TY  - BOOK
AU  - Lerman,Lisa G.
AU  - Schrag,Philip G.
TI  - Ethical problems in the practice of law
SN  - 0735529140 (hardcover)
U1  - 174.3 22
PY  - 2005///
CY  - New York
PB  - Aspen Publishers
KW  - Legal ethics
KW  - United States
N1  - 
CONTENT

Introduction	1
A. Ethics, morals, and professionalism	1
B. Some central themes in this book	6
1. Conflicts of interest	6
2. Truthfulness	7
3. Lawyers duties to clients versus their duties to the justice 
 system	8
4. Lawyers' personal and professional interests versus their 
 fiduciary obligations	9
5. Self-interest as a theme in regulation of lawyers	9
6. Lawyers as employees: institutional pressures on ethical judgments	10
C. The structure of this book	11
D. The rules quoted in this book: a note on sources	12
E. Stylistic decisions	14

Chapter 1 The Regulation of Lawyers	15
A. Institutions that regulate lawyers	16
1. The highest state courts	16
a. The responsibility of self-regulation	16
b. The inherent powers doctrine	18
2. State and local bar associations	21
3. Lawyer disciplinary agencies	21
4. The American Bar Association	22
5. The American Law Institute	23
6. Federal and state trial courts	25
7. Legislatures	25
8. Administrative agencies	27
9. Prosecutors	27
10. Malpractice insurers	28
11. Law firms and other employers	29
12. Clients	30
B. The law governing lawyers	32
1. State ethics codes	33
2. Legal malpractice, breach of contract, and breach of fiduciary duty	36
3. Motions to disqualify for conflicts of interest	39
4. Contract law 39
5. Advisory ethics opinions	39
6. Research on ethics law	40
C. Admission to practice	43
1. Requirements for admission	43
a. A short history of bar admission	43
b. Contemporary bar admission requirements	45
2. Bar examination	46
3. The character and fitness inquiry	47
a. Criteria for evaluation	47
b. The character questionnaire	52
Problem 1-1 Pot	53
c. Mental health of applicants
	55
Jon Bauer, The Character of the Questions and the Fitness of 
the Process: Mental Health, Bar Admissions, and the Americans 
with Disabilities Act	55
d. Misconduct during law school	57
In re Mustafa	57
California Bar Journal	60
e. Law school discipline: A preliminary screening process	61
Problem 1-2 The Doctored Resume	62
D. Professional discipline	64
1. History and process of lawyer discipline	64
2. Grounds for discipline	68
In re Peters	72
E. Reporting misconduct by other lawyers	80
1. The duty to report misconduct	81
Daryl van Duch, Best Snitches: Land of Lincoln Leads the 
Nation in Attorneys Turning in Their Peers	83
2. Lawyers' responsibility for ethical misconduct by colleagues 
and superiors	87
Problem 1-3 The Little Hearing	91
3. Legal protections for subordinate lawyers	93
David Margolick, New York Court Shields Lawyers Who Report 
Dishonest Colleagues	94
Kelly v. Hunton & Williams	99
Problem 1-4 The Photographer	107

Chapter 2 The Duty to Protect Client Confidences	109
A. The basic principle of confidentiality	110
1. Protection of "information relating to the representation of 
 a client"	110
Problem 2-1 Your Dinner with Anna, Scene 1	113
Problem 2-2 Your Dinner with Anna, Scene 2	114
2. Protection of information if there is a reasonable prospect of 
 harm to a client's interests	116
3. The bottom line	117
B. Exceptions to the duty to protect confidences	119
1. Revelation of past criminal conduct	120
The Missing Persons Case: The Defense of Robert Garrow	121
Problem 2-3 The Missing Persons, Scene 1	121
Problem 2-4 The Missing Persons, Scene 2	123
The Real Case	124
People v. Belge	124
People v. Belge	126
Problem 2-5 The Missing Persons, Scene 3	127
2. The risk of future injury or death	128
Spaulding v. Zimmerman	130
Spaulding v. Zimmerman	130
Problem 2-6 Your Dinner with Anna, Scene 3	137
3. Client frauds and crimes that cause financial harm	138
a. Enron and the Sarbanes-Oxley Act	139
b. The ethical rules on revelation of client crimes and frauds	140
c. Fraud by a client, not assisted by a lawyer	144
