Ethical problems in the practice of law / Lisa G. Lerman, Philip G. Schrag.

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.