Professional responsibility Book

	Preface	xix
	Acknowledgments	xxi
	Citations and Other Stylistic Practices	xxiii
1.	The Many Ways of Regulating Lawyers	1
	Introduction	1
	Who Should Regulate Lawyers?	4
	The Organized Bar: Models and Legally Binding Rules	4
	Courts and Legislatures	6
	A Bit of Ancient History, and Why It Matters	7
	The ABA Canons	7
	The Model Code	8
	The Model Rules	10
	Recent Developments	11
	Ethics 2000	11
	The Restatement	12
	A Word About the MPRE	13
Part 1	The Attorney-Client Relationship	15
2.	Formation and Termination	17
	Introduction	17
	Shall We Dance? Formation of the Relationship	17
	Quasi-Client Relationships	19
	Prospective Clients and "Beauty Contests"	21
	Fifty Ways to Leave Your Client: Termination of the Professional Relationship	25
	Client Fires the Lawyer	26
	Lawyer Fires the Client	26
	Breaking Up Is Hard to Do: Relationship Erodes over Time	27
3.	Aspects of an Ongoing Relationship	31
	Introduction	31
	Division of Labor in the Attorney-Client Relationship	32
	Some Basic Agency Principles	32
	Allocation of Authority Between Attorney and Client	34
	Clients with Diminished Capacity	38
	Duty to Communicate	38
	Interference with the Attorney-Client Relationship	45
	Anti-Contact Rule	45
	Anti-Contact Rule Where an Entity Is the Client	47
	Surveillance, Surreptitious Taping, and Other Sneaky Evidence-Gathering	50
	Anti-Contact Rule in Criminal Cases	52
4.	Attorneys' Fees and Transactions with Clients	57
	Reasonableness of Fees	57
	Contingent Fees	64
	Taking Stock in Clients	69
	Splitting Fees with Other Lawyers	71
	Holding Client Funds: Trust Accounts	72
5.	Representing Entities and Groups	77
	Introduction	77
	Complex Clients: Understanding the Structure of the Entity	78
	Publicly Traded Corporations	79
	Structure of MR 1.13	80
	Corporate Wrongdoing	81
	The Sarbanes-Oxley Act	83
	Shareholder Derivative Actions	83
	Corporate Families	85
	Closely Held Corporations and Partnerships	85
	Government Agencies	87
	Dealing with Agents of the Entity	90
6.	Incompetence: Remedies for Malpractice and Constitutional Ineffectiveness	97
	Introduction	97
	The Duty of Competence	98
	The Tort of Malpractice	98
	Duty and Standard of Care	99
	Breach of Duty	101
	Causation	103
	Damages	104
	The Sixth Amendment	109
7.	Confidentiality and Secrecy	115
	Introduction	115
	Voluntary and Involuntary Disclosure	116
8.	Attorney-Client Privilege and Work Product Doctrine	125
	Attorney-Client Privilege: Policy	125
	Attorney-Client Privilege: Elements	127
	Communication	127
	Privileged Persons	128
	In Confidence	129
	Purpose	129
	Facts Not Protected	130
	The Attorney-Client Privilege for Entities	136
	Exceptions to the Privilege and Waiver	142
	Crime-Fraud Exception	143
	Intentional Revelation	144
	Inadvertent Disclosure	145
	Putting in Issue	147
	No "Borrowed Wits": The Work Product Doctrine	150
9.	Professional Duty of Confidentiality	157
	Introduction	157
	Our Lips Are Sealed: The Professional Duty of Confidentiality	158
	Exceptions to the Professional Duty	162
	Authorized in Order to Carry Out Representation--MR 1.6(a)	162
	Disclosure to Prevent Wrongdoing--MR 1.6(b)(1)	163
	Physical Injury to Others	164
	Financial Harms	167
	Securing Legal Advice--MR 1.6(b)(2)	169
	Self-Defense--MR 1.6(b)(3)	169
	Compliance with Law--MR 1.6(b)(4)	171
Part 2	Secrets and Lies: Perjury and the Problem of Client Fraud	177
10.	Perjury in Civil and Criminal Litigation: The Lawyer's "Trilemma"	179
	Introduction	179
	Model Rule 3.3 on Perjury	180
	Prospective	181
	Active Participation by the Lawyer	181
	Passive Involvement by the Lawyer	181
	Actual Knowledge of Falsity	182
	Retrospective	184
	Criminal Cases: Professional Duties in Tension	192
	Alternative Responses to Perjury in Criminal Cases	195
	"Tell the Court What Happened": The Narrative Solution	195
	Passing the Buck: Withdrawal	196
11.	Attorney Conduct in Litigation: Forensic Tactics, Fair and Foul	205
	Introduction	205
	Some Clear-Cut Rules	206
	Ex Parte Contacts with Judges and Jurors	207
	Disclosure of Adverse Authority	207
	Taking Advantage of Your Opponent's Mistakes, Other than Failure to Cite Authority	209
