Professional Responsibility:
An Open-Source Casebook

Brian L. Frye & Elizabeth Schiller

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2

Cover:
Hablot Knight Brown or “Phiz”
Attorney and Client, Fortitute and Impatience (1853)

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It would be idle to assert that there is nothing of selfishness in the pursuit of a profession. But its
ideal is not one of individual success in competitive acquisitive activity. And because ideals
operate powerfully to shape action, professional activity, even at its worst, is restrained and
guided by something better than the desire for money rewards.1
The function of the lawyer is to preserve a sceptical relativism in a society hell-bent for
absolutes. The worse the society, the more law there will be. In Hell there will be nothing but law
and due process will be meticulously observed.2
About half the practice of a decent lawyer consists of telling would-be clients that they are
damned fools and should stop.3
We will not at present inquire whether the doctrine which is held on this subject by English
lawyers be or be not agreeable to reason and morality; whether it be right that a man should,
with a wig on his head, and a band round his neck, do for a guinea what, without those
appendages, he would think it wicked and infamous to do for an empire; whether it be right that,
not merely believing but knowing a statement to be true, he should do all that can be done by
sophistry, by rhetoric, by solemn asseveration, by indignant exclamation, by gesture, by play of
features, by terrifying one honest witness, by perplexing another, to cause a jury to think that
statement false.4
Justice says ye? I tell ye Hogan’s r-right whin he says: ‘Justice is blind.’ Blind she is, an’ deef
an’ dumb an’ has a wooden leg! Niver again will they dhraw me to a coort. I’ll take th’ rude
justice iv a piece iv lead pipe without costs or th’ r-right iv appeal.5
Lawyer — One who protects us against robbers by taking away the temptation.6
LAWYER, n. One skilled in circumvention of the law.7
The sad thing about lawyers is not that so many of them are stupid, but that so many of them
are intelligent. The craft is a great devourer of good men; it sucks in and wastes almost as many
as the monastic life consumed in the Middle Ages. There is something about it that is
extraordinarily attractive to bright youngsters, especially in the United States. It not only offers
the chance of very substantial rewards in money; it also holds out the temptation of a sort of
public dignity, with political preferment thrown in for good measure.8
1

Roscoe Pound, What is a Profession - the Rise of the Legal Profession in Antiquity, 19 Notre Dame L.
Rev. 203 (1944).
2
Grant Gilmore, The Ages of American Law 110 (1977).
3
Philip C. Jessup, 1 Elihu Root 133 (1964).
4
Thomas Babington Macaulay, Essay on Francis Bacon (1874).
5
Finley Peter Dunne, Mr. Dooley’s Opinions 118 (1901).
6
H.L. Mencken, A Mencken Chrestomathy (1949).
7
Ambrose Bierce, The Cynic's Dictionary (1906).
8
H.L. Mencken, Stewards of Nonsense, American Mercury 35 (Jan. 1928).

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Preface
Thank you for your interest in Professional Responsibility: An Open-Source Casebook. We hope
that you find it useful and informative.
This is a free casebook. We believe that law students and others interested in the law should
not have to pay the high prices that commercial publishers charge for casebooks. Many others
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Contract Doctrine, Theory & Practice
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First Amendment: Cases, Controversies, and Contexts
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Sales and Leases: A Problem-based Approach
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Wetlands Law: A Course Source

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5
We noticed that there was no free and open-source casebook available for a professional
responsibility class, so we decided to create one.
We wanted this casebook to be as easy to use and understand as possible. Accordingly, we
included not only cases, but also the text of the rules and restatements, as well as concise
explanations of the relevant law. Each chapter of the book addresses a different issue, in the
following format. First, it clearly and concisely explains the relevant law governing that issue.
Then provides the relevant text of any statutes, Model Rules, sections of the Restatement of the
Law Governing Lawyers, or other sources, with a link to an open-source versions of the full text,
when available. It provides one or more heavily edited cases intended to illustrate the
application of the law at issue, with a link to an open-source version of the full text of the case.
Each case is preceded by a brief summary of its facts, reasoning, and holding, and followed by
questions intended to indicate subjects for further investigation or discussion. And finally, it
includes citations to law review articles and other materials relevant to the law at issue, with
links to open-source versions of those materials, when available.
This casebook covers a wide range of different subjects related to the professional responsibility
of attorneys. While it is possible to cover all of this material in a three credit-hour course, you
may wish to omit some subjects. You may also wish to supplement the materials in this
casebook with additional materials. We encourage you to use this casebook in any way that you
like.
This casebook is licensed “Creative Commons 0 / No Rights Reserved.” That means that we
explicitly disclaim any copyright claim in all of the original elements that we created in writing
this casebook and have intentionally placed the casebook in the public domain. Because this
casebook is in the public domain, you can use the materials in it in any way that you like, with or
without attribution. Of course, the casebook contains many copyrighted elements that belong to
other people and that we used pursuant to fair use. Those elements are still protected by
copyright.
We hope that this free casebook helps show that it is possible to create teaching materials for
legal education in an open-source format. And we hope it makes access to the law governing
legal practice more accessible to law students, attorneys, and anyone interested in the
regulation of the legal profession.
In closing, we would like to thank our research assistants Nicole Pottinger, Justin Cloyd, Mark
Blankenship, Barrett Block, and Renee Wilson. We would also like to thank Cornelius Kearns,
Brandon Magner, and Guy Hamilton-Smith for helpful comments.
●

Brian L. Frye & Elizabeth Schiller

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Table of Contents
Section 1: Introduction
1.1: Introduction to Professional Responsibility
1.2: The History of the Legal Profession
Section 2: The Attorney-Client Relationship
2.1: Creating an Attorney-Client Relationship
2.2: Ending an Attorney-Client Relationship
2.3: The Attorney as Agent
2.4: The Client as Principal
2.5: Ex Parte Communications
2.6: Attorney’s Fees
2.7: Financial Relationships with Clients
2.8: Organizations as Clients
2.9: Agents as Clients
Section 3: The Legal Duties of an Attorney
3.1: Fiduciary Duties
3.2: Legal Malpractice
3.3: Ineffective Assistance of Counsel
Section 4: Conflicts of Interest
4.1: Identifying Conflicts of Interest
4.2: Resolving Conflicts of Interest
4.3: Breach of the Duty of Loyalty
4.4: Current Client Conflicts of Interest
4.5: Former Client Conflicts on Interest
4.6: Associational Conflicts of Interest
4.7: Specific Conflicts of Interest
4.8: Personal Conflicts of Interest
Section 5: Confidentiality
5.1: The Duty of Confidentiality
5.2: Exceptions to the Duty of Confidentiality
5.3: The Attorney-Client Privilege
5.4: Applying the Attorney-Client Privilege
5.5: Corporate Privilege
5.6: The Work Product Doctrine
5.7: Exceptions to Privilege & Work Product
Section 6: Advocacy & Conduct
6.1: Frivolous Pleading
6.2: Improper Advocacy

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6.3: Attorney Misconduct
6.4: Client Perjury
6.5: Alternative Dispute Resolution
Section 7: The Regulation of the Legal Profession
7.1: Bar Admission
7.2: Advertising
7.3: Solicitation
7.4: Prosecutorial Misconduct
7.5: Judicial Recusal & Misconduct
Section 8: Justifying the Rules of Professional Responsibility
8.1: Theories of Legal Ethics

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Section 1: Introduction
1.1: Introduction to Professional Responsibility
Our band could be your life. Real names’d be proof.9
Welcome to professional responsibility. Contrary to conventional wisdom among law students,
this is one of the most important classes you will take in law school. It is not only the only class
explicitly required by the American Bar Association (“ABA”), but also the subject of the
Multistate Professional Responsibility Examination (“MPRE”), a test that the overwhelming
majority of law school graduates must pass in order to become a member of their state bar
association.10
But that is the least of it. This class on professional responsibility will enable you to practice law
consistent with the law governing lawyers and other professional obligations. And it will help you
ensure that you are never the subject of a disciplinary action or sanction from the bar or the
courts. In other words, this class could be your life, or at least your livelihood. Take it seriously,
because the rules, principles, and obligations you learn about in this class will govern everything
you do as an attorney.
What is “Professional Responsibility”?
Professional responsibility is the only class that the ABA explicitly requires law schools to
provide in order to qualify for accreditation. Under the ABA’s 2018-2019 Standards and Rules of
Procedure for Approval of Law Schools, “A law school shall maintain a rigorous program of legal
education that prepares its students, upon graduation, for admission to the bar and for effective,
ethical, and responsible participation as members of the legal profession.” Standard 301(a).
Accordingly, “A law school shall establish learning outcomes that shall, at a minimum, include
competency in the exercise of proper professional and ethical responsibilities to clients and the
legal system, and other professional skills needed for competent and ethical participation as a
member of the legal profession.” Standard 302(c)&(d). And in order to satisfy that requirement,
“A law school shall offer a curriculum that requires each student to satisfactorily complete at
least one course of at least two credit hours in professional responsibility that includes
substantial instruction in rules of professional conduct, and the values and responsibilities of the
legal profession and its members.” Standard 303(a)(1).
However, law schools and law professors retain considerable discretion in how they teach
professional responsibility. While the ABA accreditation standards provide that law schools must
require a professional responsibility class, they do not specify what subjects the class must
cover or how it should be taught. Unsurprisingly, law schools typically delegate those decisions
9

Minutemen, History Lesson – Part II, Double Nickels on the Dime (1984).
Wisconsin and Puerto Rico currently do not require the MPRE for bar membership. Connecticut and
New Jersey currently accept successful completion of a law school course on professional responsibility
in lieu of the MPRE.
10

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to law professors, who have adopted a wide range of different approaches. Some classes focus
on the ABA’s Model Rules of Professional Conduct and how courts use them to regulate
attorneys. Other classes focus on the concept of legal ethics and the justification of the legal
profession. And still other classes focus on how attorneys actually comply with rules of
professional conduct in practice.
This casebook is designed for a class focused on the Model Rules of Professional Conduct and
their practical application. Each chapter of the book addresses a different issue, in the following
format. First, it clearly and concisely explains the relevant law governing that issue. Then
provides the relevant text of any statutes, Model Rules, sections of the Restatement of the Law
Governing Lawyers, or other sources, with a link to an open-source versions of the full text,
when available. It provides one or more heavily edited cases intended to illustrate the
application of the law at issue, with a link to an open-source version of the full text of the case.
Each case is preceded by a brief summary of its facts, reasoning, and holding, and followed by
questions intended to indicate subjects for further investigation or discussion. And finally, it
includes citations to law review articles and other materials relevant to the law at issue, with
links to open-source versions of those materials, when available.
Legal Ethics v. The Regulation of Legal Practice
Different lawyers think about professional responsibility in different ways, different law
professors teach professional responsibility in different ways, and different legal scholars
conceptualize professional responsibility in different ways. Some attorneys, professors, and
scholars see professional responsibility as the practice of legal ethics. In other words, they
believe that the rules of professional responsibility are expressions of ethical principles, and the
legitimacy of those rules depends on the legitimacy of the ethical principles they express. But
other attorneys, professors, and scholars see professional responsibility as merely the
regulation of legal practice. In other words, they believe that the rules of professional
responsibility are just the positive law governing attorneys.
Legal Ethics
Legal ethics can be either descriptive or normative. While both descriptive and normative legal
ethics investigate the ethical values motivating the law of professional responsibility, they do so
in very different ways, with fundamentally different goals. Descriptive legal ethics asks what the
ethical values of law of professional responsibility are; normative legal ethics asks what they
should be.
Descriptive legal ethics assumes that the statutes and rules governing the practice of law, as
well as the cases interpreting and applying those statutes and rules, effectively express the
ethical values of the legal profession. Accordingly, by studying the law of professional
responsibility in action, one can identify the ethical values inherent in the law that motivate its
articulation, interpretation, and application.

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Normative legal ethics asks whether the law of professional responsibility expresses a true
moral theory. In other words, it starts with a moral theory, and asks whether the law of
professional responsibility produces results consistent with that theory. Of course, different
normative theories of legal ethics may adopt different moral theories. But they all assume that
the purpose of the law of professional responsibility is to produce moral outcomes. Accordingly,
the law of professional responsibility is justified if it expresses a true moral theory, and
unjustified if it does not.
The Regulation of Legal Practice
This casebook focuses on the regulation of legal practice, not legal ethics. The primary purpose
of this casebook is to help you better understand how the bar and the courts actually apply the
statutes and rules governing the practice of law. While this casebook is not a study guide for the
MPRE, it should help you better understand the questions on the MPRE and how to answer
them correctly.
The various bar associations, often in conjunction with the courts, adopt disciplinary rules
regulating legal practice. Some of those rules are mandatory, and define what attorneys must
and must not do. Other rules are discretionary, and describe what attorneys may and may not
do. And still other rules are aspirational, and explain what attorneys should and should not do.
When the courts consider a complaint against an attorney, they typically apply the disciplinary
rules adopted by the bar association, in light of generally applicable legal principles. In other
words, they ask not only whether the attorney violated the letter or spirit of the disciplinary rules,
but also whether the rules at issue are valid and enforceable. However, a court may find that an
attorney who has not violated the disciplinary rules has still violated some other legal duty.
Accordingly, this casebook focuses on describing the law of professional responsibility,
explaining how it has been applied, and asking whether it was applied correctly. However, the
law of professional responsibility differs from jurisdiction to jurisdiction. Sometimes those
differences are minor, but other times they are fundamental. This casebook focuses of
describing, explaining, and reflecting on the application of the most paradigmatic rules, as
exemplified by the Model Rules of Professional Conduct and the Restatement of the Law
Governing Lawyers.
Of course, studying an area of law inevitably provokes reflections on its purpose and
justification. Even a casebook devoted to the study of the regulation of legal practice cannot
avoid implicating questions of legal ethics. What values does the law of professional
responsibility express? Are those values justified? What makes a rule of professional conduct
justified or unjustified? What is the purpose of the law of professional responsibility? All of these
ethical issues are implicit in the subject matter of this class. But they are not the subject matter
of this casebook. Or at the very least, while this casebook may directly or indirectly raise those
questions, it does not purport to answer them or take a position on how they should be
answered.

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Model Rules of Professional Conduct: Preamble & Scope
Preamble: A Lawyer’s Responsibilities
1. A lawyer, as a member of the legal profession, is a representative of clients, an officer of
the legal system and a public citizen having special responsibility for the quality of
justice.
2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer
provides a client with an informed understanding of the client’s legal rights and
obligations and explains their practical implications. As advocate, a lawyer zealously
asserts the client’s position under the rules of the adversary system. As negotiator, a
lawyer seeks a result advantageous to the client but consistent with requirements of
honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal
affairs and reporting about them to the client or to others.
3. In addition to these representational functions, a lawyer may serve as a third-party
neutral, a nonrepresentational role helping the parties to resolve a dispute or other
matter. Some of these Rules apply directly to lawyers who are or have served as thirdparty neutrals. In addition, there are Rules that apply to lawyers who are not active in the
practice of law or to practicing lawyers even when they are acting in a nonprofessional
capacity. For example, a lawyer who commits fraud in the conduct of a business is
subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation.
4. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer
should maintain communication with a client concerning the representation. A lawyer
should keep in confidence information relating to representation of a client except so far
as disclosure is required or permitted by the Rules of Professional Conduct or other law.
5. A lawyer’s conduct should conform to the requirements of the law, both in professional
service to clients and in the lawyer's business and personal affairs. A lawyer should use
the law’s procedures only for legitimate purposes and not to harass or intimidate others.
A lawyer should demonstrate respect for the legal system and for those who serve it,
including judges, other lawyers and public officials. While it is a lawyer’s duty, when
necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold
legal process.
6. As a public citizen, a lawyer should seek improvement of the law, access to the legal
system, the administration of justice and the quality of service rendered by the legal
profession. As a member of a learned profession, a lawyer should cultivate knowledge of
the law beyond its use for clients, employ that knowledge in reform of the law and work
to strengthen legal education. In addition, a lawyer should further the public’s
understanding of and confidence in the rule of law and the justice system because legal
institutions in a constitutional democracy depend on popular participation and support to
maintain their authority. A lawyer should be mindful of deficiencies in the administration
of justice and of the fact that the poor, and sometimes persons who are not poor, cannot
afford adequate legal assistance. Therefore, all lawyers should devote professional time

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and resources and use civic influence to ensure equal access to our system of justice for
all those who because of economic or social barriers cannot afford or secure adequate
legal counsel. A lawyer should aid the legal profession in pursuing these objectives and
should help the bar regulate itself in the public interest.
7. Many of a lawyer’s professional responsibilities are prescribed in the Rules of
Professional Conduct, as well as substantive and procedural law. However, a lawyer is
also guided by personal conscience and the approbation of professional peers. A lawyer
should strive to attain the highest level of skill, to improve the law and the legal
profession and to exemplify the legal profession’s ideals of public service.
8. A lawyer’s responsibilities as a representative of clients, an officer of the legal system
and a public citizen are usually harmonious. Thus, when an opposing party is well
represented, a lawyer can be a zealous advocate on behalf of a client and at the same
time assume that justice is being done. So also, a lawyer can be sure that preserving
client confidences ordinarily serves the public interest because people are more likely to
seek legal advice, and thereby heed their legal obligations, when they know their
communications will be private.
9. In the nature of law practice, however, conflicting responsibilities are encountered.
Virtually all difficult ethical problems arise from conflict between a lawyer’s
responsibilities to clients, to the legal system and to the lawyer’s own interest in
remaining an ethical person while earning a satisfactory living. The Rules of Professional
Conduct often prescribe terms for resolving such conflicts. Within the framework of these
Rules, however, many difficult issues of professional discretion can arise. Such issues
must be resolved through the exercise of sensitive professional and moral judgment
guided by the basic principles underlying the Rules. These principles include the
lawyer’s obligation zealously to protect and pursue a client's legitimate interests, within
the bounds of the law, while maintaining a professional, courteous and civil attitude
toward all persons involved in the legal system.
10. The legal profession is largely self-governing. Although other professions also have
been granted powers of self-government, the legal profession is unique in this respect
because of the close relationship between the profession and the processes of
government and law enforcement. This connection is manifested in the fact that ultimate
authority over the legal profession is vested largely in the courts.
11. To the extent that lawyers meet the obligations of their professional calling, the occasion
for government regulation is obviated. Self-regulation also helps maintain the legal
profession's independence from government domination. An independent legal
profession is an important force in preserving government under law, for abuse of legal
authority is more readily challenged by a profession whose members are not dependent
on government for the right to practice.
12. The legal profession's relative autonomy carries with it special responsibilities of selfgovernment. The profession has a responsibility to assure that its regulations are
conceived in the public interest and not in furtherance of parochial or self-interested
concerns of the bar. Every lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their observance by other

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lawyers. Neglect of these responsibilities compromises the independence of the
profession and the public interest which it serves.
13. Lawyers play a vital role in the preservation of society. The fulfillment of this role requires
an understanding by lawyers of their relationship to our legal system. The Rules of
Professional Conduct, when properly applied, serve to define that relationship.
Scope
14. The Rules of Professional Conduct are rules of reason. They should be interpreted with
reference to the purposes of legal representation and of the law itself. Some of the Rules
are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for
purposes of professional discipline. Others, generally cast in the term “may,” are
permissive and define areas under the Rules in which the lawyer has discretion to
exercise professional judgment. No disciplinary action should be taken when the lawyer
chooses not to act or acts within the bounds of such discretion. Other Rules define the
nature of relationships between the lawyer and others. The Rules are thus partly
obligatory and disciplinary and partly constitutive and descriptive in that they define a
lawyer's professional role. Many of the Comments use the term “should.” Comments do
not add obligations to the Rules but provide guidance for practicing in compliance with
the Rules.
15. The Rules presuppose a larger legal context shaping the lawyer’s role. That context
includes court rules and statutes relating to matters of licensure, laws defining specific
obligations of lawyers and substantive and procedural law in general. The Comments
are sometimes used to alert lawyers to their responsibilities under such other law.
16. Compliance with the Rules, as with all law in an open society, depends primarily upon
understanding and voluntary compliance, secondarily upon reinforcement by peer and
public opinion and finally, when necessary, upon enforcement through disciplinary
proceedings. The Rules do not, however, exhaust the moral and ethical considerations
that should inform a lawyer, for no worthwhile human activity can be completely defined
by legal rules. The Rules simply provide a framework for the ethical practice of law.
17. Furthermore, for purposes of determining the lawyer’s authority and responsibility,
principles of substantive law external to these Rules determine whether a client-lawyer
relationship exists. Most of the duties flowing from the client-lawyer relationship attach
only after the client has requested the lawyer to render legal services and the lawyer has
agreed to do so. But there are some duties, such as that of confidentiality, that attach
when the lawyer agrees to consider whether a client-lawyer relationship shall be
established. Whether a client-lawyer relationship exists for any specific purpose can
depend on the circumstances and may be a question of fact.
18. Under various legal provisions, including constitutional, statutory and common law, the
responsibilities of government lawyers may include authority concerning legal matters
that ordinarily reposes in the client in private client-lawyer relationships. For example, a
lawyer for a government agency may have authority on behalf of the government to
decide upon settlement or whether to appeal from an adverse judgment. Such authority
in various respects is generally vested in the attorney general and the state's attorney in

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14
state government, and their federal counterparts, and the same may be true of other
government law officers. Also, lawyers under the supervision of these officers may be
authorized to represent several government agencies in intragovernmental legal
controversies in circumstances where a private lawyer could not represent multiple
private clients. These Rules do not abrogate any such authority.
19. Failure to comply with an obligation or prohibition imposed by a Rule is a basis for
invoking the disciplinary process. The Rules presuppose that disciplinary assessment of
a lawyer’s conduct will be made on the basis of the facts and circumstances as they
existed at the time of the conduct in question and in recognition of the fact that a lawyer
often has to act upon uncertain or incomplete evidence of the situation. Moreover, the
Rules presuppose that whether or not discipline should be imposed for a violation, and
the severity of a sanction, depend on all the circumstances, such as the willfulness and
seriousness of the violation, extenuating factors and whether there have been previous
violations.
20. Violation of a Rule should not itself give rise to a cause of action against a lawyer nor
should it create any presumption in such a case that a legal duty has been breached. In
addition, violation of a Rule does not necessarily warrant any other nondisciplinary
remedy, such as disqualification of a lawyer in pending litigation. The Rules are
designed to provide guidance to lawyers and to provide a structure for regulating
conduct through disciplinary agencies. They are not designed to be a basis for civil
liability. Furthermore, the purpose of the Rules can be subverted when they are invoked
by opposing parties as procedural weapons. The fact that a Rule is a just basis for a
lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in a collateral proceeding or
transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules
do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be
evidence of breach of the applicable standard of conduct.
21. The Comment accompanying each Rule explains and illustrates the meaning and
purpose of the Rule. The Preamble and this note on Scope provide general orientation.
The Comments are intended as guides to interpretation, but the text of each Rule is
authoritative.
Questions:
1. What are these two sections of the Model Rules intended to accomplish?
2. Does the Preamble seem to describe disciplinary rules, ethical rules, or both? What
about the section on the scope of the Model Rules?
3. Does the Preamble suggest that the Model Rules provide ethical guidance for attorneys?
What about the section on scope?
The Duty of Zealous Representation

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The client never wants to be told he can’t do what he wants to do; he wants to be told how to do
it, and it is the lawyer’s business to tell him how.11
If I had a million dollars, would you work for me? Well, I don't know my friend, I guess we'll have
to wait and see. Would you do anything that I asked you to do? Yes, I would, if the money came
through.12
Perhaps the most fundamental duty of an attorney is the duty of “zealous representation.”
Attorneys must represent the interests of their clients to the best of their ability and to the extent
permitted by the law. And attorneys must always advocate for their client’s interests, to the
exclusion of anyone else’s interests, including their own. Specifically, attorneys must zealously
represent their client’s interests, even at their own expense.
But the duty of zealous representation can conflict with an attorney’s other duties, especially an
attorney’s duties to the court. As members of the bar, attorneys are also officers of the court.
Among other things, they owe the court a duty of candor. But sometimes an attorney’s duty of
zealous representation can conflict with the duty of candor. For example, the duty of zealous
representation may require attorneys to avoid or minimize evidence that is detrimental to their
clients. But the duty of candor may require attorneys to disclose that same evidence to the
court.
Canon 7 of the ABA Model Code of Professional Responsibility (1980) stated that “a lawyer
should represent a client zealously within the bounds of the law.” Ethical Consideration 7-1
provided, “The duty of a lawyer, both to his client and to the legal system, is to represent his
client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable
professional regulations.” Among other things, Disciplinary Rule 7-101(A) provided, “A lawyer
shall not intentionally fail to seek the lawful objectives of his client through reasonably available
means permitted by law and the Disciplinary Rules.”
When the ABA adopted the Model Rules of Professional Conduct in 1983, it did not use the
term “zealous representation.” Instead, Model Rule 1.3 provided, “A lawyer shall act with
reasonable diligence and promptness in representing a client.” However, Comment [1]
observed:
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or
personal inconvenience to the lawyer, and take whatever lawful and ethical measures
are required to vindicate a client’s cause or endeavor. A lawyer must also act with
commitment and dedication to the interests of the client and with zeal in advocacy upon
the client's behalf. A lawyer is not bound, however, to press for every advantage that
might be realized for a client. For example, a lawyer may have authority to exercise
professional discretion in determining the means by which a matter should be pursued.
11

Robert T. Swaine, The Cravath Firm and Its Predecessors, 1819-1947, at 667 (1946) (quoting Elihu
Root).
12
Charles Manson, If I Had a Million Dollars, The Family Jams (1970/1997).

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The lawyer’s duty to act with reasonable diligence does not require the use of offensive
tactics or preclude the treating of all persons involved in the legal process with courtesy
and respect.
Today, courts and scholars continue to refer to an attorney’s “duty of zealous representation.”
What is the scope of that duty? What should it be? How should attorneys and courts balance
the duty of zealous representation against an attorney’s duties to the court and to society as a
whole?
Questions:
1. After the terrorist attacks of September 11, 2001, President Bush asked the Office of
Legal Counsel for its opinion on the legality of certain interrogation techniques. OLC
produced several memoranda arguing that the techniques were legal under domestic
and international law, which ultimately became known as the “torture memos.” The
torture memos were almost universally condemned by policymakers and legal scholars
as both immoral and incorrect statements of the governing law. Should OLC have
produced the memos? Was it a violation of the rules of professional conduct for OLC to
make arguments based on inaccurate interpretations of the law. Was it a violation of
legal ethics for OLC to make arguments in favor of the interrogation techniques? Would
it have been a violation of legal ethics if those techniques were in fact legal? Would it
have been a violation of the rules of professional conduct for OLC to produce memos
presenting arguments both for and against the legality of the interrogation techniques?
Torres v. Donnelly, 554 F. 3d 322 (2d Cir. 2009)
Summary: Torres was charged with armed robbery. Anna Rodriguez, one of the victims,
identified Torres when the police showed her a photo array and again when Torres’s
attorney Keefe showed her a photo array. In her trial testimony, Rodriguez stated that
she did not identify Torres the “second time” the police showed her a photo array. Keefe
realized that she was referring to the photo array he showed her, and informed the court
that she had identified Torres. Torres was convicted, and filed a habeas petition, alleging
ineffective assistance of counsel for failure to provide zealous representation. The court
denied the petition, holding that Keefe’s duty to correct false testimony did not conflict
with his duty to provide zealous representation.
HALL, Circuit Judge:
Petitioner-Appellant Jesus Torres appeals from a judgment of the United States District Court
for the Western District of New York denying his petition for a writ of habeas corpus. Following a
jury trial, Torres was convicted of two counts of robbery in the first degree. On direct appeal,
Torres raised an ineffective assistance of counsel claim. The Appellate Division dismissed his
claim and unanimously affirmed his conviction. Here, Torres argues that he was denied effective
assistance of counsel.

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The basis of Torres’s habeas claim stems from his defense counsel’s line of questioning during
cross-examination of an identification witness, Anna Rodriguez, which inadvertently elicited
testimony counsel personally knew to be inaccurate. Subsequently, to avoid becoming a
witness himself and to comply with his ethical obligations to the court to correct false testimony,
counsel agreed to stipulate that, contrary to Anna’s testimony during cross-examination, Anna
had identified Torres when counsel had shown her a photographic array prior to trial. Torres
asserts that defense counsel Thomas Keefe’s actions gave rise to an actual conflict of interest
that so adversely affected his performance that it was unnecessary to demonstrate resulting
prejudice. Torres also asserts that there is a reasonable possibility that, but for the errors of
defense counsel, the outcome of his trial would have been different.
BACKGROUND
Torres was tried for the November 6, 1997 robberies of two grocery stores in Buffalo, New York.
Torres does not contest his conviction for the first robbery of a store on Vermont Street. His
habeas claim extends only to his conviction on the second robbery, which occurred on
Hampshire Avenue. The robbery on Hampshire Avenue was witnessed by Olga Rodriguez, who
was behind the counter, Olga’s sister, Anna, and her niece, Lisalotte Rodriguez. Lisalotte was
not called to testify as a trial witness.
At trial, Olga identified Torres as the robber and testified that she saw him clearly during the
robbery. Olga also testified that her sister Anna had been unable to identify the defendant when
shown a photo array by detectives. Defense counsel asked Olga, “In your presence, while you
were in the store, did a detective with the Buffalo Police Department show a photo to your sister
at any time?” Olga responded, “She did not identify. She was not paying too much attention that
night of the robbery.”
On cross-examination of Anna, defense counsel sought to build on Olga’s testimony and elicit
from Anna that she had been unable to identify the defendant in at least one photo array shown
to her by police. In response to questioning from defense counsel and the trial court, Anna
testified that she had identified the robber in the first photo array she was shown, but that she
“couldn't identify the robber the second time around.” Defense counsel then sought to determine
the dates that the police had shown Anna the two photo arrays. Although Anna initially stated
that the second photo array had been shown to her in January 1998, upon further questioning
she indicated that it had occurred in June 1998, a fact which was clarified and confirmed by the
trial court. According to Anna, she did not identify the robber when presented with this second
array because she was “so nervous.” When the date of the second photo array was confirmed
by the court's questioning, however, Attorney Keefe realized that the photo array to which Anna
was referring was the one that he had shown her in June or July 1998 as part of his preparation
for trial and not one shown to her by police. He interjected and clarified to the court that he in
fact had been in the store in June or July 1998 and presented a photo array to Anna. On
redirect examination, Anna repeated that she did not identify Torres when Attorney Keefe

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showed her an array because she was nervous. Contrary to Anna’s testimony, however,
Attorney Keefe knew that Anna had identified Torres when he had shown her the photo array.
Later, in a colloquy outside the presence of the jury, the prosecutor argued that it was important
to clarify to the jurors what Anna had told Attorney Keefe about the photo array. He asserted
that by showing her the photo array, Keefe had essentially made himself a witness in the case.
Upon questioning by the trial court, and because of Attorney Keefe's ethical obligation not to
“knowingly use false evidence,” Keefe ultimately informed the court that Anna had identified
Torres when Keefe showed her the photo array in June or July 1998. Keefe explained that he
had pursued his line of questioning under the mistaken belief that the police had shown Anna
two sets of photo arrays on separate occasions.
To avoid the complications of defense counsel being called to the stand and possibly obtaining
different counsel for Torres, the trial court suggested, and Attorney Keefe agreed to, the
following stipulation, which the court then read to the jury:
Both parties are concerned that there may be confusion over Anna Rodriguez’s
testimony with regard to photo arrays. To clarify this issue over what photo array was
shown to her, we, the attorneys, stipulate that on or about June or July of 1998, attorney
Thomas Keefe showed her a photocopy of one of the arrays, and asked her if she could
identify the robber. The witness did identify the robber as number 3.
After deliberations, the jury convicted Torres on both counts of robbery.
On direct appeal from the conviction, the Appellate Division affirmed Torres's conviction. As to
counsel’s cross-examination of Anna and resulting stipulation, it found that:
Defense counsel’s stipulation advising the jury that a witness identified defendant in a
photo array shown to her by defense counsel was not an egregious error that denied
defendant effective assistance of counsel. Defense counsel reasonably believed that the
witness had been shown two photo arrays by police; during cross examination the
witness testified that she identified defendant in the first photo array but not in the
second photo array. During the course of the witness's testimony, defense counsel
realized the “second” photo array to which the witness referred was the photo array that
he had shown the witness, and therefore the testimony of the witness that she did not
identify defendant in that photo array was not true. Defense counsel could not
“knowingly use false evidence” and thus was required to report the incorrect testimony to
the court. Defense counsel’s alternative to the stipulation was to testify as a witness,
which would have required new counsel for defendant.
DISCUSSION
To establish that counsel’s performance was constitutionally defective, a defendant must show
that “the lawyer's performance ‘fell below an objective standard of reasonableness’ and that

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‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.’” Even if counsel’s performance is found professionally
unreasonable, “any deficiencies in counsel's performance must be prejudicial to the defense in
order to constitute ineffective assistance under the Constitution.” Therefore, the question
becomes “whether there is a reasonable probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt.” In certain circumstances, however, prejudice
may be presumed, and an individual inquiry regarding this factor is unnecessary. Similarly, the
Supreme Court has recognized that when a criminal defendant claims that defense counsel was
“burdened by an actual conflict of interest,” this warrants a “limited presumption of prejudice.” In
these instances, the presumption of prejudice attaches “only if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest
adversely affected his lawyer’s performance.’”
Torres argues that the limited presumption is applicable to his case such that he is not required
to demonstrate he was prejudiced by his counsel’s performance. We disagree. Although Keefe
had parallel duties to zealously represent his client and not to use false evidence, this did not
create an actual conflict of interest. Though the presumption has been “unblinkingly” applied to
“all kinds of alleged attorney ethical conflicts,” it does not support this expansive application.
The presumption was created to account for the “high probability of prejudice arising from
multiple concurrent representation, and the difficulty of proving that prejudice.” However, “not all
attorney conflicts present comparable difficulties. Here, defense counsel’s ethical obligation to
correct the testimony he knew to be inaccurate does not present the difficulties and high
probability of prejudice engendered by joint representation. At most, in this case defense
counsel’s earnest representation of his client was constrained by ethical guidelines applicable to
every attorney appearing as trial counsel, to wit, that “in the representation of a client, a lawyer
shall not knowingly use perjured or false evidence.”
Accordingly, we hold that the tension between Keefe’s parallel duties of (1) zealous
representation and (2) candor to the court, which gives rise to his obligation to correct the
record, did not create a conflict of interest of the sort identified in Sullivan. This holding “is
consistent with the governance of trial conduct in what we have long called ‘a search for truth.’”
Indeed, “an attorney’s ethical duty to advance the interests of his client is limited by an equally
solemn duty to comply with the law and standards of professional conduct; it specifically
ensures that the client may not use false evidence.”
We further find no actual conflict of interest inherent in counsel’s decision to enter into the
stipulation to correct the record. It is clear that several methods, such as calling as a witness the
interpreter who was present when Attorney Keefe showed Anna the photo array, were available
to accomplish this necessary task. Each of them, in order to correct the misstatement, would
have yielded the same result.
Questions:

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1. Could Keefe have relied on Rodriguez’s testimony without violating his duty of candor to
the court? What if the prosecutor did not notice the mistake? Would Keefe have a duty to
disclose? Would it be a violation of the Model Rules if he did not disclose?
2. What are Keefe’s ethical obligations under the circumstances? How should he balance
his duty to Torres against his duty to the court?
Further Reading:
●
●
●
●
●
●
●
●
●
●
●
●
●

David Luban & W. Bradley Wendel, Philosophical Legal Ethics: An Affectionate History,
30 Geo. J.L. Ethics (2017).
Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. Rev. 1 (1988).
Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Human Rights 1
(1975).
William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional
Ethics, 1978 Wis. L. Rev. 29 (1978).
Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63
(1980).
Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 Stan. L. Rev. 589 (1985).
Thomas L. Shaffer, On Being a Christian and a Lawyer: Law for the Innocent (1981).
Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client
Relation, 85 Yale L.J. 1060 (1976).
Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The
Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966).
Judith Andre, Role Morality as a Complex Instance of Ordinary Morality, 28 Am. Phil. Q.
73 (1991).
Monroe H. Freedman, A Critique of Philosophizing About Lawyers’ Ethics, 25 Geo. J.
Legal Ethics 91 (2012).
Alice Woolley, The Lawyer as Advisor and the Practice of the Rule of Law, 47 UBC L.
Rev. 743 (2014).
Rebecca Roiphe, The Decline of Professionalism, 29 Geo. J. Legal Ethics 649 (2016).

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1.2: A Brief History of the American Legal Profession
The Profession before the 1908 Ethics Rules
The American legal profession was significantly unregulated for most of the eighteenth and
nineteenth centuries. In fact, applying contemporary definitions in which a profession is selfregulating, it is not clear lawyers’ work during this time was part of a unified legal profession at
all. That’s not to say lawyers did not play an important role in American society. Lawyers fulfilled
not just one, but two equally important roles: as advocates for their clients and agents of the
court. Before the organized American legal profession with formal rules, this dual-role model of
lawyering shaped how lawyers thought about their professional responsibilities and standards
for their conduct.
Many lawyers’ everyday work primarily concerned advocating for the private interests of clients.
Eighteenth and nineteenth century clients sought out lawyers for many of the same reasons
people obtain lawyers today, including settling disputes over personal property, navigating
commercial matters, and resolving all sorts of other conflicts between people. Although some of
the events leading people to seek lawyer’s assistance may seem familiar, the social, economic,
and political conditions of the nineteenth century meant even this familiar role was anything but
routine.
The time period between the American Revolution and the twentieth century was full of dramatic
changes in the law, the work of lawyering, and the legal profession. The law itself became more
voluminous and complex, beginning with post-Revolution efforts to create orderly state and
federal governments. Industrialization sped up and increased the scope of economic of
Lawrence Friedman’s A History of American Law summarizes:
What happened to American law in the nineteenth century, basically, was that it changed
dramatically, fundamentally, to conform to the needs, wants, and pressures coming from
the vast increase in the numbers of consumers of law. It is dangerous to sum up long
periods and great movements in a sentence. But if colonial law had been, in the first
place, colonial, and in the second place, paternal, emphasizing community, order, and
the struggle against sin, then, gradually, a new set of attitudes developed, in which the
primary function of law was not suppression and uniformity, but economic growth and
services to its users.
Instrumentalist theories about law combined with a rapidly changing industrial society
contributed to the idea that practicing judges, lawyers, and scholars could actively shape the
world they worked in. Often this was in response to their work for the private interests of clients,
although records of conversations among lawyers show continued concern for and attention to
their public responsibilities as well.
Question:

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●

Is the dual-role model of lawyers’ responsibilities useful for navigating professional
ethical dilemmas? Based on what you know about lawyers’ work, try to think of at least
one scenario in which it would be helpful and one in which it might not be.

American Bar Association’s Ethics Rules
The American Bar Association, founded in 1878, advanced its first attempt at a uniform
standard of conduct for lawyers in 1908. The Canons of Professional Ethics were intended to be
a general guide for lawyers, based on existing professional norms expressed in legal ethics
scholarship and some state bar association literature. The ABA acknowledged the idealistic
nature of the Canons, and did not intend for them to be enforceable. For an overview of the
Canons, see the Preamble and the list of Canons, below, from the Final Committee Report on
1908 ABA Ethics Rules.
Canons of Ethics
Preamble
In America, where the stability of Courts and of all departments of government rests upon the
approval of the people, it is peculiarly essential that the system for establishing and dispensing
justice be developed to a high point of efficiency and so maintained that the public shall have
absolute confidence in the integrity and impartiality of its administration. The future of the
republic, to a great extent, depends upon our maintenance of justice pure and unsullied. It
cannot be so maintained unless the conduct and the motives of the members of our profession
are such as to merit the approval of all just men.
The Canons of Ethics
No code or set of rules can be framed, which will particularize all the duties of the lawyer in the
varying phases of litigation or in all the relations of professional life. The following canons of
ethics are adopted by the American Bar Association as a general guide, yet the enumeration of
particular duties should not be construed as a denial of the existence of others equally
imperative, though not specifically mentioned:
1. The Duty of the Lawyer to the Courts.
2. The Selection of Judges
3. Attempts to Exert Personal Influence on the Courts
4. When Counsel for an Indigent Prisoner.
5. The Defense or Prosecution of Those Accused of Crime.
6. Adverse Influences and Conflicting Interests.
7. Professional Colleagues and Conflicts of Opinion.
8. Advising Upon the Merits of a Client’s Cause.
9. Negotiations with Opposite Party.
10. Acquiring Interest in Litigation.
11. Dealing with Trust Property.
12. Fixing the Amount of the Fee.

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13. Contingent Fees.
14. Suing a Client for a Fee.
15. How Far a Lawyer May Go in Supporting a Client’s Cause.
16. Restraining Clients from Improprieties.
17. Ill Feeling and Personalities Between Advocates.
18. Treatment of Witnesses and Litigants.
19. Appearance of Lawyer as Witness for His Client.
20. Newspaper Discussion of Pending Litigation.
21. Punctuality and Expedition.
22. Candor and Fairness.
23. Attitude Toward Jury.
24. Right of Lawyers to Control the Incidents of the Trial.
25. Taking Technical Advantage of Opposite Counsel; Agreements with Him.
26. Professional Advocacy Other Than Before Courts.
27. Advertising, Direct or Indirect.
28. Stirring Up Litigation, Directly or Through Agents.
29. Upholding the Honor of the Profession.
30. Justifiable and Unjustifiable Litigations.
31. Responsibility for Litigation.
32. The Lawyer’s Duty in Its Last Analysis.
Questions:
● Do you see evidence of dual-role model of lawyers’ responsibilities in the Canons?
Where?
● What does the adoption of the Canons tell us about the state of the profession in 1908?
●
Although the Canons were general statements of profession norms, they included some
explanatory content. For example, see Canons 4, 17, and 29.
Canon 4 - When Counsel for an Indigent Prisoner. A lawyer assigned as counsel for an indigent
prisoner ought not to ask to be excused for any trivial reason, and should always exert his best
efforts in his behalf.
Canon 17- Ill Feeling and Personalities Between Advocates. Clients, not lawyers, are the
litigants. Whatever may be the ill feeling existing between clients, it should not be allowed to
influence counsel in their conduct and demeanor toward each other or toward suitors in the
case. All personalities between counsel should be scrupulously avoided. In the trial of a cause it
is indecent to allude to the personal history or the personal peculiarities and idiosyncrasies of
counsel on the other side. Personal colloquies between counsel which cause delay and promote
unseemly wrangling should also be carefully avoided.
Canon 29 - Upholding the Honor of the Profession. Lawyers should expose without fear or favor
before the proper tribunals corrupt or dishonest conduct in the profession, and should accept

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without hesitation employment against a member of the Bar who has wronged his client. The
counsel upon the trial of a cause in which perjury has been committed owe it to the profession
and citing authorities. The lawyer should aid in guarding the Bar against admission to the
profession of candidates unfit or unqualified because deficient in either moral character or
education. He should strive at all times to uphold the honor and to maintain the dignity of the
profession and to improve not only the law but the administration of justice.
Questions:
● Are the Canons useful for navigating professional ethical dilemmas?
● How helpful is the explanatory content? Does it answer all your questions about how to
apply the Canons? Can you think of a situation in which lawyers might reasonably
disagree about what conforming professional conduct might look like?
The ABA Canons of Professional Ethics were an important step towards professionalizing
lawyers’ work. While no longer in force, the Canons guided lawyers’ professional standards for a
sixty year period in which the modern profession emerged. Judicial opinions and state bars
often referred to the text of and principles in the Canons. Attempts to apply the Canons revealed
some challenges with moving from generalized principles to enforceable boundaries, prompting
the ABA to work towards the Model Code of Professional Responsibility.
Model Code of Professional Responsibility
The ABA House of Delegates approved the Model Code of Professional Responsibility, a
comprehensively revised set of rules, on August 12, 1969. The Model Code marked a significant
shift from the Canons in its organization and scope. Where the Canons were idealistic and
relied on external judgments to clarify conflicting priorities and refine broad goals, the Model
Code contained three distinct but interrelated parts: canons, ethical considerations, and
disciplinary rules. The canons stated the general rules which led to the ethical considerations
and disciplinary rules. The ethical considerations were the aspirational principles. The
disciplinary rules were mandatory statements about the minimum standards of conduct lawyers
must adhere to in order to not face disciplinary action. Each canon might contain a dozen (or
more!) ethical considerations and disciplinary rules.
For Example, explanatory content for Canon 6 includes six ethical considerations and
two disciplinary rules.
CANON 6: A Lawyer Should Represent a Client Competently
ETHICAL CONSIDERATIONS
EC 6-1
Because of his vital role in the legal process, a lawyer should act with competence and proper
care in representing clients. He should strive to become and remain proficient in his practice
and should accept employment only in matters which he
is or intends to become competent to handle.

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EC 6-2
A lawyer is aided in attaining and maintaining his competence by keeping abreast of
current legal literature and developments, participating in continuing legal education programs,
concentrating in particular areas of the law, and by utilizing other available means. He has the
additional ethical obligation to assist in improving the legal profession, and he may do so by
participating in bar activities intended to advance the quality and standards of members of the
profession. Of particular importance is the careful training of his younger associates and the
giving of sound guidance to all lawyers who consult him. In short, a lawyer should strive at all
levels to aid the legal profession in advancing the highest possible standards of integrity and
competence and to meet those standards himself.
EC 6-3
While the licensing of a lawyer is evidence that he has met the standards then prevailing
for admission to the bar, a lawyer generally should not accept employment in any area of the
law in which he is not qualified. However, he may accept such employment if in good faith he
expects to become qualified through study and investigation, as long as such preparation would
not result in unreasonable delay or expense to his client. Proper preparation and representation
may require the association by the lawyer of professionals in other disciplines. A lawyer offered
employment in a matter in which he is not and does not expect to become so qualified
should either decline the employment or, with the consent of his client, accept the employment
and associate a lawyer who is competent in the matter.
EC 6-4
Having undertaken representation, a lawyer should use proper care to safeguard the
Interests of his client. If a lawyer has accepted employment in a matter beyond his competence
but in which he expected to become competent, he should diligently undertake the work and
study necessary to qualify himself. In addition to being qualified to handle a particular matter, his
obligation to his client requires him to prepare adequately for and give appropriate attention
to his legal work.
EC 6-5
A lawyer should have pride in his professional endeavors. His obligation to act competently calls
for higher motivation than that arising from fear of civil liability or disciplinary penalty.
EC 6-6
A lawyer should not seek, by contract or other means, to limit his individual liability to
his client for his malpractice. A lawyer who handles the affairs of his client properly has no need
to attempt to limit his liability for his professional activities and one who does not handle the
affairs of his client properly should not be permitted to do so. A lawyer who is a stockholder in or
is associated with a professional legal corporation may, however, limit his liability for malpractice
of his associates in the corporation, but only to the extent permitted by law.
DISCIPLINARY RULES

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DR 6-101-Failing to Act Competently.
A. A lawyer shall not:
1. Handle a legal matter which he knows or should know that he is not competent
to handle, without associating with him a lawyer who is competent to handle it.
2. Handle a legal matter without preparation adequate in the circumstances.
3. Neglect a legal matter entrusted to him.
DR 6-102-Limiting Liability to Client.
A. A lawyer shall not attempt to exonerate himself from or limit his liability to his client for
his personal malpractice.
Questions:
● How useful is the Model Code for making decisions about professional conduct? Is the
clarification between canons, ethical considerations, and disciplinary rules an
improvement on the 1908 Canons?
● Is it necessary to have canons, ethical considerations, and disciplinary rules? Consider
each statement’s or rule’s usefulness in lawyers’ various roles and practice settings.
The Model Code, in various forms and versions, was the ABA’s central document on
professional responsibility from 1970 through 1981. While no longer in use, it’s important to
know about the Model Code. Many important cases decided during this time and some states’
rules still contain references to and evidence of the influence of the Model Code.
Model Rules of Professional Conduct
The shift from idealistic Canons to boundary rules in the Model Code created the need for
specificity the Model Code did not always address. To deal with this challenge, the ABA tasked
a lawyer named Robert Kutak with chairing a commission to study the problem. The Kutak
Commission focused on developing the minimum standards of conduct for lawyers into a series
of black-letter rules. The resulting Model Rules, adopted in 1983, are the basis of the current
Model Rules of Professional Conduct. The Model Rules have a regulatory structure, with a
statement of minimum conduct and explanatory comments. The official comments are similar to
other regulatory comments, in that they might content information about the reasoning behind a
rule or examples to guide application. Like other model rules, the Model Rules of Professional
Conduct are not themselves binding. They are designed to be examples a state may choose to
adopt into law. For an example from the Model Rules, see the Rule 1:1 on Competence, below.
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.

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Comment:
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and skill in a
particular matter, relevant factors include the relative complexity and specialized nature
of the matter, the lawyer's general experience, the lawyer's training and experience in
the field in question, the preparation and study the lawyer is able to give the matter and
whether it is feasible to refer the matter to, or associate or consult with, a lawyer of
established competence in the field in question. In many instances, the required
proficiency is that of a general practitioner. Expertise in a particular field of law may be
required in some circumstances.
[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 newly admitted lawyer can
be as competent as a practitioner with long experience. Some important legal skills,
such as the analysis of precedent, the evaluation of evidence and legal drafting, are
required in all legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill that necessarily
transcends any particular specialized knowledge. A lawyer can provide adequate
representation in a wholly novel field through necessary study. Competent
representation can also be provided through the association of a lawyer of established
competence in the field in question.
[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 illconsidered action under emergency conditions can jeopardize the client's interest.
[4] A lawyer may accept representation where the requisite level of competence can be
achieved by reasonable preparation. This applies as well to a lawyer who is appointed
as counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into and analysis of the
factual and legal elements of the problem, and use of methods and procedures meeting
the standards of competent practitioners. It also includes adequate preparation. The
required attention and preparation are determined in part by what is at stake; major
litigation and complex transactions ordinarily require more extensive treatment than
matters of lesser complexity and consequence. An agreement between the lawyer and

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the client regarding the scope of the representation may limit the matters for which the
lawyer is responsible. See Rule 1.2(c).
Retaining or Contracting With Other Lawyers
[6] Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm
to provide or assist in the provision of legal services to a client, the lawyer should
ordinarily obtain informed consent from the client and must reasonably believe that the
other lawyers’ services will contribute to the competent and ethical representation of the
client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client),
1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The
reasonableness of the decision to retain or contract with other lawyers outside the
lawyer’s own firm will depend upon the circumstances, including the education,
experience and reputation of the nonfirm lawyers; the nature of the services assigned to
the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical
environments of the jurisdictions in which the services will be performed, particularly
relating to confidential information.
[7] When lawyers from more than one law firm are providing legal services to the client
on a particular matter, the lawyers ordinarily should consult with each other and the
client about the scope of their respective representations and the allocation of
responsibility among them. See Rule 1.2. When making allocations of responsibility in a
matter pending before a tribunal, lawyers and parties may have additional obligations
that are a matter of law beyond the scope of these Rules.
Maintaining Competence
[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of
changes in the law and its practice, including the benefits and risks associated with
relevant technology, engage in continuing study and education and comply with all
continuing legal education requirements to which the lawyer is subject.
Adoption of the Model Rules
States adopted the structure of the model rules fairly quickly. Today, almost all states’
disciplinary rules follow the numbering system of the Model Rules. The content of state rules
varies, so it’s important to follow the law of your jurisdiction. Since the Model Rules of
Professional Conduct have been so influential, lawyers can look to these Model Rules just like
they might look to other uniform laws or model acts.
Questions:

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●

●

In Rule 1.1 above, do the comments change your understanding of the rule? How? Do
you have remaining questions about what the rule means or how it might work in
application?
Compare the usefulness of the Model Rules to the Model Code and the Canons.
Consider the regulatory structure of the Model Rules, the distinction between ideals and
boundaries, and the content in the examples above.

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Section 2: The Attorney-Client Relationship
2.1: Creating an Attorney-Client Relationship
The rest of life pales in significance, I'm looking for somebody with whom to dance. With whom
to dance? With whom to dance? I'm looking for somebody with whom to dance.13
Clients & “Quasi-Clients”
Ideally, the formation of an attorney-client relationship involves formalities like an engagement
letter, a retainer agreement, and the payment of attorney’s fees. But none of those formalities
are necessary. An attorney-client relationship may be formed whenever a person asks an
attorney for legal advice and the attorney provides it, so long as a reasonable person could
believe that an attorney-client relationship existed.
I will refer to people an attorney intends to represent as “clients,” and people an attorney does
not intend to represent as “quasi-clients.” An attorney has an “express attorney-client
relationship” with clients and an “implied attorney-client relationship” with quasi-clients. But
express and implied attorney-client relationships impose many of the same duties on an
attorney.
Restatement (Third) of the Law Governing Lawyers § 14 (2000)
A relationship of client and lawyer arises when:
1. a person manifests to a lawyer the person's intent that the lawyer provide legal
services for the person; and either
a. the lawyer manifests to the person consent to do so; or
b. the lawyer fails to manifest lack of consent to do so, and the lawyer
knows or reasonably should know that the person reasonably relies on
the lawyer to provide the services; or
2. a tribunal with power to do so appoints the lawyer to provide the services.
The Duties of an Attorney
Attorneys owe certain legal duties to their clients and quasi-clients, whether they have an
express attorney-client relationship or an implied attorney-client relationship. Those duties are
reflected in the Model Rules of Professional Conduct.
●

13

Duty of Care: Attorneys have a duty to act with due diligence in pursuit of their client’s
interests. Model Rule 1.1.

Stephin Merritt, The Magnetic Fields, With Whom to Dance?, Get Lost (1995).

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●
●

●

Duty of Loyalty: Attorneys may not represent any party with an interest adverse to any
of their clients, and must refrain from self-dealing. Model Rules 1.7 & 1.8.
Duty of Impartiality: Attorneys must provide their clients with all of the information their
clients need in order to make informed decisions. Model Rule 1.4. Attorneys must also
“exercise independent professional judgment and render candid advice.” Model Rule
2.1.
Duty of Confidentiality: Attorneys must maintain in confidence all information obtained
while representing their clients, and may not use any confidential client information in a
way that could harm that client. Model Rule 1.6.

Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980)
Summary: John Togstad was paralyzed after surgery. His wife Joan Togstad met with
attorney Jere Miller and asked him whether they had a viable medical malpractice
action. Miller stated that he did not think his firm was interested, but he would consult
with his partners. He did not charge Togstad or agree to represent her. He also did not
inform her that he lacked experience in the area, encourage her to consult with another
attorney, or warn her about the statute of limitations on medical malpractice actions.
After the statute of limitations expired, the Togstads filed a legal malpractice action. The
jury found that an attorney-client relationship existed and that Miller was negligent, and
awarded damages to the Togstads. The Minnesota Supreme Court affirmed, holding that
an attorney-client relationship existed because Miller provided legal advice and his
advice was negligent.
This is an appeal by the defendants from a judgment of the Hennepin County District Court
involving an action for legal malpractice. The jury found that the defendant attorney Jerre Miller
was negligent and that, as a direct result of such negligence, plaintiff John Togstad sustained
damages in the amount of $610,500 and his wife, plaintiff Joan Togstad, in the amount of
$39,000. Defendants (Miller and his law firm) appeal to this court from the denial of their motion
for judgment notwithstanding the verdict or, alternatively, for a new trial. We affirm.
In August 1971, John Togstad began to experience severe headaches and on August 16, 1971,
was admitted to Methodist Hospital where tests disclosed that the headaches were caused by a
large aneurysm on the left internal carotid artery. The attending physician, Dr. Paul Blake, a
neurological surgeon, treated the problem by applying a Selverstone clamp to the left common
carotid artery. The clamp was surgically implanted on August 27, 1971, in Togstad's neck to
allow the gradual closure of the artery over a period of days.
The treatment was designed to eventually cut off the blood supply through the artery and thus
relieve the pressure on the aneurism, allowing the aneurism to heal. It was anticipated that other
arteries, as well as the brain's collateral or cross-arterial system would supply the required blood
to the portion of the brain which would ordinarily have been provided by the left carotid artery.
The greatest risk associated with this procedure is that the patient may become paralyzed if the
brain does not receive an adequate flow of blood. In the event the supply of blood becomes so

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low as to endanger the health of the patient, the adjustable clamp can be opened to establish
the proper blood circulation.
In the early morning hours of August 29, 1971, a nurse observed that Togstad was unable to
speak or move. At the time, the clamp was one-half (50%) closed. Upon discovering Togstad's
condition, the nurse called a resident physician, who did not adjust the clamp. Dr. Blake was
also immediately informed of Togstad's condition and arrived about an hour later, at which time
he opened the clamp. Togstad is now severely paralyzed in his right arm and leg, and is unable
to speak.
Plaintiffs' expert, Dr. Ward Woods, testified that Togstad's paralysis and loss of speech was due
to a lack of blood supply to his brain. Dr. Woods stated that the inadequate blood flow resulted
from the clamp being 50% closed and that the negligence of Dr. Blake and the hospital
precluded the clamp's being opened in time to avoid permanent brain damage. Specifically, Dr.
Woods claimed that Dr. Blake and the hospital were negligent for (1) failing to place the patient
in the intensive care unit or to have a special nurse conduct certain neurological tests every
half-hour; (2) failing to write adequate orders; (3) failing to open the clamp immediately upon
discovering that the patient was unable to speak; and (4) the absence of personnel capable of
opening the clamp.
Dr. Blake and defendants' expert witness, Dr. Shelly Chou, testified that Togstad's condition
was caused by blood clots going up the carotid artery to the brain. They both alleged that the
blood clots were not a result of the Selverstone clamp procedure. In addition, they stated that
the clamp must be about 90% closed before there will be a slowing of the blood supply through
the carotid artery to the brain. Thus, according to Drs. Blake and Chou, when the clamp is 50%
closed there is no effect on the blood flow to the brain.
About 14 months after her husband's hospitalization began, plaintiff Joan Togstad met with
attorney Jerre Miller regarding her husband's condition. Neither she nor her husband was
personally acquainted with Miller or his law firm prior to that time. John Togstad's former work
supervisor, Ted Bucholz, made the appointment and accompanied Mrs. Togstad to Miller's
office. Bucholz was present when Mrs. Togstad and Miller discussed the case.
Mrs. Togstad had become suspicious of the circumstances surrounding her husband's tragic
condition due to the conduct and statements of the hospital nurses shortly after the paralysis
occurred. One nurse told Mrs. Togstad that she had checked Mr. Togstad at 2 a. m. and he was
fine; that when she returned at 3 a. m., by mistake, to give him someone else's medication, he
was unable to move or speak; and that if she hadn't accidentally entered the room no one would
have discovered his condition until morning. Mrs. Togstad also noticed that the other nurses
were upset and crying, and that Mr. Togstad's condition was a topic of conversation.
Mrs. Togstad testified that she told Miller "everything that happened at the hospital," including
the nurses' statements and conduct which had raised a question in her mind. She stated that
she "believed" she had told Miller "about the procedure and what was undertaken, what was

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done, and what happened." She brought no records with her. Miller took notes and asked
questions during the meeting, which lasted 45 minutes to an hour. At its conclusion, according
to Mrs. Togstad, Miller said that "he did not think we had a legal case, however, he was going to
discuss this with his partner." She understood that if Miller changed his mind after talking to his
partner, he would call her. Mrs. Togstad "gave it" a few days and, since she did not hear from
Miller, decided "that they had come to the conclusion that there wasn't a case." No fee
arrangements were discussed, no medical authorizations were requested, nor was Mrs.
Togstad billed for the interview.
Mrs. Togstad denied that Miller had told her his firm did not have expertise in the medical
malpractice field, urged her to see another attorney, or related to her that the statute of
limitations for medical malpractice actions was two years. She did not consult another attorney
until one year after she talked to Miller. Mrs. Togstad indicated that she did not confer with
another attorney earlier because of her reliance on Miller's "legal advice" that they "did not have
a case."
On cross-examination, Mrs. Togstad was asked whether she went to Miller's office "to see if he
would take the case of her husband." She replied, "Well, I guess it was to go for legal advice,
what to do, where shall we go from here? That is what we went for." Again in response to
defense counsel's questions, Mrs. Togstad testified as follows:
Q And it was clear to you, was it not, that what was taking place was a preliminary
discussion between a prospective client and lawyer as to whether or not they wanted to
enter into an attorney-client relationship?
A I am not sure how to answer that. It was for legal advice as to what to do.
Q And Mr. Miller was discussing with you your problem and indicating whether he, as a
lawyer, wished to take the case, isn't that true?
A Yes.
On re-direct examination, Mrs. Togstad acknowledged that when she left Miller's office she
understood that she had been given a "qualified, quality legal opinion that she and her husband
did not have a malpractice case."
Miller's testimony was different in some respects from that of Mrs. Togstad. Like Mrs. Togstad,
Miller testified that Mr. Bucholz arranged and was present at the meeting, which lasted about 45
minutes. According to Miller, Mrs. Togstad described the hospital incident, including the conduct
of the nurses. He asked her questions, to which she responded. Miller testified that "the only
thing I told her after we had pretty much finished the conversation was that there was nothing
related in her factual circumstances that told me that she had a case that our firm would be
interested in undertaking."
Miller also claimed he related to Mrs. Togstad "that because of the grievous nature of the
injuries sustained by her husband, that this was only my opinion and she was encouraged to
ask another attorney if she wished for another opinion" and "she ought to do so promptly." He

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testified that he informed Mrs. Togstad that his firm "was not engaged as experts" in the area of
medical malpractice, and that they associated with the Charles Hvass firm in cases of that
nature. Miller stated that at the end of the conference he told Mrs. Togstad that he would consult
with Charles Hvass and if Hvass's opinion differed from his, Miller would so inform her. Miller
recollected that he called Hvass a "couple days" later and discussed the case with him. It was
Miller's impression that Hvass thought there was no liability for malpractice in the case.
Consequently, Miller did not communicate with Mrs. Togstad further.
On cross-examination, Miller testified as follows:
Q Now, so there is no misunderstanding, and I am reading from your deposition, you
understood that she was consulting with you as a lawyer, isn't that correct?
A That's correct.
Q That she was seeking legal advice from a professional attorney licensed to practice in
this state and in this community?
A I think you and I did have another interpretation or use of the term "Advice." She was
there to see whether or not she had a case and whether the firm would accept it.
Q We have two aspects; number one, your legal opinion concerning liability of a case for
malpractice; number two, whether there was or wasn't liability, whether you would accept
it, your firm, two separate elements, right?
A I would say so.
Q Were you asked on page 6 in the deposition, folio 14, "And you understood that she
was seeking legal advice at the time that she was in your office, that is correct also, isn't
it?" And did you give this answer, "I don't want to engage in semantics with you, but my
impression was that she and Mr. Bucholz were asking my opinion after having related
the incident that I referred to." The next question, "Your legal opinion?" Your answer,
"Yes." Were those questions asked and were they given?
MR. COLLINS: Objection to this, Your Honor. It is not impeachment.
THE COURT: Overruled.
THE WITNESS: Yes, I gave those answers. Certainly, she was seeking my opinion as
an attorney in the sense of whether or not there was a case that the firm would be
interested in undertaking.
Kenneth Green, a Minneapolis attorney, was called as an expert by plaintiffs. He stated that in
rendering legal advice regarding a claim of medical malpractice, the "minimum" an attorney
should do would be to request medical authorizations from the client, review the hospital
records, and consult with an expert in the field. John McNulty, a Minneapolis attorney, and
Charles Hvass testified as experts on behalf of the defendants. McNulty stated that when an
attorney is consulted as to whether he will take a case, the lawyer's only responsibility in
refusing it is to so inform the party. He testified, however, that when a lawyer is asked his legal
opinion on the merits of a medical malpractice claim, community standards require that the
attorney check hospital records and consult with an expert before rendering his opinion.

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Hvass stated that he had no recollection of Miller's calling him in October 1972 relative to the
Togstad matter. He testified that:
A When a person comes in to me about a medical malpractice action, based upon what
the individual has told me, I have to make a decision as to whether or not there probably
is or probably is not, based upon that information, medical malpractice. And if, in my
judgment, based upon what the client has told me, there is not medical malpractice, I will
so inform the client.
Hvass stated, however, that he would never render a "categorical" opinion. In addition, Hvass
acknowledged that if he were consulted for a "legal opinion" regarding medical malpractice and
14 months had expired since the incident in question, "ordinary care and diligence" would
require him to inform the party of the two-year statute of limitations applicable to that type of
action.
This case was submitted to the jury by way of a special verdict form. The jury found that Dr.
Blake and the hospital were negligent and that Dr. Blake's negligence (but not the hospital's)
was a direct cause of the injuries sustained by John Togstad; that there was an attorney-client
contractual relationship between Mrs. Togstad and Miller; that Miller was negligent in rendering
advice regarding the possible claims of Mr. and Mrs. Togstad; that, but for Miller's negligence,
plaintiffs would have been successful in the prosecution of a legal action against Dr. Blake; and
that neither Mr. nor Mrs. Togstad was negligent in pursuing their claims against Dr. Blake. The
jury awarded damages to Mr. Togstad of $610,500 and to Mrs. Togstad of $39,000.
In a legal malpractice action of the type involved here, four elements must be shown: (1) that an
attorney-client relationship existed; (2) that defendant acted negligently or in breach of contract;
(3) that such acts were the proximate cause of the plaintiffs' damages; (4) that but for
defendant's conduct the plaintiffs would have been successful in the prosecution of their
medical malpractice claim.
We believe it is unnecessary to decide whether a tort or contract theory is preferable for
resolving the attorney-client relationship question raised by this appeal. The tort and contract
analyses are very similar in a case such as the instant one, and we conclude that under either
theory the evidence shows that a lawyer-client relationship is present here. The thrust of Mrs.
Togstad's testimony is that she went to Miller for legal advice, was told there wasn't a case, and
relied upon this advice in failing to pursue the claim for medical malpractice. In addition,
according to Mrs. Togstad, Miller did not qualify his legal opinion by urging her to seek advice
from another attorney, nor did Miller inform her that he lacked expertise in the medical
malpractice area. Assuming this testimony is true, we believe a jury could properly find that Mrs.
Togstad sought and received legal advice from Miller under circumstances which made it
reasonably foreseeable to Miller that Mrs. Togstad would be injured if the advice were
negligently given. Thus, under either a tort or contract analysis, there is sufficient evidence in
the record to support the existence of an attorney-client relationship.

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Defendants argue that even if an attorney-client relationship was established the evidence fails
to show that Miller acted negligently in assessing the merits of the Togstads' case. They appear
to contend that, at most, Miller was guilty of an error in judgment which does not give rise to
legal malpractice. However, this case does not involve a mere error of judgment. The gist of
plaintiffs' claim is that Miller failed to perform the minimal research that an ordinarily prudent
attorney would do before rendering legal advice in a case of this nature.
There is also sufficient evidence in the record establishing that, but for Miller's negligence,
plaintiffs would have been successful in prosecuting their medical malpractice claim. Dr. Woods,
in no uncertain terms, concluded that Mr. Togstad's injuries were caused by the medical
malpractice of Dr. Blake. Defendants' expert testimony to the contrary was obviously not
believed by the jury. Thus, the jury reasonably found that had plaintiff's medical malpractice
action been properly brought, plaintiffs would have recovered.
Based on the foregoing, we hold that the jury's findings are adequately supported by the record.
Accordingly we uphold the trial court's denial of defendants' motion for judgment
notwithstanding the jury verdict.
Questions:
1. What was the basis for the Togstads’ claim that Miller’s actions formed an attorney-client
relationship? How did Miller respond?
2. Why did the court hold that an attorney-client relationship existed between Miller and the
Togstads? Do you think it was right?
3. How should Miller have responded in order to avoid creating an attorney-client
relationship?
4. Why did the court hold that Miller was liable for negligence? Do you think it was right?
5. How should Miller have responded in order to avoid liability for negligence?
Representation of an Organization
When an attorney represents an entity, the attorney’s client is the entity, not the entity’s agents.
In other words, when an attorney represents a corporation, limited liability company,
partnership, or unincorporated association, the attorney’s client is the organization, not the
employees of the organization. Or to put it another way, the attorney has an attorney-client
relationship with the organization, but does not necessarily have an attorney-client relationship
with the employees of the organization. Specifically, the attorney has a duty to represent the
organization, even when its interests diverge from the interests of its employees.
However, an attorney representing an organization must ensure that the employees of the
organization understand that the attorney only represents the organization, and not its
employees. In other words, the employees must understand that the organization’s attorney is
not their attorney, and that the organization’s attorney has professional duties only to the
organization. This can be difficult to explain, especially when employees identify their interests

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with those of the organization. But attorneys for organizations must clarify their legal relationship
to the employees of those organizations, in order to avoid creating an attorney-client
relationship.
Model Rule 1.13: Organization as Client
a. A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents.
b. If a lawyer for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or refuses to act in a
matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be imputed to the organization,
and that is likely to result in substantial injury to the organization, then the lawyer shall
proceed as is reasonably necessary in the best interest of the organization. Unless the
lawyer reasonably believes that it is not necessary in the best interest of the organization
to do so, the lawyer shall refer the matter to higher authority in the organization,
including, if warranted by the circumstances to the highest authority that can act on
behalf of the organization as determined by applicable law.
c. Except as provided in paragraph (d), if
1. despite the lawyer's efforts in accordance with paragraph (b) the highest authority
that can act on behalf of the organization insists upon or fails to address in a
timely and appropriate manner an action, or a refusal to act, that is clearly a
violation of law, and
2. the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization, then the lawyer may reveal information
relating to the representation whether or not Rule 1.6 permits such disclosure,
but only if and to the extent the lawyer reasonably believes necessary to prevent
substantial injury to the organization.
d. Paragraph (c) shall not apply with respect to information relating to a lawyer's
representation of an organization to investigate an alleged violation of law, or to defend
the organization or an officer, employee or other constituent associated with the
organization against a claim arising out of an alleged violation of law.
e. A lawyer who reasonably believes that he or she has been discharged because of the
lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under
circumstances that require or permit the lawyer to take action under either of those
paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that
the organization's highest authority is informed of the lawyer's discharge or withdrawal.
f. In dealing with an organization's directors, officers, employees, members, shareholders
or other constituents, a lawyer shall explain the identity of the client when the lawyer
knows or reasonably should know that the organization's interests are adverse to those
of the constituents with whom the lawyer is dealing.
g. A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of
Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7,

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the consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.
Ferranti Intern. PLC v. Clark, 767 F. Supp. 670 (E.D. Pa. 1991)
Summary: William Clark was general counsel of Ferranti and hired Hogan & Hartson to
represent the company in relation to a federal investigation. Hogan & Hartson informed
Ferranti’s employees that they should consider retaining an attorney. During the
investigation, Clark provided confidential information to Hogan & Hartson. Eventually,
Ferranti filed an action against Clark for breach of fiduciary duty and legal malpractice.
Clark objected to Hogan & Hartson’s representation of Ferranti. The court dismissed
Clark’s objections, on the ground that he knew Hogan & Hartson never represented him
personally.
LUDWIG, District Judge.
Plaintiff sues for breach of fiduciary duty and professional malpractice and to rescind a $2.75
million employee "settlement and release" agreement, which the complaint alleges was
obtained by extortion. Defendant William A. Clark's motion to disqualify the firm of Hogan &
Hartson from representing plaintiff Ferranti International PLC in this action will be denied for the
following reasons:
An attorney-client relationship, express or implied, did not exist between Hogan & Hartson and
William A. Clark when he was Ferranti International, Inc.'s vice president and general counsel.
In July, 1986 defendant Clark, himself an attorney, retained Hogan & Hartson to represent
plaintiff Ferranti International plc and its subsidiaries in regard to a government investigation of
alleged wrongdoing on the part of their employees. He did so in his capacity as Ferranti
International, Inc.'s vice president and general counsel. The need for representation was
triggered by a federal grand jury subpoena served on plaintiff's subsidiary, the Marquardt
Company. Thereafter, the investigation was widened with target letters and follow-up
subpoenas to corporate employees of plaintiff and plaintiff's other subsidiaries.
Hogan & Hartson did not represent the corporations' employees. Hogan & Hartson attorneys
repeatedly stated to the corporations' employees in defendant's presence that they should
obtain separate counsel because of the potential conflict of interest between employer and
employee. Defendant helped arrange for employees to be separately represented.
Any perception by defendant that he became a client or was a prospective client of Hogan &
Hartson as to his personal legal matters was unreasonable and without foundation. Defendant's
position as general counsel and corporate officer excluded this law firm from acting as his
personal attorney because of the self-evident interest conflict. Given the circumstances, the
personal matters discussed did not involve an attorney-client relationship.

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The information given Hogan & Hartson by defendant regarding plaintiff, its subsidiaries and
employees was communicated by him in his capacity as Ferranti International, Inc.'s vice
president and general counsel. Proof of defendant's knowledge of such information does not
appear to require that a Hogan & Hartson attorney testify as a witness.
Until shortly before the present disqualification motion was filed, February 28, 1991, defendant's
sole objection to Hogan & Hartson's representation of plaintiff in this action involved the possible
calling of Hogan & Hartson attorneys as plaintiff's witnesses. That was first noted by defendant's
counsel as a potential problem in September, 1990. If either party intends to call a Hogan &
Hartson attorney as a witness, the court should be notified at least 60 days in advance of trial,
and any issue thereby raised can be considered at that time.
Defendant's status as an attorney has contradictory facets. He selected Hogan & Hartson to be
plaintiff's counsel and subsequently worked with several of its attorneys in a confidential and
apparently close relationship on behalf of plaintiff, the parent of his then employer. Having done
so and formed such associations, he may understandably resent and find objectionable the turn
of events in which he is now being sued not only by the same law firm but also on behalf of the
client that he brought to that firm. However, these personal and business considerations do not
necessitate disqualification on legal-ethical grounds.
This is not a case in which a layperson might have perceived or reasonably misperceived that
his corporate employer's attorney was also representing him. As a general counsel, defendant
must have keenly appreciated the distinction between the corporation and its employees as well
as the employees' need for separate counsel. Defendant's assertion that the personal
comments and observations exchanged between him and Hogan & Hartson attorneys were in
contemplation of, or resulted in, a personal attorney-client relationship is factitious and
unconvincing.
Although it became a Hogan & Hartson client through defendant, plaintiff has a cognizable
interest in being permitted to continue to be represented by this firm. Moreover,
disqualification—which is an increasingly frequent issue in the courts— may be the subject of
tactical abuse. A party's choice of counsel should be set aside only where the circumstances
legally require doing so.
Under the Rules of Professional Conduct and the cases, there is no legal basis on which to
disqualify Hogan & Hartson. An evidentiary hearing is unnecessary.
Questions:
1. Why did Clark object to Hogan & Hartson representing Ferranti in its action action
against him? Why did the court dismiss Clark’s objections?
2. Clark was an attorney and general counsel for Ferranti. Would the court have reached
the same conclusion if Clark were not an attorney?

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3. Should Ferranti be able to use confidential information provided to Hogan & Hartson by
Clark?
4. What should Clark have done differently?
Prospective Clients
People and organizations do not always choose to form an attorney-client relationship
immediately. Sometimes, they consider forming an attorney-client relationship with multiple
attorneys or firms before choosing one.
A “prospective client” is a person or organization that discusses the possibility of forming an
attorney-client relationship with an attorney or firm. If an attorney or firm learns confidential
information from a prospective client, the attorney or firm may be precluded from representing
other parties in the same matter, if their interests are adverse to those of the prospective client.
Accordingly, attorneys should try to prevent prospective clients from disclosing confidential
information, in order to avoid disqualification from representing adverse parties. And attorneys
must determine whether potential clients have disclosed any confidential information, because it
creates a duty of confidentiality.
Model Rule 1.18: Client-Lawyer Relationship
a. A person who consults with a lawyer about the possibility of forming a client-lawyer
relationship with respect to a matter is a prospective client.
b. Even when no client-lawyer relationship ensues, a lawyer who has learned information
from a prospective client shall not use or reveal that information, except as Rule 1.9
would permit with respect to information of a former 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). 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).
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:
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.

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Restatement (Third) of the Law Governing Lawyers § 15 (2000)
1. When a person discusses with a lawyer the possibility of their forming a clientlawyer relationship for a matter and no such relationship ensues, the lawyer
must:
a. not subsequently use or disclose confidential information learned in the
consultation, except to the extent permitted with respect to confidential
information of a client or former client as stated in §§ 61- 67;
b. protect the person's property in the lawyer's custody as stated in §§ 4446; and
c. use reasonable care to the extent the lawyer provides the person legal
services.
2. A lawyer subject to Subsection (1) may not represent a client whose interests are
materially adverse to those of a former prospective client in the same or a
substantially related matter when the lawyer or another lawyer whose
disqualification is imputed to the lawyer under §§ 123 and 124 has received from
the prospective client confidential information that could be significantly harmful
to the prospective client in the matter, except that such a representation is
permissible if:
a. (i) any personally prohibited lawyer takes reasonable steps to avoid
exposure to confidential information other than information appropriate to
determine whether to represent the prospective client, and (ii) such
lawyer is screened as stated in § 124(2)(b) and (c); or
b. both the affected client and the prospective client give informed consent
to the representation under the limitations and conditions provided in §
122.
Clark Capital Management Group, Inc. v. Annuity Investors Life Ins. Co., 149 F.Supp.2d
193 (E.D. Pa. 2001)
Summary: Clark filed a trademark infringement action against Annuity. Clark was
represented by Woodcock Washburn Kurtz Mackiewicz & Norris LLP and Annuity was
represented by Donald E. Frechette of Edwards & Angell LLP. Frechette contacted
Thomas S. Biemer of Dilworth Paxson LLP as potential co-counsel. Frechette provided
information about the action, and Biemer told Frechette that he would have to run a
conflicts check. Frechette never formally retained Biemer. Eventually, Clark retained
Stephen L. Friedman of Dilworth, and Annuity objected, on the ground that it was a
former client of Dilworth in the same matter. The court held that Dilworth was not
disqualified from representing Clark, but required it to screen Biemer from the action.
ANITA B. BRODY, District Judge.

