PROFESSIONAL RESPONSIBILITY OUTLINE
PROFESSOR FEJFAR
SPRING 2002
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LAWYERING AND ETHICS
a. Model Rule 1.2: Scope of Representation
i. 1.2(a) Lawyer shall
1. Abide by a client's decisions concerning the objectives of representation
2. Consult with the client as to the means by which they are being pursued
3. Abide by client's decision to settle
4. In criminal cases AND after consultation with lawyer, lawyer shall abide by client's
decision
a. To enter a plea
b. To waive jury trial or not AND
c. To testify or not
5. NOTES: If the lawyer disagrees with client's decisions
a. Lawyer may withdraw OR
b. Document that you have advised your client contrary to what the client
decided to do so the lawyer is covered
ii. 1.2(b) Representation of a client, including representation by appointment
1. Does not constitute endorsement of client's political, economic, social, or moral
views or activities.
2. NOTES: Ethic of detachment
a. Everyone deserves a defense
b. Representation of clients, whether we agree with their views or not,
prevents arbitrary practices by police and prosecutors
iii. 1.2(c): Limiting Objectives of Representation
1. A lawyer can limit the objectives of representation IF
a. Client consents AFTER consultation
2. NOTES: Practical reasons to limit representation
a. Lawyer does not want to be responsible for the client's acts
iv. 1.2(d): Crime or Fraud
1. A lawyer shall not knowingly
a. Counsel OR assist a client to engage in crime or fraud
2. A lawyer may
a. Discuss legal consequences of any course of conduct with a client AND
b. May counsel or assist a client to
i. Make a good faith effort to determine the validity, scope, meaning,
or application of the law
3. NOTES: stay away from the borderline
a. Rule only talks about "criminal or fraudulent" conduct
b. ARGUABLY, lawyer can counsel or assist client to
i. Breach contract
ii. Violate environmental laws
iii. Violate regulatory laws
c. ON THE OTHER HAND, rule 1.16(a), relating to withdrawal, states that
lawyers shall withdrawal for violating any other "law" which covers breach
etc.
v. PA Model Rule 1.2 mirrors that of ABA Model Rule 1.2. Thus, in PA the analysis would be
similar.
b. Model Rule 1.6: Confidentiality of Information
i. 1.6(a): General Rule—A lawyer shall not
1. Reveal information
2. Relating to representation of a client
3. UNLESS
a. Client consents after consultation OR
b. Disclosure is impliedly authorized in order to carry out representation (even
without client consent)
ii. 1.6(b): Exceptions
1. A lawyer MAY reveal information
a. ABA is permissive not mandatory disclosure
2. IF Lawyer reasonably believes necessary
a. 1.6(b)(1): To prevent client from committing a criminal act
i. Criminal act must be likely to result in imminent death or substantial
bodily harm
1. Reasonably likely that the client will commit the act
a. Client tells you AND
b. Client must be the one who will commit the act
ii. Criminal Act must be in the future
iii. Imminent is not defined, but look to the facts
b. 1.6(b)(2): To establish a claim or defense
i. On behalf of the lawyer if the lawyer sues the client
ii. To a criminal charge or civil claim against the lawyer based upon the
client's conduct OR
iii. To respond to allegations in any proceeding concerning the lawyer's
representation of the client
iii. PA Model Rule 1.6: Confidentiality of Information
1. 1.6(a) mirrors ABA Model Rule 1.6(a)
2. 1.6(b): A lawyer SHALL reveal such information if necessary to comply with the
duties in PA Model Rule 3.3
a. Since 3.3 trumps 1.6, a lawyer is REQUIRED to disclose to abide by 3.3
3. 1.6(c): A lawyer may reveal information to the extent the lawyer reasonably believes
necessary
a. 1.6(c)(1): same as ABA model rule BUT
i. Takes out "imminent" requirement AND
ii. Adds "substantial injury to financial interest or property of another"
1. Includes theft, fraud, embezzlement, etc.
b. 1.6(c)(2): lawyer may reveal information
i. To prevent OR rectify the consequences of client's criminal or
fraudulent act where lawyer's services were used
1. Past and present acts of client
4. Read 1.6 in conjunction with PA Model Rule 4.1: Truthfulness in Statements to
Others
a. During representation, a lawyer SHALL not knowingly
i. 4.1(b): fail to disclose a material fact to a third person where
disclosure is necessary to
1. Avoid aiding and abetting a crime or fraudulent act UNLESS
2. Disclosure is prohibited by PA Model Rule 1.6
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c.
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d. Model
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b. NOTES: Although disclosure is permissive under 1.6(c), AP Model Rule 4.1(b)
might REQUIRE disclosure
Rule 1.16: Withdrawal
1.16(a): A lawyer shall not represent a client OR if already representing a client shall
withdraw IF
1. 1.16(a)(1): representation will violate rules of professional conduct OR other law
a. Law is broader here than other parts of the code
2. 1.16(a)(2): lawyer is physically or mentally unable to represent the client OR
3. 1.16(a)(3): the lawyer is discharged from representation
1.16(b): Permissive Withdrawal: Unless required by 1.16(c), a lawyer MAY withdraw IF
1. Withdrawal will not adversely effect the interests of the client OR
a. 1.16(b)(1): client persists in course of conduct that involves lawyer's services
and lawyer reasonably believes the conduct is fraudulent or criminal
b. 1.16(b)(2): client has used lawyer's services to perpetrate a crime or fraud
c. 1.16(b)(3): client insists on pursuing repugnant or imprudent objectives
d. 1.16(b)(4): client fails to fulfill obligation regarding lawyer's services AND
client had notice that lawyer would withdraw if client did not fulfill
obligation
e. 1.16(b)(5): representation will unreasonably burden the lawyer financial OR
representation made unreasonably difficult by the client
f. 1.16(b)(6): other good cause shown
1.16(c): Court order to represent
1. Lawyer SHALL represent client IF
a. Court orders lawyer to do so EVEN THOUGH
b. Good cause for terminating representation exists
2. NOTES: Court MAY allow withdraw if counsel can be replaced
a. Criminal cases is less likely to withdraw
b. In civil cases, easier to withdraw if closer to the beginning of representation
1.16(d): After Withdrawal
1. Layer shall protect interests of the client BUT
2. Does not mean lawyer can protect client's criminal or fraudulent behavior
PA Model Rule 1.16 mirrors ABA Model Rule 1.16 and thus the analysis would be similar.