d. Fraud by a client, assisted by a lawyer	144
Other ethics rules allowing or requiring revelation of 
confidences relating to criminal or fraudulent conduct	145
e. What is fraud? A primer	146
Problem 2-7 Reese's Leases	151
4. Revealing confidences to obtain advice about legal ethics	154	
5. Using a client's confidential information to protect the 
 lawyer's interests	154
6. Revealing confidences to comply with other law or a court order	156
C. Use or disclosure of Confidential information for personal gain or 
 to benefit another client	158
Problem 2-8 An Investment Project	158
D. Talking to clients about confidentiality	159
E. A concluding problem	160
Problem 2-9 Rat Poison	160

Chapter 3 The Attorney-Client Privilege and the Work 
 Product Doctrine	163
A. Confidentiality and attorney-client privilege, compared	164	
1. Ethics law versus evidence law	165
2. Difference in scope	165
3. Different methods of enforcement	166
4. When attorney-client privilege is invoked	167
5. Why study a rule of evidence in a professional responsibility course?	167
6. Source of the privilege	168
B. The elements of attorney-client privilege	168
1. Communication	168
2. Privileged persons	169
3. Communication in confidence	170
4. Communication for the purpose of seeking legal assistance	170
Problem 3-1 The Clandestine Videotape	174
C. Client identity	174
D. The privilege for corporations	176
Upjohn Co. v. United States	177
Sarah Helene Duggin, Internal Corporate Investigations:
 Legal Ethics, Professionalism, and the Employee Interview	182
Problem 3-2 Worldwide Bribery	185
E. The crime-fraud exception	186
1. No privilege if a client seeks assistance with a crime or fraud	186
Problem 3-3 The Fatal Bus Crash	190
2. Procedure for challenging the privilege on the basis of the exception	191
3. The tobacco litigation	192
F. The death of the client	193
1. Introduction	193
Problem 3-4 The Dead Murderer	193
2. The suicide of Vincent Foster	194
a. Factual background	194
b. The Supreme Court evaluates the privilege claim	195
Swidler & Berlin v. United States	195
G. Waiver	196
1. Express waiver by client	196
2. Waiver by inaction	197
3. Waiver by revealing privileged communication to nonprivileged person	197
4. Waiver by putting privileged communication into issue	198
5. Waiver as to a conversation by disclosure of part of it	198
6. Compliance with court orders	198
H. The work product doctrine	199
1. Work product prepared in anticipation of litigation	199
2. Origins of the work product rule	199
3. Materials not created or collected in anticipation of litigation	200
4. A qualified protection	200
5. Protection of lawyer's "mental impressions"	201
6. Protection of work product, not underlying information	201

Chapter 4 Relationships Between Lawyers and Clients	203
A. Formation of the lawyer-client relationship	204
1. Choosing clients	204
2. Offering advice as the basis for a lawyer-client relationship	205
Togstad v. Vesely, Otto, Miller & Keefe	206
Problem 4-1 The Chat Room	212
B. Lawyers' responsibility as agents	213
1. Express and implied authority	214
2. Apparent authority	215
Problem 4-2 The Fired Guard	216
C. Lawyers' duties of competence, honesty, communication, and diligence	217
1. Competence	217
Matter of Neal	220
Problem 4-3 The Washing Machine	224
2. Competence in criminal trials	226
Strickland v. Washington	226
3. Candor and communication	231
a. Is it ever okay to lie?	231
b. Lying versus deception: Is there a moral distinction?	232
c. Truth versus truthfulness	233
d. Honesty and communication under the ethics rules	233
e. Civil liability for dishonesty to clients	235
Problem 4-4 Lying to Clients	237
4. Diligence	238
5. Contractual duties	240
D. Who calls the shots?	240
1. The competent adult client	240
Jones v. Barnes	243
Problem 4-5 The Package Bomber	250
2. Contracts to change the duties owed to clients	253
3. Clients with diminished capacity	253
a. Clients who may have mental disabilities	256
Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking 
and the Questionably Competent Client	257
Problem 4-6 Vinyl Windows	260
Problem 4-7 Tightening the Knot	263
b. Juveniles	264
Martin Guggenheim, A Paradigm for Determining the Role of Counsel 
for Children	264
ABA, Standards of Practice for Lawyers Representing a Child in 
Abuse and Neglect Cases (1996)	266
Frances Gall Hill, Clinical Education and the "Best Interest" 
Representation of Children in Custody
Disputes: Challenges and Opportunities in Lawyering and Pedagogy	268
Problem 4-8 The Foster Child	269
E. Terminating a lawyer-client relationship	273
1. Duties to the client at the conclusion of the relationship	273
Problem 4-9 The Candid Notes	274
2. Grounds for termination before the work is completed	275
a. When the client fires the lawyer	275
b. When continued representation would involve unethical conduct	275
c. When the lawyer wants to terminate the relationship	276
d. Matters in litigation	276
e. When the client stops paying the fee	277
f. When the case imposes an unreasonable financial burden on the lawyer	277
g. When the client will not cooperate	277

Chapter 5 Concurrent Conflicts of Interest	279
A. Studying conflicts of interest	280
1. Why lawyers needs to understand conflicts	280
2. Why the study of conflicts is difficult	282
Light in the tunnel	284
3. How the conflicts rules are organized	285
How the conflicts discussion is organized	286
B. General principles in evaluating concurrent conflicts	287
1. Rule 1.7	287
a. Direct adversity	289
b. Material limitation	289
2. How to evaluate conflicts	290
3. Nonconsentable conflicts	291
a. The lawyer's reasonable belief	291
b. Representation prohibited by law	292
c. Suing one client on behalf of another client	292
4. Informed consent	293
5. Withdrawal and disqualification	297
6. Imputation of concurrent conflicts	298
Problem 5-1 The Injured Passengers, Scene 1	300
C. Conflicts between current clients in civil litigation	301
1. Suing a current client	301
Problem 5-2 I thought you were my lawyer!	303
2. Cross-examining a current client	304
3. Representation of co-plaintiffs or co-defendants in civil 
 litigation	305
Problem 5-3 The Injured Passengers, Scene 2	306
4. Representing economic competitors in unrelated matters	306
5. Conflicts in public interest litigation	308
Problem 5-4 The Prisoners' Dilemma	308
6. Taking inconsistent legal positions in litigation	310
Problem 5-5 Top Gun	311
D. Conflicts in nonlitigation matters: Representation of both 
 parties to a transaction	312
E. Conflicts in representation of organizations	315
1. Who is the client?	316
2. Representation of the entity and employees	317
3. Duty to protect confidences of employees	318
4. Responding to unlawful conduct by corporate officers and other 
 employees	319
5. Entity lawyers on boards of directors	320
Problem 5-6 My Client's Subsidiary	321
F. Joint representation in particular practice settings	322
1. Representation of criminal co-defendants?	322
a. The costs and benefits of joint representation of co-defendants	323
b. Case law and ethics rules on joint representation of co-defendants	325
c. The Sixth Amendment and joint representation	326
Problem 5-7 Police Brutality, Scene 1	328
Problem 5-8 Police Brutality, Scene 2	329
Problem 5-9 Police Brutality, Scene 3	330
2. Conflicts in representing family members	330
a. Representing both spouses in a divorce	330
b. Representing family members in estate planning	331
Florida Bar Opinion 95-4 (1997)	332
Problem 5-10 Representing the Mc Carthys	333
3. Representing insurance companies and insured persons	335
Problem 5-11 Two Masters	338
4. Conflicts in representation of a class	339

Chapter 6 Conflicts Involving Former Clients, Government Lawyers, 
 and Judges	343
A. The Nature of Conflicts Between Present and Former Clients	344
B. Duties to former clients	347
C. Distinguishing present and former clients	348