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Defendant Annuity Investors Life Insurance Co. moves for the disqualification of Stephen L.
Friedman and the firm Dilworth Paxson LLP as co-counsel for plaintiff Clark Capital
Management Group. Friedman has submitted an opposition to this motion. I will deny the motion
for disqualification.
I. Factual Background
On April 14, 2000, Clark Capital filed a complaint against Annuity alleging trademark
infringement. Attorneys with the firm of Woodcock Washburn Kurtz Mackiewicz & Norris LLP
have represented Clark Capital from day one of this case. In the fall of 2000, Annuity retained
Donald E. Frechette with the firm of Edwards & Angell LLP.
Acting on Annuity's behalf, in the Fall of 2000, Frechette contacted by telephone Thomas S.
Biemer, a partner at Dilworth, to inquire into Biemer's interest and availability to be retained as
co-counsel for Annuity in the present action. Frechette submitted two sworn affidavits describing
this communication. Frechette asserts in his first sworn affidavit that he spoke with Biemer by
telephone on three occasions. He states that they first spoke on October 26, 2000 for
approximately ten minutes. Frechette asserts that, during this conversation, he discussed with
Biemer "the background facts of this case, the capabilities of opposing counsel, Mr. Biemer's
firm's experience and familiarity with opposing counsel and the trial judge, the nature of
Annuity's defenses, the relative merits of each party's case, and potential weaknesses in
plaintiff's case." Frechette further states that he described how the case had been handled to
date.
According to Frechette, he again spoke with Biemer by telephone on November 6, 2000, for
approximately ten to fifteen minutes. He states that, in this conversation, Frechette provided
Biemer with additional information relating to specific aspects of the case and Annuity's view of
the strengths and weaknesses of these aspects. Frechette also recalls that they discussed one
legal theory that might be employed in Annuity's defense. Frechette asserts that he spoke with
Biemer for a third time on November 6, 2000, for three to four minutes about a matter of
procedure and timing. Finally, Frechette asserts that he believed that any confidential
information about the case, disclosed to Biemer during these several conversations, would be
kept confidential.
Biemer submitted a sworn affidavit in response to Frechette's affidavit. Biemer states that he
recalls the first two conversations described in Frechette's affidavit, but not the third
conversation. Biemer agrees that the two attorneys discussed the nature of the case, plaintiff's
counsel, and the court. He asserts, however, that he has no recollection that any confidential
information was disclosed by Frechette. Biemer recalls only that Frechette informed him that
Annuity was claiming the "usual affirmative defenses," which had already been pled and of
public record. Biemer states in his affidavit that he has no recollection of any discussion of
Annuity's perception of strengths and weaknesses in the case or of possible defense strategy.

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On June 12, 2001, when contacted by the court during a conference in this case in which
Annuity first raised an objection to Friedman's participation in the case, Biemer stated over the
telephone:
I don't recall, specifically, discussing the merits of the case, other than that it involved
something that was named Navigator, it was a trademark case. I don't remember
specifically discussing any affirmative defenses, but it's possible we did, I just don't
recall, it was a while ago.
In addition, Biemer's affidavit states that he told Frechette during the first conversation that,
before Dilworth could agree to represent Annuity, he would have to run a conflict check. Biemer
avers that it was not until the second conversation that Frechette asked Biemer to run a conflict
check, "if Dilworth was interested in serving as local counsel." Biemer also states that Frechette
asked him to send Frechette any relevant information materials about Dilworth. Following the
November 6, 2000 telephone conversation, Biemer had no further communications with
Frechette about this case, and an offer of retention was never made.
Frechette's second affidavit was submitted in response to Biemer's affidavit. In this affidavit,
Frechette asserts that the issue of a conflict search was not discussed during the telephone
conversations. He states that Biemer mentioned a conflict check for the first time in a letter
dated November 7, 2000. Frechette further states:
I certainly assumed that Attorney Biemer would not undertake a matter without
performing a conflict check and, accordingly, felt no need to specifically inquire as to the
matter further.
Annuity never retained Dilworth. On June 11, 2001, Friedman, a Dilworth attorney, entered an
appearance on behalf of Clark Capital.
II. Discussion
Annuity asserts that these several telephone conversations between Frechette and Biemer rose
to the level of an attorney-client relationship between Annuity and Biemer, such that Friedman is
in violation of the Rules of Professional Conduct. This District has adopted the Pennsylvania
Rules of Professional Conduct. These Rules provide that:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) Represent another person in the same or substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless the
former client consents after a full disclosure of the circumstances and consultation.
Rule of Professional Conduct 1.9.

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This prohibition disqualifies the lawyer's entire firm.
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. Annuity argues that,
because Frechette's telephone conversations with Biemer rose to the level of an attorney-client
relationship, Annuity is a "former client" of Dilworth and, therefore, Friedman may not now
represent the opposing party in this same matter.
To determine whether Friedman is in violation of these ethical rules, I must decide whether
Annuity is a "former client" of Dilworth. In other words, did there previously exist an attorneyclient relationship between Annuity and Dilworth. "An attorney-client relationship is one of
agency and arises only when the parties have given their consent, either express or implied, to
its formation." Both parties agree that no formal attorney-client relationship existed between
Annuity and Dilworth. "Where no express relationship exists, the intent to create an attorneyclient relationship can be implied from the conduct of the parties." The issue is whether an
implied attorney-client relationship arose during the course of the several telephone
conversations between Frechette and Biemer. Annuity asserts that an implied attorney-client
relationship between Annuity and Biemer arose because, acting on Annuity's behalf, Frechette:
(1) disclosed confidential information to Biemer, (2) with a reasonable belief that Biemer was
acting in the capacity of attorney for Annuity throughout the course of the communication.
Based on the facts presented, I find that the several brief telephone conversations between
Frechette and Biemer did not give rise to an implied attorney-client relationship between Annuity
and Dilworth. Frechette asserts in his first sworn affidavit that he disclosed to Biemer
confidential information related to Annuity's defenses and legal theories of the case. Biemer
admits that it is possible such disclosures were made. However, Biemer contends that he has
no recollection of disclosure of any confidential information.
Setting aside for the moment the question of whether confidential information was in fact
disclosed, it is clear from the facts presented that Frechette could not have held a reasonable
belief that Biemer was acting as an attorney for Annuity during the course of the communication.
Frechette initiated the communication with Biemer to inquire into Biemer's interest and
availability to be retained as co-counsel for Annuity in the present action. At no time during the
communication did Frechette offer to retain Biemer as co-counsel and at no time during the
communication did Biemer consent to representation of Annuity. To the contrary, it was evident
from Frechette's request that Biemer send informational materials about the firm, that Frechette
had not yet decided whether to retain Biemer as co-counsel. Frechette was reserving the right
to make a decision after learning more about the firm.
Furthermore, it is evident that Frechette never conceived that Biemer was acting as Annuity's
attorney during the communication, because Biemer had not yet run a conflict check. Frechette
contests Biemer's assertion that Biemer raised the need to run a conflict check before
consenting to representation during the telephone conversations. However, even if Biemer did
not raise the need to run a conflict check, Frechette, equally knowledgeable of the ethical rules,

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was well aware that Biemer would not consent to representation of Annuity before running a
conflict check. Frechette explicitly stated in his second sworn affidavit:
I certainly assumed that Attorney Biemer would not undertake a matter without
performing a conflict check and, accordingly, felt no need to specifically inquire as to the
matter further.
When Frechette first contacted Biemer on October 26, 2000, the telephone conversation during
which Frechette asserts that he first disclosed confidential information to Biemer, Frechette
could not have reasonably assumed that Biemer had already run a conflict check. By
Frechette's own admission, therefore, it was unreasonable for Frechette to assume during that
conversation that Biemer had consented to representation of Annuity. The duty to maintain
confidences does not arise absent an attorney-client relationship. It follows that Frechette
unreasonably assumed that Biemer would maintain the confidentiality of any information
Frechette disclosed, despite Frechette's awareness that no attorney-client relationship had been
established. Annuity is not a former client of Biemer and neither Friedman nor Dilworth are in
violation of Pennsylvania Rule of Professional Conduct 1.9.
I must still address the concern that confidential information about the case may have been
disclosed by Frechette, which potentially could be used to the detriment of Annuity if Friedman
is permitted to serve as counsel to Clark Capital. "One of the inherent powers of the federal
court is the admission and discipline of attorneys practicing before it." Therefore, when there is a
risk that the underlying litigation may be tainted by participation of counsel, the court has the
power to fashion an appropriate remedy.
In the event that confidential information was disclosed, I find that disqualification of Dilworth is
an inappropriate remedy under the facts of this case, but rather that screening Biemer from the
case will appropriately balance the interests of all parties. Biemer asserts that he has no
recollection that any confidential information was disclosed to him about this case. Therefore,
even if he did receive confidential information about the case, Biemer is not capable of relaying
anything of substance to other Dilworth attorneys. Biemer also asserts in his affidavit that he
has been screened from the matter from the moment Clark Capital contacted the firm. He
states:
On approximately June 7, 2001, I learned that Dilworth was contacted by Clark Capital
and asked to enter its appearance as counsel for Clark Capital. When I learned this, I
relayed to one of the heads of Dilworth's litigation department, James Rogers, Esquire,
the substance of my conversations with Mr. Frechette as outlined in this Affidavit. While
we agreed that there was no conflict given the limited nature of these conversations, in
an abundance of caution, it was decided that I would not be involved in any respect with
this case and would not have any contact regarding the substance of the case with
anyone working on the case for Dilworth. With the exception of my participation in the
Conference Call before the Court on June 11, 2001 and the preparation of this Affidavit, I
have not had any involvement in this case. Friedman substantiated Biemer's assertion

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on the record at the June 12, 2001 conference in this matter, stating that Biemer will
have nothing to do with this case and that Friedman has had no conversations with
Biemer about the case other than to inform Friedman of the brief communication
between Biemer and Frechette.
I am not persuaded by Annuity's argument that disqualification of Dilworth is necessary to
protect against the "mere appearance of an impropriety" and to maintain the integrity of the legal
profession. While the ethical rules are designed, in part, to encourage attorney-client candor,
attorneys that have already been retained in a matter and who are well versed in the perimeters
of the attorney-client relationship, should be encouraged to take care with their client's
confidences in the course of preliminary inquiries with potential co-counsel in another firm. Such
inquiries should not form the basis for disqualification of an entire firm in situations, such as this,
where it was clear to both parties that an attorney-client relationship was never established.
Allowing Friedman to be retained by Clark Capital in this matter requires effective screening of
only a single attorney out of approximately 100 attorneys at Dilworth. In light of this, the fact that
Annuity is not a former client of Dilworth, and the minimal likelihood that Dilworth's involvement
in this case would taint the pending litigation, I will deny Annuity's motion to disqualify Friedman
and Dilworth. I will require that Dilworth continue to screen Biemer from any involvement in this
case.
Questions:
1. What was the basis for Annuity’s objection to Dilworth’s representation of Clark?
2. If Frechette provided confidential information to Biemer, is screening him from the action
a sufficient remedy?
3. Why shouldn’t the court disqualify Dilworth from representing Clark in this action?
Further Reading:

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2.2: Ending an Attorney-Client Relationship
This is the end, beautiful friend. This is the end, my only friend, the end.14
Take Me Baby, or Leave Me: Ending the Attorney-Client Relationship
Happy families are all alike; every unhappy family is unhappy in its own way.15
It is surprisingly easy to create an attorney-client relationship, and it can be surprisingly hard for
an attorney to end one. In general, a client can end an attorney-client relationship at any time,
for any reason, or for no reason at all. But attorneys cannot end an attorney-client relationship
without good reason. Sometimes, attorneys must end an attorney-client relationship, and other
times the rules of professional conduct prevent attorneys from ending an attorney-client
relationship. In any case, attorneys may have duties to their clients that survive the attorneyclient relationship, especially the duty of confidentiality.
Sometimes, an attorney must end an attorney-client relationship. For example, an attorney
cannot represent a client if the client fires the attorney, the attorney cannot effectively represent
the client, the attorney has a conflict of interest, or representation would violate the rules of
professional conduct.
Under certain circumstances, attorneys may choose to end an attorney-client relationship. But
the ability of an attorney to end an attorney-client relationship is limited by the rules of
professional conduct. Attorneys can end an attorney-client relationship only if they are permitted
or required to end the relationship by the rules of professional conduct. They may be subject to
discipline for ending an attorney-client relationship, even if it is permitted or required by the rules
of professional conduct. And they may have duties to former clients that survive the attorneyclient relationship.
Before ending an attorney-client relationship, an attorney should determine whether good cause
exists to end the relationship. If an attorney ends an attorney-client relationship without good
cause, the attorney may be subject to discipline and liable to the client for malpractice or breach
of fiduciary duty.
Model Rule 1.16: Declining or Terminating Representation
a. Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
1. the representation will result in violation of the rules of professional conduct or
other law;

14
15

The Doors, The End (1967).
Leo Tolstoy, Anna Karenina (1878).

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2. the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
3. the lawyer is discharged.
b. Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
1. withdrawal can be accomplished without material adverse effect on the interests
of the client;
2. the client persists in a course of action involving the lawyer's services that the
lawyer reasonably believes is criminal or fraudulent;
3. the client has used the lawyer's services to perpetrate a crime or fraud;
4. the client insists upon taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement;
5. the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;
6. the representation will result in an unreasonable financial burden on the lawyer or
has been rendered unreasonably difficult by the client; or
7. other good cause for withdrawal exists.
c. A lawyer must comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation. When ordered to do so by a tribunal, a lawyer shall
continue representation notwithstanding good cause for terminating the representation.
d. Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee or expense that
has not been earned or incurred. The lawyer may retain papers relating to the client to
the extent permitted by other law.
Restatement (Third) of the Law Governing Lawyers § 31 (2000): Termination of a Lawyer's
Authority
1. A lawyer must comply with applicable law requiring notice to or permission of a tribunal
when terminating a representation and with an order of a tribunal requiring the
representation to continue.
2. Subject to Subsection (1) and § 33, a lawyer's actual authority to represent a client ends
when:
a. the client discharges the lawyer;
b. the client dies or, in the case of a corporation or similar organization, loses its
capacity to function as such;
c. the lawyer withdraws;
d. the lawyer dies or becomes physically or mentally incapable of providing
representation, is disbarred or suspended from practicing law, or is ordered by a
tribunal to cease representing a client; or
e. the representation ends as provided by contract or because the lawyer has
completed the contemplated services.

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3. A lawyer's apparent authority to act for a client with respect to another person ends
when the other person knows or should know of facts from which it can be reasonably
inferred that the lawyer lacks actual authority, including knowledge of any event
described in Subsection (2).
Restatement (Third) of the Law Governing Lawyers § 32 (2000): Discharge by a Client and
Withdrawal by a Lawyer
1. Subject to Subsection (5), a client may discharge a lawyer at any time.
2. Subject to Subsection (5), a lawyer may not represent a client or, where representation
has commenced, must withdraw from the representation of a client if:
a. the representation will result in the lawyer's violating rules of professional conduct
or other law;
b. the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
c. the client discharges the lawyer.
3. Subject to Subsections (4) and (5), a lawyer may withdraw from representing a client if:
a. withdrawal can be accomplished without material adverse effect on the interests
of the client;
b. the lawyer reasonably believes withdrawal is required in circumstances stated in
Subsection (2);
c. the client gives informed consent;
d. the client persists in a course of action involving the lawyer's services that the
lawyer reasonably believes is criminal, fraudulent, or in breach of the client's
fiduciary duty;
e. the lawyer reasonably believes the client has used or threatens to use the
lawyer's services to perpetrate a crime or fraud;
f. the client insists on taking action that the lawyer considers repugnant or
imprudent;
g. the client fails to fulfill a substantial financial or other obligation to the lawyer
regarding the lawyer's services and the lawyer has given the client reasonable
warning that the lawyer will withdraw unless the client fulfills the obligation;
h. the representation has been rendered unreasonably difficult by the client or by
the irreparable breakdown of the client-lawyer relationship; or
i. other good cause for withdrawal exists.
4. In the case of permissive withdrawal under Subsections (3)(f)-(i), a lawyer may not
withdraw if the harm that withdrawal would cause significantly exceeds the harm to the
lawyer or others in not withdrawing.
5. Notwithstanding Subsections (1)-(4), a lawyer must comply with applicable law requiring
notice to or permission of a tribunal when terminating a representation and with a valid
order of a tribunal requiring the representation to continue.
You’re Fired!: Discharge

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It's a sad situation, I must say, when someone wants to leave as bad as you want them to
stay.16
I don't feel bad about letting you go, I just feel sad about letting you know.17
Typically, clients can end the attorney-client relationship simply by firing their attorney. Under
Model Rule 1.16(a)(3), “a lawyer shall not represent a client or . . . shall withdraw from the
representation of a client if . . . the lawyer is discharged.” And as Section 32(1) of the
Restatement observes, “a client may discharge a lawyer at any time.”
However, a client’s ability to fire an attorney and end the attorney-client relationship is not
absolute. Under some circumstances, a court may prohibit a client from firing an attorney, and
order the attorney to continue representing the client. For example, a client typically cannot fire
an attorney immediately before trial, because it could enable clients to improperly delay the
proceedings.
Criminal defendants have a limited right to fire appointed counsel and receive alternative
counsel. Criminal defendants also have a limited right to fire appointed counsel and represent
themselves. Among other things, criminal defendant must express an “unequivocal” desire to
represent themselves. In theory, this means that criminal defendants cannot fire appointed
counsel only because they believe appointed counsel is bad.
When a client fires an attorney and hires a new attorney, the former attorney may have a claim
against the former client. In a civil claim, the former attorney may recover the value of the
services rendered.
Demov, Morris, Levine & Shein v. Glantz, 53 N.Y.2d 553 (N.Y. 1981)
Summary: Respondent HGV Associates retained attorneys to retain possession of the
premises of an amusement park to secure an advantageous condemnation award. HGV
Associates signed a retainer agreement which provided that appellants (individual
attorneys and a law firm) would prepare an application for a stay of eviction permitting
the amusement park to reopen and would represent HVG in the condemnation
proceeding. Appellants made clear they would not work unless they could also represent
HGV in the condemnation proceeding. A representative of HGV fired appellant lawyers
and law firm against the retainer agreement. Appellants argue fraud and breach of
retainer agreement. The Appellate Division held the cause of action to be insufficient as
a matter of law. The court noted that a cause of action will not be cognizable in the
courts of this State when it is violative of strong public policy. The public policy of New
York permits a client to terminate the attorney-client relationship freely at any time. The
court held that when an attorney-client relationship deteriorates to the point where the

16
17

Dolly Parton, When Someone Wants to Leave, Jolene (1974).
Billy Bragg, A New England (1983).

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client loses faith in the attorney, the client should have the unbridled prerogative of
termination.
WACHTLER, J.
The question on this appeal is whether an attorney may recover upon a cause of action against
a former client for fraudulently inducing the attorney to enter into a retainer agreement. The
Appellate Division held the cause of action is insufficient as a matter of law and we agree.
In 1972, the City of New York condemned a parcel of land in Queens owned by respondent
HGV Associates upon which an amusement park was operated by respondent MHG
Enterprises, Inc. Between 1972 and 1976, respondents retained several attorneys to undertake
efforts to retain possession of the premises and secure the most advantageous condemnation
award. Respondents remained in possession until May 28, 1976, when a Federal court ordered
them to vacate the premises.
In June, 1976, respondent Glantz, the vice-president of MHG Enterprises, Inc., and a partner in
HGV Associates, signed a retainer agreement which provided that appellants, individual
attorneys, and a law firm, would prepare an application for a temporary stay of eviction
permitting the amusement park to reopen and would represent respondents in the
condemnation proceeding. Appellants were to be paid a fixed sum if the application to reopen
was successful and their fee in the condemnation proceeding was dependent upon the amount
eventually awarded to respondents. Appellants testified that they made it clear to Glantz that
they would not work on the application to reopen unless they could also represent respondents
in the condemnation proceeding. Glantz agreed to arrange to have appellants substituted as
attorneys of record in the condemnation proceeding.
Appellants submitted the application to restore respondents to possession of the amusement
park, which was denied. Thereafter, appellants were informed by respondents' attorney of
record in the condemnation proceeding that Glantz had issued instructions not to forward the
stipulation of substitution to appellants. Glantz then formally discharged appellants in writing and
requested a bill for services rendered.
In October, 1976 appellants commenced an action against respondents for fraud, breach of the
retainer agreement, and the reasonable value of legal services rendered. The cause of action
for fraud was grounded upon the allegation that appellants were induced to enter the retainer
agreement by respondents' promise to permit them to litigate the condemnation proceeding.
Appellants also alleged that from the outset, respondents never intended to substitute
appellants as attorneys of record in the condemnation proceedings unless and until the
application to reopen was granted.
The trial court dismissed the claim for breach of contract, but upheld the cause of action for
fraud. After trial a jury awarded appellants $34,000 as the reasonable value of their services and
$310,000 as damages for fraud. The Appellate Division modified the judgment, on the law, by

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dismissing the cause of action sounding in fraud and otherwise affirmed the judgment insofar as
is pertinent here.
The unique relationship between an attorney and client, founded in principle upon the elements
of trust and confidence on the part of the client and of undivided loyalty and devotion on the part
of the attorney, remains one of the most sensitive and confidential relationships in our society. A
relationship built upon a high degree of trust and confidence is obviously more susceptible to
destructive forces than are other less sensitive ones. It follows, then, that an attorney cannot
represent a client effectively and to the full extent of his or her professional capability unless the
client maintains the utmost trust and confidence in the attorney.
This philosophy engendered the development of the rule, now well rooted in our jurisprudence,
that a client may at anytime, with or without cause, discharge an attorney in spite of a
particularized retainer agreement between the parties. Moreover, we have held that since the
client has the absolute right on public policy grounds to terminate the attorney-client relationship
at any time without cause, it follows as a corollary that the client cannot be compelled to pay
damages for exercising a right which is an implied condition of the contract, and the attorney
discharged without cause is limited to recovering in quantum meruit the reasonable value of
services rendered. In Martin v. Camp, we stated that the rule "is well calculated to promote
public confidence in the members of an honorable profession whose relation to their clients is
personal and confidential".
To be sure, a deliberate misrepresentation of present intent made for the purpose of inducing
another to enter a contract will normally constitute actionable fraud if there is a reliance by the
party to whom the misrepresentation was made. It is equally well established, however, that a
cause of action will not be cognizable in the courts of this State when it is violative of strong
public policy.
The public policy of New York which permits a client to terminate the attorney-client relationship
freely at any time, notwithstanding the existence of a particularized retainer agreement between
the parties, would be easily undermined if an attorney could hold a client liable for fraud on the
theory that the client misrepresented his or her true intent when the retainer was executed.
When an attorney-client relationship deteriorates to the point where the client loses faith in the
attorney, the client should have the unbridled prerogative of termination. Any result which
inhibits the exercise of this essential right is patently unsupportable.
Additionally, as a matter of law, the element of reliance essential to a cause of action for
fraudulent misrepresentation of present intent cannot be established in this case. Given the rule
that a client may discharge an attorney without cause at any time, it is evident that appellants
could not rely upon Glantz's promise to substitute them as attorneys of record in the
condemnation proceeding any more than they could rely upon continued representation in the
event they had actually been substituted. Thus, an essential element of a claim of fraudulent
misrepresentation is conspicuously absent.

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Appellants argue that the result reached today enables unscrupulous clients to defraud their
attorneys with impunity. We do not agree. We have said that "the law does not permit the client
to cheat his attorney." Permitting an attorney improperly discharged to recover the reasonable
value of services rendered in quantum meruit, a principle inherently designed to prevent unjust
enrichment, strikes the delicate balance between the need to deter clients from taking undue
advantage of attorneys, on the one hand, and the public policy favoring the right of a client to
terminate the attorney-client relationship without inhibition on the other.
Questions:
1. If a client fires an attorney for actual or perceived incompetence, should the attorney be
able to recover in quantum meruit?
2. Many courts have held that a fired attorney may also recover a percentage of a
contingent fee. “The outgoing attorney may elect to take compensation on the basis of a
presently fixed dollar amount based upon quantum meruit for the reasonable value of
services or, in lieu thereof, the outgoing attorney has the right to elect a contingent
percentage fee based on the proportionate share of the work performed on the whole
case.” Lai Ling Cheng v. Modansky, 73 N.Y.2d 454 (1989). Do you agree with this
conclusion?
Woke Up New: Permissive Withdrawal
I wish there was something you would do or say, to try and make me change my mind and stay.
But we never did too much talking anyway. But don't think twice, it's all right.18
You can't open your mouth without telling a lie, but baby, you know how to say goodbye.19
On the morning when I woke up without you for the first time, I felt free and I felt lonely and I felt
scared.20
While it is easy for clients to end an attorney-client relationship, it can be harder for attorneys.
Model Rule 1.16(b) identifies several circumstances under which an attorney may end an
attorney-client relationship.
Of course, attorneys can end attorney-client relationships at will, when it will not harm their
clients. Model Rule 1.16(b)(1). But this exception is largely irrelevant, because clients typically
abhor reluctant attorneys, and clients who suffer no harm rarely file malpractice actions. Clients
who can afford another attorney say good riddance, and clients who cannot are harmed.
Attorneys can also end an attorney-client relationship if their client misbehaves. For example,
attorneys can end an attorney-client relationship if their client uses their legal advice to break
18

Bob Dylan, Don’t Think Twice, It’s Alright (1963).
Stephin Merritt, How to Say Goodbye, 69 Love Songs (1999).
20
The Mountain Goats, Woke Up New, Get Lonely (2006).
19

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the law. Attorneys can also end an attorney-client relationship based on irreconcilable
differences of opinion. And attorneys can end an attorney-client relationship if their client cannot
or will not pay for representation, or for any other “good reason.” Model Rule 1.16(b)(2-7).
However, attorneys cannot simply end an attorney-client relationship and walk away. They must
seek permission from the court, and cannot end an attorney-client relationship without the
court’s approval. If the court orders an attorney to continue representing a client, the attorney
must comply, even if the attorney has good cause to withdraw. Model Rule 1.16(c). Typically,
courts permit attorneys to withdraw only if they show that their client has retained other counsel
or refuses representation. If the court permits withdrawal, the attorney must make a reasonable
effort to protect the client’s interests. Among other things, the attorney must provide reasonable
notice of withdrawal to the client, transfer documents and property to the client, and refund any
unearned payments or fees. However, the attorney may retain documents relating to the client,
to the extent permitted by law.
It’s Not You, It’s Me: Mandatory Withdrawal
Are you out of love with me? Are you longing to be free? Do I drive you up a tree? Yeah! Oh,
yeah! Do I drive you up the wall? Do you dread every phone call? Can you not stand me at all?
Yeah! Oh, yeah!21
Under certain circumstances, attorneys must end an attorney-client relationship. Model Rule
1.16(a) provides that attorneys must withdraw if continued representation would cause a
violation of the rules of professional conduct or some other law, their physical or mental
condition materially impairs their ability to represent the client, or the client terminates
representation.
Obviously, attorneys cannot represent clients seeking legal advice in furtherance of a criminal
enterprise. For example, attorneys cannot provide legal advice that enables a client to commit
or perpetuate fraud. However, attorneys are not required to withdraw from representation simply
because their client suggests an improper or illegal action. Model Rule 1.16, Comment 2. On
the contrary, they should counsel their client against such action, and withdraw only if their client
insists on proceeding.
Attorneys also cannot represent a client if it would create a conflict of interest. If an attorney has
previously represented a client with interests adverse to those of a potential or current client, the
attorney must decline or withdraw from representation, unless the client can and does provide
informed consent to representation. In some cases, a conflict of interest may preclude informed
consent.
Attorneys must also withdraw from representation if their physical or mental state will materially
impair their ability to represent their client. Obviously, attorneys who incur serious physical or
21

Stephin Merritt, The Magnetic Fields, Yeah! Oh Yeah!, 69 Love Songs (1999).

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mental injuries may not be able to continue representing their clients. However, in some cases,
they may be subject to discipline.
Whiting v. Lacara, 187 F. 3d 317 (2d Cir. 1999)
Summary: Lacara appeals from two orders denying Lacara’s motion to withdraw as
counsel for Whiting. Lacara asserted that appellee had failed to follow legal advice, was
not focused on his legal rights, and demanded publicity against legal advice. Whiting
said he would not be opposed to a court order relieving counsel. Lacara asserts
permissive withdrawal. The court noted there are some instances in which an attorney
representing a plaintiff in a civil case might have to withdraw even at the cost of
significant interference with the trial court's management of its calendar. In reversing the
decision of the lower court, this court noted that Whiting intends to dictate how his action
is to be pursued. Whiting did not believe Lacara was the correct attorney for him. Based
on the oral argument, the court determined Lacara’s motion should be granted.
Garrett R. Lacara appeals from two orders of Judge Spatt denying Lacara's motions to withdraw
as counsel for plaintiff-appellee Joseph M. Whiting. Although the record before Judge Spatt
justified denial of the motions, amplification of Whiting's position at oral argument persuades us
to reverse.
In July 1996, appellee, a former police officer, filed a civil rights action against Nassau County,
the Incorporated Village of Old Brooksville, the Old Brooksville Police Department, other
villages, and various individual defendants. The action was based on the termination of his
employment as an officer. He sought $9,999,000 in damages.
Appellee's initial counsel was Jeffrey T. Schwartz. In October 1996, Robert P. Biancavilla
replaced Schwartz. A jury was selected in October 1997 but was discharged when Biancavilla
withdrew from the case with appellee's consent.
Whiting retained Lacara in December 1997. In June 1998, the district court partially granted
defendants' summary judgment motion and dismissed plaintiff's due process claims. The court
scheduled the remaining claims, one free speech claim and two equal protection claims, for a
jury trial on August 18, 1998. On July 20, 1998, the district court denied appellee's motion to
amend his complaint to add a breach of contract claim and another due process claim.
On August 6, 1998, Lacara moved to be relieved as counsel. In support, he offered an affidavit
asserting that appellee "had failed to follow legal advice," that appellee "was not focused on his
legal rights," and that appellee "demanded publicity against legal advice." Lacara also asserted
that appellee had failed to keep adequate contact with his office, was "not sufficiently thinking
clearly to be of assistance at the time of trial," and would "be of little or no help during trial."
Furthermore, Lacara stated that appellee had "demanded that Lacara argue collateral issues
which would not be allowed in evidence," demanded that Lacara continue to argue a due
process claim already dismissed by the court, and drafted a Rule 68 Offer without Lacara's

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consent and demanded that he serve it on defendants. Finally, Lacara asserted that on July 30,
1998, Whiting had entered his office and, without permission, had “commenced to riffle Lacara's
‘in box.’” Lacara stated that he had to call 911 when Whiting had refused to leave the office.
Lacara offered to provide further information to the court in camera. Whiting's responsive
affidavit essentially denied Lacara's allegations. Whiting stated that he would not be opposed to
an order relieving counsel upon the condition that Lacara's firm refund the legal fees paid by
Whiting.
On August 13, Judge Spatt denied Lacara's motion to withdraw as counsel. Judge Spatt
subsequently issued a written order giving the reasons for denying appellant's motion.
On August 13, 1998, Lacara filed a notice of appeal and moved for an emergency stay of the
district court's order and to be relieved as appellee's attorney. We granted Lacara's motion for
an emergency stay pending appeal but denied his request for relief on the merits at that time. At
a status conference on September 23, 1998, the district court entertained another motion from
Lacara to withdraw as counsel, which Judge Spatt again denied. Lacara filed a timely appeal,
which was consolidated with the earlier appeal.
Judge Spatt denied Lacara's motion pursuant to Rule 1.4 of the Civil Rules of the United States
District Court for the Southern and Eastern Districts of New York, which provides that:
an attorney who has appeared as attorney of record for a party may be relieved or
displaced only by order of the court and may not withdraw from a case without leave of
the court granted by order. Such an order may be granted only upon a showing by
affidavit or otherwise of satisfactory reasons for withdrawal or displacement and the
posture of the case, including its position, if any, on the calendar.
In addressing motions to withdraw as counsel, district courts have typically considered whether
“the prosecution of the suit is likely to be disrupted by the withdrawal of counsel.”
Considerations of judicial economy weigh heavily in favor of our giving district judges wide
latitude in these situations, but there are some instances in which an attorney representing a
plaintiff in a civil case might have to withdraw even at the cost of significant interference with the
trial court's management of its calendar. For example, the Code of Professional Responsibility
might mandate withdrawal where "the client is bringing the legal action merely for the purpose of
harassing or maliciously injuring" the defendant. In such a situation, by denying a counsel's
motion to withdraw, even on the eve of trial, a court would be forcing an attorney to violate
ethical duties and possibly to be subject to sanctions.
Lacara does not claim that he faces mandatory withdrawal. Rather, he asserts three bases for
"permissive withdrawal" under the Model Code: (i) Whiting "insists upon presenting a claim or
defense that is not warranted under existing law and cannot be supported by good faith
argument for an extension, modification, or reversal of existing law"; (ii) Whiting's "conduct has
rendered it unreasonably difficult for Lacara to carry out employment effectively"; and (iii)

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Whiting has "deliberately disregarded an agreement or obligation to Lacara as to expenses or
fees." Although the Model Code "was drafted solely for its use in disciplinary proceedings and
cannot by itself serve as a basis for granting a motion to withdraw as counsel," we continue to
believe that "the Model Code provides guidance for the court as to what constitutes ‘good
cause' to grant leave to withdraw as counsel." However, a district court has wide latitude to deny
a counsel's motion to withdraw, as here, on the eve of trial, where the Model Code merely
permits withdrawal.
In the instant matter, we would be prepared to affirm if the papers alone were our only guide.
Although Lacara has alleged a nonpayment of certain disputed fees, he has not done so with
sufficient particularity to satisfy us that withdrawal was justified on the eve of trial. Moreover,
there is nothing in the district court record to suggest error in that court's finding that "Whiting
has been very cooperative and desirous of assisting his attorney in this litigation." To be sure,
we are concerned by Lacara's allegation that appellee trespassed in his office and that
appellant had to call 911 to get Whiting to leave. However, Whiting disputes Lacara's
description of these events. Moreover, we strongly agree with the district court that, as the third
attorney in this case, Lacara had ample notice that appellee was a difficult client.
Nevertheless, we reverse the denial of appellant's motion for withdrawal. Among Lacara's
allegations are that Whiting insisted upon pressing claims already dismissed by the district court
and calling witnesses Lacara deemed detrimental to his case. At oral argument, Whiting
confirmed Lacara's contention that Whiting intends to dictate how his action is to be pursued.
Whiting was asked by a member of the panel:
Are you under the impression that if we affirm Judge Spatt's ruling, you will be able to tell
Mr. Lacara to make the arguments you want made in this case? That, if Mr. Lacara says,
"That witness doesn't support your case," and you don't agree with that, are you under
the impression that if we affirm Judge Spatt's ruling you'll be able to force him to call that
witness?
To which Whiting replied, "Yes I am."
Moreover, in his statements at oral argument, Whiting made it clear that he was as interested in
using the litigation to make public his allegations of corruption within the Brookville police
department as in advancing his specific legal claims. For example, Whiting thought it relevant to
inform us at oral argument that police officers in the department were guilty of "illegal drug use,
acceptance of gratuities, and ongoing extramarital affairs while they were on duty." Appellee
stated that he wanted to call an officer to testify that the officer could not "bring up anything
criminal about the lieutenant, the two lieutenants, or the chief, which could get them in trouble or
make the department look bad." Finally, Whiting made clear that he disagreed with Lacara
about the handling of his case partly because Whiting suspects that Lacara wants to cover up
corruption. Appellee stated: "For some strange reason, Mr. Lacara states that he doesn't want
to put certain witnesses on the stand. The bottom line is he does not want to make waves and
expose all of the corruption that's going on within this community."

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Also, at oral argument, appellee continued to bring up the already-dismissed due process
claims. He asserted: "They found me guilty of something which was investigated by their
department on two separate occasions and closed as unfounded on two separate occasions."
We thus have good reason to conclude that Whiting will insist that Lacara pursue the already
dismissed claims at trial.
Finally, appellee indicated that he might sue Lacara if not satisfied that Lacara provided
representation as Whiting dictated. After admitting that he did not consider Lacara to be the
"right attorney" for him in this case, Whiting asserted that he deemed Lacara "ineffective." The
following exchange also occurred:
Question from Panel: If you think that Mr. Lacara is ineffective in representing you as
you stand here now, doesn't Mr. Lacara face the prospect of a malpractice suit, by you,
against him, if he continues in the case?
Appellee's Reply: Yes, I believe he absolutely does.
Question from Panel: Then, isn't that all the more reason to relieve him? So that what
you say is ineffective and is in effect a distortion of the attorney-client relationship,
doesn't continue?
Appellee's Reply: I believe I do have grounds to sue Mr. Lacara for misrepresentation ....
We believe that appellee's desire both to dictate legal strategies to his counsel and to sue
counsel if those strategies are not followed places Lacara in so impossible a situation that he
must be permitted to withdraw.
Attorneys have a duty to the court not to make "legal contentions unwarranted by existing law or
by a nonfrivolous argument for the extension, modification, or reversal of existing law." We have
determined that "an attorney who continues to represent a client despite the inherent conflict of
interest in his so doing due to possible Rule 11 sanctions risks an ethical violation." In this case,
appellee's belief that he can dictate to Lacara how to handle his case and sue him if Lacara
declines to follow those dictates leaves Lacara in a position amounting to a functional conflict of
interest. If required to continue to represent Whiting, Lacara will have to choose between
exposure to a malpractice action or to potential Rule 11 or other sanctions. To be sure, such a
malpractice action would have no merit. However, we have no doubt it would be actively
pursued, and even frivolous malpractice claims can have substantial collateral consequences.
As previously noted, the interest of the district court in preventing counsel from withdrawing on
the eve of trial is substantial. Moreover, we would normally be loath to allow an attorney to
withdraw on the eve of trial when the attorney had as much notice as did Lacara that he was
taking on a difficult client. However, the functional conflict of interest developed at oral argument
causes us to conclude that the motion to withdraw should be granted.

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We therefore reverse and order the district court to grant appellant's motion to withdraw as
counsel. We note that Lacara agreed in this court to waive all outstanding fees and to turn over
all pertinent files to Whiting.
Questions:
1. Why did Lacara claim permissive withdrawal, rather than mandatory withdrawal?
2. Why did the district court deny Lacara’s motion to withdraw? Why did the circuit court
reverse?
3. How serious is the risk of Rule 11 sanctions? Is there a real conflict of interest?
4. Will Whiting be able to retain new counsel? If not, will he have to proceed pro se?
Both Sides Now: Effective Withdrawal
Sometimes an attorney-client relationship doesn’t really end, but just fades away. Often, an
attorney represents a client in a matter and the client has no need for further representation. For
example, an attorney may represent a client in relation to a particular transaction or dispute, like
the purchase of a home or an automobile accident. Ideally, the attorney and client will have
formed an agreement, specifying the scope of representation, in which case the attorney-client
relationship typically ends when the matter is concluded. But occasionally they may not, by
accident or design. In that case, the attorney-client relationship still typically ends when the
matter is concluded, although it may be less certain. Restatement (Third) of the Law Governing
Lawyers § 31(2)(e) (2000).
In other cases, an attorney may have a long-term relationship with a client that gradually peters
out over time. In that case, it may be hard to know whether and when the attorney-client
relationship has ended. Worse, the attorney and client may disagree. An attorney may believe
the relationship continues, only to be surprised when the client returns bills unpaid. And a client
may believe the relationship continues, only to be surprised when the attorney ignores the
client’s affairs.
Generally, an attorney-client relationship continues to exist so long as a reasonable client would
believe that it continues to exist. If an attorney wants to end an attorney-client relationship, the
attorney should explicitly inform the client in writing that it has ended, and return any documents
or property that belongs to the client. But attorneys are often reluctant to end long-term attorneyclient relationships, in the hope that the client will eventually return and provide more business.
In that case, courts will ask whether a reasonable client would believe that an attorney-client
relationship continued to exist under the circumstances.
Forever & a Day: Duties After Withdrawal
Under Model Rule 1.16(d), an attorney who withdraws from representing a client has a duty to
minimize any potential harm to the client. Among other things, the attorney must provide
reasonable notice of withdrawal, return any documents or other property that belongs to the

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client, and refund any unearned fees or payments. However, some attorney work product may
belong to the attorney, and some states permit attorneys to retain the client’s property until the
client pays any outstanding fees.
However, the attorney also has a permanent duty of confidentiality to former clients.
Further Reading:

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2.3: The Attorney as Agent
The attorney-client relationship is a principal-agent relationship. The client is the principal and
the attorney is the client’s agent. But it is a unique form of principal-agent relationship, because
the client’s ability to control the attorney’s exercise of agency is limited, and because the
attorney has duties not only to the client, but also to the court and the public.
Professional Relationships
In this respect, the attorney-client relationship resembles other professional relations. In the
doctor-patient relationship, patients decide whether to seek treatment, but doctors decide how
to provide treatment. In the professor-student relationship, students decide whether to attend
school, but professors decide what to teach. And in the priest-penitent relationship, priests have
duties not only to the penitent, but also to God.
In an attorney-client relationship, the client decides the objectives, but the attorney decides the
means. The client decides how much authority to delegate to the attorney, and retains the right
to make all major decisions, but cannot dictate all of the attorney’s actions. The attorney is
entitled and required to exercise independent judgment about how to achieve the client’s goals.
For example, in a contract negotiation, the client is entitled to decide the key terms, but the
attorney must decide how to achieve them. In civil litigation, the client is entitled to decide
whether to settle, but the attorney must decide whether to assert a particular claim or defense.
And in criminal litigation, the client is entitled to decide whether to plead guilty, but the attorney
must decide which witnesses to call and how to conduct cross-examination.
Moreover, in an attorney-client relationship, the attorney not only has a duty to protect the
interests of the client, but also has a duty to protect the interests of the court and the public. An
attorney is an agent of both the client and the court. In theory, while attorneys must pursue the
interests of their clients, they also must not mislead the court, or allow their clients to lie to the
court. Of course, in practice, this is often easier said than done.
Attorneys as Agents
As agents of their clients, attorneys often have the authority to act on behalf of their clients, but
it may take the form of express, implied, or apparent authority.
●

●

Express Authority: When an attorney acts pursuant to authority explicitly granted by
the client. For example, clients can grant express authority to an attorney in an
engagement letter or later instructions.
Implied Authority: When an attorney acts pursuant to authority necessarily granted by
the attorney-client relationship. For example, attorneys have implied authority to exercise
discretion in implementing the instructions of their clients.

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●

Apparent Authority: When an attorney acts pursuant to authority delegated by the
client and an opposing party relies on the delegation, especially when the authority is
normally reserved to the client. For example, if a client delegates the authority to
approve a final settlement, and an opposing party relies on the delegation, the attorney
may have apparent authority, even though the decision to approve a final settlement is
normally reserved to the client.

When attorneys act pursuant to express, implied, or apparent authority, their actions bind their
clients. But when attorneys act without authority, their actions are ultra vires, and may not be
binding. Of course, when attorneys act without authority, they may also be liable for malpractice.
Attorneys as Fiduciaries
A friendship founded on business is better than a business founded on friendship.22
The attorney-client relationship is unusual because attorneys are fiduciaries of their clients. A
fiduciary is a person who holds a legal duty of trust with another party, or “principal.” A fiduciary
duty is the highest standard of care. As Cardozo famously explained, a fiduciary “is held to
something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an
honor the most sensitive, is then the standard of behavior.” Meinhard v. Salmon, 249 N.Y. 458
(1928). Accordingly, fiduciaries must act only for the sole benefit and interest of the principal,
and must put the interests of the principal above their own interests.
As fiduciaries, attorneys have a legal duty to act only in the interests of their clients, and to put
the interests of their clients above their own interests. Accordingly, attorneys may never form a
relationship that would create a conflict of interest with a current or former client, without the
client’s informed consent.
Model Rule 1.2: Scope of Representation & Allocation of Authority Between Client &
Lawyer
a. Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning
the objectives of representation and, as required by Rule 1.4, shall consult with the client
as to the means by which they are to be pursued. A lawyer may take such action on
behalf of the client as is impliedly authorized to carry out the representation. A lawyer
shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer
shall abide by the client's decision, after consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and whether the client will testify.
b. A lawyer's representation of a client, including representation by appointment, does not
constitute an endorsement of the client's political, economic, social or moral views or
activities.

22

John D. Rockefeller.

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c. A lawyer may limit the scope of the representation if the limitation is reasonable under
the circumstances and the client gives informed consent.
d. A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences
of any proposed course of conduct with a client and may counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or application of the
law.
Restatement (Third) of the Law Governing Lawyers, Introductory Note (2000)
Traditionally, some lawyers considered that a client put affairs in the lawyer's hands, who then
managed them as the lawyer thought would best advance the client's interests. So conducting
the relationship can subordinate the client to the lawyer. The lawyer might not fully understand
the client's best interests or might consciously or unconsciously pursue the lawyer's own
interests. An opposite view of the client-lawyer relationship treats the lawyer as a servant of the
client, who must do whatever the client wants limited only by the requirements of law. That view
ignores the interest of the lawyer and of society that a lawyer practice responsibly and
independently.
A middle view is that the client defines the goals of the representation and the lawyer
implements them, but that each consults with the other. Except for certain matters reserved for
client or lawyer to decide, the scope of the lawyer's authority is itself one of the subjects for
consultation, with room for the client's wishes and the parties' contracts to modify the
traditionally broad delegation of authority to the lawyer. This approach, accepted in this
Restatement, permits a variety of allocations of authority.
Restatement (Third) of the Law Governing Lawyers § 20 (2000)
1. A lawyer must keep a client reasonably informed about the matter and must consult with
a client to a reasonable extent concerning decisions to be made by the lawyer under §§
21- 23.
2. A lawyer must promptly comply with a client's reasonable requests for information.
3. A lawyer must notify a client of decisions to be made by the client under §§ 21- 23 and
must explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
Restatement (Third) of the Law Governing Lawyers § 21 (2000)
As between client and lawyer:
1. A client and lawyer may agree which of them will make specified decisions, subject to
the requirements stated in §§ 18, 19, 22, 23, and other provisions of this Restatement.
The agreement may be superseded by another valid agreement.
2. A client may instruct a lawyer during the representation, subject to the requirements
stated in §§ 22, 23, and other provisions of this Restatement.

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3. Subject to Subsections (1) and (2) a lawyer may take any lawful measure within the
scope of representation that is reasonably calculated to advance a client's objectives as
defined by the client, consulting with the client as required by § 20.
4. A client may ratify an act of a lawyer that was not previously authorized.
L.F.S. Corp. v. Kennedy, 337 S.E.2d 209 (S.C. 1985)
Summary: Kennedy represented L.F.S. in an action against the Town of Kershaw.
Kennedy settled the action and L.F.S. accepted the settlement, but later objected to
Kennedy settling without its consent. The court held that L.F.S. ratified Kennedy’s
actions by accepting the settlement.
GREGORY, Justice:
In this legal malpractice action, appellant L.F.S. Corporation appeals from the grant of
respondents’ motion for non-suit. We affirm.
Appellant raises numerous issues by twenty-four exceptions; however, we need only reach one
issue which moots those remaining.
L.F.S. began planning a subdivision called Havenwood in 1964. In the early 1970's, a dispute
arose with the Town of Kershaw concerning the town's obligation to supply water to the
subdivision under an alleged oral contract. Respondents were retained to represent the
Corporation.
The gravamen of appellant’s complaint is that respondents failed to follow instructions
concerning settlement negotiations, and permitted summary judgment to be entered based on
an unauthorized agreement. Notwithstanding respondents' alleged failure to follow instructions,
the record clearly demonstrates L.F.S. subsequently ratified respondents’ actions.
After entry of the disputed 1976 order, the town remitted $900.00 in tap fees to the Corporation
pursuant to the order. The check was accepted by the Corporation, and endorsed over to
respondents to be applied against legal fees owned by the Corporation. Thereafter, one of the
Corporation's directors wrote a letter to respondents seeking advice concerning enforcement of
the order.
The events subsequent to the 1976 order clearly demonstrate L.F.S. ratified respondents’
actions concerning entry of the order. The Corporation accepted financial benefit under the
order, and sought to take advantage of the order. Acceptance of both benefits are clear,
unequivocal acts of ratification.
Questions:
1. Did Kennedy have authority to agree to the settlement?

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2. If not, why did the court affirm the settlement?
Morris v. Ohio Cas. Ins. Co., 35 Ohio St. 3d 45 (Ohio 1988)
Summary: James Whitney represented an estate insured by Ohio Casualty Insurance,
which issued settlement checks to Whitney, payable to the estate. Someone
typographically endorsed the checks and deposited them in Whitney’s office account.
The court held that the endorsements were invalid, because Whitney lacked any
authority to endorse the checks.
DOUGLAS, J.
The sole question posed for our consideration is whether an insurance carrier may be liable for
conversion when the carrier authorizes its bank to pay a draft over a forged endorsement. We
answer the question in the affirmative and, accordingly, uphold the decision of the court of
appeals.
Initially, appellant asks this court to find that its payment to James Whitney, the attorney for the
estate and guardianship, constituted payment to the estate and guardianship. Accordingly,
appellant would have us hold that appellant's obligation to the estate and guardianship was
discharged when appellant both delivered the drafts in question to the agent of the estate and
the guardianship, and then authorized payment of such drafts to the same party. We decline to
make such a finding in this case.
In essence, appellant asks this court to determine whether an attorney has the inherent power
to endorse a settlement check on behalf of his client. If so, appellant would be discharged from
its obligation to the estate and guardianship; if not, appellant's obligation remains unpaid and
owing. We find both that an attorney has no inherent authority to endorse a settlement check in
the name of his client, and that, on the basis of the record before us, attorney Whitney made no
such endorsement in this case.
In Ohio, as elsewhere, "an attorney who is without special authorization has no implied or
apparent authority, solely by virtue of his general retainer, to compromise and settle his client's
claim or cause of action." Similarly, an attorney has no inherent authority to enter into a contract
for the sale of real estate for his client. While this court has not previously addressed whether an
attorney may endorse his client's name on a check or draft tendered to effect a settlement,
numerous other courts have done so. The clear majority of these courts find that no such
authority exists. Therefore, while we recognize that the decisions on this question are in conflict,
we believe that the better rule is that an attorney possesses no inherent authority, arising solely
from the attorney-client relationship, to endorse his client's name on a settlement check or draft.
The authority to receive a negotiable instrument on behalf of a client does not imply the power
to endorse it.

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Accordingly, we hold that an attorney, absent any express authority from his client, has no
authority to endorse the client's name on a check or draft tendered to effect a settlement.
Further, contrary to appellant’s contention that attorney Whitney properly endorsed and
deposited the drafts into his escrow account, the only admissible evidence in the record,
Whitney’s affidavit, reflects that Whitney endorsed neither draft and that the drafts were
deposited into one of Whitney's general office accounts. Further, even assuming that Whitney
endorsed the drafts, an “unauthorized signature” includes both a forgery and a signature made
by an agent exceeding his actual or apparent authority. Thus, given our finding that attorneys
have no inherent authority to endorse their client’s name to a settlement draft, and the
undisputed fact that there was no apparent or actual authority vested in Whitney to endorse the
drafts herein, Whitney’s endorsements, had he made any, would be unauthorized and
appellant's obligation to the estate and guardianship would remain in effect.
The endorsements at issue herein were typewritten and restrictive in character. While such
endorsements may, at times, be valid, we find that the endorsements at issue herein were
unauthorized and thus not valid to operate as the signature of either the administrator or the
guardian, the payees thereon.
An “‘unauthorized’ signature or indorsement is one made without actual, implied, or apparent
authority and includes a forgery.” Further, an "unauthorized signature is wholly inoperative as
that of the person whose name is signed unless he ratifies it or is precluded from denying it; but
it operates as the signature of the unauthorized signer in favor of any person who in good faith
pays the instrument or takes it for value.” Thus, an unauthorized signature does not operate as
the signature of the named payee and, accordingly, may not act to pass title to an instrument or
relieve the drawer of his obligation to pay the payee.
In the instant case, appellees presented the sworn affidavits of attorney Whitney, Orin Morris
and Tom Swope. These affidavits established that Whitney did not endorse the drafts at issue,
and that Morris and Swope neither signed nor authorized anyone else to sign these drafts.
Further, Morris and Swope are the only parties who possessed the authority to authorize an
agent to sign on their behalf. Moreover, appellant has failed, through the use of any admissible
evidence, to refute the statements contained in the affidavits. Accordingly, the endorsements
appearing on the second and third drafts, No. X559281 and No. X559280, were unauthorized
and the payment of the drafts, as endorsed, constituted a conversion.
Appellant authorized the payment of the drafts. Even though the appellant was the original
drawer, appellant was also the drawee for purposes of liability.
We, therefore, affirm the judgment of the court of appeals and remand the cause to the trial
court for determination of the currently pending claims.
Questions:

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●
●
●

Why did the insurance company pay the checks?
Why did the court hold that payment was improper?
What should the insurance company have done?

Makins v. District of Columbia, 861 A. 2d 590 (D.C. 2004)
Summary: John Harrison represented Brenda Makins in a discrimination action against
the District of Columbia. Harrison attended a settlement conference, reached an
agreement, left the room to call Makins, and finalized the agreement when he returned.
But Makins later refused to sign the agreement, claiming that she had refused to settle
without reinstatement. The District of Columbia tried to enforce the settlement
agreement, but the court refused, holding that Harrison lacked apparent authority to
accept the settlement offer.
NEBEKER, Senior Judge:
The United States Court of Appeals for the District of Columbia Circuit has certified the following
question to this court:
Under District of Columbia law, is a client bound by a settlement agreement negotiated
by her attorney when the client has not given the attorney actual authority to settle the
case on those terms but has authorized the attorney to attend a settlement conference
before a magistrate judge and to negotiate on her behalf and when the attorney leads
the opposing party to believe that the client has agreed to those terms.
For reasons set forth below, we answer the question in the negative. In so doing, we confine our
analysis to the undisputed facts and those recited in the certified question.
In November 1998, Brenda Makins, represented by John Harrison, Esquire, brought an action
against the District of Columbia in the United States District Court for the District of Columbia
claiming sex discrimination and retaliatory firing. Makins had been employed in the District's
Department of Corrections from 1995 until her discharge in 1997. Her complaint sought
reinstatement, compensatory damages, and attorney's fees.
In the summer of 2000, at a pre-trial conference, the district judge referred Makins' case to a
magistrate judge “for settlement purposes only” and ordered the District to “have present at all
settlement meetings an individual with full settlement authority.” A similar admonition was
absent as to Ms. Makins. A few days later, the magistrate ordered the “lead attorney(s) for the
parties” to appear before him for a settlement conference; the order required that the “parties
shall either attend the settlement conference or be available by telephone for the duration of the
settlement conference.”
When the conference took place, Makins was not present. After two and a half hours of
negotiations, Harrison and the attorneys for the District reached an agreement. Makins would

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receive $99,000 and have her personnel records amended from “discharged” to “resigned” (to
preserve her retirement benefits if she were able to obtain other creditable employment). In
return, Makins would dismiss her claims against the District. Mr. Harrison left the hearing room
with cell phone in hand, apparently to call Ms. Makins. When he returned, the attorneys “shook
hands” on the deal and later reduced it to writing. A few days later, when Harrison presented
Makins with a copy for her signature, she refused to sign it. The District then filed a Motion to
Enforce Settlement. Makins retained another attorney, and the court held an evidentiary hearing
in which Harrison, Makins, and the lead attorney for the District testified.
The testimony of Makins and Harrison was at odds respecting whether Harrison had been given
authority to settle absent a provision for her reinstatement to her job. The District Court,
observing this “sharp conflict” in testimony, declined to resolve it. Instead, the court assumed
arguendo that Harrison did not have actual authority to settle the case short of reinstatement.
The court granted the District's motion to enforce the settlement on the alternative ground that
Harrison had apparent authority to bind Makins to the agreement. The court saw “no justification
for the District of Columbia not to reasonably believe that Mr. Harrison had the full confidence
and authority of his client.”
There is arguably some inconsistency as to the extent of authority required of an attorney in
settlement negotiations. Indeed, a review of relevant case law and principles enunciated by the
American Bar Association and the American Law Institute demonstrate some differences not
only over the extent of authority, but also the appropriate definitions of authority. To the extent
that there tends to be this inconsistency among the cases, it reflects, in part, a difference in the
application or integration of agency law with legal ethics principles, the attorney-client
relationship and policy considerations.
This dissonance may in part be seen as a result of the intersection of ethical guidelines and
rules governing the client-lawyer relationship and the relationship of a principal to her agent in
the context of settlement agreements. On the one hand, the District of Columbia Code of
Professional Responsibility Ethical Consideration 7-7 provides that it is the exclusive authority of
“the client to decide whether [s]he will accept a settlement offer." Similarly, District of Columbia
Rule of Professional Conduct 1.2(a) provides that a “lawyer shall abide by a client's decision
whether to accept an offer of settlement of a matter.” On the other hand, “it is well established
that settlement agreements are entitled to enforcement under general principles of contract
law.” Agency principles are applied to determine whether the attorney or agent had authority to
bind his principal to the settlement contract. Of course, an attorney can settle his client's case if
he or she has actual authority to do so. Agency principles also recognize the authority of the
agent to bind the client based on the doctrine of apparent authority.
The Restatement (Second) of Agency § 8 defines apparent authority as “the power to affect the
legal relations of another person by transactions with third persons, professedly as an agent for
the other, arising from and in accordance with the other's manifestations to such third persons.”
Thus, unlike actual authority, apparent authority does not depend upon any manifestation from
the principal to her agent, but rather from the principal to the third party. This court has stated

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that apparent authority arises when a principal places an agent “in a position which causes a
third person to reasonably believe the principal had consented to the exercise of authority the
agent purports to hold. This falls short of an overt, affirmative representation by a principal.” In
such circumstances, an agent's representations need not expressly be authorized by his
principal. The apparent authority of an agent arises when the principal places the agent in such
a position as to mislead third persons into believing that the agent is clothed with the authority
which in fact he does not possess. Apparent authority depends upon “the third-party's
perception of the agent's authority.” The third party's perception may be based upon “written or
spoken words or any other conduct of the principal which, reasonably interpreted, causes the
third person to believe that the principal consents to have the act done on her behalf by the
person purporting to act for her."
We reiterate that apparent authority is an established doctrine in this court's jurisprudence, and
that settlement agreements are enforceable under general contract principles. But because
apparent authority depends upon the principal's manifestations to the third party, the issue
before us is what conduct by a client in the settlement context is sufficient reasonably to cause a
third person to believe that the attorney representing the client has full, final settlement
authority, rather than something short of that. Whether an agent had apparent authority is a
question of fact and the party asserting the existence of apparent authority must prove it. In
determining whether the agent had apparent authority to bind the principal, "consideration
should be given, inter alia, to the actual authority of the agent, the usual or normal conduct of
the agent in the performance of his or her duties, previous dealings between the agent and the
party asserting apparent authority, any declarations or representations allegedly made by the
agent, and lastly, the customary practice of other agents similarly situated." We take as a given
that a third party in the shoes of the District of Columbia would reasonably assume that Makins
had authorized attorney Harrison (1) to attend the settlement conference, and (2) to negotiate
on her behalf; neither Makins nor amicus contends otherwise. We hold, however, that absent
further manifestations by Makins — not Harrison — which are not contained in the certified
question, there was insufficient conduct by the client to support a reasonable belief by the
District that Harrison had full and final authority to agree to the settlement terms.
As pointed out, in the District of Columbia the decision to settle belongs to the client, a fact
confirmed by our decisions.
The RESTATEMENT (THIRD) further confirms the generally accepted distinction between the
power to conduct negotiations and the power to end the dispute. Conducting settlement
negotiations is properly in the attorney's domain: "in the absence of a contrary agreement or
instruction, a lawyer normally has authority to initiate or engage in settlement discussions,
although not to conclude them." Concluding those settlement negotiations, however, is strictly
the client's prerogative: "the decision to settle is reserved to the client because a settlement
definitively disposes of client rights."
These ethical principles are key to the issue before us, because they not only govern the
attorney-client relationship, they inform the reasonable beliefs of any opposing party involved in

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litigation in the District of Columbia, as well as the reasonable beliefs of the opposing party's
counsel, whose practice is itself subject to those ethical constraints. It is the knowledge of these
ethical precepts that makes it unreasonable for the opposing party and its counsel to believe
that, absent some further client manifestation, the client has delegated final settlement authority
as a necessary condition of giving the attorney authority to conduct negotiations. And it is for
this reason that opposing parties — especially when represented by counsel, as here — must
bear the risk of unreasonable expectations about an attorney's ability to settle a case on the
client's behalf. “When a lawyer purports to enter a settlement binding on the client but lacks
authority to do so, the burden of inconvenience resulting if the client repudiates the
unauthorized settlement is properly left with the opposing party, who should know that
settlements are normally subject to approval by the client and who has received no manifested
contrary indication from the client.”
Applying these principles, we conclude that the two client manifestations contained in the
certified question — sending the attorney to the court-ordered settlement conference and
permitting the attorney to negotiate on the client's behalf — were insufficient to permit a
reasonable belief by the District that Harrison had been delegated authority to conclude the
settlement. Some additional manifestation by Makins was necessary to establish that she had
given her attorney final settlement authority, a power that goes beyond the authority an attorney
is generally understood to have. The District, in its briefs, points only to actions and
representation of record by Harrison, not Makins, as support for the reasonableness of its belief.
Thus, it asserts that “Mr. Harrison represented that Ms. Makins was available by telephone and
that he would consult with her when appropriate”; that “Mr. Harrison spoke on his cell phone
with plaintiff at least three times during the conference”; and that “at one point, Mr. Harrison left
the room to phone plaintiff about the defendant's latest settlement proposal, and returned,
phone in hand, to accept the proposal with one new condition regarding amendment of
personnel forms.” All of this information (including information purportedly about the client,
Makins) was known to the District of Columbia only through representations made by Harrison,
the attorney. As the Circuit Court stated in certifying the question to us: “Neither the District nor
the magistrate ever heard from Makins, in person or by telephone. What the District derives
from the telephone calls between Makins and Harrison amounts to nothing more than Harrison's
representations of — and the District's educated guesses about — what was said in private
between them, a disputed factual question the district court did not resolve.” Harrison's conduct
and representations about his own authority, in short, are not dispositive to whether Makins
herself furnished the basis for a reasonable belief that he was authorized to conclude the
settlement.
At the en banc argument, counsel for the District characterized the record as showing that
Makins “sent” Harrison to the settlement conference, thus manifesting to the court and the
District his apparent authority to settle her claim. But Makins had little choice, short of
discharging Harrison, except to allow him to continue to represent her in the negotiations at the
ordered conference. To execute a settlement agreement then and there is quite another matter.

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Since Ms. Makins, as principal, did not make any manifestation of authority to the District's
attorneys, other than retaining Harrison, under the facts as certified in the question, a finding of
apparent authority is precluded under the law of this jurisdiction. The District also presents
several policy arguments supporting enforcement of settlement agreements on apparent
authority grounds, none of which we find compelling. To be sure, settlement of disputes, both in
trial courts and on appeal, is to be encouraged as sound public policy. However, we are not
persuaded that the settlement process will be impeded simply by requiring some manifestation
of the client's authorization to support a claim of apparent authority in these cases where the
client challenges the authority of his attorney to settle the claim. In addition, “apparent authority
is an equitable doctrine that places the loss on one whose manifestations to another have
misled the latter." Our holding is consistent with this principle. Since Makins manifested nothing
by words or conduct on which reliance could be placed (she merely continued to retain
Harrison), our answer to the certified question is not erosive to that policy.
We answer the certified question in the negative.
Question:
●
●
●

What kind of authority did the District of Columbia claim the attorney had? Why was it
insufficient?
What if Makins actually agreed to the settlement, but then had second thoughts
What is the purpose of “apparent authority”? Under the standard adopted by the court, is
it possible for an attorney to exercise apparent authority?

Further Reading:

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2.4: Client as Principal
I planned each charted course, each careful step along the byway. And more, much more than
this, I did it my way.23
Decisions Reserved to Clients
As the principal, the client has the sole authority to make certain important decisions about their
legal representation. Model Rule 1.2(a) provides that an attorney must respect a client’s
decisions about the goals of representation and consult with the client about the means of
achieving those goals. It also identifies particular decisions that are reserved to the client,
specifically the decision whether to settle in a civil case, and the decisions how to plead,
whether to waive jury trial, and whether to testify in a criminal case.
However, attorneys retain considerable discretion to make decisions about how to pursue
representation, so long as those decisions are consistent with the client’s decisions, and
implicitly authorized by the client as necessary to representation. In other words, the client is
entitled to specify the goals of representation, but not to control the attorney’s every decision in
pursuit of those goals.
Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer
a. A lawyer shall abide by a client’s decisions concerning the objectives of representation
and shall consult with the client as to the means by which they are to be pursued. A
lawyer may take such action on behalf of the client as is impliedly authorized to carry out
the representation. A lawyer shall abide by a client's decision whether to settle a matter.
In a criminal case, the lawyer shall abide by the client's decision, after consultation with
the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client
will testify.
Restatement (Third) of the Law Governing Lawyers § 22 (2000)
1. As between client and lawyer, subject to Subsection (2) and § 23, the following and
comparable decisions are reserved to the client except when the client has validly
authorized the lawyer to make the particular decision: whether and on what terms to
settle a claim; how a criminal defendant should plead; whether a criminal defendant
should waive jury trial; whether a criminal defendant should testify; and whether to
appeal in a civil proceeding or criminal prosecution.
2. A client may not validly authorize a lawyer to make the decisions described in
Subsection (1) when other law (such as criminal-procedure rules governing pleas, jurytrial waiver, and defendant testimony) requires the client's personal participation or
approval.
23

Paul Anka, My Way (1967).

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3. Regardless of any contrary contract with a lawyer, a client may revoke a lawyer's
authority to make the decisions described in Subsection (1).
Restatement (Third) of the Law Governing Lawyers § 23 (2000)
As between client and lawyer, a lawyer retains authority that may not be overridden by a
contract with or an instruction from the client:
1. to refuse to perform, counsel, or assist future or ongoing acts in the representation that
the lawyer reasonably believes to be unlawful;
2. to make decisions or take actions in the representation that the lawyer reasonably
believes to be required by law or an order of a tribunal.
Bronson v. Borst, 404 A. 2d 960 (D.C. App. 1979)
Summary: Bronson hired Borst to be his attorney to help him recover money from a car
accident. Borst negotiated a $6,000 settlement, but Bronson clearly told him not to
accept it. After multiple failed attempts at communication, including a letter suggesting
that Bronson find a new attorney if he does not accept the settlement, Borst accepted
the settlement a day before the statute of limitations ran without Bronson’s permission.
The Superior Court enforced the settlement through a declaratory judgment, agreeing
with Borst’s reasoning that if he did not accept the settlement Bronson would have lost
all chance of recovery, and accepting the settlement was a reasonable and justified step
in representing his client well. The Appellate Court reversed, stating that regardless of
the good faith of the attorney, absent specific authority, an attorney cannot accept a
settlement offer on behalf of a client, and a client is not bound by settlements accepted
without his express consent.
KELLY, Associate Judge:
Eugene C. Bronson here appeals from an adverse decision in a declaratory judgment action
filed against him to enforce a settlement agreement and for the payment of attorney's fees and
costs, arguing that the trial court erred in holding that an attorney does not need specific
authority to accept a settlement on behalf of his client. We reverse.
I
The material facts are largely undisputed. On May 1, 1972, appellant’s automobile was struck
by an automobile owned by Mattos, Inc. In order to pursue a claim for personal injuries caused
by the accident, appellant retained appellee Borst under a general retainer agreement which
provided only for the usual contingency basis of payment, i.e., Borst was to receive one-third of
any judgment recovered.
Borst was able to negotiate a $6,000 settlement of appellant's claim with Mattos’ insurer, but
when he informed appellant of the proposed agreement, appellant made it clear to Borst that he

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would not accept the offer of settlement. From then on relations between Borst and his client
became strained. Bronson, who at the time resided outside the District, failed to respond to
Borst’s communications, which included a letter in which Borst suggested that if Bronson was
unable to accept the settlement, he might wish to retain new counsel. On April 30, 1975, the day
before the statute of limitations ran, Borst, on behalf of his client Bronson, accepted the
settlement offer.
Borst thereafter filed suit in Superior Court for a declaratory judgment to enforce the settlement
he had accepted and for payment therefrom of attorney’s fees and costs. Under oath, at trial,
Borst testified to the above facts and to his reasons for accepting the compromise. He said he
felt that if he did not accept the settlement, Bronson would have lost all chance for recovery.
Since he had received no direction from Bronson after the letter explaining why settlement was
necessary and suggesting new counsel should Bronson wish to pursue the claim, Borst
maintained that he had no alternative to the reasonable and justified step of accepting the
settlement. Borst testified he felt that the claim was without merit since Bronson claimed a 100%
disability resulting from a previous accident and therefore he could not hope to receive a jury
award larger than the settlement offer. Borst also stated that Bronson was unwilling or unable to
assume the responsibility of paying for expert witnesses and other court costs. The parties
agreed that there existed no specific and explicit authority in Borst to accept a settlement offer
to compromise appellant's claim.
Bronson conducted a vigorous, but inartful, cross-examination. Frequently the trial judge
admonished Bronson that his questioning was argumentative and advised that he would have
an opportunity later to take the stand and present his case. After Borst left the stand, however,
the trial judge asked Bronson to present support in the law for his case. When Bronson
completed his statement, the judge ruled for Borst without giving Bronson the opportunity to
take the stand and testify under oath.
II
Appellant’s first argument is that the trial court erred, as a matter of law, in holding that the
settlement agreement at issue was binding on him. His analysis is that an attorney without
express authority cannot accept for his client any settlement regardless of the merits of the
client's case or the attractiveness of the settlement offer. That conclusion was stated succinctly
in Ashley v. Atlas Mfg. Co. In Ashley, the court confronted a courtroom settlement to which
counsel for both parties assented in open court. Although the court judged from the tenor of the
agreement and the manner in which the attorney for defendant announced the agreement in the
presence of the defendant that the attorney had specific authority to settle the case, the court
noted that
as a matter of law it is true, strictly speaking, an attorney has no right, without special
authority, to make a compromise for his client.

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Appellee argues that given the circumstances, his action in accepting the settlement in the face
of his client's objections was reasonable and justified. He maintains that had he not so accepted
the compromise offer, his client’s claim would have been barred by the statute of limitations and
his chances for recompense could have been lost forever. To file the suit as his client
demanded, appellee contends, would have been a wholly futile and costly endeavor. Finally,
appellee argues that his client was either ignorant of the high cost of litigation or was unwilling to
bear the responsibility of making the expenditures; presumably the client expected his attorney
to bear the expense of litigation.
In his brief to this court, appellee offers no support in the law for the above proposition. At trial,
he relied on Mullen v. People's Drug Stores, for the proposition that “one who is represented by
counsel is bound by his actions.” Both Turner and Mullen, however, are inapposite to the issue
here. In Turner, the court saddled the client with his attorney’s negligence in not appearing to
answer a complaint. In upholding a default judgment, the court noted that “one who comes into
court through counsel of his own choice is bound by the actions of his counsel.” In Mullen, the
issue was whether a client is bound by the trial tactics of his attorney; specifically, the decision
not to call a witness whose testimony would have gone to stipulated facts.
Whether to penalize a party for his counsel’s failure to appear in court and whether to bind a
client to his attorney’s trial tactics present issues distinct from the issues here. In the two former
situations, the inquiry concerns the execution by the attorney of the services that, by contract,
he must perform for his client. In the instant case, we must analyze actions which counsel was
neither duty bound nor authorized to perform.
We agree with appellant that regardless of the good faith of the attorney, absent specific
authority, an attorney cannot accept a settlement offer on behalf of a client. Mr. Borst felt that he
had no option but to accept the settlement offer for fear that the cause of action would be
barred. Such a fear was unfounded. Mr. Bronson had made his stand clear; he wanted to
pursue his claim. If Mr. Borst had ethical or financial reservations about continued
representation of Mr. Bronson, he could have terminated the relationship well before the statute
ran or he could have filed the suit and requested leave of the court to withdraw early in the
litigation. Regardless of the options available to him, appellee chose one route that was, or
should have been, foreclosed to him. Accordingly, we reverse the judgment of the trial court
which purports to enforce the settlement agreement.
Finding that the trial court erred in its application of the law, we reverse the decision of the trial
court and remand the cause for proceedings not inconsistent with this opinion.
Questions:
Impaired Clients
Attorneys often represent clients who have an impaired ability to make or express decisions. For
example, attorneys often represent minors, who cannot make legally binding decisions.

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Attorneys may also represent people with physical impairments that affect their ability to
express their decisions, or mental impairments that affect their ability to make decisions that are
in their own best interests.
When an attorney represents a legally, physically, or mentally impaired client, the client remains
the principal and is entitled to dignity and respect. Accordingly, the attorney must provide
relevant information to the client, consult with the client, and pursue the client’s wishes,
whenever it is possible and in the client’s best interests.
Sometimes, impaired clients have legal representatives empowered to make decisions on their
behalf. In that case, the attorney must ordinarily obey the decisions of the legal representative.
But the attorney must also inform the client about those decisions, and consult with the client
whenever possible.
Regardless, the attorney must always put the client’s interests first. If the attorney represents
the impaired client directly, then the attorney has a fiduciary duty to the client, and must ensure
that the legal representative’s actions are in the client’s best interests. If the attorney represents
the legal representative, then the attorney has a fiduciary duty to the legal representative, but
still must ensure that the legal representative respects its own fiduciary duty to the client. For
example, if an attorney represents a client who is a minor, the attorney must obey the decisions
of the client’s guardian, but must also consult with the client, in order to determine the client’s
wishes, and ensure that the client’s guardian does not violate its fiduciary duties. Likewise, if an
attorney represents a comatose client, the attorney must obey the decisions of the client’s
guardian, but must also ensure that the guardian does not violate its fiduciary duties.
Sometimes, it is unclear whether a client is impaired. The client may be unable to communicate
with the attorney, unable to make consistent decisions, unable to make good decisions, or
unwilling to conform to social expectations. These are hard cases. If a direct attorney-client
relationship is untenable, the attorney should seek the appointment of a legal representative.
But if the attorney can represent the client directly, then the attorney must act in the client’s best
interests. This can create a conflict, if the attorney believes that the client’s instructions are
inconsistent with the client’s best interests. Should the attorney obey the client?
Rule 1.14: Client with Diminished Capacity
a. When a client's capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for
some other reason, the lawyer shall, as far as reasonably possible, maintain a normal
client-lawyer relationship with the client.
b. When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot
adequately act in the client's own interest, the lawyer may take reasonably necessary
protective action, including consulting with individuals or entities that have the ability to

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take action to protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.
c. Information relating to the representation of a client with diminished capacity is protected
by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is
impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to
the extent reasonably necessary to protect the client's interests.
Restatement (Third) of the Law Governing Lawyers § 24 (2000): A Client with Diminished
Capacity
1. When a client's capacity to make adequately considered decisions in connection with the
representation is diminished, whether because of minority, physical illness, mental
disability, or other cause, the lawyer must, as far as reasonably possible, maintain a
normal client-lawyer relationship with the client and act in the best interests of the client
as stated in Subsection (2).
2. A lawyer representing a client with diminished capacity as described in Subsection (1)
and for whom no guardian or other representative is available to act, must, with respect
to a matter within the scope of the representation, pursue the lawyer's reasonable view
of the client's objectives or interests as the client would define them if able to make
adequately considered decisions on the matter, even if the client expresses no wishes or
gives contrary instructions.
3. If a client with diminished capacity as described in Subsection (1) has a guardian or
other person legally entitled to act for the client, the client's lawyer must treat that person
as entitled to act with respect to the client's interests in the matter, unless:
a. the lawyer represents the client in a matter against the interests of that person; or
b. that person instructs the lawyer to act in a manner that the lawyer knows will
violate the person's legal duties toward the client.
4. A lawyer representing a client with diminished capacity as described in Subsection (1)
may seek the appointment of a guardian or take other protective action within the scope
of the representation when doing so is practical and will advance the client's objectives
or interests, determined as stated in Subsection (2).
People v. Bolden, 99 Cal. App. 3d 375 (Cal. Ct. App. 1979)
Summary: Bolden was denied effective assistance of counsel when his counsel offered
evidence of Bolden’s incompetence although Bolden desired to be found competent.
Two psychiatrists testified for the People saying Bolden wasn’t competent because he
was suffering delusions (thought the people he assaulted—his father and brother—were
aliens from outer space). Bolden argues a section of the Penal Code that lets a judge
who doubts the mental competence of the defendant ask the attorney’s opinion of the
defendant’s competence violates the attorney-client privilege. The court found that an
attorney’s opinion about his client’s competence does not reveal confidential information.
The court held that Bolden’s attorney provided effective assistance to his client.