Rule 2.1: Advisor
A Lawyer shall exercise independent professional judgment AND
Render candid advice
1. In rendering candid advices, a lawyer MAY
a. Refer to the law AND
b. Moral, economic, social, and political factors
i. Factors must be relevant to the client's situation
PA Model Rule mirrors ABA Model Rule 2.1 and thus the analysis would be similar
Rule 5.1: Responsibility of a Partner or Supervisor
5.1(a): Partner in a law firm SHALL
1. Make sure all lawyers in the firm conform to the Rules of Professional Conduct
5.1(b): Supervisors shall
1. Make sure all lawyers working beneath conform to the Rules of Professional Conduct
5.1(c): Lawyer SHALL be responsible for another's violation of Rules of Professional
Conduct IF
1. 5.1(c)(1): lawyer orders a violation of the rules of professional conduct
2. 5.1(c)(1): has knowledge of violation and ratifies the conduct OR
3. 5.1(c)(2): A partner or supervisor knows of the violation at a time where she can
reasonably prevent, avoid, or mitigate a violation of the RPC but fails to do so
iv. PA Model Rule 5.1 mirrors ABA Model Rule 5.1 and thus the analysis is similar
f. Model Rule 5.2: Responsibility of a Subordinate Lawyer
i. 5.2(a): Subordinate lawyer is bound by the rules of conduct EVEN THOUGH action taken at
direction of another lawyer
ii. 5.2(b): subordinate lawyer DOES NOT violate rules of professional conduct IF
1. Acts in accordance with supervisor's reasonable resolution of an arguable question
of professional duty
iii. There is a duty to report violations of professional rules of conduct under Model Rule 8.3
and 8.4
iv. PA Model Rule 5.2 mirrors ABA Model Rule 5.2 and thus the analysis is similar
g. Spaulding v. Zimmerman—'s attorney fails to find aneurysm in ; 's attorney finds out about it
but does not disclose.
i. 1.6—since info related to representation of , 's attorney was not required to disclose
under the Model Rules
h. Civil Procedure Rules
i. Initial mandatory disclosures
i. Tampering with Evidence 18 Pa. C.S. § 4910
i. Anticipation of proceeding or investigation
ii. One destroys, alters, or removes documents OR
iii. Fraudulent uses such documents with intent to mislead
1. NOTES: may destroy after five years
j. HYPOTHETICAL
i.  committed prior crime in CA not in PA. At PA trial right before sentencing, judge asks
"any prior crimes?" Model rules permit nondisclosure. BUT Model Rule 3.3(a)(1) prohibits a
lawyer from making a false statement of a material fact or law to the court and (a)(2)
prohibits a lawyer from failing to disclose a material fact to court when necessary to avoid
assisting crime or fraud of client. THUS,
1. If judge does not ask, lawyer need not disclose prior crimes.
2. If judge asks, "no prior crimes, isn't that true?" lawyer must say, "I can't comment
either way."
a. If info comes from client, no disclosure under 1.6.
b. If lawyer gets information on his own, lawyer should disclose.
ii. Judge's faulty sentence instruction or guidelines favorable to your client, the 
1. Under Model Rule 3.3(a)(3), lawyer must disclose legal authority
2. Under Model Rule 3.3(a)(3), lawyer need not disclose independent facts
k. Ambiguities in the Law
i. Lawyers must interpret the law within a reasonable range of interpretation
ii. Matter of Krueger—lawyer advised client to stay in hotel for certain period of time so
client could be considered a resident of that state for custody purposes. Although client
legally was then a resident, the lawyer gave advice that fell outside the reasonable
interpretation of the law.
