion 94-389: Contingent Fees

In re Everett E. Powell, II

C.

Fixed Fees (Model Rules 1.5, 1.15 RLGL §§ 18, 38, 40, 44)

Practice Pointers: Trust Fund Management

D.

Fees on Termination (Model Rule 1.5 RLGL §§ 40, 43, 44)

Malonis v. Harrington

E.

Statutory Fees (Model Rule 1.5 RLGL § 38)

Perdue v. Kenny A.

Chapter 13 Ending the Client-Lawyer Relationship

A.

Voluntary Withdrawal

1.

Unpaid Fees (Model Rules 1.16 RLGL §§ 32, 33)

Gilles v. Wiley, Malehorn & Sirota

2.

Client Misconduct (Model Rules 1.2(d), 1.16, 3.3, 4.1 RLGL § 32)

In the Matter of Steven T. Potts

B.

Wrongful Discharge

1.

Inside Counsel (Model Rules 1.2(d), 1.6, 1.13, 1.16 RLGL § 32)

Wadler v. Bio-Rad Laboratories, Inc.

2.

Law Firm Employees (Model Rules 5.1, 5.2, 8.3, 8.4 RLGL § 32)

Practice Pointers: Wrongful Discharge

C.

Finding New Employment (Model Rules 1.1, 1.3, 1.4, 1.15, 1.16, 5.6, 7.1, 7.3, 7.4, 8.4(c) RLGL §§ 31, 32)

Colorado Bar Formal Ethics Opinion No. 116: Ethical Considerations in the Dissolution of a Law Firm or a Lawyer’s Departure from a Law Firm

PART III - Lawyers and Justice: The Limits of Advocacy

Chapter 14 The Bounds of the Law

A.

Introduction (Model Rules 1.2(d), 1.6, 8.4 18 U.S.C. § 201)

The Bounds of the Law: A Reprise

B.

Frivolous Claims (Model Rules 3.1, 3.4 Federal Rule of Civil Procedure 11)

Christian v. Mattel, Inc.

C.

Discovery Abuse (Model Rules 3.2, 3.4, 5.2 Federal Rules of Civil Procedure 26, 37)

Surowiec v. Capital Title Agency, Inc.

D.

Bias (Model Rules 4.4, 8.4 Model Code of Judicial Conduct Rule 2.3)

In re Charges of Unprofessional Conduct Contained in Panel Case No. 15976

E.

Communication with Judges and Jurors (Model Rules 3.3(d), 3.5 Model Code of Judicial Conduct Rule 2.9)

Disciplinary Counsel v. Stuard

West Virginia Legal Ethics Opinion 2015-02: Social Media and Attorneys

F.

Lawyer as Witness (Model Rule 3.7)

Neumann v. Tuccio

G.

Communication with Unrepresented and Represented Clients and Nonclients (Model Rules 4.1, 4.2, 4.3, 5.3 RLGL §§ 99-103)

Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College

PART IV - Lawyers and Society: The Profession

Chapter 15 Professional Regulation

A.

Self-Regulation (Model Rules 8.3, 3.8)

Kentucky Bar Association Opinion E-430: A Lawyer’s Duty to Report Professional Misconduct of Other Lawyers and Judges

B.

Law Practice Restrictions (Model Rules 1.17, 5.6)

State ex rel. Verizon West Virginia, Inc. v. Matish

C.

Advertising and Solicitation (Model Rules 7.1-7.5, 8.5)

Florida Bar v. Went For It, Inc.

West Virginia Legal Ethics Opinion 2015-02: Social Media and Attorneys

The Bounds of the Law: The Constitution

D.

Referrals (Model Rules 5.4, 7.2)

Colorado Bar Association Opinion 122: The Applicability of Colorado RRC 7.2 to Internet-Based Lawyer Marketing Program

E.

Multijurisdictional Practice (Model Rules 5.4, 5.5, 8.5)

Birbrower, Montalbano, Condon & Frank P.C. v. Superior Court

F.

Multidisciplinary Practice (Model Rule 5.4, 5.7, 7.2)

Practice Pointers: The Globalization of Law Practice

Chapter 16 Judicial Ethics

A.

Introduction (Model Code of Judicial Conduct Table of Contents, Preamble, Scope, Terminology, Application, Rule 3.10)

1.

The Judge’s Role

2.

3.

Procedural Remedies

B.

Judicial Behavior (Model Code of Judicial Conduct Rules 1.2, 2.9, 2.11, 3.1, 3.7 28 U.S.C. Sec. 455)

Cheney v. United States District Court for the District of Columbia

I Did Not Sleep with That Vice-President

Williams v. Pennsylvania

C.

Judicial Selection (Model Code of Judicial Conduct Rules 2.10, 2.11, 4.1)

D.

Judicial Election Funding (Model Code of Judicial Conduct Rules 4.1-4.4)

Williams-Yulee v. The Florida Bar

Table of Model Rules, Restatements, and Other Regulations