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Samuel Othello Bolden, Jr., appeals the order finding him mentally incompetent to stand trial
based upon a jury verdict of incompetence. Bolden contends he was denied due process by
Penal Code section 1368 which requires his attorney to give an opinion of his client's
competence, and was denied effective assistance of counsel when his counsel offered evidence
of his incompetence although Bolden desired to be found competent.
Bolden was charged with robbery, two counts of assault with intent to murder, and two counts of
assault with a deadly weapon. Criminal proceedings were suspended to determine if Bolden
was competent to stand trial. The first jury trial on the issue of competence was declared a
mistrial after the jury was unable to reach a verdict. New counsel was appointed for the retrial.
Two psychiatrists testifying for the People said Bolden was not competent to stand trial, as he
was suffering delusions. He believed the people he was charged with assaulting, his father and
brother, were actually aliens from outer space who were inhabiting the bodies of his father and
brother.
Out of the jury's presence Bolden’s counsel explained to the court his client wanted to testify in
his own behalf and wanted to be found competent to stand trial. While counsel felt he had a duty
to pursue his client’s desires, he also felt he had a duty to represent his client’s best interests.
He had been told by professional people a not-guilty-by-reason-of-insanity defense was
available for his client. He felt he needed his client’s cooperation to pursue this defense.
Bolden’s current mental state interfered with such cooperation. Counsel’s solution to this
dilemma was to place Bolden on the witness stand to testify to his competence, and then to
offer his own psychiatric witness who testified Bolden was not competent to stand trial.
After 10 minutes of deliberation, the jury returned a verdict of not competent to stand trial.
Bolden was committed to Patton State Hospital for treatment.
Penal Code section 1368 requires a judge who doubts the mental competence of the defendant
to “inquire of the attorney for the defendant whether, in the opinion of the attorney, the
defendant is mentally competent.” Bolden contends this section violates the attorney-client
privilege by requiring the attorney to reveal knowledge gained in the course of his relationship
with his client.
This statute does not, however, require the disclosure of a confidential communication. “What
the attorney observes of or hears from his client is not always privileged. It is apparent that
some ingredient of disclosure or revelation is essential to the element of communication.”
Although an attorney's opinion of his client's competence may be principally drawn from
confidential communications he has had with that client, merely giving the opinion does not
reveal any protected information.
A “confidential communication” is defined as “information transmitted between a client and his
lawyer in the course of that relationship and includes a legal opinion formed and the advice
given by the lawyer.” Bolden latches onto the words “legal opinion” and argues the opinion of
competence is a legal opinion which is protected. The statute, however, uses “legal opinion" to

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specify one type of information protected. Substituting "legal opinion” for “information” in the
statutory language, we see the type of legal opinion protected by the privilege is one
“transmitted between a client and his lawyer,” not one, as here, initially transmitted between the
lawyer and the court.
Bolden contends even if the attorney’s opinion of mental competence does not always reveal a
confidential communication, in this case the psychiatrists who examined him based their
opinions in part upon specific communications occurring between Bolden and his first counsel.
Bolden cites us to only one place in the record where such communication is mentioned. There
the psychiatrist testified Bolden's former attorney said Bolden believed the aliens inhabiting his
father's body were from outer space. However, even assuming Bolden's former attorney
improperly revealed privileged information to the psychiatrists, there was no prejudice to Bolden
from the revelation as Bolden himself also told the psychiatrists, and testified in court, alien
imposters had taken over the bodies of his family and others.
Bolden contends he was denied effective assistance of counsel, since he did not receive “the
kind of legal assistance to be expected of a reasonably competent attorney acting as a
conscientious, diligent advocate.” No complaint is made about the skill of his attorney or the
attorney’s dedication to his client. Bolden’s contention is the attorney was acting in what he felt
was the best interest of his client rather than as an advocate of his client's position. By his
attorney “siding” with the People in offering evidence of incompetence, Bolden contends, his
desire to be found competent went unrepresented.
Diligent advocacy does not require an attorney to blindly follow every desire of his client. An
attorney can ordinarily make binding waivers of many of his client's rights as to matters of trial
tactics. When the attorney doubts the present sanity of his client, he may assume his client
cannot act in his own best interests and may act even contrary to the express desires of his
client. To do otherwise may cause prejudicial error.
Bolden’s attorney provided effective assistance to his client.
Questions:
Further Reading:

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2.5: Ex Parte Communications
I got something to say that might cause you pain. If I catch you talking to that boy again, I'm
gonna let you down, and leave you flat, because I told you before, oh, you can't do that.24
Model Rule 4.2 prohibits attorneys from engaging in “ex parte” communications, or
communications with a represented person without the consent of that person’s attorney or the
permission of the court.
In theory, the purpose of the prohibition on ex parte communications with represented persons
is to help protect clients and ensure they receive the advice of counsel. As Model Rule 4.2,
Comment [1] explains:
This Rule contributes to the proper functioning of the legal system by protecting a person
who has chosen to be represented by a lawyer in a matter against possible overreaching
by other lawyers who are participating in the matter, interference by those lawyers with
the client-lawyer relationship and the uncounselled disclosure of information relating to
the representation.
The prohibition on ex parte communications applies to all represented persons involved in a
matter. Accordingly, it prohibits ex parte communications with not only represented persons who
are adverse parties, but also represented persons who are co-parties or non-parties. And it
applies to directed communications. In other words, an attorney cannot avoid the prohibition by
instructing or advising a non-attorney to contact a represented person. Furthermore, the
prohibition on ex parte communications is not waivable by the client, and it applies even if the
client initiates the communication, requiring the attorney to immediately end the communication.
Model Rule 4.2, Comment [2] & [3].
The prohibition on ex parte communications with represented persons may also apply to the
employees of represented organizations. Most courts have held that attorneys cannot engage in
ex parte communications with employees of a represented organization who control the
organization, acted on behalf of the organization in the matter, or make legal decisions for the
organization. In other words, upper management and people directly involved in the matter are
off-limits, but other employees are not. In particular, former employees are generally fair game.
Notably, Model Rule 4.2 does incorporate a mens rea requirement. Attorneys cannot be
disciplined for engaging in an ex parte communication with a represented person unless they
knew or should have known that the person was represented in relation to the matter. Model
Rule 4.2, Comment [8].
And Model Rule 4.2 does not prohibit all ex parte communications. Nothing prevents an attorney
from engaging in ex parte communications with a represented person about subjects unrelated
24

The Beatles, You Can’t Do That, A Hard Day’s Night (1964).

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to the matter in which they are represented. And nothing prevents an attorney who is not
representing anyone in relation to matter from engaging in ex parte communications with a
represented party. In other words, attorneys may continue to pursue unrelated business, and
clients may consult with outside counsel. Model Rule 4.2, Comment [4].
In addition, Model Rule 4.2 only applies to attorneys. Nothing prevents represented persons
from engaging in ex parte communications with each other. And if represented persons choose
to communicate with each other, their attorneys may provide them with advice. “Parties to a
matter may communicate directly with each other, and a lawyer is not prohibited from advising a
client concerning a communication that the client is legally entitled to make.” Model Rule 4.2,
Comment [4]. Indeed, attorneys can probably even advise their clients to engage in ex parte
communications with represented parties.
Rule 4.2: Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer or is authorized to do
so by law or a court order.
Restatement (Third) of the Law Governing Lawyers § 99: A Represented Nonclient—The
General Anti-Contact Rule
1. A lawyer representing a client in a matter may not communicate about the subject of the
representation with a nonclient whom the lawyer knows to be represented in the matter
by another lawyer or with a representative of an organizational nonclient so represented
as defined in § 100, unless:
a. the communication is with a public officer or agency to the extent stated in § 101;
b. the lawyer is a party and represents no other client in the matter;
c. the communication is authorized by law;
d. the communication reasonably responds to an emergency; or
e. the other lawyer consents.
2. Subsection (1) does not prohibit the lawyer from assisting the client in otherwise proper
communication by the lawyer’s client with a represented nonclient.
Restatement (Third) of the Law Governing Lawyers § 100: Definition of a Represented
Nonclient
Within the meaning of § 99, a represented nonclient includes:
1. a natural person represented by a lawyer; and:
2. a current employee or other agent of an organization represented by a lawyer:
a. if the employee or other agent supervises, directs, or regularly consults with the
lawyer concerning the matter or if the agent has power to compromise or settle
the matter;

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b. if the acts or omissions of the employee or other agent may be imputed to the
organization for purposes of civil or criminal liability in the matter; or
c. if a statement of the employee or other agent, under applicable rules of evidence,
would have the effect of binding the organization with respect to proof of the
matter.
Restatement (Third) of the Law Governing Lawyers § 101: A Represented Governmental
Agency or Officer
1. Unless otherwise provided by law (see § 99(1)(c)) and except as provided in Subsection
(2), the prohibition stated in § 99 against contact with a represented nonclient does not
apply to communications with employees of a represented governmental agency or with
a governmental officer being represented in the officer's official capacity.
2. In negotiation or litigation by a lawyer of a specific claim of a client against a
governmental agency or against a governmental officer in the officer's official capacity,
the prohibition stated in § 99 applies, except that the lawyer may contact any officer of
the government if permitted by the agency or with respect to an issue of general policy.
In re Disciplinary Proceeding Against Haley, 126 P. 3d 1262 (Wash. 2006)
Summary: Haley is appealing the recommendation of a Disciplinary Board proceeding
that Haley be subject to a 6 month suspension for violating Rule 4.2(a). Haley filed a
lawsuit against a CEO of his former employer, Highland, acting pro se. Highland was
represented by various attorneys. Haley sent a letter to Highland proposing a settlement.
Highland’s lawyer said the letter was a violation of Rule 4.2 and told Haley to not talk to
Highland directly. Haley called Highland, appearing to tell him the legal status of his case
and once again proposing settlement. This was an issue of first impression for the court
and a split of among authorities. Haley argued that pro se lawyers should not be
included in the scope of the rule because the lawyer has no client. The court held that a
lawyer acting pro se is prohibited from contacting a party represented by counsel in the
matter and applied the rule prospectively.
OWENS, J.
Attorney Jeffrey T. Haley appeals the recommendation of the Disciplinary Board of the
Washington State Bar Association that Haley was subject to a six-month suspension for
knowingly violating RPC 4.2(a), which provides that, “in representing a client, a lawyer shall not
communicate with a party represented by another lawyer.”
Although we hold that, under RPC 4.2(a), a lawyer acting pro se is prohibited from contacting a
party represented by counsel in the matter, we apply our interpretation of RPC 4.2(a)
prospectively only and dismiss the violation.
FACTS

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In 1994, Haley filed a lawsuit against Carl Highland, the former chief executive officer of a
defunct closely held corporation, Coresoft, of which Haley was formerly a shareholder and
board member. Initially, Haley acted pro se in the matter but hired counsel when the case went
to trial in November 1995. After the trial ended, Haley’s counsel filed notice of withdrawal and
Haley reverted to pro se status as to appeal and collection issues. Highland was represented by
various attorneys at all times during this matter, and Haley knew that Highland was consistently
represented by counsel.
The hearing officer and Board concluded that Haley's improper contact with a represented party
arose out of two incidents. First, while Haley was acting pro se after the trial, he sent a letter to
Highland and his wife proposing settlement. The letter was dated September 9, 1996, and
stated in full as follows:
I am about to spend approximately $25,000 on costs and attorneys fees for the appeal. If
the appeal is successful, the personal earnings of both Ronda Hull and Carl Highland
will be subject to garnishment to satisfy my judgment and the judgment now held by Carl
Highland will be overruled. Also, the amount I am about the [sic] spend on costs and
attorneys fees will be added to the judgment.
This is the last opportunity to settle the case before I spend the money on the appeal.
This settlement offer will not be open after this week and may be withdrawn at any time if
it is not promptly accepted. I am offering that all claims and judgments between the
parties be releases [sic] with no payments. Please respond directly to me.
Highland forwarded the letter to his attorney who, in turn, suggested to Haley that the letter
constituted a violation of RPC 4.2(a) and warned him not to have any further contact with
Highland. Second, on January 31, 1997, Haley again contacted Highland, this time by
telephone. Haley left the following voice message on Highland’s phone:
Carl, this is Jeff Haley. I hope your attorneys have told you Jim Bates decided that your
judgment against me is collectable only from my separate assets and I have none;
they're all community assets. And, therefore, your judgment is uncollectable [sic]. And
the chance for appeal of that determination by Jim Bates has run so you can't appeal it
so that if the appeal proceeds my position can only improve and yours can only get
worse and if you have nothing collectable there’s no chance of ever getting anything
collectable. It seems to me that we ought to settle this case and if we do so Monday
there’ll be an opportunity on Monday to do so if you’re interested. Give me a call."
In his "Amended Findings of Fact and Conclusions of Law," the hearing officer stated that
Haley’s letter and phone message were “clearly prohibited” by RPC 4.2(a), but he
acknowledged that there was some authority supporting Haley's position that attorneys acting
pro se are not subject to the prohibition. Ultimately, in his “Additional Findings of Fact,
Application of Standards, and Recommendation,” the hearing officer determined that, “because

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of the specific language of RPC 4.2 (i.e., ‘In representing a client’) and because of the apparent
absence of authority within the state of Washington on this specific issue, Mr. Haley could have
harbored a sincere belief that contacts with a represented opposing party were not prohibited.”
Consequently, the hearing officer concluded that the violation was “negligent” and that the
presumptive sanction was thus a reprimand.
Deleting the hearing officer’s conclusion that Haley's violation was negligent, the Board
substituted its contrary determination that “Haley's mental state was knowledge” and that the
presumptive sanction was therefore a suspension. In doing so, the Board took note that Haley
knew Highland was represented by counsel at all times and stated that a “reasonable reading of
RPC 4.2 prohibits a lawyer, while representing himself or herself, from contacting a represented
party.” The Board also faulted Haley for not “taking time to determine whether his conduct was
an ethical violation.”
The hearing officer recommended that Haley be reprimanded for the violation. The Board
recommended a six-month suspension.
Does RPC 4.2(a) prohibit a lawyer who is acting pro se from contacting a party who is
represented by counsel? If so, should the rule be applied in the present case?
ANALYSIS
Applicability of RPC 4.2(a) to Lawyer Acting Pro Se. RPC 4.2(a) reads in full as follows:
In representing a client, a lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or is authorized by law to
do so.
The rule is virtually identical to model rule 4.2. While we have not formally adopted the
commentary to the ABA Annotated Model Rules, we have noted that it “may be ‘instructive in
exploring the underlying policy of the rules.’” As the comment to model rule 4.2 explains, the
rule aims to protect those represented by counsel “against possible overreaching by other
lawyers who are participating in the matter, interference by those lawyers with the client-lawyer
relationship and the uncounselled disclosure of information relating to the representation.” In
Carmick, we acknowledged that “the rule's purpose is to prevent situations in which a
represented party is taken advantage of by adverse counsel.”
At issue in the present case is whether RPC 4.2(a) applies to lawyers acting pro se — or, more
precisely, whether a lawyer who is representing himself or herself is, in the words of RPC 4.2(a),
“representing a client.” This court has not previously addressed this issue; nor has the WSBA
issued an ethics opinion, formal or informal, on the question. Other jurisdictions that have
considered the rule's applicability to lawyers acting pro se have generally concluded that the
policies underlying the rule are better served by extending the restriction to lawyers acting pro
se.

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Haley asks this court to take the contrary view and hold that the plain meaning of the word
“client” in RPC 4.2(a) precludes application of the rule to a lawyer acting pro se. The word
“client” is variously defined as “a person or entity that employs a professional for advice or help
in that professional’s line of work,” and “a person who engages the professional advice or
services of another.” Thus, for the rule to apply to lawyers acting pro se, such lawyers would, in
effect, be employing or engaging themselves for advice, help, or services. This, as Haley
contends, suggests that lawyers who are acting pro se are excluded from the scope of the rule
because such lawyers have no client.
In the alternative, Haley maintains that, even if RPC 4.2(a) were construed to restrict pro se
lawyers from contacting represented parties, we should conclude that the rule as applied to him,
a lawyer proceeding pro se, was unconstitutionally vague, violating his constitutional due
process rights. Such a resolution finds support in Schaefer. There, the Nevada State Supreme
Court relied on the principle that “a statute or rule is impermissibly vague if it ‘either forbids or
requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.’” The Schaefer court based its
determination that Nevada’s Supreme Court Rule 182, a rule identical to RPC 4.2(a), was
unconstitutionally vague on “the absence of clear guidance” from the Nevada State Supreme
Court and on “the existence of conflicting authority from other jurisdictions.”
Both factors relied on in Schaefer are present here. First, as noted above, no prior opinion of
this court has addressed the application of RPC 4.2(a) to lawyers proceeding pro se. Second, in
late 1996 and early 1997 when Haley contacted Highland, authority permitting such contacts
counterbalanced the prohibitions then existing from four jurisdictions. The comment to rule 2100 of the California RPCs, a rule identical to RPC 4.2(a) in all material respects, explicitly
permits a lawyer proceeding pro se to contact a represented party:
The rule does not prohibit a lawyer who is also a party to a legal matter from directly or
indirectly communicating on his or her own behalf with a represented party. Such a
member has independent rights as a party which should not be abrogated because of
his or her professional status. To prevent any possible abuse in such situations, the
counsel for the opposing party may advise that party (1) about the risks and benefits of
communications with a lawyer-party, and (2) not to accept or engage in communications
with the lawyer-party.
Likewise, a comment to the restatement specifically provides that “a lawyer representing his or
her own interests pro se may communicate with an opposing represented nonclient on the same
basis as other principals.”
Alongside these explicit statements permitting the questioned contact, other authorities
supported a reasonable inference that our RPC 4.2(a) did not foreclose a pro se lawyer’s
communication with a represented opposing party. For example, the comparable rule in Oregon,
DR 7-104(A)(1), put lawyers acting pro se squarely within the rule's ambit:

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(A) During the course of the lawyer's representation of a client, a lawyer shall not:
(1) Communicate or cause another to communicate with a person the lawyer knows to
be represented by a lawyer. This prohibition includes a lawyer representing the lawyer's
own interests.
The absence of an explicit prohibition in RPC 4.2(a) could have suggested that Washington’s
rule was narrower in scope than Oregon’s and did not apply to lawyers acting pro se.
Additionally, the commentary to model rule 4.2 includes the statement that “parties to a matter
may communicate directly with each other.” Unlike the commentary to the restatement and to
California's RPC 2-100, this comment does not pointedly refer to a lawyer-party acting pro se;
consequently, the breadth of the statement permits an inference that all parties may
communicate unreservedly with each other. Finally, the holding in Pinsky v. Statewide
Grievance Committee, appears to call into question the policy concerns supporting the
application of RPC 4.2(a) to lawyers acting pro se. In Pinsky, the Connecticut State Supreme
Court concluded that a represented lawyer-party had not violated an identical version of RPC
4.2(a) when he directly contacted his landlord, who was also represented by counsel, during an
eviction matter. The Pinsky court took note that “contact between litigants is specifically
authorized by the comments under rule 4.2” and concluded that Pinsky was not “representing a
client” as stated in the rule. The Pinsky court thus determined that communication between a
represented lawyer-party and a represented nonlawyer party did not conflict with a key purpose
of RPC 4.2(a) — the protection of a represented nonlawyer party from “possible overreaching
by other lawyers who are participating in the matter.” Because the Pinsky decision did not
address why contacts from a lawyer acting pro se would pose a greater threat of overreaching
than would contacts from a represented lawyer-party, Pinsky provides further equivocal
authority on the application of RPC 4.2(a) to lawyers acting pro se.
In sum, consistent with the resolution of the same issue in Schaefer, we hold that a lawyer
acting pro se is “representing a client” for purposes of RPC 4.2(a), but given the absence of a
prior decision from this court, along with the presence of conflicting or equivocal authority from
other jurisdictions and legal commentaries, we find the rule impermissibly vague as to its
applicability to pro se attorneys and thus apply our interpretation of the rule prospectively only.
We therefore dismiss the violation alleged in count 2. We need not reach Haley’s alternative
contention that the application of RPC 4.2(a) to his communications with Highland violated his
free speech rights.
CONCLUSION
We hold that RPC 4.2(a) prohibits a lawyer who is representing his own interests in a matter
from contacting another party whom he knows to be represented by counsel. However, because
we conclude that RPC 4.2(a) was impermissibly vague as applied to Haley, we apply our
interpretation of RPC 4.2(a) prospectively only and thus dismiss.
C.JOHNSON, BRIDGE, CHAMBERS, and J.M. JOHNSON, JJ, concur.

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MADSEN, J. (concurring).
I agree with part one of Justice Sanders’ concurrence. This court currently has a new set of
RPCs pending before it. Because I agree with the majority that the better policy is to include
self-represented lawyers within the prohibition of RPC 4.2(a), I would revise that rule in
conjunction with the review of the RPCs and avoid the issue of prospectivity.
SANDERS, J. (concurring).
The majority holds that self-represented lawyers are “representing a client” under RPC 4.2(a)
and therefore may not contact a represented party. But it refrains from sanctioning Haley,
implicitly holding that the scope of RPC 4.2(a) is ambiguous. I concur only in the result, because
the majority incorrectly construes RPC 4.2(a). The plain language of RPC 4.2(a) exempts selfrepresented lawyers. And the rule of lenity requires strict and narrow construction of an
ambiguous penal statute. We must apply RPC 4.2(a) prospectively just as we apply it today.
I. THE PLAIN LANGUAGE OF RPC 4.2(A) PERMITS SELF-REPRESENTED LAWYERS TO
CONTACT REPRESENTED PARTIES
Court rules like the Code of Professional Responsibility “are subject to the same principles of
construction as are statutes.” Thus, when interpreting a rule we give “the words their ordinary
meaning, reading the language as a whole and seeking to give effect to all of it.” If the plain
language of the rule is unambiguous, additional interpretation is unnecessary.
The plain language of RPC 4.2(a) unambiguously exempts self-represented lawyers. “In
representing a client, a lawyer shall not communicate about the subject of the representation
with a party the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized by law to do so.” A “client” is “a
person who consults or engages the services of a legal advisor,” or a “person or entity that
employs a professional for advice or help in that professional's line of work.” In other words, a
“client” is a third party who engages a lawyer. Because self-represented lawyers have no client,
under RPC 4.2(a) they may contact a represented party.
The majority concedes that RPC 4.2(a) applies only when a lawyer is “representing a client” but
nonetheless construes it to cover self-represented lawyers. Apparently, the majority concludes
that self-represented lawyers are “employing or engaging themselves for advice, help, or
services.”
This ingenious bit of legal fiction illustrates the wisdom of avoiding interpretations “conceivable
in the metaphysical sense” when the plain language of a statute “is both necessary and
sufficient.” Assuming that a self-represented lawyer represents a “client” certainly produces the
majority’s preferred outcome. Unfortunately, it does so only at the expense of coherence.
Lawyers cannot retain themselves any more than pro se litigants can claim legal malpractice or

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ineffective assistance of counsel. Undoubtedly, wise lawyers follow their own counsel. But it is a
neat trick indeed to advise oneself.
The majority’s claim to follow an emerging majority rule is unavailing. Indeed, it cites decisions
from six states concluding that self-represented lawyers are their own clients. But none offers
any more convincing a rationale for this curious conclusion than the majority. Conclusory
statements cannot substitute for legal reasoning, and another court’s error cannot justify our
own.
Likewise, the majority’s reliance on the “purpose” of RPC 4.2(a) is misplaced. As the author of
the court rules, we are “in a position to reveal the actual meaning which was sought to be
conveyed.” But in the interest of certainty and consistency, we approach them “as though they
had been drafted by the Legislature.” Whatever the purpose of RPC 4.2(a), it cannot extend to
persons and actions its plain language excludes. We may not expand the scope of a rule by fiat.
If we conclude that self-represented lawyers should not contact represented parties, we should
simply rewrite the rule to clearly prohibit that conduct. Other states have already done so.
Lawyers should not have to read slip opinions to divine their professional obligations.
II. THE RULE OF LENITY REQUIRES A CONSTRUCTION OF RPC 4.2(A) EXEMPTING
SELF-REPRESENTED LAWYERS
Even assuming that the plain language of RPC 4.2(a) is somehow ambiguous, the rule of lenity
requires a strict and narrow construction exempting self-represented lawyers. The rule of lenity
is a venerable canon of statutory interpretation, requiring courts “to interpret ambiguous criminal
statutes in the defendant's favor.” While the Rules of Professional Conduct are only “quasicriminal,” the rule of lenity applies to both criminal and quasi-criminal statutes. The deciding
factor is the nature of the sanction imposed.
As a general rule, courts apply the rule of lenity to any statute imposing penal sanctions. "We
are mindful of the maxim that penal statutes should be strictly construed." A statute is penal if it
“can be punished by imprisonment and/or a fine” and remedial if it “provides for the remission of
penalties and affords a remedy for the enforcement of rights and the redress of injuries.”
The Rules of Professional Conduct are penal because they concern punishing an offender, not
compensating a victim. Professional discipline “is punitive, unavoidably so, despite the fact that
it is not designed for that purpose.” While the “purpose of disciplining an attorney is not primarily
to punish the wrongdoer,” punishment is an important purpose — and a necessary
consequence — of professional discipline.
Courts have long recognized that disbarment is “penal in its nature” and subject to the rule of
lenity. The same holds for all other sanctions. “Because attorney suspension is a quasi-criminal
punishment in character, any disciplinary rules used to impose this sanction on attorneys must
be strictly construed resolving ambiguities in favor of the person charged.”

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In his dissent, Chief Justice Alexander suggests that the Rules of Professional Conduct can
tolerate a degree of vagueness. But RPC 4.2(a) is not vague. It is ambiguous. And the Rules of
Professional Conduct certainly cannot tolerate ambiguity.
A statute is ambiguous if it “refers to P, P can alternatively encompass either a or b, and it is
beyond dispute that the defendant did a” and vague if it “refers to X, but we cannot tell whether
the disputed event is an X.” No one disputes what Haley did: While representing himself, he
contacted a represented party. The only question is whether the term “representing a client”
encompasses self-represented lawyers, as well as lawyers representing third parties. And if the
term “representing a client” is “susceptible to more than one reasonable meaning,” it is
ambiguous.
Courts routinely apply the rule of lenity to ambiguous statutes. And the rule of lenity is peculiarly
appropriate to the Rules of Professional Conduct. We have recognized that “in a disciplinary
proceeding, all doubts should be resolved in favor of the attorney.” Because lawyers “are
subject to professional discipline only for acts that are described as prohibited in an applicable
lawyer code, statute, or rule of court,” courts “should be circumspect in avoiding overbroad
readings or resorting to standards other than those fairly encompassed within an applicable
lawyer code.” Application of the rule of lenity reflects that caution. It demands that we adopt the
stricter, narrower construction, excluding self-represented lawyers.
III. CONCLUSION
The majority objects to the plain language of RPC 4.2(a) only because it believes that permitting
self-represented lawyers to contact represented parties would violate the “purpose” of the rule.
But the putative “spirit and intent” of a rule can trump only a “strained and unlikely”
interpretation. And the plain language of RPC 4.2(a) is neither strained nor unlikely. It prohibits a
lawyer representing a client — but not a self-represented lawyer — from contacting a
represented party. As the majority concedes, several commentators and courts have found the
plain language of essentially identical rules entirely unambiguous. We must not manufacture
ambiguity and rely on legal fictions to arrive at a preferred result. Especially when we may
simply write that result into law.
I therefore concur in result.
ALEXANDER, C.J. (dissenting).
I agree with the majority that RPC 4.2(a) prohibits lawyers who are representing themselves
from communicating directly with opposing, represented parties unless they first obtain the
consent of the parties' counsel. I disagree, however, with the majority’s decision to limit
application of this important rule to future violators. I know of no authority that supports
imposition of a rule of professional conduct prospectively only. I believe, therefore, that this
court should suspend Jeffrey Haley from the practice of law for his violation of RPC 4.2(a). The
violation is especially egregious in light of Haley’s claim that he “studied the rule” before directly

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contacting his opposing party, and in view of the fact that he contacted the party a second time
after the party's lawyer warned him that doing so would violate RPC 4.2(a). Because the
majority concludes that Haley should not be subjected to discipline for a violation of RPC 4.2(a),
I dissent.
The majority correctly observes that among states considering the question with which we are
here presented, the prevailing trend has been to apply RPC 4.2(a) to attorneys acting pro se, as
was Haley, and not just to attorneys representing someone other than themselves. The majority
acknowledges, additionally, that in late 1996 and early 1997, when Haley twice attempted to
negotiate a settlement without going through the opposing party's lawyer, at least four
jurisdictions already had concluded that RPC 4.2(a) prohibited such contacts. Yet none of the
four jurisdictions mentioned by the majority applied the rule to pro se attorneys on a prospective
basis only, as the majority does here. Rather, all four jurisdictions applied the rule to the facts
before them, as this court should do. These four opinions, all cited by the majority, are sound
and make it clear that at the time Haley engaged in the prohibited conduct, the weight of
authority supported the disciplining of violators and did not even hint at the prospective-only
application embraced by the majority in this case. In shielding Haley from application of RPC
4.2(a), the majority borrows from the reasoning of the Nevada Supreme Court in In re Discipline
of Schaefer. There, the Nevada court declined to punish an attorney's violation of the Nevada
equivalent of RPC 4.2(a) because of: (a) the “absence of clear guidance” from the court, and (b)
“conflicting authority from other jurisdictions” as to whether the rule applied to pro se attorneys.
In effect, the majority establishes a new test: if there is any doubt about how a rule will be
construed, a violator will not be punished. That is a dangerous message to send.
Furthermore, whereas the Schaefer court relied on due process principles articulated by the
United States Supreme Court in Connally in applying the Nevada rule prospectively, it is worth
noting that this court has never drawn from Connally the proposition that discipline is
inappropriate just because a rule is being interpreted for the first time. In fact, in Haley v.
Medical Disciplinary Board, the only discipline case in which this court cited Connally, we
affirmed sanctions against a physician for violating a statute prohibiting “moral turpitude”
although we recognized “uncertainties associated with” the statutory language in question.
Thus, this court has previously declined to interpret Connally in the way the Nevada court did in
Schaefer and the majority does here — as if professional license holders have a due process
right to avoid discipline simply because a court is newly construing the rule in question. Such an
interpretation will have far-reaching impact, as many discipline cases that come before this court
raise an issue of construction. In declining to sanction Haley for violating RPC 4.2(a), despite
the fact that Haley had “studied” the rule and should have known that the prevailing construction
prohibited his conduct, the majority suggests that questionable conduct will be tolerated as long
as there is no prior Washington court decision exactly on point.
We must remember that our purpose in disciplining attorneys is to “protect the public and to
preserve confidence in the legal system.” In Curran, an attorney argued that he should not be
punished for violating RLD 1.1(a) because, in forbidding actions that reflect “disregard for the
rule of law,” the rule was unconstitutionally vague. This court said, “We choose to give these

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words a narrowing construction. This law is not so vague as to be unconstitutional, given this
limiting construction.” We noted that “a statute will not be considered unconstitutionally vague
just because it is difficult to determine whether certain marginal offenses are within the meaning
of the language under attack.” This court suspended the attorney, Curran, saying, “Standards
may be used in lawyer disciplinary cases which would be impermissibly vague in other
contexts.” Just as we disciplined Curran there, despite uncertainty about the rule in question, so
should Haley be disciplined for violating RPC 4.2(a) in order to “protect the public and to
preserve confidence in the legal system.”
Curran also weighs against the position taken by Justice Sanders in his concurring opinion that
attorney discipline is a punishment scheme and therefore is subject to the rule of lenity — a
criminal law doctrine. We said in that case, “The purposes of bar discipline do not precisely
duplicate the purposes of the criminal law.” More notably, we have said numerous times that
“punishment is not a proper basis for discipline.” In In re Disbarment of Beakley, we said:
Neither disbarment nor suspension is ordered for the purpose of punishment, but wholly
for the protection of the public. When a matter such as this comes before the court, the
question presented is not: What punishment should be inflicted on this man? The
question presented to each of its judges is simply this: Can I, in view of what has been
clearly shown as to this man's conduct, conscientiously participate in continuing to hold
him out to the public as worthy of that confidence which a client is compelled to repose
in his attorney?
Thus, this court has long rejected the notion that attorney discipline is penal, and the
concurrence cannot point to any discipline case in which we have applied the rule of lenity to
resolve ambiguity in the attorney's favor.
In sum, because the purpose of attorney discipline is to protect the public, it is our duty to
enforce RPC 4.2(a) in this case. The majority provides no authority for applying RPC 4.2(a) to
pro se attorneys prospectively only. I would apply the rule to Haley and suspend him for six
months.
Questions:
1. What is the purpose of Model Rule 4.2 and its prohibition on attorneys engaging in ex
parte communications with represented persons? Is it intended to protect clients or their
attorneys?
2. Why don’t the model rules prohibit clients from engaging in ex parte communications?
Should ex parte communications between represented persons be encouraged,
discouraged, or neither?
3. Haley retained counsel when the action at issue went to trial. If he had engaged in ex
parte communications with Highland while represented by an attorney, would it have
violated Model Rule 4.2? Should attorneys who are parties to an action and represented

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by counsel be permitted to engage in ex parte communications with represented
persons? What if both parties are attorneys represented by counsel?
Niesig v. Team, 76 N.Y.2d 363 (N.Y. 1990)
Summary: Plaintiff was injured when he fell from a scaffolding at a building construction
site, and is now suing his employer DeTrae. Plaintiff moved for his lawyer to be able to
conduct ex parte interviews with employees of DeTrae that were present at the time of
the accident. Plaintiff argued the employees were not managing or controlling
employees and could therefore be interviewed. DeTrae argued the rule applies to all
employees, citing Upjohn. The court reversed the lower court and held that an employee
of a corporation is a “party” for the purpose of ex parte communications only if the
employee’s actions bind the corporation in the matter or the employee implements the
advice of counsel.
KAYE, J.
Plaintiff in this personal injury litigation, wishing to have his counsel privately interview a
corporate defendant’s employees who witnessed the accident, puts before us a question that
has generated wide interest: are the employees of a corporate party also considered “parties”
under Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility, which prohibits a
lawyer from communicating directly with a “party” known to have counsel in the matter? The trial
court and the Appellate Division both answered that an employee of a counseled corporate
party in litigation is by definition also a “party” within the rule, and prohibited the interviews. For
reasons of policy, we disagree.
As alleged in the complaint, plaintiff was injured when he fell from scaffolding at a building
construction site. At the time of the accident he was employed by DeTrae Enterprises, Inc.;
defendant J.M. Frederick was the general contractor, and defendant Team I the property owner.
Plaintiff thereafter commenced a damages action against defendants, asserting two causes of
action, and defendants brought a third-party action against DeTrae.
Plaintiff moved for permission to have his counsel conduct ex parte interviews of all DeTrae
employees who were on the site at the time of the accident, arguing that these witnesses to the
event were neither managerial nor controlling employees and could not therefore be considered
“personal synonyms for DeTrae.” DeTrae opposed the application, asserting that the disciplinary
rule barred unapproved contact by plaintiff’s lawyer with any of its employees. Supreme Court
denied plaintiff's request, and the Appellate Division modified by limiting the ban to DeTrae’s
current employees.
The Appellate Division concluded, for theoretical as well as practical reasons, that current
employees of a corporate defendant in litigation “are presumptively within the scope of the
representation afforded by the attorneys who appeared in the litigation on behalf of that
corporation.” The court held that DeTrae’s attorneys have an attorney-client relationship with

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every DeTrae employee connected with the subject of the litigation, and that the prohibition is
necessitated by the practical difficulties of distinguishing between a corporation’s control group
and its other employees. The court further noted that the information sought from employee
witnesses could instead be obtained through their depositions.
In the main we disagree with the Appellate Division’s conclusions. However, because we agree
with the holding that DR 7-104(A)(1) applies only to current employees, not to former
employees, we modify rather than reverse its order, and grant plaintiff's motion to allow the
interviews.
We begin our analysis by noting that what is at issue is a disciplinary rule, not a statute. In
interpreting statutes, which are the enactments of a coequal branch of government and an
expression of the public policy of this State, we are of course bound to implement the will of the
Legislature; statutes are to be applied as they are written or interpreted to effectuate the
legislative intention. The disciplinary rules have a different provenance and purpose. Approved
by the New York State Bar Association and then enacted by the Appellate Divisions, the Code
of Professional Responsibility is essentially the legal profession’s document of self-governance,
embodying principles of ethical conduct for attorneys as well as rules for professional discipline.
While unquestionably important, and respected by the courts, the code does not have the force
of law.
That distinction is particularly significant when a disciplinary rule is invoked in litigation, which in
addition to matters of professional conduct by attorneys, implicates the interests of nonlawyers.
In such instances, we are not constrained to read the rules literally or effectuate the intent of the
drafters, but look to the rules as guidelines to be applied with due regard for the broad range of
interests at stake. “When we agree that the Code applies in an equitable manner to a matter
before us, we should not hesitate to enforce it with vigor. When we find an area of uncertainty,
however, we must use our judicial process to make our own decision in the interests of justice to
all concerned.”
DR 7-104(A)(1), which can be traced to the American Bar Association Canons of 1908,
fundamentally embodies principles of fairness. “The general thrust of the rule is to prevent
situations in which a represented party may be taken advantage of by adverse counsel; the
presence of the party’s attorney theoretically neutralizes the contact.” By preventing lawyers
from deliberately dodging adversary counsel to reach — and exploit — the client alone, DR 7104(A)(1) safeguards against clients making improvident settlements, ill-advised disclosures
and unwarranted concessions.
There is little problem applying DR 7-104(A)(1) to individuals in civil cases. In that context, the
meaning of “party” is ordinarily plain enough: it refers to the individuals, not to their agents and
employees. The question, however, becomes more difficult when the parties are corporations —
as evidenced by a wealth of commentary, and controversy, on the issue.

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The difficulty is not in whether DR 7-104(A)(1) applies to corporations. It unquestionably covers
corporate parties, who are as much served by the rule’s fundamental principles of fairness as
individual parties. But the rule does not define “party,” and its reach in this context is unclear. In
litigation only the entity, not its employee, is the actual named party; on the other hand,
corporations act solely through natural persons, and unless some employees are also
considered parties, corporations are effectively read out of the rule. The issue therefore distills
to which corporate employees should be deemed parties for purposes of DR 7-104(A)(1), and
that choice is one of policy. The broader the definition of “party” in the interests of fairness to the
corporation, the greater the cost in terms of foreclosing vital informal access to facts.
The many courts, bar associations and commentators that have balanced the competing
considerations have evolved various tests, each claiming some adherents, each with some
imperfection. At one extreme is the blanket rule adopted by the Appellate Division and urged by
defendants, and at the other is the “control group” test — both of which we reject. The first is too
broad and the second too narrow.
Defendants’ principal argument for the blanket rule — correlating the corporate “party” and all of
its employees — rests on Upjohn v United States. As the Supreme Court recognized, a
corporation’s attorney-client privilege includes communications with low- and mid-level
employees; defendants argue that the existence of an attorney-client privilege also signifies an
attorney-client relationship for purposes of DR 7-104(A)(1).
Upjohn, however, addresses an entirely different subject, with policy objectives that have little
relation to the question whether a corporate employee should be considered a “party” for
purposes of the disciplinary rule. First, the privilege applies only to confidential communications
with counsel, it does not immunize the underlying factual information — which is in issue here
— from disclosure to an adversary. Second, the attorney-client privilege serves the societal
objective of encouraging open communication between client and counsel, a benefit not present
in denying informal access to factual information. Thus, a corporate employee who may be a
“client” for purposes of the attorney-client privilege is not necessarily a “party” for purposes of
DR 7-104(A)(1).
The single indisputable advantage of a blanket preclusion — as with every absolute rule — is
that it is clear. No lawyer need ever risk disqualification or discipline because of uncertainty as
to which employees are covered by the rule and which not. The problem, however, is that a ban
of this nature exacts a high price in terms of other values, and is unnecessary to achieve the
objectives of DR 7-104(A)(1).
Most significantly, the Appellate Division’s blanket rule closes off avenues of informal discovery
of information that may serve both the litigants and the entire justice system by uncovering
relevant facts, thus promoting the expeditious resolution of disputes. Foreclosing all direct,
informal interviews of employees of the corporate party unnecessarily sacrifices the longrecognized potential value of such sessions. “A lawyer talks to a witness to ascertain what, if
any, information the witness may have relevant to his theory of the case, and to explore the

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witness’ knowledge, memory and opinion — frequently in light of information counsel may have
developed from other sources. This is part of an attorney's so-called work product.” Costly
formal depositions that may deter litigants with limited resources, or even somewhat less formal
and costly interviews attended by adversary counsel, are no substitute for such off-the-record
private efforts to learn and assemble, rather than perpetuate, information.
Nor, in our view, is it necessary to shield all employees from informal interviews in order to
safeguard the corporation’s interest. Informal encounters between a lawyer and an employeewitness are not — as a blanket ban assumes — invariably calculated to elicit unwitting
admissions; they serve long-recognized values in the litigation process. Moreover, the corporate
party has significant protection at hand. It has possession of its own information and unique
access to its documents and employees; the corporation's lawyer thus has the earliest and best
opportunity to gather the facts, to elicit information from employees, and to counsel and prepare
them so that they will not make the feared improvident disclosures that engendered the rule.
We fully recognize that, as the Appellate Division observed, every rule short of the absolute
poses practical difficulties as to where to draw the line, and leaves some uncertainty as to which
employees fall on either side of it. Nonetheless, we conclude that the values served by
permitting access to relevant information require that an effort be made to strike a balance, and
that uncertainty can be minimized if not eliminated by a clear test that will become even clearer
in practice.
We are not persuaded, however, that the “control group” test — defining “party” to include only
the most senior management exercising substantial control over the corporation — achieves
that goal. Unquestionably, that narrow (though still uncertain) definition of corporate “party”
better serves the policy of promoting open access to relevant information. But that test gives
insufficient regard to the principles motivating DR 7-104(A)(1), and wholly overlooks the fact that
corporate employees other than senior management also can bind the corporation. The “control
group” test all but “nullifies the benefits of the disciplinary rule to corporations.” Given the
practical and theoretical problems posed by the “control group” test, it is hardly surprising that
few courts or bar associations have ever embraced it.
By the same token, we find unsatisfactory several of the proposed intermediate tests, because
they give too little guidance, or otherwise seem unworkable. In this category are the case-bycase balancing test, and a test that defines “party” to mean corporate employees only when
they are interviewed about matters within the scope of their employment.
The test that best balances the competing interests, and incorporates the most desirable
elements of the other approaches, is one that defines “party” to include corporate employees
whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the
corporation’s “alter egos”) or imputed to the corporation for purposes of its liability, or employees
implementing the advice of counsel. All other employees may be interviewed informally.

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Unlike a blanket ban or a “control group” test, this solution is specifically targeted at the problem
addressed by DR 7-104(A)(1). The potential unfair advantage of extracting concessions and
admissions from those who will bind the corporation is negated when employees with “speaking
authority” for the corporation, and employees who are so closely identified with the interests of
the corporate party as to be indistinguishable from it, are deemed “parties” for purposes of DR
7-104(A)(1). Concern for the protection of the attorney-client privilege prompts us also to include
in the definition of “party” the corporate employees responsible for actually effectuating the
advice of counsel in the matter.
In practical application, the test we adopt thus would prohibit direct communication by adversary
counsel “with those officials, but only those, who have the legal power to bind the corporation in
the matter or who are responsible for implementing the advice of the corporation's lawyer, or
any member of the organization whose own interests are directly at stake in a representation.”
This test would permit direct access to all other employees, and specifically — as in the present
case — it would clearly permit direct access to employees who were merely witnesses to an
event for which the corporate employer is sued.
Apart from striking the correct balance, this test should also become relatively clear in
application. It is rooted in developed concepts of the law of evidence and the law of agency,
thereby minimizing the uncertainty facing lawyers about to embark on employee interviews. A
similar test, moreover, is the one overwhelmingly adopted by courts and bar associations
throughout the country, whose long practical experience persuades us that — in day-to-day
operation — it is workable.
Finally, we note the particular contribution made by the various amici curiae in this case; by
highlighting the diverse contexts in which the question may arise, their submissions have
enlarged our comprehension of the broad potential impact of the issue presented. In so doing,
however, they have also alerted us to the wisdom of flagging what is in any event implicit in our
decisions — that they are limited by the facts before us and the questions put to us. Today’s
decision resolves the present controversy by allowing ex parte interviews with nonmanagerial
witnesses employed by a corporate defendant; even in that limited context, we recognize that
there are undoubtedly questions not raised by the parties that will yet have to be answered.
Defendants’ assertions that ex parte interviews should not be permitted because of the dangers
of overreaching, moreover, impel us to add the cautionary note that, while we have not been
called upon to consider questions relating to the actual conduct of such interviews, it is of
course assumed that attorneys would make their identity and interest known to interviewees and
comport themselves ethically.
Questions:

Further Reading:

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●

John Leubsdorf, Communicating with Another Lawyer’s Client: The Lawyer’s Veto and
the Client’s Interests, 127 U. Pa. L. Rev. 683 (1979)

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2.6: Attorney’s Fees
Attorney’s Fees
If you’ve got the money, I’ve got the time. We’ll go honky tonkin’ and we'll have a time … But if
you run short of money, I’ll run short of time. ‘Cause you with no more money, honey, I’ve no
more time.25
Attorneys can only charge a reasonable fee for their services. But the reasonableness of an
attorney’s fee depends on the circumstances. Main Street lawyers and Wall Street lawyers can
and do charge very different fees for their services. And contingent fees necessarily reflect the
risk of failure.
In theory, state bar associations are supposed to ensure that attorneys charge reasonable fees.
But in practice, they are reluctant to question attorney’s fee agreements. In fact, contract law
may protect clients from excessive fees more effectively than the rules of professional
responsibility.
Model Rule 1.5: Fees
a. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:
1. the time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
8. whether the fee is fixed or contingent.
b. The scope of the representation and the basis or rate of the fee and expenses for which
the client will be responsible shall be communicated to the client, preferably in writing,
before or within a reasonable time after commencing the representation, except when
the lawyer will charge a regularly represented client on the same basis or rate. Any
changes in the basis or rate of the fee or expenses shall also be communicated to the
client.
c. A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (d) or other law.
25

Lefty Frizzell, If You've Got The Money I've Got The Time (1950).

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A contingent fee agreement shall be in a writing signed by the client and shall state the
method by which the fee is to be determined, including the percentage or percentages
that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and
other expenses to be deducted from the recovery; and whether such expenses are to be
deducted before or after the contingent fee is calculated. The agreement must clearly
notify the client of any expenses for which the client will be liable whether or not the
client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall
provide the client with a written statement stating the outcome of the matter and, if there
is a recovery, showing the remittance to the client and the method of its determination.
d. A lawyer shall not enter into an arrangement for, charge, or collect:
1. any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of alimony or
support, or property settlement in lieu thereof; or
2. a contingent fee for representing a defendant in a criminal case.
e. A division of a fee between lawyers who are not in the same firm may be made only if:
1. the division is in proportion to the services performed by each lawyer or each
lawyer assumes joint responsibility for the representation;
2. the client agrees to the arrangement, including the share each lawyer will
receive, and the agreement is confirmed in writing; and
3. the total fee is reasonable.
Restatement (Third) of the Law Governing Lawyers § 34: Reasonable and Lawful Fees
A lawyer may not charge a fee larger than is reasonable in the circumstances or that is
prohibited by law.
Restatement (Third) of the Law Governing Lawyers § 35: Contingent-Fee Arrangements
1. A lawyer may contract with a client for a fee the size or payment of which is contingent
on the outcome of a matter, unless the contract violates § 34 or another provision of this
Restatement or the size or payment of the fee is:
a. contingent on success in prosecuting or defending a criminal proceeding; or
b. contingent on a specified result in a divorce proceeding or a proceeding
concerning custody of a child.
2. Unless the contract construed in the circumstances indicates otherwise, when a lawyer
has contracted for a contingent fee, the lawyer is entitled to receive the specified fee
only when and to the extent the client receives payment.
Matter of Cooperman, 633 N.E.2d 1069 (N.Y. 1994)
Summary: The Grievance Committee initiated a disciplinary proceeding against
Cooperman for 15 violations of professional misconduct. Cooperman uses three
separate agreements: the first is a written fee agreement to represent an individual in a
criminal matter (a $15,000 minimum fee). The second is a written agreement in

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connection with a probate proceeding (a $5,000 minimum fee to act as counsel). The
final agreement also involved a criminal matter (a $10,000 minimum fee). The court
found that an attorney using special non-refundable retainer fee agreements in advance
of service and irrespective of whether any professional services are actually rendered
violated the Code of Professional Responsibility because the agreements were a per se
violation of New York public policy.
BELLACOSA, J.
The issue in this appeal is whether the appellant attorney violated the Code of Professional
Responsibility by repeatedly using special nonrefundable retainer fee agreements with his
clients. Essentially, such arrangements are marked by the payment of a nonrefundable fee for
specific services, in advance and irrespective of whether any professional services are actually
rendered. The local Grievance Committee twice warned the lawyer that he should not use these
agreements. After a third complaint and completion of prescribed grievance proceedings, the
Appellate Division suspended the lawyer from practice for two years. It held that the particular
agreements were per se violative of public policy. We affirm the order of the Appellate Division.
I.
In 1990, the petitioner, Grievance Committee for the Tenth Judicial District, initiated a
disciplinary proceeding charging attorney Cooperman with 15 specifications of professional
misconduct. They relate to his use of three special nonrefundable retainer fee agreements.
The first five charges derive from a written fee agreement to represent an individual in a criminal
matter. It states: “My minimum fee for appearing for you in this matter is Fifteen Thousand
($15,000.00) Dollars. This fee is not refundable for any reason whatsoever once I file a notice of
appearance on your behalf.” One month after the agreement, the lawyer was discharged by the
client and refused to refund any portion of the fee. The client filed a formal complaint which the
Grievance Committee forwarded to Cooperman for a response. Cooperman had already
received a Letter of Caution not to use nonrefundable retainer agreements, and while this new
complaint was pending, Cooperman was issued a second Letter of Caution admonishing him
not to accept the kind of fee arrangement at issue here. He rejected the admonition, claiming
the fee was nonrefundable.
Charges 6 through 10 refer to a written retainer agreement in connection with a probate
proceeding. It states in pertinent part: “For the MINIMAL FEE and NON-REFUNDABLE amount
of Five Thousand ($5,000.00) Dollars, I will act as your counsel.” The agreement further
provided: “This is the minimum fee no matter how much or how little work I do in this
investigatory stage and will remain the minimum fee and not refundable even if you decide prior
to my completion of the investigation that you wish to discontinue the use of my services for any
reason whatsoever.” The client discharged Cooperman, who refused to provide the client with
an itemized bill of services rendered or refund any portion of the fee, citing the unconditional
nonrefundable fee agreement.

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The last five charges relate to a fee agreement involving another criminal matter. It provides:
“The MINIMUM FEE for Mr. Cooperman's representation to any extent whatsoever is Ten
Thousand ($10,000.00) Dollars. The above amount is the MINIMUM FEE and will remain the
minimum fee no matter how few court appearances are made. The minimum fee will remain the
same even if Mr. Cooperman is discharged.” Two days after execution of the fee agreement, the
client discharged Cooperman and demanded a refund. As with the other clients, he demurred.
Cooperman’s persistent refusals to refund any portion of the fees sparked at least three
separate client complaints to the Grievance Committee. In each case, Cooperman answered
the complaint but refused the Grievance Committee’s suggestion for fee arbitration. Thereafter,
the Grievance Committee sought authorization from the Appellate Division, Second Department,
to initiate formal disciplinary proceedings against Cooperman. It tendered an array of arguments
that these retainer agreements are unethical because, first, they violate the lawyer’s obligation
to “refund promptly any part of a fee paid in advance that has not been earned.” Further, the
agreements create “an impermissible chilling effect upon the client’s inherent right upon public
policy grounds to discharge the attorney at any time with or without cause.” The petition also
alleged that the fees charged by Cooperman were excessive, and that he wrongfully refused to
refund unearned fees. Finally, it notes that denominating the fee payment as nonrefundable
constitutes misrepresentation.
After an extensive hearing, the Referee made findings supporting violations on all 15 charges.
On appropriate motion, the Appellate Division confirmed the Referee’s report with respect to
charges 2 through 5, 7 through 10, and 12 through 15. The Court disaffirmed the report as to
charges 1, 6 and 11, which alleged that the retainer agreements constituted deceit and
misrepresentation. In sustaining the remaining charges, the Court held that these retainer
agreements were unethical and unconscionable and “violative of an attorney’s obligations under
the Code of Professional Responsibility to refund unearned fees upon his or her discharge.” The
Court also concluded that Cooperman’s fees were excessive. The Court suspended him from
the practice of law for a period of two years but did not order restitution.
II.
Whether special nonrefundable retainer fee agreements are against public policy is a question
we left open in Jacobson v. Sassower, a fee dispute case. We agree with the Appellate Division
in this disciplinary matter that special nonrefundable retainer fee agreements clash with public
policy and transgress provisions of the Code of Professional Responsibility, essentially because
these fee agreements compromise the client’s absolute right to terminate the unique fiduciary
attorney-client relationship.
The particular analysis begins with a reflection on the nature of the attorney-client relationship.
Sir Francis Bacon observed, “the greatest trust between people is the trust of giving counsel.”
This unique fiduciary reliance, stemming from people hiring attorneys to exercise professional
judgment on a client’s behalf — “giving counsel” — is imbued with ultimate trust and confidence.

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The attorney’s obligations, therefore, transcend those prevailing in the commercial marketplace.
The duty to deal fairly, honestly and with undivided loyalty superimposes onto the attorney-client
relationship a set of special and unique duties, including maintaining confidentiality, avoiding
conflicts of interest, operating competently, safeguarding client property and honoring the
client’s interests over the lawyer’s. To the public and clients, few features could be more
paramount than the fee — the costs of legal services. The Code of Professional Responsibility
reflects this central ingredient by specifically mandating, without exception, that an attorney
“shall not enter into an agreement for, charge, or collect an illegal or excessive fee,” and upon
withdrawal from employment “shall refund promptly any part of a fee paid in advance that has
not been earned.” Accordingly, attorney-client fee agreements are a matter of special concern to
the courts and are enforceable and affected by lofty principles different from those applicable to
commonplace commercial contracts.
Because the attorney-client relationship is recognized as so special and so sensitive in our
society, its effectiveness, actually and perceptually, may be irreparably impaired by conduct
which undermines the confidence of the particular client or the public in general. In recognition
of this indispensable desideratum and as a precaution against the corrosive potentiality from
failing to foster trust, public policy recognizes a client's right to terminate the attorney-client
relationship at any time with or without cause. This principle was effectively enunciated in Martin
v. Camp: “The contract under which an attorney is employed by a client has peculiar and
distinctive features thus notwithstanding the fact that the employment of an attorney by a client
is governed by the contract which the parties make the client with or without cause may
terminate the contract at any time.”
The unqualified right to terminate the attorney-client relationship at any time has been
assiduously protected by the courts. An attorney, however, is not left without recourse for unfair
terminations lacking cause. If a client exercises the right to discharge an attorney after some
services are performed but prior to the completion of the services for which the fee was agreed
upon, the discharged attorney is entitled to recover compensation from the client measured by
the fair and reasonable value of the completed services. We have recognized that permitting a
discharged attorney “to recover the reasonable value of services rendered in quantum meruit, a
principle inherently designed to prevent unjust enrichment, strikes the delicate balance between
the need to deter clients from taking undue advantage of attorneys, on the one hand, and the
public policy favoring the right of a client to terminate the attorney-client relationship without
inhibition on the other.”
Correspondingly and by cogent logic and extension of the governing precepts, we hold that the
use of a special nonrefundable retainer fee agreement clashes with public policy because it
inappropriately compromises the right to sever the fiduciary services relationship with the
lawyer. Special nonrefundable retainer fee agreements diminish the core of the fiduciary
relationship by substantially altering and economically chilling the client's unbridled prerogative
to walk away from the lawyer. To answer that the client can technically still terminate misses the
reality of the economic coercion that pervades such matters. If special nonrefundable retainers
are allowed to flourish, clients would be relegated to hostage status in an unwanted fiduciary

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relationship — an utter anomaly. Such circumstance would impose a penalty on a client for
daring to invoke a hollow right to discharge. The established prerogative which, by operation of
law and policy, is deemed not a breach of contract is thus weakened. Instead of becoming
responsible for fair value of actual services rendered, the firing client would lose the entire
“nonrefundable” fee, no matter what legal services, if any, were rendered. This would be a
shameful, not honorable, professional denouement. Cooperman even acknowledges that the
essential purpose of the nonrefundable retainer was to prevent clients from firing the lawyer, a
purpose which, as demonstrated, directly contravenes the Code and this State’s settled public
policy in this regard.
Nevertheless, Cooperman contends that special nonrefundable retainer fee agreements should
not be treated as per se violations unless they are pegged to a “clearly excessive” fee. The
argument is unavailing because the reasonableness of a particular nonrefundable fee cannot
rescue an agreement that impedes the client’s absolute right to walk away from the attorney.
The termination right and the right not to be charged excessive fees are not interdependent in
this analysis and context. Cooperman’s claim, in any event, reflects a misconception of the
nature of the legal profession by turning on its head the axiom that the legal profession “is a
learned profession, not a mere money-getting trade.”
DR 2-110 (A) and (B) of the Code of Professional Responsibility add further instruction to our
analysis and disposition:
Withdrawal from Employment
(A) In general.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee
paid in advance that has not been earned.
(B) Mandatory withdrawal. A lawyer representing a client before a tribunal, with its
permission if required by its rules, shall withdraw from employment, and a lawyer
representing a client in other matters shall withdraw from employment, if:
(4) The lawyer is discharged by the client.
We believe that if an attorney is prohibited from keeping any part of a prepaid fee that has not
been earned because of discharge by the client, it is reasonable to conclude also that an
attorney may not negotiate and keep fees such as those at issue here. In each of Cooperman’s
retainer agreements, the Appellate Division found that the lawyer transgressed professional
ethical norms. The fee arrangements expressed an absoluteness which deprived his clients of
entitlement to any refund and, thus, conflicted with DR 2-110(A)(3).
Since we decide the precise issue in this case in a disciplinary context only, we imply no views
with respect to the wider array of factors by which attorneys and clients may have fee dispute
controversies resolved. Traditional criteria, including the factor of the actual amount of services
rendered, will continue to govern those situations. Thus, while the special nonrefundable
retainer agreement will be unenforceable and may subject an attorney to professional discipline,
quantum meruit payment for services actually rendered will still be available and appropriate.

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Notably, too, the record in this case contradicts Cooperman's claim that he acted in “good faith.”
He urges us to conclude that he “complied with the limited legal precedents at the time.” The
conduct of attorneys is not measured by how close to the edge of thin ice they skate. The
measure of an attorney’s conduct is not how much clarity can be squeezed out of the strict letter
of the law, but how much honor can be poured into the generous spirit of lawyer-client
relationships. The “punctilio of an honor the most sensitive” must be the prevailing standard.
Therefore, the review is not the reasonableness of the individual attorney’s belief, but, rather,
whether a “reasonable attorney, familiar with the Code and its ethical strictures, would have
notice of what conduct is proscribed.” Cooperman’s level of knowledge, the admonitions to him
and the course of conduct he audaciously chose do not measure up to this necessarily high
professional template. He even acknowledged at his disciplinary hearing that he knew that
“there were problems with the nonrefundability of retainers.” Cooperman’s case, therefore,
constitutes a daring test of ethical principles, not good faith. He failed the test, and those
charged with enforcing transcendent professional values, especially the Appellate Divisions,
ought to be sustained in their efforts.
Our holding today makes the conduct of trading in special nonrefundable retainer fee
agreements subject to appropriate professional discipline. Moreover, we intend no effect or
disturbance with respect to other types of appropriate and ethical fee agreements. Minimum fee
arrangements and general retainers that provide for fees, not laden with the nonrefundability
impediment irrespective of any services, will continue to be valid and not subject in and of
themselves to professional discipline.
The Court is also mindful of the arguments of some of the amici curiae concerned about
sweeping sequelae from this case in the form of disciplinary complaints or investigations that
may seek to unearth or examine into past conduct and to declare all sorts of unobjectionable,
settled fee arrangements unethical. We are confident that the Appellate Divisions, in the highest
tradition of their regulatory and adjudicatory roles, will exercise their unique disciplinary
responsibility with prudence, so as not to overbroadly brand past individualized attorney fee
arrangements as unethical, and will, instead, fairly assess the varieties of these practices, if
presented, on an individualized basis. Therefore, we decline to render our ruling prospectively,
as requested.
Questions:
1. Was the problem with Cooperman’s fees that they were non-refundable, too high, or
both? What if Cooperman had charged a non-refundable fee of $1000 or $100? What if
Cooperman required a $10,000 refundable retainer and a $5000 engagement fee, paid
at the end of representation?
2. What are “minimum fee arrangements and general retainers that provide for fees”? How
are they different from Cooperman’s non-refundable retainer fees?
3. Should attorneys be able to charge a flat fee for a service? What if the flat fee is the
average fee for that service? What if it is less than the average fee?

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In the Matter of Fordham, 423 Mass. 481 (Mass. 1996)
Summary: Bar counsel alleges that Fordham charged a clearly excessive fee for
defending Clark against a OUI and other charges. Hearing committee concluded that
Fordham’s fee was not substantially in excess of a reasonable fee and recommended
against bar discipline. The Massachusetts Supreme Court reversed, holding that
Fordham’s fee was clearly excessive, given the nature of the representation, and issued
a public reprimand.
O’CONNOR, J.
This is an appeal from the Board of Bar Overseers’ dismissal of a petition for discipline filed by
bar counsel against attorney Laurence S. Fordham. On March 11, 1992, bar counsel served
Fordham with a petition for discipline alleging that Fordham had charged a clearly excessive fee
for defending Timothy Clark in the District Court against a charge that he operated a motor
vehicle while under the influence of intoxicating liquor (OUI) and against other related charges.
Fordham moved that the board dismiss the petition and the board chair recommended that that
be done. Bar counsel appealed from the chair's decision to the full board, and the board
referred the matter to a hearing committee.
After five days of hearings, and with “serious reservations,” the hearing committee concluded
that Fordham's fee was not substantially in excess of a reasonable fee and that, therefore, the
committee recommended against bar discipline. Bar counsel appealed from that determination
to the board. By a vote of six to five, with one abstention, the board accepted the
recommendation of the hearing committee and dismissed the petition for discipline. Bar counsel
then filed in the Supreme Judicial Court for Suffolk County a claim of appeal from the board's
action.
Fordham moved in the county court for a dismissal of bar counsel’s appeal. A single justice
denied Fordham's motion and reported the case to the full court. We conclude that the single
justice correctly denied Fordham’s motion to dismiss bar counsel’s appeal. We conclude, also,
that the board erred in dismissing bar counsel's petition for discipline. We direct a judgment
ordering public censure be entered in the county court.
We summarize the hearing committee’s findings. On March 4, 1989, the Acton police
department arrested Timothy, then twenty-one years old, and charged him with OUI, operating a
motor vehicle after suspension, speeding, and operating an unregistered motor vehicle. At the
time of the arrest, the police discovered a partially full quart of vodka in the vehicle. After failing
a field sobriety test, Timothy was taken to the Acton police station where he submitted to two
breathalyzer tests which registered .10 and .12 respectively.
Subsequent to Timothy’s arraignment, he and his father, Laurence Clark consulted with three
lawyers, who offered to represent Timothy for fees between $3,000 and $10,000. Shortly after

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the arrest, Clark went to Fordham’s home to service an alarm system which he had installed
several years before. While there, Clark discussed Timothy’s arrest with Fordham’s wife who
invited Clark to discuss the case with Fordham. Fordham then met with Clark and Timothy.
At this meeting, Timothy described the incidents leading to his arrest and the charges against
him. Fordham, whom the hearing committee described as a “very experienced senior trial
attorney with impressive credentials,” told Clark and Timothy that he had never represented a
client in a driving while under the influence case or in any criminal matter, and he had never
tried a case in the District Court. The hearing committee found that “Fordham explained that
although he lacked experience in this area, he was a knowledgeable and hard-working attorney
and that he believed he could competently represent Timothy. Fordham described himself as
‘efficient and economic in the use of his time.’”
“Towards the end of the meeting, Fordham told the Clarks that he worked on a time charge
basis and that he billed monthly. In other words, Fordham would calculate the amount of hours
he and others in the firm worked on a matter each month and multiply it by the respective hourly
rates. He also told the Clarks that he would engage others in his firm to prepare the case. Clark
had indicated that he would pay Timothy’s legal fees.” After the meeting, Clark hired Fordham to
represent Timothy.
According to the hearing committee’s findings, Fordham filed four pretrial motions on Timothy's
behalf, two of which were allowed. One motion, entitled “Motion in Limine to Suppress Results
of Breathalyzer Tests,” was based on the theory that, although two breathalyzer tests were
exactly .02 apart, they were not “within” .02 of one another as the regulations require. The
hearing committee characterized the motion and its rationale as “a creative, if not novel,
approach to suppression of breathalyzer results.” Although the original trial date was June 20,
1989, the trial, which was before a judge without jury, was held on October 10 and October 19,
1989. The judge found Timothy not guilty of driving while under the influence.
Fordham sent the following bills to Clark:
1.
2.
3.
4.
5.

April 19, 1989, $3,250 for services rendered in March, 1989.
May 15, 1989, $9,850 for services rendered in April, 1989.
June 19, 1989, $3,950 for services rendered in May, 1989.
July 13, 1989, $13,300 for services rendered in June, 1989.
October 13, 1989, $35,022.25 revised bill for services rendered from March 19 to June
30, 1989.
6. November 7, 1989, $15,000 for services rendered from July 1, 1989 to October 19,
1989."

The bills totaled $50,022.25, reflecting 227 hours of billed time, 153 hours of which were
expended by Fordham and seventy-four of which were his associates’ time. Clark did not pay
the first two bills when they became due and expressed to Fordham his concern about their
amount. Clark paid Fordham $10,000 on June 20, 1989. At that time, Fordham assured Clark

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that most of the work had been completed “other than taking the case to trial.” Clark did not
make any subsequent payments. Fordham requested Clark to sign a promissory note
evidencing his debt to Fordham and, on October 7, 1989, Clark did so. In the October 13, 1989,
bill, Fordham added a charge of $5,000 as a “retroactive increase” in fees. On November 7,
1989, after the case was completed, Fordham sent Clark a bill for $15,000.
Bar counsel and Fordham have stipulated that all the work billed by Fordham was actually done
and that Fordham and his associates spent the time they claim to have spent. They also have
stipulated that Fordham acted conscientiously, diligently, and in good faith in representing
Timothy and in his billing in this case.
The board dismissed bar counsel’s petition for discipline against Fordham because it
determined, relying in large part on the findings and recommendations of the hearing
committee, that Fordham’s fee was not clearly excessive. Pursuant to S.J.C. Rule 3:07, DR 2106(B), “a fee is clearly excessive when, after a review of the facts, a lawyer of ordinary
prudence, experienced in the area of the law involved, would be left with a definite and firm
conviction that the fee is substantially in excess of a reasonable fee.” The rule proceeds to list
eight factors to be considered in ascertaining the reasonableness of the fee:
1. The time and labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal service properly.
2. The likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer.
3. The fee customarily charged in the locality for similar legal services.
4. The amount involved and the results obtained.
5. The time limitations imposed by the client or by the circumstances.
6. The nature and length of the professional relationship with the client.
7. The experience, reputation, and ability of the lawyer or lawyers performing the
services.
8. Whether the fee is fixed or contingent.
In concluding that Fordham did not charge a clearly excessive fee, the board adopted, with
limited exception, the hearing committee’s report. The board’s and the hearing committee’s
reasons for dismissing the petition are as follows: Bar counsel and Fordham stipulated that
Fordham acted conscientiously, diligently, and in good faith in his representation of the client
and his billing on the case. Although Fordham lacked experience in criminal law, he is a
“seasoned and well-respected civil lawyer.” The more than 200 hours spent preparing the OUI
case were necessary, “in part to educate Fordham in the relevant substantive law and court
procedures,” because he had never tried an OUI case or appeared in the District Court. The
board noted that “although none of the experts who testified at the disciplinary hearing had ever
heard of a fee in excess of $15,000 for a first-offense OUI case, the hearing committee found
that Clark had entered into the transaction with open eyes after interviewing other lawyers with
more experience in such matters.” The board also thought significant that Clark “later
acquiesced, despite mild expressions of concern, in Fordham’s billing practices.” Moreover, the

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Clarks specifically instructed Fordham that they would not consider a guilty plea by Timothy.
Rather they were interested only in pursuing the case to trial. Finally, Timothy obtained the
result he sought: an acquittal.
Bar counsel contends that the board's decision to dismiss the petition for discipline is erroneous
on three grounds: First, “the hearing committee and the Board committed error by analyzing
only three of the factors set out in DR 2-106 (B) (1)-(8), and their findings with regard to these
criteria do not support their conclusion that the fee in this case was not clearly excessive”;
second, the board “misinterpreted DR 2-106’s prohibition against charging a clearly excessive
fee by reading into the rule a ‘safe harbor’ provision”; and third, “by allowing client acquiescence
as a complete defense.”
In reviewing the hearing committee’s and the board’s analysis of the various factors, as
appearing in DR 2-106 (B), which are to be considered for a determination as to whether a fee
is clearly excessive, we are mindful that, although not binding on this court, the findings and
recommendations of the board are entitled to great weight. We are empowered, however, to
review the board’s findings and reach our own conclusion. In the instant case we are persuaded
that the hearing committee’s and the board's determinations that a clearly excessive fee was
not charged are not warranted.
The first factor listed in DR 2-106(B) requires examining “the time and labor required, the
novelty and difficulty of the questions involved, and the skill requisite to perform the legal service
properly.” Although the hearing committee determined that Fordham “spent a large number of
hours on the matter, in essence learning from scratch what others already know,” it “did not
credit Bar Counsel’s argument that Fordham violated DR 2-106 by spending too many hours.”
The hearing committee reasoned that even if the number of hours Fordham “spent were wholly
out of proportion” to the number of hours that a lawyer with experience in the trying of OUI
cases would require, the committee was not required to conclude that the fee based on time
spent was “clearly excessive.” It was enough, the hearing committee concluded, that Clark
instructed Fordham to pursue the case to trial, Fordham did so zealously and, as stipulated,
Fordham spent the hours he billed in good faith and diligence. We disagree.
Four witnesses testified before the hearing committee as experts on OUI cases. One of the
experts, testifying on behalf of bar counsel, opined that “the amount of time spent in this case is
clearly excessive.” He testified that there were no unusual circumstances in the OUI charge
against Timothy and that it was a “standard operating under the influence case.” The witness
did agree that Fordham’s argument for suppression of the breathalyzer test results, which was
successful, was novel and would have justified additional time and labor. He also acknowledged
that the acquittal was a good result; even with the suppression of the breathalyzer tests, he
testified, the chances of an acquittal would have been “not likely at a bench trial.” The witness
estimated that it would have been necessary, for thorough preparation of the case including the
novel breathalyzer suppression argument, to have billed twenty to thirty hours for preparation,
not including trial time.