l. Disclosing Incriminating Evidence
i. Stenhach—Criminal defense attorney must turn over to prosecutor any physical evidence
relating to crime in possession of the 's attorney
1. Criminal defense attorney not required to turn over confessions
a. Attorney-client privilege attaches
b. 5th Amendment privilege against self-incrimination
c. Confidentiality rules apply
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ii. Model Rule 3.4(a): Lawyer shall not
1. Unlawfully obstruct another party's access to evidence OR
2. Unlawfully alter, destroy, or conceal a document or other material
3. Having potential evidentiary value
iii. Other Applicable Rules:
1. Model Rule 1.6 may prohibit lawyer from disclosing information unless exceptions
apply
2. PA Model Rule 1.6 would require disclosure because 3.3 trumps 1.6 (lawyer shall not
fail to disclose anything that would assist client in committing a crime or fraud)
3. Model Rule 8.4(a): prohibits misconduct
4. Model Rule 8.4(b): prohibits lawyer from committing criminal act reflecting
adversely on lawyer's honesty, trustworthiness, or otherwise fitness of lawyer
CONFORMITY TO LAW
a. Model Rule 3.1: Meritorious Claims and Contentions
i. Lawyer shall not
1. Bring or defend frivolous claims UNLESS
2. There is a basis for doing so that is not frivolous
a. Good faith argument for an extension, modification, or reversal of existing
law
ii. In a criminal case
1. Lawyer who cannot assert a nonfrivolous defense may
a. Defend by requiring prosecution to prove every element beyond a reasonable
doubt
i. Lawyer cannot put on perjured testimony or
ii. Present fraudulent evidence
iii. PA Model Rule 3.1 mirrors ABA Model Rule 3.1 and thus the analysis is similar
b. Model Rule 3.2: Expediting litigation
i. A lawyer shall
1. Make reasonable efforts to expedite litigation
2. Consistent with client's interests
a. NOTES: no unreasonable stalling, BUT can delay for tactical advantage,
financial reasons, or preparation of witnesses
ii. PA Model Rule 3.2 mirrors ABA Model Rule 3.2 and thus the analysis is similar
c. Model Rule 8.3: Reporting Professional Misconduct
i. 8.3(a): A lawyer shall report when
1. Lawyer has knowledge that another lawyer has or will violate professional rules of
conduct
2. Violation is substantially related to dishonesty, trustworthiness, or fitness
ii. 8.3(c): This rule does not require disclosure if information is protected under 1.6
1. NOTES: if the client is a lawyer, and client gives information to another lawyer
about his violation of 8.3, lawyer should not disclose under 1.6 BUT
2. If there is a casual conversation between lawyers about a violation a lawyer should
report
d. Model Rule 8.4: Misconduct
i. 8.4(a): cannot violate, attempt to violate, or knowingly assist another to violate rules of
professional conduct OR violate, attempt to violate, or knowingly assist another to through
the acts of another
1. Anti-Contact Rule: lawyer shall not talk to adverse party without the party's lawyer
present
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ii. 8.4(b): cannot commit criminal act that reflects adversely on the lawyer's honesty,
trustworthiness, or fitness as a lawyer in other respects
iii. 8.4(c): cannot engage in dishonest, fraudulent, deceitful, or misrepresentative conduct
iv. 8.4(d): cannot act prejudicially to the administration of justice
v. 8.4(e): cannot state or imply ability to influence improperly a government agency or official
vi. 8.4(f): cannot knowingly assist a judge/judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law
vii. PA Model Rule 8.4 mirrors ABA Model Rule 8.4 and thus the analysis is similar.
Criminal Law
i. General Rule: if a client seeks advice to commit misconduct, a lawyer may be liable criminally
or civilly
1. Criminal law requires "mens rea" to commit crime
a. Rule 1.2(d) requires lawyer to refrain from assisting client in conduct that
the lawyer knows will be criminal or fraudulent
i. Knowledge can be met by
1. Actual Knowledge
2. Recklessness OR
3. Inferred from circumstances (Preamble)
a. Example: client pays for legal services with a brand
new car puts lawyer on notice
ii. Other crime may require specific intent
2. Lawyer is required tow withdraw under 1.16 if client is or will be breaking the law
BUT
a. If client is well established with the firm, lawyer may be a captive of the
client and must do as he or she says for fear of losing the client
ii. Areas of concern: a lawyer may be liable IF
1. Drafts opinion letters to help put together a fraudulent scheme: US v. Benjamin
2. Tax advice
3. Drafting illegal documents
iii. Prepaid legal services for those engaged in crime
1. A lawyer cannot agree to represent a client before a crime occurs or in anticipation
of a crime
a. Lawyer may be charged with conspiracy AND
b. Violates the code of ethics
2. If a lawyer is placed on a retainer, it's harder to prove that the lawyer was hired
before the crime was committed
a. Check if attorney does criminal, civil, or both
i. If criminal only, might be hired in anticipation of crime
ii. If civil and criminal, might not be hired in anticipation of a crime
iv. Obstruction of Justice
1. Consists of bribery of a judge, grand jury, or a jury
2. Interference with a jury
3. Tampering or destroying evidence
v. Mail Fraud
1. Scheme to defraud
2.  has used the mail or caused another to use the mail for purposes of executing the
scheme
3. US Mail must be used
a. No UPS, FED Express, or otherwise not US Mail Service
vi. Wire Fraud
f.
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1. Scheme to defraud
2.  uses or is the cause of use of interstate wire communication to execute the
scheme
a. Must cross state lines OR
b. Foreseeable that communication would cross state liens (courts are split
here)
vii. Theft by Deception
1. False representation of existing fact
2. Obtaining property or something of value thereby
3. With intent to defraud AND
4. Victim relies on the representation
viii. Other Crimes
1. Conspiracy
a. Agreement by two or more people to commit a crime
i. Can be criminally or civilly liable
2. Aiding and Abetting
a. Person has knowledge of the crime AND
b. Substantially assists another to commit the crime
i. Silence is not enough to substantially assist
3. RICO
a. Enterprise involving interstate commerce
b. Where a person invests income derived from a pattern of racketeering
i. Pattern of racketeering
1. Two acts required AND
2. Threat of future activity
ii. Mail Fraud or Wire Fraud are predicate offenses
1. Example: padding bills using US mail three times in the past
a. RICO VIOLATION
i. Can be liable criminally AND
ii. Civilly with treble damages
ix. Model Rule 3.8: Special Responsibilities of a Prosecutor
1. 3.8(f): The prosecutor shall not
a. Subpoena a lawyer in grand jury or other criminal proceeding to present
evidence about a past or present client unless
i. Prosecutor reasonably believes
1. Information is not protected from disclosure by rule or
privilege
2. Evidence sought is essential to completion of ongoing
investigation or prosecution AND
3. There is no other feasible alternative to obtain the
information
2. NOTES: PA Rule 3.10 applies to state and local authorities
a. Cannot be applied to federal prosecutors
Tort Law
i. Negligent Misrepresentation
1. Supplying false information for the guidance of others in business transactions AND
2. Justifiable reliance on the information
ii. Negligent Misrepresentation to Third Parties
1. Supplying false information for the guidance of others in business transactions AND
2. Justifiable reliance on the information
iii.