	Lying in Negotiations	211
	Frivolous Pleadings, Motions, and Contentions	213
	Witness Coaching	217
	First Amendment Issues	221
	Trying a Case in the Press	222
	Criticism of Judges	224
12.	The Client Fraud Problem	231
	Introduction	231
	Lawyer Liability for Participating in Client Wrongdoing	231
	Common Law Fraud	232
	Securities Fraud	232
	Aiding and Abetting Breach of Fiduciary Duty	233
	Legal Malpractice	233
	Discipline for Making False Statements	234
	Another "Trilemma": Confidentiality, Withdrawal, and Liability (Pre-2003 Model Rules)	238
	Disciplinary Rules	239
	Getting Mixed-Up with a Crooked Client	240
	The Effect of Generally Applicable Law	241
	Silence Is Not Golden: "Noisy" Withdrawals	243
	An Eleventh-Hour Amendment to Model Rules 1.6 and 1.13	247
	The Effect of Sarbanes-Oxley and the SEC Regulations	248
Part 3	Conflicts of Interest	253
13.	Overview of Conflicts of Interest	255
	Introduction	255
	A Note on the Appearance of Impropriety	259
14	Current Client Conflicts	263
	Introduction	263
	Analysis of Current Client Conflicts Problems	263
	Identify Client Relationships	263
	Identify Conflicts	264
	Significance of Direct Adversity and Material Limitation Language	265
	Actual and Potential Conflicts	267
	Ascertain Consentability	269
	Prohibited by Law	270
	Client v. Client in the Same Litigation	271
	Zero-Sum	272
	See if There Has Been Effective Consent	273
	Withdrawal of Consent	276
	Requirement of Written Consent	277
	Advance Waivers	278
	Imputation	289
	Analysis of Current Client Conflicts Under the Model Code	290
	Discipline and Punish: Remedies for Conflicts	291
	Disqualification	291
	Malpractice	292
	Summing Up	292
15.	Current Client Conflicts Issues in Specific Contexts	299
	Criminal Cases	299
	Transactional Matters	306
	The Intermediation Rule	314
	Positional Conflicts	315
	The "Eternal Triangle" for Insurance Defense Lawyers	317
	Client Identification	318
	Conflicts	319
	Reservation of Rights	319
	Settlement	320
	Multiple Parties	321
	Duty to Communicate and Confidentiality	321
16.	Former Client Conflicts and Migratory Lawyers	323
	Introduction	323
	Side-Switching Former Client Conflicts	323
	Review: Termination of the Attorney-Client Relationship	324
	Analysis of Side-Switching Former Client Conflicts Problems	325
	Representing a Client	325
	Identify the Matter	327
	The "Substantial Relationship" Test	327
	Material Adversity	330
	Consent	331
	Appearance of Impropriety Is Not the Standard	331
	Migratory Lawyers	335
	Analysis of Migratory Lawyer Problems	336
	Definition of Representation: The Silver Chrysler Rule	336
	Substantial Relationship	339
	The "Typhoid Mary" Problem: Imputed Conflicts and Screening	340
	Elements of an Effective Screen	342
	Lingering Taints of the Departed Lawyer	344
	The Special Situation of Former Government Lawyers	347
17.	Miscellaneous Conflicts Issues	353
	Lawyer-Client Conflicts	353
	Business Transactions with Clients	353
	Fee-Payor Conflicts	355
	Gifts to Lawyers	356
	Media Rights	357
	Family Relationships	357
	Sexual Relationships with Clients	358
	Lawyer-Witness Rule	360
Part 4	Organization and Regulation of the Legal Profession	367
18.	Attracting Clients: Advertising and Solicitation	369
	Introduction	369
	Constitutional Decisions	373
	Advertising Cases	373
	Solicitation Cases	376
	Disciplinary Rules	381
	General Prohibition on False or Misleading Communications	382
	Generally Advertising Is Permitted	384
	Lawyer Referral Services	385
	Solicitation Is More Tightly Restricted	385
19.	Associations of Lawyers	391
	Practicing with Other Lawyers	391
	Responsibilities of Supervising Lawyers	391
	"Just Following Orders": Responsibilities of Subordinate Lawyers	392
	Practicing with Non-Lawyers: The MDP "Problem"	396
	Fee-Splitting	397
	Partnerships and Corporations with Non-Lawyer Members	397
	Professional Judgment	398
	Attorney-Client Privilege and Confidentiality	398
20.	The Organized Bar	401
	Regulating Entry into the Profession	401
	Legal Authority to Regulate	401
	Requirements for Admission	402
	Physical Presence Requirements	403
	Character and Fitness Screening	403
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