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A second expert, testifying on behalf of bar counsel, expressed his belief that the issues
presented in this case were not particularly difficult, nor novel, and that “the degree of skill
required to defend a case such as this was not that high.” He did recognize, however, that the
theory that Fordham utilized to suppress the breathalyzer tests was impressive and one of
which he had previously never heard. Nonetheless, the witness concluded that “clearly there is
no way that he could justify these kind of hours to do this kind of work.” He estimated that an
OUI case involving these types of issues would require sixteen hours of trial preparation and
approximately fifteen hours of trial time. He testified that he had once spent ninety hours in
connection with an OUI charge against a client that had resulted in a plea. The witness
explained, however, that that case had involved a second offense OUI and that it was a case of
first impression, in 1987, concerning new breathalyzer equipment and comparative breathalyzer
tests.
An expert called by Fordham testified that the facts of Timothy’s case presented a challenge
and that without the suppression of the breathalyzer test results it would have been “an almost
impossible situation in terms of prevailing on the trier of fact.” He further stated that, based on
the particulars in Timothy's case, he believed that Fordham’s hours were not excessive and, in
fact, he, the witness, would have spent a comparable amount of time. The witness later
admitted, however, that within the past five years, the OUI cases which he had brought to trial
required no more than a total of forty billed hours, which encompassed all preparation and court
appearances. He explained that, although he had not charged more than forty hours to prepare
an OUI case, in comparison to Fordham's more than 200 expended hours, Fordham
nonetheless had spent a reasonable number of hours on the case in light of the continuance
and the subsequent need to reprepare, as well as the “very ingenious” breathalyzer suppression
argument, and the Clarks’ insistence on trial. In addition, the witness testified that, although the
field sobriety test, breathalyzer tests, and the presence of a half-empty liquor bottle in the car
placed Fordham at a serious disadvantage in being able to prevail on the OUI charge, those
circumstances were not unusual and in fact agreed that they were “normal circumstances.”
The fourth expert witness, called by Fordham, testified that she believed the case was
“extremely tough” and that the breathalyzer suppression theory was novel. She testified that,
although the time and labor consumed on the case was more than usual in defending an OUI
charge, the hours were not excessive. They were not excessive, she explained, because the
case was particularly difficult due to the “stakes and the evidence.” She conceded, however,
that legal issues in defending OUI charges are “pretty standard” and that the issues presented
in this case were not unusual. Furthermore, the witness testified that challenging the
breathalyzer test due to the .02 discrepancy was not unusual, but the theory on which Fordham
proceeded was novel. Finally, she stated that she thought she may have known of one person
who might have spent close to one hundred hours on a difficult OUI case; she was not sure; but
she had never heard of a fee in excess of $10,000 for a bench trial.
In considering whether a fee is “clearly excessive,” the first factor to be considered pursuant to
that rule is “the novelty and difficulty of the questions involved, and the skill requisite to perform
the legal service properly.” That standard is similar to the familiar standard of reasonableness

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traditionally applied in civil fee disputes. Based on the testimony of the four experts, the number
of hours devoted to Timothy’s OUI case by Fordham and his associates was substantially in
excess of the hours that a prudent experienced lawyer would have spent. According to the
evidence, the number of hours spent was several times the amount of time any of the witnesses
had ever spent on a similar case. We are not unmindful of the novel and successful motion to
suppress the breathalyzer test results, but that effort cannot justify a $50,000 fee in a type of
case in which the usual fee is less than one-third of that amount.
The board determined that “because Fordham had never tried an OUI case or appeared in the
district court, Fordham spent over 200 hours preparing the case, in part to educate himself in
the relevant substantive law and court procedures.” Fordham's inexperience in criminal defense
work and OUI cases in particular cannot justify the extraordinarily high fee. It cannot be that an
inexperienced lawyer is entitled to charge three or four times as much as an experienced lawyer
for the same service. A client “should not be expected to pay for the education of a lawyer when
he spends excessive amounts of time on tasks which, with reasonable experience, become
matters of routine.” “While the licensing of a lawyer is evidence that he has met the standards
then prevailing for admission to the bar, a lawyer generally should not accept employment in
any area of the law in which he is not qualified. However, he may accept such employment if in
good faith he expects to become qualified through study and investigation, as long as such
preparation would not result in unreasonable delay or expense to his client.” Although the
ethical considerations set forth in the ABA Code of Professional Responsibility and Canons of
Judicial Ethics are not binding, they nonetheless serve as a guiding principle.
The third factor to be considered in ascertaining the reasonableness of a fee is its comparability
to “the fee customarily charged in the locality for similar legal services.” The hearing committee
made no finding as to the comparability of Fordham’s fee with the fees customarily charged in
the locality for similar services. However, one of bar counsel’s expert witnesses testified that he
had never heard of a fee in excess of $15,000 to defend a first OUI charge, and the customary
flat fee in an OUI case, including trial, “runs from $1,000 to $7,500.” Bar counsel’s other expert
testified that he had never heard of a fee in excess of $10,000 for a bench trial. In his view, the
customary charge for a case similar to Timothy’s would vary between $1,500 and $5,000. One
of Fordham’s experts testified that she considered a $40,000 or $50,000 fee for defending an
OUI charge “unusual and certainly higher by far than any I've ever seen before.” The witness
had never charged a fee of more than $3,500 for representing a client at a bench trial to defend
a first offense OUI charge. She further testified that she believed an “average OUI in the bench
session is two thousand dollars and sometimes less.” Finally, that witness testified that she had
“heard a rumor” that one attorney charged $10,000 for a bench trial involving an OUI charge;
this fee represented the highest fee of which she was aware. The other expert witness called by
Fordham testified that he had heard of a $35,000 fee for defending OUI charges, but he had
never charged more than $12,000 (less than twenty-five per cent of Fordham’s fee).
Although finding that Fordham’s fee was “much higher than the fee charged by many attorneys
with more experience litigating driving under the influence cases,” the hearing committee
nevertheless determined that the fee charged by Fordham was not clearly excessive because

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Clark “went into the relationship with Fordham with open eyes,” Fordham’s fee fell within a “safe
harbor,” and Clark acquiesced in Fordham's fee by not strenuously objecting to his bills. The
board accepted the hearing committee's analysis apart from the committee’s reliance on the
“safe harbor” rule.
The finding that Clark had entered into the fee agreement “with open eyes” was based on the
finding that Clark hired Fordham after being fully apprised that he lacked any type of experience
in defending an OUI charge and after interviewing other lawyers who were experts in defending
OUI charges. Furthermore, the hearing committee and the board relied on testimony which
revealed that the fee arrangement had been fully disclosed to Clark including the fact that
Fordham “would have to become familiar with the law in that area.” It is also significant,
however, that the hearing committee found that “despite Fordham’s disclaimers concerning his
experience, Clark did not appear to have understood in any real sense the implications of
choosing Fordham to represent Timothy. Fordham did not give Clark any estimate of the total
expected fee or the number of $200 hours that would be required.” The express finding of the
hearing committee that Clark “did not appear to have understood in any real sense the
implications of choosing Fordham to represent Timothy” directly militates against the finding that
Clark entered into the agreement “with open eyes.”
That brings us to the hearing committee's finding that Fordham’s fee fell within a “safe harbor.”
The hearing committee reasoned that as long as an agreement existed between a client and an
attorney to bill a reasonable rate multiplied by the number of hours actually worked, the
attorney’s fee was within a “safe harbor” and thus protected from a challenge that the fee was
clearly excessive. The board, however, in reviewing the hearing committee’s decision, correctly
rejected the notion “that a lawyer may always escape discipline with billings based on accurate
time charges for work honestly performed.”
The “safe harbor” formula would not be an appropriate rationale in this case because the
amount of time Fordham spent to educate himself and represent Timothy was clearly excessive
despite his good faith and diligence. Disciplinary Rule 2-106(B)’s mandate that “a fee is clearly
excessive when, after a review of the facts, a lawyer of ordinary prudence, experienced in the
area of the law involved, would be left with a definite and firm conviction that the fee is
substantially in excess of a reasonable fee,” creates explicitly an objective standard by which
attorneys’ fees are to be judged. We are not persuaded by Fordham’s argument that “unless it
can be shown that the ‘excessive’ work for which the attorney has charged goes beyond mere
matters of professional judgment and can be proven, either directly or by reasonable inference,
to have involved dishonesty, bad faith or overreaching of the client, no case for discipline has
been established.” Disciplinary Rule 2-106 plainly does not require an inquiry into whether the
clearly excessive fee was charged to the client under fraudulent circumstances, and we shall
not write such a meaning into the disciplinary rule.
Finally, bar counsel challenges the hearing committee’s finding that “if Clark objected to the
numbers of hours being spent by Fordham, he could have spoken up with some force when he
began receiving bills.” Bar counsel notes, and we agree, that “the test as stated in the DR 2-

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106(A) is whether the fee ‘charged’ is clearly excessive, not whether the fee is accepted as valid
or acquiesced in by the client.” Therefore, we conclude that the hearing committee and the
board erred in not concluding that Fordham’s fee was clearly excessive.
Fordham argues that our imposition of discipline would offend his right to due process. A
disciplinary sanction constitutes “a punishment or penalty” levied against the respondent, and
therefore the respondent is entitled to procedural due process. Fordham contends that the bar
and, therefore, he, have not been given fair notice through prior decisions of this court or the
express language of DR 2-106 that discipline may be imposed for billing excessive hours that
were nonetheless spent diligently and in good faith. It is true, as Fordham asserts, that there is a
dearth of case law in the Commonwealth meting out discipline for an attorney’s billing of a
clearly excessive fee. There is, however, as we have noted above, case law which specifically
addresses what constitutes an unreasonable attorney’s fee employing virtually the identical
factors contained within DR 2-106. More importantly, the general prohibition that “a lawyer shall
not enter into an agreement for, charge, or collect an illegal or clearly excessive fee,” is followed
by eight specific, and clearly expressed, factors, to be evaluated by the standard of “a lawyer of
ordinary prudence,” in determining the propriety of the fee. In addition, nothing contained within
the disciplinary rule nor within any pertinent case law indicates in any manner that a clearly
excessive fee does not warrant discipline whenever the time spent during the representation
was spent in good faith. The fact that this court has not previously had occasion to discipline an
attorney in the circumstances of this case does not suggest that the imposition of discipline in
this case offends due process. We reject Fordham's due process argument.
In charging a clearly excessive fee, Fordham departed substantially from the obligation of
professional responsibility that he owed to his client. The ABA Model Standards for Imposing
Lawyer Sanctions § 7.3 endorses a public reprimand as the appropriate sanction for charging a
clearly excessive fee. We deem such a sanction appropriate in this case. Accordingly, a
judgment is to be entered in the county court imposing a public censure. The record in this case
is to be unimpounded.
Questions:
1. Was the problem with Fordham’s fee the rate he charged, the number of hours he billed,
or both?
2. Why do other attorneys litigating similar cases bill so much less? Is it because cases of
this kind should take less work or because their clients cannot spend any additional
money?
3. What if Fordham’s acquittal rate were substantially higher than other attorneys in the
same practice area? Should he be able to charge a higher rate? How much higher?
4. What if Fordham estimated a fee of $50,000 in advance, and billed only for work actually
completed?
Contingent Fees

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You never give me your money, you only give me your funny paper, and in the middle of
negotiations, you break down.26
Typically, attorneys charge an hourly fee for their services, often billed in some fraction of an
hour. But some attorneys charge a fixed fee for their services. Historically, the most prestigious
law firms charged a fixed fee for their services, often refusing to provide an itemized list of the
services they had provided. Today, detailed billing is the norm, with the exception of attorneys
providing retail representation in routine matters, and appointed counsel for indigent defendants.
However, in some circumstances, attorneys and their clients will form a contingent fee
agreement, under which both parties agree that the attorney is entitled to a certain percentage
of any recovery, often 33%. Contingent fee agreements are typically associated with personal
injury actions, where the plaintiff often has a strong claim, but lacks the financial resources to
pursue litigation. Under a contingent fee agreement, the attorney can fund the litigation, in
exchange for a chance of a much larger recovery.
But contingent fee agreements can also make sense when a client wants to control an
attorney’s incentives. Under an hourly billing agreement, the attorney has an incentive to bill as
many hours as possible, even as the additional work produces diminishing returns to the client.
And under a fixed fee billing agreement, the attorney has an incentive to do as little work as
possible. But under a contingent fee agreement, the attorney simply has an incentive to win.
Under Model Rule 1.5(c), contingency fee agreements cannot be unreasonable and must be in
writing. In addition, contingent fees are prohibited in criminal law and family law actions.
Attorneys cannot form a contingent fee agreement to be paid only if a criminal defendant is
acquitted or receives some other favorable outcome. And attorneys typically cannot form a
contingent fee agreement to receive compensation from the resolution of a domestic dispute.
Culpepper & Carroll, PLLC v. Cole, 929 So. 2d 1224 (La. 2006)
Summary: Cole retained attorney Culpepper for a will contest. Cole requested one-third
contingent fee and Culpepper agreed. Culpepper received a settlement offer and Cole
refused to settle it. Cole terminated representation when Culpepper refused to file suit as
a forced heir. Cole recovered nothing challenging the will by himself. Culpepper wanted
$6,950 plus legal interest as attorney’s fees. Cole argued Culpepper did this on
contingency basis, and that Culpepper quit the case. Court found that a contingent fee
contract exists, but found that Culpepper is not entitled to recover attorneys fees
because Cole did not obtain any recovery.
PER CURIAM.

26

The Beatles, You Never Give Me Your Money, Abbey Road (1969).

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Connie Daniel Cole seeks review of a judgment of the court of appeal affirming an award of
attorney’s fees to his former counsel. For the reasons that follow, we reverse the judgment of
the court of appeal.
FACTS AND PROCEDURAL HISTORY
Connie Daniel Cole retained attorney Bobby Culpepper of the law firm of Culpepper & Carroll,
PLLC to represent him in a contest of his mother’s will. Mr. Cole requested that the firm handle
the matter on a one-third contingent fee basis, and Mr. Culpepper agreed to do so. On
September 20, 2000, Mr. Culpepper sent Mr. Cole a letter in which he confirmed that he would
accept the representation on a contingent fee basis of one-third “of whatever additional property
or money we can get for you.”
After negotiation between Mr. Culpepper and counsel for the estate of Mr. Cole's mother, Mr.
Cole was offered property worth $21,600.03 over and above what he would have received
under the terms of the decedent’s will. Mr. Culpepper thought the compromise was reasonable
and recommended to Mr. Cole that he accept the offer. However, Mr. Cole refused to settle his
claim for that amount, believing he was entitled to a larger share of his mother’s succession as a
forced heir. When Mr. Culpepper refused to file suit in the matter, Mr. Cole terminated his
representation. Mr. Cole then proceeded in proper person to challenge his mother’s will, but he
was unsuccessful and recovered nothing.
On April 12, 2004, Mr. Culpepper filed a “Petition on Open Account” on behalf of the Culpepper
law firm. The suit was filed in Ruston City Court against Mr. Cole, seeking the sum of $6,950.01,
plus legal interest, together with 25% on the principal and interest as additional attorney's fees.
Attached to the petition were Mr. Culpepper’s invoice for attorney's fees and a demand letter to
Mr. Cole seeking the payment of “the entire balance of $6,950.01 that you owe Culpepper &
Carroll, PLLC.”
Mr. Cole, appearing in proper person, answered the law firm’s petition and denied that he owed
any money. Mr. Cole explained in his answer that “Mr. Culpepper did this on a contingency fee
basis,” that Mr. Culpepper “quit the case,” and that Mr. Cole paid court costs but Mr. Culpepper
“would not go to court.”
Following a trial on the merits, at which both parties testified, the city court rendered judgment in
favor of the law firm, awarding the sum of $6,950.01, plus legal interest from the date of judicial
demand until paid, together with 25% on the principal and interest as additional attorney's fees,
and costs. In oral reasons for judgment, the city court judge stated that a “contingency fee was
present” based on the record, including the testimony in open court and the written admission in
Mr. Cole’s answer that there was a contingent fee arrangement. The court noted that “work was
accomplished” by Mr. Culpepper and further noted that, according to the testimony, the
settlement would have produced a better result than if the case had gone to trial on the issue of
forced heirship. Thus, the court was satisfied that the law firm met its burden of proof.

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Mr. Cole appealed the city court's judgment, and in a 2-1 ruling, the court of appeal amended
the judgment and affirmed. The majority agreed that a valid contingent fee contract existed
between Mr. Cole and Mr. Culpepper, and found that by refusing to sign the “favorable
settlement” negotiated by Mr. Culpepper before he was discharged, Mr. Cole was in effect
depriving Mr. Culpepper of the contingent fee he had already earned. Accordingly, the court of
appeal affirmed the award to Mr. Culpepper of $6,950.01 in attorney's fees, plus legal interest.
However, the court of appeal found that the money owing in this case does not derive from an
open account, but rather from a contractual obligation in the form of a contingent fee agreement.
Based on this reasoning, the court of appeal amended the trial court's judgment to delete the
award to the law firm of 25% additional attorney's fees plus costs under the open account
statute.
Judge Caraway dissented. He recognized that a contingent fee contract existed in this case, but
found that because there was ultimately no recovery in the case, no fee was due to Mr.
Culpepper. Judge Caraway further observed that to allow an attorney to collect a fee when the
client rejects a settlement offer and later recovers nothing “ignores multiple and serious
concerns embodied in the rules of professional conduct.”
Upon Mr. Cole's application, we granted certiorari to review the correctness of the court of
appeal's ruling.
DISCUSSION
As a threshold matter, we note the trial court made a finding of fact that a contingent fee
contract existed between Mr. Cole and Mr. Culpepper. Based on our review of the record, we
find no manifest error in this determination.
Having found a contingent fee contract exists, we now turn to the question of whether Mr.
Culpepper is entitled to recover any attorney's fees under this contract. Pursuant to the parties’
agreement, Mr. Culpepper is entitled to one-third “of whatever additional property or money” he
obtained on behalf of Mr. Cole. It is undisputed that Mr. Cole recovered no additional property or
money as a result of the litigation against his mother's estate. Because Mr. Cole obtained no
recovery, it follows that Mr. Culpepper is not entitled to any contingent fee.
Nonetheless, Mr. Culpepper urges us to find that his contingency should attach to the
settlement offer he obtained on behalf of his client, even though his client refused to accept that
offer. According to Mr. Culpepper, he did the work for which Mr. Cole retained him, and he is
therefore entitled to one-third of the amount offered in settlement, notwithstanding Mr. Cole's
rejection of the settlement offer.
With the benefit of hindsight, it would have been in Mr. Cole's best interest to accept the
settlement offer obtained by Mr. Culpepper. However, it is clear that the decision to accept a
settlement belongs to the client alone. Therefore, regardless of the wisdom of Mr. Cole's
decision, his refusal to accept the settlement was binding on Mr. Culpepper.

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To allow Mr. Culpepper to recover a contingent fee under these circumstances would penalize
Mr. Cole for exercising his right to reject the settlement. We find no statutory or jurisprudential
support for such a proposition. Indeed, this court has rejected any interpretation of the Rules of
Professional Conduct which would place restrictions on the client’s fundamental right to control
the case.
In summary, we find that Mr. Culpepper did not obtain any recovery on behalf of Mr. Cole. In the
absence of a recovery, it follows that Mr. Culpepper cannot collect a contingent fee for his
services. Accordingly, we must reverse the judgment of the court of appeal awarding a
contingent fee to Mr. Culpepper.
Questions:
1. Why wasn’t Culpepper entitled to compensation for the work he actually did for Cole?
2. Could the contingent fee agreement between Cole and Culpepper have included a
clause requiring Cole to obtain Culpepper’s consent before accepting or rejecting a
settlement offer?
It’s a bad business to be in. You don’t get thanked and you don’t get paid. It’s a hard world to be
in with, and to end with, and to think about leaving behind.27

27

Liz Phair, Elvis, Be True, Girly-Sound (1991).

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2.7: Financial Relationships with Clients
Client Trust Accounts
Business? It’s quite simple; it’s other people’s money.28
Oh, can somebody explain why things go on this way? I thought they were my friends. I can't
believe it's me, I can't believe that I'm so green. Eyes down, round and round, let’s all sit and
watch the moneygoround. Everyone take a little bit here and a little bit there.29
When attorneys hold money or property in trust for their clients they must never commingle it
with their own funds or property, on pain of sanction, typically suspension or disbarment. In
other words, if a client deposits funds with an attorney, the attorney must place those funds in a
trust account, and if a client deposits physical property, the attorney must also hold that property
separately, typically in a safety deposit box. Commingling funds or property is a per se violation,
with few exceptions, primarily in order to enable an attorney to pay any banking fees on a
client’s trust account.
State bar associations carefully monitor attorney trust accounts and punish any commingling of
funds. Some state bar associations even randomly audit attorney trust accounts, looking for
violations. State rules of professional conduct typically require attorneys to deposit client funds
in an interest-bearing trust account. Many states require attorneys to deposit some or all of the
interest generated by client trust accounts into a common fund. This Interest on Lawyers’ Trust
Accounts (“IOLTA”) fund is used to provide legal services to indigent clients.
Attorneys may withdraw funds from a client’s trust account in order to pay the client’s attorney
fees, as they are earned. The rule against commingling prohibits attorneys from using funds
from a client trust account to pay business or personal expenses, and the attorney must return
any funds remaining in a client’s trust account to the client when the representation ends. When
a client receives a settlement or award, the attorney must deposit the funds in the client’s trust
account, and then withdraw funds to pay the client’s attorney fees and disburse to the client.
Specifically, if the attorney and the client have a contingent fee agreement, the attorney must
pay the client’s contingent fee from the client trust account.
Rule 1.15: Safekeeping Property
a. A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in
connection with a representation separate from the lawyer’s own property. Funds shall
be kept in a separate account maintained in the state where the lawyer’s office is
situated, or elsewhere with the consent of the client or third person. Other property shall
be identified as such and appropriately safeguarded. Complete records of such account

28
29

Alexandre Dumas.
The Kinks, Moneygoround, Lola Versus Powerman and the Moneygoround (1970).

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b.

c.

d.

e.

funds and other property shall be kept by the lawyer and shall be preserved for a period
of [five years] after termination of the representation.
A lawyer may deposit the lawyer’s own funds in a client trust account for the sole
purpose of paying bank service charges on that account, but only in an amount
necessary for that purpose.
A lawyer shall deposit into a client trust account legal fees and expenses that have been
paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses
incurred.
Upon receiving funds or other property in which a client or third person has an interest, a
lawyer shall promptly notify the client or third person. Except as stated in this rule or
otherwise permitted by law or by agreement with the client, a lawyer shall promptly
deliver to the client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property.
When in the course of representation a lawyer is in possession of property in which two
or more persons (one of whom may be the lawyer) claim interests, the property shall be
kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly
distribute all portions of the property as to which the interests are not in dispute.

Neb. State Bar Ass’n v. Statmore, 352 N.W.2d 875 (Neb. 1984).
Summary: Statmore (Attorney) represented Kuzara for a 2nd offense DUI. Kuzara gave
Statmore $500 for representation. Statmore deposited the check, but it was returned twice by
the bank due to insufficiency of funds. Without Statmore’s knowledge, the bank deposited $495.
Statmore requested criminal prosecution to get paid. Kuzara hired a different attorney. Statmore
got an addition $540. Kuzara contacted Statmore about potential double payment and
requested a reply, but Statmore did not reply. Statmore realized the double payment in
February. Statmore acknowledged double payment but didn’t have funds to reimburse.
Statmore brought a $245 check to pay Kuzara. Mistake did not relieve Statement of his
professional duty regarding his client’s funds.
PER CURIAM.
This is an original disciplinary proceeding by the Nebraska State Bar Association against Clay
B. Statmore, an attorney admitted to practice in Nebraska. After a hearing before the Committee
on Inquiry of the First Disciplinary District and a review by the Disciplinary Review Board, formal
charges against Statmore have been filed in this court.
Statmore does not deny the charges. The charges allege violations of the following:
CANON 1. A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal
Profession.
DR 1-102. Misconduct.

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A. A lawyer shall not:
1. Violate a Disciplinary Rule.
6. Engage in any other conduct that adversely reflects on his fitness to practice law.
CANON 9. A Lawyer Should Avoid Even the Appearance of Professional Impropriety.
DR 9-102. Preserving Identity of Funds and Property of a Client.
B. A lawyer shall:
1. Promptly notify a client of the receipt of his funds, securities, or other properties.
4. Promptly pay or deliver to the client as requested by a client the funds, securities, or
other properties in the possession of the lawyer which the client is entitled to receive.
We review the evidence de novo to determine if discipline should be imposed and, if
discipline is warranted, the nature of the discipline which is appropriate under the
circumstances.
On April 15, 1982, Statmore undertook representation of Deborah A. Kuzara regarding a charge
of driving while intoxicated, second offense. Kuzara, on June 2, gave Statmore her check for
$500—the agreed fee for the representation. Statmore deposited Kuzara’s June 2 check, which
was returned twice by the bank due to insufficiency of Kuzara’s account. Statmore contacted
Kuzara and her father in New Jersey about the insufficient fund check.
On June 22 Kuzara issued another check (check A) for $500, which Statmore deposited but
which was returned to Statmore’s Lincoln bank on account of Kuzara’s insufficient funds. On
June 30 Kuzara sent Statmore still another check (check B) in the amount of $540—$500 for
Statmore’s fee, plus $40 for the check service charges regarding the other Kuzara checks.
Check B was returned on account of insufficient funds. Unbeknown to Statmore, his bank had
held check A and collected that check on July 9, 1982, with credit to Statmore's business
account in the sum of $495 ($500 less a $5 service charge). Statmore again contacted Kuzara
about the insufficient fund checks. At this time Statmore was still unaware that the bank had
credited his account $495 for check A on July 9.
Statmore took check B to the Lancaster County attorney and requested criminal prosecution.
Notified by the county attorney regarding prosecution on check B, Kuzara hired attorney George
Thompson of Bellevue, Nebraska. Kuzara later delivered $540 to the county attorney for check
B. On November 12 the county attorney sent $540 to Statmore regarding check B.
Kuzara contacted Statmore about the possibility of a double payment, that is, check A credited
to Statmore on July 9 and the funds from the county attorney on November 12 regarding check
B. Statmore asked for verification from Kuzara that there was in fact a double payment, and felt
he was getting a “runaround” about the checks.
Attorney Thompson wrote Statmore on January 5, 1983, pointed out the double payment, and
requested a reply. Statmore did not respond to Thompson's letter. Early in February, Statmore
checked his deposit slips and saw that there indeed had been the “$495 deposit” (check A) to
his account on July 9. This was apparently Statmore’s first verification of payment on check A.

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Thompson again wrote to Statmore on March 2 and demanded Kuzara's $495 by return mail.
Statmore never responded to that letter. By March 14 Statmore conclusively realized that he
had received double payment from Kuzara. On March 16 Thompson telephoned Statmore, who
then acknowledged the double payment and told Thompson he did not have the funds to
reimburse Kuzara.
On May 23 Kuzara filed a complaint with the Counsel for Discipline of the Nebraska State Bar
Association. Counsel for Discipline wrote Statmore as soon as Kuzara filed her complaint.
Statmore paid Kuzara $250 on June 28 and the same day wrote the Counsel for Discipline that
he had “recently” paid Kuzara $250. In his June 28 letter to the Counsel for Discipline, Statmore
also mentioned that the “remaining $245 should be repaid within the next fourteen days.”
Statmore paid nothing further until the day of the hearing before the Committee on Inquiry.
On the day of the hearing before the Committee on Inquiry, September 20, Statmore brought
the Counsel for Discipline a check for $245 to pay Kuzara, and stated he “didn't know who to
send it to.”
Statmore says he never reconciles his monthly bank statement and, therefore, had no
knowledge that check A had cleared and been credited to his account on July 9. Such
ignorance regarding check A existed at the time Statmore received the money from the
Lancaster County attorney regarding check B.
Throughout all the time in question, Statmore was having financial problems: failed to pay
utilities (some of which were disconnected) and did not pay office rent (moved his office after
delinquency in rent). Statmore implies that the somewhat chaotic office situation explains, if not
excuses, the sorry state of affairs during his representation of Kuzara.
Implicit in the license to practice law is the requirement that the recipient of the license shall
demean himself in a proper manner and shall refrain from practices which bring discredit upon
the lawyer, the profession, and the courts.
Any violation of the ethical standards relating to the practice of law, or any conduct of an
attorney which tends to bring reproach upon the courts or the legal profession, constitutes
grounds for suspension or disbarment.
When the double payment occurred, Statmore held Kuzara’s money, which he was not
authorized to retain. Kuzara’s conduct or mistake concerning payment of her checks did not
relieve Statmore of his professional duty regarding his client's funds. Accurate accountability of
a client’s funds is the responsibility of the lawyer, not the client. Statmore’s slipshod office
management and careless bookkeeping prevented any semblance of the accurate accounting
lawyers must maintain with respect to a client’s funds. As a result of Statmore’s poor
management and failure to keep track of payment from Kuzara, there was a commingling of a
client’s money—an area of gravest concern of this court in reviewing claimed lawyer
misconduct. The prohibition against commingling of funds is a salutary rule adopted

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to provide against the probability in some cases, the possibility in many cases, and the
danger in all cases that such commingling will result in the loss of clients’ money. Moral
turpitude is not necessarily involved in the commingling of a client’s money with an
attorney’s own money if the client’s money is not endangered by such procedure and is
always available to him. However, inherently there is danger in such practice for
frequently unforeseen circumstances arise jeopardizing the safety of the client’s funds,
and as far as the client is concerned the result is the same whether his money is
deliberately misappropriated by an attorney or is unintentionally lost by circumstances
beyond the control of the attorney.
A lawyer’s poor accounting procedures and sloppy office management are not excuses or
mitigating circumstances in reference to commingled funds.
We realize that Statmore has repaid Kuzara the overpayment. However, a lawyer’s restitution of
a client’s funds after being faced with legal accountability does not exonerate professional
misconduct.
Among the major considerations in determining whether a lawyer should be disciplined is
maintenance of the highest trust and confidence essential to the attorney-client relationship. As
a profession, the bar continuously strives to build and safeguard such trust and confidence, but
conduct such as before us in the present case weakens the efforts of the overwhelming majority
of lawyers in Nebraska whose conduct meets, if not exceeds, the Code of Professional
Responsibility.
To determine whether and to what extent discipline should be imposed, it is necessary that we
consider the nature of the offense, the need for deterring others, the maintenance of the
reputation of the bar as a whole, the protection of the public, the attitude of the offender
generally, and his present or future fitness to continue in the practice of law.
Therefore, under the circumstances we find that a suspension is appropriate discipline for
Statmore and that Statmore should be suspended from the practice of law for a period of 6
months. During such suspension, we sincerely suggest that Statmore reappraise the candor,
fairness, and responsibility a lawyer owes to his client. We recommend that Statmore revise his
accounting procedures and office management to prevent recurrence of any misconduct.
Suspension of Statmore shall be effective September 1, 1984, and shall last for 6 months.
Statmore shall make suitable arrangements that his clients’ matters pending at and during his
suspension shall be suitably protected.
Questions:
1. Was Statmore’s commingling of Kuzara’s funds with his own intentional? Was it
reckless? Was Kuzara harmed, and if so, how?

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2. Was a 6 month suspension an appropriate sanction under the circumstances? How does
it compare to the sanctions for other violations of the duty of care?
Further Reading:
●

ABA Model Rules for Client Trust Account Records (2010).

Equity as Compensation
I’ve got the brains you’ve got the looks. Let’s make lots of money. You’ve got the brawn I’ve got
the brains. Let’s make lots of money.30
Sometimes, attorneys agree to accept an equity interest in their client’s property, in lieu of
attorney fees. For example, an attorney representing a corporation may accept shares of the
company rather than cash. This kind of agreement can benefit both the client and the attorney,
especially if the client is cash-poor, but is a promising investment. The client receives legal
advice with no upfront expense, and the attorney receives an investment potentially worth much
more than the hourly fees. Moreover, the attorney has an incentive to provide the best possible
advice, because it will increase the value of their investment.
But equity compensation is not limited to securities. An attorney may agree to represent a client
in exchange for an equity interest in the client’s real estate. Or a patent attorney may agree to
prosecute a patent in exchange for an interest in the patent.
In any case, the Model Rules of Professional Conduct permits equity compensation, but only if
the attorney complies with the requirements of Model Rule 1.8(a). Essentially, the attorney must
disclose the terms of the agreement to the client, the attorney must advise the client to seek
independent legal counsel, and the client must provide informed consent to the agreement, all
of which must be in writing. In addition, the terms of the agreement must be substantively “fair
and reasonable” to the client.
The concern is that the attorney’s financial interest in the client’s property could create a conflict
of interest. In theory, both the client and the attorney want the property to increase in value. But
in some cases, the attorney’s interest in the property could compromise the impartiality of the
attorney’s advice, if a potential transaction would benefit the client, but harm the attorney’s
property interest.
Model Rule 1.8: Current Clients: Specific Rules
a. A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless:

30

Pet Shop Boys, Opportunities (Let’s Make Lots of Money), Please (1986).

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1. the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing in a
manner that can be reasonably understood by the client;
2. the client is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek the advice of independent legal counsel on the
transaction; and
3. the client gives informed consent, in a writing signed by the client, to the
essential terms of the transaction and the lawyer's role in the transaction,
including whether the lawyer is representing the client in the transaction.
Committee on Prof. Ethics v. Mershon, 316 N.W.2d 895 (Iowa 1982)
Summary: Mershon did tax and property work for Miller. Mershon, Miller, and Schenk formed a
corporation to turn land into a development property. Mershon gave the corporation a $6,250 promissory
note and received 200 shares of stock in exchange for his legal services. The project never happened due
to lack of funding, and Miller died. Mershon expended $900 in out of pocket expenses for the corporation
(more than promissory note) but didn’t intend to seek payment. Schenk wanted ½ of the outstanding
stock. Mershon violated the rules of professional responsibility because he and Miller had differing
interests in the transaction. Mershon was reprimanded.
McCORMICK, Justice.
This case involves review of a Grievance Commission report recommending that respondent be
reprimanded for alleged ethical violations arising from a business transaction with a client. We
adopt the recommendation.
From our de novo review of the record, we find the facts as follows. Respondent is a Cedar
Falls attorney. He began to do tax and property work for Leonard O. Miller, a farmer, in 1951.
Miller owned 100 acres of farmland adjacent to a country club near the city. In 1969, when he
was 68, Miller became interested in developing the land for residential purposes. He employed
a landscape architect and R. O. Schenk, of Schenk Engineering Company, to prepare a
preliminary plat and market study.
When the preliminary work was completed, Miller brought Schenk to meet with respondent to
discuss the project. Miller wished to proceed with the development but did not have sufficient
funds to pay engineering costs. Schenk suggested that the three men form a corporation to
which Miller would contribute the land, Schenk would contribute engineering services, and
respondent would contribute legal services. They agreed the land was worth approximately
$400 an acre. Schenk estimated engineering costs at $400 an acre, and he said legal costs
were usually one half that amount.
After several conferences in early 1970, the three men formed a corporation, Union Township
Development, Inc. Subsequently Miller conveyed the farmland to the corporation at a capitalized
value of $12,500 and received 400 shares of stock. Schenk gave the corporation a $12,500

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promissory note and also received 400 shares of stock. Respondent gave the corporation a
$6,250 promissory note and received 200 shares of stock. The promissory notes were interest
free and due at the discretion of the corporation. They were to represent the services to be
rendered by Schenk and respondent.
Development plans were premised on the corporation’s ability to obtain financing on the security
of the farmland. As it turned out, the corporation was unable to borrow money unless the three
individuals would guarantee the obligation personally. They refused to do so, and financing was
never obtained.
The trio met at least annually to discuss the development, but when Miller died on December
31, 1978, at the age of 77, the project was still at a stalemate. Respondent believed the parties
had an oral agreement that if development did not occur he and Schenk would relinquish their
interests in the corporation to Miller. Three days after Miller’s death, he transferred his stock to
the corporation. He asked Schenk to do the same thing, but Schenk refused, denying any
obligation to do so.
Respondent was nominated in Miller’s will as executor of his estate. He served in that capacity
until Miller’s two daughters expressed dissatisfaction with his role in Miller’s conveyance of the
farmland to the corporation. He then resigned as executor. Consistent with his view, he showed
Miller as owner of all corporate stock in the preliminary probate inventory. The farmland was
appraised at $4,000 an acre.
Although respondent had expended $900 in out-of-pocket expenses for the corporation and
performed legal services worth more than $6,000, he did not intend to seek payment. Schenk,
however, maintained at the time of the grievance hearing that he still owned one half of the
outstanding stock of the corporation.
The determinative question in our review is whether this evidence establishes a violation of the
principle in DR5-104(A), which provides:
A lawyer shall not enter into a business transaction with a client if they have differing
interests therein and if the client expects the lawyer to exercise his professional
judgment therein for the protection of the client, unless the client has consented after full
disclosure.
In order to establish a violation of DR5-104(A) it is necessary to show that the lawyer and client
had differing interests in the transaction, that the client expected the lawyer to exercise his
professional judgment for the protection of the client, and that the client consented to the
transaction without full disclosure.
The definitions section of the code of professional responsibility defines "differing interests":

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“Differing interests” include every interest that will adversely affect either the judgment or
loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other
interest.
Miller and Mershon plainly had differing interests in at least two aspects of the transaction. One
was the issue of giving respondent a present interest in the corporation in anticipation of future
legal services. The fee agreement was made during the existence of the attorney-client
relationship and thus was subject to the general principles governing attorney-client
transactions. Because respondent’s fee was tied to the amount of his stock in the corporation,
he and Miller had differing interests concerning the extent of respondent's stock ownership.
Another differing interest involved making respondent a debtor of the corporation to assure that
the services would be performed. Because Miller’s interest was aligned wholly with the
corporation, he and respondent had differing interests with respect to respondent's promissory
note.
No dispute exists that Miller relied on respondent to exercise his professional judgment to
protect him. One respect in which respondent did so was in preparing a written agreement to
assure that Miller was reimbursed from the first profits of the corporation for the preincorporation
expenses of preliminary studies. This, however, was the only agreement of the parties that was
reduced to writing.
The fighting issue before the Commission was whether respondent made full disclosure to Miller
within the meaning of the Canon before Miller entered the transaction. If full disclosure means
only that respondent made Miller fully aware of the nature and terms of the transaction, this
requirement was satisfied. Nothing was hidden from Miller, and he was an active participant in
the transaction. Full disclosure, however, means more than this.
Because of the fiduciary relationship which exists, the attorney
has the burden of showing that the transaction was in all respects fairly and equitably
conducted; that he fully and faithfully discharged all his duties to his client, not only by
refraining from any misrepresentation or concealment of any material fact, but by active
diligence to see that his client was fully informed of the nature and effect of the
transaction proposed and of his own rights and interests in the subject matter involved,
and by seeing to it that his client either has independent advice in the matter or else
receives from the attorney such advice as the latter would have been expected to give
had the transaction been one between his client and a stranger.
Respondent acknowledges he did not suggest to Miller that he obtain independent advice. The
record does not show he otherwise gave Miller the kind of advice Miller should have had if the
transaction were with a stranger. Respondent let Schenk estimate the value of his legal services
and thus the extent of respondent’s stock ownership without any investigation to determine
whether the estimate was accurate. Nor did he suggest to Miller that he make such
investigation. If Schenk’s estimate was generous, the effect may have been to chill respondent’s

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scrutiny of the benchmark for the valuation, which was Schenk’s valuation of his own services.
Furthermore there was no discussion or investigation concerning the reasonableness or wisdom
of tying respondent’s fee for future services to a present twenty percent interest in the
corporation. Respondent acknowledges that the arrangement was at least a technical violation.
Nothing was done to assure that Miller would get his farm back if either Schenk or respondent
did not perform or if the development should not be undertaken. Nothing was done to protect
Miller or his estate in the event of the death of any of the parties. The promissory notes could
hardly have been on more favorable terms to the debtors. The record does not show whether
Miller was informed of the difficulty the corporation might have in enforcing respondent's
obligation. So far as the record shows, Miller was not told of any possible effect of respondent's
differing interests on the exercise of his professional judgment.
The Commission found respondent is forthright and honest and gained no profit from the
transaction. The record confirms this finding. As the Commission also found, however, a
violation of DR5-104(A) was nevertheless established. Respondent had three alternatives when
the Schenk proposal was first made. The safest and perhaps best course would have been to
refuse to participate personally in the transaction. Alternatively, he could have recommended
that Miller obtain independent advice. Finally, if Miller refused to seek independent advice or
respondent did not recommend he do so, he could have made the least desirable choice. He
could have attempted to meet the high standard of disclosure outlined in this opinion.
Having chosen to enter the transaction without recommending that Miller obtain independent
advice, respondent was obliged to make full disclosure. Because the record does not show full
disclosure was made before Miller consented to the transaction, a violation of DR5-104(A) has
been established. This is true even though respondent did not act dishonestly or make a profit
on the transaction.
In accordance with the Commission recommendation, we reprimand him for the violation.
Questions:
1. Did Mershon benefit at Miller’s expense?
2. Why was Miller reprimanded? What should he have done to avoid a reprimand? Would it
have changed the outcome?
3. Was Mershon’s punishment sufficient under the circumstances?
Litigation Finance
Historically, “maintenance,” “champerty,” and “barratry” were illegal and tortious.31 Maintenance
is litigation funding by a disinterested third party, champerty is litigation funding in exchange for
31

Percy H. Winfield, History of Maintenance and Champerty, 35 L. Q. Rev. 50 (1919). In medieval
England, maintenance and champerty were both prohibited by statute, and may also have been
prohibited by the common law.

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a percentage of any recovery, and barratry is frivolous litigation.32 The prohibition was intended
to prevent frivolous and abusive litigation. The concern was that nobles would abuse the courts
to harass their enemies and extort settlements.33
Until recently, United States courts maintained the prohibition on maintenance and champerty.
But people began to question the legitimacy of rules that prevented people from pursuing valid
claims simply because they could not pay attorney’s fees. First, courts began permitting
contingent fee agreements, which are champerty, but limited to lawyers. And then they began
permitting litigation finance agreements, which are champerty for everyone.
Contingent fee agreements are literally champerty, because an attorney agrees to fund litigation
in exchange for a percentage of the recovery. And litigation finance agreements are champerty
squared, because a third party agrees to fund litigation in exchange for a percentage of the
recovery. But courts have held that both contingent fees and litigation finance are fine, because
they enable people to pursue valid claims.
Model Rule 1.8: Current Clients: Specific Rules
e. A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that:
1. a lawyer may advance court costs and expenses of litigation, the repayment of
which may be contingent on the outcome of the matter; and
2. a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client.
f. A lawyer shall not accept compensation for representing a client from one other than the
client unless:
1. the client gives informed consent;
2. there is no interference with the lawyer's independence of professional judgment
or with the client-lawyer relationship; and
3. information relating to representation of a client is protected.
Model Rule 1.8: Current Clients: Specific Rules
i.

A lawyer shall not acquire a proprietary interest in the cause of action or subject matter
of litigation the lawyer is conducting for a client, except that the lawyer may:
1. acquire a lien authorized by law to secure the lawyer's fee or expenses; and
2. contract with a client for a reasonable contingent fee in a civil case.

Restatement (Third) of the Law Governing Lawyers § 36: Forbidden Client–Lawyer
Financial Arrangements
32

The word “champerty” derived from the Old French word “champart,” which referred to a feudal lord’s
claim to a share of the produce of the land worked by a vassal. The word “barratry” derived from the Old
French word “barater,” which meant “to deceive.”
33
In practice, the law prohibited champerty, and may have permitted maintenance without champerty.

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1. A lawyer may not acquire a proprietary interest in the cause of action or subject matter of
litigation that the lawyer is conducting for a client, except that the lawyer may:
a. acquire a lien to secure the lawyer’s fee or expenses; and
b. contract with a client for a contingent fee in a civil case except when prohibited.
2. A lawyer may not make or guarantee a loan to a client in connection with pending or
contemplated litigation that the lawyer is conducting for the client, except that the lawyer
may make or guarantee a loan covering court costs and expenses of litigation, the
repayment of which to the lawyer may be contingent on the outcome of the matter.
3. A lawyer may not, before the lawyer ceases to represent a client, make an agreement
giving the lawyer literary or media rights to a portrayal or account based in substantial
part on information relating to the representation.
Saladini v. Righellis, 426 Mass. 231 (1997)
MARSHALL, J.
The plaintiff, Lisa Saladini, appeals from the decision of a judge in the Superior Court dismissing
her complaint, sua sponte, on the ground that a written agreement she had with the defendant,
George P. Righellis, was champertous and unenforceable. Saladini had sought a declaratory
judgment establishing her rights under the agreement. We granted Saladini’s application for
direct appellate review to consider whether we should continue to enforce the doctrine. We rule
that the common law doctrines of champerty, barratry, and maintenance no longer shall be
recognized in Massachusetts. We reverse the judgment entered in the Superior Court and
remand this case for further proceedings.
I
On September 23, 1992, Saladini and Righellis entered into a written agreement pursuant to
which Saladini agreed to advance funds to Righellis to allow him to pursue potential legal claims
he had arising out of his interest in real estate in Cambridge, known as Putnam Manor. In
return, Righellis agreed that, if pursuit of his claims yielded any recovery, the first amount
recovered would be used to reimburse Saladini, and that Saladini would, in addition, receive
50% of any net recovery remaining after payment of attorney’s fees. Saladini, herself, had no
interest in Putnam Manor.
Saladini thereafter advanced funds to Righellis that he used to retain an attorney under a
contingent fee agreement to bring a lawsuit and to pursue his legal claims. At some point
Righellis became dissatisfied with that attorney’s representation and, with the concurrence of
Saladini, hired a new lawyer, Robert Potters, to replace him. Righellis signed a new contingent
fee agreement with Potters.
The original agreement between Saladini and Righellis did not anticipate retaining a second
attorney to represent Righellis in the Putnam Manor lawsuit. Saladini maintains that to deal with

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this circumstance, she and Righellis agreed that each would pay one-half of the retainer
required by Potters, each would pay one-half of the litigation disbursements, and that in all other
respects the terms of their original agreement would remain in effect. No new or amended
agreement was executed, but Saladini did pay one-half of the retainer to Potters and one-half of
the litigation disbursements. All told, Saladini advanced a total of $19,229 to Righellis.
At some point Righellis settled the Putnam Manor lawsuit, with the defendants in that case
agreeing to pay him $130,000. The first payment of $10,000 was paid on or about November 2,
1994, with the balance due on January 11, 1995. Neither Potters nor Righellis informed Saladini
that a settlement had been reached, or that the first settlement funds had been received.
When Saladini became aware of the settlement, she filed suit, seeking to establish her rights
under the agreement. She also sought, and a judge in the Superior Court granted, injunctive
relief, enjoining Righellis and Potters from disbursing any of the settlement funds until her claims
had been adjudicated.
In November, 1995, Righellis filed a motion for summary judgment that Saladini opposed. After
reviewing the submissions of the parties, a judge in the Superior Court, sua sponte, invited both
parties to submit memoranda on the issue whether the agreement between Saladini and
Righellis was champertous. A hearing followed and, in September, 1996, another judge ruled
that the agreement was champertous and unenforceable as against public policy. She ordered
that Saladini's complaint be dismissed in its entirety. A judgment to that effect was entered on
September 24, 1996. Saladini appealed. A judge granted Saladini’s motion to continue the
preliminary injunction pending her appeal.
II
Champerty has been described as the unlawful maintenance of a suit, where a person without
an interest in it agrees to finance the suit, in whole or in part, in consideration for receiving a
portion of the proceeds of the litigation. We described the doctrine as a “narrow and somewhat
technical concept,” a type of maintenance that occurs when a person engages in “officious
intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with
money or otherwise, to prosecute or defend it.”
The doctrine has a long and, in this country, checkered history. The ancient prohibition against
champerty arose in feudal England. More recently the doctrine has been viewed as a check on
frivolous or unnecessary litigation, or a mechanism to encourage the settlement of disputes
without recourse to litigation. The extent to which courts, here, accepted the doctrine has varied.
In some States, champerty was never adopted, or has been abandoned. In others, the doctrine
was given narrow application. Massachusetts followed the common law prohibition against
champerty, although we have never enforced the doctrine to the same extent as English

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courts.34 Nevertheless, under our own development of the doctrine we have little doubt that the
agreement between Saladini and Righellis would be champertous were we to continue to
recognize the offense. We no longer are inclined to do so.
We have long abandoned the view that litigation is suspect, and have recognized that
agreements to purchase an interest in an action may actually foster resolution of a dispute. In
more recent cases we have questioned whether the doctrine continues to serve any useful
purpose. In McInerney, we noted that “the decline of champerty, maintenance, and barratry as
offences is symptomatic of a fundamental change in society’s view of litigation — from ‘a social
ill, which, like other disputes and quarrels, should be minimized’ to ‘a socially useful way to
resolve disputes.’” In Christian v. Mooney, we declined to consider whether an agreement
between a “bounty hunter in troubled titles” and other plaintiffs in a suit was champertous
because that issue was not contested by the parties to the agreement — even though that
plaintiff's repeated instigation of litigation regarding troubled real estate titles was the very
conduct traditionally condemned as violative of the prohibition against champerty. Most recently,
in Berman v. Linnane, we declined to strike down a contingent fee agreement that did not satisfy
the requirements of S.J.C. Rule 3:05 as champertous, relying rather on “the public policy
against the recovery of excessive fees” to limit the financial recovery by an attorney. We
observed in that case that “at least as to lawyers, other principles fulfil whatever purpose
champerty once had.” These decisions all reflect the change in our attitude toward the financing
of litigation.
We also no longer are persuaded that the champerty doctrine is needed to protect against the
evils once feared: speculation in lawsuits, the bringing of frivolous lawsuits, or financial
overreaching by a party of superior bargaining position. There are now other devices that more
effectively accomplish these ends. Our rule governing contingent fees between attorneys and
clients is based on the principle that an attorney’s fee must be reasonable. We also recognize a
public policy against the recovery of excessive fees. Additional devices include Mass. R. Civ. P.
11, providing sanctions for misconduct, and G. L. c. 231, § 6F, regulating the bringing of
frivolous lawsuits. General Laws c. 93A, and the doctrines of unconscionability, duress, and
good faith, establish standards of fair dealing between opposing parties. To the extent that we
continue to have the concerns that the doctrine of champerty was thought to address, we
conclude that it is better to do so directly, rather than attempting to mold an ancient doctrine to
modern circumstances.35 As Justice Holmes, then a member of this court, said a century ago: “It

34

For example, we consistently have held that it is not unlawful “to engage in the business of buying
choses in action and enforcing them by suit if necessary,” although under English common law
assignments of choses in action are within the scope of champerty. We have not prohibited agreements
otherwise champertous where the party has an independent interest in the suit. We also have recognized
the validity of contingent fee arrangements with attorneys, which otherwise would be champertous.
35
The doctrine of champerty may also be unworkable or have harsh results. Rather than punishing the
owner of the legal claim who has entered into a champertous agreement, the doctrine bestows on him a
windfall. In this case, for example, Righellis would be permitted to retain the full benefit of the positive
result achieved in the Putnam Manor lawsuit, while he would not have to honor his obligations to Saladini,
the person whose support made pursuit of the lawsuit possible. A defendant sued in a champerty-

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is revolting to have no better reason for a rule of law than that so it was laid down in the time of
Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long
since, and the rule simply persists from blind imitation of the past.”
Other States that no longer recognize the doctrine of champerty have continued to scrutinize an
agreement to finance a lawsuit with care. We shall do likewise. This means that if an agreement
to finance a lawsuit is challenged, we will consider whether the fees charged are excessive or
whether any recovery by a prevailing party is vitiated because of some impermissible
overreaching by the financier. Judges also retain their inherent power to disapprove an
attorney's fee that is unreasonable. We shall be guided in our analysis by a rule of what is fair
and reasonable, looking to all of the circumstances at the time the arrangement is made to
determine whether the agreement should be set aside or modified. In this case, for example,
had the agreement been challenged, relevant factors might have included the respective
bargaining position of the parties at the time the agreement was made, whether both parties
were aware of the terms and consequences of the agreement, whether Righellis may have been
unable to pursue the lawsuit at all without Saladini’s funds, and whether the claim by Righellis
that he will receive but $35,000 of the total $130,000 settlement award if Saladini prevails is
unreasonable in the circumstances. We observe that before the judge raised the issue, Righellis
had never challenged the validity of his agreement with Saladini. The record before us does not
permit any conclusion regarding the reasonableness of the agreement between Righellis and
Saladini on the one hand, or Righellis and Potters on the other. We see no reason why Righellis
should be the beneficiary of any windfall, or why any adjustment to the financing arrangement
— if appropriate at all — should be made solely at Saladini's expense. If pursued, those matters
can be decided by the trial judge.
Questions:
1. On October 4, 2012, the website Gawker published a 2 minute excerpt from a 30 minute
video of Terry Gene Bollea, better known as “Hulk Hogan,” having sex with Heather
Clem, the wife of Bollea’s friend Bubba the Love Sponge Clem. Bollea claimed the video
was made without his knowledge or consent, and filed an action against Gawker in
Florida state court, alleging an assortment of tort claims. The jury ruled in favor of Bollea,
awarding him $115 million in compensatory damages and $25 million in punitive
damages. Gawker could not pay the judgment and filed for bankruptcy. After the trial,
Peter Thiel disclosed that he had paid millions of dollars to finance Bollea’s action, which
he described as “one of my greater philanthropic things that I've done.” Many people
objected to Thiel’s role in Bollea’s action. Was it maintenance, champerty, or barratry?
Should it have been prohibited?
2. In 2003, residents of Lago Agrio, Ecuador filed a class action against Chevron in an
Ecuadorian court, alleging that its Lago Agrio oil field had polluted the environment. The
plaintiffs were represented by the Ecuadorian lawyer Pablo Fajardo Mendoza and the
American lawyer Steven Donziger, who obtained more than $32 million in third-party
supported litigation may not assert the champerty as a defense, but a court may refuse to enforce a
champertous agreement even where the defense of champerty has not been asserted.

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litigation funding. The American documentary filmmaker Joe Berlinger documented the
litigation and released the film Crude in 2009. In 2011, the Ecuadorian court ruled for the
plaintiffs and ordered Chevron to pay $18 billion in damages. Chevron’s lawyers at
Gibson, Dunn & Crutcher LLP noticed that an early version of Crude had featured an
ostensibly impartial environmental expert meeting with Donziger before the trial, and
subpoenaed Berlinger’s outtakes, which provided additional evidence of fraud and
corruption. In 2014, the United States District Court for the Southern District of New York
found that Donziger had used “corrupt means” in the Ecuadorian court and refused to
enforce the verdict, and the Second Circuit affirmed. Both New York and the District of
Columbia suspended Donziger from the practice of law. Was it improper for Donziger to
obtain third-party litigation funding? Did the availability of funding create improper
incentives? Are third-party litigation funders in a position to evaluate the legitimacy of the
litigation they fund? Should they be?
Further Reading:
●
●
●
●
●
●

Max Radin, Maintenance by Champerty, 24 Calif. L. Rev. 48 (1935)
Jeremy Kidd, Modelling the Likely Effects of Litigation Financing, 47 Loy. Chi. L.J. 1239
(2016)
Anthony J. Sebok, The Inauthentic Claim, 64 Vand. L. Rev. 61 (2011)
Jonathan T. Molot, A Market in Litigation Risk, 76 U. Chi. L. Rev. 367 (2009)
Maya Steinitz, Whose Claim is This, Anyway? Third-Party Litigation Funding, 95 Minn. L.
Rev. 1268 (2011)
Victoria Shannon Sahani, Reshaping Third Party Funding, 91 Tulane L. Rev. 405 (2017)

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2.8: Organizations as Clients
We live as we dream, alone. To crack the shell we mix with the others.36
You pull down the future with the one you love (I see no evil).37
When an attorney represents an organization, the attorney’s client is typically the organization,
and only the organization. An attorney may represent any kind of organization, irrespective of its
form. Obviously, an attorney may represent an organization that is a legal entity, like a
corporation or a limited liability company. But an attorney may also represent an organization
that is not a legal entity, like a partnership or an unincorporated association. In all of these
cases, the attorney may represent the organization without representing the constituents of the
organization.
But an organization is a legal fiction that can act only through its agents. Accordingly, the
attorney advises the organization by advising its agents, who make decisions on behalf of the
organization, depending on their role in the organization. In other words, attorneys advise
organizational clients by advising non-client agents, who make decisions that bind the
organizational client.
Of course, the agents of an organizational client may consult with each other before making
decisions for the organization. They may individually ask the attorney for advice about how to
act on behalf of the organizational client. They may ask the attorney to advise them collectively
about the organizational client’s options. And they may ask the attorney for advice about the
statements, decisions, and actions of other agents.
The attorney must provide legal advice to the agents of an organizational client, in their capacity
as agents of that client. But the attorney must always remember that the client is the
organization, not the organization’s agent. When the attorney advises an agent, the attorney
must provide advice for the benefit of the organization, not the agent. And the attorney must
ensure that the agents observe their duties to the organization.
Specifically, an attorney representing an organizational client must ensure that its agents act
consistently with the interests of the organization, rather than their own interests. If an agent of
an organizational client acts or refuses to act in a way that violates a legal obligation to the
organization, then the attorney must act to protect the interests of the organization. The attorney
should generally report the concern to the management of the organization. In some cases, the
attorney may even report confidential information or withdraw from representation, if it is
necessary to protect the interests of the organization.
Model Rule 1.13: Organization as Client
a. A lawyer employed or retained by an organization represents the organization acting
through its duly authorized constituents.
b. If a lawyer for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or refuses to act in a
36
37

Gang of Four, We Live as We Dream, Alone, Songs of the Free (1984).
Television, See No Evil, Marquee Moon (1977).

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c.

d.

e.

f.

g.

matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law that reasonably might be imputed to the organization,
and that is likely to result in substantial injury to the organization, then the lawyer shall
proceed as is reasonably necessary in the best interest of the organization. Unless the
lawyer reasonably believes that it is not necessary in the best interest of the organization
to do so, the lawyer shall refer the matter to higher authority in the organization,
including, if warranted by the circumstances to the highest authority that can act on
behalf of the organization as determined by applicable law.
Except as provided in paragraph (d), if
1. despite the lawyer's efforts in accordance with paragraph (b) the highest authority
that can act on behalf of the organization insists upon or fails to address in a
timely and appropriate manner an action, or a refusal to act, that is clearly a
violation of law, and
2. the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization, then the lawyer may reveal information
relating to the representation whether or not Rule 1.6 permits such disclosure,
but only if and to the extent the lawyer reasonably believes necessary to prevent
substantial injury to the organization.
Paragraph (c) shall not apply with respect to information relating to a lawyer's
representation of an organization to investigate an alleged violation of law, or to defend
the organization or an officer, employee or other constituent associated with the
organization against a claim arising out of an alleged violation of law.
A lawyer who reasonably believes that he or she has been discharged because of the
lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under
circumstances that require or permit the lawyer to take action under either of those
paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that
the organization's highest authority is informed of the lawyer's discharge or withdrawal.
In dealing with an organization's directors, officers, employees, members, shareholders
or other constituents, a lawyer shall explain the identity of the client when the lawyer
knows or reasonably should know that the organization's interests are adverse to those
of the constituents with whom the lawyer is dealing.
A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of
Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7,
the consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.

Restatement (Third) of the Law Governing Lawyers § 96: Representing an Organization
as Client
1. When a lawyer is employed or retained to represent an organization:
a. the lawyer represents the interests of the organization as defined by its
responsible agents acting pursuant to the organization's decision-making
procedures; and

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b. subject to Subsection (2), the lawyer must follow instructions in the
representation.
2. If a lawyer representing an organization knows of circumstances indicating that a
constituent of the organization has engaged in action or intends to act in a way that
violates a legal obligation to the organization that will likely cause substantial injury to it,
or that reasonably can be foreseen to be imputable to the organization and likely to
result in substantial injury to it, the lawyer must proceed in what the lawyer reasonably
believes to be the best interests of the organization.
3. In the circumstances described in Subsection (2), the lawyer may, in circumstances
warranting such steps, ask the constituent to reconsider the matter, recommend that a
second legal opinion be sought, and seek review by appropriate supervisory authority
within the organization, including referring the matter to the highest authority that can act
in behalf of the organization.
In the Matter of Silva, 636 A.2d 316 (R.I. 1994)
Summary: Attorney Daniel Silva represented both Medcon Mortgage Corporation and
Suncoast Savings and Loan. Medcon was owned by Silva’s friend Edward Medeiros.
Silva learned that Medeiros was illegally diverting funds and advised him to stop, but did
not advise Suncoast, because Medeiros claimed attorney-client privilege. The
Disciplinary Board found that Silva violated the rules of professional conduct, and the
Supreme Court agreed, holding that Silva should have reported Medeiros’s fraud and
withdrawn from representing Medcon and Suncoast.
PER CURIAM.
The respondent, Daniel J. Silva, appeared before this court on December 2, 1993, pursuant to
an order to show cause why discipline should not be imposed. The Disciplinary Board
conducted an evidentiary hearing and received legal memoranda from the respondent and
disciplinary counsel. The board has filed with us its decision and a concurring opinion signed by
three members of the board.
The board found that Silva violated several provisions of the Rules of Professional Conduct
when he failed to report a diversion of mortgage funds by his long-time friend Edward Medeiros.
Silva served as counsel to Medeiros’s mortgage company, Medcon Mortgage Corporation, and
Suncoast Savings and Loan of Hollywood, Florida. In his capacity as closing attorney for
Suncoast, Silva received wire transfers of mortgage proceeds in his client account. Upon receipt
of the wire transfers from Suncoast, Silva simply turned the proceeds over to Medeiros and/or
MEDCON for disbursement. In the fall of 1990 Silva learned that Medeiros had diverted funds
from a closing funded by Suncoast in which Silva acted as closing attorney. The diverted funds
were designated to pay off a preexisting mortgage on the property. Silva advised Medeiros that
his conduct was criminal. Silva did not notify Suncoast of the diversion of funds, nor did he
inform the title insurance company, which had issued a title policy that did not except the prior
mortgage from coverage, that the prior mortgage had not been discharged. Silva testified that

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Medeiros forbade him to do so on the basis of Medeiros's assertion of the attorney/client
privilege on behalf of both MEDCON and himself personally.
In December 1990 Silva received a wire transfer from Suncoast for another closing with
MEDCON. Notwithstanding his knowledge of the previous diversion of funds by Medeiros, Silva
did not disburse the funds in accordance with the terms listed on the closing sheet; instead, he
turned the proceeds over to MEDCON. Silva kept $100 of the proceeds as his fee for serving as
a conduit of the funds. Medeiros converted those funds to his own use, and was subsequently
convicted and imprisoned. The respondent was never charged with committing a criminal act.
The respondent’s position before the board and this court is that he was prohibited from
disclosing Medeiros’s defalcation by the provisions of Rule 1.6 of the Rules of Professional
Conduct. Respondent also took the position that he had no obligation to protect Suncoast’s
interests. We do not agree with either of his contentions.
On the basis of the record before us, we believe that Silva had an obligation to both MEDCON
and Suncoast to ensure that the transactions in which he acted as attorney and/or agent were
carried out with fair dealing and good faith. We further believe that Silva had an obligation to
report Medeiros’s overt act of diverting the funds as soon as he learned of it. In addition Silva
should have withdrawn from representing both MEDCON and Suncoast as soon as he
discovered Medeiros’s fraud.
Although we consider Silva’s failure to act appropriately and to make the requisite disclosures
serious breaches of his ethical obligation, we find no evidence that Silva’s actions were
motivated by personal gain. Rather, he appears to have had a genuine belief that Medeiros’s
assertion of the attorney/client privilege and the requirements of Rule 1.6 prohibited the
disclosure we now say was required.
Silva did not appear to appreciate and understand to whom he owed the duty of confidentiality.
It is apparent from this record, however, that he was counsel to the corporate entity MEDCON,
and therefore, it was to MEDCON he owed the duty of confidentiality. Silva’s dealings with
Medeiros did not establish the attorney/client relationship that would trigger the application of
the prohibitions against disclosure encompassed in Rule 1.6. Therefore, Silva’s obligations to
both Suncoast and MEDCON required him to disclose Medeiros’s overt criminal act of
conversion of the funds.
This court concurs with the findings of the disciplinary board that Silva exercised very poor
judgment and that he engaged in serious misconduct. We are constrained however to depart
from the board's recommendation for sanction. We believe that Rule 1.6 has created a great
deal of confusion among the members of the Rhode Island Bar. We therefore censure Silva for
his failure to fulfill his ethical obligations to the parties to these transactions. The court’s
issuance of this sanction rather than the three-month suspension of Silva’s license is due in part
to the absence of any motive for personal gain and Silva’s ten years at the bar without a
disciplinary complaint. The court’s position on the appropriate level of sanction, however, would

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be more severe were it not for the apparent confusion in the mind of this attorney concerning
whom he represented and the silence of Rule 1.6 on that question.
Questions:
1. Medeiros owned Medcon. How could Silva have reported to Medcon?
2. Could Silva have reasonably believed that he represented Medeiros?
3. Did the court impose an appropriate punishment?
Representing a Corporation
Brennan v. Ruffner, 640 So. 2d 143 (Fla. 1994)
Summary: In 1976, Dr. Brennan and Dr. Martell formed a professional association.
Attorney Charles Ruffner prepared the shareholders agreement. When Dr. Mirmelli
joined the association in 1982, Ruffner revised the agreement, which provided for the
involuntary termination of any shareholder by majority vote. All of the shareholders
agreed. In 1989, Martell and Mirmelli voted to terminate Brennan. Among other things,
Brennan filed a malpractice action against Ruffner. The trial court granted summary
judgment to Ruffner, and the appellate court affirmed, holding that Ruffner represented
the corporation, not Brennan.
PARIENTE, Judge.
We affirm a final summary judgment entered in favor of a lawyer and against a disgruntled
minority shareholder of a closely held corporation. We find that an attorney/client relationship
did not exist between the individual shareholder and the attorney representing the corporation.
Consequently, there is no basis for a legal malpractice action. We further reject the other
theories of liability asserted by appellant.
In 1976, appellant, Robert J. Brennan, M.D., along with a Dr. Martell, employed appellee,
Charles L. Ruffner, Esq., to incorporate their medical practice as a professional association. In
connection with the incorporation, the lawyer prepared a shareholder’s agreement. In 1982, a
third doctor, Dr. Mirmelli, joined the corporation, and each doctor became a one-third
shareholder in the new firm. The lawyer, who was corporate counsel since 1976, was requested
to draft a new shareholder's agreement. After approximately 8 months of negotiation, the
shareholders executed a new shareholder's agreement. The new agreement included a
provision for the involuntary termination of any shareholder by a majority vote of the two other
shareholders. It is undisputed that Dr. Brennan was aware of this provision at the time he signed
the documents and that he signed the agreement upon reassurances from Dr. Mirmelli that he
would not join with Dr. Martell in using the provision against Dr. Brennan.
However, despite the assurances, in 1989 Dr. Martell and Dr. Mirmelli involuntarily terminated
Dr. Brennan as a shareholder and employee of the corporation. Dr. Brennan instituted a lawsuit

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against Dr. Martell and Dr. Mirmelli claiming breach of contract and fraud in the inducement.
The verified complaint in that lawsuit specifically alleged that Dr. Brennan was not represented
by counsel in the negotiation of the shareholder's agreement. That lawsuit was settled. Dr.
Brennan then filed this suit for legal malpractice, breach of contract, breach of fiduciary duty and
breach of contract as a third party beneficiary. In contradiction to the sworn allegations of the
first lawsuit, Dr. Brennan alleged in this complaint that the lawyer represented him individually,
as well as the corporation, in the preparation and drafting of the agreement. The lawyer denied
undertaking the representation of Dr. Brennan individually.
In a legal malpractice action, a plaintiff must prove three elements: the attorney's employment,
the attorney's neglect of a reasonable duty and that such negligence resulted in and was the
proximate cause of loss to the plaintiff. Florida courts have uniformly limited attorney's liability
for negligence in the performance of their professional duties to clients with whom they share
privity of contract.
The material undisputed facts in this case support a legal conclusion that there was no privity of
contract between Dr. Brennan and the corporation’s lawyer. It is undisputed that the lawyer was
representing the corporation. The issue raised by Dr. Brennan's complaint was whether the
lawyer was also representing him individually. While Dr. Brennan made the initial contact with
the lawyer, there is no evidence in the record to create a credible issue of fact that the lawyer
ever represented Dr. Brennan individually. Dr. Brennan's sworn complaint against the other
doctors, which preceded the legal malpractice action against the lawyer, states he was
unrepresented by counsel in the negotiation of the shareholder's agreement.
Dr. Brennan argues that a separate duty to him as a shareholder arose by virtue of the lawyer's
representation of the closely held corporation. Although never squarely decided in this state, we
hold that where an attorney represents a closely held corporation, the attorney is not in privity
with and therefore owes no separate duty of diligence and care to an individual shareholder
absent special circumstances or an agreement to also represent the shareholder individually.
While there is no specific ethical prohibition in Florida against dual representation of the
corporation and the shareholder if the attorney is convinced that a conflict does not exist, an
attorney representing a corporation does not become the attorney for the individual stockholders
merely because the attorney's actions on behalf of the corporation may also benefit the
stockholders. The duty of an attorney for the corporation is first and foremost to the corporation,
even though legal advice rendered to the corporation may affect the shareholders. Cases in
other jurisdictions have similarly held.
We reject the notion that the lawyer in this case could be held liable to one of the minority
shareholders for a breach of fiduciary duty. In any closely held corporation, there will be an
inherent conflict between the potential rights of the minority shareholder and the rights of the
corporation in a shareholder’s agreement concerning termination. At the time this agreement
was drafted, any one of the three shareholders could have ended up becoming the minority
shareholder. While Dr. Brennan claimed in the complaint that the lawyer had a duty to advise
him of a conflict of interest and never advised him of a potential conflict, the facts in the record

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do not support that contention. Dr. Brennan testified in deposition that he simply did not recall
any conversations. However, the accountant for the corporation specifically remembered a
conversation where the lawyer told the doctors collectively that he represented only the
corporation in the drafting of the shareholder agreement. Absent some evidence that the
corporation's lawyer conspired or acted with the two shareholders to insert provisions that would
work to the detriment of the third shareholder; that the corporation’s lawyer concealed his
representation of another individual shareholder; or that the attorney agreed to the dual
representation, there is no breach of fiduciary duty established in this case.
Finally, even assuming arguendo that a duty existed based on an attorney/client relationship, a
third party beneficiary theory or a breach of fiduciary relationship, we simply do not find any
factual dispute concerning the issue of proximate cause. It is undisputed that Dr. Brennan was
aware of the provisions in the agreement and chose to take his chances upon being reassured
by Dr. Mirmelli that he would never use the provisions against Dr. Brennan.
Questions:
1. Why did the court hold that Ruffner represented the corporation, rather than Brennan?
What if Brennan were a majority shareholder of the corporation?
2. Did Ruffner provide Brennan with legal advice? If so, did Ruffner provide negligent legal
advice?
3. Did Ruffner represent any of the doctors?
4. Did Ruffner represent anyone?
Representing a Partnership
Mursau Corp. v. Florida Penn Oil & Gas, Inc., 638 F. Supp. 259 (W.D. Pa. 1986)
Summary: Thomas Murray owned Mursau Corporation, which purchased a limited
partnership in Florida-Penn Oil and Gas, Inc., in a deal managed by Goldberg &
Snodgrass. Mursau filed a breach of fiduciary duty action against G&S, but the district
court granted summary judgment to G&S, because it found no attorney-client
relationship or evidence of fraud.
COHILL, Chief Judge.
Presently before us are Motions for Summary Judgment filed on behalf of each Defendant.
Having held oral argument and having reviewed the affidavits, depositions, briefs and other
exhibits filed, we find no genuine issue as to any material fact. Consequently, we will grant
these motions.
Facts

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Plaintiff, Mursau Corporation, through its President and majority stockholder, Thomas H.
Murray, Esquire, purchased a limited partnership interest in Defendant Florida-Penn Oil & Gas,
Inc.’s 1981-102 Drilling Program. Defendant Christian E. Carlsen is the President of Fla-Penn
and Defendant David Graham is a stockholder of Fla-Penn. Defendant Goldberg & Snodgrass,
a law firm in which individual Defendants Lee H. Goldberg and Stewart R. Snodgrass are
partners, was retained by Fla-Penn to structure the 102 program and prepare a tax opinion
letter with regard to that program.
Mursau’s acquisition of the limited partnership interest in the 102 program came about as a
result of Murray contacting Goldberg in early October, 1981. Murray was interested in the 102
program as a tax shelter for Mursau. Since Mursau’s fiscal year ended on October 31, Murray
wanted to close the deal on or before October 30, in order to secure tax advantages for Mursau
in 1981.
At his initial meeting with G&S, Murray was given a copy of a Private Placement Memorandum
for an earlier Fla-Penn oil and gas partnership, the 101 program. He was told that the PPM for
the 102 program would be materially similar but that the costs would be reduced proportionally
according to the lesser number of wells to be drilled under the 102 program. The 101 program
drilled 10 wells; the 102 program would drill only 4. Murray reviewed the PPM for the 101
program with independent counsel, then signed a commitment letter for the 102 program.
On October 29, 1981, Murray received a copy of the PPM for the 102 program which was in fact
materially similar to the PPM for the 101 program. At the closing on October 30, 1981, Murray
refused to tender a check on behalf of Mursau unless he was granted check-signing authority
for the partnership, a demand clearly in conflict with the limited partnership agreement already
signed by Murray. Murray wanted that authority so that, after closing, he could dispute the
payment of certain costs provided for in the PPM, including a finder's commission to the group
securing the limited partners participation. As indicated by his notes comparing the costs under
the 101 and 102 program, Murray was fully aware of the $49,600 finder's commission prior to
the time set for closing.
Although Murray initially walked out of the closing because of the refusal of Fla-Penn to
acquiesce in his demands, he returned after a conversation with Snodgrass outside on the
sidewalk. Fla-Penn never acceded to Murray’s demands. After the closing, Fla-Penn paid G&S
$20,000 for legal fees and $49,600 as a finder’s commission. Murray became aware of these
payments sometime in December of 1981.
In the complaint, Murray essentially alleges breach of fiduciary duty arising out of an attorneyclient relationship between Mursau and G&S and Goldberg and Snodgrass individually.
The Defendants maintain that the 102 PPM as well as the 101 PPM, on which the 102 was
modeled, disclose all material information. Both PPMs disclose the payment of legal fees to
G&S and the finder's commission; both disclose the potential conflict of interest of G&S as

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counsel for the partnership and the general partner. Both advise prospective limited partners to
consult independent counsel.
In order to recover for a breach of fiduciary duty by an attorney, the plaintiff has a threshold
burden of showing existence of an attorney-client relationship. The intent to create an attorneyclient relation can be implied from the conduct of the parties where no express relationship
exists.
Although the relationship of attorney and client may be implied from the conduct of the parties,
such conduct must evidence an offer or request by the client for legal services and an
acceptance of the offer by the attorney. It is clear that an attorney client relationship exists only
with the consent of both parties.
As noted above, G&S’s representation of the partnership and general partner was disclosed to
Plaintiff, and Plaintiff was advised to obtain independent counsel. Murray admits that he did
retain legal counsel who, on behalf of Mursau, met with G&S about the 102 plan. Murray
received a bill and remitted payment to his independent counsel for legal services.
In contrast, Plaintiff paid no fees to G&S. As stated in the 102 PPM, the partnership paid G&S
for adapting the 101 PPM for use in the 102 plan and for preparing the tax opinion letter to
accompany the 102 PPM. The legal fees paid to G&S by the partnership did not include any
amount for services rendered to the Plaintiff. Plaintiff concedes that the only legal advice he
received from G&S concerned the tax aspects of the 102 plan. We conclude that the legal
advice on the tax consequences of the 102 plan was a service provided to and paid for by the
partnership as part of its efforts to secure a limited partner for its venture.
Since we see no evidence from which we can imply an offer or request for services by Plaintiff,
nor an acceptance of any such request by G&S, we must conclude that no attorney-client
relationship was formed between Mursau, the limited partnership, and G&S. G&S did have an
attorney-client relationship with the partnership and probably the general partner who organized
the venture. Although Mursau indirectly benefited by receiving the services G&S performed on
behalf of the partnership to enable the partnership to attract a limited partner, it never
requested, nor did it receive, other legal advice or services from G&S.
Even were we to find evidence from which an attorney-client relationship between G&S and
Mursau could be inferred, as discussed above, we see no facts indicating any fraud or other
breach tending to violate such a relationship.
Viewing the facts presented in a light most favorable to Mursau, the nonmoving party, we
believe Defendants have met their burden of showing the absence of any genuine issue of
material fact and are entitled to summary judgment.
Questions:

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1. Did Mursau have any attorney-client relationship with G&S?
2. Did Mursau pay G&S for legal services?
3. Why did the court conclude that Mursau had no attorney-client relationship with G&S in
relation to this matter?

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2.9: Agents as Clients
There's nothing wrong with having aspirations, nothing wrong with walking tall. But if misfortune
deals the consequences, sooner or later, friend, you’ve got to fall.38
In theory, an attorney who represents an organization represents only the organization, and
does not represent the organization’s agents. However, organizations can act only through their
agents, and when attorneys represent organizations, they do so by providing legal advice to the
organization’s agents, who made decisions on behalf of the organization. Attorneys must
convince the organization’s agents to hire them. Attorneys must convince the organization’s
agents to follow their advice. And attorneys must obey the decisions of the organization’s
agents. It is easy for attorneys representing an organization to see its agents as their clients,
rather than the organization itself.
But that is a terrible mistake. When attorneys represent organizations, they must never treat its
agents as their clients. They must always represent the interests of the organization, and only
the organization. Attorneys representing an organization must always act in the best interest of
the organization, and they must ensure that its agents also act in the best interests of the
organization. And if the interests of the organization conflict with the interests of its agents, the
attorney must always pursue the interests of the organization.
Usually, the interests of an organization and its agents coincide, and the agents pursue the
interests of the organization to the best of their ability. But that is not always the case.
Sometimes, the interests of an organization and its agents diverge, and the agents pursue their
own interests, at the expense of the organization.
Attorneys representing organizations must always be vigilant to ensure that the organization’s
interests are aligned with the interests of its agents, and that its agents are acting in the
organization’s interests, rather than their own. For example, if an agent wants to make a
transaction on behalf of the organization that will benefit the agent at the organization’s
expense, the attorney must object. Likewise, if the agent wants to disclose confidential
information about the organization that will benefit the agent, but harm the organization, the
attorney must object.
Agents as Quasi-Clients
Attorneys representing an organization must always be careful to ensure that its agents do not
become quasi-clients. If an attorney is retained by an organization, then the attorney has an
express attorney-client relationship with the organization. But in order to represent an
organization, an attorney must provide legal advice to its agents, who will act on the
organization’s behalf. Accordingly, the attorney must only provide legal advice relating to the
interests of the organization, and must not provide legal advice relating to the interests of its
38

Hüsker Dü, Friend, You've Got to Fall, Warehouse: Songs and Stories (1987).

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agents. In fact, attorneys representing an organization should explicitly inform its agents that
they represent the organization, and not its agents. And they should advise the organization’s
agents to seek outside counsel, if their interests may diverge from the interests of the
organization.
In theory, an attorney representing an organization who wants to interview an agent of the
organization can prevent the agent from becoming a client by explicitly warning the agent that
the attorney represents the organization, and does not represent the agent. This warning is
often called an “Upjohn warning” or “corporate Miranda warning,” because its purpose is to
inform agents of their right to remain silent. After all, an organization cannot force its agents to
testify against themselves. But it can fire them, if they refuse to participate in an investigation.
If an attorney representing an organization provides legal advice to an agent of that
organization, then the agent may become a quasi-client of the attorney. That is awkward,
because it can create a conflict of interest.
American Bar Association White Collar Crime Committee Working Group
Model “Upjohn Warning” or “Corporate Miranda” Warning
I am a lawyer for Corporation A. I represent only Corporation A, and I do not represent
you personally.
I am conducting this interview to gather facts in order to provide legal advice for
Corporation A. This interview is part of an investigation to determine the facts and
circumstances of X in order to advise Corporation A how best to proceed.
Your communications with me are protected by the attorney-client privilege. But the
attorney-client privilege belongs solely to Corporation A, not you. That means
Corporation A alone may elect to waive the attorney-client privilege and reveal our
discussion to third parties. Corporation A alone may decide to waive the privilege and
disclose this discussion to such third parties as federal or state agencies, at its sole
discretion, and without notifying you.
In order for this discussion to be subject to the privilege, it must be kept in confidence. In
other words, with the exception of your own attorney, you may not disclose the
substance of this interview to any third party, including other employees or anyone
outside of the company. You may discuss the facts of what happened but you may not
discuss this discussion.
Do you have any questions?
Are you willing to proceed?
Questions:

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1. Does this model warning adequately explain that the attorney represents the
organization and not its agents?
2. If you were an attorney representing an organization, would you have any concerns
about this warning?
3. If you received this warning, would you answer any questions? Would you give candid
answers? Would you obtain outside counsel? What if you were unaware of the subject
matter of the inquiry?
In re Grand Jury Subpoena: Under Seal, 415 F. 3d 334 (4th Cir. 2005)
Summary: AOL started an internal investigation re: its relationship with PurchasePro.
AOL retained Wilmer, Cutler & Pickering to assist in the investigation. AOL general
counsel told its employees that were interviewed that the GC represented the company,
but could represent them if there was no conflict of interest. GC also told the employees
that they could retain personal counsel at company expense. The SEC began to
investigate AOL’s relationship with PurchasePro. One employee, Wakeford, was
deposed by SEC and believed the attorneys represented both them and the company.
Others, John Doe #1, #2, that were deposed sought independent counsel. The court
denied Wakeford’s motion to quash because it found that attorney-client privilege in the
subpoenaed documents belonged only to AOL.
WILSON, District Judge.
This is an appeal by three former employees of AOL Time Warner from the decision of the
district court denying their motions to quash a grand jury subpoena for documents related to an
internal investigation by AOL. Appellants in the district court that the subpoenaed documents
were protected by the attorney-client privilege. Because the district court concluded that the
privilege was AOL’s alone and because AOL had expressly waived its privilege, the court
denied the appellants' motion. We affirm.
I.
In March of 2001, AOL began an internal investigation into its relationship with PurchasePro,
Inc. AOL retained the law firm of Wilmer, Cutler & Pickering to assist in the investigation. Over
the next several months, AOL’s general counsel and counsel from Wilmer Cutler interviewed
appellants, AOL employees Kent Wakeford, John Doe 1, and John Doe 2.
The investigating attorneys interviewed Wakeford, a manager in the company’s Business Affairs
division, on six occasions. At their third interview, and the first one in which Wilmer Cutler
attorneys were present, Randall Boe, AOL’s General Counsel, informed Wakeford, “We
represent the company. These conversations are privileged, but the privilege belongs to the
company and the company decides whether to waive it. If there is a conflict, the attorney-client
privilege belongs to the company.” Memoranda from that meeting also indicate that the

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attorneys explained to Wakeford that they represented AOL but that they “could” represent him
as well, “as long as no conflict appeared.” The attorneys interviewed Wakeford again three days
later and, at the beginning of the interview, reiterated that they represented AOL, that the
privilege belonged to AOL, and that Wakeford could retain personal counsel at company
expense.
The investigating attorneys interviewed John Doe 1 three times. Before the first interview, Boe
told him, “We represent the company. These conversations are privileged, but the privilege
belongs to the company and the company decides whether to waive it. You are free to consult
with your own lawyer at any time.” Memoranda from that interview indicate that the attorneys
also told him, “We can represent you until such time as there appears to be a conflict of interest,
but the attorney-client privilege belongs to AOL and AOL can decide whether to keep it or waive
it.” At the end of the interview, John Doe 1 asked if he needed personal counsel. A Wilmer
Cutler attorney responded that he did not recommend it, but that he would tell the company not
to be concerned if Doe retained counsel.
AOL’s attorneys interviewed John Doe 2 twice and followed essentially the same protocol they
had followed with the other appellants. They noted, “We represent AOL, and can represent you
too if there is not a conflict.” In addition, the attorneys told him that, “the attorney-client privilege
is AOL’s and AOL can choose to waive it.”
In November, 2001, the Securities and Exchange Commission began to investigate AOL’s
relationship with PurchasePro. In December 2001, AOL and Wakeford, through counsel,
entered into an oral “common interest agreement,” which they memorialized in writing in
January 2002. The attorneys acknowledged that, “representation of their respective clients
raised issues of common interest to their respective clients and that the sharing of certain
documents, information, and communications with clients” would be mutually beneficial. As a
result, the attorneys agreed to share access to information relating to their representation of
Wakeford and AOL, noting that “the oral or written disclosure of Common Interest Materials
would not diminish in any way the confidentiality of such Materials and would not constitute a
waiver of any applicable privilege.”
Wakeford testified before the SEC on February 14, 2002, represented by his personal counsel.
Laura Jehl, AOL’s general counsel, and F. Whitten Peters of Williams & Connolly, whom AOL
had retained in November 2001 in connection with the PurchasePro investigation, were also
present, and both stated that they represented Wakeford “for purposes of the deposition.”
During the deposition, the SEC investigators questioned Wakeford about his discussions with
AOL’s attorneys. When Wakeford’s attorney asserted the attorney-client privilege, the SEC
investigators followed up with several questions to determine whether the privilege was
applicable to the investigating attorneys’ March-June 2001 interviews with Wakeford. Wakeford
told them he believed, at the time of the interviews, that the investigating attorneys represented
him and the company.