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3. No privity requirement under Greycas
Intentional Torts
1. Civil Fraud
a. Statement to s
b. Statement must be false
c. Statement made with knowledge or recklessness of falsity
d. s relied to their detriment
2. Liability for Civil Fraud as an Agent
a. Liability if agent finds out of fraud in mid-stream but fails to disclose
i. Disclosure would violate Model Rules
ii. Nondisclosure would violate agency law
iii. PA MR. 1.6 requires disclosure where lawyer's services would
perpetuate fraud
Securities and Regulatory Law
1. Securities Fraud
a. Nexus with the sale
b. Materiality
c. Scienter
i. Knowing or recklessness
Tax Law: Advice on Tax Deductions: advise based on the continuum of clearly entitled to
deduction to clearly fraudulent
1. ABA Formal Opinion 314 (1965): Tax Advice based on
a. Reasonable basis standard
2. ABA Formal Opinion 85-352: (1986-Present): Tax advice based on
a. Realistic possibility of success
i. IRS says a 33% is realistic possibility of success
Procedural Law
1. FRCP Rule 11
a. Lawyer vouches for validity of claim with signature
2. FRCP Rule 26
a. Sanctions include reasonable attorney's fees
COMPETENCE
a. Model Rule 1.1: Competence
i. A lawyer shall
1. Provide competent representation to a client
a. Legal knowledge, skill, thoroughness, and preparation
b. Reasonably necessary for the representation
ii. PA Model Rule 1.2 mirrors ABA Model Rule 1.2 and thus the analysis is similar.
b. Model Rule 1.3: Diligence
i. A lawyer shall
1. act with reasonable diligence and promptness in representing a client
ii. PA Model Rule 1.3 mirrors ABA Model Rule 1.3 and thus the analysis is similar
c. Model Rule 1.4: Communications
i. 1.4(a): A lawyer shall
1. Keep a client reasonably informed AND
2. Promptly comply with reasonable requests for information
ii. 1.4(b): A lawyer shall
1. Explain a matter to a client to the extent reasonably necessary to permit the client
to make informed decisions about representation
iii. PA Model Rule 1.4 mirrors ABA Model Rule 1.4 and thus the analysis is similar
IV.
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d. Checks on Incompetence
i. Model Rules
ii. Continuing Legal Education (CLE)
iii. Peer Review (Practical)
1. Mentors in the firm
2. Annual evaluations of Associates
iv. Market Reputation
e. Malpractice
i. Duty
1. Duty is formed by the Attorney-Client relationship
2. Duty to third parties may be formed by
a. Negligent misrepresentation where there is no privity requirement (Greycas)
ii. Breach
1. Reasonably competent lawyer standard
iii. Causation
1. Lawyer's representation must cause damage
iv. Damages
1. Economic Loss
f. Model Rule 1.8(h)
i. A lawyer shall not
1. make an agreement prospectively to limit liability to a client for malpractice
UNLESS
a. Permitted by law AND
b. Client is independently represented in making the agreement
ii. A Lawyer shall not
1. Settle a claim for malpractice liability with an unrepresented client OR former
client UNLESS
a. Lawyer advises person in writing that independent representation is
appropriate
g. Duty to Disclose Settlement Offers
i. Model Rule 1.2(a) and Model Rule 1.4 read together require lawyer to tell client of
settlement offers
h. Preamble § 18: Violation of Rule should not give rise to cause of action NOR should it create
presumption that a legal duty has been breached
i. They are guidelines for lawyer's conduct
i. Ineffective Assistance of Counsel
i. Deficient performance
1. Strong presumption that layer was efficient
2. Reasonable professional judgment standard
ii. Prejudice to Client's case
1. Guilt phase in criminal proceeding
a. Show that there is a reasonable probability that absent error,  is not guilty
2. Sentencing Phase
a. Show that there is a reasonable probably that absent error  would not have
bee sentenced to death
CONFIDENTIALITY
a. Model Rule 1.6 never requires disclosure because it is permissive BUT
i. Can't assist a crime or fraud under Model Rule 1.2
ii. Should withdraw under 1.16(a)
1.
