1. 1 Rule 1.9 Duties To Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

2. 2 Comment 3 to 1.9 substantially related = same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter

3. 3 You were corporate counsel for the A Corp. from 1996-98. Since then a new board of directors has gained control. B approaches you and asks you to represent him in a suit against members of the board concerning actions they undertook after you left. Any conflicts problems?

4. 4 You have defended the A Corp. in employment discrimination suits brought against it from 1978-98. This year B approaches you and asks you to bring an employment discrimination suit against the A Corp. concerning actions by the corporation that occurred after you terminated your relationship with it. Any conflicts problems?

5. 5 You unsuccessfully defend A in criminal charges. Afterward the prosecutor in the case approaches you and asks you to bringing a high profile product liability action on his behalf against the D Corp. Any conflicts problems?

6. 6 Prospective clients

7. 7 Rule 1.18 Duties To Prospective Client (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).

8. 8 If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

9. 9 L represents A is the simple drafting of a will L is approached by B to discuss L representing B in drafting B’s will (no actual representation) assume A and B give same amount of info to L assume that A’s and B’s wives want to sue A and B for child support and have L as their lawyer does B have a greater burden in disqualifying L than A?

10. 10 A – must show only that the matters are substantially similar and interests are materially adverse B – must also show that the information gained could be significantly harmful

11. 11 Comment 3 to 1.9 Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter

12. 12 A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

13. 13 Comment [6] to 1.18 Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter.

14. 14 Conflict tainting

15. 15 Comment 2 to 1.18 A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a).

16. 16 1.18(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or

17. 17 (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.

18. Imputed conflicts Transitory lawyers 18

19. 1.10(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm 19

20. If one lawyer in a firm is prohibited from representing a client (w/o consent) under conflicts rules 1.7 or 1.9 (not personal interest conflicts), all lawyers in the firm are. 20

21. c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7. 21

22. 1.10(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. 22

23. If a tainting lawyer leaves the firm, the remaining lawyers are free of limitations except They still not may not represent (w/o consent) someone with interests materially adverse to a client of the tainting lawyer If the matter is the same or substantially similar to the earlier representation and The remaining lawyers have confidential information material to the matter 23

24. 1.9(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. 24

25. If a lawyer who was tainted leaves the firm that had a tainting lawyer, he is free of limitation except he still may not represent (w/o consent) someone with interests materially adverse to the tainting lawyer’s client If he has confidences material to the matter 25

26. Assume X, a lawyer at Firm 1, defends A in connection with an antitrust claim against A brought by B. Y, also a lawyer at Firm 1, is approached by C, who wants to sue A for employment discrimination. Is there a conflicts problem? 26 Firm 1 X Y A B C antitrust employment discrimination

27. What if “Firm 1" was not a partnership, but was merely a collection of lawyers that shared the same offices? 27

28. Assume X, no longer represents A. Now may Y represent C? 28 Firm 1 X Y A B C antitrust employment discrimination

29. May Y represent D, who is suing A for antitrust violations? 29 Firm 1 X Y A B Dantitrust

30. May Z, who entered Firm 1 after X dropped A as a client, represent D? 30 Firm 1 X Z (brand new lawyer) A B Dantitrust

31. Assume that after dropping A as a client, X moves to Firm 2. May X now represent D in his suit against A? 31 Firm 1 X A B Dantitrust Firm 2 X

32. May W, another lawyer at Firm 2, represent D in his suit against A? 32 Firm 1 X A B Dantitrust Firm 2 X W

33. After X leaves for Firm 2, may Y, who is still a lawyer at Firm 1 and who did a small amount of discovery work for A in B’s suit against A, represent D? 33 Firm 1 X A B Dantitrust Firm 2 X Y (small amt. of discovery work for A)

34. May V, who is still a lawyer at Firm 1 and who knew nothing about B’s suit against A, represent D? 34 Firm 1 X A B Dantitrust Firm 2 X Y (small amt. of discovery work for A) V

35. Assume Y moves to Firm 3. May he now undertake to represent D? 35 Firm 1 X A B Dantitrust Firm 3 Y Y (small amt. of discovery work for A)

36. May U, another lawyer at Firm 3, represent D? 36 Firm 1 X A B Dantitrust Firm 3 Y Y (small amt. of discovery work for A) U

37. Assume it is a secretary or paralegal with confidences changing firms? Is screening allowed? 37

38. Assume instead that V moves to Firm 3. May V represent D? 38 Firm 1 X A B Dantitrust Firm 3 V Y (small amt. of discovery work for A) V

39. Duty of Competence

40. Malpractice But also disciplinary law

41. Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

42. Comment [2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. …A lawyer can provide adequate representation in a wholly novel field through necessary study.