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John Doe 1 testified before the SEC on February 27, 2002, represented by personal counsel.
No representatives of AOL were present. When SEC investigators questioned Doe about the
March-June 2001 internal investigation, his counsel asserted that the information was protected
and directed Doe not to answer any questions about the internal investigation “in respect to the
company’s privilege.” He stated that Doe’s response could be considered a waiver of the
privilege and that, “if the AOL lawyers were present, they could make a judgment, with respect
to the company's privilege, about whether or not the answer would constitute a waiver.”
On February 26, 2004, a grand jury in the Eastern District of Virginia issued a subpoena
commanding AOL to provide “written memoranda and other written records reflecting interviews
conducted by attorneys for AOL” of the appellants between March 15 and June 30, 2001. While
AOL agreed to waive the attorney-client privilege and produce the subpoenaed documents,
counsel for the appellants moved to quash the subpoena on the grounds that each appellant
had an individual attorney-client relationship with the investigating attorneys, that his interviews
were individually privileged, and that he had not waived the privilege. Wakeford also claimed
that the information he disclosed to the investigating attorneys was privileged under the
common interest doctrine.
The district court denied John Doe 1’s and John Doe 2’s motions because it found they failed to
prove they were clients of the investigating attorneys who interviewed them. The court based its
conclusion on its findings that: (1) the investigating attorneys told them that they represented the
company; (2) the investigating attorneys told them, “we can represent you,” which is distinct
from “we do represent you”; (3) they could not show that the investigating attorneys agreed to
represent them; and (4) the investigating attorneys told them that the attorney-client privilege
belonged to the company and the company could choose to waive it.
The court initially granted Wakeford’s motion to quash because it found that his communications
with the investigating attorneys were privileged under the common interest agreement between
counsel for Wakeford and counsel for AOL. Following a motion for reconsideration, the court
reversed its earlier ruling and held that the subpoenaed documents relating to Wakeford’s
interviews were not privileged because it found that Wakeford’s common interest agreement
with AOL postdated the March-June 2001 interviews. In addition, the court held that Wakeford
failed to prove that he was a client of the investigating attorneys at the time the interviews took
place. The court based its conclusion on its findings that: (1) none of the investigating attorneys
understood that Wakeford was seeking personal legal advice; (2) the investigating attorneys did
not provide any personal legal advice to him; and (3) the investigating attorneys believed they
represented AOL and not Wakeford. This appeal followed.
II.
Appellants argue that because they believed that the investigating attorneys who conducted the
interviews were representing them personally, their communications are privileged. However,
we agree with the district court that essential touchstones for the formation of an attorney-client
relationship between the investigating attorneys and the appellants were missing at the time of

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the interviews. There is no evidence of an objectively reasonable, mutual understanding that the
appellants were seeking legal advice from the investigating attorneys or that the investigating
attorneys were rendering personal legal advice. Nor, in light of the investigating attorneys’
disclosure that they represented AOL and that the privilege and the right to waive it were AOL’s
alone, do we find investigating counsel’s hypothetical pronouncement that they could represent
appellants sufficient to establish the reasonable understanding that they were representing
appellants. Accordingly, we find no fault with the district court's opinion that no individual
attorney-client privilege attached to the appellants’ communications with AOL's attorneys.
“The attorney-client privilege is the oldest of the privileges for confidential communications
known to the common law.” “When the privilege applies, it affords confidential communications
between lawyer and client complete protection from disclosure.” Because its application
interferes with “the truth seeking mission of the legal process,” however, we must narrowly
construe the privilege, and recognize it “only to the very limited extent that excluding relevant
evidence has a public good transcending the normally predominant principle of utilizing all
rational means for ascertaining the truth.” Accordingly, the privilege applies only to “confidential
disclosures by a client to an attorney made in order to obtain legal assistance.” The burden is on
the proponent of the attorney-client privilege to demonstrate its applicability.”
The person seeking to invoke the attorney-client privilege must prove that he is a client or that
he affirmatively sought to become a client. “The professional relationship hinges upon the
client's belief that he is consulting a lawyer in that capacity and his manifested intention to seek
professional legal advice.” An individual’s subjective belief that he is represented is not alone
sufficient to create an attorney-client relationship. Rather, the putative client must show that his
subjective belief that an attorney-client relationship existed was reasonable under the
circumstances.
With these precepts in mind, we conclude that appellants could not have reasonably believed
that the investigating attorneys represented them personally during the time frame covered by
the subpoena. First, there is no evidence that the investigating attorneys told the appellants that
they represented them, nor is there evidence that the appellants asked the investigating
attorneys to represent them. To the contrary, there is evidence that the investigating attorneys
relayed to Wakeford the company's offer to retain personal counsel for him at the company's
expense, and that they told John Doe 1 that he was free to retain personal counsel. Second,
there is no evidence that the appellants ever sought personal legal advice from the investigating
attorneys, nor is there any evidence that the investigating attorneys rendered personal legal
advice. Third, when the appellants spoke with the investigating attorneys, they were fully
apprised that the information they were giving could be disclosed at the company’s discretion.
Under these circumstances, appellants could not have reasonably believed that the
investigating attorneys represented them personally. Therefore, the district court’s finding that
appellants had no attorney-client relationship with the investigating attorneys is not clearly
erroneous.

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The appellants argue that the phrase “we can represent you as long as no conflict appears,”
manifested an agreement by the investigating attorneys to represent them. They claim that, “it is
hard to imagine a more straightforward assurance of an attorney-client relationship than ‘we can
represent you.’” We disagree. As the district court noted, “we can represent you” is distinct from
“we do represent you.” If there was any evidence that the investigating attorneys had said, “we
do represent you,” then the outcome of this appeal might be different. Furthermore, the
statement actually made, “we can represent you,” must be interpreted within the context of the
entire warning. The investigating attorneys’ statements to the appellants, read in their entirety,
demonstrate that the attorneys’ loyalty was to the company. That loyalty was never implicitly or
explicitly divided. In addition to noting at the outset that they had been retained to represent
AOL, the investigating attorneys warned the appellants that the content of their communications
during the interview “belonged” to AOL. This protocol put the appellants on notice that, while
their communications with the attorneys were considered confidential, the company could
choose to reveal the content of those communications at any time, without the appellants’
consent.
We note, however, that our opinion should not be read as an implicit acceptance of the watereddown “Upjohn warnings” the investigating attorneys gave the appellants. It is a potential legal
and ethical mine field. Had the investigating attorneys, in fact, entered into an attorney-client
relationship with appellants, as their statements to the appellants professed they could, they
would not have been free to waive the appellants’ privilege when a conflict arose. It should have
seemed obvious that they could not have jettisoned one client in favor of another. Rather, they
would have had to withdraw from all representation and to maintain all confidences. Indeed, the
court would be hard pressed to identify how investigating counsel could robustly investigate and
report to management or the board of directors of a publicly-traded corporation with the
necessary candor if counsel were constrained by ethical obligations to individual employees.
However, because we agree with the district court that the appellants never entered into an
attorney-client relationship with the investigating attorneys, they averted these troubling issues.
Questions:
1. Why did the court hold that no attorney-client relationship existed? Do you agree with its
conclusion?
2. What information should an attorney representing an organization be required to provide
to the agents of that organization in order to ensure that the agents understand that the
attorney represents the organization, and does not represent them?
3. Does it make sense for attorneys representing an organization to say they can represent
an agent of the organization unless there is a conflict?
United States v. Stein, 463 F. Supp. 2d 459 (S.D.N.Y. 2006)
Summary: Warley was a partner at KPMG. She was questioned in course of IRS
investigation by attorneys hired by KPMG. The firm waived its attorney-client privilege
and gave the government documents that described attorney’s communication with

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Warley. Warley says the attorneys were representing her and KPMG and her attorneyclient privilege was compromised by the actions of KPMG and the evidence should be
suppressed. Evidence suggests there was no Upjohn warning. Warley’s showing of her
subjective belief that the attorneys represented her is insufficient to meet her burden of
proving privilege. Thus, the court denied Warley’s motion for relief from the
government’s alleged violation of her attorney-client privilege.
KAPLAN, District Judge.
Defendant Carol Warley was a partner in KPMG LLP, one of the world’s largest accounting
firms. She was questioned in the course of an IRS investigation by attorneys hired by KPMG.
When that investigation gave way to a threatened indictment of KPMG, the firm, in an effort to
curry favor with prosecutors and avoid prosecution, waived its attorney-client privilege and gave
the government documents embodying the substance of the attorneys’ communications with
Ms. Warley. Warley contends that the attorneys were representing her as well as KPMG, that
her attorney-client privilege was compromised by the actions of the government and KPMG, and
that the evidence should be suppressed. She thus raises a troublesome question that arises
whenever an employee of a business organization consults with counsel retained by the entity
about matters involving both the employee and the entity — when does the lawyer represent the
employee as well as the entity?
This problem could be avoided if counsel in these situations routinely made clear to employees
that they represent the employer alone and that the employee has no attorney-client privilege
with respect to his or her communications with employer-retained counsel. Indeed, the Second
Circuit advised that they do so years before the communications here in question. But there is
no evidence that the attorneys who spoke to Ms. Warley followed that course.
Facts
Ms. Warley was a partner of KPMG at all relevant times. In 2003, the IRS was investigating
KPMG’s tax shelter activities, including some in which clients of Warley had participated. In the
course of the investigation, Warley communicated with KPMG’s in-house counsel and with two
law firms retained by KPMG, Kronish Lieb Weiner & Hellman LLP and King & Spalding LLP.
Warley does not recall having been told that the attorneys represented only KPMG or that any
privilege belonged solely to the firm and could be waived by the firm without her consent.
In September 2004, in circumstances that have been discussed elsewhere, KPMG waived its
attorney-client privilege for communications relating to the IRS summons. It gave the
government documents relating to these communications, and the government apparently
intends to use them in prosecuting Warley and others. The government argues that KPMG's
waiver was sufficient to allow it to obtain the documents and disputes Warley's claim of
privilege.

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Warley identifies two sets of allegedly privileged communications relating to which the
government has documents. First, Warley was interviewed by attorneys from Kronish and King
& Spalding on two occasions in August 2003. The government is in possession of a
memorandum of these interviews prepared by a Kronish attorney as well as his handwritten
notes. In addition, it has listed as a trial witness one of the Kronish attorneys present at these
interviews.
The second allegedly privileged communication is an email exchange in January and February
of 2003 between Warley and Steven Gremminger, an in-house attorney for KPMG, relating to
the tax strategies under investigation. The government has a copy of this email string.
Both parties point to the substance of the communications to support their respective claims that
privilege did or did not attach. Warley further relies upon KPMG’s 2003 partnership agreement,
which provided that “the General Counsel shall act on behalf of all Members, except where a
dispute arises between an individual Member and the Firm.” Finally, Warley alleges that counsel
retained by KPMG jointly represented KPMG and her personally in two lawsuits prior to the
events at issue here.
Discussion
A. Scope of Privilege
The question whether employee communications with counsel retained by the employer about
matters relating to the employment are privileged vis-a-vis the employee — in other words,
whether the employee has a personal attorney-client privilege that only the employee may
waive — is troublesome because competing interests are at play.
On the one hand, an employee, like any other agent, owes the employer a duty to disclose to
the employer any information pertinent to the employment. This includes an obligation “to assist
the employer's counsel in the investigation and defense of matters pertaining to the employer’s
business.” Moreover, an employer has a substantial interest in retaining freedom of action to
respond to investigations and other legal threats, an interest borne of the desire to remain in
business and of duties to other constituents of the entity. Allowing individual employees to
assert personal attorney-client privilege over communications with the employer's counsel could
frustrate an employer's ability to act in its own self interest, perhaps to the detriment of other
employees, stockholders, or partners.
Nevertheless, there are weighty considerations on the other side of the scale. Once a
government investigation begins, the interests of employees and of the entity may diverge.
Indeed, that may be true in other circumstances in which employees communicate with
employer counsel. Employees often are unaware of the potential personal consequences of
cooperating with lawyers hired by their employers. Even more troublesome, they may cooperate
with employer-retained counsel in the belief that their communications are protected by a

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personal privilege, sometimes as a result of a misapprehension of the law and occasionally
perhaps as a result of deception, inadvertent or otherwise.
Courts have wrestled with this problem for some time now. In the absence of evidence that the
employee was deceived by the employer as to the existence of a personal attorney-client
relationship or as to a personal right to control the disclosure of privileged materials, circuits
have employed different standards to determine when personal privilege attaches. Some have
looked at whether the individual reasonably believed that there was a personal attorney-client
relationship, although the Second Circuit has rejected this approach. Others have focused on
whether the individual expressly requested personal advice or representation. In In re Bevill,
Bresler & Schulman Asset Management Corp., the Third Circuit enunciated a five-part test that
has been adopted by at least two other circuits
First, the individual claiming personal privilege must show they approached counsel for
the purpose of seeking legal advice. Second, they must demonstrate that when they
approached counsel they made it clear that they were seeking legal advice in their
individual rather than in their representative capacities. Third, they must demonstrate
that the counsel saw fit to communicate with them in their individual capacities, knowing
that a possible conflict could arise. Fourth, they must prove that their conversations with
counsel were confidential. And, fifth, they must show that the substance of their
conversations with counsel did not concern matters within the company or the general
affairs of the company.
Our circuit addressed the issue in United States v. International Brotherhood of Teamsters. The
Teamsters court first noted that courts typically have said that the attorney-client privilege for an
employee’s communication with corporate counsel about corporate matters belongs to the
corporation, not the individual employee. Nevertheless, it said, courts have found a personal
privilege where the individual met “certain requirements.” It quoted the Third Circuit's Bevill test
as one such example and noted that other courts have required the employee “make it clear to
corporate counsel that he seeks legal advice on personal matters.” Drawing upon all of these
sources, the Circuit concluded that the individual before it lacked any personal privilege with
respect to the communications at issue because he “neither sought nor received legal advice
from his employer's counsel on personal matters.”
Teamsters’ holding thus rests on the scope of “personal matters.” But the meaning of that
phrase has not been developed. Do “personal matters” involve solely the individual, with no
impact on the entity's interests whatsoever? Or may they encompass matters that implicate both
the individual and the entity? Although the facts of Teamsters suggest that the Circuit might
have contemplated the former view, it did not expressly address the question.
Some guidance may be gained from circuits that have addressed this issue in the context of the
fifth Bevill factor, which requires that the communication “not concern matters within the
company or the general affairs of the company.” The Tenth Circuit concluded that this factor

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only precludes an officer from asserting an individual attorney client privilege when the
communication concerns the corporation’s rights and responsibilities. However, if the
communication between a corporate officer and corporate counsel specifically focuses
upon the individual officer’s personal rights and liabilities, then the fifth prong of Bevill
can be satisfied even though the general subject matter of the conversation pertains to
matters within the general affairs of the company. For example, a corporate officer’s
discussion with his corporation’s counsel may still be protected by a personal, individual
attorney-client privilege when the conversation specifically concerns the officer’s
personal liability for jail time based on conduct interrelated with corporate affairs.
The First Circuit adopted the Tenth Circuit’s interpretation and discussed its application where
communications involving the individual’s liabilities “do not appear to be distinguishable” from
those concerning the entity’s interests. Acknowledging that both the employee and the entity
could have an attorney-client relationship with the attorney with respect to such a
communication, but noting also the fiduciary duty owed by a corporate officer to the corporation,
the First Circuit concluded that “a corporation may unilaterally waive the attorney-client privilege
with respect to any communications made by a corporate officer in his corporate capacity,
notwithstanding the existence of an individual attorney-client relationship between him and the
corporation’s counsel.” Thus, under the First Circuit formulation, individual privilege may be
asserted successfully only when “communications regarding individual acts and liabilities are
segregable from discussions about the corporation.” To hold otherwise, the court reasoned,
“would open the door to a claim of jointly held privilege in virtually every corporate
communication with counsel.”
The Tenth and First Circuits thus have argued persuasively that communications implicating
personal liability for acts within the scope of an individual’s employment may be protected by
individual attorney-client privilege, at least in some circumstances. It is an open question
whether such communications involve “personal matters” within the meaning of Teamsters. But
it is unnecessary to resolve that issue here. As discussed below, and particularly in light of the
fact that the burden of proof lies with the party asserting privilege, Warley fails to meet any
standard.
B. Warley’s Claims
To begin with, there is no evidence that Warley was deceived by KPMG or its attorneys about
the nature of her relationship with counsel. Although she claims to have “understood that
counsel were representing her personally as a partner in the firm,” her subjective belief alone
does not support a conclusion that KPMG’s acts were responsible for that belief. Accordingly,
the analysis of her claims rests on whether the communications involved “personal matters.”
Warley’s communications with counsel were about events and conduct within the scope of her
work as a partner at KPMG, thus clearly implicating KPMG’s interest in responding to the IRS
investigation. The events and conduct, however, also implicated Warley’s personal interests and
liabilities, as is amply evidenced by her status as a defendant in this case. Warley’s

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communications thus present the difficult circumstance where both the individual’s and the
entity’s interests are involved.
As discussed above, the scope of “personal matters” under Teamsters is unclear. Under a
narrow reading, the fact that the communications implicated KPMG’s interests alone would
require that Warley’s claim of privilege be rejected. Even under the approach adopted by the
First and Tenth Circuits, however, Warley could not prevail on a privilege claim absent a
showing that communications implicated her interests alone and were segregable from those
involving KPMG’s interests. Nothing in the allegedly privileged documents or the affidavits
submitted with this motion indicates that the communications focused on her personal interests
alone. The Court therefore need not determine the parameters of “personal matters,” as
Warley’s disclosures would not come within even a broad view of the term.
Warley nevertheless argues that her communications were privileged vis-a-vis herself because
(1) the KPMG partnership agreement provides that “the General Counsel shall act on behalf of
all Members, except where a dispute arises between an individual Member and the Firm,” and
(2) counsel retained by KPMG represented both Warley and the firm in litigation on two
occasions prior to the communications here at issue. But these contentions are not persuasive.
To begin with, the occasions on which Warley and KPMG were jointly represented occurred in
circumstances in which Warley was a witness, not a party, to the litigation. The Court is not
persuaded that representation of an employee by employer-retained counsel where the
employee’s role is that of a witness in a lawsuit against the employer could give rise to a
reasonable expectation on the part of the employee that all communications she might have
with employer-retained counsel, even a long time thereafter, were made in the context of an
individual attorney-client relationship.
Nor has Warley offered any evidence that she in fact subjectively relied either upon the
language in the partnership agreement or the previous litigation experience in concluding that
Kronish, King & Spalding, or Gremminger was representing her individually.
Conclusion
In the end, Warley’s showings amount merely to a claim of her subjective belief which, without
more, is insufficient to meet her burden of proving privilege. For the foregoing reasons, Warley’s
motion for relief from the government’s alleged violation of her attorney-client privilege is denied.
Questions:
1. Did Warley believe KPMG’s attorneys represented her personally? If so, why was she
wrong. Did anyone tell her that KPMG’s attorneys were not representing her personally?
2. Why does Warley want to claim that the documents at issue are protected by the
attorney-client privilege? Why can’t she make a privilege claims? Could KPMG have
made a privilege claim over the same information?

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3. Should Warley have a malpractice claim against KPMG’s attorneys?
Further Reading:
●
●

Grace M. Giesel, Upjohn Warnings, the Attorney-Client Privilege, and Principles of
Lawyer Ethics: Achieving Harmony, 65 U. Miami L. Rev. 109 (2010)
Ashish S. Joshi, Corporate Miranda: Clarifying Lawyers' Loyalty During an Internal
Investigation, American Bar Association (2009)

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Section 3: The Legal Duties of an Attorney
3.1: Fiduciary Duties
Attorneys are fiduciaries of their clients. As fiduciaries, they have certain legal duties to their
clients, which include:
●
●
●
●

The Duty of Care: Ordinary care under the circumstances.
The Duty of Loyalty: Absolute loyalty.
The Duty of Impartiality: Absolute candor.
The Duty of Confidentiality: Absolute confidentiality.

The duties of care, loyalty, impartiality, and confidentiality attach whenever an attorney-client
relationship begins and may continue after an attorney-client relationship ends. Accordingly,
attorneys may owe duties to both current and former clients, which may affect an attorney’s
ability to continue representing those clients or to represent new clients.
The Duty of Care
Attorneys must exercise reasonable care when representing their clients. Typically, courts
expect attorneys to use the degree of care expected of an ordinary attorney in similar
circumstances. In other words, the duty of care imposed on an attorney is a duty of professional
care, reflecting the expectations of both the client and other attorneys. An attorney who fails to
exercise reasonable care is negligent, and may be liable in tort for malpractice. Attorneys may
have a duty of care to both current and former clients, and any negligent act in relation to
representation of a client may create a malpractice claim.
In order to prove a malpractice claim for a breach of the duty of care, the plaintiff must show that
a duty of care existed, the attorney breached the duty of care, and the breach caused a harm to
the plaintiff. Of course, a duty of care exists only if an attorney-client relationship exists. So the
first element of a malpractice claim for negligence is proving the existence of an attorney-client
relationship.
The Duty of Loyalty
Attorneys are fiduciaries of their clients because clients justifiably vest confidence, good faith,
reliance, and trust in their attorneys. Accordingly, attorneys have a fiduciary duty to maintain an
undivided loyalty to their clients at all times. Attorneys must ensure that their duties to their
clients never conflict with their own financial interests, the interests of another client, or any
other interest that would affect their ability to provide competent and diligent representation.
Under the duty of loyalty, attorneys cannot represent anyone with an interest adverse to one of
their clients, because it would create a conflict of interest. If that interest becomes an issue, the
attorney’s loyalty would be divided between the two clients. Obviously, an attorney cannot

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represent two parties with interests directly adverse to each other, like opposing parties in
litigation, because the conflict of interest is fundamental and unavoidable. MR 1.7, cmt. [8]. But
the restriction imposed by the duty of loyalty applies more broadly. Any adverse or potentially
adverse interest may create a conflict of interest, even if that interest is not yet at issue.
The Duty of Impartiality
As fiduciaries of their clients, attorneys have a duty to provide candid and impartial advice. In
order to satisfy the duty of impartiality, attorneys must be able to exercise their independent
professional judgment, without any conflicts of interest. If a client’s interests are adverse or
potentially adverse to the attorney’s interests or the interests of another client, a conflict of
interest exists that will compromise the attorney’s impartiality. Under those circumstances,
attorneys will have an incentive to provide advice that benefits themselves or their other clients,
and withhold advice that does not. Even if the client is not harmed by the advice itself, the client
is harmed by not receiving candid and impartial advice reflecting the full range of available
options.
For example, if an attorney represents a client in a contract negotiation, and the outcome of the
negotiation could affect the interests of another client, a conflict of interest exists, because the
attorney has an incentive to provide advice that will benefit the other client and withhold advice
that will harm the other client. Even if the advice benefits both clients, the client receiving the
advice is harmed by not receiving candid and impartial advice. Likewise, if an attorney both
represents and has a financial interest in a corporation, a conflict of interests exists, because
the attorney has an incentive to provide advice that will benefit the attorney’s investment and
withhold advice that will not, depriving the client of the full range of options.
Model Rule 2.1: Advisor
In representing a client, a lawyer shall exercise independent professional judgment and
render candid advice. In rendering advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social and political factors, that may be
relevant to the client's situation.
The Duty of Confidentiality
As fiduciaries of their clients, attorneys also have a duty to maintain the confidentiality of private
information disclosed to them by their clients. Under the duty of confidentiality, attorneys must
never disclose confidential client information to a third party not bound by the duty of
confidentiality or use confidential client information to benefit themselves or another client.
Clients are entitled to confide in their attorney, secure in the knowledge that the confidential
information they disclose cannot be used against them.
If a client’s interests are adverse or potentially adverse to the attorney’s interests or the interests
of another client, a conflict of interests exists that will compromise the attorney’s ability to

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maintain confidentiality. Under those circumstances, attorneys have an incentive to use the
confidential information for their own benefit or the benefit of their other client. Even if the client
is not harmed by the use of the confidential information, the client is harmed by the betrayal of
trust.
Model Rule 1.6: Confidentiality of Information
a. A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out
the representation or the disclosure is permitted.
Limitations on the Duties of an Attorney
While the absolute duties of loyalty, impartiality, and confidentiality are the quintessence of
professional responsibility, they are necessarily observed in the breach. Taken literally, they
would inevitably preclude attorneys from ever representing more than one client. It is always
possible that the interests of a potential client will conflict with those of a current client. It is
always possible that advice given to one client will affect the interests of another client. And it is
always possible that confidential information disclosed by one client will be relevant to another.
In practice, the duties of an attorney must yield to the practical realities of representation.
Accordingly, the duties of attorneys are shaped by the rights of clients, attorneys, and the bar.
Clients are entitled to hire the attorney of their choice, and may consent to representation,
despite a formal conflict. Attorneys are entitled to represent more than one client, so long as
they disclose any conflicts and the client consents. And the bar is entitled to prevent parties
from using conflicts strategically to disqualify opposing counsel.
In other words, clients may provide informed consent to certain conflicts of interest. Attorneys
may represent clients with conflicts of interests under certain circumstances, so long as the
clients provide informed consent. And under certain circumstances, the bar may even permit
attorneys to represent parties with conflicting interests without consent.
However, attorneys must always observe the duty of care. An attorney who fails to exercise
reasonable care under the circumstances is negligent and potentially liable for malpractice,
even if the client consents.
Ishmael v. Millington, 241 Cal. App. 2d 520 (Cal. Ct. App. 1966)
Summary: Earl F. Anders and Roberta Ishmael were married and owned a trucking
company. Eventually, they decided to divorce. Under California law, Ishmael was entitled
to 50% of the marital assets. Attorney Robert Millington had previously represented
Anders and his company. Anders asked Millington to represent Ishmael. He agreed, and
prepared a settlement agreement that Ishmael signed. Ishmael was entitled to $41,250,
but under the agreement she received $8,807. Ishmael filed a malpractice action, and

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the trial court granted Millington’s motion for summary judgment. The appellate court
reversed, holding that a jury could have found that Millington breached his duty of care.
FRIEDMAN, J.
This is a legal malpractice action in which the plaintiff-client appeals from a summary judgment
granted the defendant-attorney. The factual narrative will possess heightened significance
against a backdrop of general doctrine:
Actionable legal malpractice is compounded of the same basic elements as other kinds
of actionable negligence: duty, breach of duty, proximate cause, damage. Touching the
first element, duty, the general rule is that “the attorney, by accepting employment to
give legal advice or to render other legal services, impliedly agrees to use such skill,
prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and
exercise in the performance of the tasks which they undertake.”
In this case the defense is that the client sought no advice from the attorney and was given
none; by the client's express admission, she did not rely on the attorney, thus, that her alleged
damage was not proximately caused by the attorney's cause of action.
The facts are presented by summary judgment affidavits, which include extracts from
depositions. There is no significant conflict in the evidence. Roberta Ishmael, the plaintiff, was
formerly married to Earl F. Anders. The couple had three children. They lived in Gridley, where
Mr. Anders was a partner in a family trucking business. Domestic difficulties resulted in a
separation, and Mrs. Anders moved to Sacramento where she secured employment. She and
her husband agreed upon a divorce and property settlement. She knew that she was entitled to
one-half the marital property.
Mr. Anders called upon defendant Robert Millington, a Gridley attorney who had for some time
represented him and his trucking firm. Mr. Millington advised Anders that if he could establish
adulterous conduct by Mrs. Anders, he might be awarded more than one-half the community
property. For one reason or another there was a decision that the wife rather than the husband
would apply for divorce. At Anders’ request Mr. Millington agreed to act as the wife's attorney, to
prepare the necessary papers and to file a divorce action for her. He drew up a complaint and a
property settlement agreement and handed these documents to Mr. Anders, who took them to
Sacramento and had his wife sign them. She knew that Mr. Millington had represented her
husband in the past. Faulty recall prevents ascertainment whether Mrs. Anders ever met
personally with the attorney before the papers were drawn. She did not discuss the property
settlement agreement with the attorney before she signed it. Mr. Millington believed the divorce
and property settlement arrangements were “cut and dried” between the husband and wife; he
“assumed that she knew what she was doing;” he believed that she was actually getting half the
property but made no effort to confirm that belief.

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In her deposition the former Mrs. Anders testified that in signing the complaint and property
settlement agreement she relied solely on her husband and did not rely on the attorney. Later,
when so instructed, she traveled to the courthouse at Oroville, where she and her corroborating
witness met Mr. Millington. He escorted her through a routine ex parte hearing which resulted in
an interlocutory divorce decree and judicial approval of the property settlement.
According to her complaint, the former Mrs. Anders discovered that in return for a settlement of
$8,807 she had surrendered her right to community assets totaling $82,500. Ascribing her loss
to the attorney's negligent failure to make inquiries as to the true worth of the community
property, she seeks damages equivalent to the difference between what she received and onehalf the asserted value of the community.
By the very act of undertaking to represent Mrs. Anders in an uncontested divorce suit, Mr.
Millington assumed a duty of care toward her, whatever its degree. Described in terms
traditionally applicable to the attorney-client relationship, the degree of care exacted by that duty
was that of a figurative lawyer of ordinary skill and capacity in the performance of like tasks.
The degree of care is related to the specific situation in which the defendant found himself. The
standard is that of ordinary care under the circumstances of the particular case. A lawyer owes
undivided loyalty to his client. Minimum standards of professional ethics usually permit him to
represent dual interests where full consent and full disclosure occur. The loyalty he owes one
client cannot consume that owed to the other. Most descriptions of professional conduct prohibit
his undertaking to represent conflicting interests at all; or demand that he terminate the threeway relationship when adversity of interest appears. Occasional statements sanction informed
representation of divergent interests in “exceptional” situations. Even those statements demand
complete disclosure of all facts and circumstances which, in the attorney's honest judgment,
may influence his client's choice, holding the attorney civilly liable for loss caused by lack of
disclosure.
Divorces are frequently uncontested; the parties may make their financial arrangements
peaceably and honestly; vestigial chivalry may impel them to display the wife as the injured
plaintiff; the husband may then seek out and pay an attorney to escort the wife through the
formalities of adjudication. We describe these facts of life without necessarily approving them.
Even in that situation the attorney’s professional obligations do not permit his descent to the
level of a scrivener. The edge of danger gleams if the attorney has previously represented the
husband. A husband and wife at the brink of division of their marital assets have an obvious
divergence of interests. Representing the wife in an arm's length divorce, an attorney of ordinary
professional skill would demand some verification of the husband's financial statement; or, at
the minimum, inform the wife that the husband's statement was unconfirmed, that wives may be
cheated, that prudence called for investigation and verification. Deprived of such disclosure, the
wife cannot make a free and intelligent choice. Representing both spouses in an uncontested
divorce situation (whatever the ethical implications), the attorney's professional obligations
demand no less. He may not set a shallow limit on the depth to which he will represent the wife.

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The general standard of professional care is appropriate to the garden variety situation, where
the attorney represents only one of several parties or interests. It falls short of adequate
description where the attorney's professional relationship extends to two clients with divergent
or conflicting interests in the same subject matter. A more specific statement of the same rule is
needed to guide the fact trier to the law's demands when the attorney attempts dual
representation. In short, an attorney representing two parties with divergent interests must
disclose all facts and circumstances which, in the judgment of a lawyer of ordinary skill and
capacity, are necessary to enable his client to make free and intelligent decisions regarding the
subject matter of the representation.
In view of the degree of care imposed by law on an attorney in defendant's position, a fact trier
might reasonably find him negligent in failing to disclose to plaintiff the limited representation
she was receiving and in failing to point to the possibility of independent legal advice. The
question of breach was thus a triable issue which could not be resolved on a summary judgment
motion.
Legal malpractice may consist of a negligent failure to act. The attorney's negligence, whether
consisting of active conduct or a failure to act, need not be the sole cause of the client's loss.
Here the attorney is charged not with erroneous advice, but with failure to advise, failure to
investigate, failure to disclose. The wife's reliance on her husband's alleged misrepresentations
is not at all inconsistent with the claim that her loss was the result of the attorney's negligent
failure. A jury might find that the husband's misrepresentations were a realizable likelihood
which made the attorney's inaction negligent, thus forming a concurrent (and not superseding)
cause of harm. Causation was a jury question which could not be resolved as a matter of law.
Contributory negligence on plaintiff's part was specially pleaded and, if established, would bar
malpractice recovery. Plaintiff, as she testified, relied on her husband's list of assets; apparently
did not trouble to investigate or even to inquire whether she was getting her share of property;
was seemingly content to let her husband take charge; accepted his attorney for the limited
purpose of piloting her through the divorce formalities. A court, however, cannot say that
reasonable jurors would inevitably characterize her conduct as contributory negligence. That
issue was a triable issue of fact.
Thus, notwithstanding the lack of conflict in the evidence, the summary judgment rests on the
determination of issues reserved for decision by a fact trier and which could not be resolved as
a matter of law. Since triable issues of fact existed, the motion should have been denied.
Questions:
1. Did Anders assert a violation of the duty of care, the duty of loyalty, or both?
2. Did Anders show a violation of the duty of care, the duty of loyalty, or both?
3. Could Anders have prevailed on a violation of either the duty of care or the duty of
loyalty?

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The Appearance of Impropriety
Let this, my young Readers, be your constant Maxim, That no Man can be good enough to
enable him to neglect the Rules of Prudence; nor will Virtue herself look beautiful, unless she be
bedecked with the outward Ornaments of Decency and Decorum.39
The ABA has long held that judges should avoid “the appearance of impropriety.” When the
ABA adopted the Canons of Judicial Ethics in 1924, Canon 4 held that judges should avoid “the
appearance of impropriety.” When it adopted the Code of Judicial Conduct in 1972, Canon 2
held that a judge should avoid “the appearance of impropriety in all his actions.” When it
adopted the Model Code of Judicial Conduct in 1990, Canon 2A maintained the appearance of
impropriety standard, holding that “the test for the appearance of impropriety is whether the
conduct would create in reasonable minds a perception that the judge's ability to carry out
judicial responsibilities with integrity, impartiality and competence is impaired.” And Rule 1.2 of
the revised Model Rules of Judicial Conduct retains the same standard.
But lawyers have resisted applying the appearance of impropriety standard to themselves.
When the ABA adopted the Model Code of Professional Responsibility in 1969, it included the
appearance of impropriety standard only as an “ethical consideration,” rather than a “disciplinary
rule,” making it aspirational, rather than mandatory. And when the ABA adopted the Model
Rules of Professional Conduct in 1983, it eliminated the appearance of impropriety standard
entirely.
Model Code of Professional Responsibility
Canon 9: A Lawyer Should Avoid Even the Appearance of Professional Impropriety
Ethical Consideration 9-2
Public confidence in law and lawyers may be eroded by irresponsible or improper
conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to
be unethical. In order to avoid misunderstandings and hence to maintain confidence, a
lawyer should fully and promptly inform his client of material developments in the matters
being handled for the client. While a lawyer should guard against otherwise proper
conduct that has a tendency to diminish public confidence in the legal system or in the
legal profession, his duty to clients or to the public should never be subordinate merely
because the full discharge of his obligation may be misunderstood or may tend to
subject him or the legal profession to criticism. When explicit ethical guidance does not
exist, a lawyer should determine his conduct by acting in a manner that promotes public
confidence in the integrity and efficiency of the legal system and the legal profession.
Restatement (Third) of the Law Governing Lawyers § 121(c)(iv): The perspective for
determining conflict of interest

39

Henry Fielding, The History of Tom Jones, A Foundling (1749).

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This Section employs an objective standard by which to assess the adverseness,
materiality, and substantiality of the risk of the effect on representation. The standard of
this Section is not the “appearance of impropriety” standard formerly used by some
courts to define the scope of impermissible conflicts. That standard could prohibit not
only conflicts as defined in this Section, but also situations that might appear improper to
an uninformed observer or even an interested party.
The propriety of the lawyer's action should be determined based only on facts and
circumstances that the lawyer knew or should have known at the time of undertaking or
continuing a representation. It should not be evaluated in light of information that
became known only later and that could not reasonably have been anticipated.
The standard of this Section allows consideration in a given situation of the social value
of the lawyer's behavior alleged to constitute the conflict. For example, a lawyer's
statement about a matter of public importance might conflict with a client's objectives,
but the public importance of free expression is a factor to be considered in limiting the
possible reach of the relevant conflicts rule.
Whether there is adverseness, materiality, and substantiality in a given circumstance is
often dependent on specific circumstances that are ambiguous and the subject of
conflicting evidence. Accordingly, there are necessarily circumstances in which the
lawyer's avoidance of a representation is permissible but not obligatory. A lawyer also
would be justified in withdrawing from some representations in circumstances in which it
would be improper to disqualify the lawyer or the lawyer's firm.
Model Code of Judicial Conduct: Canon 1
Rule 1.2: Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and
the appearance of impropriety.
Rule 1.2, Comment 5
The test for appearance of impropriety is whether the conduct would create in
reasonable minds a perception that the judge violated this Code or engaged in other
conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or
fitness to serve as a judge.
Bd. Of. Ed. Of. NY City v. Nyquist, 590 F. 2d 1241 (2d Cir. 1979)
Summary: The Board of Education of the City of New York used separate seniority lists
when deciding layoffs of male and female Health and Physical Education teachers
(HPETs). The Commissioner of Education held that using separate lists was illegal, but

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the Department of Health, Education, and Welfare (HEW) disagreed, arguing that
merging the lists would violate Title IX by disproportionately affecting women. The BoE
filed a declaratory judgment action against three male and three female HPETs. The
male HPETs were represented by James R. Sandner of New York State United
Teachers (NYSUT). The female HPETs filed a motion to disqualify Sandner, on the
ground that their union dues helped pay for his services. The district court granted the
motion, but the Second Circuit reversed, holding that no conflict of interest existed, and
that any appearance of impropriety was insufficient to require disqualification.
Before FEINBERG, MANSFIELD and SMITH, Circuit Judges.
FEINBERG, Circuit Judge:
This unusual case presents difficult questions regarding the appropriate role of federal courts
when called upon by disqualification motions to evaluate the conduct of attorneys who appear
before them. Three male Health and Physical Education teachers (HPETs) in the New York City
school system appeal from an order of the United States District Court for the Southern District
of New York, Morris E. Lasker, J., disqualifying their counsel upon the motion of three female
HPETs. Appellant male teachers claim that the order was an abuse of discretion because it
disregarded their constitutional rights, and was without any sound basis. For reasons set forth
below, we hold that the motion to disqualify should have been denied, and we therefore reverse
the order of the district court.
The contending parties on appeal - the male and female HPETs - are all defendants in this
declaratory judgment action brought by the Board of Education of the City of New York and the
Chancellor of the City School District. In February 1977, these plaintiffs found themselves in the
middle of apparently contradictory positions held by the Commissioner of Education of the State
of New York and the office of Civil Rights of the Department of Health, Education and Welfare
(HEW). In a case involving one of these appellants, the State Commissioner had ruled that the
use of separate seniority lists for male and female HPETs for the purpose of layoffs was illegal.
Shortly thereafter, HEW initially indicated to the Board that HEW took exactly the contrary view,
that merger of the lists would violate Title IX. Caught in this apparent dilemma, plaintiffs
provisionally merged the seniority lists of male and female HPETs and commenced this action
for a declaratory judgment in which all concerned parties would be present. The complaint
named as defendants HEW and its Secretary, the New York State Commissioner of Education,
the State Division of Human Rights, three named male HPETs, individually and as
representatives of all male HPETs, and three named female HPETs, individually and as
representatives of all female HPETs. The male and female defendants have asserted
counterclaims and cross-claims. The relief sought by plaintiffs is a judgment declaring that the
provisional policy of merging the seniority lists, effective February 1, 1977 but not retroactively,
is lawful.

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The two classes of defendants are the actual contending parties in this litigation. The male
HPETs allege that maintaining separate seniority lists for male and female HPETs is illegal and
that:
all defendant male Health and Physical Education teachers who were laid off on or after
September 1, 1975, are entitled to reinstatement with back pay and all other retroactive
benefits incident to their positions to the date of their layoff if less senior female teachers
were retained at that time or at any time thereafter.
The female HPETs allege that their seniority status perpetuates past discriminatory practices of
plaintiffs and that if the provisional merged seniority list is used for layoff purposes “it will result
in the layoff of at least six times as many female HPETs as male HPETs.” The stakes in the
lawsuit are obviously high.
The male HPETs are represented in this action by James R. Sandner, Esq., who is also
General Counsel of New York State United Teachers (NYSUT). That organization is an
unincorporated membership association of approximately 180,000 teachers, librarians,
guidance counsellors and other school related employees of the almost 800 school districts in
New York State. We are told that in each of the school districts there is a separate local union,
which is the exclusive bargaining representative for employees in that unit. The majority of these
individual unions have chosen to affiliate themselves with NYSUT, but the latter does not
collectively bargain for any public employees. It does, however, provide a number of services to
its members, including a legal service program under the direction and control of Mr. Sandner.
Both the male and female HPETs are represented in collective bargaining by the American
Federation of Teachers (AFT), to whom they pay dues. A portion of the dues paid to the AFT is
remitted to NYSUT, which, at least in part, apparently finances the legal service program.
Under the program, NYSUT’s members may apply to obtain legal representation free of charge.
Mr. Sandner and his staff may take an applicant's case when, in their judgment, the claim is
both job-related and meritorious. It is through this procedure that the male defendants retained
Mr. Sandner as their attorney. NYSUT itself, however, has taken no position on the merits or on
any other issue in this litigation.
The female HPETs moved to disqualify Mr. Sandner as counsel for the male HPETs or, in the
alternative, to require NYSUT to furnish counsel for the female teachers. Judge Lasker
concluded that “the female teachers are paying, in part, for their opponents’ legal expenses.”
This violated “at least the spirit, if not the letter, of Canon 9 of the Code of Professional
Responsibility that ‘A lawyer should avoid even the appearance of impropriety.’” Accordingly,
the judge granted the motion and this appeal by the male HPETs followed.
We begin the discussion by noting that, curiously, the power of the federal courts to disqualify
attorneys in litigation pending before them has long been assumed without discussion, and
attention has focused on identifying the circumstances in which exercise of the power is
appropriate. Our reading of the cases in this circuit suggests that we have utilized the power of

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trial judges to disqualify counsel where necessary to preserve the integrity of the adversary
process in actions before them. In other words, with rare exceptions disqualification has been
ordered only in essentially two kinds of cases: (1) where an attorney's conflict of interests in
violation of Canons 5 and 9 of the Code of Professional Responsibility undermines the court’s
confidence in the vigor of the attorney's representation of his client, or more commonly (2)
where the attorney is at least potentially in a position to use privileged information concerning
the other side through prior representation, for example, in violation of Canons 4 and 9, thus
giving his present client an unfair advantage. In such cases, we note Chief Judge Kaufman's
oft-quoted admonition that,
When dealing with ethical principles, we cannot paint with broad strokes. The lines are
fine and must be so marked. Guideposts can be established when virgin ground is being
explored, and the conclusion in a particular case can be reached only after a painstaking
analysis of the facts and precise application of precedent.
But in other kinds of cases, we have shown considerable reluctance to disqualify attorneys
despite misgivings about the attorney's conduct. This reluctance probably derives from the fact
that disqualification has an immediate adverse effect on the client by separating him from
counsel of his choice, and that disqualification motions are often interposed for tactical reasons.
And even when made in the best of faith, such motions inevitably cause delay. For example,
this lawsuit has been at a standstill now for close to a year.
Weighing the needs of efficient judicial administration against the potential advantage of
immediate preventive measures, we believe that unless an attorney's conduct tends to “taint the
underlying trial” by disturbing the balance of the presentations in one of the two ways indicated
above, courts should be quite hesitant to disqualify an attorney. Given the availability of both
federal and state comprehensive disciplinary machinery, there is usually no need to deal with all
other kinds of ethical violations in the very litigation in which they surface.
With these thoughts in mind, we turn to the ethical problems presented by the instant appeal.
The district court disqualified Mr. Sandner because a “layman's faith would be severely
troubled” by the fact that “the female teachers are paying, in part, for their opponents' legal
expenses.” There is no claim, however, that Mr. Sandner feels any sense of loyalty to the
women that would undermine his representation of the men. Nor is there evidence that his
representation of the men is anything less than vigorous. There is also no claim that the men
have gained an unfair advantage through any access to privileged information about the
women. Were there any such problem, the women would not be asking, and the district judge
would not have ordered, as an alternative to disqualification of Mr. Sandner, that NYSUT pay
their attorney's fees. Thus, in no real sense can Mr. Sandner's representation of the men be
said to taint the trial.
We agree that there is at least some possibility that Mr. Sandner's representation of the men
has the appearance of impropriety, because of the large number of union members involved
and the public importance of the civil rights issue at the heart of the dispute. But in any event,

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we think that disqualification was inappropriate. We believe that when there is no claim that the
trial will be tainted, appearance of impropriety is simply too slender a reed on which to rest a
disqualification order except in the rarest cases. This is particularly true where, as in this case,
the appearance of impropriety is not very clear. We note that while on one hand there is an
element of unfairness to the women, on the other it seems probable that if NYSUT were to take
a position on the merits of this litigation, Mr. Sandner's representation of the men would
apparently be within the protection of the "fair representation" cases. This means that the
question whether Mr. Sandner's conduct is unethical could be a very close one. Since
disqualification entails immediate disruption of the litigation, it is better to relegate any questions
about Mr. Sandner's conduct to other appropriate proceedings. In addition to the possibility of
grievance proceedings and an internal union attack on the legal plan, it may be that judicial
construction of the plan, in an appropriate lawsuit, could provide some relief for the women.
We therefore reverse the order of the district court disqualifying counsel, and remand for
continuation of the action.
Questions:
1. Who does Sandner represent? Does he represent the female members of the teachers
union? Does he have any duties to the plaintiffs in this action?
2. Why might someone be concerned about an appearance of impropriety under these
circumstances? Why did the court find that any appearance of impropriety did not
prevent Sandner from representing the male teachers?
3. Do you agree with the court’s conclusion? Would you feel differently if the male teachers
were paying for their own representation? Would you feel differently if the union provided
representation for the female teachers?
In re Disciplinary Proc. Against Sanders, 145 P. 3d 1208 (Wa. 2006)
Summary: Justice Sanders of the Washington Supreme Court visited the Special
Commitment Center on McNeil Island, which houses people civilly committed as
sexually violent predators. During the visit, Sanders accepted documents from inmates
and asked them about volitional control, among other things. The Attorney General of
Washington filed a complaint against Sanders with the Washington Commission on
Judicial Conduct. After an investigation and a hearing, the Commission found that
Sanders violated Canon 1 by failing to enforce high standards of judicial conduct and
also violated Canon 2(A) by failing to promote public confidence in the integrity and
impartiality of the judiciary. Sanders appealed and the court affirmed.
GROSSE, J.
A visit by a judicial officer to a special facility for sexually violent predators is not in itself
inappropriate conduct under the Code of Judicial Conduct. However, conversations with the
residents of the facility concerning the reasons for their confinement, particularly when one or

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more of these residents has a matter or matters pending before the court on which the judge
sits, can violate the Code of Judicial Conduct. By asking questions of inmates who were litigants
or should have been recognized as potential litigants on issues currently pending before the
court, Justice Richard B. Sanders violated the Code of Judicial Conduct. His conduct created an
appearance of partiality as a result of ex parte contact.
The Washington Commission on Judicial Conduct received a complaint on March 18, 2003,
regarding Justice Sanders' conduct while visiting the Special Commitment Center (SCC) on
McNeil Island. The Commission conducted an independent investigation of the allegations,
determined that sufficient evidence existed to support the complaint, and sent a Statement of
Allegations to Justice Sanders on October 8, 2003. In April 2004, the Commission determined
that probable cause existed to believe that Justice Sanders violated Canons 1, 2(A) and 3(A)(4)
of the Code of Judicial Conduct. After a fact-finding hearing, the Commission issued its decision
holding that Justice Sanders violated Canons 1 and 2(A), but did not violate Canon 3(A)(4). The
Commission found that Justice Sanders' conduct violated Canon 1 by failing to enforce high
standards of judicial conduct and also violated Canon 2(A) by failing to promote public
confidence in the integrity and impartiality of the judiciary. The Commission imposed the
sanction of admonishment. Under Discipline Rules for Judges 3, Justice Sanders filed a notice
of contest.
Justice Sanders embarked on a tour of the SCC despite warnings from his colleagues on the
Supreme Court about potential ex parte contact with litigants. During the tour of this facility,
Justice Sanders accepted documents on two separate occasions from the inmates. Moreover,
in meetings with the residents, some of whom had cases pending before the court, he directly
asked them about the issue of volitional control.
At the time of the visit, the Supreme Court was in the process of deciding In re Detention of
Thorell. Drafts of both a majority opinion and a dissent by Justice Sanders were circulating
among the justices at the Supreme Court. Thorell was a seminal case in which separate actions
by six petitioners were combined, including at least one of the SCC residents with whom Justice
Sanders met. A pivotal issue before the Supreme Court in Thorell was volitional control. The
court was weighing whether the “fact finder must determine that the person facing commitment
as a sexually violent predator (SVP) has serious difficulty controlling behavior and, if so,
whether this determination must be a separate finding based upon a jury instruction.” Thus, the
factual record was before the court in each of the consolidated six cases.
The Commission held, and we agree, that the record established through clear, cogent, and
convincing evidence that Justice Sanders violated Canons 1 and 2(A). In support of that
holding, the findings reference two of the three letters from resident Andre Brigham Young
inviting the justices to visit McNeil Island. Those letters indicate that the residents were looking
for something more than just a tour of the facility. In fact, Young suggested that others
(opposing counsel and defense attorneys) should be asked to attend to avoid “the appearance
of partiality.” The letters in and of themselves should have given sufficient notice to Justice
Sanders that this visit had the potential of being more than an institutional tour. Additional

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warning flags were also raised by three justices who expressed concerns about the visit and
potential problems. Moreover, a simple computer check would have revealed that Rickey
Calhoun and Andre Brigham Young, two people mentioned in the prior communication with
Justice Sanders, had cases pending before the Supreme Court. When Justice Sanders met with
the residents in small groups, he warned the residents that he could not hear their particular
case issues. However, these warnings were followed by specific questions asking the residents
about their confinement and what they thought of volitional control.
The Commission justifiably found that Justice Sanders, with full awareness of the potential for
situations that could conflict with the Code of Judicial Conduct, embarked on the tour and met
with litigants who had pending cases before the court. Further, by raising such critical issues as
volitional control with these litigants, Justice Sanders created a situation that clearly violated
both the letter and the spirit of the canons and created serious concern for both counsel and
fellow jurists about the appearance of partiality.
Justice Sanders claims that a violation of Canons 1 and 2(A) cannot be found without a
concomitant violation of a proscribed act or canon and thus the Commission's failure to find a
direct violation of Canon 3(A)(4) precludes it from finding a violation of the other canons. We
disagree.
In our view, Turco is dispositive. There, the court found that the judge's act of striking his wife in
public had a sufficient nexus to the judicial role, particularly when the judge heard domestic
violence cases. If extrajudicial tortious conduct can provide a nexus to the judicial role, then a
fortiori, judicial conduct can provide a basis for a violation of Canons 1 and 2(A). In the instant
case, Justice Sanders’ actions were not simply undertaken as a private citizen, but rather within
the context of his judicial duties. Our conclusion is underscored by the decision in In re
Disciplinary Proceeding Against Ritchie. In that case, Judge John G. Ritchie argued that
Canons 1 and 2(A) of the Code of Judicial Conduct, together with the statute regulating the
behavior, were too vague to give him adequate notice of the prohibited behavior. In denying the
claim, the court stated:
It is true the conduct pursuant to which he was disciplined is not clearly proscribed by
RCW 3.58.040, insofar as the statute does not expressly prohibit judges from combining
business and pleasure trips, and does not define “reasonable traveling expenses” or
“business of the court”.
Judge Ritchie's vagueness challenge is ultimately immaterial, however, because he was
not disciplined for violating the statute. Rather, he was censured for violating Canons 1
and 2(A) of the Code of Judicial Conduct which hold judges to a higher standard of
integrity and require avoiding even the appearance of impropriety.
As noted in the Commission's decision, there are a number of facts in this case that, when
taken together, clearly demonstrate that a predictable appearance of partiality could be
foreseen.

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Where a judge’s decisions are tainted by even a mere suspicion of partiality, the effect on the
public's confidence can be debilitating. The canons of judicial conduct should be viewed in
broad fashion, and judges should err on the side of caution. Under Canon 3(D)(1), “judges
should disqualify themselves in a proceeding in which their impartiality might reasonably be
questioned.” In Sherman, the court found that where a trial judge “may have inadvertently
obtained information critical to a central issue on remand, a reasonable person might question
his impartiality.” The court set the test for determining impartiality:
In deciding recusal matters, actual prejudice is not the standard. The Commission
recognizes that where a trial judge's decisions are tainted by even a mere suspicion of
partiality, the effect on the public's confidence in our judicial system can be debilitating.
The test for determining whether the judge's impartiality might reasonably be questioned
is an objective test that assumes that “a reasonable person knows and understands all
the facts.”
This court in In re Disciplinary Proceeding Against Sanders noted that the interest of the State in
maintaining and enforcing high standards of judicial conduct under the auspices of Canon 1 is a
compelling one. In Sanders, this court balanced that interest against Justice Sanders' First
Amendment rights and found that an independent basis for finding a violation of Canon 1 under
those circumstances was not possible. Justice Sanders argues that the language in Canon 1 is
hortatory and therefore cannot stand as an independent basis for a violation of the Code of
Judicial Conduct. In the instant case, Canon 1 sets the conceptual framework under which
Canon 2(A) operates. Canon 2(A) provides the more specific restraint, to wit: “Judges should
act at all times in a manner that promotes public confidence in the integrity and impartiality of
the judiciary.” Under the circumstances of this case, Canon 1 taken in conjunction with Canon
2(A) provides a sufficiently specific basis to find a violation of the Code of Judicial Conduct.
Here, it was clear that there was a substantial basis and expectation that Justice Sanders would
be in contact with possible litigants who had pending litigation before the court and that this
contact would be viewed as improper. We concur with the Commission's finding that it was
clearly reasonable to question the impartiality of the justice under the circumstances of this
case.
Questions:
1. Why did the court hold that visiting the Special Commitment Facility did not create an
appearance of impropriety, but speaking to a resident of the facility did?
2. Would it create an appearance of impropriety for a judge to visit a prison? What if the
judge spoke to an inmate?
3. Would it create an appearance of impropriety for a judge to speak with a person who
had a pending civil action?
Further Reading:

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●
●
●

Peter W. Morgan, The Appearance of Propriety: Ethics Reform and the Blifil Paradoxes,
44 Stan. L. Rev. 593 (1992)
W. Bradley Wendel, Impartiality in Judicial Ethics: A Jurisprudential Analysis, 22 Notre
Dame J.L. Ethics & Pub. Pol'y 305 (2008)
Ronald D. Rotunda, Judicial Ethics, the Appearance of Impropriety, and the Proposed
New ABA Judicial Code, 34 Hofstra Law Review 1337 (2006)

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3.2: Malpractice
Attorneys may be liable for malpractice if they violate any of their fiduciary duties of care, loyalty,
impartiality, or confidentiality. However, the standard for liability may differ depending on the
duty at issue. Attorneys may be liable for a violation of the duty of care only if they are negligent.
But they may be liable for any violation of the duties of loyalty, impartiality, and confidentiality.
Under the duty of care, attorneys must always exercise reasonable care under the
circumstances. Attorneys are professionals, so the professional standard of care applies. In
other words, an attorney must exercise the standard of care that an ordinary attorney would
exercise under similar circumstances. If an attorney breaches the duty of care, then the attorney
is negligent, and may be liable in tort for malpractice.
By contrast, under the duties of loyalty, impartiality, and confidentiality, attorneys must always
avoid conflicts of interest, provide candid advice, and protect confidential information. Any
violation of these duties is a tort, irrespective of negligence. In effect, they are analogous to
strict liability torts.
The Elements of the Tort of Legal Malpractice
Legal malpractice is a tort, with the same basic elements as any other tort claim: duty, breach,
causation, and damages. An attorney has a duty only if an attorney-client relationship exists.
Accordingly, the plaintiff in an action claiming legal malpractice must prove:
1.
2.
3.
4.
5.

Existence of an attorney-client relationship
Breach of a legal duty
Factual causation of harm
Proximate causation of harm
Actual damages

Legal Duty
Attorneys owe legal duties to their clients, but do not owe legal duties to non-clients.
Accordingly, the threshold question in a malpractice action is whether the plaintiff is a client to
whom the attorney owes legal duties.
Marker v. Greenberg, 313 N.W.2d 4 (Minn. 1981)
Summary: Theodore Marker hired attorney Robert Greenberg for estate planning
services. Among other things, Greenberg prepared deeds conveying real estate to
Marker and his son as joint tenants. When Marker died, the real estate was subject to
estate tax. Marker’s son sued Greenberg for malpractice, alleging that if the real estate
had been conveyed as tenants in common, it would not have been subject to estate tax.
The trial court granted Greenberg’s motion for summary judgment and the appeals court

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affirmed, holding that Marker’s son lacked an attorney-client relationship with Greenberg,
and could not bring a malpractice action as a beneficiary of the estate because he
received the property.
SCOTT, Justice.
This is an appeal from an order of the Hennepin County District Court in a legal malpractice
action brought by the surviving joint tenant against the attorney who drafted the deed. By that
order the trial court granted respondent Robert Greenberg's motion for summary judgment on
the grounds that plaintiff could not bring the action absent an attorney-client relationship and
that the six-year statute of limitations barred the action since the statutory period began to run in
1973 when the alleged negligence occurred. We affirm.
For purposes of this appeal, the facts are uncontested. Appellant's father, Theodore Marker,
retained respondent, an attorney, for estate planning services. In December 1972 respondent
prepared a will for appellant's father. In August 1973, on behalf of appellant's father, respondent
drafted deeds which conveyed certain real estate to appellant's father and appellant as joint
tenants.
Appellant’s father died on December 24, 1977. Because the real estate in question was held by
appellant and his father as joint tenants, its entire value, $120,000, was included in the
decedent’s gross estate for tax purposes.
Appellant asserts that, if he and his father had held the real estate as tenants in common,
$20,858.18 in federal and state taxes would have been saved. Appellant commenced this action
to recover the amount of the additional estate taxes, claiming the loss resulted from
respondent’s negligence in not having the real estate conveyed into tenancy in common.
Appellant was never a client of respondent. Appellant does not allege that he was a beneficiary
of his father’s estate with respect to this property, but that he was a surviving joint tenant.
The trial court granted summary judgment in favor of the respondent and dismissed the
complaint. Therefore, the issue arises as to whether a surviving joint tenant has a cause of
action for malpractice against the attorney who drafted the joint tenancy deeds when the
surviving joint tenant was never a client of the attorney.
The general rule in legal malpractice is that an attorney is liable for professional negligence only
to a person with whom the attorney has an attorney-client relationship and not, in the absence
of special circumstances such as fraud or improper motive, to anyone else. Courts have
recognized exceptions, however, where strict privity is not required. Exceptions are frequently
found in cases involving drafting or executing a will.
Many courts have followed the lead of the California Supreme Court, which declared in Lucas v.
Hamm, that an intended beneficiary may bring an action for legal malpractice against the

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decedent's attorney where the attorney's negligent act caused the named beneficiary to lose the
intended bequest.
The relaxation of the strict privity requirement is very limited, however. Especially in probate
proceedings, this stringent restriction is a necessity to prevent a myriad of causes of action. The
will cases listed above which follow Lucas v. Hamm are all situations in which the attorney by
his actions produced an instrument that failed to carry out the testamentary intent of the testator,
either by faulty drafting or by improper attestation. The cases extending the attorney's duty to
non-clients are limited to a narrow range of factual situations in which the client's sole purpose
in retaining an attorney is to benefit directly some third party. As stated by the Iowa Supreme
Court in Brody v. Ruby, “It is clear, however, that the third party, in order to proceed successfully
in a legal malpractice action, must be a direct and intended beneficiary of the lawyer's services.”
In determining the extent of an attorney's duty to a non-client, courts frequently consider the
factors expressed by the Lucas court:
The determination whether in a specific case the defendant will be held liable to a third
person not in privity is a matter of policy and involves the balancing of various factors,
among which are the extent to which the transaction was intended to affect the plaintiff,
the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury,
the closeness of the connection between the defendant's conduct and the injury, and the
policy of preventing future harm.
Applying these factors to the deed drafted by respondent for appellant's father reveals that the
respondent owed no duty to appellant. This is not a case where the property did not pass to the
intended recipient upon the death of the testator. The deed was effective at the time it was
recorded in 1973. There was no invalidity in the deed. Appellant does not allege that the
disposition of the property was contrary to the intent of his father. The benefit which Theodore
Marker wished to give to his son was the joint ownership of the property, and this was
accomplished by the documents.
The facts of Bucquet v. Livingston, to which appellant compares his situation, are
distinguishable. In Bucquet, the beneficiaries of an inter vivos trust alleged professional
negligence by the defendant attorney in drafting the trust agreement. The complaint alleged that
the attorney was employed to plan the settlor's estate and to carry out his intent that the nonmarital half of the trust principal would ultimately pass to the beneficiaries free of estate taxes
after his wife's death. Because the attorney negligently included a general power of appointment
in the instrument, additional taxes were imposed which reduced the corpus of the trust passing
to the beneficiaries. In that case the express purpose of the trust was minimization of taxes. No
such purpose is alleged in the instant case. In Bucquet the desired savings in taxes failed
because of the faulty drafting by the attorney. In the present case, there is no allegation that the
deed as drafted failed to accomplish the objective of the client as expressed to the respondent.

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The facts of the instant case are more similar to those of Hiemstra v. Huston. In that case the
court recognized the exception established in earlier California cases holding an attorney liable
to an intended beneficiary for defects in drafting of a will. The court nevertheless held that the
complaint failed to state a cause of action in the allegations that under a will drafted by the
defendant attorneys the plaintiff son received a smaller bequest than he would have received
under an earlier will of testator. The court noted that plaintiff did not assert any legal deficiency
in the will, nor did plaintiff assert either as a conclusion or by allegation of ultimate facts that the
will failed to reflect the intent of the testator. The court concluded that if plaintiff was deprived of
a substantial part of his father's estate, it was the result not of any negligence on the part of the
defendant attorneys but of the testator's intention as expressed in the valid document.
In the case before us, the objective of the deed was to transfer ownership of the real estate to
joint tenancy between the father and the son. The complaint alleges no invalidity in the
documents and no conflict of the result with decedent's intentions. The estate taxes that were
due at Theodore Marker's death were the natural result of the form of ownership chosen by the
decedent and not the result of any negligence by respondent. In this case summary judgment
was proper. We therefore need not discuss the disputed application of the statute of limitations.
Questions:
1. Why didn’t Marker have an attorney-client relationship with Greenberg?
2. Was Greenberg negligent? Would Marker’s father have had a malpractice action against
Greenberg?
3. Who is the real party in interest: Marker or his father’s estate? Why did Marker’s father
choose joint tenancy rather than tenancy in common? What outcome was Marker’s
father trying to accomplish? Did Greenberg help him achieve that outcome? All else
being equal, do you think Marker’s father would have wanted to minimize the tax?
Breach of Duty
If an attorney-client relationship exists, then the attorney owes certain legal duties to the client.
In order to prevail in a malpractice action, the plaintiff must prove that the attorney breached one
of those legal duties. However, different duties have different liability standards. For example,
the duty of care requires attorneys to exercise reasonable care under the circumstances. But
the duty of loyalty requires absolute loyalty.
Equitania Ins. v. Slone & Garrett, 191 S.W.3d 552 (Ky. 2006)
Summary: Attorney Laurel Garrett represented Vimont in an effort to prevent
Pavenstedt from gaining control of Equitania Insurance. Vimont filed a malpractice claim
against Garrett, alleging that she provided unsound advice. The trial court instructed the
jury that attorneys are not liable for errors of judgment, and the jury found for Garrett.
The Supreme Court reversed, holding that attorneys must exercise ordinary care under
the circumstances.

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WINTERSHEIMER, Justice.
This appeal is from an opinion of the Court of Appeals which affirmed a judgment of the circuit
court based on a summary judgment/jury verdict that rejected the claim of the Equitania
Insurance Company and its Vimont shareholder group for legal malpractice against Garrett and
her law firm.
The major issues are whether the proper standard for proving liability in a legal malpractice case
was followed and whether the instructions given by the trial judge to the jury regarding specific
factual issues violated the rule in favor of barebones jury instructions.
Two groups of shareholders, the Vimont group, composed of four of the shareholders, and the
Pavenstedt group, composed of a group of shareholders led by Johann Pavenstedt began to vie
for control of Equitania, an insurance company which provided insurance for horse owners.
After the Vimont group bought out the Pavenstedt group, the company continued to decline in
its efforts to return a profit. Vimont eventually entered an agreement to sell the book of business
to Markel Insurance Company. That deal was closed in January 1995. In March of that year, the
Vimont group filed a civil action in circuit court, seeking to rescind the agreement between them
and the Pavenstedt group. That case was assigned to Fayette Circuit Judge Gary Payne. A
judgment was rendered against the Vimont group and it was upheld by the Court of Appeals in
an unpublished opinion.
Laurel Garrett and the law firm of Slone & Garrett represented the Vimont group in its attempt to
gain control of the company prior to Vimont buying the shares of Pavenstedt. As a result of that
representation, Vimont filed a civil action against Garrett in circuit court in February of 1997,
alleging legal malpractice by Garrett in connection with her representation. That case was
assigned to Fayette Circuit Judge John R. Adams and it is the principal subject of this appeal.
Judge Adams ruled against Vimont and the Court of Appeals upheld that decision. This appeal
followed.
This case is a complex legal malpractice claim brought by Vimont against Garrett alleging that
she negligently advised them during the midst of the shareholder dispute. They claim that
Garrett negligently failed to properly advise them as to how to retain control of the corporation;
that the methods she advised violated the insurance code; violated a fiduciary duty to
shareholders; was unethical, and was substantially more expensive. The circuit judge granted
Garrett a partial summary judgment based on his interpretation of the contract which was
different from the interpretation made by the circuit judge in the earlier civil case. The other
portion of the claim was resolved in favor of Garrett by a jury verdict. The Court of Appeals
upheld the decision of the circuit court, and this Court granted discretionary review.
I. Jury Instructions

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Correct instructions are absolutely essential to an accurate jury verdict. The fundamental
function of instructions is to tell the jury what it must believe from the evidence in order to
resolve each dispositive factual issue in favor of the party who has the burden of proof on that
issue.
We should note it is well recognized that the function of instructions is only to state what the jury
must believe from the evidence. There should not be an abundance of detail but the jury
instructions should provide only the “bare bones” of the question for the jury. The bare bones
may then be fleshed out by counsel during closing argument.
The jury instructions given by the trial court over the objection by Vimont were not an accurate
statement of the law regarding legal malpractice in Kentucky. Vimont objected to the instructions
and tendered instructions of their own which were not used. The instructions given follow:
Instruction No. 2: It was the duty of Defendant, Laurel Garrett, in undertaking the legal
representation of the plaintiffs, to possess to an ordinary extent the technical knowledge
commonly possessed in her profession, to exercise that degree of care and skill which
an ordinary, reasonably competent lawyer would exercise under the same or similar
circumstances. Provided, however, a lawyer cannot be held responsible for errors in
judgment or for advising a course of action even if that course of action ultimately proves
to be unsuccessful.
The given instructions were incorrect for several reasons. It was properly preserved because
there was an objection to Instruction No. 2 in the submitted instructions.
Kentucky law does not provide for an exception for attorney liability for errors in judgment. A
case relied on by the Court of Appeals, Daugherty v. Runner, stated that misjudgment of the law
will generally not render a lawyer liable. However, Daugherty did not state that a lawyer can
never be held liable for an error in judgment. The tendered instructions did not advise the jury
that it had to be an error of law which precluded liability, nor did it inform the jury that there are
circumstances in which misjudgment of the law could be a basis for liability. There can be many
circumstances in which lawyers can commit errors of judgment which deviate from the standard
of care. Whether an error of judgment is legal malpractice is a question of fact for the jury.
Vimont offered an expert, Manning Warren, to evaluate the methods undertaken by Garrett to
assist the company in its shareholders dispute. Specifically, Warren testified that Garrett should
have pursued an administrative process with the Department of Insurance to join the Vimont
group to the Pavenstedt agreement which, if successful, would have resulted in the
shareholders maintaining control of Equitania and would have resolved the issue. This would
have avoided a prolonged battle with Pavenstedt and would have avoided spending over two
million dollars by buying the stock. They also would have avoided the issues with the
Department of Insurance regarding change of control as a result of their purchase. It was their
conclusion that Garrett committed ongoing malpractice by failing to advise them of change of
control issues. Warren further testified that it was a deviation to fail to pursue this option.

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However, it is apparently undisputed that the Department of Insurance would not have approved
a Pavenstedt sale even if it had been properly submitted.
Kentucky should not allow lawyers to avoid liability for committing errors in judgment which the
average reasonably prudent lawyer would not commit. Any avoidance of liability should only be
allowed for errors of judgment made in absolute good faith.
Here, Garrett failed to plead or present evidence regarding her alleged errors in judgment so as
to justify her decision. The error in judgment instruction indirectly required the jury to define and
understand abstract legal principles. The jury could not have reasonably understood the
distinction between errors in judgment and legal malpractice. It is of interest to note that the
instruction provided by Vimont in this case is similar to the instructions provided in Daugherty.
The proper jury instruction must follow a form similar to that in Palmore:
It was the duty of Defendant in undertaking the legal representation of Plaintiff to
exercise the degree of care and skill expected of a reasonably competent lawyer acting
under similar circumstances. If you are satisfied from the evidence that Defendant failed
to comply with this duty and that such failure was a substantial factor causing the loss,
you will find for Plaintiff; otherwise you will find for Defendant.
This instruction form contains the elements prescribed in Daugherty without requiring the jury to
understand abstract legal principles. The jury is able to determine from the evidence whether
there was a breach of duty and whether that breach caused the loss.
Consequently, under the circumstances regarding the instructions, this matter is reversed and
remanded. The decisions of the Court of Appeals and the trial court are reversed and this matter
is remanded to the trial court for a jury determination as to all factual issues.
Questions:
1. Why was Garrett’s advice unsound? What was her defense?
2. How should juries evaluate malpractice claims alleging violations of the duty of care?
What is the correct standard of liability?
Causation of Harm
Clients can recover for malpractice only if their attorney’s negligence was both the “factual” or
“but for” cause and proximate cause of a legally cognizable harm. An attorney who is negligent
but causes no harm is not liable for malpractice.
Courts typically apply the “suit within a suit” or “trial within a trial” doctrine to legal malpractice
actions. Under this doctrine, the factfinder must determine not only how the attorney’s breach of
duty affected the action, but also how the action would have ended without the breach of duty.

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In other words, the client must prove that the attorney’s breach of duty caused a foreseeably
worse outcome.
Accordingly, an attorney is not liable for malpractice if the client’s injury was inevitable. For
example, an attorney who negligently fails to file an action with no chance of success is not
liable for negligence. But what if the action had a small chance of success? And what if the
action had no chance of success, but still had settlement value?
In an action for transactional malpractice, the client must prove that the attorney’s breach of
duty caused a worse outcome than non-breach would have caused. For example, the client
could show that alternative actions would have produced a better result.
The client must also prove that the attorney’s negligence was the proximate cause of the injury.
In other words, the plaintiff must provide that a reasonable attorney under the circumstances
would have foreseen the injury.
In theory, causation is a straightforward concept. Attorneys are liable for malpractice only if their
actions caused a harm that they could have foreseen. But in practice, causation of harm and
foreseeability can be difficult to determine in the face of diverse probabilities and uncertain
counterfactuals.
For example, consider the following scenarios:
●
●
●
●

●
●

The attorney advises the client not to accept a $10,000 settlement for a $100,000
damages claim, and the jury rules for the defendant.
The attorney advises the client not to accept a $10,000 settlement for a $100,000
damages claim, and the judge grants the defendant’s motion for summary judgment.
The attorney advises the client not to accept a $10,000 settlement for a $100,000
damages claim, and the judge grants the defendant’s motion to dismiss.
Before discovery, the attorney advises the client not to accept a $10,000 settlement for a
$100,000 damages claim before discovery. After discovery, the client accepts a $5,000
settlement.
The attorney advises the client to accept a $10,000 settlement for a $100,000 damages
claim, and the client later obtains a $50,000 settlement.
The attorney advises the client to accept a $10,000 settlement for a $100,000 damages
claim. The client accepts the settlement, but could have obtained a $20,000 settlement.

In each of these circumstances, has the attorney caused a foreseeable harm?
Daugherty v. Runner, 581 S.W.2d 12 (Ky. Ct. App. 1978)
Summary: Lula Daugherty Roach died in the hospital after a car accident. Runner
represented Roach’s estate, and filed an action against the other driver, but not against
the hospital. The estate eventually hired another attorney to file a medical malpractice

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action, but it was barred by the statute of limitations. The estate filed a malpractice
action against Runner for failing to file a medical malpractice action. The jury found for
Runner, but also held that the estate would have recovered $146k in a medical
malpractice action. The court of appeals affirmed, holding that Runner did not
necessarily violate the duty of care.
HAYES, Judge.
This appeal is from a judgment entered pursuant to a jury verdict which exonerated the
appellee, an attorney, from the charges of legal malpractice. The charges of the legal
malpractice claim arose from a medical malpractice cause of action on behalf of the deceased,
Lula Daugherty Roach. This type of action is commonly referred to as a “suit within a suit.” The
basis for the legal malpractice claim is that appellee Runner, while representing the deceased
Roach for injuries sustained in an automobile accident, failed to pursue a medical malpractice
claim by the estate of Roach against the hospital where Roach was treated for her injuries after
her accident and against the doctors who treated her, until her claim was barred by the statute
of limitations.
The jury found for Runner on the legal malpractice claim and additionally found that the
appellant would have recovered on the medical malpractice case, if suit had been timely filed, in
the amount of $146,123.75. Both parties appealed.
The appellant contends that the trial court erred in submitting the issue of Runner’s negligence
to the jury and in failing to instruct the jury properly.
Appellee's cross-appeal is of a protective nature wherein it is contended that if we reverse the
trial court based on appellant’s assignments of error, then appellee believes the jury verdict
awarding appellant $146,123.75 on his medical malpractice claim is erroneous because of
improperly admitted evidence.
We will not reach the claim of appellee on cross-appeal since we affirm the judgment of the
lower court.
On February 22, 1972, Mrs. Roach and her husband Russell were involved in an automobile
accident near Richmond, Kentucky. After receiving emergency medical treatment in Richmond,
Mrs. Roach was transferred to St. Joseph Hospital in Lexington, Kentucky. She was admitted on
February 22, 1972, under the care of an orthopedic doctor, George Gumbert, Jr. Mrs. Roach
died in the hospital on March 17, 1972. The official cause of death listed on the certificate of
death was bronchial pneumonia due to, or as a consequence of, generalized peritonitis and
bacterial endocarditis. On the date of Mrs. Roach's death, her husband Russell, individually and
as executor of the estate of Mrs. Roach, entered into a contract with attorney Runner to the
effect that Runner was to “institute a claim for damages against any and all responsible parties
as a result of injuries received upon the 22nd day of February, 1972.” The contract was a
standard contract approved by the Louisville Bar Association.