COMMENT: after withdraw, must refrain from disclosing unless required under 1.6
(never required)
a. May give notice of the fact of withdraw
iii. Model Rule 4.1(b) requires disclosure UNLESS prohibited by 1.6
iv. PA Model Rule 4.1(b) is mandatory disclosure if services are used to facilitate fraud
b. Attorney-Client Privilege (Common Law or Statutory: Distinguish from Rule 1.6, a disciplinary rule)
i. A communication
1. From Client to Lawyer (Some courts say lawyer to client also)
a. Documents communicated to lawyer for purposes of litigation are privileged
b. Observation are NOT privileged
c. Physical evidence not included (Stenhach)
d. Name and fees paid are not privileged
e. Whereabouts of client are not privileged
ii. Made between privileged persons
1. Client to lawyer
a. No legal fees required
2. Not other parties
3. Preliminary conversations are privileged
4. Secretaries and paralegals are privileged persons
iii. Made in confidence
1. If third party's are present AND communication is made in confidence, then it is
still privileged
iv. For purposes of obtaining/providing legal assistance of the client
c. Attorney Client Privilege for Corporations
i. Privilege extends to corporations
1. Control group AND
2. Employees
a. Upjohn Privilege to corporate employees applies IF
i. Communications by corporate employees
ii. To counsel for the corporation
iii. At the direction of corporate superiors
iv. In order to get legal advice from counsel
d. Work Product Doctrine:
i. Materials prepared by lawyer are privileged IF
1. Prepared in anticipation of litigation AND
2. On client's behalf
ii. Mental impressions of attorney can only be disclosed IF
1. Extraordinary circumstances exist
e. Exceptions to Attorney Client Privilege
i. Pooled information exception
1. Joint clients and cooperating parties
a. Information is not privileged after break-up of parties
ii. Documents in possession of the Lawyer are privileged IF
1. Documents in hands of client were protected by 5th amendment if never
transferred to lawyer AND
2. Transfer of documents from client to lawyer meets elements of attorney-client
privilege
iii. Documents in possession of the lawyer are NOT privileged IF
1. Client could not claim 5th amendment protection
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a. 5th amendment protects against compelled testimony AND
2. Attorney merely possess documents of client
iv. Crime-Fraud Exception
1. If client goes to lawyer seeking legal assistance for purposes of committing a crime
or fraud, communications are NOT privileged
v. Waiver of privileged information
1. Privilege does not apply where attorney puts the privileged information at issue
a. Only the information at issue is waive, not ALL privileged communications
f. Self-Defense
i. Meyerhoffer—disclosure of fraud permissible to avoid liability for fraud
1. ABA Model Rule 1.6
a. General Rule—no disclosure
b. Lawyer has a duty to communicate with client about fraud under 1.4
c. Exception to 1.6 disclosure
i. 1.6(b)(2) permits, but does not require, a lawyer to disclose to avoid
liability for client's conduct
g. Liability of Lawyer for Facilitating Fraudulent Transaction
i. Lawyer will be liable if he assists a client to commit fraud
ii. Lawyer should disclose if he knows the client is fraudulently withholding information
1. Securities law
2. Real Estate Law
h. Bodily Harm or Death
i. Suicide
1. Not directly covered under ABA rule because rule speaks to criminal act—suicide is
ordinarily not a criminal act because there would be no one to prosecute. HOWEVER
2. ARGUE that the client is incapacitated under 1.14(b) and lawyer should take
reasonable protective actions if reasonably believes client cannot act in his own
interest
i. Duty to Warn
i. Lawyer has a duty to warn foreseeable victims that client is dangerous
1. Hawkins— in jail, tells lawyer he wants out, lawyer says OK, lawyer knew about
mental illness from 's mother,  is released and  assaults mother and attempts
suicide.
a. HELD: Duty of confidentiality—lawyer must abide by client's instructions
i. Under 1.14(a), lawyer shall maintain normal attorney-client
relationship whenever reasonable possible even if client is impaired.
b. HELD: Duty to warn
i. Mother, as victim, already knew  was dangerous, so no duty to warn
Duty to the Court
a. Model Rules
i. Model Rule 3.3: Candor Toward the Tribunal
1. Model Rule 3.3(a)(1)—lawyer shall not knowingly make false statement of material
fact or law to a tribunal
a. Law—can't make up a statute but can argue within a reasonable range of
argument
b. Fact—can't make up facts but argue within a reasonable range of
argument/interpretation
2. Model Rule 3.3(a)(2)— lawyer shall not knowingly fail to disclose material facts
necessary to avoid assisting a crime or fraud
a. Cannot assist client in
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ii. Model
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iii. Model
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iv. Model
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i. Committing perjury
ii. Destroying evidence
iii. Falsifying evidence
Model Rule 3.3(a)(3)—lawyer shall not knowingly fail to disclose directly adverse
legal authority whether or not the adverse party does the same
a. All controlling precedent
Model Rule 3.3(a)(4)—lawyer shall not knowingly offer perjured testimony or
falsified documents
a. If lawyer discovers after such evidence is offered
i. Lawyer must take reasonable remedial measures
ii. If that fails, lawyer must disclose to the court
Model Rule 3.3(b) trumps 1.6 Confidentiality
Model Rule 3.3(c)—lawyer may refuse to offer evidence that the lawyer reasonably
believes is false
a. Discretionary and permissive
Model Rule 3.3(d)—Ex parte communications
a. Lawyer shall inform the tribunal of all present material facts whether
adverse to the lawyer or not
Rule 3.4: Fairness to Opposing Party and Counsel
Model Rule 3.4(a)—lawyer shall not
a. Unlawfully obstruct another party's access to evidence OR
b. Destroy evidence or alter documents unlawfully
i. Unlawfully usually means a statute prohibits such conduct
Model Rule 3.4(b)—lawyer shall not falsify evidence, counsel or assist perjury, or
offer an unlawful inducement to a witness (bribe?)
Model Rule 3.4(c)—lawyer shall not knowingly disobey court order
Model Rule 3.4(d)—lawyer shall not make frivolous discovery requests or fail to
comply with discovery requests
Model Rule 3.4(e)—lawyer shall not
a. Ask inadmissible/irrelevant questions
b. Vouch for witness
c. Assert personal knowledge of the facts
d. State personal opinion about
i. Witness credibility
ii. Justness of cause
iii. Culpability or guilt
Rule 3.5: Impartiality and Decorum of the Tribunal
Model Rule 3.5(a) prohibits bribery of judges/jurors/etc.