1. Maintaining contact	350
Problem 6-1 Keeping in Touch	350
2. Hiring and firing lawyers to create or eliminate conflicts	351
3. Former in-house counsel	352
D. Evaluating successive conflicts	353
1. Questions to ask	353
2. The same matter	354
3. Substantial relationship	355
4. Confidential information	357
5. Variations in the definition of "substantial relationship"	358
6. Material adversity	359
E. Practice issues relating to former client conflicts	361
Problem 6-2 The District Attorney	363
F. Particular applications of Rule 1.9	363
1. Suing former clients	363
2. Representing the competitor of a former client	364
Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz	365
G. Conflicts between the interests of a present client and a client 
 who was represented by a lawyer's former firm	373
1. Analyzing former firm conflicts	374
2. Using or revealing a former client's confidences	375
Problem 6-3 A Dysfunctional Family Business	376
H. Imputation of former client conflicts to affiliated lawyers	377
1. Imputation of the conflicts of an entering lawyer who is "infected"	379
2. Imputation of the conflicts of a departed lawyer to his former firm	381
3. Client waiver of imputed conflicts	382
4. Imputation of conflicts among lawyers sharing office space	382
Problem 6-4 The Fatal Shot	384
I. Successive conflicts of present and former government lawyers	384
1. Conflicts of former government lawyers in private practice	385
a. What is a "matter"?	386
b. Personal and substantial participation	387
c. Screening of former government lawyers	388
d. Confidential government information	389
Problem 6-5 The Former Government Lawyer	390
2. Conflicts of government lawyers practice	394
J. Conflicts involving judges, arbitrators, and mediators	395
1. Conflicts rules for sitting judges	395
Problem 6-6 The Judge's Former Professor	396
2. Conflicts rules for former judges, law clerks, arbitrators, 
 and mediators	397
a. Personal and substantial participation	398
b. Imputation	398
c. Employment negotiation	399
K. Conflicts involving prospective clients	399
Problem 6-7 The Mine Explosion	401
Chapter 7 Conflicts of Interest Between Lawyers and Clients	403
A. Legal fees	406
1. Lawyer-client fee contracts	406
a. Types of agreements	406
b. Reasonable Fees	407
Brobeck, Phleger & Harrison v. Telex Corp.	409
In the Matter of Fordham	414
c. Communication about fee arrangements	420
Problem 7-1 An Unreasonable Fee?	422
d. Modification of fee agreements	423
Problem 7-2 Rising Prices	423
2. Regulation of hourly billing and billing for expenses	424
Lisa G. Lerman, Scenes from a Law Firm	434
3. Contingent fees	441
a. In general	441
b. Criminal and domestic relations cases	444
4. Forbidden and restricted fee and expense arrangements	445
a. Buying legal claims	445
b. Financial assistance to a client	446
Problem 7-3 An Impoverished Client	446
c. Publication rights	447
d. Advance payment of fees and nonrefundable retainers	448
5. Fee disputes	449
a. Prospective limitations of lawyer's liability and settlement of 
 claims against lawyers	449
b. Fee arbitration	451
c. Collection of fees	452
d. Fees owed to a lawyer who withdraws or is fired before the matter is 
 completed	454
6. Dividing fees with other firms or with nonlawyers	455
a. Division of fees between lawyers not in the same firm	455
b. Sharing fees with nonlawyers	457
7. Payment of fee by a third party	458
B. Conflicts with lawyer's personal or business interests	458
1. In general	458
2. Business transactions between lawyer and client	459
Problem 7-4 Starting a Business	463
3. Gifts from clients	464
4. Sexual relationships with clients	465
5. Intimate or family relationships with adverse lawyers	466
6. Imputation of personal interest conflicts to other lawyers in a firm	467
a. Financial interest conflicts	467
b. General rule on imputation of conflicts with a lawyer's interests	467
C. Lawyer as custodian of client property and documents	468
1. Client trust accounts	468