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A later contract, dated July 28, 1973, was entered into between James Russell Roach and
another attorney, whereby this “second attorney” was to represent Roach, individually and as
administrator of the estate of Lula Roach, in the medical malpractice claim. James Russell
Roach was a nonresident, so the present appellant, Byrd E. Daugherty, was appointed ancillary
administrator.
Suit was filed on August 1, 1973, in Fayette Circuit Court on behalf of Daugherty by his present
attorney, against St. Joseph Hospital and others based on the medical malpractice claim. The
trial court in that case granted a summary judgment against Daugherty and the estate of Lula
Roach because the suit was not filed within the period of limitations.
Runner testified he was not hired to represent the estate of Lula Roach on a medical
malpractice claim; made an investigation of the facts surrounding the auto accident; filed suit on
same in Federal Court for the Eastern District of Kentucky at Lexington against the driver of the
other auto in the accident, and never suspected the possibility of a medical malpractice claim.
Appellant contends it is what Runner did not do that makes him liable for malpractice. It is
asserted he did not examine the hospital records until after the statute of limitations had run on
any medical malpractice claim, and that he never advised his client that he did not handle
medical malpractice cases. There was also testimony on behalf of appellant that Russell Roach,
who had died prior to the trial, had telephoned Runner in January, 1973, inquiring of Runner the
status of any medical malpractice investigation Runner was conducting. Runner denied ever
having such a conversation. It is uncontradicted, however, that appellant hired the “second
attorney” on March 15, 1973, to represent him in the medical malpractice claim against St.
Joseph Hospital and others.
The Fayette Circuit Court had determined that the statute of limitations began to run on the
medical malpractice claim “on March 17, 1972, and certainly no later than July 20, 1972, when
the record of the decedent's treatment was fully complete.” From the evidence in the record and
the legal briefs filed on behalf of the parties, it is unclear why the second attorney, who accepted
a retainer fee, did not file the medical malpractice claim within the period of time permitted by
the statute and case law of this Commonwealth.
The appellant contends that the trial court erred in (1) submitting the question of the attorney's
negligence to the jury; (2) allowing an expert opinion to be presented to the jury based upon
improper evidence; and, (3) in failing to instruct the jury that the fact that other hired counsel
might have been able to toll the statute of limitations was no defense to appellee Runner.
The standard of care is generally composed of two elements — care and skill. The first has to
do with care and diligence which the attorney must exercise. The second is concerned with the
minimum degree of skill and knowledge which the attorney must display.

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In determining whether that degree of care and skill exercised by the attorney in a given case
meets the requirements of the standard of care aforementioned, the attorney’s act, or failure to
act, is judged by the degree of its departure from the quality of professional conduct customarily
provided by members of the legal profession.
As it would be in negligence cases generally, the question of whether the conduct of the
attorney meets the standard of care test is one for the trier of the facts to determine.
Having determined that the standard of care an attorney owes his client is not that of a
“reasonable man” under the circumstances, but is that care and skill as men of the legal
profession commonly, or ordinarily, possess and exercise under the circumstances, and having
determined that this is generally a question for the trier of the facts, we look now at the facts of
the instant case.
The appellant Daugherty contends the trial court erred in submitting the negligence of appellee
Runner to the jury. He in effect is saying he, Daugherty, was entitled to a directed verdict on this
point because Runner was negligent as a matter of law.
Appellant was required to prove in the legal malpractice suit (1) that Runner was employed by
appellant; (2) that he neglected his duty to exercise the ordinary care of a reasonably competent
attorney acting in the same or similar circumstances; and (3) that such negligence resulted in
and was the substantially contributing factor in the loss to the client.
The appellant has presented two theories in support of his argument that he was entitled to a
directed verdict on the question of Runner’s negligence. The first is that Runner was retained to
bring all possible legal actions resulting from the injuries and death of Mrs. Roach, including a
medical malpractice action, if appropriate, and that he failed to carry out this duty. This
argument is clearly without merit. The written contract between the parties recited that Runner
was retained “to institute a claim for damages against any and all responsible parties, as a
result of injuries received upon the 22 day of February, 1972.” While there was some testimony
about a conversation with Runner regarding a medical malpractice action, the evidence was
disputed on that matter, and the question of whether Runner had any duty to handle any
medical malpractice case was certainly one for the jury.
Appellant's second theory in support of his directed verdict argument seems to be that even if
Runner was not employed specifically to pursue a medical malpractice action, that he
nevertheless had a duty to obtain and examine the medical records of the patient, to investigate
the treatment procedures administered to her, and to inform his client that there may have been
some question about the medical care and treatment she received, but that he did not handle
medical malpractice. Appellee’s contention on this issue is simply that Mr. Runner was not
retained under the contract to handle a medical malpractice case, and he therefore had no
duties in that regard.

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We are not ready to hold that Mr. Runner had absolutely no duties to his client with regard to a
medical malpractice action simply because the written contract did not specifically mention a
malpractice suit. To do so would require the client, presumably a layman who is unskilled in the
law, to recognize for himself all potential legal remedies. An attorney cannot completely
disregard matters coming to his attention which should reasonably put him on notice that his
client may have legal problems or remedies that are not precisely or totally within the scope of
the task being performed by the attorney.
On the other hand, we certainly cannot say that Mr. Runner was neglectful as a matter of law.
There was considerable testimony concerning Runner’s negligence, or lack of it. There was
expert testimony from two attorneys, one for each side.
Runner’s testimony, in summary, was that he was hired to represent the Roaches only for the
injuries Mrs. Roach sustained as a result of the automobile collision of February 22nd. He
testified that he did not handle medical malpractice claims because he was not competent to do
so. He had never processed one. He testified that the fact Mrs. Roach entered the hospital with,
according to the hospital admission report, multiple contusions and abrasions, a fractured nose,
fractured right shoulder and a compressed fracture of the spine, and that she died in the
hospital some thirty (30) days later, did not arouse his suspicion of a medical malpractice claim.
He did not review the hospital records until he filed the wrongful death action on behalf of Mrs.
Roach in Federal Court in Lexington, Kentucky, on June 9, 1972. Runner’s law associate, who
actually reviewed the medical records on June 9, 1972, testified the records were incomplete as
there was no autopsy report in the medical records on June 9th.
Runner further testified that no one representing the deceased Mrs. Roach ever called to his
attention the possibility of a medical malpractice claim until the “second attorney” previously
mentioned contacted him some few days before the statute of limitations ran on the medical
malpractice claim. Runner's testimony was that he told this other attorney to “go ahead” with the
medical malpractice claim.
Appellant offered proof that Runner was contacted by members of Mrs. Roach's family
concerning the medical malpractice case long before the statute ran. They were concerned with
what Runner was doing about the medical malpractice case. The appellant produced expert
testimony from a local lawyer to the effect that Runner's failure to inquire into the cause of death
of Mrs. Roach and his failure to review the medical records was not consistent with good legal
practice and, in fact, was a substantial departure therefrom.
The other important testimony was that the Roach family, including Daugherty, a brother of Mrs.
Roach, had discussed, among themselves, the medical malpractice case as early as December,
1972. They had in fact contacted two attorneys in Lexington, who declined the case. They were
aware of the statute of limitations.
The family then proceeded to northern Kentucky, where on March 15, 1973, they employed the
“second attorney” to represent the estate in the medical malpractice case. He filed no complaint.

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Some time after July 28, 1973, he turned the case over to the appellant's current attorney, who
on August 1, 1973, filed a medical malpractice claim in Fayette Circuit Court which was
subsequently dismissed as barred by the statute of limitations.
Under these circumstances the question of whether Runner had exercised the degree of care
and skill expected of a reasonably competent attorney was a question for the jury to decide.
This is true especially in light of the fact that there was disputed testimony concerning whether
the possibility of a medical malpractice action had been discussed with Runner.
The issue of Runner's negligence was submitted to the jury under the following instructions:
4. It was the duty of the defendant, E. Michael Runner, Attorney at Law, in undertaking
the legal representation of the Estate of Lula Daugherty Roach, to exercise that degree
of care and skill expected of a reasonably competent lawyer acting in the same or similar
circumstances about which you have heard evidence, and this general duty, included the
following specific duties:
(A) Not to undertake representation in a legal matter in which he knew or should
have known he was not competent without associating with himself a lawyer that
was competent to handle it;
(B) Not to undertake representation in a legal matter without preparation
adequate in the circumstances.
5. The Jury will answer the following interrogatory: Do you believe from the evidence that
the defendant, E. Michael Runner, failed in one or more of the duties imposed upon him
by instruction number 4, and such failure was the substantial factor in the Estate of Lula
Daugherty Roach not recovering the award set out in instruction number 3 and
incorporated in Verdict A?
Nine of the jurors answered the question in the negative. While we may have found differently
had we sat as jurors in this case, we believe there is sufficient evidence to support this jury's
verdict, and we therefore will not disturb it. Based upon the conflicting evidence, we fail to see
how Runner was negligent as a matter of law.
We note that the trial court's instruction mistakenly required the jury to find that Runner’s breach
of duty, if any, was “the” substantial factor in the plaintiff’s failure to recover. The instruction
should have read, “a” substantial factor. However, the trial court was not made aware of the
error by objection, and it has not been raised on appeal, nor could it be. For this reason we are
not able to review the question. In any event, it does not appear to be so substantial as to have
caused the plaintiff any prejudice.
In conclusion, we would add that we do agree somewhat with a statement appellant makes in
his well-written brief. Appellant states thusly:

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Perhaps the issue that is involved in this case is far beyond the instant action, and must
be laid at the doors of the Bar as a whole and more specifically, appellee. Maybe we, as
a profession, have not discharged our responsibility to inform the public as a whole, and
more specifically, Mr. Roach, that we specialize and limit our practice. However, in the
end result, the effect on the client is the same; the public expects, and has the right to
demand, that their legal affairs will be approached with expertise and initiative and
anything short of that is a violation of the trust and confidence reposed in a member of
our profession.
To that, we would simply repeat that all the evidence in this case was submitted to a jury of
twelve citizens of this community, nine of whom found for the attorney. Even though we may
have found differently had we sat as jurors in this case, we cannot disturb their verdict, as it was
sufficiently supported by the evidence.
Questions:
1. What was the harm to Roach’s estate? Could Runner have prevented that harm? Could
anyone else have prevented the harm?
2. What was the error in the jury instructions? Do you agree with the court’s conclusion that
the error was not prejudicial?
TIG Ins. v. Giffin Winning Cohen & Bodewes, 444 F. 3d 587 (7th Cir. 2006)
Summary: Giffin Winning represented Illinois State University in a gender discrimination
action, and failed to produce three gender equity studies to Joel Bellows, attorney for the
plaintiffs. Soon afterward, TIG and Latham & Watkins took over ISU’s defense. Soon
afterward, Gorrell gave Bellows the studies and claimed they were based on a
nonexistent database. Bellows moved to sanction Giffin Winning and ISU for not
producing the database, and TIG paid Latham & Watkins $1.2 million to defend ISU. The
action ultimately settled, and TIG filed a malpractice action against Giffin Winning for
failing to produce the studies. The district court dismissed the action, and the circuit
court affirmed, holding that TIG failed to allege proximate cause because the injury was
not foreseeable.
EVANS, Circuit Judge.
TIG Insurance Company appeals the dismissal of its malpractice case against the Giffin
Winning law firm and one of its attorneys, Carol Hansen Posegate.
To explain the malpractice claim we must reach back to the underlying lawsuit, in which Giffin
Winning, at least for a time, represented Illinois State University (ISU) in a class-action, genderdiscrimination lawsuit brought by several female professors. In the suit, the plaintiffs contended
that they were being paid less than male professors and that ISU retaliated against female
professors who complained about the discrimination. Their attorney was Joel Bellows. TIG was

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ISU’s liability insurer at the time and it paid the attorney fees which are at the heart of the
present malpractice action; TIG, in turn, was reimbursed by its reinsurers.
The malpractice alleged in the present case arose out of discovery problems in the case. The
major problem involved Giffin Winning’s failure to produce three documents called gender equity
studies (two of which are at issue here) in their response to a discovery request. The response
was signed in October 1996. A month later the case was stayed. Soon thereafter, the law firm of
Latham & Watkins filed an appearance on behalf of ISU and essentially took control of ISU’s
defense, though Giffin Winning remained of record. Latham had an attorney-client relationship
with ISU’s insurer TIG. Giffin Winning did not.
The facts show that Giffin Winning received two gender equity studies from ISU in 1994 — while
the Varner case was still pending before the Equal Employment Opportunity Commission. Two
years later, when the law firm received the second request for documents, the subject of the
October 1996 response at issue here, they routed the request to William Gorrell, the former
executive director for Information Systems and the head of the Planning Policy department at
ISU. He did not at that time forward the studies to Giffin Winning for production and the law firm
did not produce them on its own. On this point, Judge Mihm later said that Gorrell was the one
who "dropped the ball entirely."
During the stay in the case, Bellows talked with Gorrell, who by then was no longer employed by
ISU and had his own lawsuit pending against the school for wrongful termination. He
independently provided Bellows with the gender equity studies. He also executed an affidavit
detailing particulars of a “planning policy database” on which he said the studies were based.
Once the stay was lifted, Bellows confronted Latham with the studies. (The Latham firm was
now representing ISU). Bellows demanded that ISU turn over the database on which he alleged
the studies were based. Apparently thinking the best defense is a good offense, Latham’s first
response apparently was to point fingers, saying Bellows had also not adequately complied with
discovery requests. Also at this time, Latham began preparing a motion to disqualify Bellows for
improperly soliciting privileged information from Gorrell.
For his part, Bellows filed a motion for sanctions against both ISU and Giffin Winning, in part
based on the failure to produce the gender equity studies. As relevant here, Bellows’ contention
in his motion for sanctions was not simply that the studies were not produced. After all, he now
had the studies. Rather, he claimed that the gender equity studies were not produced because
of a conspiracy to hide the “Planning Policy database.” To have produced the studies, he
argued, “would have alerted the Varner plaintiffs to the existence of the databases.”
We now arrive at the essence of the case — the pivotal facts about the database. At a 4-day
hearing on the pending motions, Gorrell testified that the database contained variables relevant
to the issue of gender equity and was maintained in a format which enabled a user to prepare
comparative studies. He testified that the gender equity studies were prepared from this
database. He said he had done one of the studies himself, though he also said he had never

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personally accessed the database. The actual data processing, he said, was done by his
research assistant, Anna Wells, and her preparation of the data for his 1994 study would have
taken her no more than a day or two using the database:
Q How long did it take Anna Wells to compile the information for the 1994 study?
A It could be done in a day or two.
That apparently was news to Wells. She testified that she did not use any database in compiling
the data.
Q Ms. Wells, when you collected the information reflected in these tables, was there a
single source that you could go to to collect all the information reflected in the tables?
A No.
Q Was there a single database maintained by the Planning Policy department that
contained all of the information reflected in these tables?
A No.
She used hard copy (probably the same 279 banker boxes of material which had, in fact, been
produced to Bellows), and it took her “a few weeks, several weeks” to locate the information and
format it for use. Why? Because, as Judge Mihm found, there was no database and never had
been:
I don't believe that the plaintiffs have ever established the existence of the kind of
database that I thought was being alleged here, that there was some button at ISU that
could be punched that would involve a print-out of all this information. That clearly is not
true. The nonexistence of the database — which Bellows said there was an alleged
conspiracy to hide — is not seriously contested.
Nevertheless, Judge Mihm sanctioned Giffin Winning $10,000 for discovery lapses, a sanction
which was later vacated. Judge Mihm, however, wisely denied Bellows’ request for a default
judgment based on the failure to produce the gender equity studies. He remarked that “I don't
believe it was appropriate — but even if I had ordered that, I think that would have been
reversed on appeal.” In addition, although he denied Latham's motion to disqualify Bellows
because of his contact with Gorrell, Judge Mihm sanctioned Bellows $10,000 as well.
Ultimately, the case was settled; mercifully, we think.
We now get to the present malpractice action that TIG filed against Giffin Winning in which the
damages TIG alleges are the attorney fees it paid Latham to defend against the sanction motion
— a whopping $1.2 million, give or take, for the work of 27 attorneys and various paralegals. It
seems that when Latham said it took the motion seriously, it meant it. As we said, TIG paid the
bill and was subsequently reimbursed by its reinsurers.
The elements of a legal malpractice action in Illinois are well-settled. They are: “(1) the
existence of an attorney-client relationship that establishes a duty on the part of the attorney; (2)

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a negligent act or omission constituting a breach of that duty; (3) proximate cause; and (4)
damages.” A legal malpractice case is similar to any other negligence claim, and traditional
principles apply. Proximate cause describes two distinct requirements — cause in fact and legal
cause. Cause in fact exists only if the defendant's conduct was a “material element and a
substantial factor in bringing about the injury.” Legal cause, on the other hand, is largely a
question of foreseeability. The relevant inquiry is whether “the injury is of a type that a
reasonable person would see as a likely result of his or her conduct.” The occurrence must have
been “reasonably” foreseeable: “Not what actually happened, but what the reasonably prudent
person would then have foreseen as likely to happen, is the key to the question of
reasonableness.”
This is not the same as (but, in this case, necessarily a bit difficult to distinguish from) a
determination as to whether the fees themselves are reasonable. For purposes of proximate
cause, if the fees do not reflect work reasonably, foreseeably related to the negligence alleged
in the case, it does not matter that in some other sense they might be “reasonable.” We draw
this distinction in response to TIG's argument, that because the fees were paid, they are prima
facie reasonable. In this situation, we find the argument breathtaking, say nothing of irrelevant.
Proximate cause is the issue on which this case falters. Having said that, we recognize that the
Illinois courts indicate that proximate cause should ordinarily be decided not as a matter or law,
but by a trier of fact. However, in a situation in which it is clear as a matter of law that the injury
could not have been foreseeable, Illinois courts have upheld summary judgment on the issue.
The situation before us is such a case.
The fundamental negligence allegedly committed by Giffin Winning was a failure to produce
documents — especially gender equity studies — pursuant to a discovery request. The
attorneys had routed the request to Gorrell, who was at that point still employed by ISU. He did
not forward the studies to the attorneys. However, the attorneys had copies of the studies,
which they also failed to produce. This is a clear breakdown of the discovery process, which we
infer was not going at all smoothly on either side of this case.
In this all-too-common situation, the question for us is whether it would be reasonably
foreseeable that a failure to produce these documents would result in the injury alleged here.
Could the attorneys foresee that Gorrell, who failed to produce the documents when they turned
the request over to him, would then, after he became disgruntled with ISU, independently
provide the documents to Bellows? Beyond that, would reasonable people foresee that Gorrell
would mislead Bellows about a database which did not exist? Would reasonable people then
think that, upon hearing Gorrell's story, Bellows’ first impulse would be to move for sanctions
including default judgment in the case? Would reasonable people foresee that, next, a large law
firm, apparently thinking of Judge Mihm as a bit trigger-happy, would jump into high gear out of
fear of default judgment and launch an army of 27 attorneys, plus paralegals, to defend against
the possibility that Judge Mihm might grant default judgment on the basis of an alleged
conspiracy to hide something which does not exist? In other words, was the Latham response to
a failure to produce documents and the resulting injury foreseeable?

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We think it was not as a matter of law. Our point can be illustrated by a very different sort of
negligence action. In Abrams, the city failed to send an ambulance for a woman, Abrams (of
course), who was in labor. A friend, who then drove her to the hospital, ran a red light and
collided with a car driven by a drug-and-alcohol-impaired driver with a suspended license.
Abrams was seriously injured and spent 2 weeks in a coma; sadly, her baby died. The court
found, however, that as a matter of law there was no proximate cause. The city could not have
foreseen the situation that unfolded. Perhaps a bit callously, the court remarked that “millions of
women in labor make it safely to the hospital each year by private transportation.”
It is also true — though less tragically so — that countless failures to produce documents occur
in the federal courts every year. That is not a good thing. But we are not at a point at which it is
foreseeable that such a failure will spawn a million-dollar bill for attorney fees. If it were, litigation
would become more of a blood sport than it already is. Lawyers would be even more obsessive
about irrelevant and tedious details. No good could come of it.
There is, in fact, nothing which distinguishes the failure to produce in this case with countless
others. Judge Mihm himself made this point in response to Bellows’ argument that this was the
worst discovery abuse he had ever seen. Judge Mihm said:
But you said in your 34 years of practice this was the most shocking thing you had ever
seen in terms of this discovery issue. I wonder what kind of practice you've had if that's
the case because, boy, in the scheme of things, I've seen things 50 times worse than
this.
What is foreseeable as a result of a failure to produce documents is the reasonable procedure
set out in Civil Rule of Civil Procedure 37, which provides for sanctions only after other
reasonable efforts to work out disagreements fail. It may be that, as Judge Mihm also said, that
did not happen enough in this case. But ISU and Giffin Winning could hardly be expected to
foresee all this trouble over a phantom database. Why would they? It was ISU's alleged
database and Giffin Winning was representing ISU at the time. They knew of no database; they
were hiding no database; there was no database. For Giffin Winning's carelessness in failing to
produce documents (which Bellows had in his possession), the sanction of $10,000 might well
have been sustained on appeal. But as a matter of law, the injury alleged here was not
reasonably foreseeable.
Questions:
1. What was TIG’s injury? Did Giffin Winning’s negligence cause that injury?
2. Why did the court hold that TIG’s injury was not reasonably foreseeable? Was TIG’s
injury a reasonably foreseeable risk?
Damages

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The plaintiff in a legal malpractice action can only recover actual damages, and can only
recover damages that were reasonably foreseeable by the defendant. As a consequence, the
plaintiff must prove the amount of damages, and cannot recover speculative damages.
Kituskie v. Corbman, 714 A. 2d 1027 (Pa. 1998)
Summary: Kituskie was injured by Trapp in a car accident while on vacation in California.
He returned home to Pennsylvania and hired attorney Corbman to represent him in a tort
action. Corbman negligently failed to file an action within California’s two-year statute of
limitations, and advised Kituskie to file a legal malpractice action. Trapp’s insurance
policy had a $25,000 maximum, but the jury awarded Kituskie $2.3 million in damages
against Corbman. The appellate court vacated the judgment and remanded, holding that
the jury must consider the collectability of damages, and that the defendant bears the
burden of proof that damages are not collectable. The Supreme Court affirmed.
CASTILLE, Justice.
This Court granted allocatur in this matter in order to address two issues. The first issue is
whether the collectibility of damages in an underlying action is relevant to and, therefore,
admissible in a legal malpractice action. The second issue is, if collectibility of damages should
be considered, which party bears the burden of proving collectibility. Because we find that
collectibility of damages in the underlying action should be considered in a legal malpractice
action and that the defendant/attorney bears the burden of proof, we affirm the order of the
Superior Court and remand for further proceedings consistent with this opinion.
The facts relevant to this appeal are not in dispute. Leo J. Kituskie is a Pennsylvania resident
who is a practicing periodontist. On September 3, 1989, Kituskie was injured in a two-car
automobile accident during his vacation in San Jose, California. The traffic collision report for
the accident stated that a vehicle being driven by Evan Mark Trapp crossed a highway on-ramp
into the path of Kituskie’s automobile after it struck a curb and a cyclone fence. The traffic
collision report also indicated that Trapp was driving while intoxicated and that his vehicle was
being operated at the time of the accident at a high rate of speed. After the accident, Kituskie
returned to the Philadelphia area in order to begin treatment for his injuries. As a result of this
automobile accident, Kituskie avers that he suffers from a degenerative and arthritic back
condition which makes it difficult for him to work full-time as a periodontist.
On September 9, 1989, Kituskie retained Scott K. Corbman, Esquire, to pursue his claim
against Trapp for the personal injuries he sustained in the accident. Corbman is an attorney
licensed to practice law in the Commonwealth of Pennsylvania and is a principal/shareholder in
the law firm of Garfinkle, Corbman, Greenberg and Jurikson, P.C.
Corbman proceeded to obtain Kituskie’s medical reports. After reviewing the medical reports,
Corbman made a claim on Kituskie's behalf against Trapp's insurance carrier, California State

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Automobile Association ("CSAA"). During settlement negotiations with CSAA, Corbman learned
that Trapp’s insurance policy had a limit of $25,000.
On September 17, 1990, more than one year after the accident, Corbman discovered that the
California statute of limitations for injuries such as those suffered by Kituskie was only one year
as opposed to the two-year statute of limitations in Pennsylvania. CSAA ultimately informed
Corbman that it would not make a settlement offer to Kituskie because the one-year statute of
limitations had passed without Corbman instituting a formal legal action. As soon as Corbman
learned this information, Corbman met with Kituskie and informed him that his claim had been
terminated because no suit was filed or settlement reached within the one-year statute of
limitations period. During this meeting, Corbman advised Kituskie to seek the services of
another attorney in order to assert a legal malpractice claim against Corbman and the Garfinkle
firm.
On August 28, 1991, Kituskie, represented by new counsel, filed a legal malpractice claim
against Corbman and the Garfinkle law firm in the Montgomery County Court of Common Pleas.
Immediately prior to jury selection, counsel for each side filed motions in limine requesting that
each side be precluded from presenting expert testimony on the issue of CSAA possibly settling
the matter within the policy limits of Trapp’s policy. Neither of these motions dealt directly with
the issue of whether the jury in this legal malpractice action could consider Kituskie’s ability to
collect on an underlying judgment against Trapp. However, the trial court, realizing that its
resolution of whether collectibility of damages in an underlying case could be an issue at trial,
withheld its disposition of the two motions in limine. On January 6, 1995, prior to commencing
the trial in this matter, the trial court decided that collectibility of damages in an underlying case
was not relevant to a legal malpractice claim in Pennsylvania. Thus, the trial court granted both
motions in limine.
Following a trial on the matter, on January 11, 1995, a jury found that Corbman and the
Garfinkle firm were liable to Kituskie for legal malpractice in the amount of $2,300,000. Corbman
and the Garfinkle firm appealed to the Superior Court. The Superior Court, in a published
opinion, vacated the judgment and remanded for further proceedings because it held that the
collectibility of damages in an underlying case should be considered in a legal malpractice
action. The Superior Court also held that the attorney being sued for legal malpractice bore the
burden of proving as a defense in the form of mitigation of damages that the potential underlying
case which formed the basis of the legal malpractice award would have been uncollectible. This
Court granted allocatur in order to decide whether collectibility should be part of a legal
malpractice action and, if so, which party bears the burden of proof as to that issue.
In order to establish a claim of legal malpractice, a plaintiff/aggrieved client must demonstrate
three basic elements:
1) employment of the attorney or other basis for a duty;
2) the failure of the attorney to exercise ordinary skill and knowledge; and
3) that such negligence was the proximate cause of damage to the plaintiff.

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An essential element to this cause of action is proof of actual loss rather than a breach of a
professional duty causing only nominal damages, speculative harm or the threat of future harm.
Damages are considered remote or speculative only if there is uncertainty concerning the
identification of the existence of damages rather than the ability to precisely calculate the
amount or value of damages. In essence, a legal malpractice action in Pennsylvania requires
the plaintiff to prove that he had a viable cause of action against the party he wished to sue in
the underlying case and that the attorney he hired was negligent in prosecuting or defending
that underlying case (often referred to as proving a “case within a case”).
A review of case law in the Commonwealth shows that the issue of whether collectibility of
damages in an underlying case should also be a part of a legal malpractice action is one of first
impression. Other jurisdictions, however, have addressed this issue and have held that
collectibility of damages should also be considered in a legal malpractice action.
Like these other jurisdictions, this Court believes that collectibility of damages in the underlying
action should also be part of the analysis in a legal malpractice action. We do so because we
recognize that a legal malpractice action is distinctly different from any other type of lawsuit
brought in the Commonwealth. A legal malpractice action is different because, as described
above, a plaintiff must prove a case within a case since he must initially establish by a
preponderance of the evidence that he would have recovered a judgment in the underlying
action (here, the underlying action would have involved Kituskie’s lawsuit against Trapp). It is
only after the plaintiff proves he would have recovered a judgment in the underlying action that
the plaintiff can then proceed with proof that the attorney he engaged to prosecute or defend the
underlying action was negligent in the handling of the underlying action and that negligence was
the proximate cause of the plaintiff's loss since it prevented the plaintiff from being properly
compensated for his loss. However, this Court has held that the plaintiff in a legal action should
only be compensated for his actual losses. Actual losses in a legal malpractice action are
measured by the judgment the plaintiff lost in the underlying action and the attorney who
negligently handled the underlying action is the party held responsible for the lost judgment.
However, as noted by the Superior Court, “it would be inequitable for the plaintiff to be able to
obtain a judgment against the attorney which is greater than the judgment that the plaintiff could
have collected from the third party; the plaintiff would be receiving a windfall at the attorney's
expense.” Thus, we now hold that collectibility of damages in the underlying case is a matter
which should be considered in legal malpractice actions.
Because this Court has concluded that collectibility of damages is an issue which should be
considered in legal malpractice actions, we now must decide who bears the burden of proof.
While other jurisdictions considering the issue of collectibility of damages have unanimously
concluded that collectibility is a part of a legal malpractice action, they have been split on which
party in the legal malpractice action bears the burden of proof. A majority of courts in other
jurisdictions have placed the burden of proving collectibility on the plaintiff because it is viewed
as being closely related to the issue of proximate cause, a burden which clearly the plaintiff
bears as part of his prima facie case. In doing so, these courts place the burden on the plaintiff

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because a plaintiff can prove that the attorney’s malfeasance was the proximate cause of his
loss only if he demonstrates that he would have succeeded on the underlying action and that he
would have succeeded in collecting on the resulting judgment.
A minority of courts in other jurisdictions, however, have rejected the majority's line of reasoning
and placed the burden of proving non-collectibility on the defendant/attorney. These courts have
recognized that the plaintiff must prove a case within a case. These minority of courts, however,
do not believe that it logically follows from the case within a case burden of proof that the
plaintiff must also prove that the damages in the underlying case would have been collectible.
Instead, these courts believe that the burden of proof in a legal malpractice action only requires
the plaintiff to prove a loss of judgment on a valid claim. To require the plaintiff to also prove
collectibility of damages would result in placing an unfair burden on the plaintiff where the
plaintiff’s legal malpractice action is often brought years after the initial accident causing his
injuries solely because the defendant/lawyer failed to act in a timely and competent manner.
Thus, the minority of courts believe that it is more logical and fair to treat collectibility as an
affirmative defense which the defendant/attorney must plead and prove in order to avoid or
mitigate the consequences of that attorney's negligent acts. Moreover, this minority has
criticized the majority position because it ignores the possibility of settlement between the
plaintiff and the underlying tortfeasor and also overlooks that the passage of time itself can be a
militating factor either for or against collectibility of the underlying case.
After considering both positions, this Court finds the reasoning of the minority position to be
more persuasive. Thus, we adopt the minority position and hold that a defendant/lawyer in a
legal malpractice action should plead and prove the affirmative defense that the underlying case
was not collectible by a preponderance of the evidence.
Accordingly, for the reasons expressed above, we find that the Superior Court correctly held
that collectibility of damages in an underlying case is a matter which must be considered in a
legal malpractice action and that the defendant/lawyer bears the burden of proving that the
underlying case which formed the basis of the damages award in a legal malpractice action
would not have been fully collectible. Therefore, the order of the Superior Court is affirmed and
the matter remanded for further proceedings.
Questions:
1. Why did the court hold that Kituskie could only recover collectable damages? Why
couldn’t he recover all of his damages?
2. Why did the court hold that Corbman bore the burden of proving that damages were not
collectable? Will it be hard for Corbman to prove the damages were not collectable,
under the circumstances?

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3.3: Ineffective Assistance of Counsel
Ineffective Assistance of Counsel
The Sixth Amendment and the Due Process clause guarantee criminal defendants the right to
the effective assistance of counsel. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme
Court held that indigent criminal defendants are entitled to appointed counsel in all felony cases.
And in Strickland v. Washington, 466 U.S. 668 (1984), it held that appointed counsel must
provide a competent defense. If a criminal defendant receives ineffective assistance of counsel,
then any conviction is unconstitutional and void. However, courts evaluating ineffective
assistance of counsel claims are “highly deferential” to the decisions of appointed counsel, and
will provide relief only if counsel’s decisions are both unreasonable and prejudicial. Accordingly,
ineffective assistance of counsel claims are difficult to prove, unless counsel provided no
defense at all or had a conflict of interest.
U.S. Const. Amend. 6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the state and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defense.
Strickland v. Washington, 466 U.S. 668 (1984)
The Supreme Court established the rules governing ineffective assistance of counsel claims in
criminal cases in the landmark case Strickland v. Washington. In Strickland, the Court held that
due process and the Counsel Clause of the Sixth Amendment guarantees all criminal
defendants the right to the effective assistance of counsel. “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.”
In order to prove a claim for ineffective assistance of counsel, a criminal defendant must show
that counsel violated the duty of care or loyalty, and that the violation prejudiced the defendant.
“First, the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
The evaluation of counsel’s performance must be “highly deferential” and “judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as

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of the time of counsel’s conduct.” Accordingly, the defendant “must identify the acts or
omissions of counsel that are alleged not to have been the result of reasonable professional
judgment” and “the court must then determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.”
In addition, the defendant must show that counsel’s unreasonable conduct was prejudicial. “Any
deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute
ineffective assistance under the Constitution.” There is a legal presumption of prejudice if the
defendant was actually or constructively denied the assistance of counsel, the government
interfered with representation, or counsel had a conflict of interest that adversely affected
performance. But if counsel violated the duty of care, the defendant must show that counsel’s
unreasonable conduct was actually prejudicial. “The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”
Knowles v. Mirzayance, 556 U.S. 111 (2009)
Summary: Mirzayance confessed to killing his cousin, and pleaded both not guilty and
not guilty by reason of insanity. During the guilt phase of the trial, the jury rejected
evidence of insanity and convicted Mirzayance of first-degree murder. On the advice of
counsel, Mirzayance withdrew his insanity plea, because his parents effectively refused
to testify, and there was no other new evidence. On state and federal habeas,
Mirzayance argued that counsel’s advice to withdraw his insanity plea was ineffective
assistance of counsel, because he had no other defense. The district court granted
habeas, because Mirzayance had “nothing to lose” by an insanity defense, and the
circuit court affirmed. The Supreme Court reversed, holding that the insanity defense
had no “reasonable probability” of success.
Justice THOMAS delivered the opinion of the Court.
In this case, respondent Alexandre Mirzayance claimed ineffective assistance of counsel
because his attorney recommended withdrawing his insanity defense. The California courts
rejected this claim on state postconviction review. We must decide whether this decision was
contrary to or an unreasonable application of clearly established federal law. We hold that it was
not. Mirzayance failed to establish that his counsel's performance was ineffective.
I
Mirzayance confessed that he stabbed his 19-year-old cousin nine times with a hunting knife
and then shot her four times. At trial, he entered pleas of not guilty and not guilty by reason of
insanity (NGI). Under California law, when both of these pleas are entered, the court must hold
a bifurcated trial, with guilt determined during the first phase and the viability of the defendant's
NGI plea during the second. During the guilt phase of Mirzayance's trial, he sought to avoid a

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conviction for first-degree murder by obtaining a verdict on the lesser included offense of
second-degree murder. To that end, he presented medical testimony that he was insane at the
time of the crime and was, therefore, incapable of the premeditation or deliberation necessary
for a first-degree murder conviction. The jury nevertheless convicted Mirzayance of first-degree
murder.
The trial judge set the NGI phase to begin the day after the conviction was entered but, on the
advice of counsel, Mirzayance abandoned his NGI plea before it commenced. He would have
borne the burden of proving his insanity during the NGI phase to the same jury that had just
convicted him of first-degree murder. Counsel had planned to meet that burden by presenting
medical testimony similar to that presented in the guilt phase, including evidence that
Mirzayance was insane and incapable of premeditating or deliberating. Because the jury
rejected similar evidence at the guilt phase (where the State bore the burden of proof), counsel
believed a defense verdict at the NGI phase (where the burden was on the defendant) was
unlikely. He planned, though, to have Mirzayance’s parents testify and thus provide an
emotional account of Mirzayance’s struggles with mental illness to supplement the medical
evidence of insanity. But on the morning that the NGI phase was set to begin, Mirzayance’s
parents refused to testify. After consulting with co-counsel, counsel advised Mirzayance that he
should withdraw the NGI plea. Mirzayance accepted the advice.
After he was sentenced, Mirzayance challenged his conviction in state postconviction
proceedings. Among other allegations, he claimed that counsel’s recommendation to withdraw
the NGI plea constituted ineffective assistance of counsel under Strickland. The California trial
court denied the petition, and the California Court of Appeal affirmed without offering any reason
for its rejection of this particular ineffective-assistance claim. Mirzayance then filed an
application for federal habeas relief, which the District Court denied without an evidentiary
hearing. The Court of Appeals reversed the District Court and ordered an evidentiary hearing on
counsel’s recommendation to withdraw the NGI plea. During that evidentiary hearing, a
Magistrate Judge made factual findings that the District Court later adopted.
According to the Magistrate Judge, counsel’s strategy for the two-part trial was to seek a
second-degree murder verdict in the first stage and to seek an NGI verdict in the second stage.
This strategy faltered when the jury instead convicted Mirzayance of first-degree murder. In the
circumstances of this case, the medical evidence that Mirzayance planned to adduce at the NGI
phase essentially would have duplicated evidence that the jury had necessarily rejected in the
guilt phase. First-degree murder in California includes any killing that is “willful, deliberate, and
premeditated.” To prove NGI, a defendant must show that he was incapable of knowing or
understanding the nature of his act or of distinguishing right from wrong at the time of the
offense. Highlighting this potential contradiction, the trial judge instructed the jury during the guilt
phase that “the word ‘deliberate,’” as required for a first-degree murder conviction, “means
formed or arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.”

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When the jury found Mirzayance guilty of first-degree murder, counsel doubted the likelihood of
prevailing on the NGI claim. According to the Magistrate Judge:
The defense suspected that a jury’s finding, beyond a reasonable doubt, that
Mirzayance had “deliberated” and “premeditated” his killing of the victim as a practical
matter would cripple Mirzayance’s chances of convincing the jury later, during the sanity
phase, that Mirzayance nevertheless “was incapable of knowing or understanding the
nature and quality of his act and of distinguishing right from wrong at the time of the
commission of the offense.”
Any remaining chance of securing an NGI verdict now depended (in counsel’s view) on
presenting some “emotional impact” testimony by Mirzayance’s parents, which counsel
had viewed as key even if the defense had secured a second-degree murder verdict at
the guilt phase.
But, as the Magistrate Judge found, on the morning that the NGI phase was set to begin,
Mirzayance’s parents effectively refused to testify:
The parents at least expressed clear reluctance to testify, which, in context, conveyed
the same sense as a refusal.
Although the parties disputed this point, the parents’ later actions supported the Magistrate
Judge’s finding that the parents' reluctance to testify amounted to refusal:
Corroborating the Court's finding that Mirzayance’s parents indicated a strong
disinclination to testify at the NGI phase are the facts that (1) they did not testify later at
his sentencing hearing, and (2) the reason for their choosing not to do so is that it would
have been “too emotional” for them. If weeks after the guilty verdict and the withdrawal
of their son's NGI plea, Mirzayance’s parents’ emotions still prevented them from
testifying at the sentencing hearing, then surely those emotional obstacles to their
testifying in the NGI phase would have been at least as potent, and probably more so.
The Magistrate Judge found that counsel made a carefully reasoned decision not to go forward
with the NGI plea:
Counsel carefully weighed his options before making his decision final; he did not make
it rashly. Counsel’s strategy at the NGI phase depended entirely on the heartfelt
participation of Mirzayance’s parents as witnesses. Moreover, counsel knew that,
although he had experts lined up to testify, their testimony had significant weaknesses.
Counsel’s NGI-phase strategy became impossible to attempt once Mirzayance’s parents
expressed their reluctance to testify. All counsel was left with were four experts, all of
whom reached a conclusion — that Mirzayance did not premeditate and deliberate his
crime — that the same jury about to hear the NGI evidence already had rejected under a
beyond-a-reasonable-doubt standard of proof. The experts were subject to other

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impeachment as well. Counsel discussed the situation with his experienced co-counsel
who concurred in counsel’s proposal that he recommend to Mirzayance the withdrawal
of the NGI plea.
Based on these factual findings, the Magistrate Judge stated that, in his view, counsel’s
performance was not deficient.
Despite this determination, the Magistrate Judge concluded that the court was bound by the
Court of Appeals’ remand order to determine only whether “there were tactical reasons for
abandoning the insanity defense.” Even though the Magistrate Judge thought that counsel was
reasonable in recommending that a very weak claim be dropped, the Magistrate Judge
understood the remand order to mean that counsel’s performance was deficient if withdrawing
the NGI plea would achieve no tactical advantage. The Magistrate Judge found that
“Mirzayance had nothing to lose” by going forward with the NGI phase of the trial, and thus held,
under the remand order, that counsel’s performance was deficient. As to prejudice, the
Magistrate Judge concluded the court was similarly bound by the remand order because the
Court of Appeals described the NGI defense as remaining “viable and strong.” Accordingly, the
Magistrate Judge found prejudice and recommended granting the writ of habeas corpus. The
District Court accepted this recommendation and granted the writ.
The Court of Appeals affirmed. It first stated that the lower court had misunderstood its remand
order, which it described as requiring an examination of “counsel's reason for abandoning the
insanity defense,” rather than as mandating that the District Court must find deficient
performance if it found counsel had “nothing to lose” by pursuing the insanity defense.
Nonetheless, the Court of Appeals affirmed the finding of deficient performance. According to
the court, Mirzayance’s “parents did not refuse, but merely expressed reluctance to testify.” And
because they may have been willing, “competent counsel would have attempted to persuade
them to testify, which counsel here admits he did not.” The Court of Appeals also “disagreed
that counsel's decision was carefully weighed and not made rashly.”
Furthermore, even though it had suggested that the District Court unnecessarily evaluated
counsel’s strategy under a “nothing to lose” standard, the Court of Appeals affirmed the District
Court in large part because Mirzayance’s “counsel did not make a true tactical choice” based on
its view that counsel had nothing to gain by dropping the NGI defense. The court held that
“reasonably effective assistance would put on the only defense available, especially in a case
such as this where there was significant potential for success.” The Court of Appeals also found
prejudice because, in its view, “if counsel had pursued the insanity phase of the trial, there is a
reasonable probability that the jury would have found Mirzayance insane.”
We granted the petition for writ of certiorari.
Even if Mirzayance’s ineffective-assistance-of-counsel claim were eligible for de novo review, it
would still fail. Strickland requires a defendant to establish deficient performance and prejudice.
Mirzayance can establish neither.

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Mirzayance has not shown “that counsel’s representation fell below an objective standard of
reasonableness.”
The proper measure of attorney performance remains simply reasonableness under
prevailing professional norms. Judicial scrutiny of counsel's performance must be highly
deferential, and a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.
Here, Mirzayance has not shown that his counsel violated these standards. Rather, his counsel
merely recommended the withdrawal of what he reasonably believed was a claim doomed to
fail. The jury had already rejected medical testimony about Mirzayance’s mental state in the guilt
phase, during which the State carried its burden of proving guilt beyond a reasonable doubt.
The Magistrate Judge explained this point:
All counsel was left with were four experts, all of whom reached a conclusion — that
Mirzayance did not premeditate and deliberate his crime — that the same jury about to
hear the NGI evidence already had rejected under a beyond-a-reasonable-doubt
standard of proof. The experts were subject to other impeachment as well.
In fact, the Magistrate Judge found that counsel “convincingly detailed ways in which the
experts could have been impeached, for overlooking or minimizing facts which showcased
Mirzayance’s clearly goal-directed behavior.”
In the NGI phase, the burden would have switched to Mirzayance to prove insanity by a
preponderance of the evidence. Mirzayance’s counsel reasonably believed that there was
almost no chance that the same jury would have reached a different result when considering
similar evidence, especially with Mirzayance bearing the burden of proof. Furthermore, counsel
knew he would have had to present this defense without the benefit of the parents’ testimony,
which he believed to be his strongest evidence. Counsel reasonably concluded that this defense
was almost certain to lose.
The Court of Appeals took the position that the situation was not quite so dire because the
parents “merely expressed reluctance to testify.” It explained that “competent counsel would
have attempted to persuade them to testify.” But that holding is in tension with the Magistrate
Judge’s findings and applies a more demanding standard than Strickland prescribes. The
Magistrate Judge noted that the parents “conveyed the same sense as a refusal.” Indeed, the
Magistrate Judge found that the parents “did not testify later at Mirzayance’s sentencing
hearing” because it “would have been ‘too emotional’ for them.” Competence does not require
an attorney to browbeat a reluctant witness into testifying, especially when the facts suggest
that no amount of persuasion would have succeeded. Counsel’s acceptance of the parents’

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“conveyance of a refusal” does not rise to the high bar for deficient performance set by
Strickland.
Mirzayance’s failure to show ineffective assistance of counsel is confirmed by the Magistrate
Judge’s finding that “counsel carefully weighed his options before making his decision final; he
did not make it rashly.” The Magistrate Judge explained all of the factors that counsel
considered — many of which are discussed above — and noted that counsel “discussed the
situation with his experienced co-counsel” before making it. In making this finding, the
Magistrate Judge identified counsel's decision as essentially an informed decision “made after
thorough investigation of law and facts relevant to plausible options.” As we stated in Strickland,
such a decision is “virtually unchallengeable.”
Without even referring to the Magistrate Judge’s finding, the Court of Appeals “disagreed that
counsel’s decision was carefully weighed and not made rashly.” In its view, “counsel acted on
his subjective feelings of hopelessness without even considering the potential benefit to be
gained in persisting with the plea.” But courts of appeals may not set aside a district court’s
factual findings unless those findings are clearly erroneous. Here, the Court of Appeals failed
even to mention the clearly-erroneous standard, let alone apply it, before effectively overturning
the lower court's factual findings related to counsel’s behavior.
In light of the Magistrate Judge’s factual findings, the state court's rejection of Mirzayance’s
ineffective-assistance-of-counsel claim was consistent with Strickland. The Court of Appeals
insisted, however, that “‘reasonably effective assistance’ required here that counsel assert the
only defense available.” But we are aware of no “prevailing professional norms” that prevent
counsel from recommending that a plea be withdrawn when it is almost certain to lose. And in
this case, counsel did not give up “the only defense available.” Counsel put on a defense to firstdegree murder during the guilt phase. Counsel also defended his client at the sentencing phase.
The law does not require counsel to raise every available nonfrivolous defense. Counsel also is
not required to have a tactical reason — above and beyond a reasonable appraisal of a claim’s
dismal prospects for success — for recommending that a weak claim be dropped altogether.
Mirzayance has thus failed to demonstrate that his counsel’s performance was deficient.
In addition, Mirzayance has not demonstrated that he suffered prejudice from his counsel's
performance. To establish prejudice, “the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” To prevail on his ineffective-assistance claim, Mirzayance must show, therefore, that
there is a “reasonable probability” that he would have prevailed on his insanity defense had he
pursued it. This Mirzayance cannot do. It was highly improbable that a jury, which had just
rejected testimony about Mirzayance's mental condition when the State bore the burden of
proof, would have reached a different result when Mirzayance presented similar evidence at the
NGI phase.
IV

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Mirzayance has not shown that the state court's conclusion that there was no ineffective
assistance of counsel "was contrary to, or involved an unreasonable application of, clearly
established Federal law.” In fact, he has not shown ineffective assistance at all. The judgment of
the Court of Appeals is reversed, and the case is remanded with instructions to deny the
petition.
Questions:
1. Did Mirzayance’s insanity plea have any chance of success? Was there any reason to
withdraw it?
2. Could Mirzayance’s attorney have had a tactical reason for advising him to withdraw his
insanity plea?
Lee v. United States, 137 S. Ct. 1958 (2017)
Summary: Jae Lee was a lawful permanent resident of the United States, who was
indicted for an “aggravated felony.” Lee pleaded guilty on the advice of his attorney, who
assured him that he would not be deported. In fact, Lee was subject to mandatory
deportation. Lee filed a motion to vacate his conviction and sentence based on
ineffective assistance of counsel, arguing that he would not have pleaded guilty if he had
known it would mean mandatory deportation. The district court denied relief, because
Lee would “almost certainly” have been found guilty and deported anyway, and the
circuit court affirmed. The Supreme Court reversed, holding that the attorney’s
incompetence deprived Lee of a chance of avoiding deportation.
Chief Justice ROBERTS delivered the opinion of the Court.
Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute.
Although he has lived in this country for most of his life, Lee is not a United States citizen, and
he feared that a criminal conviction might affect his status as a lawful permanent resident. His
attorney assured him there was nothing to worry about — the Government would not deport him
if he pleaded guilty. So Lee, who had no real defense to the charge, opted to accept a plea that
carried a lesser prison sentence than he would have faced at trial.
Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation
from this country. Lee seeks to vacate his conviction on the ground that, in accepting the plea,
he received ineffective assistance of counsel in violation of the Sixth Amendment. Everyone
agrees that Lee received objectively unreasonable representation. The question presented is
whether he can show he was prejudiced as a result.
I

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Jae Lee moved to the United States from South Korea in 1982. He was 13 at the time. His
parents settled the family in New York City, where they opened a small coffee shop. After
graduating from a business high school in Manhattan, Lee set out on his own to Memphis,
Tennessee, where he started working at a restaurant. After three years, Lee decided to try his
hand at running a business. With some assistance from his family, Lee opened the Mandarin
Palace Chinese Restaurant in a Memphis suburb. The Mandarin was a success, and Lee
eventually opened a second restaurant nearby. In the 35 years he has spent in the country, Lee
has never returned to South Korea. He did not become a United States citizen, living instead as
a lawful permanent resident.
At the same time he was running his lawful businesses, Lee also engaged in some illegitimate
activity. In 2008, a confidential informant told federal officials that Lee had sold the informant
approximately 200 ecstasy pills and two ounces of hydroponic marijuana over the course of
eight years. The officials obtained a search warrant for Lee's house, where they found 88
ecstasy pills, three Valium tablets, $32,432 in cash, and a loaded rifle. Lee admitted that the
drugs were his and that he had given ecstasy to his friends.
A grand jury indicted Lee on one count of possessing ecstasy with intent to distribute. Lee
retained an attorney and entered into plea discussions with the Government. The attorney
advised Lee that going to trial was “very risky” and that, if he pleaded guilty, he would receive a
lighter sentence than he would if convicted at trial. Lee informed his attorney of his noncitizen
status and repeatedly asked him whether he would face deportation as a result of the criminal
proceedings. The attorney told Lee that he would not be deported as a result of pleading guilty.
Based on that assurance, Lee accepted the plea and the District Court sentenced him to a year
and a day in prison, though it deferred commencement of Lee’s sentence for two months so that
Lee could manage his restaurants over the holiday season.
Lee quickly learned, however, that a prison term was not the only consequence of his plea. Lee
had pleaded guilty to what qualifies as an “aggravated felony” under the Immigration and
Nationality Act, and a noncitizen convicted of such an offense is subject to mandatory
deportation. Upon learning that he would be deported after serving his sentence, Lee filed a
motion to vacate his conviction and sentence, arguing that his attorney had provided
constitutionally ineffective assistance.
At an evidentiary hearing on Lee’s motion, both Lee and his plea-stage counsel testified that
“deportation was the determinative issue in Lee’s decision whether to accept the plea.” In fact,
Lee explained, his attorney became “pretty upset because every time something comes up I
always ask about immigration status,” and the lawyer “always said why are you worrying about
something that you don’t need to worry about.” According to Lee, the lawyer assured him that if
deportation was not in the plea agreement, “the government cannot deport you.” Lee’s attorney
testified that he thought Lee’s case was a “bad case to try” because Lee's defense to the charge
was weak. The attorney nonetheless acknowledged that if he had known Lee would be
deported upon pleading guilty, he would have advised him to go to trial. Based on the hearing

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testimony, a Magistrate Judge recommended that Lee’s plea be set aside and his conviction
vacated because he had received ineffective assistance of counsel.
The District Court, however, denied relief. Applying our two-part test for ineffective assistance
claims from Strickland v. Washington, the District Court concluded that Lee’s counsel had
performed deficiently by giving improper advice about the deportation consequences of the
plea. But, “in light of the overwhelming evidence of Lee’s guilt,” Lee “would have almost
certainly” been found guilty and received “a significantly longer prison sentence, and
subsequent deportation,” had he gone to trial. Lee therefore could not show he was prejudiced
by his attorney's erroneous advice. Viewing its resolution of the issue as debatable among
jurists of reason, the District Court granted a certificate of appealability.
The Court of Appeals for the Sixth Circuit affirmed the denial of relief. On appeal, the
Government conceded that the performance of Lee’s attorney had been deficient. To establish
that he was prejudiced by that deficient performance, the court explained, Lee was required to
show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Lee had “no bona fide defense, not even a weak
one,” so he “stood to gain nothing from going to trial but more prison time.” Relying on Circuit
precedent holding that “no rational defendant charged with a deportable offense and facing
overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter
prison sentence,” the Court of Appeals concluded that Lee could not show prejudice. We
granted certiorari.
II
The Sixth Amendment guarantees a defendant the effective assistance of counsel at “critical
stages of a criminal proceeding,” including when he enters a guilty plea. To demonstrate that
counsel was constitutionally ineffective, a defendant must show that counsel's representation
“fell below an objective standard of reasonableness” and that he was prejudiced as a result. The
first requirement is not at issue in today’s case: The Government concedes that Lee’s pleastage counsel provided inadequate representation when he assured Lee that he would not be
deported if he pleaded guilty. The question is whether Lee can show he was prejudiced by that
erroneous advice.
A
A claim of ineffective assistance of counsel will often involve a claim of attorney error “during the
course of a legal proceeding” — for example, that counsel failed to raise an objection at trial or
to present an argument on appeal. A defendant raising such a claim can demonstrate prejudice
by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different.”
But in this case counsel’s “deficient performance arguably led not to a judicial proceeding of
disputed reliability, but rather to the forfeiture of a proceeding itself.” When a defendant alleges

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his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do
not ask whether, had he gone to trial, the result of that trial “would have been different” than the
result of the plea bargain. That is because, while we ordinarily “apply a strong presumption of
reliability to judicial proceedings,” “we cannot accord” any such presumption “to judicial
proceedings that never took place.”
We instead consider whether the defendant was prejudiced by the “denial of the entire judicial
proceeding to which he had a right.” When a defendant claims that his counsel’s deficient
performance deprived him of a trial by causing him to accept a plea, the defendant can show
prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.”
The dissent contends that a defendant must also show that he would have been better off going
to trial. That is true when the defendant’s decision about going to trial turns on his prospects of
success and those are affected by the attorney’s error — for instance, where a defendant
alleges that his lawyer should have but did not seek to suppress an improperly obtained
confession.
Not all errors, however, are of that sort. Here Lee knew, correctly, that his prospects of acquittal
at trial were grim, and his attorney’s error had nothing to do with that. The error was instead one
that affected Lee’s understanding of the consequences of pleading guilty. The Court confronted
precisely this kind of error in Hill. Rather than asking how a hypothetical trial would have played
out absent the error, the Court considered whether there was an adequate showing that the
defendant, properly advised, would have opted to go to trial. The Court rejected the defendant's
claim because he had “alleged no special circumstances that might support the conclusion that
he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.”
Lee, on the other hand, argues he can establish prejudice under Hill because he never would
have accepted a guilty plea had he known that he would be deported as a result. Lee insists he
would have gambled on trial, risking more jail time for whatever small chance there might be of
an acquittal that would let him remain in the United States. The Government responds that,
since Lee had no viable defense at trial, he would almost certainly have lost and found himself
still subject to deportation, with a lengthier prison sentence to boot. Lee, the Government
contends, cannot show prejudice from accepting a plea where his only hope at trial was that
something unexpected and unpredictable might occur that would lead to an acquittal.
B
The Government asks that we, like the Court of Appeals below, adopt a per se rule that a
defendant with no viable defense cannot show prejudice from the denial of his right to trial. As a
general matter, it makes sense that a defendant who has no realistic defense to a charge
supported by sufficient evidence will be unable to carry his burden of showing prejudice from
accepting a guilty plea. But in elevating this general proposition to a per se rule, the
Government makes two errors. First, it forgets that categorical rules are ill suited to an inquiry

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that we have emphasized demands a “case-by-case examination” of the “totality of the
evidence.” And, more fundamentally, the Government overlooks that the inquiry we prescribed
in Hill v. Lockhart focuses on a defendant's decisionmaking, which may not turn solely on the
likelihood of conviction after trial.
A defendant without any viable defense will be highly likely to lose at trial. And a defendant
facing such long odds will rarely be able to show prejudice from accepting a guilty plea that
offers him a better resolution than would be likely after trial. But that is not because the
prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is
instead because defendants obviously weigh their prospects at trial in deciding whether to
accept a plea. Where a defendant has no plausible chance of an acquittal at trial, it is highly
likely that he will accept a plea if the Government offers one.
But common sense (not to mention our precedent) recognizes that there is more to consider
than simply the likelihood of success at trial. The decision whether to plead guilty also involves
assessing the respective consequences of a conviction after trial and by plea. When those
consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of
success at trial may look attractive. For example, a defendant with no realistic defense to a
charge carrying a 20-year sentence may nevertheless choose trial, if the prosecution’s plea
offer is 18 years. Here Lee alleges that avoiding deportation was the determinative factor for
him; deportation after some time in prison was not meaningfully different from deportation after
somewhat less time. He says he accordingly would have rejected any plea leading to
deportation — even if it shaved off prison time — in favor of throwing a “Hail Mary” at trial.
The Government urges that, in such circumstances, the possibility of an acquittal after trial is
“irrelevant to the prejudice inquiry,” pointing to our statement in Strickland that “a defendant has
no entitlement to the luck of a lawless decisionmaker.” That statement, however, was made in
the context of discussing the presumption of reliability we apply to judicial proceedings. As we
have explained, that presumption has no place where, as here, a defendant was deprived of a
proceeding altogether. In a presumptively reliable proceeding, “the possibility of arbitrariness,
whimsy, caprice, ‘nullification,’ and the like” must by definition be ignored. But where we are
instead asking what an individual defendant would have done, the possibility of even a highly
improbable result may be pertinent to the extent it would have affected his decisionmaking.
C
“Surmounting Strickland’s high bar is never an easy task,” and the strong societal interest in
finality has “special force with respect to convictions based on guilty pleas.” Courts should not
upset a plea solely because of post hoc assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous
evidence to substantiate a defendant's expressed preferences.
In the unusual circumstances of this case, we conclude that Lee has adequately demonstrated
a reasonable probability that he would have rejected the plea had he known that it would lead to

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mandatory deportation. There is no question that “deportation was the determinative issue in
Lee’s decision whether to accept the plea deal.” Lee asked his attorney repeatedly whether
there was any risk of deportation from the proceedings, and both Lee and his attorney testified
at the evidentiary hearing below that Lee would have gone to trial if he had known about the
deportation consequences.
Lee demonstrated as much at his plea colloquy: When the judge warned him that a conviction
“could result in your being deported,” and asked “does that at all affect your decision about
whether you want to plead guilty or not,” Lee answered “Yes, Your Honor.” When the judge
inquired “how does it affect your decision,” Lee responded “I don't understand,” and turned to
his attorney for advice. Only when Lee’s counsel assured him that the judge’s statement was a
“standard warning” was Lee willing to proceed to plead guilty.
There is no reason to doubt the paramount importance Lee placed on avoiding deportation.
Deportation is always “a particularly severe penalty,” and we have “recognized that ‘preserving
the client’s right to remain in the United States may be more important to the client than any
potential jail sentence.’” At the time of his plea, Lee had lived in the United States for nearly
three decades, had established two businesses in Tennessee, and was the only family member
in the United States who could care for his elderly parents — both naturalized American
citizens. In contrast to these strong connections to the United States, there is no indication that
he had any ties to South Korea; he had never returned there since leaving as a child.
The Government argues, however, that a defendant “must convince the court that a decision to
reject the plea bargain would have been rational under the circumstances.” The Government
contends that Lee cannot make that showing because he was going to be deported either way;
going to trial would only result in a longer sentence before that inevitable consequence.
We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea
offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting
the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If
deportation were the “determinative issue” for an individual in plea discussions, as it was for
Lee; if that individual had strong connections to this country and no other, as did Lee; and if the
consequences of taking a chance at trial were not markedly harsher than pleading, as in this
case, that “almost” could make all the difference. Balanced against holding on to some chance
of avoiding deportation was a year or two more of prison time. Not everyone in Lee’s position
would make the choice to reject the plea. But we cannot say it would be irrational to do so.
Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is
backed by substantial and uncontroverted evidence. Accordingly we conclude Lee has
demonstrated a “reasonable probability that, but for his counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Justice THOMAS, with whom Justice ALITO joins except for Part I, dissenting.

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The Court today holds that a defendant can undo a guilty plea, well after sentencing and in the
face of overwhelming evidence of guilt, because he would have chosen to pursue a defense at
trial with no reasonable chance of success if his attorney had properly advised him of the
immigration consequences of his plea. Neither the Sixth Amendment nor this Court's
precedents support that conclusion. I respectfully dissent.
The Court and both of the parties agree that the prejudice inquiry in this context is governed by
Strickland v. Washington. The Court in Strickland held that a defendant may establish a claim of
ineffective assistance of counsel by showing that his “counsel's representation fell below an
objective standard of reasonableness” and, as relevant here, that the representation prejudiced
the defendant by “actually having an adverse effect on the defense.”
To establish prejudice under Strickland, a defendant must show a “reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland made clear that the “result of the proceeding” refers to the outcome of the
defendant’s criminal prosecution as a whole. It defined “reasonable probability” as “a probability
sufficient to undermine confidence in the outcome.” And it explained that “an error by counsel
does not warrant setting aside the judgment of a criminal proceeding if the error had no effect
on the judgment.”
The parties agree that this inquiry assumes an “objective” decisionmaker. That conclusion also
follows directly from Strickland. According to Strickland, the “assessment of the likelihood of a
result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy,
caprice, ‘nullification,’ and the like.” It does not depend on subjective factors such as “the
idiosyncrasies of the particular decisionmaker,” including the decisionmaker’s “unusual
propensities toward harshness or leniency.” These factors are flatly “irrelevant to the prejudice
inquiry.” In other words, “a defendant has no entitlement to the luck of a lawless decisionmaker.”
Ibid. Instead, “the assessment of prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially applying the standards that
govern the decision.”
When the Court extended the right to effective counsel to the plea stage, it held that “the same
two-part standard” from Strickland applies. To be sure, the Court said — and the majority today
emphasizes — that a defendant asserting an ineffectiveness claim at the plea stage “must show
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” But that requirement merely reflects the reality
that a defendant cannot show that the outcome of his case would have been different if he
would have accepted his current plea anyway. In other words, the defendant’s ability to show
that he would have gone to trial is necessary, but not sufficient, to establish prejudice.
The Hill Court went on to explain that Strickland's two-part test applies the same way in the plea
context as in other contexts. In particular, the “assessment” will primarily turn on “a prediction
whether,” in the absence of counsel’s error, “the evidence” of the defendant's innocence or guilt
“likely would have changed the outcome” of the proceeding. Thus, a defendant cannot show

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prejudice where it is “inconceivable” not only that he would have gone to trial, but also “that if he
had done so he either would have been acquitted or, if convicted, would nevertheless have
been given a shorter sentence than he actually received.” In sum, the proper inquiry requires a
defendant to show both that he would have rejected his plea and gone to trial and that he would
likely have obtained a more favorable result in the end.
To the extent Hill was ambiguous about the standard, our precedents applying it confirm this
interpretation. In Premo v. Moore, the Court emphasized that “strict adherence to the Strickland
standard” is “essential” when reviewing claims about attorney error “at the plea bargain stage.”
In that case, the defendant argued that his counsel was constitutionally ineffective because he
had failed to seek suppression of his confession before he pleaded no contest. In analyzing the
prejudice issue, the Court did not focus solely on whether the suppression hearing would have
turned out differently, or whether the defendant would have chosen to go to trial. It focused as
well on the weight of the evidence against the defendant and the fact that he likely would not
have obtained a more favorable result at trial, regardless of whether he succeeded at the
suppression hearing.
The Court in Missouri v. Frye, took a similar approach. In that case, the Court extended Hill to
hold that counsel could be constitutionally ineffective for failing to communicate a plea deal to a
defendant. The Court emphasized that, in addition to showing a reasonable probability that the
defendant “would have accepted the earlier plea offer,” it is also “necessary” to show a
“reasonable probability that the end result of the criminal process would have been more
favorable by reason of a plea to a lesser charge or a sentence of less prison time.” In short, the
Court did not focus solely on whether the defendant would have accepted the plea. It instead
required the defendant to show that the ultimate outcome would have been different.
Finally, the Court's decision in Lafler v. Cooper is to the same effect. In that case, the Court
concluded that counsel may be constitutionally ineffective by causing a defendant to reject a
plea deal he should have accepted. The Court again emphasized that the prejudice inquiry
requires a showing that the criminal prosecution would ultimately have ended differently for the
defendant — not merely that the defendant would have accepted the deal. The Court stated that
the defendant in those circumstances “must show” a reasonable probability that “the conviction
or sentence, or both, under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.”
These precedents are consistent with our cases governing the right to effective assistance of
counsel in other contexts. This Court has held that the right to effective counsel applies to all
“critical stages of the criminal proceedings.” Those stages include not only “the entry of a guilty
plea,” but also “arraignments, postindictment interrogation, and postindictment lineups.” In those
circumstances, the Court has not held that the prejudice inquiry focuses on whether that stage
of the proceeding would have ended differently. It instead has made clear that the prejudice
inquiry is the same as in Strickland, which requires a defendant to establish that he would have
been better off in the end had his counsel not erred.

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B
The majority misapplies this Court's precedents when it concludes that a defendant may
establish prejudice by showing only that “he would not have pleaded guilty and would have
insisted on going to trial,” without showing that “the result of that trial would have been different
than the result of the plea bargain.” In reaching this conclusion, the Court relies almost
exclusively on the single line from Hill that “the defendant must show that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial.” For the reasons explained above, that sentence prescribes the
threshold showing a defendant must make to establish Strickland prejudice where a defendant
has accepted a guilty plea. In Hill, the Court concluded that the defendant had not made that
showing, so it rejected his claim. The Court did not, however, further hold that a defendant can
establish prejudice by making that showing alone.
The majority also relies on a case that arises in a completely different context, Roe v. FloresOrtega. There, the Court considered a defendant's claim that his attorney failed to file a notice
of appeal. The Court observed that the lawyer’s failure to file the notice of appeal “arguably led
not to a judicial proceeding of disputed reliability,” but instead to “the forfeiture of a proceeding
itself.” The Court today observes that petitioner's guilty plea meant that he did not go to trial.
Because that trial “never took place,” the Court reasons, we cannot “apply a strong presumption
of reliability” to it. And because the presumption of reliability does not apply, we may not depend
on Strickland's statement “that a defendant has no entitlement to the luck of a lawless
decisionmaker.” This point is key to the majority's conclusion that petitioner would have chosen
to gamble on a trial even though he had no viable defense.
The majority’s analysis, however, is directly contrary to Hill, which instructed a court undertaking
a prejudice analysis to apply a presumption of reliability to the hypothetical trial that would have
occurred had the defendant not pleaded guilty. After explaining that a court should engage in a
predictive inquiry about the likelihood of a defendant securing a better result at trial, the Court
said: “As we explained in Strickland v. Washington, these predictions of the outcome at a
possible trial, where necessary, should be made objectively, without regard for the
‘idiosyncrasies of the particular decisionmaker.’” That quote comes from the same paragraph in
Strickland as the discussion about the presumption of reliability that attaches to the trial. In other
words, Hill instructs that the prejudice inquiry must presume that the foregone trial would have
been reliable.
The majority responds that Hill made statements about presuming a reliable trial only in
“discussing how courts should analyze predictions of the outcome at a possible trial,” which “will
not always be necessary.” I agree that such an inquiry is not always necessary — it is not
necessary where, as in Hill, the defendant cannot show at the threshold that he would have
rejected his plea and chosen to go to trial. But that caveat says nothing about the application of
the presumption of reliability when a defendant can make that threshold showing.

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In any event, the Court in Hill recognized that guilty pleas are themselves generally reliable.
Guilty pleas “rarely” give rise to the “concern that unfair procedures may have resulted in the
conviction of an innocent defendant.” That is because “a counseled plea of guilty is an
admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes
the issue of factual guilt from the case.” Guilty pleas, like completed trials, are therefore entitled
to the protections against collateral attack that the Strickland prejudice standard affords.
Finally, the majority does not dispute that the prejudice inquiry in Frye and Lafler focused on
whether the defendant established a reasonable probability of a different outcome. The majority
instead distinguishes those cases on the ground that they involved a defendant who did not
accept a guilty plea. According to the majority, those cases “articulated a different way to show
prejudice, suited to the context of pleas not accepted.” But the Court in Frye and Lafler (and Hill,
for that matter) did not purport to establish a “different” test for prejudice. To the contrary, the
Court repeatedly stated that it was applying the “same two-part standard” from Strickland.
The majority today abandons any pretense of applying Strickland to claims of ineffective
assistance of counsel that arise at the plea stage. It instead concludes that one standard applies
when a defendant goes to trial (Strickland); another standard applies when a defendant accepts
a plea (Hill); and yet another standard applies when counsel does not apprise the defendant of
an available plea or when the defendant rejects a plea (Frye and Lafler). That approach leaves
little doubt that the Court has “opened a whole new field of constitutionalized criminal
procedure” — “plea-bargaining law” — despite its repeated assurances that it has been applying
the same Strickland standard all along. In my view, we should take the Court’s precedents at
their word and conclude that “an error by counsel does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the judgment.”
III
Applying the ordinary Strickland standard in this case, I do not think a defendant in petitioner's
circumstances could show a reasonable probability that the result of his criminal proceeding
would have been different had he not pleaded guilty. Petitioner does not dispute that he
possessed large quantities of illegal drugs or that the Government had secured a witness who
had purchased the drugs directly from him. In light of this “overwhelming evidence of guilt,” the
Court of Appeals concluded that petitioner had “no bona fide defense, not even a weak one.”
His only chance of succeeding would have been to “throw a ‘Hail Mary’ at trial.” As I have
explained, however, the Court in Strickland expressly foreclosed relying on the possibility of a
“Hail Mary” to establish prejudice. Strickland made clear that the prejudice assessment should
“proceed on the assumption that the decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision.”
In the face of overwhelming evidence of guilt and in the absence of a bona fide defense, a
reasonable court or jury applying the law to the facts of this case would find the defendant guilty.
There is no reasonable probability of any other verdict. A defendant in petitioner’s shoes,
therefore, would have suffered the same deportation consequences regardless of whether he

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accepted a plea or went to trial. He is thus plainly better off for having accepted his plea: had he
gone to trial, he not only would have faced the same deportation consequences, he also likely
would have received a higher prison sentence. Finding that petitioner has established prejudice
in these circumstances turns Strickland on its head.
IV
The Court's decision today will have pernicious consequences for the criminal justice system.
This Court has shown special solicitude for the plea process, which brings “stability” and
“certainty” to “the criminal justice system.” The Court has warned that “the prospect of collateral
challenges” threatens to undermine these important values. And we have explained that
“prosecutors must have assurance that a plea will not be undone years later,” lest they “forgo
plea bargains that would benefit defendants,” which would be “a result favorable to no one.”
The Court today provides no assurance that plea deals negotiated in good faith with guilty
defendants will remain final. For one thing, the Court’s artificially cabined standard for prejudice
in the plea context is likely to generate a high volume of challenges to existing and future plea
agreements. Under the majority's standard, defendants bringing these challenges will bear a
relatively low burden to show prejudice. Whereas a defendant asserting an ordinary claim of
ineffective assistance of counsel must prove that the ultimate outcome of his case would have
been different, the Court today holds that a defendant who pleaded guilty need show only that
he would have rejected his plea and gone to trial. This standard does not appear to be
particularly demanding, as even a defendant who has only the “smallest chance of success at
trial” — relying on nothing more than a “Hail Mary” — may be able to satisfy it. For another, the
Court does not limit its holding to immigration consequences. Under its rule, so long as a
defendant alleges that his counsel omitted or misadvised him on a piece of information during
the plea process that he considered of “paramount importance,” he could allege a plausible
claim of ineffective assistance of counsel.
In addition to undermining finality, the Court’s rule will impose significant costs on courts and
prosecutors. Under the Court's standard, a challenge to a guilty plea will be a highly factintensive, defendant-specific undertaking. Petitioner suggests that each claim will “at least”
require a “hearing to get the facts on the table.” Given that more than 90 percent of criminal
convictions are the result of guilty pleas, the burden of holding evidentiary hearings on these
claims could be significant. In circumstances where a defendant has admitted his guilt, the
evidence against him is overwhelming, and he has no bona fide defense strategy, I see no
justification for imposing these costs.
Questions:
1. Does an ineffective assistance of counsel claim more closely resemble a breach of the
duty of care or a breach of the duty of loyalty?
2. Is there a difference between a lawyer making a bad decision and a lawyer providing
inaccurate advice? Should there be?

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3. Should courts apply the “case within a case” doctrine to ineffective assistance of counsel
claims?
4. The dissent argues that guilty pleas are reliable. But scholarship suggests that they are
not. Should this affect the analysis of ineffective assistance of counsel claims in relation
to plea bargains?
Malpractice in Criminal Cases
Criminal defense attorneys who provide negligent representation may also be liable to their
clients in tort for malpractice. However, most courts have adopted a different standard for
evaluating malpractice claims in civil and criminal representation, holding that criminal
defendants can recover for malpractice only if they prove “actual innocence.” In other words,
where civil clients only have to prove that they would have won in order to recover in a legal
malpractice action, criminal clients have to prove that they were entitled to win on the merits.
Ang v. Martin, 114 P. 3d 637 (Wash. 2005)
Summary: Jessy and Editha Ang provided medical services to the State of Washington,
and were indicted for social security fraud, among other things. The Angs hired attorneys
Richard Hansen and Michael G. Martin, who advised them to accept a plea bargain.
After accepting the plea bargain, the Angs hired attorney Monte Hester, who advised
them to withdraw it. Eventually, the Angs were acquitted. The Angs filed a legal
malpractice action against Hansen and Martin. The trial court instructed the jury that the
Angs could recover only if they proved “actual innocence,” and the jury found they did
not. The Angs appealed, arguing that acquittal is actual innocence, but the Court of
Appeals and Supreme Court affirmed.
OWENS, J.
We are asked to determine whether plaintiffs in a malpractice action against their former
criminal defense attorneys were properly required to prove by a preponderance of the evidence
that they were actually innocent of the underlying criminal charges. The Court of Appeals
concluded that, as an element of their negligence claim, plaintiffs were required “to prove
innocence in fact and not merely to present evidence of the government's inability to prove
guilt.” We affirm the Court of Appeals.
FACTS
Psychiatrist Jessy Ang and his wife Editha jointly owned Evergreen Medical Panel, Inc., a
company that provided the Washington State Department of Labor and Industries with
independent medical examinations of injured workers. As a result of Dr. Ang’s contact with a
target of a governmental task force investigating social security fraud, Dr. Ang himself became a
person of interest. In February 1994, the task force executed a search warrant on Dr. Ang’s
office and seized copies of two sets of signed tax returns that reported conflicting amounts of

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income. The Angs were arrested in April 1996, following the execution of a search warrant at
their residence. A year later, the Angs were indicted on 18 criminal counts, including conspiracy
to defraud the United States, bank and tax fraud, and filing false statements.
The Angs retained defendants Richard Hansen and Michael G. Martin for flat fees of $225,000
and $100,000, respectively. Attorneys Hansen and Martin engaged in a round of plea
negotiations prior to trial, but the Angs rejected the plea bargain. The case proceeded to a jury
trial before Judge Tanner in federal district court in December 1997. On the fifth day of trial, just
prior to the conclusion of the government's case, Hansen and Martin recommended that the
Angs accept another proffered plea, one that the Angs viewed as the least attractive of any
agreement previously presented. After Dr. Ang was allegedly told that Mrs. Ang could face
sexual assault in prison, the Angs agreed to plead guilty to two of the 18 counts.
The Angs then engaged attorney Monte Hester to review the plea discussions and provide a
second opinion. Hester concluded that the government had not met its burden of proof and that
the plea agreement provided the Angs with no material benefit. Retaining Hester and Keith A.
MacFie to represent them, the Angs successfully moved to withdraw the pleas, which Judge
Tanner had never formally accepted. In September 1999, the matter again proceeded to trial
before Judge Tanner, with the Angs waiving their right to a jury. Although the government
offered another plea bargain prior to trial, one requiring no plea on Dr. Ang's part, a
misdemeanor or felony for Mrs. Ang, and a $500,000 fine, the Angs rejected the plea and were
acquitted on all 18 counts.
The Angs, along with Evergreen Medical, filed the present legal malpractice action against
Hansen and Martin in May 2000 in Pierce County Superior Court. The complaint stated claims
for legal malpractice and for violations of the Washington Consumer Protection Act. The trial
court denied the defendants' motion for summary judgment, and a jury trial began in November
2001. The trial court instructed the jury that the Angs had to prove by a preponderance of the
evidence that they were innocent of the underlying criminal charges. On January 11, 2002,
responding to the initial two questions on a special verdict form, the jury found that the Angs had
not “proven by a preponderance of the evidence they were innocent of all the criminal charges
against them.” As to the verdict form’s third question, asking whether “any of the defendants had
been negligent,” the jury made a finding of negligence against Martin only.
The plaintiffs appealed, but the Court of Appeals affirmed. This court granted the plaintiffs’
petition for review.
ISSUES
Where a legal malpractice suit stems from the representation of clients in a criminal prosecution,
must plaintiffs who were acquitted of the criminal charges prove their actual innocence of the
crimes, or does their acquittal satisfy the innocence element of their malpractice action?
ANALYSIS

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Essential Elements of Legal Malpractice Claims against Criminal Defense Counsel. A plaintiff
claiming negligent representation by an attorney in a civil matter bears the burden of proving
four elements by a preponderance of the evidence:
(1) The existence of an attorney-client relationship which gives rise to a duty of care on
the part of the attorney to the client; (2) an act or omission by the attorney in breach of
the duty of care; (3) damage to the client; and (4) proximate causation between the
attorney’s breach of the duty and the damage incurred.
The fourth element, proximate causation, includes “cause in fact and legal causation.” Cause in
fact, or “but for” causation, refers to “the physical connection between an act and an injury.” In a
legal malpractice trial, the “trier of fact will be asked to decide what a reasonable jury or fact
finder in the underlying trial or ‘trial within the trial’ would have done but for the attorney’s
negligence.” Legal causation, however, presents a question of law: “It involves a determination
of whether liability should attach as a matter of law given the existence of cause in fact.” To
determine whether the cause in fact of a plaintiff’s harm should also be deemed the legal cause
of that harm, a court may consider, among other things, the public policy implications of holding
the defendant liable. In “criminal malpractice” suits, two elements related to proximate causation
have been added. In Falkner v. Foshaug, the Court of Appeals “concluded that postconviction
relief is a prerequisite to maintaining a criminal malpractice suit and proof of innocence is an
additional element a criminal defendant/malpractice plaintiff must prove to prevail at trial in his
legal malpractice action.”
The trial court in the present case thus instructed the jury as follows on the elements of the
Angs criminal malpractice claims:
To prove their legal malpractice claims, the plaintiffs bear the burden of proving by a
preponderance of the evidence each of the following:
First, that there is an attorney-client relationship giving rise to a duty owed by a
defendant to a plaintiff;
Second, that plaintiffs have obtained a successful challenge to their convictions based
on their attorneys failure to adequately defend them;
Third, that plaintiff was innocent of the crimes charged;
Fourth, that there is an act of omission by a defendant that breached the duty of care of
an attorney;
Fifth, that a plaintiff was damaged; and
Sixth, that a breach of duty by a defendant is a proximate cause of a plaintiff’s damages.
The Angs assigned error to this instruction, contending that their undisputed acquittal of the
criminal charges met not only the additional element of postconviction relief but also the
innocence requirement.