Model Rule 3.5(b) prohibits unlawful ex parte communications about a pending case
Model Rule 3.5(c) prohibits intentional disruptive conduct in court
Rule 3.6: Trial Publicity
Model Rule 3.6(a) generally prohibits discussing case to media if lawyer reasonably
should know that it will have substantial likelihood of materially prejudicing the
outcome
Model Rule 3.6(b): Exceptions
a. Model Rule 3.6(b)(1) permits disclosing claim, defense, identity of parties to
the media
i. No clear indication of how specific the disclosure to media can be
b. Model Rule 3.6(b)(2) permits disclosure to media of any information
contained in public record
v. Model Rule 3.7: Lawyer as a Witness
1. Model Rule 3.7(a) prohibits advocacy AND participation as witness in same trial
UNLESS
a. (a)(1)—testimony is uncontested
b. (a)(2)—testimony relates to nature or value of legal representation
c. (a)(3)—disqualification of lawyer would materially hardship the client
vi. Model Rule 3.8: Special Responsibilities of Prosecutors
1. Model Rule 3.8(a) prohibits prosecution where the prosecutor knows the charge is
not supported by probable cause
2. Model Rule 3.8(b) prosecutors shall allow the  to get a lawyer
3. Model Rule 3.8(c) prosecutors shall not let  waive rights without 's attorney
4. Model Rule 3.8(d) prosecutors must disclose evidence that negates guilt or mitigates
the offense
5. Model Rule 3.8(e) prohibits prosecutors and other law enforcement from making
prejudicial extrajudicial statements
6. Model Rule 3.8(f) SEE ABOVE
7. Model Rule 3.8(g) prohibits prosecutors from heightening the condemnation of the
accused
vii. Model Rule 4.1: Truthfulness in Statements to Others
1. Model Rule 4.1(a) prohibits lawyer from knowingly making a false statement of
material fact or law to a third person
2. Model Rule 4.1(b) prohibits a lawyer from failing to disclose a material fact in order
to avoid assisting crime or fraud subject to 1.6
3. Comment [2]: Settlements
a. Permits inflation of settlement offer
b. Deflation is not covered by the rule
b. Perjury
i. Crary—lawyer cannot allow client to lie during a deposition;
1. Lawyer MUST correct perjured testimony OR
2. Withdraw
ii. Nix—There is no constitutional right to commit perjury
1. Lawyer can threaten to withdraw OR
2. Possibly disclose without fear of liability for ineffective assistance of counsel
iii. Long—lawyer was "concerned about client's testimony" but client did not unequivocally state
that he would commit perjury
1. Lawyer must advise the client regarding perjury
2. Lawyer must ask whether story is true
a. IF it's an arguably believable story, go forward with the testimony
3. IF, however, client gives a direct expression of intent to commit perjury (Nix),
a. Lawyer must move to withdrawal, and if denied
b. Lawyer should disclose to the court that client intends to commit perjury
c. Remedies for Abusive Litigation
i. Frivolity
1. Model Rule 3.1: Meritorious Claims and Contentions
a. Lawyer shall not
i. Bring or defend frivolous claims UNLESS
ii. There is a basis for doing so that is not frivolous
1. Good faith argument for an extension, modification, or
reversal of existing law
b. In a criminal case
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i. Lawyer who cannot assert a nonfrivolous defense may
1. Defend by requiring prosecution to prove every element
beyond a reasonable doubt
a. Lawyer cannot put on perjured testimony or
b. Present fraudulent evidence
c. Comment 2 provides that a lawyer is not responsible for investigating the
facts plead in your client's case
d. HOWEVER, the comment conflicts with FRCP Rule 11, which requires a
reasonable inquiry and effective basis for factual assertions
2. PA Model Rule 3.1 mirrors ABA Model Rule 3.1 and thus the analysis is similar
3. Model Rule 3.2: Expediting litigation
a. A lawyer shall
i. Make reasonable efforts to expedite litigation
ii. Consistent with client's interests
1. NOTES: no unreasonable stalling, BUT can delay for tactical
advantage, financial reasons, or preparation of witnesses
4. Solowitz—lawyer cannot keep appealing a case on the same arguments dealing with
the same facts when there is no new argument for overruling the past cases
ii. Tort Remedies
1. Negligence
a. Attorney does not have a duty to the opposing party in the adversary system
2. Abuse of process
a. Ulterior purpose
b. Act in use of process which is improper in the regular prosecution of the
proceeding
i. Must be a procedure AFTER filing the lawsuit (ex: discovery tactics)
3. Malicious Prosecution
a. American Rule
i. Prior proceeding terminated in total favor of the present  (past )
ii. Absence of probable cause for the prior proceeding
1. Reasonable investigation and research OR
2. Reasonable belief that the claim may be valid (ARGUE BOTH)
iii. Malice
1. Party
a. Malice is presumed from lack of probable cause
2. Attorney Representing Party
a. Malice is not presumed
b.  must show attorney's independent malice AND
c. Lack of probable cause
b. English Rule
i. Requires the above elements AND
ii. Special damages resulting from ORIGINAL lawsuit
1. Damage to fame
2. Liberty
3. Property Damages
4. Dragonetti Act (Pennsylvania)
a. Wrongful use of civil proceeding
iii. FRCP Rule 11
1. Signature represents to the court that lawyer
a. Is not presenting the case for improper purpose
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VI.