2. Responsibility for client property	469
a. Prompt delivery of funds or property	469
b. Disputes about money or property in lawyer's possession	470
c. Lawyers' responsibilities to clients' creditors	471
3. Administering estates and trusts	471

Chapter 8 Lawyers' Duties to Courts, Adversaries and Others	473
A. Being a good person in an adversary system	474
 Charles Fried, The Lawyer as Friend: The Moral Foundations of 
 the Lawyer-Client Relation	476
Stephen Gillers, Can a Good Lawyer be a Bad Person?	478
B. Investigation before filing a complaint	479
1. Required investigation by lawyers filing civil cases	480
Problem 8-1 Your Visit from Paula Jones	484
2. Required investigation by prosecutors before charges are filed	485
C. Truth and falsity in litigation	487
1. The rules on candor to tribunals	487
2. Which rule applies when? A taxonomy of truth-telling problems 
 in litigation	488
3. A lawyer's duties if a client or witness intends to give false 
 testimony	490
a. When the lawyer believes that a criminal defendant intends to lie 
 on the stand	490
Nix v. Whiteside	490
b. A lawyer's "knowledge" of a client's intent to give false testimony	495
Problem 8-2 Flight from Sudan, Scene 1	496
c. A lawyer's duties if a client intends to mislead the court without 
 lying	498
Problem 8-3 Flight from Sudan, Scene 2	500
d. Variations in state rules on candor to tribunals	501
4. False impressions created by lawyers during litigation	503
How Simpson Lawyers Bamboozled a Jury	504
Problem 8-4 The Drug Test	505
Problem 8-5 The Body Double	506
5. Lawyers' duties of truthfulness in preparing witnesses to testify	507
Problem 8-6 Refreshing Recollection	509
D. Concealment of physical evidence and documents	510
1. Duties of criminal defense lawyers with respect to evidence of 
 crimes	511
Problem 8-7 A Revealing Portfolio	517
Problem 8-8 The Break-In	519
Note: Stolen documents as evidence	520
2. Concealment of documents and evidence in civil cases	520
a. A more limited obligation to reveal	520
b. A lawyer's duties in responding to discovery requests	522
Wayne D. Brazil, Views from the Front Lines: Observations by Chicago 
Lawyers About the System of Civil Discovery	523
Ethics: Beyond the Rules	524
Problem 8-9 The Damaging Documents	527
E. The duty to disclose adverse legal authority	530
F. Disclosures in ex parte proceedings	531
G. Improper influences on judges and juries	533
1. Improper influences on judges	534
a. Ex parte communication with judges	534
b. Campaign contributions	535
2. Improper influences on juries	535
a. Lawyers' comments to the press	535
The Gentile Case	536
Problem 8-10 A Letter to the Editor	539
Scott Brede, A Notable Case of Exceptionally Unsafe Sex	540
b. Impeachment of truthful witnesses	541
Harry I. Subin, The Criminal Defense Lawyer's "Different Mission": 
Reflections on the	
"Right" to Present a False Case	541
c. Statements by lawyers during jury trials	543
H. Lawyers' duties in nonadjudicative proceedings	548
I. Communications with lawyers and third parties	550
1. Deception of third parties	550
a. The duty to avoid material false statements to third parties	550
Problem 8-11 Emergency Food Stamps	550
b. Lawyers' duties of truthfulness in fact investigation	553
Apple Corps, Ltd. v. International Collectors Society	554
The Gatti Case	555
In re Gatti	555
c. Lawyers' duties of truthfulness in negotiation	557
Carrie Menkel-Meadow, Ethics, Morality and Professional 
Responsibility in Negotiation	558
d. Obligations of disclosure to third parties	559
2. Restrictions on contact with represented parties	560
Messing, Rudavsky & Weliky, P.C. v. President & Fellows of 
Harvard College	564
3. Restrictions on contact with unrepresented persons	570
Problem 8-12 The Prosecutor's Masquerade	573
Problem 8-13 The Complaining Witness	574
J. Conduct prejudicial to the administration of justice	576
K. Are lawyers really too zealous?	577
Ted Schneyer, Moral Philosophy's Standard Misconception