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By successfully withdrawing their guilty pleas and receiving an acquittal on all charges, the Angs
unquestionably received the equivalent of postconviction relief, but contrary to their contention,
they did not thereby satisfy the innocence requirement. The Angs mistakenly claim that they
were simply required to prove legal innocence, not actual innocence.” Legal guilt or innocence is
that determination made by the trier of fact in a criminal trial,” whereas “actual guilt is intended
to refer to a determination in a civil trial, by a preponderance of the evidence, that the defendant
engaged in the conduct he was accused of in the prior criminal proceeding.” But the Falkner
court referred explicitly to the “actual innocence requirement” and at no point equated the
innocence requirement with legal innocence. Plainly, a requirement of legal innocence would
have been redundant alongside the additional, unchallenged requirement of postconviction relief
and would have necessitated a confusing overlay of standards of proof, requiring the
malpractice jury to consider whether the Angs had proved by a preponderance of the evidence
that they would not have been found guilty beyond a reasonable doubt in the underlying criminal
trial.
Moreover, proving actual innocence, not simply legal innocence, is essential to proving
proximate causation, both cause in fact and legal causation. Unless criminal malpractice
plaintiffs can prove by a preponderance of the evidence their actual innocence of the charges,
their own bad acts, not the alleged negligence of defense counsel, should be regarded as the
cause in fact of their harm. Likewise, if criminal malpractice plaintiffs cannot prove their actual
innocence under the civil standard, they will be unable to establish, in light of significant public
policy considerations, that the alleged negligence of their defense counsel was the legal cause
of their harm. Summarizing the policy concerns, the Falkner court observed that, “requiring a
defendant to prove by a preponderance of the evidence that he is innocent of the charges
against him will prohibit criminals from benefiting from their own bad acts, maintain respect for
our criminal justice systems procedural protections, remove the harmful chilling effect on the
defense bar, prevent suits from criminals who may be guilty, but could have gotten a better deal,
and prevent a flood of nuisance litigation.”
In the alternative, the Angs argue that, if a plaintiff’s actual guilt or innocence has any place in a
criminal malpractice suit, the issue should be raised as an affirmative defense, not as an
element of the plaintiffs cause of action. The Angs find support in Shaw II, the only decision
adopting the actual innocence requirement and shifting to the criminal malpractice defendant
“the burden of proof by a preponderance of the evidence as to the actual guilt of the plaintiff.” As
respondent Martin explained, however, “the criminal defendant/malpractice plaintiff is in a far
better position to bear the burden of establishing innocence,” since, unlike his defense attorney,
he “knows if he is actually innocent,” “was, presumably, present or involved in the underlying
events which led to the criminal charges,” “has unlimited access to the information about his
own acts necessary to prove innocence,” “would know what, if any, inculpatory facts he withheld
from his lawyer,” and would have the “opportunity to accept a plea, potentially an Alford plea
which could preserve his malpractice claim, before all facts and witness testimony have been
developed or are known to his or her attorney.” We find this practical analysis persuasive and
thus decline to adopt the minority position of Shaw II.

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In sum, we conclude that the Angs were properly required to prove by a preponderance of the
evidence that they were actually innocent of the underlying criminal charges. We therefore
affirm the Court of Appeals.
CONCLUSION
We conclude that, as plaintiffs in a criminal malpractice action, the Angs were properly required
to prove by a preponderance of the evidence that they were actually innocent of the underlying
criminal charges. We find no persuasive reasons for this court to follow the minority position and
shift the burden to the defendant attorneys to prove that their former clients were actually guilty
of the charged crimes.
C. JOHNSON, MADSEN, BRIDGE and FAIRHURST, JJ., concur.
SANDERS, J. (dissenting).
I dissent because the malpractice standard for criminal cases should be the same as civil. There
is no reason to invite malpractice in criminal cases by heightening the plaintiff’s burden to prove
postconviction relief and actual innocence. In every situation a client should rightfully expect
competent legal representation.
We have clearly stated the standard for legal malpractice:
To establish a claim for legal malpractice, a plaintiff must prove the following elements:
(1) The existence of an attorney-client relationship which gives rise to a duty of care on
the part of the attorney to the client; (2) an act or omission by the attorney in breach of
the duty of care; (3) damage to the client; and (4) proximate causation between the
attorney's breach of the duty and the damage incurred.
This rule does not suggest the additional requirements the majority adds to cases of criminal
malpractice, namely, postconviction relief and proof of actual innocence. I see no reason to add
them.
The majority cites a Court of Appeals case, Falkner v. Foshaug, to support additional elements.
The Court of Appeals opinion Falkner is not binding authority, nor is case law from other
jurisdictions upon which Falkner is based. Nor am I persuaded by its logic. Attorneys who
negligently represent their clients should be responsible for any harm that results from the
misconduct. It does not matter if the subject matter of the case is civil or criminal. Forcing
criminal defendants to prove actual innocence does not serve any purpose except to frustrate
the client’s right to competent representation.
Citing a “public policy” present in the minds of the individuals in the majority, the majority argues
the defendant's acts should be viewed as the cause of any harm unless he demonstrates his

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innocence. However, our constitution sets the “public policy” which entitles criminal defendants
to adequate representation. I prefer that policy as my guide.
The issue is causation. Under our precedent, cause in fact is determined by the jury as a
question of fact. Cause in fact is a minimum threshold that asks but for the lawyer’s negligence
would the client have been harmed. In other words, would the result be different if the lawyer
had used reasonable care?
Legal causation is a subsequent inquiry, asking as a matter of law whether liability should
attach. The majority argues a criminal defendant should not profit from his crimes, and hence
the defense attorney should not be liable for his negligence unless the defendant first proves his
own innocence. I disagree. The criminal defendant is equally entitled to competent
representation, and the negligent attorney should take responsibility for his malpractice. The
majority’s rule simply invites malpractice since the defense attorney knows he is held to a lower
standard. Proving innocence is impossible since a negative cannot be proved.
Here the Angs’s defense attorneys, Michael Martin and Richard Hansen, recommended a
particular plea agreement. The Angs initially agreed but later withdrew the plea on
recommendation from new counsel and were acquitted on all charges at a subsequent trial.
They sued their former defense attorneys and a jury found that Martin alone was negligent even
though it found the Angs had not proved their innocence by a preponderance of the evidence.
Since the latter consideration should be irrelevant, Martin should bear the responsibility for his
negligence. I would reverse as to Martin, and remand for a trial on damages.
ALEXANDER, C.J. (concurring in dissent).
I agree with Justice Sanders that the trial court erred in instructing the jury that Jessy and Editha
Ang had to prove that they were actually innocent of the crime charged in order to prevail in
their legal malpractice claim against attorneys Richard Hansen and Michael Martin. For that
reason, we should reverse the Court of Appeals and remand to the trial court for a new trial on
the Angs’ claim against Martin.
I write separately because, in my view, we should not stop with a determination that the trial
court erred but should go further to indicate that the defendant attorney may raise the issue of
the plaintiff’s actual guilt in the criminal case as an affirmative defense. That was the position
taken by the Supreme Court of Alaska in a similar case, Shaw v. Department of Administration.
There, the court said that because plaintiffs in such actions must already bear the burden of
proving that they have obtained postconviction relief from their criminal convictions, they should
not have to prove their “actual innocence.” The court went on to indicate, however, that the
defendant may raise the issue of the plaintiff’s “actual guilt” as an affirmative defense and seek
to establish it by a preponderance of the evidence. Although the Alaska court did not engage in
an extensive discussion of its reasons for placing the burden on the defendant to establish this
affirmative defense, it did indicate that putting the burden there is consistent with the
requirement that defendants establish traditional affirmative defenses that look to plaintiffs’

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actions such as contributory/comparative negligence and assumption of the risk. The Alaska
rule makes perfect sense to me for that reason and for the additional reason that it is consonant
with the traditional notion that one is presumed innocent until proven guilty beyond a reasonable
doubt. Furthermore, shifting the burden to the defendant relieves the plaintiff of the almost
impossible burden of proving innocence while at the same time addressing the policy concern
noted by the majority, that criminals should not benefit from “their own bad acts.”
IRELAND, J. Pro Tem., concurs.
CHAMBERS, J. (concurring in dissent).
I concur in Justice Sanders’ dissent but write separately to express my indignation that this
court, based upon the policy of protecting lawyers, would carve out a special protection for
criminal defense attorneys whose acts of professional negligence are harmful to their clients.
Under this logic, it is not enough for the injured client to prove actual harm from the attorney’s
failure to meet professional standards; the injured client must also prove that her hands were
always clean. Under this logic, why not give immunity to accountants for professional
negligence unless the accountant’s client can prove he or she never understated income or
requested an unavailable deduction, even when the accountants’ bad acts caused actual harm
to their clients or society? Surely tax dodgers should not profit from their misdeeds. Under this
logic, why not give immunity to health care providers who harm their patients unless the patient
can prove perfect good health but for the negligence of the provider? Surely the unhealthy
should not profit from their illness.
But this logic ignores the fact that professionals owe a duty to the sick as well as the healthy; to
the scrupulously honest business woman as well as the one looking for the angle; to the guilty
as well as the innocent. Those of us caught in the grip of the law are always entitled to
competent legal representation whether or not we are totally innocent. The heart of the criminal
defense lawyer’s job is often not to prove absolute innocence; the irreducible core of the job is
to make the state prove its case and make the best case for the defendant possible. Often the
sole issue is the level of culpability and the sanction to be imposed upon the client. The
government may seek multiple counts where a single count is appropriate, seek charges of a
higher degree than the evidence supports, or seek a sentence disproportionate to the offense.
The negligence of her lawyer may cost her client her fortune, her liberty, or her life. The “actual
innocence” requirement is impractical and harmful in the area of criminal malpractice law; it
creates an almost impossible burden and provides almost absolute immunity to criminal defense
lawyers.
The most troubling aspect of the actual innocence requirement announced by the majority lies
with its origin. It is based upon a policy to protect lawyers from lawsuits. Tort actions are
maintained for a variety of reasons, including the deterrence of wrongful conduct. As a matter of
basic policy, accountability, compensation, and deterrence of wrongful conduct should trump
protecting lawyers from lawsuits.

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Second, while it may be true that a majority of courts that have reached the issue require the
plaintiff to establish actual innocence, the numbers do not appear to be great. Only Missouri,
New York, Massachusetts, Alaska, Pennsylvania, California, New Hampshire, Nebraska, Illinois,
Florida, and Wisconsin require either proof of actual innocence or that the conviction was set
aside on postconviction relief. This is hardly a national consensus.
This court should protect the public from lawyers’ misdeeds, not the other way around. A plaintiff
who is not categorically innocent seeking compensation under ordinary principles of tort law
faces no light burden. Such a guilty plaintiff must prove a duty, a breach of that duty, injuries
proximately caused by the breach, and the amount of his damages. I see no reason to provide
additional protections for lawyers.
Questions:
1. Is the “actual innocence” requirement imposed by the court similar to the “case within a
case” doctrine? Does it requirement a criminal defendant to prove more?
2. Should a criminal defendant be required to prove actual innocence in order to show
malpractice? Can a criminal defense lawyer provide negligent representation to a guilty
client?
3. The majority is concerned about the possibility of criminals “benefiting from their own
bad acts.” What is the benefit in question?
4. Criminal defense attorneys are often appointed counsel. Should that affect the standard
of care? Should it affect the standard for evaluating whether they have provided
negligent representation? Should the standard for malpractice differ depending on
whether the client is paying for representation?

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Section 4: Conflicts of Interest
4.1: Identifying Conflicts of Interest
I can't believe you had a life before me. I can't believe they let you run around free, just putting
your body wherever it seemed like a good idea.40
What is a Conflict of Interest?
Attorneys must always watch for and avoid “conflicts of interest.” A conflict of interest exists
whenever an attorney may have to choose between the interests of a client and some other
interest. Under the fiduciary duty of loyalty, attorneys must always put the interests of their
clients before any other interests, including their own. Accordingly, a conflict of interest exists
whenever the interests of a client differ from the interests of another client, the attorney, or a
third party with a relationship to the attorney.
Broadly speaking, there are four categories of conflicts of interest, e.g. conflicts between the
interests of a client and:
1.
2.
3.
4.

the lawyer’s own interests
the lawyer’s duties to another client
the lawyer’s duties to a former client
the lawyer's duties to a third person.

The conflict of interest rules are intended to ensure that attorneys observe the duty of loyalty, by
preventing them from representing clients with competing interests.
However, the term “conflict of interest” is hard to define with any precision, because the concept
of a conflict of interest is both procedural and substantive, reflecting the intersection of formal
rules and normative values. Not every formal conflict of interest presents a real conflict of
interest. Some conflicts are trivial, and do not create a substantial concern. Others are merely
speculative, and do not require analysis.
Formally, a conflict of interests exists whenever an attorney’s legal duties to a client actually or
potentially conflict with the interests of the attorney, another actual or potential client, or a third
party to whom the attorney has a legal duty. But substantively, perhaps not every formal conflict
of interest should necessarily qualify as an actual conflict of interest. Many are trivial, and many
more will never materialize. If a formal conflict does not present a substantive conflict, is it really
a conflict at all?
Ultimately, the definition of a conflict of interest depends on the purpose of the conflicts rules. If
the purpose of the rules is to protect clients from their attorneys, then perhaps the rules should
40

Liz Phair, Jealousy, Whip-Smart (1994).

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be interpreted and applied literally, in order to ensure that unscrupulous attorneys cannot avoid
regulation. But if the purpose of the rules is to govern a business relationship between clients
and their attorneys, then perhaps the rules should be interpreted and applied more flexibly, in
order to help parties reach a mutually agreeable outcome.
ABA Canons of Professional Ethics: Canon 6 (1908)
It is the duty of the lawyer at the time of retainer to disclose to the client all the
circumstances of his relations to the parties, and any interest in or connection with the
controversy, which might influence the client in the selection of counsel.
It is unprofessional to represent conflicting interests, except by express consent of all
concerned given after a full disclosure of the facts. Within the meaning of this canon, a
lawyer represents conflicting interests when, on behalf of one client, it is his duty to
contend for that which duty to another client requires him to oppose.
The obligation to represent the client with undivided fidelity forbids also the subsequent
acceptance of retainers or employment from others in matters adversely affecting any
interest of the client with respect to which confidence has been reposed.
ABA Model Code of Professional Responsibility (1980)
Canon 5: A Lawyer Should Exercise Independent Professional Judgment on Behalf of a
Client
The professional judgment of a lawyer should be exercised, within the bounds of the law,
solely for the benefit of his client and free of compromising influences and loyalties.
Neither his personal interests, the interests of other clients, nor the desires of third
persons should be permitted to dilute his loyalty to his client.
Model Rule 1.7: Conflict of Interest: Current Clients
a. Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
1. the representation of one client will be directly adverse to another client; or
2. there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
b. Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
1. the lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client;
2. the representation is not prohibited by law;

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3. the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
4. each affected client gives informed consent, confirmed in writing.
Restatement (Third) of the Law Governing Lawyers § 121: The Basic Prohibition of
Conflicts of Interest
A conflict of interest is involved if there is a substantial risk that the lawyer's
representation of the client would be materially and adversely affected by the lawyer's
own interests or by the lawyer's duties to another current client, a former client, or a third
person.
Glueck v. Jonathan Logan, Inc., 653 F. 2d 746 (2d Cir. 1981)
Summary: Jonathan Logan, Inc. fired Charles Glueck, who hired Phillips Nizer to
represent him in a wrongful termination action. Logan filed a motion to disqualify Phillips
Nizer because the firm represented the Apparel Manufacturers Association, Inc., a
membership organization that includes one of Logan’s divisions. The district court
granted the motion, because the relationship between Phillips Nizer and Logan
resembled an attorney-client relationship, and the subject matter of Glueck’s action was
“substantially related” to Phillips Nizer’s representation of the Association. The circuit
court affirmed, because representing both Glueck and the Association would create a
“realistic risk” of Phillips Nizer breaching its duty of loyalty.
NEWMAN, Circuit Judge:
The issue on this appeal is whether in the circumstances of this case a law firm that represents
an incorporated trade association may represent an individual client in a suit against a
corporation one division of which is a member of the association. The District Court for the
Southern District of New York ruled that the firm must be disqualified. We conclude that Judge
Conner applied the correct standards of law and reached a result well within his discretion, and
we therefore affirm.
The appellant, Charles Glueck, formerly employed as an executive of appellee Jonathan Logan,
Inc., brought this suit against Logan, alleging that he was discharged in breach of his
employment contract. Logan promptly moved to disqualify Glueck’s law firm, Phillips, Nizer,
Benjamin, Krim & Ballon. The motion was based on the following undisputed facts. Phillips Nizer
represents the Apparel Manufacturers Association, Inc., a not-for-profit incorporated trade
association of dress manufacturers with more than 100 members. The sole function of the
Association is to negotiate multi-employer collective bargaining agreements on behalf of its
members with employees represented by the International Ladies Garment Workers’ Union.
One of the Association’s members is R & K Originals, a division of Logan. The division’s
president, Manny Eagle, is executive vice-president of the Association and a member of the

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Association’s negotiating committee. Eagle has had occasion to meet with lawyers from Phillips
Nizer and discuss labor matters with them. On these facts, Judge Conner granted appellee’s
motion to disqualify Phillips Nizer from representing Glueck in his suit against Logan. From that
ruling, Glueck appeals.
Recognizing the serious impact of attorney disqualification on the client’s right to select counsel
of his choice, we have indicated that such relief should ordinarily be granted only when a
violation of the Canons of the Code of Professional Responsibility poses a significant risk of trial
taint. That risk is encountered when an attorney represents one client in a suit against another
client, in violation of Canon 5, or might benefit a client in a lawsuit by using confidential
information about an adverse party obtained through prior representation of that party, in
violation of Canon 4. Mindful of our standards, the parties have joined issue on whether Logan
is a client of Phillips Nizer by virtue of the firm’s representation of the Association. Glueck
contends that members of an incorporated trade association are not clients of the association’s
lawyer and emphasizes that the retainer agreement between Phillips Nizer and the Association
explicitly negates the firm’s representation of the Association’s members. Logan responds that
the members of an incorporated association are the clients of the association’s lawyer and
argues that Phillips Nizer’s retainer agreement only assures it the right to charge separate fees
for legal work done specifically for an Association member.
We share Judge Conner’s view that the issue is not whether Phillips Nizer’s relationship to
Logan is in all respects that of attorney and client, but whether there exist sufficient aspects of
an attorney-client relationship “for purposes of triggering inquiry into the potential conflict
involved in Phillips Nizer’s role as plaintiff's counsel in this action.”41 Having concluded that such
inquiry should be made, Judge Conner then applied the strict standards that ordinarily prohibit
representation of adverse interests, and determined that, in view of the relationship between the
subject of Glueck’s lawsuit and the nature of the services rendered by Phillips Nizer to the
Association and its members, Phillips Nizer had not demonstrated “that there will be no actual or
apparent conflict in loyalties or diminution in the vigor of its representation.”
We reach the same conclusion, but analyze the issue in a slightly different way. We do not
believe the strict standards are inevitably invoked whenever a law firm brings suit against a
member of an association that the firm represents. If they were, many lawyers would be
needlessly disqualified because the standards of Canon 5 impose upon counsel who seeks to
avoid disqualification a burden so heavy that it will rarely be met. That burden is properly
imposed when a lawyer undertakes to represent two adverse parties, both of which are his
clients in the traditional sense. But when an adverse party is only a vicarious client by virtue of
membership in an association, the risks against which Canon 5 guards will not inevitably arise.
A law firm that represents the American Bar Association need not decline to represent a client
injured by an automobile driven by a member of the ABA. Moreover, if Canon 5 were applicable
to all suits against association members, there would be a temptation to water down the strict
standards of Canon 5 and find them met more easily than in cases where the adverse parties
41

We have previously held the standards of Canon 5 to be applicable even though the interests adverse
to those of a law firm's client are not those of another client in the traditional sense.

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are really clients of the same lawyer. In this case, Judge Conner, after finding Canon 5
applicable, applied what amounted to a “substantial relationship” test, and concluded that the
subject of Glueck’s lawsuit was substantially related to Phillips Nizer’s representation of the
Association. However, "the ‘substantial relationship’ test does not set a sufficiently high
standard by which the necessity for disqualification under Canon 5 should be determined.” We
think the standards of Canon 5 should be strict. We also believe those standards should apply
to suits against association members only when the risks against which Canon 5 protects are
likely to arise.
This approach leads us to use the “substantial relationship” test in determining when Canon 5
should be applied to suits brought by an association’s law firm against an association member.
Disqualification will ordinarily be required whenever the subject matter of a suit is sufficiently
related to the scope of the matters on which a firm represents an association as to create a
realistic risk either that the plaintiff will not be represented with vigor or that unfair advantage will
be taken of the defendant. Moreover, although our concern is with the risk of tainting a trial,
once that risk appears, it is appropriate to assess the risk that prosecution of a plaintiff’s lawsuit
by an association’s law firm will inhibit the free flow of information from the defendant to the firm
that is necessary for the firm’s proper representation of the association.
Though structured in a slightly different framework,42 Judge Conner’s findings fully justify
disqualification under the approach we have outlined. Judge Conner relied upon the risk that the
issue of whether Logan had cause to terminate Glueck might well arise in the course of
collective bargaining discussions conducted by Phillips Nizer for the Association. He also noted
the risk that in preparing for collective bargaining sessions, the law firm might learn of Logan’s
policies or past practices bearing on the subject of Glueck’s termination. These risks
demonstrate the requisite relationship between Glueck’s lawsuit and the subject matter of
Phillips Nizer’s representation of the Association. Because of that relationship, the strict
standards apply,43 and we agree with Judge Conner that appellant has not sustained the heavy
burden of demonstrating that, under those standards, disqualification can be avoided. The entry
of an order of disqualification was well within the proper exercise of discretion by the District
Court.44 The order is affirmed.
42

Judge Conner, in effect, used the “substantial relationship” test to determine whether Phillips Nizer had
met its burden under Canon 5; we use the test to determine whether Canon 5 is applicable.
43
We reject the appellant's contention that the result reached by Judge Conner is foreclosed by Board of
Education v. Nyquist. That decision concerned a lawyer who represented male teachers in litigation
adverse to the interests of female teachers, under circumstances where the lawyer was supplied to the
male teachers pursuant to a legal service program supported in part by the union dues of both the male
and female teachers. A disqualification order was reversed for lack of any risk that the lawyer’s loyalty to
his male clients would be diminished or that he might gain unfair advantage through access to any
privileged information from the female teachers.
44
We reject, as did Judge Conner, the appellant's contention that disqualification should not occur
because Logan's division, R & K Originals, is a member of the Association, rather than Logan itself. The
risks identified by Judge Conner are sufficient to warrant disqualification even though only Logan's
division is a member of the Association. Nor do we accept the contention that it will be unduly
burdensome for law firms that represent trade associations to inform themselves of the corporate identity
of those members of an association that are constituent parts of a non-member corporation.

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Questions:
1. Why did Phillips Nizer have a conflict of interest?
2. Why did the district court disqualify Phillips Nizer? Why did the circuit court disqualify
Phillips Nizer? How did their reasoning differ, if at all?
3. The court distinguishes this case from Board of Education v. Nyquist. Do you find that
distinction convincing?
4. If the Association kicked out Logan, would Phillips Nizer still have a conflict of interest or
be disqualified?

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Gutting v. Falstaff Brewing Corp., 710 F. 2d 1309 (8th Cir. 1983)
Summary: Ferdinand Gutting was the president of Falstaff Brewing, which gave him a
life insurance policy, payable unless he was discharged for proper cause. Paul
Kalmanovitz bought Falstaff and fired Gutting, and when Gutting died, Falstaff refused to
pay his life insurance benefits. Virginia Gutting filed a breach of contract claim, and hired
attorney James S. McClellan to represent her. Falstaff filed a motion to disqualify
McClellan, on the ground that he had previously represented Falstaff. McClellan
withdrew, and Gutting hired Harry B. Wilson. But Wilson also withdrew after identifying a
conflict of interest, and Gutting hired David G. Dempsey. In the meantime. Falstaff filed a
motion for summary judgment, arguing that Gutting had admitted all of the facts alleged
in its complaint by failing to timely answer its request for admissions. The district court
granted the motion, but the circuit court reversed, holding that the district court should
have considered the disqualification of Gutting’s counsel.
LAY, Chief Judge.
Virginia M. Gutting appeals from an order of the district court entering summary judgment in
favor of Falstaff Brewing Corporation and denying her motion for summary judgment. Gutting’s
primary argument on this appeal is based on the claim that the district court erred in denying her
motion for leave to file answers out of time to Falstaff’s request for admissions and in ordering
the matters set forth in the request deemed admitted. Because we conclude that the district
court erred by not allowing Gutting to file late answers to the request for admissions, we reverse
and remand.
Virginia Gutting is the widow of Ferdinand (Ferd) J. Gutting, former member of the Board of
Directors and President of Falstaff. In 1972 Falstaff established an insurance plan for certain
key employees. Pursuant to this plan, in January 1973, Ferdinand Gutting entered into a written
agreement with Falstaff entitled Employee’s Death Benefit Agreement. The purpose of the
agreement was to provide for Falstaff’s payment of a death benefit to Virginia Gutting, Ferd
Gutting’s designated payee. Falstaff purchased three life insurance policies on Ferd Gutting’s
life to secure this obligation. The agreement provided that all benefits would be forfeited if (1)
the life insurance policies were contested successfully by the insurance company; (2) the
employee left Falstaff’s employment voluntarily, subject to certain vesting provisions; or (3) the
employee was discharged “for proper cause.”
In early 1975, Paul Kalmanovitz purchased voting control of Falstaff and became Chairman of
the Board. Subsequently, for reasons in dispute in this lawsuit, Ferd Gutting’s employment with
Falstaff was terminated and the Board of Directors voted to deny Ferd Gutting all benefits
because his termination was for cause. Ferd Gutting died in December 1980. Falstaff has
refused to pay the amounts due to Virginia Gutting pursuant to the terms of the Employee’s
Death Benefit Agreement and she brought suit to recover the proceeds. Throughout this
litigation Falstaff has asserted as an affirmative defense that Ferd Gutting was terminated for

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cause and thus forfeited all benefits due his beneficiary under the agreement. Virginia Gutting
claims the termination was not for “proper cause” as that term is defined in the agreement.
Procedural History.
Virginia Gutting filed a complaint on July 8, 1981, through her attorney James S. McClellan. On
September 30, 1981, Falstaff filed a motion to disqualify McClellan because he formerly had
been a member of Falstaff’s Board of Directors and outside general counsel to Falstaff. Falstaff
asserted that McClellan had material, firsthand knowledge of events relevant to Falstaff’s
defense and that McClellan would likely be called as a witness. While the motion to disqualify
was pending, on October 13, 1981, Falstaff filed its request for admissions, first interrogatories,
and request for production of documents.45 Thereafter, the district court held a conference at
which McClellan indicated he would withdraw voluntarily. On December 4, 1981, McClellan
formally withdrew.
On December 11, 1981, Harry B. Wilson entered his appearance on behalf of Gutting. On
January 4, 7, and 8, 1982, Falstaff served notices of 15 depositions to begin on February 8 in
Providence, Rhode Island, and to continue throughout February and early March around the
country. On January 7 counsel for Falstaff, Steven P. Sanders, sent a letter to Harry Wilson
concerning the failure to respond to the request for admissions and asking for the answers.
Wilson and Sanders discussed the request over the telephone several days later and Sanders
agreed to wait an indefinite period of time.
According to an affidavit filed by Wilson he began to prepare for the upcoming depositions and
to draft responses to discovery requests on January 29, 1982. Wilson further swore that on
January 30 he concluded his firm had a serious conflict of interest because some of the
scheduled deponents were current clients of the firm. These clients had on-going litigation
matters with Falstaff. Wilson researched the nature of the conflict, discussed it with lead counsel
in the case, and called Sanders on February 6, 1982, to inform him of the conflict of interest. On
February 8 Wilson appeared before the district court and requested leave to withdraw. The
motion evidently was pending throughout February and the scheduled depositions for February
were postponed.

45

Falstaff's request for admissions strategically concerned the major contested factual issue in the case
of whether Ferd Gutting had been discharged for cause. The request stated in full:
1. Admit that the life insurance program set forth and discussed in your complaint allowed Falstaff
to terminate all life insurance benefits with respect to any employee whose employment was
terminated "for cause."
2. Admit that if "cause" existed for the termination by Falstaff of Ferd Gutting's employment,
Falstaff had the right to terminate all life insurance benefits otherwise available to Ferd Gutting
and his heirs and beneficiaries.
3. Admit that Ferd Gutting was told by Falstaff at the time of the termination of his employment by
Falstaff that he was being discharged from his employment "for cause."
4. Admit that Ferd Gutting was discharged from his employment with Falstaff "for cause."

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Falstaff alleges that on February 27, 1982, Wilson again telephoned Sanders to advise him that
the depositions scheduled for the following week would have to be canceled. Sanders refused,
in part due to a March 15 trial setting, and both parties appeared in court on March 1. Wilson
sought a protective order asking the court to postpone the March 2 and 3 depositions because
of his conflict of interest. The court indicated the depositions would not be delayed unless new
counsel for Gutting entered an appearance. Later the same day, Gutting’s third attorney, David
G. Dempsey, entered his appearance and the depositions were postponed one day. The court
granted Wilson leave to withdraw and continued the trial setting until June 7, 1982.
On April 9, 1982, Dempsey filed several motions on behalf of Gutting, including a motion for
leave to file answers to the request for admissions out of time. On the same date, Falstaff filed a
motion for summary judgment on the theory that all fact issues in the case had been admitted
by Gutting’s failure to make a timely response to the request. On April 21, the court denied
Gutting’s motion for leave to file the answers and delayed ruling on Falstaff’s summary
judgment motion. The case was still scheduled to proceed to trial on June 7, 1982, and Falstaff
chose to proceed with 11 scheduled discovery depositions. On May 28, 1982, the district court
granted Falstaff’s summary judgment motion. The court ruled there was no genuine issue of
material fact that the death benefits had been properly withheld under the terms of the
agreement because the matter of Ferd Gutting’s termination for cause had been deemed
admitted.
Discussion
2. Conflicts of Interest of Gutting’s Counsel.
Gutting contends that the late responses should have been allowed because Falstaff’s motion to
disqualify McClellan and Wilson’s withdrawal due to his conflict of interest rendered her without
effective representation. The conflicts of interest experienced by McClellan and Wilson
disrupted their professional duties to take actions best suited to furthering Gutting’s interests.
Once the conflicts became apparent, each attorney became unable to exercise his independent
professional judgment. Gutting seems to be arguing that she should not be penalized because
of her attorney’s “inability” to take actions on her behalf. We agree that her counsels’ conflicts of
interest should have been considered by the district court.
The rules of professional responsibility that prohibit an attorney from representing differing
interests are designed to protect the client from the attorney’s potential abuses. It would appear
to us that the purpose of such rules would be best furthered if an attorney discovering a conflict
of interest took no action that may be inimical to the client’s interests. The existence of a
conflict, if not actually tolling the time period for answering discovery requests, should at least
be a factor when evaluating the reasons for an untimely response.
In the instant case, Falstaff first filed the motion to disqualify McClellan and then filed the
request for admissions barely two weeks later. Falstaff could not expect Gutting to answer the
request during the pendency of the motion to disqualify her attorney. Indeed, once McClellan

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agreed to withdraw, Falstaff agreed to wait for a response until a new attorney had entered an
appearance and had an opportunity to review the file. Wilson entered an appearance on
December 11, 1981; his appearance was formally accepted on December 17. Sanders, counsel
for Falstaff, concedes that he advised Wilson the extension of time for a response was good for
a reasonable period of time. In early January 1982 Sanders and Wilson again informally agreed
that the time for answering the requests could be extended a little while longer. Falstaff admits
that it would have accepted the answers through the end of January and perhaps during the first
few days of February. In the affidavit of Wilson, he swears that he discovered a possible conflict
of interest on January 30, 1982, as he was preparing responses to the discovery requests. He
notified Sanders of the conflict of interest on February 6 and requested leave to withdraw on
February 8. At the time Wilson discovered the existence of the conflict, Falstaff concedes that
answers to the request still would have been accepted. It was sometime after January 30 that
Falstaff began to consider the matters in the request admitted.
Falstaff contends that regardless of Wilson’s conflict of interest he could have responded to the
request for admissions. Wilson’s conflict related only to certain upcoming depositions and did
not affect his ability to answer the request. We disagree. As we read the conflict-of-interest
1`rules, any actions taken by Wilson may have appeared to be inimical to Gutting's interests.
Wilson could not have responded to the request as long as he was hindered by a conflict of
interest in any aspect of his representation.46
We do not mean to imply disapproval of the district court's use of discovery sanctions in
appropriate cases. An attorney’s conflict of interest and his or her resulting inability to act must
be distinguished from the situation in which the attorney’s failure to act was inexcusable. In Mrs.
Gutting’s case it would be inequitable to deem the requests admitted and penalize her because
of her attorney’s compliance with the rules of professional responsibility.
We reverse the judgment of the district court and remand for further proceedings with directions
that the district court set a reasonable time period in which to allow Gutting to file answers to the
request for admissions.
Questions:
1. What is the purpose of the conflict of interest rules? Who are they intended to protect?
Who do they actually protect?
2. Should Gutting’s attorneys have been disqualified? What if she consented to the
conflict?
Further Listening:
46

We do not know why it took Wilson one week to inform Sanders of the conflict and another three weeks
to withdraw formally from the case and have Mr. Dempsey enter his appearance. Falstaff complains of
this time lag because it was required to cancel several depositions. Given the pending deposition
schedule and trial setting, an expeditious substitution of counsel would have been appropriate.
Nevertheless, our analysis of the conflict-of-interest problem remains the same.

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●

Jill I. Gross, Professional Responsibility: Client Conflicts of Interest, Law to Fact: The
Law School Podcast (March 19, 2019).

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231
4.2: Resolving Conflicts of Interest
I saw the future in a dream last night. Somebody’s gonna get hurt, somebody’s gonna get hurt. I
hope it’s not me, but I suspect it’s going to have to be.47
While conflicts of interest implicate the duty of loyalty, they do not necessarily preclude
representation or require withdrawal from representation. Some conflicts of interest cannot be
resolved. For example, an attorney cannot represent both the plaintiff and the defendant in an
action, and typically cannot represent any parties with actual or potential claims against each
other. But many conflicts of interest can be resolved, if the attorney can represent the client
without breaching the duty of loyalty, and the client provides informed consent to representation
despite the conflict.
Waiver of Conflicts of Interest
In order to resolve a conflict of interest problem, attorneys should apply the four-step process
outlined in Model Rule 1.7, comment [2]:
1. clearly identify the client or clients;
2. determine whether a conflict of interest exists;
3. decide whether the representation may be undertaken despite the existence of a conflict,
i.e., whether the conflict is consentable; and
4. if so, consult with the clients affected and obtain their informed consent, confirmed in
writing.
This process provides a framework for identifying, evaluating, and resolving conflicts of interest.
Essentially, it requires an attorney to ask: 1) whether an attorney-client relationship exists; 2)
whether the attorney’s legal duties to a client conflict with the interests of the attorney, another
current or former client, or a third-party to whom the lawyer owes a legal duty; 3) whether
representation is legally permissible and practically possible under the circumstances; and 4)
whether the client is adequately informed of the nature and potential consequences of the
conflict, and has consented to representation in writing, despite the conflict. However, each of
those steps requires an exercise of judgment on the part of the attorney.
Identifying Clients
A “client” is any party with whom an attorney has an attorney-client relationship of any kind. The
conflict of interest rules apply to both clients and quasi-clients. As a consequence, a party may
be a client for the purpose of the conflict of interest rules even if the attorney did not intend to
form an attorney-client relationship. For example, a party that disclosed confidential information
to an attorney in the course of seeking representation may be a client for the purpose of the
conflict of interest rules, even if the party never hired the attorney. The agents or employees of a
47

The Mountain Goats, Black Pear Tree (2008).

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client organization may be clients, if they reasonably believe the attorney has agreed to
represent them personally or have provided confidential information pertaining to their own
circumstances. And a subsidiary of a client organization may also be a client, if the attorney
effectively represents the subsidiary as well as the parent.
Identifying Conflicts of Interest
A “conflict of interest” exists if an attorney’s fiduciary duties to a client conflict with the interests
of the attorney, another current or former client, or a third-party to whom the attorney owes a
legal duty. In other words, if the interests of the attorney, another current or former client, or
third-party could provide an incentive for the attorney not to observe those legal duties to the
client, then a conflict of interest exists. If the attorney could benefit from putting another interest
ahead of the client’s interests, providing less than candid and impartial advice, or using
confidential information provided by the client, then a conflict of interest exists, whether or not
the attorney ever has or would violate the fiduciary duties of loyalty, impartiality, and
confidentiality.
Notably, a conflict of interest does not require actual harm to the client, only potential harm.
There is no such thing as a “potential conflict of interest.” A conflict of interest exists as soon as
the potential for harm is created, whether or not the harm ever materializes. The risk of harm to
the client’s interests creates the conflict of interest, so the question is not whether a conflict
exists, but how serious a conflict it presents. In some cases, the risk of harm may be too small
to create a meaningful conflict, or an attorney’s legal duties may themselves prevent the conflict
from arising. But the conflict still exists, it simply is not a material conflict that requires an
attorney to decline or withdraw from representation.
The paradigmatic conflict of interest exists when an attorney represents directly adverse parties,
or one client litigating a claim against another. Notably, a conflict of interest exists whenever
clients are directly adverse in any action, even if the attorney represents neither client in that
action. Of course, co-defendants and co-plaintiffs may be directly adverse, because crossclaims and third-party claims create direct adversity. And potential claims may also create direct
adversity, even if they are never filed. Accordingly, attorneys should be wary whenever they
represent clients on the opposite sides of any transaction. Any potential adversity may create a
conflict of interest.
Of course, a conflict of interest may exist without direct adversity. If an attorney represents two
clients with opposing interests, it may “materially limit” the attorney’s ability to represent both
clients, because it may create an incentive for the attorney to compromise those interests. If
dual representation could affect the attorney’s decisions, then a conflict of interest exists.
Conflicts of interest can arise unexpectedly, as a client’s interests may change over time.
Accordingly, a conflicts analysis can never be a “one and done” practice. Attorneys must always
be vigilant to identify and resolve conflicts of interest whenever they arise.

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However, a conflict of interest may or may not be material. A conflict of interest is material if it
creates a substantial risk of providing an incentive for an attorney to violate a fiduciary duty to a
client. But by extension, a conflict of interest is no material if it does not create such a risk.
Attorneys must obtain the informed consent of their client in order to resolve a material conflict
of interest. But attorneys need not obtain informed consent in order to resolve an immaterial
conflict of interest, because no actual conflict exists. Of course, it can be difficult to determine
whether a conflict is material, and immaterial conflicts have an unfortunate tendency to become
material.
Waivable Conflicts of Interest
If a material conflict of interest exists, then the attorney must determine whether it is waivable.
Some conflicts are waivable, but others are not. Specifically, a conflict is waivable only if it does
not make representation prohibited or impossible under the circumstances. For example, some
attorneys, typically former government employees, are prohibited by law from representing
certain clients, so that is a conflict of interest that cannot be waived. Likewise, courts have
uniformly held that attorneys cannot represent parties to an action with claims against each
other, so that is also a conflict of interest that cannot be waived. However, many courts have
held that attorneys can represent directly adverse clients, so long as the attorney does not
represent both clients in the same matter, and both clients provide informed consent, so that is
a conflict of interest that may be waived.
Informed Consent
If a waivable conflict of interest exists, then the attorney must obtain informed consent to the
conflict from the client or clients. For example, if an attorney’s interests conflict with a client’s
interests, then the attorney must obtain informed consent from the client. If a client’s interests
conflict with another client’s interests, then the attorney must obtain informed consent from both
clients. And if a client’s interests conflict with a third party’s interests, then the attorney must
obtain informed consent from the client.
Sometimes, obtaining informed consent is easy. For example, a formal conflict of interest may
not create a real conflict of interest, and the client may readily consent. Indeed, some clients
may even see some formal conflicts of interest as advantages, rather than liabilities. One
person’s “conflict of interest” may be another person’s “investment in the outcome.”
But other times, obtaining informed consent may be difficult or impossible. A former client may
well resent their former attorney representing an adversary and withhold consent. And a quasiclient may be even more likely to harbor misgivings. In those circumstances, even a relatively
trivial conflict of interest may become an insuperable barrier to representation.
Rule 1.7: Conflict of Interest: Current Clients

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a. Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
1. the representation of one client will be directly adverse to another client; or
2. there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
b. Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
1. the lawyer reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client;
2. the representation is not prohibited by law;
3. the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
4. each affected client gives informed consent, confirmed in writing.
Restatement (Third) of the Law Governing Lawyers § 122: Client Consent to a Conflict of
Interest
1. A lawyer may represent a client notwithstanding a conflict of interest prohibited by § 121
if each affected client or former client gives informed consent to the lawyer's
representation. Informed consent requires that the client or former client have
reasonably adequate information about the material risks of such representation to that
client or former client.
2. Notwithstanding the informed consent of each affected client or former client, a lawyer
may not represent a client if:
a. the representation is prohibited by law;
b. one client will assert a claim against the other in the same litigation; or
c. in the circumstances, it is not reasonably likely that the lawyer will be able to
provide adequate representation to one or more of the clients.
Obtaining Informed Consent to a Conflict of Interest
An attorney may represent a client despite a conflict of interest only if the attorney obtains
informed consent to the conflict from the client, ideally in writing. In order to obtain informed
consent, the attorney must provide the client with adequate disclosure of the conflict.
Specifically, the attorney must disclose any and all competing interests that could create a
conflict. And the attorney must explain the nature of every conflict and how they could affect the
attorney’s representation of the client, including the attorney’s fiduciary duties of loyalty,
impartiality, and confidentiality. In addition, attorneys should, and often must, obtain informed
consent to any conflicts before commencing representation, and typically cannot obtain valid
informed consent when terminating representation.

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Restatement (Third) of the Law Governing Lawyers § 122(c)(i): The Requirement of
Informed Consent—Adequate Information
Informed consent requires that each affected client be aware of the material respects in
which the representation could have adverse effects on the interests of that client. The
information required depends on the nature of the conflict and the nature of the risks of
the conflicted representation. The client must be aware of information reasonably
adequate to make an informed decision.
Information relevant to particular kinds of conflicts is considered in several of the
Sections hereafter. In a multiple-client situation, the information normally should address
the interests of the lawyer and other client giving rise to the conflict; contingent, optional,
and tactical considerations and alternative courses of action that would be foreclosed or
made less readily available by the conflict; the effect of the representation or the process
of obtaining other clients' informed consent upon confidential information of the client;
any material reservations that a disinterested lawyer might reasonably harbor about the
arrangement if such a lawyer were representing only the client being advised; and the
consequences and effects of a future withdrawal of consent by any client, including, if
relevant, the fact that the lawyer would withdraw from representing all clients. Where the
conflict arises solely because a proposed representation will be adverse to an existing
client in an unrelated matter, knowledge of the general nature and scope of the work
being performed for each client normally suffices to enable the clients to decide whether
or not to consent.
When the consent relates to a former-client conflict, it is necessary that the former client
be aware that the consent will allow the former lawyer to proceed adversely to the former
client. Beyond that, the former client must have adequate information about the
implications (if not readily apparent) of the adverse representation, the fact that the
lawyer possesses the former client's confidential information, the measures that the
former lawyer might undertake to protect against unwarranted disclosures, and the right
of the former client to refuse consent. The former client will often be independently
represented by counsel. If so, communication with the former client ordinarily must be
through successor counsel.
The lawyer is responsible for assuring that each client has the necessary information. A
lawyer who does not personally inform the client assumes the risk that the client is
inadequately informed and that the consent is invalid. A lawyer's failure to inform the
clients might also bear on the motives and good faith of the lawyer. On the other hand,
clients differ as to their sophistication and experience, and situations differ in terms of
their complexity and the subtlety of the conflicts presented. The requirements of this
Section are satisfied if the client already knows the necessary information or learns it
from other sources. A client independently represented—for example by inside legal
counsel or by other outside counsel—will need less information about the consequences
of a conflict but nevertheless may have need of information adequate to reveal its scope

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and severity. When several lawyers represent the same client, responsibility to make
disclosure and obtain informed consent may be delegated to one or more of the lawyers
who appears reasonably capable of providing adequate information.
Disclosing information about one client or prospective client to another is precluded if
information necessary to be conveyed is confidential. The affected clients may consent
to disclosure, but it also might be possible for the lawyer to explain the nature of
undisclosed information in a manner that nonetheless provides an adequate basis for
informed consent. If means of adequate disclosure are unavailable, consent to the
conflict may not be obtained.
The requirement of consent generally requires an affirmative response by each client.
Ambiguities in a client's purported expression of consent should be construed against
the lawyer seeking the protection of the consent. In general, a lawyer may not assume
consent from a client's silent acquiescence. However, consent may be inferred from
active participation in a representation by a client who has reasonably adequate
information about the material risks of the representation after a lawyer's request for
consent. Even in the absence of consent, a tribunal applying remedies such as
disqualification will apply concepts of estoppel and waiver when an objecting party has
either induced reasonable reliance on the absence of objection or delayed an
unreasonable period of time in making objection.
Effective client consent to one conflict is not necessarily effective with respect to other
conflicts or other matters. A client's informed consent to simultaneous representation of
another client in the same matter despite a conflict of interest does not constitute
consent to the lawyer's later representation of the other client in a manner that would
violate the former-client conflict rule.
NuStar Farms, LLC v. Zylstra, 880 N.W.2d 478 (Iowa 2016)
Summary: Between 2002 and 2014, attorney Larry Stoller represented Robert and
Marcia Zylstra in several different matters. In 2007, Stoller and the Zylstras discussed a
manure easement agreement with NuStar Farms. In 2014, Stoller began representing
NuStar, which had a dispute with the Zylstras over a deed. Soon afterward, Stoller
ended his representation of the Zylstras and filed an action against them for NuStar. The
Zylstras retained attorney John Sandy, who filed a motion to disqualify Stoller. The trial
court denied the motion, but the Iowa Supreme Court reversed, holding that Stoller had
a conflict of interest and the Zylstras did not consent.
ZAGER, Justice.
In this interlocutory appeal, we are asked to decide whether an attorney should be disqualified
from representing one party in a lawsuit, either because his representation of the two parties
was concurrent or because he had previously represented the opposing party in a similar

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matter. The district court concluded that the attorney need not be disqualified. For the reasons
stated below, we conclude that the district court did not abuse its discretion in concluding that
the prior attorney-client relationship failed the "substantial relationship" test. However, we
conclude that the attorney did have a concurrent conflict of interest. Therefore, we find the
district court abused its discretion in not disqualifying the attorney.
Background Facts and Proceedings.
Attorney Larry Stoller began representing Robert and Marcia Zylstra in 2002. Stoller
represented them in a number of legal matters between 2002 and 2014, including financial
issues, business acquisitions, and real estate transactions. Although the Zylstras were
represented by Stoller on a number of occasions, they also used the services of other attorneys
throughout this time period. At issue for the purposes of this case are a meeting in January
2007 and a small claims case ending in 2014.
On January 24, 2007, Robert met with Stoller to discuss estate planning and manure easement
agreements. At the time of the meeting, the Zylstras were shareholders in Sibley Dairy, LLP.
During this meeting, Robert showed Stoller a multipage document containing multiple manure
easement agreements that the Zylstras intended to enter into with NuStar Farms, LLC. The
parties disagree as to the extent of Stoller's involvement during this meeting regarding the
manure easement agreements. Stoller asserts that he only briefly glanced at the easement
agreements and then advised Robert that he should seek the advice of another attorney.
Although Stoller acknowledges he made notations on the first page of the document, he argues
that the notations do not indicate he read the entirety of the multipage manure easement
agreements. Robert asserts that he asked Stoller to review the manure easement agreements
and provide advice. Robert further alleges that Stoller examined the agreements during the
meeting and advised him to go ahead and complete and sign them.
The record reflects that Stoller made notations on the documents. However, Stoller claims the
notations were made at Robert's request to help Robert remember what to discuss with one of
the attorneys that Stoller suggested Robert contact. Both parties agree that Stoller suggested
Robert find an attorney with more experience in the area of manure easements. Stoller sent a
follow-up email to Robert with two attorney references who he thought could assist the Zylstras
with the easements. The email also confirmed that Robert asked Stoller to look at the
easements and that Stoller "briefly looked at them." Further, Stoller wrote, "The changes you
were talking about should be run by the other attorney and I suggest that if approved they be
included in the easements. I would also think that some permit would be necessary." The record
also reflects that during this conference they discussed estate planning matters. This is
confirmed in the follow-up email and Stoller's office notes of the conference. Stoller billed the
Zylstras for 1.20 hours and described the meeting as, "Conference with Robert on manure
easement; review easements and agreement." There is nothing in the record to indicate that
Stoller represented the Zylstras when they executed the manure easement agreements with
NuStar or that he had any further involvement in the sale of Sibley Dairy.

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Stoller continued to represent the Zylstras in a number of other legal matters between 2007 and
2014. In December 2013, Stoller began representing the Zylstras in a small claims matter. The
case was submitted to the small claims court on February 10, 2014, but the court did not issue
its ruling until May 30. Stoller began representing NuStar in early May in an action regarding
loan covenants. Also in early May, Stoller began contacting the Zylstras on behalf of NuStar. At
least part of these contacts involved the Zylstras' failure to provide NuStar with a deed to
property involving ingress. Stoller acknowledges that he contacted Robert about the Zylstras’
need to sign the deed. On May 13, Stoller sent the Zylstras an email that stated it was the third
time he had contacted them about the deed to ingress property sold by the Zylstras to NuStar.
Stoller wrote in the email,
I must now put you on formal notice that if the signed deed is not received by my office
by the close of business on Wednesday, May 14, 2014, that I will need to pursue the
appropriate remedies for specific performance and damages on behalf of Nustar.
Stoller also wrote in his email, "I have tried to remain neutral in those matters and advised both
parties that I could represent neither."
In this same email, Stoller informed the Zylstras that he would no longer be representing them in
any future matters. Robert acknowledges that he understood the May 13 email as a severance
of the attorney-client relationship. Stoller emailed the Zylstras again on May 14, expressing
disappointment that the Zylstras were not going to sign the deed. Stoller also reminded Robert
of his prior financial situation and how Stoller had helped him in the past.
By May 15, the Zylstras had retained John Sandy to represent them in their dealings with
NuStar. In Sandy's correspondence to Stoller that same day, he alerted Stoller that the Zylstras
found his representation of NuStar to be a conflict of interest based on his prior legal
representation and counsel provided to the Zylstras. Sandy specifically requested that Stoller
cease further representation of NuStar when those interests conflicted with the Zylstras.
On June 5, Stoller sent the Zylstras a letter notifying them of the judge's ruling in the small
claims case and informing them that he believed the decision was appealable. Stoller further
notified the Zylstras of their rights to appeal and the deadlines associated with such an appeal.
Stoller wrote he would be willing to file an appeal on their behalf and included information about
his retainer and billing rate. Stoller also advised the Zylstras that if they chose to have another
attorney represent them on the appeal he would release their file to that attorney.
On July 9, Stoller filed a multicount petition on behalf of NuStar against the Zylstras. The petition
alleged the Zylstras agreed to sell NuStar a parcel in farmland in 2008, but they failed to tender
the requisite deed. One count of the petition also alleged the Zylstras did not abide by certain
terms contained in the manure easement agreements. In response, the Zylstras filed a
preanswer motion to dismiss based on statute of limitations grounds. They also filed a motion
seeking to disqualify Stoller as the attorney for NuStar based on a conflict of interest.

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On August 8, the district court held a hearing, and the parties argued both the motion to dismiss
and the motion to disqualify Stoller. On October 14, the district court denied both motions. On
November 10, the Zylstras filed an application for interlocutory appeal seeking review of the
district court's denial of their motion to disqualify Stoller. We granted the application for
interlocutory appeal on December 5.
Analysis
The right of a party to choose his or her own attorney is important, but it must be balanced
against the need to maintain "the highest ethical standards" that will preserve the public's trust
in the bar and in the integrity of the court system. A court must necessarily balance these two
competing interests when determining whether to disqualify an attorney. In doing so, the court
“must also be vigilant to thwart any misuse of a motion to disqualify for strategic reasons.” When
we evaluate motions to disqualify an attorney, we use our Iowa Rules of Professional Conduct
as the starting point.
Rule 32:1.7 covers concurrent conflicts of interest and states in pertinent part,
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client, or a third person
by a personal interest of the lawyer.
The rule goes on to state that a lawyer may continue with the representation of a client if certain
stipulations are met, one of which is that each client gives informed, written consent.
The Zylstras allege that Stoller's representation of NuStar was a concurrent conflict of interest
with his representation of them. They argue that he began the action on behalf of NuStar in
early May, while knowing that the representation would be adverse to the Zylstras because it
involved a deed between the two parties. Further, Stoller began contacting the Zylstras on
behalf of NuStar before the May 13 email officially terminating his attorney-client relationship
with the Zylstras on the small claims case. Stoller responds that there was no concurrent conflict
of interest because he did not file the action on behalf of NuStar against the Zylstras until after
the May 13 email terminating the attorney-client relationship. In the alternative, the Zylstras
argue that Stoller's June 5 email indicates that he was continuing to represent them in the small
claims matter until the court issued its ruling. Even thereafter, Stoller advised the Zylstras there
was a basis to appeal the judgment, the time for perfecting such an appeal, and his willingness
to continue representing them in the appeal. Stoller contends that it was his duty to inform the
Zylstras, as his former clients, of the outcome of the small claims hearing and the time limits for
appeal. He further contends that, although he said he would be willing to represent the Zylstras

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on the appeal, he was also recommending they find alternate representation and thus was only
informing them of their options if they chose to go forward with an appeal.
Before we turn to an analysis of whether a concurrent conflict of interest exists, we must
address two questions: when the attorney-client relationship between the Zylstras and Stoller
ended, and when the attorney-client relationship between NuStar and Stoller began. The first
question we may dispose of easily. Generally, a lawyer's representation of a client extends until
the time period for motions or appeals expires in a civil action. However, both the attorney and
the client may terminate the relationship prior to this natural ending. Both Stoller and the
Zylstras agree that the attorney-client relationship was terminated with the May 13 email.
Further, while Stoller did offer to represent the Zylstras on the appeal, the Zylstras did not
actually appeal the small claims case and did not solicit Stoller's services on any other legal
matters. We find that the attorney-client relationship between Stoller and the Zylstras ended with
the May 13 email.
The next question we must address is when the attorney-client relationship between Stoller and
NuStar began. The attorney-client relationship is governed by general contract principles. It may
be either express, such as when representation is based on a written agreement, or implied by
the conduct of the parties. There are three elements that must be met to find that an attorneyclient relationship has been established:
(1) a person sought advice or assistance from an attorney, (2) the advice or assistance
sought pertained to matters within the attorney's professional competence, and (3) the
attorney expressly or impliedly agreed to give or actually gave the desired advice or
assistance.
The relationship between Stoller and NuStar clearly meets this test. NuStar sought advice from
Stoller at least beginning in early May about the action that required a deed from the Zylstras.
The advice they sought from Stoller pertained to matters within his professional ability. Stoller
has practiced law for a number of years and across a number of areas. Last, Stoller both agreed
to give and actually gave NuStar advice and assistance. On NuStar's behalf, Stoller began
contacting the Zylstras regarding the deed that NuStar was demanding. We find that the
attorney-client relationship between NuStar and Stoller began, at the latest, in early May. This is
also confirmed by Stoller's correspondence with the Zylstras on May 13 in which he asserts that
it was the third time he had contacted them in regard to the deed. We now turn to a discussion
of whether this attorney-client relationship involved a concurrent conflict of interest that violates
rule 32:1.7.
There are two ways for a concurrent conflict of interest to exist under rule 32:1.7. The first is if
“the representation of one client will be directly adverse to another client.” The second is if
“there is a significant risk that the representation will be materially limited by the lawyer’s
responsibilities to another client, a former client, or a third person.” We may find a concurrent
conflict of interest under either situation.

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We have acknowledged that rule 32:1.7(a) “applies where directly adverse representation will
take place, as when one current client is about to file suit against another current client.” The
comments to the rule expand on what a “directly adverse” action may be:
Loyalty to a current client prohibits undertaking representation directly adverse to that
client without that client's informed consent. Thus, absent consent, a lawyer may not act
as an advocate in one matter against a person the lawyer represents in some other
matter, even when the matters are wholly unrelated.
Stoller acknowledged in a letter to the Iowa Supreme Court Attorney Disciplinary Board that he
began the representation of NuStar in early May and that the Zylstras were aware of his
representation of NuStar. It is unclear from the record at what point Stoller realized the action
would include the deed that NuStar wanted the Zylstras to sign. However, by the time Stoller
sent the May 13 email, he was already contemplating taking action against the Zylstras on
behalf of NuStar. The email stated,
I must now put you on formal notice that if the signed deed is not received by my office
by the close of business on Wednesday, May 14, 2014, that I will need to pursue the
appropriate remedies for specific performance and damages on behalf of Nustar.
In this email, Stoller clearly demonstrates the intent to pursue a future, adverse action against
the Zylstras on behalf of NuStar. Although Stoller terminated the attorney-client relationship with
the Zylstras in the same email, the intent to pursue legal action unless the Zylstras complied
with NuStar's request to sign the deed arose before the email was sent — which is precisely
why the demand or “formal notice” language is included. We find that Stoller's representation of
NuStar was a directly adverse concurrent conflict of interest. Because Stoller did not properly
obtain consent from the Zylstras to represent NuStar, his actions fall squarely within the
guidance of the comments that “absent consent, a lawyer may not act as an advocate in one
matter against a person the lawyer represents in some other matter, even when the matters are
wholly unrelated.” Thus, we find Stoller should be disqualified from representing NuStar in the
action against the Zylstras. Because the district court applied the law in error, we find that it
abused its discretion in concluding that Stoller should not be disqualified.
Rule 32:1.9(a) — Duties to Former Clients
Stoller argues that, even though there was a concurrent conflict of interest in the past, the
conflict no longer exists because he severed the attorney-client relationship, and therefore he
can continue to represent NuStar in the current action against the Zylstras. Rule 32:1.9(a)
concerns a lawyer's duties to former clients. In pertinent part, it provides,
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.

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The comments expand on what makes a matter “substantially related” for purposes of the rule.
A matter is substantially related if it involves the same transaction or legal dispute. If there 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,”
then the matter is substantially related.
We consider three factors when we determine whether a substantial relationship exists:
(1) the nature and scope of the prior representation; (2) the nature of the present lawsuit;
and (3) whether the client might have disclosed a confidence to his or her attorney in the
prior representation which could be relevant to the present action.
Under the first factor, we must consider the scope — if any — of Stoller's representation of the
Zylstras in regard to the manure easement agreements. There is no question that Stoller and
Robert met to discuss the agreements and that Stoller was aware the Zylstras intended to enter
into the agreements with NuStar. During the meeting, Robert showed Stoller the easement
agreements. Stoller acknowledges that he looked at the first page and made some notations,
though he contends the notations were made at Robert's request so Robert would know what
he needed to discuss with another attorney. Stoller further claims that he did not read the
entirety of the agreements. During the meeting, Stoller advised Robert to find another attorney
to help him with the agreements because it was not an area of the law Stoller was familiar with.
He gave Robert the names of two attorneys to contact.
Stoller sent an email to Robert following the meeting that summarized their discussion about the
easement agreements. The email stated that Robert asked Stoller to look at the easements and
that he “briefly looked at them.” Stoller also wrote, “The changes you were talking about should
be run by the other attorney and I suggest that if approved they be included in the easements. I
would also think that some permit would be necessary.” This reflects at least some level of
advice given to Robert by Stoller. However, this is in stark contrast to our previous cases where
we have found an attorney was extensively involved in prior representation.
In Doe, we found an attorney was highly involved in a client's prior representation when he had
met with the clients, had telephone conversations with the clients, appeared as their attorney,
and signed pleadings on their behalf. In Marks, we found that the attorney violated rule 32:1.9(a)
when he represented a client in a foreclosure action and later represented his own wife in the
sale of property to that same former client. We found that the attorney's representation of the
client and his wife were substantially related because he had obtained information about the
client's property during the foreclosure action. In comparison to our prior cases, we cannot say
that the scope of Stoller's representation of the Zylstras regarding the manure easement
agreements was in any way significant.
The second factor we consider is the nature of the present lawsuit between the Zylstras and
NuStar. In the original petition that Stoller filed on behalf of NuStar, he included six counts. All of

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the counts except one deal with a real estate contract between NuStar and the Zylstras. Stoller
did not participate in the real estate contract on behalf of the Zylstras. Count IV alleges a breach
of the manure easement agreements between NuStar and the Zylstras. Although the majority of
the counts do not relate to the manure easement agreements that Stoller had knowledge of, at
least one part of the current lawsuit does relate to the prior scope of Stoller's representation.
The final factor we consider is “whether the client might have disclosed a confidence to his or
her attorney in the prior representation which could be relevant to the present action.” The
meeting between Robert and Stoller to discuss the manure easement agreements was brief.
The parties only superficially discussed the substance of the agreements and Stoller specifically
suggested that Robert seek other competent agricultural law counsel to review the agreements
before signing them. The email from Stoller does note that the two discussed whether permits
were required or whether Robert should change anything in the agreements. However, nothing
from this meeting indicates that Robert disclosed anything in confidence about the agreements
to Stoller that would affect the current lawsuit between the Zylstras and NuStar.
We do not find that a substantial relationship exists sufficient to disqualify Stoller under rule
32:1.9(a). We therefore find that the district court did not abuse its discretion in holding that
Stoller could not be disqualified under the substantial relationship test.
Conclusion
We find that the district court did not abuse its discretion in concluding that any prior relationship
between Stoller and Zylstra in regard to the manure easement agreements failed the substantial
relationship test. However, we find that Stoller did have a concurrent conflict of interest.
Therefore, we conclude that the district court abused its discretion in not disqualifying Stoller
from representing NuStar in the action. On remand, the district court should enter an order
disqualifying Stoller from further representation of NuStar in this lawsuit.
Questions:
1. Why did the court hold that a conflict of interest prevented Stoller from representing
NuStar in this action? Do you think that a substantial conflict of interest existed?
2. Why didn’t the Zylstras want Stoller to represent NuStar in the action against them?

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4.3: Breach of the Duty of Loyalty
Don't look so surprised. You've been telling me lies. True confessions.48
Your depths made a pressure that punctured my works and all your fluids couldn't tolerate the
force of my thirst. I love the place where we shared our tiny grace, but just because it’s real
don't mean it’s gonna work.49
Attorneys have a fiduciary duty of loyalty to their clients. And attorneys who breach that duty of
loyalty may be liable for malpractice. Typically, attorneys breach their duty of loyalty by ignoring
or concealing a conflict of interest. A conflict of interest reflects an incentive to breach the duty
of loyalty. And attorneys who act on that incentive have probably committed malpractice.
The Scope of the Duty of Loyalty
While attorneys owe their clients both a duty of care and a duty of loyalty, the duties are not the
same. The duty of care requires reasonable care under the circumstances, but the duty of
loyalty is an absolute duty. In other words, attorneys must always be vigilant for conflicts of
interest. And if a conflict arises, attorneys must either resolve the conflict or withdraw from
representation.
Moguls of Aspen, Inc. v. Faegre & Benson, 956 P. 2d 618 (Colo. App. 1997)
Summary: While representing Moguls of Aspen in a dispute with its landlord, Faegre &
Benson provided inaccurate legal advice, which caused Moguls of Aspen to lose its
lease and go out of business. Moguls of Aspen sued Faegre & Benson for malpractice,
but the trial court refused to instruct the jury on its claim for breach of the duty of loyalty,
finding that the facts did not support the claim. The court of appeals affirmed, finding that
Moguls of Aspen presented evidence of negligence, but did not present evidence of a
conflict of interest.
Opinion by Judge CRISWELL.
Plaintiffs, Moguls of Aspen, Inc. (MOA) and Mogul Shop, Inc. (MSI), appeal from the judgment
entered upon a jury verdict in favor of defendants, Faegre & Benson, a law firm, and Christian
Onsager, one of its members. We affirm.
Plaintiffs are two corporations wholly owned by Nancy Snell. MOA leased commercial space
and subleased it to MSI, which operated a retail ski apparel shop on the premises.

48
49

The Undertones, True Confessions (1979).
The Blow, True Affection, Paper Television (2006).

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Plaintiffs first contacted the defendant law firm as a result of a dispute between them and the
lessor of the commercial space concerning the amount of rent owed. After receiving notice from
the lessor that they were in default on their lease, plaintiffs’ real estate attorney contacted the
law firm to discuss the possibility of filing a Chapter 11 bankruptcy petition.
A meeting was held with two attorneys of the law firm on June 25, 1991. Plaintiffs brought both
the written lease and the lessor's notice of default to the meeting. At trial, their evidence sought
to establish that an attorney-client relationship was established at this meeting. According to
plaintiffs, while the plain language of the lease stated that the lessor could terminate the lease
ten days after serving the notice of default, defendants did not advise them of this fact, nor did
they disclose the legal effect of taking no immediate action to preserve the lease.
Plaintiffs asserted that, after this initial meeting, defendants performed no further work on
plaintiffs’ behalf until August 7, 1991. At trial, plaintiff’s experts testified that these acts and
omissions by defendants constituted professional negligence, as well as breaches of their
fiduciary duties to act with “due diligence” and “in the client's best interest.”
On August 7, 1991, after the lessor had served a demand for payment or possession on them,
plaintiffs again contacted one of the attorneys who had been present at the June 25, 1991,
meeting. This attorney told plaintiffs that he was too busy to handle the matter, and he referred it
to defendant Onsager. Onsager informed plaintiffs that the lessor could not obtain possession of
the premises unless an additional three-day notice was served upon them. This advice was
admittedly inaccurate.
On August 22, 1991, the lessor terminated plaintiffs’ lease. As a result, plaintiffs ceased doing
business.
The original complaint in this case was filed a few days before the statute of limitations expired.
At that time, because MSI, the owner of the business, was subject to a Chapter 7 bankruptcy
proceeding and its trustee had elected not to pursue a legal malpractice claim against
defendants, MSI was not made a party to the action. Nancy Snell was an original plaintiff.
However, before trial, the trial court dismissed all of Snell's individual claims, concluding that
there was no evidence to support a reasonable inference that Snell, the individual, as
distinguished from the two wholly-owned corporations, had an attorney-client relationship with
defendants.
Nevertheless, the court allowed the complaint to be amended to add MSI as a plaintiff. It also
concluded that, because the claims that Snell had attempted to state were substantially the
same as the claims now asserted by MSI, the latter claims would relate back to the date that
Snell filed the initial complaint. Hence, it held that MSI's claim was not time-barred.
During the course of the later trial, the court submitted the claim of professional malpractice to
the jury. It refused, however, to instruct upon any separate claim based upon an alleged

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violation of fiduciary duty. The jury rejected the claim submitted to it, and the court entered
judgment upon that verdict.
MOA and MSI appeal from that judgment, asserting that the court erred in refusing to instruct
the jurors with respect to their claim that defendants had violated certain fiduciary duties that
defendants owed to them. We disagree.
The court here instructed the jurors upon the alleged professional malpractice of defendants
consistent with the standard instruction. In accordance with this instruction, the jurors were
required to determine whether defendants acted in a reasonably prudent manner, as measured
against the acts or omissions of a reasonably careful attorney under the same or similar
circumstances.
Plaintiffs tendered an instruction which set forth the elements of a claim based upon the
violation of a fiduciary duty. In addition, they tendered an instruction describing the fiduciary
duties that plaintiffs asserted defendants had violated. This instruction would have told the jurors
that defendants owed the following duties to plaintiffs (none of the terms of which were further
defined or described):
A duty to their client to employ that degree of knowledge, skill and judgment ordinarily
possessed by members of the legal profession in carrying out the services for their
client.
A duty to their client to act with due diligence in the affairs of their client.
A duty to their client to provide accurate information to their client regarding the status of
legal matters intrusted to them.
A duty to their client of undivided loyalty and should exercise independent judgment on
behalf of their client.
A duty to their client to the highest degree of fairness and good faith.
A duty to their client of full disclosure.
The trial court, however, determined that the evidence would support no claim beyond one
based upon defendants’ alleged negligence and lack of due diligence, the claim for which was
adequately covered in the other elemental instruction. Hence, it refused to instruct the jurors as
plaintiffs requested. We conclude that such refusal was proper.
Plaintiffs assert that each of the duties described in their tendered instructions was violated
because: (1) plaintiffs were not advised at the initial meeting as to the procedure pursuant to
which the lease could be terminated or the effect of such termination upon the effectiveness of
any later bankruptcy proceedings; (2) defendants failed adequately to investigate plaintiffs’
circumstances and failed to formulate a plan of action on their behalves from the initial meeting
until plaintiffs contacted defendants again in August; and (3) on this latter date, the attorney who
initially consulted with plaintiffs asserted that he was too busy with other matters to provide any
further services and referred them to defendant Onsager.

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All of these allegations, while serious, do not implicate defendants actions except in a
negligence or malpractice context. There is no allegation or evidence that defendants’ acts or
omissions, if any, resulted from an improper motive, a conflict of interest, or any other
consideration beyond carelessness and lack of attention.
Under such circumstances, other courts have concluded that a claim for breach of a fiduciary
duty is duplicative of a claim for professional malpractice and that only the latter claim should be
the subject of adjudication. As stated in Calhoun v. Rane:
A fiduciary relationship exists as a matter of law between an attorney and his client.
Thus, in effect any alleged malpractice by an attorney also evidences a simultaneous
breach of trust; however, that does not mean every cause of action for professional
negligence also sets forth a separate and independent cause of action for breach of
fiduciary duty. In the present case, we find that the client has not pleaded a cause of
action for breach of fiduciary duty distinct from the alleged malpractice case still pending
in the trial court. A duplicative count may be properly dismissed.
No Colorado appellate court has yet addressed this issue with respect to the alleged breach of a
fiduciary duty resulting from a lawyer's malpractice. There have been several instances in which
a trial court has allowed both types of claims to be passed upon by a jury. But, the question
whether, under the particular factual circumstances, the claims were duplicative was not
addressed. In Bailey v. Allstate Insurance Co., the issue presented was whether the damages
awarded under each of the two claims were duplicative, not whether the claims themselves
were separate.
Nevertheless, previous Colorado decisions with respect to claims asserted against members of
the medical profession are consistent with the analysis adopted by other courts as to claims
asserted against lawyers.
Further, each of the duties referred to in plaintiffs’ tendered instructions, insofar as the evidence
would implicate any of them, is stated in absolute terms, i.e., duty “to provide accurate
information.” Yet, where, as here, it is the attorney’s lack of due diligence and negligence that is
the basis for the claim, the duty is not an absolute one. Rather, as the court properly instructed
the jurors, the duty is to act with that care and diligence with which a reasonably careful attorney
would act under the same or similar circumstances.
We agree with plaintiffs that some duties owed by attorneys may be absolute. The duty of
“undivided loyalty” may be one. However, contrary to plaintiffs’ assertions, here, the evidence
does not implicate such a duty; the violations of duty alleged here were grounded upon the
lawyers’ alleged negligence and lack of due diligence.
We recognize that circumstances may exist in which a lawyer may be guilty both of malpractice
and of other violations of his or her fiduciary obligations. If a claimed fiduciary violation is
separate and independent from any alleged negligence, separate claims may well be properly

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asserted. This, however, is not such a case. And, the trial court properly recognized that it was
not.
Questions:
1. Why did Moguls of Aspen fail to state a claim for breach of the duty of loyalty? What
additional allegations would have stated a claim for breach of the duty of loyalty?
2. How does the duty of care differ from the duty of loyalty? Is it possible to negligently
breach the duty of loyalty?
Breach of the Duty of Loyalty
David Welch Co. v. Erskine & Tulley, 203 Cal. App. 3d 884 (Cal. App. 1988)
Summary: David Welch Company was a collection agency. In 1972, Erksine & Tulley
and Michael Carroll began providing legal representation to Welch. Among other things,
they assisted Welch in collecting debts for employee-benefit trust funds from delinquent
employers. In 1980, E&T and Welch ended their attorney-client relationship. Soon
afterward, E&T began submitting proposals to collect debts for Welch’s clients, without
Welch’s consent. Welch filed an action for breach of fiduciary duty and the trial court
found for Welch. The appeals court affirmed, holding that E&T’s duty of loyalty to Welch
required it to obtain informed consent before submitting proposals to Welch’s clients.
CHANNELL, J.
Following a court trial, defendants Erskine & Tulley (E&T) and Michael Carroll appeal from a
judgment entered against them and in favor of David Welch Co. (Welch). The trial court held
that E&T, a law corporation, and Attorney Carroll had breached their fiduciary duty towards
Welch, their former client, and had received a benefit of $350,000, which defendants were
deemed to hold in constructive trust for Welch. Defendants were ordered to disgorge that
benefit to Welch. Welch cross-appeals from that portion of the judgment providing that its
recovery shall be only from those defendants, and only in the amount of $350,000.
This controversy arises from the fact that after E&T and Welch terminated their attorney-client
relationship in December 1980, E&T gradually acquired the collection business activities
formerly performed by Welch in behalf of several employee benefit trust funds. The basic issue
in the trial court was whether, in doing so, the law firm or any of its attorneys breached a
fiduciary duty towards their former client.
I. FACTS
Welch is a licensed collection agency which, over several years, developed a highly profitable
specialty in collecting delinquent employer contributions owed to 35 or more employee-benefit
trust funds. From 1972 to 1980, E&T acted as counsel for Welch, with Attorney Carroll doing

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most of the work for them in the later years. Before undertaking the representation of Welch,
neither E&T nor Carroll had experience in collection agency work for trust funds.
The evidence was in conflict as to how defendants acquired their knowledge for conducting this
type of collection activity. Defendants presented evidence indicating that, from a legal
standpoint, it was like any other collection work, and that no specialized knowledge or expertise
was required. Welch presented evidence that the E&T attorneys were specially trained by the
owner, David Welch, on these matters; they were entrusted with complete access to information
about Welch's confidential and profitable business techniques; and they were introduced by
Welch as its attorneys to the trustees of the various trust funds. All of the information so
provided was intended by Welch to be confidential.
When collecting a debt, Welch had the trust fund assign legal title to it, with the trust fund
retaining equitable title. If its own collection efforts proved unsuccessful, Welch had E&T file suit
in Welch's name as assignee of the trust fund. Before turning a case over to its counsel, Welch
would carry out its own collection efforts, investigate the financial status of the delinquent
employer, and prepare a case file which included all of the background documents, suggestions
for handling the matter, and a draft complaint ready for filing in court.
Because collecting for trust funds was so profitable, David Welch organized his business in a
manner designed to preserve the confidentiality of its procedures. He separated the trust fund
activity from his other collection activities, used only his most trusted employees, physically
located the activity on a separate floor of his office, and took other steps to minimize
dissemination of information and to protect against someone within his firm from breaking away
and starting a competitive business.
In late 1979, the collection agency was sold, and Welch was taken over by Philip W. Coyle. In
1980, Welch stopped referring collection matters to E&T. The parties thereafter agreed to
terminate their relationship, effective after December 31, 1980. At approximately the same time,
notices were sent by Coyle to Welch's trust fund clients indicating that Welch soon would be
increasing its fees for those clients for the first time since 1968.
In mid-1981, the Sheet Metal Workers Trust severed its relationship with Welch, and transferred
its collection business to E&T. At the time, Welch viewed this as an isolated incident. During
1982 and early 1983, several more trust funds did likewise. The evidence indicates that E&T did
not solicit these particular clients, but instead responded to inquiries from each trust fund
requesting a proposal. On the other hand, there was no evidence that E&T disclosed to Welch,
its former client, that it was submitting these proposals, nor that E&T sought to secure Welch's
consent to take over these accounts. In each instance, Welch learned it had lost its account
from someone other than E&T, usually in the form of a letter from the trust fund announcing as a
fait accompli that their business was being transferred to E&T.