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b. Arguments are nonfrivolous for either extension, modification, or reversal
of existing law
c. Arguments have evidentiary support
d. How Far for a Client
i. Cross Examination of Truthful Witness
1. Civil Case
a. Lawyer should not try to discredit truthful witness by trying to show the
witness is lying when if fact the lawyer knows the witness is truthful
2. Criminal Case
a. Lawyer should refrain from saying the witness is "lying" BUT
b. Lawyer should state that the witness may be "mistaken"
ii. Dirty Tricks
1. Lawyer cannot raise settlement/Insurance issues at trial (also barred by Rules of
Evidence)
2. Model Rule 3.4 prohibits a lawyer from "vouching" for a witness
3. Lawyer cannot use illegal means to gather evidence
4. Contacting Debtors
a. Fair Debt Collection Act requires that one who is collecting debts refrain
from using deceptive tactics
i. Must disclose identity of creditor AND
ii. Disclose purpose
Lawyer-Client Relationship
a. Model Rules
i. MR 1.5(a) requires attorneys fees to be reasonable
ii. PA MR 1.5 prohibits "clearly excessive" fees (higher standard than MR)
iii. Factors
1. Time, labor, novelty, difficulty, and skill required to perform legal service
2. Whether lawyer will have to preclude other employment for taking the case
3. Compare fee charged to fee for similar legal service in the locality
4. Amount and results
5. Time limitations imposed by the client
6. Nature and length of professional relationship b/w lawyer and client
7. Experience, reputation, and ability of the lawyer
8. Whether fee is fixed or contingent
iv. MR 1.5(b)
1. New or relatively new client
2. MUST disclose fee
a. Give client reasonable determination of the fee
3. Preferably in writing (PA requires a writing)
v. MR 1.5(c): Contingent Fees
1. Writing is required (BOTH MR and PA Rules)
a. If there is no writing, attorney risks having fee paid under quantum meruit
theory: reasonable hourly fee)
2. Lawyer MUST disclose accounting method lawyer will use
a. Lawyer does not have a duty to disclose alternative accounting methods or
explain other options
3. Unconscionable Contract for Contingency Fee
a. Sophistication of client
b. Market price comparison
vi. MR 1.5(d)
1.
vii.
viii.
ix.
x.
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Contingency fee prohibited
a. Domestic relations where payment is contingent upon securing
i. Divorce
ii. Alimony
iii. Property settlement
iv. Child support
v. Child custody
b. Criminal Cases
i. Representing a defendant in a criminal case
2. PA MR 1.5(d)(1) allows property settlements to be paid on contingency fee
MR 1.5(e)
1. Lawyers who are not in the same firm may split fees IF
a. Either
i. Fee is proportionate to the services of each lawyer OR
ii. Written agreement reached with client stating that each lawyer is
jointly responsible AND
b. Lawyers advised the clients and client does not object to every lawyer
c. Total fee is reasonable
MR 4.2 Communication with Person Represented by Counsel
1. In representing a client, lawyer shall not communicate about
a. Subject matter of the representation
b. With a person the lawyer knows to be represented by another lawyer
c. In the matter
i. Matter is defined in MR 1.11 as
1. Any proceeding involving a specific party or parties AND
2. Any other matter covered by the conflicts rules
d. UNLESS
i. Opposing party's lawyer consents OR
ii. Lawyer is authorized by law to contact the opposing party without
his attorney present
2. Comment 4 discusses the issue of corporations
a. A lawyer shall not communicate with another person or entity
i. Who has managerial responsibilities on behalf of the organization OR
ii. Whose acts or omission could bind the corporation
iii. UNLESS
1. Such person is represented by his or her own counsel
2. If so, consent by that attorney is sufficient to satisfy the
rule
3. Rule apples regardless if the suit has been filed
4. Comment [3] provides that the communications apply with any person, whether a
party or not
5. 8.4(a) prohibits lawyer from assisting another to violate the rules. Thus, the lawyer
cannot have anyone else contact opposing party without presence of opposing party's
attorney
MR 4.3: Dealing with Unrepresented Party (NOT Opposing Client)
1. In dealing on behalf of a client
2. With a person who is not represented by counsel
3. Lawyer shall not imply that he is disinterested
4. Lawyer must make the person understand the lawyer's role in the matter
MR 1.15: Safekeeping Property
1.
Lawyer must set up client trust fund account
a. Separate from lawyer's own property
b. Client's property must be identified
2. Lawyer must also maintain appropriate accounting to disburse client funds
3. PA MR 1.15 adds an additional requirement
a. Interest goes to IOLTA account for state use
b. Nature of Lawyer-Client Relationship
i. Intake Interview and Counseling
1. Intake Interview
a. Normally free to build rapport
b. Start with broad questions and move to leading, detailed questions
2. Counseling
a. Traditional: lawyer directs client
b. Participatory: client participates in decision-making and responsibility
ii. Lawyer must tell client with absolute certainty whether lawyer will take the case or not
1. Court will always accept the client's version of the intake interview because the
lawyer should know the law
2. Lawyer should run a conflicts check
iii. Attorney by Estoppel
1. IF Reliance by client to his detriment AND
2. Reasonable person would rely on the advice given
3. THEN court will find the attorney client relationship
c. Scope
i. Settlement Authority
1. Lawyer must have authority to settle cases on behalf of the client
a. Express authority
b. Implied in Law
i. Applicable to government attorneys
c. Apparent Authority (Implied-in-Fact Authority)
i. Words or deeds by the client
ii. Causes 3rd party to reasonably believe
iii. That the attorney has client's authority to settle the case
ii. Appellate Discretion
1. Lawyer has the discretion to determine which issues will be argued on appeal
2. Lawyer does NOT have discretion whether to appeal the case or not
iii. Plea Bargains
1. Lawyer MUST have the express authority to negotiate a plea bargain on behalf of
the client
d. Fees
i. Reasonableness or excessiveness depends on the sophistication of the client
ii. Retainers
1. Refundable
a. Attorney refunds the excess funds from the retainer
2. Non-refundable retainer
a. Attorney keeps excess funds from retainer
b. Unconscionability issue
i. Sophistication of client should determine whether fee should be
refunded
e. Non-Clients
i. Anti-Contact Rule
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1.
