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Book Categories |
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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