Chapter 9 The Legal Profession	583
A. Origins and development of the U.S. legal profession	584
1. Pre-revolutionary America	584
2. The nineteenth century	585
3. Growth of large firms in the twentieth century	587
B. A short history of American legal education	587
C. Race, sex, and class in the legal profession	589
1. Women	590
2. People of color	593
D. The legal profession today	595
1. Large firms	598
Michael Asimow, Embodiment of Evil: Law Firms in the Movies	600
Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member 
of an Unhappy, Unhealthy, and Unethical Profession	602
Problem 9-1 The Reforming Partner	609
Problem 9-2 The Job Interview	609
2. Small firms	610
a. Salaries and attrition	610
b. Setting one's own schedule	610
c. Bringing in business	612
d. Promotion in small firms	612
e. Other features of small-firm life	613
f. Urban versus rural practice	613
g. Gender bias in small firms	614
h. The future of small firms	614
i. Small firms and the Internet	615
3. Government and nonprofit organizations	615
E. The ethical climate of the legal profession	616
1. Mass Production	618
Problem 9-3 Small Claims	618
2. Pressure to pad bills	619
Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical 
Member of an Unhappy, Unhealthy, and Unethical Profession	619
3. Pressure from clients to help them commit fraud	621
4. Ethics and substance abuse	622
Problem 9-4 "I'm Not Driving"	623
5. Public perceptions of lawyers	624
6. How to find a law firm or other employer that has high 
 ethical standards and humane work conditions	625
Chapter 10 The Provision of Legal Services	631
A. The unmet need for legal services	632
B. Unauthorized practice and the role of lay advocates	636
David C. Vladeck, Statement Before the ABA Commission on 
Non-lawyer Practice	638
Problem 10-1 Special Education	641
C. Other legal restrictions on the free market for legal services	643
1. Advertising and solicitation	643
a. General advertising	643
b. In-person solicitation	644
c. Direct-mail solicitation	644
d. The ethics rules	645
Problem 10-2 Do You Need a Lawyer?	646
2. Interstate law practice	646
Stephen Gillers, It's an MJP World: Model Rules Revisions 
Open the Door for Lawyers to Work Outside their
Home Jurisdictions	648
3. Ownership of law firms	650
4. Multidisciplinary practice	651
Stacy L. Brustin, Legal Services Provision Through 
Multidisciplinary Practice: Encouraging Holistic Advocacy 	
While Protecting Ethical Interests	652
5. Limited representation	656
D. Beyond the free market: expanding legal services	659
1. The right to counsel for indigent litigants	659
a. Criminal defendants	659
Problem 10-3 An Indigent Prisoner	662
Richard C. Dieter, With Justice for Few: The Growing Crisis in 
Death Penalty Representation	663
b. Parties in civil and administrative proceedings	665
2. Civil legal aid	667
a. The Legal Services Corporation	667
Alan W. Houseman & Linda E. Perle, Securing Justice for All: 
A Brief History of Civil Legal Assistance in 
the United States	667
Problem 10-4 Restrictions on Legal Services	676
b. Other civil legal services	678
c. The IOLTA controversy	678
3. Fee-shifting statutes	679
a. Fee waiver as a term of a settlement	680
b. Who is a "prevailing party" entitled to attorneys' fees?	682
Margaret Graham Tebo, Fee-Shifting Fallout	682
4. Pro bono representation	683
Greg Winter, Legal Firms Cutting Back on Free Services for Poor	685
Michael Hertz, Large Law Firms: A Larger Role to Play	686
Doug Campbell, Law Firms Do Little Pro Bono	687
Judith L. Maute, Changing Conceptions of Lawyers' Pro 
Bono Responsibilities: From Chance Noblesse Oblige to Stated 
Expectations	687
Deborah L. Rhode, Cultures of Commitment: Pro Bono for 
Lawyers and Law Students	689
Problem 10-5 Mandatory Pro Bono Service	691
5. Loan forgiveness and scholarships for public service lawyers	691; Includes bibliographical references and index
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