43. Comment [3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

44. Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

45. Malpractice duty of care breach – failure to exercise care that a reasonably competent attorney would under the circumstances causation harm

46. To whom is there a duty of care? Client (including Togstad situations) To a non-client invited by the lawyer or, with the lawyer’s acquiescence, the client to rely on the lawyer's opinion or provision of other legal services, and the non-client so relies To a non-client if – the lawyer knows a primary objective of the representation is to benefit the nonclient – a duty to the non-client would not significantly impair the lawyer's performance of obligations to the client; and – the absence of such a duty would make enforcement of those obligations to the client unlikely

47. Attorney asked to draft opinion letter concerning whether liens on some property owned by the client Attorney knows that the letter is to be given to X, who intends to loan money to client, provided that debt can be secured by property Attorney negligently drafts the letter, stating that the property has no liens on it, when in fact it does X decides for other reasons that it cannot make the loan, but tells another company, Y, that it should make the loan to X because it may be secured by the property Y makes the loan to the client. The client defaults and Y sues the attorney for negligent misrepresentation. What result?

48. Lucas v. Hamm (Cal. 1961)

49. a lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances

50. Problems with causation

51. Lawyer botches case by failing to call witness in a medical malpractice case She is sued for malpractice Even if she was breached her duty of care, how can escape liability

52. Lawyer breaches her duty of care to her client by failing to communicate a settlement offer. How does one determine the damages caused by the breach?

53. Generally other members of firm personally liable Unless it is an LLP

54. Malpractice in criminal defense Public defenders usually immune But even if lawyer was not public defender, plaintiff can successfully sue only if post- conviction relief was granted Sometime actual innocence must be shown

55. Limiting malpractice liability 1.8(h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

56. Duty of Candor in Litigation

57. 3.3(a)(1)-(2) (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel

58. During your client’s sentencing hearing, it becomes clear that neither the court nor the prosecutor are aware of your client’s previous conviction on a similar offense, which your client told you about. Under the Model Rules, must you correct the court’s mistake?

59. May you correct the court’s mistake?

60. What if the court asks you, “He has no prior convictions, right?” May you respond, “Not to my knowledge.”?

61. Note also affirmative duties to speak in ex parte proceeding 3.3(d)

62. You are writing a brief in favor of a motion to dismiss in state court. You discover that there are no cases in that state on the issue, but in fact the supreme courts of five other states have decided unanimously against your position. You write in your brief, “There is no precedent on this issue.”

63. You are defending your client in a robbery case. Your client is not going to take the stand. You know from your client that the robbery occurred at 4:00 A.M. Amazingly, the victim, who has identified your client, testifies that the robbery occurred at 2:00 A.M. You have an alibi for your client up to 3:00 A.M. You present the alibi in your client’s defense. Have you violated Rule 3.3?

64. 3.3(a) A lawyer shall not knowingly: (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

65. Your client is being sued for breach of contract. Your main defense is that the plaintiff and the defendant rescinded their contract in writing. You present as evidence the written recession, which your client told you, and you believe, is genuine. It is in fact an obvious forgery, as shown by the fact that both your client and the plaintiff’s signature are in the same handwriting. That it is a forgery becomes abundantly clear at trial. Have you violated Rule 3.3?

66. Rule 3.1 Meritorious Claims And Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

67. Your client is being sued for negligent driving. You know from your investigation that your client did not signal when he made the left hand turn that caused the accident. You stumble across a witness who is convinced that your client did signal. May you present the witness at trial?

68. Let’s say instead that you are only pretty sure that the witness is wrong. May you present the witness at trial?

69. May you refuse to present the witness at trial?

70. You discover that your client has falsely testified as a witness in a case in which you are not involved. Must you inform that court, even if you will reveal client confidences?

71. May you do so?

72. Your client indicates that he is going to testify in a civil case that he is 21 rather than 20 years old. The issue is likely to come up in the routine questioning at the beginning of your questioning of him or in the cross- examination. It is not relevant to your client’s actual civil liability. He wants to say he is 21, because a bartender at a bar he frequents will be in the audience.

73. What should you do if your client doesn’t tell you in advance of his intent to lie about his age, but you are instead surprised by the lie during your questioning of him? Do you need to take remedial action?

74. Assume that the surprise lie by your client in question above was relevant to his civil liability. What then?

75. What if you found out about the lie after there was a judgment in your client’s favor?

76. Your client, who is a criminal defendant in a murder case, is rather naive and indicates that he is guilty. He then asks you what type of testimony he should come up with. You say that he cannot testify falsely at trial. He insists that he will. What do you do?

77. Assume that you do withdraw. The client, a little wiser now, does not tell his second lawyer the truth. He gives perjured testimony at trial. Can you do anything about this?

78. Special Problems in Criminal Cases Tension with right to counsel and right to testify in one’s defense

79. “Narrative” approach