VII.
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Blanket Prohibition Rule
a. Cannot talk to anyone in the corporation
2. Control Group Test
a. Prohibited from talking to top management
3. Neisig Test
a. Any employees
b. Whose acts or omission
i. Could bind the corporation OR
ii. Impute liability to the corporation
c. The anti-contact rule applies to such persons
ii. Prosecutors
1. General Rule
a. Prosecutors
b. Can interview people up to the investigatory stage
c. Prior to formal charge
2. Officers who are also lawyers
a. State ethics rules also apply
Conflicts
a. Model Rules
i. MR 1.7(a): Conflict of Interests—General Rule (Concurrent Conflicts)
1. Lawyer shall not represent a client with direct adversity to another client UNLESS
a. Lawyer reasonably believes the representation will not adversely affect the
relationship with the other client AND
b. Each client consents
ii. MR 1.7(b): Positional Conflicts
1. Lawyer shall not represent a client if representation may be materially limited by
lawyer's responsibility to another client UNLESS
a. Lawyer reasonably believes the representation will not be adversely
affected AND
b. Client consents
2. Comment [9] states that lawyers may represent parties having antagonistic position
on a legal question that arises in two different cases in different trial courts but
NOT in at the same time in appellate court.
a. ABA Formal Opinion 93-377 rejects comment [9] and provides that lawyers
cannot so represent antagonistic clients if both are in the same jurisdiction.
The three factors are
i. Importance of effect of representation
ii. Impact on the outcome
iii. Temptation to delay (soft peddling)
3. Corporation Takeover
a. Loyalty to original client
b. Adverse affect
c. Confidentiality
d. Whether language was identical or different
4. PA MR 1.7 and MR 1.7 are the same.
5. MR 1.10 imputes disqualification to the entire firm where an attorney from the firm
would be prohibited from representing a client under MR 1.7
iii. MR 1.8: Conflict of Interests: Prohibited Transactions
1. MR 1.8(a): Lawyer shall not enter into business transaction with the client UNLESS
a. Transaction is fair and reasonable to the client
i. Since lawyer decides whether the transaction is fair and reasonable,
the lawyer is opening the door to a conflict
b. Client has reasonable opportunity to seek independent counsel for the
transaction AND
c. Client consents in writing
2. MR 1.8(b): lawyer shall not use information relating to representation of a client to
the disadvantage of the client unless client consents, subject to MR 1.6 or MR 3.3
3. MR 1.8(c): lawyer cannot prepare
a. Instrument
b. Giving lawyer or lawyer's relative
c. A substantial gift, including testamentary gift
d. From the client UNLESS
i. Client is a relative of the lawyer
e. If lawyer is disqualified under this section, MR 1.10 imputes disqualification
to everyone in the lawyer's firm
f. PA MR 1.8(c) adds "within the 3rd degree of relationship"
4. MR 1.8(d): lawyer can agree to represent client BUT
a. Must wait until representation is over before lawyer can attempt to buy the
media rights to the client's story
5. MR 1.8(e): lawyer cannot provide financial assistance to the client UNLESS
a. Advancements to client will be repaid OR
b. Client is indigent
6. MR 1.8(f) lawyer shall not accept compensation for representing a client from
anyone other than the client UNLESS
a. Client consents
b. There is no interference with lawyer's professional judgment AND
c. Information relating to representation of a client is protected by MR 1.6
7. MR 1.8(g): joint representation
8. MR 1.8(h): prohibits lawyer from limiting liability for malpractice UNLESS
a. Authorized by law AND
b. Client is independently represented by another attorney to make the
agreement to limit liability
9. MR 1.8(i): lawyer cannot represent a client where the opposing lawyer is related
UNLESS
a. Client consents
10. MR 1.8(j): lawyer shall not acquire proprietary interest in the cause of action or
subject matter of litigation BUT lawyer may
a. Contract with a client for a reasonable contingent fee in a civil case
iv. MR 1.9: Conflict of Interest: Past Clients
1. MR 1.9(a) lawyer cannot represent a client in the same or substantially the same
matter as a former client if the current client's interests are materially adverse to
the former client UNLESS
a. Former client consents
2. MR 1.9(b): CHINESE WALL: lawyer shall not knowingly represent a person in the
same or substantially related matter in which a firm with which the lawyer was
formerly associated had previously represented a client
a. Whose interests are materially adverse to the current client AND
b. About whom the lawyer had acquired confidential information UNLESS
i. The former client consents
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c.
Comment [3] Suggests that MR 1.10 imputed disqualification does NOT
apply even though the rule is bright line
3. PA MR 1.9 is substantially the same, but PA's version of the Chinese Wall Rule falls
under MR 1.10
v. PA MR 1.10(b) provides that
1. IF a lawyer is screened AND
2. no portion of the fee is apportioned
3. THEN the firm is NOT disqualified provided written notice is given to the client
b. Fees on Termination
i. If client has just cause for terminating the lawyer, the lawyer gets no compensation
ii. Alternative View: If client has just cause for terminating the lawyer, lawyer still gets
compensated at the contract rate
iii. MODERN VIEW: Lawyer gets
1. The contract amount OR
2. Quantum Meruit
a. Keep track of your hours
3. IF the client loses
a. Courts are split as to whether the lawyer gets anything
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