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By the time Welch filed its complaint against E&T in February 1983, the law firm had obtained
the collection accounts of at least 10 of Welch's former trust fund clients, with annual billings
approximating $156,715.
II. DISCUSSION
A. Breach of Fiduciary Duty
Defendants' first set of contentions relates to whether substantial evidence supports the trial
court's findings that they breached their fiduciary duty towards Welch. With respect to a cause
of action alleging breach of a fiduciary duty, the existence of the duty is a question of law. “The
relation between attorney and client is a fiduciary relation of the very highest character, and
binds the attorney to most conscientious fidelity — uberrima fides.”
There is no dispute that a fiduciary duty did exist in this case. The issue is whether defendants
breached that duty towards Welch, which is a question of fact. As in other claims of lack of
evidence, the question is “whether there is any substantial evidence contradicted or
uncontradicted which will support the finding of fact.”
Defendants’ initial contention concerning this issue is that the trial court erred in finding a breach
of fiduciary duty based on alleged violations of rules 4-101 and 5-101 of the Rules of
Professional Conduct. Before trial, defendants had successfully moved for summary judgment
as to the first cause of action, which had alleged that a violation of the rules, as a matter of law,
provided a basis for civil liability. Nevertheless, these rules, together with statutes and general
principles relating to other fiduciary relationships, all help define the duty component of the
fiduciary duty which the attorney owes to his or her client.
In their argument, defendants cite rules 4-101 and 5-101 and then proceed to argue why their
conduct neither fits within one of those rules nor otherwise constitutes a breach of a fiduciary
duty. Defendants repeatedly suggest that the trial court concluded that their “mere acceptance
of legal work from plaintiff's former clients” constituted such a breach. But more than that is
required to establish a breach, and more than that was proven.
For example, the trial court found that defendants “breached their fiduciary duty owed to plaintiff
by accepting employment adverse to plaintiff without plaintiff's informed and written consent
relating to a matter in reference to which defendants had obtained confidential information by
reason of or in the course of their employment by plaintiff.”
This finding was patterned after rule 4-101, a rule which on its face applies to former as well as
present clients. The primary purpose of that rule is to protect the confidential relationship which
exists between attorney and client. It has been said that an attorney may not “at any time use
against his former client knowledge or information acquired by virtue of the previous
relationship.” The actual use or misuse of confidential information is not determinative; it is the

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possibility of the breach of confidence which controls. This duty to protect confidential
information continues even after the formal relationship ends.
Although neither party is able to cite a case involving a fact pattern analogous to this one, rule
4-101 seems to apply literally to this case. The typical case falling within the rule arises in the
context of legal representation of a client whose interests are adverse to another client or former
client of the attorney. But "adverse" also connotes being “opposed to one's interest” or
“unfavorable.” The acquisition by an attorney of business clientele of a former client operates to
the economic advantage of the attorney and unfavorably upon the former client. Concerning
access to confidential information, David Welch testified as to his company's efforts to maintain
the confidentiality of this portion of Welch's business, including its fees schedules, its methods
of operation, and other information. Nevertheless, all of this information was shared with
defendants. Finally, defendants accepted the new employment without first notifying or in any
way seeking the informed consent of Welch before submitting its proposals to the various trust
funds.
The trial court further found that “defendants breached their fiduciary duty owed to plaintiff by
knowingly acquiring a pecuniary interest adverse to plaintiff without first obtaining plaintiff's
informed written consent.” This finding highlights what we consider to be a critical factor in
finding a breach of duty in this case, namely, the fact that defendants, who previously had been
privy to Welch’s confidential information, in no way informed Welch that they were preparing
proposals designed to undercut Welch's business relationships.
We agree with defendants that the various trust funds were free to send their business to any
entity they chose, as absent a contract to that effect, they were under no continuing duty to
continue business with Welch. Similarly, any law firm, other than E&T, was free to make
proposals at the request of those trust funds in an effort to obtain their business, as E&T did in
this case. But, due to the preexisting attorney-client relationship during which defendants were
in a position to and did obtain confidential information about Welch's business, these
defendants had a higher duty, which was to refrain from acquiring any pecuniary interest
involving collection work for these trust funds unless they first notified and obtained the informed
consent of Welch to submit their business proposals. As they did not do so, the trial court
properly found that they had breached their fiduciary duty towards Welch.
Questions:
1. Why was it a breach of the duty of loyalty for E&T to submit proposals to Welch’s clients
without Welch’s consent? What if Welch unreasonably refused consent?
2. Why did it matter that Welch allegedly shared confidential information with E&T? If
Welch had not shared confidential information with E&T, would it still have been a
breach of the duty of loyalty for E&T to submit proposals to Welch’s clients without
Welch’s consent?
3. When E&T provided collection services to Welch’s former clients, did it create an
attorney-client relationship? Does it matter for the purpose of the duty of loyalty?

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4. After the attorney-client relationship between E&T and Welch ended, could E&T
compete with Welch for business without Welch’s consent? Are there circumstances
where it could and circumstances where it couldn’t?
Remedies for the Breach of the Duty of Loyalty
Maxwell v. Gallagher, 709 A. 2d 100 (DC App. 1998)
Summary: Gallagher & Co., Real Estate, Inc. was a closely-held corporation. In 1987,
Maxwell & Bear provided legal advice to Gallagher and its owners in connection with the
division of ownership shares in the corporation. In the transaction, 11 of the 100 shares
in the corporation were transferred to Maxwell & Bear, which filed a declaratory
judgment action to claim its shares. The corporation and its owners counterclaimed,
seeking recission of the transfer for breach of fiduciary duty. The trial court found that the
transaction created a conflict of interest that Maxwell & Bear did not resolve, causing a
breach of the duty of loyalty, and ordered recission. The trial court found no actual
damages, but awarded $75,000 in punitive damages to the plaintiffs. The appellate court
affirmed the recission, but reversed the punitive damages award, because the trial court
found no actual damages.
FARRELL, Associate Judge:
This appeal from a judgment and award of damages for breach of fiduciary duty requires us,
inter alia, to consider once again the relationship between compensatory (or actual) and punitive
damages. Because the trial judge as factfinder expressly found that the appellees (counterclaimants) had not proven a basis for an award of actual damages, we hold that the judge's
award of punitive damages was impermissible. We reverse that award but otherwise affirm the
judgment.
I.
Plaintiff James S. Maxwell sought a declaratory judgment in Superior Court confirming the right
of the law firm Maxwell & Bear to retain its ownership of eleven shares of stock in Gallagher &
Co., Real Estate, Inc., of which Maxwell and Robert H. Bear had been directors and Maxwell an
officer. The remaining owners of the corporation, Eugene J. Gallagher and Daniel J. O’Lone, as
well as the corporation, answered and filed a counterclaim adding Bear as a counter-defendant.
They sought rescission of the stock transfer to Maxwell & Bear primarily on grounds of breach of
fiduciary duty by the firm in providing legal representation to the corporation and the other
owners. Following a bench trial, Judge Mitchell—Rankin issued an exhaustive written order and
opinion concluding that Maxwell and Bear each had furnished legal representation to the
corporation and Messrs. Gallagher and O'Lone during the relevant times and had breached
their resultant fiduciary duty by placing their personal interest in controlling the corporation
ahead of the interests of the clients. The judge ordered rescission of the stock held by Maxwell

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& Bear, awarded $1 in nominal damages to the appellees after finding no support for an award
of actual damages, and ordered Maxwell and Bear to pay $75,000 in punitive damages.
II.
The trial judge found that Maxwell & Bear undertook to represent the corporation and its
principals at meetings in December 1987 and January 1988 during which the division of
ownership shares in the closely-held corporation was negotiated and agreed upon, resulting in
the allocation of eleven of the one hundred shares to the law firm of Maxwell & Bear. The judge
further found that Maxwell undertook the representation “under circumstances where the
interest between the members including Maxwell & Bear and the corporate client were not
compatible, and under circumstances where the law firm fostered and exploited the divergence.”
In particular, the stock division, including “the equity interest solicited and obtained by the law
firm was not consummated to facilitate the best interest of the corporation, but only to satisfy the
demands of individual members and the law firm.” Moreover, from the beginning of the attorneyclient relationship, Maxwell had never disclosed to, or discussed with, the other principals the
possible conflicts of interest that relationship entailed. By engaging in this course of “double
dealing” designed to insure themselves effective control of the corporation, the judge found that
Maxwell and Bear breached fundamental attorney-client obligations as reflected in multiple
provisions of the District of Columbia Code of Professional Responsibility.
On appeal, Maxwell and Bear primarily dispute the trial judge's finding that they undertook legal
representation of the other principals in connection with the division of the stock. They concede
that they represented Gallagher, O’Lone, and Pollard on other matters (indeed, they so
stipulated at trial), but argue that when it came to the pivotal meetings at which the stock
division was negotiated, all present knew that Maxwell and Bear “were there for their own
business reasons.”
Significant first is that Maxwell and Bear do not deny that they purported to represent the
corporation with regard to the stock division. They contend that “there is no evidence to support
any finding that the attorneys ever undertook any professional responsibility in connection with
the issuance of the stock other than to the corporation.” Yet in that admitted capacity, they
concede that they owed a fiduciary duty, and the trial judge expressly found that they had
placed their private interest in securing control of the corporation above the interests of the
corporate client.
Moreover, there is ample record support for the judge's finding that the law firm purported to
represent the other principals at the stock division meetings. Those meetings took place against
the background of a course of dealing starting in 1984 during which Maxwell and Bear played
the “dual/multiple roles” of business associates and legal counsel to Gallagher, including when
jointly forming a predecessor company in 1986. As a later illustration, the judge found that
Gallagher “sought and received legal advice from Mr. Maxwell as to the most appropriate time
to resolve Mr. Pollard’s interest in the company,” an important issue because Pollard faced
collateral legal (and potential criminal) liability at the time he joined the corporation. Indeed, the

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December 18, 1997 meeting at which the stock division became the paramount subject was
originally called by Maxwell, at Gallagher's request, to discuss a real estate commission dispute
the company had had with another real estate firm, “a matter in which Maxwell & Bear served as
legal counsel for Messrs. Gallagher, Pollard, and O’Lone.” According to testimony by O'Lone,
Maxwell expressly justified the law firm's demanded percentage ownership as payment for the
ongoing representation it was providing to and on behalf of the company and its principals. In
short, we find no reason to disturb the finding of a legal relationship between Maxwell & Bear
and the others extending through the stock division and beyond.
Nor will we disturb the finding that appellants breached the duties imposed by that relationship
by failing to disclose the business advantages they sought which “might affect the firm's legal
judgment vis-a-vis Mr. Gallagher” and by acting repeatedly to effectuate their own interests at
the expense of the other principals.
The relation of attorney and client is one of the highest trust and confidence, and demands the
utmost good faith on the part of the attorney. This relation is not only highly confidential, but
presents so many opportunities for the reaping of special benefits at the expense of the client by
an attorney so disposed, that courts will closely scrutinize any transaction in which the attorney
has assumed a position antagonistic to his client. In thus “scrutinizing” the relationship at hand,
the trial judge found ample reason, as do we, to conclude that
the law firm acted in complete disregard of the interests of the corporate client and Mr.
Gallagher. The law firm made no disclosures to any client, obtained no informed
consents from any client, and sought by its disregard of its ethical and fiduciary duties to
its corporate client to benefit itself.
We therefore sustain the judge's rescission of the stock transfer "as the tangible product of the
breaches of fiduciary duty."
III.
Although the trial judge ordered cancellation of the stock transfer, she also found “no record
evidence of any meaningful evaluation of the stock” at the time it was divided. Nor did the
appellees present at trial any evidence of the dollar value of the stock. This exemplified what the
trial judge found to be a complete failure of the appellees to present proof of loss from the
breach of duty for which compensatory damages could be awarded. Maxwell and Bear argue
that, in the absence of such proof, it was error for the trial judge to award punitive damages. We
are constrained to agree. Despite some uncertainty in our decisions over the years, the principle
we derive from them is that, before punitive damages may be awarded, there must be a basis in
the record for an award of actual damages, even if nominal. Since the trial judge expressly
found no such basis in the record of this case, punitive damages will not lie.
A.

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In her original opinion, the judge denied the counterclaim “with respect to compensatory
damages, in the absence of proof of the same,” but awarded $75,000 in punitive damages for
the breach of fiduciary duty. The appellees then moved to amend the judgment “solely for the
court to make an express finding that they are entitled to compensatory damages in at least a
nominal amount.” The judge modified her order by awarding appellees “nominal damages in the
amount of $1.00,” but she made explicit that this was not an award for actual damages because
the appellees had shown no basis for such compensation. The judge distinguished between
proof of “injury” and “evidence of any loss occasioned by” the injury. Referring to her original
finding that “the harm caused to the corporation as a client and to Mr. Gallagher as a client by
the law firm’s cavalier and self-interested approach to its ethical and fiduciary duties is amply
demonstrated by the facts in this case,” she continued:
Although this Court does agree there is ample justification for a finding of injury as
provided in the original order, it does not concur with appellees that they are entitled to
compensatory damages. The reason is simple: they have failed to produce evidence of
any loss occasioned by Maxwell’s and Bear’s conduct for which they should be
compensated. Having proven only breach of fiduciary duty, and hence injury, appellees
are entitled only to a nominal damage award but are not equally entitled to a
corresponding compensatory damage award.
The judge thus awarded nominal damages of $1.00 as what she believed to be the required—
and sufficient—predicate for punitive damages to a “plaintiff whose legal right has been
technically violated but has proved no real damage.” In a word, the breach of fiduciary duty
without more supplied the basis for the punitive damage award.
B.
First of all, we reject the appellees’ assertion that the trial judge found actual damages but was
merely unable to quantify them—the $1.00 in nominal damages being a proxy for that
indeterminate but actual loss. The appellees alleged only economic damages, something not
inherently impossible to quantify if they had been proven. More importantly, the judge took pains
to state repeatedly that the appellees had “failed to produce evidence of any loss”— hence any
compensable damage—resulting from the breach of fiduciary duty. We therefore must decide
whether the award of punitive damages was permissible without proof that actual damages
were warranted.
We think the essence of our case law is this: A plaintiff must prove a basis for actual damages
to justify the imposition of punitive damages. The amount of such damages may be nominal,
stemming from the difficulty of quantifying them or from some other cause. But without proof of
at least nominal actual damages, punitive damages may not be awarded.
Our most recent statement of this rule was in Ayala v. Washington. There we said:

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Under the law of the District of Columbia, although there must be a basis for
compensatory damages before punitive damages will be considered, a plaintiff need not
prove anything more than nominal actual damages to justify the imposition of punitive
damages.
In awarding punitive damages despite the absence of a basis for actual damages, the trial judge
relied partly on the following passage from Brown v. Coates:
Once it has been shown that one trained and experienced holds himself out to the public
as worthy to be trusted for hire to perform services for others, and those so invited do
place their trust and confidence, and that trust is intentionally and consciously
disregarded, and exploited for unwarranted gain, community protection, as well as that
of the victim, warrants the imposition of punitive damages.
The cogency of this reasoning is indisputable but Brown does not bear upon the issue
presented here of the necessity vel non of proof of actual damages before punitive damages
may be awarded. We hold that, because the trial judge expressly found that appellees had
proven no actual damages, punitive damages could not be awarded.
Questions:
1. Why did the court find that Maxwell & Bear violated its duty of loyalty? How could
Maxwell & Bear have avoided violating its duty of loyalty?
2. Did Maxwell & Bear owe a duty of loyalty to the corporation or to the owners of
the corporation? Could Maxwell & Bear represent all of the owners of the
corporation?
3. Why did the court find no actual damages? Was it right?
Further Reading:
●

Lisa G. Lerman, Lying to Clients, 138 U. Pa. L. Rev. 659 (1990)

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4.4: Current Client Conflicts of Interest
I’ll never leave him down though I might mess around. It's only ‘cause I need some affection. So
I creep, yeah, just creepin’ on. On the down low, ‘cept nobody is supposed to know. So I creep
yeah, ‘cause he doesn't know what I do, and no attention goes to show.50
Attorneys have fiduciary duties of care, loyalty, impartiality, and confidentiality to both the clients
they intend to represent and the quasi-clients they do not. Sometimes, it is unclear whether a
conflict of interest implicates the duty of care or the duty of loyalty.
Typically, attorneys have more than one client at a time. Whenever they contemplate forming a
new attorney-client relationship, they must determine whether it would create a conflict of
interest with one of their existing clients. And they must always be attentive to the possibility that
conflicts of interest will arise between different clients.
In case a conflict of interest exists with respect to a new client, or arises with respect to an
existing client, attorneys must obtain informed consent from all of their clients affected by the
conflict, or withdraw from representation.
Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267 (NY
App. Div. 2004)
Summary: Weil, Gotshal & Manges represented Fashion Boutique in an action against
Fendi, but also represented Prada, which acquired Fendi. When Weil filed an action
against Fashion Boutique for unpaid legal fees, Fashion Boutique counterclaimed
against Weil for malpractice and breach of fiduciary duty, because it failed to investigate
or introduce relevant testimony. The trial court dismissed the malpractice claims, but not
the fiduciary duty claims. The appellate court reversed, reinstating the malpractice claim
and dismissing the fiduciary duty claim as redundant.
This action for $2.7 million in unpaid legal fees arose out of the representation, commencing in
1993, of counterclaim plaintiff Fashion Boutique of Short Hills, Inc. and its principals by
counterclaim defendant law firm and two of its partners. Fashion Boutique alleges that, while
representing it against Fendi in an action in federal court, Prada, which had acquired a
controlling interest in Fendi in October 1999, retained the law firm. The federal action was based
on alleged disparaging remarks by Fendi, a competing Fifth Avenue boutique, and its parent
Fendi, which led to the destruction of Fashion Boutique’s retail business, thereby violating the
Lanham Act and New York State law prohibiting product disparagement. The law firm
represented Fashion Boutique through extensive pretrial discovery, a summary judgment
motion resulting in the dismissal of the Lanham Act claim and a July 2000 jury trial, which
resulted in the award of $35,000 in compensatory damages and $75,000 in punitive damages in
favor of Fashion Boutique. Earlier, in March 2000, the Fendi defendants had made a settlement
50

TLC, Creep, CrazySexyCool (1994).

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offer of $1.4 million, which, although recommended by the law firm, was rejected by Fashion
Boutique. The law firm was granted leave to withdraw in September 2000. In December 2002,
the United States Court of Appeals for the Second Circuit affirmed the dismissal of the Lanham
Act claim.
The law firm thereafter commenced this action for unpaid legal fees; Fashion Boutique
answered and asserted counterclaims for legal malpractice and breach of fiduciary duty,
seeking $15,555,537 in damages, based on two principal allegations. It alleged that the two law
firm partners “disregarded their fiduciary obligation and breached their duty of undivided loyalty
to Fashion Boutique” by agreeing in late 1999 to represent Prada and thereby creating an
“irresolvable conflict of interest.” It also alleges that, as a result of this conflict, the law firm did
not use adequately the testimony of a witness, Caroline Clarke, a former Fendi officer, who, it is
claimed, could supply “critical elements” of proof relevant to the dismissed Lanham Act claim.
According to Fashion Boutique, Ms. Clarke, in an October 6, 1999 e-mail, told one of the
defendant law firm partners that she could testify about hundreds of incidents in which Fendi
employees made disparaging remarks about Fashion Boutique and that she knew of a
“continued policy of disparagement” against Fashion Boutique. In a prior February 1994
deposition, Ms. Clarke denied personal knowledge of any Fendi policy to disparage the quality
of Fashion Boutique merchandise. Notwithstanding, Fashion Boutique claimed that the law firm
failed to appreciate the significance of the “new evidence” contained in the e-mail and to use
Ms. Clarke’s testimony more effectively to reinstate the Lanham Act claim and prove the
remaining claims at trial. Fashion Boutique also alleged that the law firm failed to alert the trial
judge to claimed threats against Ms. Clarke at the time of trial and that, because of its divided
loyalty, in the face of these threats, the law firm, in effect, abandoned her as a witness; that after
the dismissal of the Lanham Act claim, it improvidently advised Fashion Boutique to agree to a
stipulated judgment and take an immediate appeal; and that it failed to conduct adequate crossexamination of Fendi witnesses and to submit certain financial records to the jury on the punitive
damages issue.
The law firm moved to dismiss the counterclaims, arguing that no conflict of interest exists since
the product disparagement action is completely unrelated to the trademark enforcement issues
in certain “gray goods” litigation in which the law firm was advising Prada. The law firm also
argued that, even if a conflict of interest case had been properly pleaded, Fashion Boutique
cannot establish the element of loss causation. The motion court granted the motion in part and
denied it in part, dismissing the second counterclaim for legal malpractice but sustaining the first
counterclaim for breach of fiduciary duty. In so ruling, the motion court rejected the probative
value of Clarke’s October 1999 e-mail, the focal point of Fashion Boutique’s counterclaims,
finding, “Nothing in the E-mail would have altered the federal courts’ conclusion, upon which
dismissal of the Lanham Act claim was based, that Fendi's actions did not constitute ‘advertising
or promotion’ within the meaning of the Lanham Act.” Similarly, as to Fashion Boutique's
common-law product disparagement claims, the motion court found that the documentary
evidence “refutes Fashion Boutique’s contention that, but for the counterclaim-defendants’
failure to properly utilize Clarke as a witness, Fashion Boutique would have obtained a
substantially greater award of damages on its claims under New York State law.” The court also

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rejected the claim that “Clarke was unable to testify fully and freely at trial, because Fendi was
subjecting her to an alleged campaign of threats and intimidation.” The court noted that the
federal trial court examined Clarke at a hearing outside the jury’s presence to consider the effect
of the purported threats on her testimony, at the conclusion of which the court concluded: “I
have listened to a very distraught woman who has addressed subjects which are irrelevant to
this lawsuit.” The motion court rejected each of the criticisms of the way in which the law firm
conducted the trial, finding that they constitute “simply dissatisfaction with strategic choices.”
Despite this finding, the court sustained the breach of fiduciary duty counterclaim, holding that
even if the law firm may not have had an actual conflict of interest it might not have been
“sensitive to forces that might operate upon it subtly in a manner likely to diminish the quality of
its work.” The same documentary evidence that refuted legal malpractice, the court held, “does
not utterly refute” the allegations that the law firm’s “failure to make better use of Clarke’s
testimony, and delay in advising the federal trial court of the purported campaign of intimidation
against Clarke until after she had already given her trial testimony, substantially contributed to
the failure to achieve a better result in the Fendi action.” We reverse.
Fashion Boutique’s theory of liability, common to both the legal malpractice and breach of
fiduciary duty counterclaims, is that during the latter part of the law firm’s representation of
Fashion it labored under a conflict of interest that was at such an extent that it compromised the
law firm’s level of advocacy and contributed to a trial outcome less favorable than would
otherwise have been achieved. In dismissing the legal malpractice counterclaim, the motion
court reviewed a record consisting of 17 different exhibits, ranging from pleadings to transcripts
of arguments to testimony, both at trial and in depositions, as well as an e-mail, on the basis of
which it made factual findings in support of its decision. The testimonial portion of that
submission, alone, ran to more than 700 pages. Such a review, culminating in factual findings,
would be most unusual even if this motion had been converted, which it was not, to one for
summary judgment. The law firm argued that the 500 pages of exhibits constituted documentary
evidence. In opposing the motion, Fashion Boutique relied on the detailed factual allegations of
its counterclaims and whether reasonable inferences could be drawn therefrom. A court is
obliged to accept the complaint’s factual allegations as true, according to plaintiff the benefit of
every possible favorable inference, and determining “only whether the facts as alleged fit within
any cognizable legal theory. Dismissal is warranted only if the documentary evidence submitted
conclusively establishes a defense to the asserted claims as a matter of law.” The motion court
clearly departed from this standard. Disregarding the allegations of the counterclaims and the
possible inferences to be drawn therefrom, it reviewed evidence, including deposition and trial
testimony and a three-page e-mail narrative, described by its author, Ms. Clarke, as an
“overview” of the areas of interest as to which she could offer testimony, and made factual
findings. In considering such evidence, the court went far beyond what the Legislature intended.
The submissions here are of a type that “do not meet the requirement of conclusively
establishing the defense as a matter of law.” For instance, the motion court disregarded the fact
that Ms. Clarke’s e-mail was only an overview of her testimony and viewed it as the whole of her
testimony. Nor did the court take into account the many ways Ms. Clarke indicated she could
testify with personal knowledge about Fendi’s campaign of disparagement. On this record, we
find that the legal malpractice counterclaim’s allegation that but for the law firm’s failure, due to

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its debilitating conflict of interest, to make proper use of Ms. Clarke’s testimony, the Fashion
Boutique case against Fendi would have had a more favorable result, was not conclusively
controverted. Thus, the legal malpractice counterclaim should be reinstated.
As to the claim for breach of fiduciary duty, we have consistently held that such a claim,
premised on the same facts and seeking the identical relief sought in the legal malpractice
cause of action, is redundant and should be dismissed.
We take this occasion to note that the court erred in holding that the “but for” standard of
causation, applicable to a legal malpractice claim, does not apply to the claim for breach of
fiduciary duty. Instead, it applied the less rigorous “substantial factor” causative standard. We
have never differentiated between the standard of causation requested for a claim of legal
malpractice and one for breach of fiduciary duty in the context of attorney liability. The claims
are coextensive. Under New York law, to establish the elements of proximate cause and actual
damages, where the injury is the value of the claim lost, the client must meet the “case within a
case” requirement, demonstrating that “but for” the attorney’s conduct the client would have
prevailed in the underlying matter or would not have sustained any ascertainable damages. The
cases relied upon by Fashion Boutique did not involve a former client’s breach of fiduciary claim
against his attorneys, but rather a typical commercial dispute as to the fiduciary obligation owed
by a lawyer to his former partners when departing to join another firm.
Questions:
1. Why did Fashion Boutique think Weil committed malpractice? Why did Fashion Boutique
think Weil breached its fiduciary duty?
2. How did the trial court analyze those claims? Why did the appellate court reverse?
3. What is the difference between a malpractice claim and a breach of fiduciary duty claim?
Are they redundant? Which kind of claim did Fashion Boutique have, if either?
Prospective Informed Consent
Obtaining a client’s informed consent to a conflict of interest after it arises can be difficult. After
all, it may not be in the client’s interest to consent to the conflict. Accordingly, many lawyers ask
new clients to provide informed consent to conflicts that may arise in the course of
representation.
Should clients be able to provide informed consent to potential future conflicts? When should
prospective consent be permitted? Are there circumstances in which it should not be permitted?
How should courts determine whether prospective consent was sufficiently informed to be
effective?
Model Rule 1.7, Comment [22]

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Whether a lawyer may properly request a client to waive conflicts that might arise in the
future is subject to the test of paragraph (b). The effectiveness of such waivers is
generally determined by the extent to which the client reasonably understands the
material risks that the waiver entails. The more comprehensive the explanation of the
types of future representations that might arise and the actual and reasonably
foreseeable adverse consequences of those representations, the greater the likelihood
that the client will have the requisite understanding. Thus, if the client agrees to consent
to a particular type of conflict with which the client is already familiar, then the consent
ordinarily will be effective with regard to that type of conflict. If the consent is general and
open-ended, then the consent ordinarily will be ineffective, because it is not reasonably
likely that the client will have understood the material risks involved. On the other hand,
if the client is an experienced user of the legal services involved and is reasonably
informed regarding the risk that a conflict may arise, such consent is more likely to be
effective, particularly if, e.g., the client is independently represented by other counsel in
giving consent and the consent is limited to future conflicts unrelated to the subject of the
representation. In any case, advance consent cannot be effective if the circumstances
that materialize in the future are such as would make the conflict nonconsentable under
paragraph (b).
Visa USA, Inc. v. First Data Corp., 241 F. Supp. 2d 1100 (N.D. Ca. 2003)
Summary: Heller Ehrman White & McAuliffe represented Visa. First Data asked Heller
to represent it in a patent infringement action, and Heller agreed, if First Data consented
to Heller’s representation of Visa in any future disputes. Soon afterward, Visa sued First
Data, represented by Heller. First Data filed a motion to disqualify Heller. The court
denied the motion because First Data knowingly consented to the conflict and Heller
protected First Data’s confidentiality.
HAMILTON, District Judge.
Plaintiff Visa sued defendant First Data in April 2002 for trademark infringement, dilution, and
various breach of contract claims. First Data has contracted with Visa to process financial
transactions on Visa’s behalf. First Data has recently launched a new business initiative, which
will allow First Data to bypass Visa’s regulations on the processing of certain Visa-related
transactions. Visa claims these private arrangements violate its contractual and trademark
rights.
Visa is represented in this matter by the law firm of Heller Ehrman White & McAuliffe’s San
Francisco office. In March 2001, before this lawsuit was filed, First Data was sued in an
unrelated patent infringement action currently pending in the District of Delaware. First Data
sought to retain Heller’s Silicon Valley office as counsel in the Delaware action. After running a
conflicts check, Heller informed First Data that it had a long-standing relationship with Visa.
While Heller did not see any conflicts between the two parties at that time, Heller could not
represent First Data in the patent infringement case unless First Data agreed to permit Heller to

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represent Visa in any future disputes, “including litigation,” that might arise between First Data
and Visa. First Data consented to those terms, which were memorialized in an engagement
letter between Heller and First Data. The relevant portion of the letter states:
Our engagement by you is also understood as entailing your consent to our
representation of our other present or future clients in “transactions,” including litigation
in which we have not been engaged to represent you and in which you have other
counsel, and in which one of our other clients would be adverse to you in matters
unrelated to those that we are handling for you. In this regard, we discussed Heller’s
past and on-going representation of Visa in matters which are not currently adverse to
First Data. Moreover, as we discussed, we are not aware of any current adversity
between Visa and First Data. Given the nature of our relationship with Visa, however, we
discussed the need for the firm to preserve its ability to represent Visa on matters which
may arise in the future including matters adverse to First Data, provided that we would
only undertake such representation of Visa under circumstances in which we do not
possess confidential information of yours relating to the transaction, and we would staff
such a project with one or more attorneys who are not engaged in your representation.
In such circumstances, the attorneys in the two matters would be subject to an ethical
wall, screening them from communicating with each other regarding their respective
engagements. We understand that you do consent to our representation of Visa and our
other clients under those circumstances.
After First Data agreed to the waiver, Visa also agreed to Heller's dual representation.
A few months later, in July 2001, First Data publicly announced its intention to launch its new
private arrangement plan, and in the beginning of 2002, First Data officially notified Visa. Visa
then sued First Data. First Data in response threatened antitrust counterclaims against Visa,
and then began settlement discussions. Almost four months after the complaint was filed, and
shortly after settlement talks broke down, First Data informed Visa in August 2002 that it
intended to move to disqualify Heller as counsel for Visa in this matter.
First Data claims that when it signed the waiver letter, it was not adequately informed of the
possibility that its patent counsel could sue it for millions of dollars in damages and raise claims
disparaging First Data and attacking the very core of its business. First Data contends that
under the California Rules of Professional Conduct, Heller at a minimum was required to
reaffirm First Data's prospective consent when the actual conflict between Visa and First Data
arose. First Data has also indicated that it believes that Heller's patent lawyers have access to
confidential information from First Data that Visa could use against First Data in this action.
Heller and Visa argue that First Data was fully informed about the situation and agreed to allow
Heller to represent Visa in future litigation against First Data. Heller and Visa argue that the
California Rules of Professional Conduct and other ethical rules expressly permit prospective
written consent to a conflict waiver, and that no rules require Heller to obtain a second consent

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to continue in their representation of Visa. Heller also indicates that it has put an ethical wall in
place that adequately protects First Data's confidential information.
DISCUSSION
A. Motion to Disqualify Counsel—Legal Standards
The Northern District of California has adopted the California Rules of Professional Conduct,
and attorneys practicing in this court are required to adhere to those standards, as articulated in
the rules and any court decisions interpreting them. The right to disqualify counsel is within the
discretion of the trial court as an exercise of its inherent powers.
Motions to disqualify counsel are strongly disfavored. Thus, such requests “should be subjected
to particularly strict judicial scrutiny.”
In reviewing a motion to disqualify counsel, the district court must make “a reasoned judgment
and comply with the legal principles and policies appropriate to the particular matter at issue.”
The district court is permitted to resolve disputed factual issues in deciding a motion for
disqualification and must make findings supported by substantial evidence.
B. Simultaneous Representation of Adverse Clients and Written Waivers
1. Conflict Waiver Letters
First Data claims that Heller has violated Cal. Rule of Prof. Conduct 3-310(C)(3), which states:
A member of the California State Bar shall not, without the informed written consent of
each client:
(3) represent a client in a matter and at the same time in a separate matter accept as a
client a person or entity whose interest in the first matter is adverse to the client in the
first matter.
First Data argues that this rule automatically disqualifies Heller from representing both Visa and
First Data, even though First Data’s patent litigation is unrelated to this action.
When evaluating whether a law firm may concurrently represent two clients, even on unrelated
matters, it is presumed that the duty of loyalty has been breached and counsel is automatically
disqualified. But, as Visa and Heller note, the presumption may be rebutted and a law firm may
nonetheless simultaneously represent two adverse clients if full disclosure of the situation is
made to both clients and both agree in writing to waive the conflict. Here, it is undisputed that
Heller and First Data executed a conflict waiver letter. Thus, Heller is not automatically
disqualified from representing both Visa and First Data.

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2. Prospective Waivers
First Data next argues that Heller’s use of a prospective waiver, which purported to waive all
future conflicts between Visa and First Data, was improper without, at minimum, a second
disclosure and waiver once the situation between Visa and First Data ripened into an actual
conflict. Visa and Heller argue that the prospective waiver signed by First Data was proper and
fully informed, and thus no second waiver was required.
An advance waiver of potential future conflicts, such as the one executed by First Data and
Heller, is permitted under California law, even if the waiver does not specifically state the exact
nature of the future conflict. The only inquiry that need be made is whether the waiver was fully
informed. In some circumstances, a second waiver will be warranted, but only if the attorney
believes that the first waiver was insufficiently informed. There is no case law requiring a second
disclosure in all circumstances for an advance waiver to be valid.
3. Fully Informed Waiver
A second waiver by First Data in a nonrelated litigation would only be required if the waiver
letter insufficiently disclosed the nature of the conflict that subsequently arose between Visa and
First Data. Thus, to prevail on this motion, First Data must show that it was not fully informed
about the consequences of its conflicts waiver when it signed the waiver letter. To show full
disclosure, Heller must demonstrate that it “communicated information reasonably sufficient to
permit the client to appreciate the significance of the matter in question.”
An evaluation of whether full disclosure was made and the client made an informed waiver “is
obviously a fact-specific inquiry.” Factors that may be examined include the breadth of the
waiver, the temporal scope of the waiver (whether it waived a current conflict or whether it was
intended to waive all conflicts in the future), the quality of the conflicts discussion between the
attorney and the client, the specificity of the waiver, the nature of the actual conflict (whether the
attorney sought to represent both clients in the same dispute or in unrelated disputes), the
sophistication of the client, and the interests of justice. In evaluating all these factors, there is
substantial evidence showing that Heller made a full and reasonable disclosure to First Data
and First Data knowingly waived any conflicts concerning Heller's ongoing representation of
Visa.
a. Heller Fully Disclosed the Conflict to First Data.
Most significantly, the waiver letter itself demonstrates that Heller fully explained to First Data
the nature of the conflict waiver at issue. When First Data first approached Heller to represent it
in the patent litigation, Heller explained to First Data that, even though there were no present
conflicts between Visa and First Data, there was a significant risk of future adversity because
Visa and First Data were major competitors in the processing side of the credit card business.
Heller thus informed First Data that it would not be able to take the matter unless First Data
would waive any conflicts that might arise out of Heller's ongoing work for Visa in matters up to

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and including possible future litigation. This understanding was confirmed in the written waiver
letter.
Our engagement by you is also understood as entailing your consent to our
representation of our other present or future clients in “transactions,” including litigation
in which we have not been engaged to represent you and in which you have other
counsel, and in which one of our other clients would be adverse to you in matters
unrelated to those that we are handling for you. In this regard, we discussed Heller’s
past and on-going representation of Visa U.S.A. and Visa International in matters which
are not currently adverse to First Data. Moreover, as we discussed, we are not aware of
any current adversity between Visa and First Data. Given the nature of our relationship
with Visa, however, we discussed the need for the firm to preserve its ability to represent
Visa on matters which may arise in the future including matters adverse to First Data,
provided that we would only undertake such representation of Visa under circumstances
in which we do not possess confidential information of yours relating to the transaction.
The letter identifies the adverse client, Visa, and discloses as fully as possible the nature of any
potential conflict that could arise between the two parties. The letter also clearly states that the
waiver contemplates Heller’s representation of Visa against First Data in matters “including
litigation.” First Data was given ample information concerning the conflict in question that it was
asked to waive, reviewed this information, and then agreed to the waiver. First Data has failed
to demonstrate that it was not fully and reasonably informed when it signed the waiver letter.
The cases where law firms have been disqualified for insufficient disclosures involve situations
much more egregious than the facts presented here. For instance, in Image, Kodak successfully
disqualified Coudert Brothers, Image’s attorneys, from representing Image in that action
because Coudert had also represented Kodak in unrelated corporate matters. Kodak produced
evidence that Coudert had deliberately misrepresented the scope of their representation of
Image to Kodak by downplaying their actual conflict. Specifically, Coudert failed to mention to
Kodak’s business people that they would be arguing against Kodak before the U.S. Supreme
Court in a landmark antitrust case that had been litigated for six years. They also failed to
disclose any of this information to Kodak’s in-house counsel, and failed to obtain a written
consent. After weighing these factors, the court determined that this could not constitute full
disclosure and ordered Coudert disqualified.
Here, in contrast, Heller notified First Data’s director of intellectual property and division general
counsel of the potential for a future conflict, fully discussed the nature of that conflict, and
informed First Data that Heller would be unable to represent First Data unless the conflict was
waived. The facts and law do not support a finding that First Data was not given sufficient
information to understand the scope of its waiver.
b. Knowing Consent

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There is also substantial evidence in the record that First Data was aware of this potential
conflict with Visa and Heller when it signed the waiver letter, and thus First Data knowingly
waived that conflict in order to have Heller to represent it in the patent litigation. First Data in its
Answer stated that it had been contemplating its new private arrangement initiative and had
given preliminary notice to Visa about it “as early as 1999.” In 2000, First Data had also
indicated that Visa’s business plans concerning private arrangements raised antitrust concerns
for the payment-card industry in amicus papers and motions to intervene in the Department of
Justice antitrust litigation against Visa.
First Data does not deny that it first began contemplating this arrangement in 1999 or that it
foresaw antitrust concerns in 2000 over Visa’s position on private arrangements. Instead, First
Data argues that it did not realize that Heller would represent Visa in those matters and had
assumed that Heller would, at most, represent Visa against First Data on incidental matters
such as implementation and enforcement of payment processor rules. First Data admits that it is
“unlikely” that such matters would result in litigation with Visa.
This is not credible. Heller informed First Data that it represented Visa in large-scale commercial
litigation, and that due to the nature of the potential conflicts between the two parties, Heller
would not be able to represent First Data at all without a broad prospective waiver. First Data
had also submitted briefs in high-profile antitrust litigation in which Heller was representing Visa,
and where First Data had threatened Visa with further antitrust claims. First Data knew that
Heller was Visa's counsel on major matters that could potentially involve First Data. Given this
information, First Data could not have believed that Heller would be uninvolved in any major
litigation that could potentially arise between Visa and First Data, or that Visa would have
restricted itself to hiring Heller solely for relatively minor regulatory disputes between the two
parties.
First Data contended on reply and at the hearing that even if it did know in 2001 when it signed
the waiver letter that Visa and First Data could potentially be involved in high-stakes litigation
over First Data’s private arrangement initiative, First Data had no duty to recognize that conflict
on its own. First Data argues that it was instead Visa and Heller’s duty to inform First Data of
these risks, citing State Farm. In State Farm, though, the law firm in question had made no
disclosure to the junior client, and then argued that because the two clients were aware of the
conflict when the junior client hired the law firm, they had implicitly consented to a conflict
waiver. The court found that the attorneys were still required to disclose the conflict and obtain
explicit consent from the clients in that circumstance. State Farm requires only that the
attorneys disclose conflicts to clients. Here, those requirements were met when Heller disclosed
the existence of the potential Visa conflict before forming an attorney-client relationship with
First Data and obtained a written conflict waiver agreement. No case law allows First Data to
ignore its own additional knowledge concerning the nature of the potential conflict when
deciding whether to waive.
c. First Data is a Sophisticated User of Legal Services

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In determining whether First Data gave informed consent in the waiver letter, the court may also
properly consider First Data’s level of experience with legal services.
First Data is a Fortune 500 company with over $6 billion in annual revenues. It is a
knowledgeable and sophisticated user of legal services. It has a legal department of about fifty
attorneys and routinely hires top-tier national law firms such as Bingham McCutchen, Heller,
and Sidley Austin to handle its complex corporate transactions and litigation matters. First Data
can and should be expected to understand the full extent of what it waived when it signed
Heller’s explicit waiver letter.
C. Ethical Walls
It is undisputed that Heller immediately put an intra-firm ethical wall in place when Visa sued
First Data, which barred contact between the Heller attorneys representing First Data and the
Heller attorneys representing Visa. First Data argues that the institution of an ethical wall is
insufficient to repair Heller’s breach of its duty of loyalty, and that Heller has breached its duty of
confidentiality to First Data by its dual representation of Visa and First Data.
Heller conceded at oral argument that if it had breached its duty of loyalty to First Data through
its dual representation of Visa and First Data, an ethical wall would not be sufficient to cure the
breach. But Heller did not breach its duty of loyalty to First Data by agreeing to represent Visa in
this matter after receiving a valid prospective conflict waiver from First Data. Heller thus is not
claiming that the ethical wall is necessary to protect Heller’s duty of loyalty to First Data.
Rather, Heller instituted the ethical wall to protect Heller’s duty of confidentiality to its client First
Data. First Data states that it has shared information concerning its finances and its general
business plan to its patent lawyers, and argues that such information is presumed imputed to all
Heller attorneys. Heller can rebut that presumption by “showing that effective screening
procedures were implemented to prevent the passing of information between the tainted
lawyers and other members of the firm.” Because First Data makes no showing in its papers
beyond the presumption of shared confidentiality in support of its allegations, and because
Heller has demonstrated that it immediately put an ethical wall in place as soon as Heller was
retained as Visa’s counsel in this action, there has been no breach of the duty of confidentiality
here.
Questions:
1. Why did First Data think that Heller had a conflict of interest? Why did the court
disagree?
2. Should a client be able to consent to being sued by their attorney?
3. How did Heller avoid creating a conflict of interest? How did the duty of loyalty and the
duty of confidentiality create different problems?
Conflicts of Law

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When courts decide whether a conflict of interest exists and how to evaluate it, they must also
decide what law to apply. For state courts, the choice of law question is relatively easy. They
must apply the state law governing lawyers, although they may refer to federal law and general
principles in interpreting the state law.
But for federal courts, the choice of law question is more complicated. They are necessarily
reviewing the actions of attorneys who are members of a state bar and subject to state rules.
But they also have their own bar and may consider national rules and principles.
Accordingly, federal courts must decide whether to apply state or national law in determining
whether a conflict of interest exists, and how to evaluate any conflicts of interest they find.
In re Dresser Industries, Inc., 972 F. 2d 540 (5th Cir. 1992)
Summary: Susman Godfrey represented Dresser Industries in several actions, but also
represented the plaintiffs in the Drill Bits class action, and informed Dresser of a
potential conflict. Dresser declined to seek new counsel, but moved to disqualify
Susman Godfrey when it became a defendant in Drill Bits. The district court denied the
motion, based on Texas law, but the circuit court reversed, based on the Model Rules.
E. GRADY JOLLY, Circuit Judge:
In this petition for a writ of mandamus, we determine whether a law firm may sue its own client,
which it concurrently represents in other matters. In a word, no; and most certainly not here,
where the motivation appears only to be the law firm’s self-interest.51 We therefore grant the
writ, directing the district judge to disqualify counsel.
I
The material facts are undisputed. This petition arises from a consolidated class action antitrust
suit brought against manufacturers of oil well drill bits.
Dresser Industries, Inc., is now a defendant in Drill Bits, charged — by its own lawyers — with
conspiring to fix the prices of drill bits and with fraudulently concealing its conduct. Stephen D.
Susman, with his firm, Susman Godfrey, is lead counsel for the plaintiff’s committee. As lead
counsel, Susman signed the amended complaint that levied these charges against Dresser, his
firm’s own client.
Susman Godfrey concurrently represents Dresser in two pending lawsuits. CPS International,
Inc. v. Dresser Industries, Inc., is the third suit brought by CPS International, a company that
51

“Bits was going to be a case that was going to be active, big, protracted, the first price fixing case that's
come along in Houston in a long time. I had made somewhat of a reputation in that area, and I guess it's
kind of painful not to be able to play in the game anymore.” Deposition of Stephen D. Susman.

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claims Dresser forced it out of the compressor market in Saudi Arabia. CPS International initially
sued Dresser for antitrust violations and tortious interference with a contract. The antitrust claim
has been dismissed, but the tort claim is scheduled for trial. Susman Godfrey has represented
Dresser throughout these actions, which commenced in 1985. During its defense of Dresser,
Susman Godfrey lawyers have had relatively unfettered access to data concerning Dresser’s
management, organization, finances, and accounting practices. Susman Godfrey’s lawyers
have engaged in privileged communications with Dresser’s in-house counsel and officers in
choosing antitrust defenses and other litigation strategies. Susman Godfrey has also, since
1990, represented Dresser in Cullen Center, Inc. v. W.R. Gray Co., a case involving asbestos in
a Dresser building, which is now set for trial in Texas state court.
On October 24 and November 24, 1991, Susman Godfrey lawyers wrote Dresser informing it
that Stephen Susman chaired the plaintiffs’ committee in Drill Bits, that Dresser might be made
a Drill Bits defendant, and that, if Dresser replaced Susman Godfrey, the firm would assist in the
transition to new counsel. Dresser chose not to dismiss Susman Godfrey in CPS and Cullen
Center.
Dresser was joined as a defendant in Drill Bits on December 2, 1991. Dresser moved to
disqualify Susman as plaintiffs’ counsel on December 13. Both Dresser and Susman Godfrey
submitted affidavits and depositions to the district court, which, after a hearing, issued a detailed
opinion denying the motion.
The district court noted that Southern District local rule 4B provides that the code of professional
responsibility for lawyers practicing in that district is the Code of Responsibility of the State Bar
of Texas. Although the court further noted that other district courts look to other codes in
deciding motions to disqualify, nevertheless, it concluded that “Dresser's motion to disqualify
Susman Godfrey is governed wholly by the Texas Disciplinary Rules of Professional Conduct.”
The court then focused on Texas Disciplinary Rule 1.06, which provides:
(b) Except to the extent permitted in paragraph (c), a lawyer shall not represent a person
if the representation of that person:
(1) involves a substantially related matter in which that person's interests are
materially and directly adverse to the interests of another client of the lawyer or
the lawyer’s firm; or
(2) reasonably appears to be or become adversely limited by the lawyer's or law
firm’s responsibilities to another client or to a third person or by the lawyer's or
law firm's own interests.
(c) A lawyer may represent a client in the circumstances described in (b) if:
(1) the lawyer reasonably believes the representation of each client will not be
materially affected; and
(2) each affected or potentially affected client consents to such representation
after full disclosure.

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The district court described the Drill Bits complaint as a civil antitrust case, thus somewhat
softening Dresser’s description of it as an action for fraud or criminal conduct. The court held,
“as a matter of law, that there exists no relationship, legal or factual, between the Cullen Center
case and the Drill Bits litigation,” and that no similarity between Drill Bits and the CPS suits was
material. The court concluded that “Godfrey's representation of the plaintiffs in the Drill Bits
litigation does not reasonably appear to be or become adversely limited by Susman Godfrey’s
responsibilities to Dresser in the CPS and Cullen Center cases,” and accordingly denied the
motion to disqualify. Finally, the court denied permissive interlocutory appeal.
II
In evaluating a motion to disqualify, we interpret the controlling ethical norms governing
professional conduct as we would any other source of law. When the facts are undisputed,
district courts enjoy no particular advantage over appellate courts in formulating ethical rules to
govern motions to disqualify. Thus, in the event an appropriate standard for disqualification is
based on a state's disciplinary rules, a court of appeals should consider the district court's
interpretation of the state disciplinary rules as an interpretation of law, subject essentially to de
novo consideration.
III
The district court clearly erred in holding that its local rules, and thus the Texas rules, which it
adopted, are the “sole” authority governing a motion to disqualify. Motions to disqualify are
substantive motions affecting the rights of the parties and are determined by applying standards
developed under federal law.
The district court's authority to promulgate local rules is derived from 28 U.S.C. § 2071, which
allows the courts only to adopt “rules for the conduct of their business.” Thus, although the
district court should determine rules for the conduct of attorneys for the purpose of identifying
conduct subject to sanctions, its local rules alone cannot regulate the parties’ rights to counsel
of their choice.
IV
We apply specific tests to motions to disqualify counsel in circumstances governed by statute or
the Constitution. When presented with a motion to disqualify counsel in a more generic civil
case, however, we consider the motion governed by the ethical rules announced by the national
profession in the light of the public interest and the litigants’ rights. Our source for the standards
of the profession has been the canons of ethics developed by the American Bar Association.
We have applied particularly the requirement of canon 5 that a lawyer exercise “independent
professional judgment on behalf of the client” and the admonition of canon 9 that lawyers should
“avoid even the appearance of impropriety.”

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Our most far-reaching application of the national standards of attorney conduct to an attorney’s
obligation to avoid conflicts of interest is Woods v. Covington County Bank. We held in Woods
that standards such as the ABA canons are useful guides but are not controlling in adjudicating
such motions. The considerations we relied upon in Woods were whether a conflict has (1) the
appearance of impropriety in general, or (2) a possibility that a specific impropriety will occur,
and (3) the likelihood of public suspicion from the impropriety outweighs any social interests
which will be served by the lawyer's continued participation in the case.
We applied the Woods standard to a conflict that arose when an attorney brought a suit against
a former client in Brennan's Inc. v. Brennan's Restaurant, Inc. In Brennan’s, the plaintiffs moved
to have the court disqualify the attorney for the defendants because, prior to the litigation, the
attorney had jointly represented both parties. We affirmed the disqualification of the attorney,
holding that an attorney could not sue a former client in a matter substantially related to the
representation of a former client. Similarly, in Wilson P. Abraham Construction Corp. v. Armco
Steel Corp., we held that the court should bar an attorney from suing the co-defendant of a
former client if the co-defendants and their attorneys exchanged information.
In Woods, Wilson Abraham, and Brennan’s, we applied national norms of attorney conduct to a
conflict arising after the attorney's prior representation had been concluded. Now, however, we
are confronted with our first case arising out of concurrent representation, in which the attorney
sues a client whom he represents on another pending matter. We thus consider the problem of
concurrent representation under our framework in Woods as tailored to apply to the facts arising
from concurrent representation.
We turn, then, to the current national standards of legal ethics to first consider whether this dual
representation amounts to impropriety. Neither the ABA Model Rules of Professional Conduct
nor the Code of Professional Responsibility allows an attorney to bring a suit against a client
without its consent. This position is also taken by the American Law Institute in its drafts of the
Restatement of the Law Governing Lawyers.
Unquestionably, the national standards of attorney conduct forbid a lawyer from bringing a suit
against a current client without the consent of both clients. Susman’s conduct violates all of
these standards — unless excused or justified under exceptional circumstances not present
here.
Exceptional circumstances may sometimes mean that what is ordinarily a clear impropriety will
not, always and inevitably, determine a conflicts case. Within the framework we announced in
Woods, Susman, for example, might have been able to continue his dual representation if he
could have shown some social interest to be served by his representation that would outweigh
the public perception of his impropriety.52 Susman, however, can present no such reason. There
52

We found above that the Texas rules of discipline do not control a motion to disqualify in federal court.
We are mindful, however, that the Texas rules’ allowance of some concurrent representation is based, in
part, on a concern that concurrent representation may be necessary either to prevent a large company,
such as Dresser, from monopolizing the lawyers of an area or to assure that certain classes of unpopular

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is no suggestion that other lawyers could not ably perform his offices for the plaintiffs, nor is
there any basis for a suggestion of any societal or professional interest to be served. This fact
suggests a rule of thumb for use in future motions for disqualification based on concurrent
representation: However a lawyer's motives may be clothed, if the sole reason for suing his own
client is the lawyer's self-interest, disqualification should be granted.
V
We find, therefore, that Dresser's right to the grant of its motion to disqualify counsel is clear
and indisputable. We further find that the district court clearly and indisputably abused its
discretion in failing to grant the motion. We have thus granted the petition and have issued the
writ of mandamus, directing the United States District Court for the Southern District of Texas to
enter an order disqualifying Stephen D. Susman and Susman Godfrey from continuing as
counsel to the plaintiffs.
Questions:
1. Why did the circuit court think a conflict of interest existed? Why did the court think
Dresser did not or could not provide consent?
2. Should the court have applied the Texas rule or the model rule?

clients receive representation. Although we do not now reach the matter, our consideration of social
benefit to offset the appearance of impropriety might allow such a representation if the balance clearly
and unequivocally favored allowing such representation to further the ends of justice.
We believe, moreover, that the Texas rules are drawn to allow concurrent representation as the exception
and not the rule. Even if the Texas rules had applied, no special circumstances being present here, Texas
rule 1.06’s prohibition of representation of potentially adverse interests would have barred the
representation.

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4.5: Former Client Conflicts of Interest
It's harder to be friends than lovers, and you shouldn't try to mix the two. ‘Cause if you do it and
you’re still unhappy, then you know that the problem is you.53
Attorneys have fiduciary duties not only to their current clients, but also to their former clients.
While some of an attorney’s fiduciary duties apply only to current clients, other duties survive
the attorney-client relationship. For example, the duty of care typically applies only to current
clients, although an attorney may also have a duty of care not to negligently harm the interests
of former clients. The duty of loyalty applies primarily to current clients, but also applies to
former clients in certain circumstances. And the duty of confidentiality applies with equal force to
both current and former clients.
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.
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.
c. A lawyer who has formerly represented a client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:
1. use information relating to the representation to the disadvantage of the former
client except as these Rules would permit or require with respect to a client, or
when the information has become generally known; or
2. reveal information relating to the representation except as these Rules would
permit or require with respect to a client.
Rule 1.9 Duties To Former Clients, Comment [2]
The scope of a “matter” for purposes of this Rule depends on the facts of a particular situation
or transaction. The lawyer’s involvement in a matter can also be a question of degree. When a
lawyer has been directly involved in a specific transaction, subsequent representation of other
clients with materially adverse interests in that transaction clearly is prohibited. On the other
hand, a lawyer who recurrently handled a type of problem for a former client is not precluded
from later representing another client in a factually distinct problem of that type even though the
53

Liz Phair, Divorce Song, Exile in Guyville (1993).

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subsequent representation involves a position adverse to the prior client. Similar considerations
can apply to the reassignment of military lawyers between defense and prosecution functions
within the same military jurisdictions. The underlying question is whether the lawyer was so
involved in the matter that the subsequent representation can be justly regarded as a changing
of sides in the matter in question.
Rule 1.9 Duties To Former Clients, Comment [3]
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. For example, a lawyer who has represented a
businessperson and learned extensive private financial information about that person may not
then represent that person’s spouse in seeking a divorce. Similarly, a lawyer who has previously
represented a client in securing environmental permits to build a shopping center would be
precluded from representing neighbors seeking to oppose rezoning of the property on the basis
of environmental considerations; however, the lawyer would not be precluded, on the grounds of
substantial relationship, from defending a tenant of the completed shopping center in resisting
eviction for nonpayment of rent. Information that has been disclosed to the public or to other
parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a
prior representation may have been rendered obsolete by the passage of time, a circumstance
that may be relevant in determining whether two representations are substantially related. In the
case of an organizational client, general knowledge of the client’s policies and practices
ordinarily will not preclude a subsequent representation; on the other hand, knowledge of
specific facts gained in a prior representation that are relevant to the matter in question
ordinarily will preclude such a representation. 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.
Wilson P. Abraham Const. v. Armco Steel Corp., 559 F. 2d 250 (5th Cir. 1977)
Summary: Stephen D. Susman represented Whitlow Steel in a Texas federal antitrust
conspiracy action. Armco, Ceco, and Laclede were Whitlow’s co-defendants in that
action, and were also the defendants in a Louisiana federal antitrust conspiracy action.
Ultimately, they pleaded to all of the charges. William E. Wright filed a civil action against
Whitlow, Armco, Ceco, and Laclede in Texas, on behalf of Wilson P. Abraham
Construction. And then Wright filed an action against Armco, Ceco, and Laclede in
Louisiana, and hired Susman as co-counsel. Defendant’s in the Louisiana action filed a
motion to disqualify Susman because he represented Whitlow in the antitrust conspiracy
action. The district court denied the motion, and the circuit court vacated and remanded
for the district court to determine whether Susman received confidential information.

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This is an appeal from an order of the district court denying the defendants’ motion to disqualify
counsel for plaintiff. Though the appeal is not from a final judgment in the traditional sense, we
take jurisdiction of it as a collateral matter severable from the underlying suit, and too important
to be denied review at this time.
This dispute centers around exactly what relationship cocounsel for the plaintiff, a Mr. Stephen
D. Susman, had with the various defendants in this suit in a prior legal matter. The factual
background which leads up to this current dispute is somewhat detailed and complicated. It
begins in 1972 when Mr. Susman was associated with the firm of Fulbright and Jaworski in
Houston, Texas. At that time, he undertook to represent Whitlow Steel Company, Inc., an
independent rebar fabricator in Houston. This representation was in connection with a Federal
Grand Jury investigation of the rebar steel industry in Texas. In August 1973, charges of
antitrust violations were levied against Whitlow, Armco Steel Corp., The Ceco Corp., and
Laclede Steel Company. Armco, Ceco, and Laclede are the defendants in the present action
before this court. As counsel for Whitlow, Mr. Susman met on more than one occasion with the
representatives of Armco, Ceco, and Laclede. At these meetings some efforts allegedly were
made to develop a cooperative defense. Exactly what information was exchanged, and the
importance of that information, is hotly disputed. Mr. Susman contends that the meetings were
disorganized and nothing of substance was ever discussed. The defendants contend that
documents were in fact discussed and disseminated, grand jury witness lists were prepared,
and reports were given as to exactly what testimony was being presented before the grand jury
by the various witnesses. The gist of the defendants’ argument is that Mr. Susman was privy to
a substantial amount of confidential information. Mr. Susman flatly denies this.
At the same time of the grand jury investigation of the Texas steel industry, a separate grand
jury investigation of the Louisiana steel industry was underway. In April 1974, four mills
(including Armco, Ceco, and Laclede), an independent fabricator, and five individuals were
indicted for “bid rigging.” All defendants except one pled nolo contendere to the Louisiana
indictment. After Armco, Ceco, and Laclede were sentenced in Louisiana, they filed motions to
dismiss the Texas indictment. They argued that because of the close relationship of the Texas
case to the Louisiana case, the double jeopardy clause prevented further prosecution. The
Texas district court refused to rule on the defendants’ motion at that time saying that the motion
presented such a close factual question that it could not be ruled on until the court heard all the
evidence at trial. This ruling prompted the defendants to enter pleas in order to avoid trial.
The final fact which needs to be brought out to fully understand the controversy before this
Court is that some time after the Texas grand jury investigation, a civil suit was filed in Texas
against Whitlow and the defendants in this suit. The counsel for the plaintiff in that suit was a
Mr. William E. Wright. That civil suit is still pending, but at the time it was filed Mr. Susman was
still counsel for Whitlow. Mr. Susman, however, denies that anything of substance was done in
connection with the defense of that case where he represented Whitlow.

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We are now in a position to set forth exactly what the present controversy involves. The plaintiff
in the present suit, Wilson P. Abraham Construction Corporation, has filed a civil suit in
Louisiana based primarily upon some facts which led to the Louisiana indictments. Counsel for
the plaintiff in this suit is William E. Wright, the same person who had been counsel for another
party in the Texas civil suit in which Mr. Susman represented Whitlow Steel Company. The
defendants allege that the complaint in this case is virtually identical to the Texas complaint in
which they were also party defendants. In any event, Mr. Wright has sought to engage Mr.
Susman as co-counsel in this case. The defendants are challenging this alleging basically that
Mr. Susman has a conflict of interest because of his previous relationship with them when he
represented Whitlow Steel Company.
The law in this Circuit is fairly straightforward. This Court has recently reaffirmed with regards to
attorney disqualification that a former client seeking to disqualify an attorney who appears on
behalf of his adversary, need only to show that the matters embraced within the pending suit are
substantially related to the matters or cause of action wherein the attorney previously
represented him. This rule rests upon the presumption that confidences potentially damaging to
the client have been disclosed to the attorney during the former period of representation. The
Court may not even inquire as to whether such disclosures were in fact made or whether the
attorney in fact is likely to use the damaging disclosures to the detriment of his former client.
The inquiry is limited solely to whether the matters of the present suit are substantially related to
matters of the prior representation, and this is because this Court recognizes that in order to aid
the frank exchange between attorney and client, it is necessary to preclude even a possibility
that information given in confidence by a former client will ever be used without that client's
consent. The law in this Circuit is, of course, little more than a reinforcement of the Code of
Professional Responsibility, Ethical Considerations, and Disciplinary Rules, promulgated by the
American Bar Association and adopted by the Supreme Court of Louisiana effective July 1,
1970.
The case before us, however, presents somewhat of a twist to the usual attorney-client
controversy. It is not a former client of Mr. Susman who seeks to disqualify him, but rather codefendants of a former client. The defendants here contend that in a case alleging conspiracy,
such as the case at bar, the defendants have a right to consult together about the case, and that
all information derived by any of the counsel from such consultation is necessarily privileged.
The defendants persuasively argue that in a joint defense of a conspiracy charge, the counsel of
each defendant is, in effect, the counsel of all for the purposes of invoking the attorney-client
privilege in order to shield mutually shared confidences. We agree, and hold that when
information is exchanged between various co-defendants and their attorneys that this exchange
is not made for the purpose of allowing unlimited publication and use, but rather, the exchange
is made for the limited purpose of assisting in their common cause. In such a situation, an
attorney who is the recipient of such information breaches his fiduciary duty if he later, in his
representation of another client, is able to use this information to the detriment of one of the codefendants. Just as an attorney would not be allowed to proceed against his former client in a
cause of action substantially related to the matters in which he previously represented that
client, an attorney should also not be allowed to proceed against a co-defendant of a former

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client wherein the subject matter of the present controversy is substantially related to the
matters in which the attorney was previously involved, and wherein confidential exchanges of
information took place between the various co-defendants in preparation of a joint defense.
Having stated the bare facts of this rather complicated dispute, and having set forth the law, we
unfortunately are unable to presently resolve the controversy. Exactly what information was
exchanged between Mr. Susman when he represented Whitlow Steel Company and worked
with counsel for the various defendants is greatly contested. Here there is no presumption that
confidential information was exchanged as there was no direct attorney-client relationship. Mr.
Susman should not be disqualified unless the trial court should determine that Mr. Susman was
actually privy to confidential information. The parties also have a completely different version as
to the similarity of the Texas grand jury investigation and the Louisiana investigation, and
whether or not these investigations are substantially related to the present case.
Under these circumstances it is impossible for us to resolve this matter without some specific
factual findings by the trial judge as to the content of the information which was exchanged and
whether or not the present controversy is substantially related to the prior one. Nowhere in our
search of the record were we able to find any findings made by the trial judge before he denied
the defendants’ motion to disqualify Mr. Susman. Consequently, we set aside the district court
order denying the defendants’ motion for disqualification and remand for the entry of formal
findings of fact and conclusions of law dealing with these issues.
Doe v. A Corporation, 709 F. 2d 1043 (5th Cir. 1983)
Summary: Attorney John Doe was in-house counsel to A Corporation. Among other
things, Doe advised A on its employee benefits. In 1980, Doe quit and filed an ERISA
class action against A, alleging multiple claims, and seeking to represent a class of
plaintiffs with similar claims. A filed a motion to dismiss Doe’s action, and Doe withdrew
as class counsel. The district court granted summary judgment to A, because Doe had
received confidential information about A. The circuit court held that Doe could not
represent the class or serve as class representative, because it would violate his duty of
confidentiality to A. But it held that Doe could pursue his own claim against A.
ALVIN B. RUBIN, Circuit Judge:
A lawyer employed as house counsel for a corporation rendered legal advice concerning
employee benefits to the corporation and to the administrators of its benefit plan. After he
resigned from employment with the corporation, he sued for benefits allegedly due him under
the corporation's pension and life insurance plans. He also sought to represent a class of other
employees allegedly entitled to those benefits. We affirm the district court’s judgment holding
that he is barred by his ethical obligations as a lawyer from prosecuting such litigation as the
class representative of other employees. However, we hold that he may prosecute an action in
his own behalf and reverse that part of the judgment dismissing his personal claims.

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I.
The plaintiff, who is identified as John Doe,54 was employed in the legal department of A
Corporation from 1975 to 1980. In his professional capacity as a lawyer, he consulted with and
advised both A Corporation and the administrators of its Benefit Plan concerning legal questions
about employee benefits, including those arising in the course of the administration of the
Benefit Plan and those involving A Corporation’s group life insurance policy and other benefits.
He made daily decisions concerning the rights of individual employees and the acceptability of
their beneficiary designations, gave the plan administrators legal advice, and worked with other
lawyers in drafting plan provisions. These duties continued until Doe was transferred to A
Corporation’s litigation section in April 1979. He resigned in March 1980.
Eleven months later Doe filed suit against A Corporation and X Insurance Company, asserting a
claim arising under the Employee Retirement Income Security Act of 1974, as well as pendent
claims arising under state law. Doe alleged that X Insurance Company had issued a group
policy insuring the lives of A Corporation's employees. He alleged that premiums were paid on a
contributory basis, partly by A Corporation and partly by its employees. As a result of its
favorable experience, Doe claimed, X Insurance Company had paid dividends to A Corporation,
which A Corporation retained without disclosing their receipt to its employees or to “the
appropriate federal and state agencies.” Doe also contended that he was improperly denied
conversion of his policy to a “comparable term life” policy upon termination of his employment
and was offered only the right to convert to whole life insurance. Doe conceded that, as part of
his legal duties for A Corporation, he had advised the corporation whether it had a duty to
disclose its receipt of dividends to plan participants.
In a separate suit against A Corporation and its Benefit Plan, Doe contended that his pension
benefits should have been vested when he resigned. This claim was based on a provision in the
plan, required by ERISA, vesting plan benefits in an employee who has been employed for five
years. Doe had completed four years and 1600 hours of employment and argued that this was
legally sufficient for vesting under the plan and the applicable federal statute.
Doe signed the pleadings in each suit as co-counsel. In each he sought, in addition to
prosecuting his own claim, to appear as representative of a class of employees having like
claims. In each he sought broad relief for the members of the class, including equitable relief
and damages, a “special award” for himself of one-third of any recovery, and an attorney's fee
for himself and his co-counsel based on a percentage of the class recovery.

54

To prevent identification of the company and the possible disclosure of confidential information
concerning its affairs, the district court granted the defendant corporation's motion to seal the record;
require the suit to be prosecuted without revealing the name of either the lawyer or the corporation; and
enjoin Doe and his co-counsel from pursuing any actions arising out of the facts on which his suits were
based, communicating with other persons to induce them to bring a similar action, and disclosing or using
any information Doe gained during his employment by the corporation.

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A Corporation filed a motion to dismiss, to enjoin Doe and his co-counsel from prosecuting the
suit, and to seal the record on the ground that Doe was barred from initiating a lawsuit because
its prosecution would result in his violating the attorney-client privilege and in his disclosing
confidential information. Benefit Plan, represented by the same counsel as A Corporation,
joined in the motion. Doe withdrew as co-counsel for the class but continued to assert his right
to appear both as an individual plaintiff and as a representative of the plaintiff class.
The district court treated the motion as one for summary judgment. It granted the motion,
holding that Doe was disqualified to sue either A Corporation or Benefit Plan because they were
his former clients. Relying on an irrebuttable presumption that the substantial relationship
between Doe’s duties for A Corporation and the issues in the suit would lead Doe to use his
former clients’ confidential information to their detriment in prosecuting the action, the court
dismissed both suits with prejudice to Doe but without prejudice to a suit by any present or
future employee of A Corporation.
A client is usually entitled to counsel of his choice. But the lawyer may be forbidden by ethical
strictures to accept tendered employment. Because Doe has now withdrawn as counsel, we
must go beyond the question whether he would be barred from acting as a lawyer for others
whose interests conflict with those of his former client and consider how those ethical standards
constrain his conduct in representing others as class representative, albeit not lawyer, and in
asserting his own claims.
II.
The attorney-client privilege is evidentiary. A client may invoke it to prevent his lawyer from
revealing communications made in confidence to the lawyer while acting in the capacity of
professional legal adviser for the purpose of obtaining legal advice. However, during the course
of representing a client, a lawyer may receive information that is not shielded by the privilege
but is considered confidential by the client. He may, for example, receive information from some
source other than the client or information imparted for a purpose other than obtaining legal
advice.
Some of the information Doe acquired about A Corporation’s affairs was protected by the
attorney-client privilege. However, he apparently gained other information that was not
privileged. For example, he apparently saw letters and other documents that originated with X
Insurance Company and received and answered questions from other A Corporation employees
about their rights.
The Code of Professional Responsibility seeks to safeguard both the attorney-client privilege
and other confidential information by restricting a lawyer's ability to accept employment that
would threaten disclosure of either. Canon 4 deals directly with the matter: “A Lawyer Should
Preserve the Confidences and Secrets of a Client.” But other principles are also applicable, for
Canon 9 states, “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.”

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These provisions protect not only against disclosure of privileged communications but also
against the revelation of confidential information that is not privileged.
Ethical Consideration 4-4 states: “The attorney-client privilege is more limited than the ethical
obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept,
unlike the evidentiary privilege, exists without regard to the nature or source of information or
the fact that others share the knowledge.” The ethical duty extends to shielding the
confidentiality of all information acquired in the course of representing a client, preventing the
use of any such knowledge to the client's disadvantage. “The use of the word ‘information’ in
these Ethical Considerations as opposed to ‘confidence’ or ‘secret’ is particularly revealing of
the drafters’ intent to protect all knowledge acquired from a client without regard to whether
someone else may be privy to it.”
Adherence to Canon 4 requires that a lawyer be disqualified from representing a party to
litigation if the adversary party can show that matters in the pending suit are substantially
related to matters in which the attorney previously represented the adversary. A substantial
relationship between issues in a lawsuit and a lawyer's earlier work for an adversary may also
serve as the basis for disqualification under Canon 9.
If a lawyer seeks to act adversely to his former client in a matter that might involve disclosure of
information acquired during the prior employment, the former client need not prove that the
lawyer has used or is likely to use such information in order to disqualify the lawyer representing
the party suing him. There is a conclusive and irrebuttable presumption that permitting the
lawyer who has switched loyalties to represent the adversary of a former client in substantially
related litigation will lead to disclosure and misuse of confidential information obtained during
the previous representation.
The applicability of Canon 9 turns on whether the moving party has shown that there is a
reasonable possibility of the occurrence of some specifically identifiable improper conduct and
whether the likelihood of public suspicion outweighs the social interest in the lawyer’s continued
participation in the case.
If Doe were still attempting to represent the class as its lawyer, he would have a patent conflict
of interest.
It must be remembered that the attorney in such situations as this does not have the
shelter enjoyed by a defendant whose adversary must meet a burden of proof. Where
conflict of interest or abuse of professional confidence is asserted, the right of an
attorney freely to practice his profession must, in the public interest, give way in cases of
doubt.
The standard of ethical conduct not only disqualifies Doe from representing a class as lawyer
but also bars him from disclosing information he received from A Corporation to some other
lawyer. A lawyer is not merely a panderer who is to do for a client anything that the client would

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like to do himself had he but the lawyer’s knowledge. As a member of a profession that enjoys
the exclusive license to engage in the practice of law, he is required to deny requests that would
violate the ethical tenets of his profession even at the sacrifice of self-interest.
The responsibilities of a class representative are not identical to those of the lawyer for the
class. The class representative need not be a member of the bar and is not subject to the
profession’s ethical constraints. But a representative owes duties to the class that require him to
exert the utmost diligence on behalf of all of its members. To allow Doe to act as class
representative would create a tension between his obligation as representative to do all he can
to vindicate the rights of the class members and his personal ethical duty to protect A
Corporation’s secrets. A lawyer may not, simply by assuming a new identity, escape the
strictures that would govern his conduct were he representing the class as counsel. Doe
contends that he must be permitted to represent the class because he has yet another identity
as a fiduciary for Benefit Plan and his fellow employees of A Corporation. Although the attorneyclient privilege may be inapplicable when either the lawyer or the client stands in a fiduciary
relationship to the party seeking disclosure, Doe simply was not such a fiduciary. He was a
lawyer for and representative of A’s corporate interest.
If there are meritorious causes of action against A Corporation, someone other than Doe can
and must file the suit as class representative just as someone other than he must act as class
counsel. Obviously, Doe may not divulge information that would enable another to volunteer as
class representative. If no other class member ever learns of the claim, it may go forever
unvindicated. The lawyer’s duty to his client creates the possibility that his silence will permit
valid claims to lie unasserted.
III.
The assertion of ethical barriers to Doe’s attempt to vindicate his personal claims creates a
conflict with another fundamental policy: the availability of a legal forum for the adjudication of
rights. The Supreme Court has recognized that, in some circumstances, access to courts is
protected by the due process clause. While the principle does not give any broad “right” of
access to federal court, the courtroom door should not lightly be barred to a person who has a
tenable legal claim.
The conflict between protection of the client’s need for confidentiality and the lawyer’s
opportunity to assert claims against that client cannot be resolved on the basis that one enjoys
universal primacy over the other. The Code makes confidentiality the general principle but
recognizes exceptions to the prohibition against divulging even a client's secrets. Thus, a lawyer
may reveal confidential information and secrets when it is necessary for him to do so to prevent
the client from committing a crime, to collect a fee, or to defend himself against an accusation of
wrongful conduct. The rationale for the last of these exceptions is: “It would be a manifest
injustice to allow the client to take advantage of the rule of exclusion as to professional
confidence to the prejudice of his attorney, or that it should be carried to the extent of depriving
the attorney of the means of obtaining or defending his own rights.”

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In none of the cases relied upon by A Corporation has a lawyer been prohibited from asserting a
personal cause of action. In Richardson v. Hamilton International Corp., the plaintiff was an
attorney who held stock in the defendant corporation. He had represented the corporation in his
private practice before filing the lawsuit. He filed a shareholder’s derivative action as a class
action. The court disqualified him from appearing as a lawyer in the action and prohibited him
from maintaining the suit while recognizing that another shareholder could maintain the action.
Because a derivative suit is brought on behalf of the corporation, not the suing individual, the
lawyer was not seeking to assert a cause of action to vindicate his personal rights.
Meyerhofer v. Empire Fire & Marine Insurance Co. contains language arguably to the contrary.
The court affirmed a district court decision “to the extent that the orders appealed from prohibit
the attorney from acting as a party or as an attorney for a party.” Yet the court had earlier in its
opinion stated: “The attorney never sought to ‘prosecute litigation,’ either as a party or as
counsel for a plaintiff party.”
The distinction between what is forbidden to the lawyer appearing as an attorney-at-law and
what is permitted an individual who is a lawyer but asserts only his personal rights was drawn in
Hull v. Celanese. The court affirmed the disqualification of a law firm seeking to represent a
potential intervenor in a sex discrimination suit. The intervenor was herself a lawyer and an
employee of the defendant; she had worked on the defense of the sex discrimination suit in
which she sought to intervene. The court made clear that: “This decision should not be read to
imply that the lawyer cannot pursue her claim of employment discrimination based on sex.”
In an attempt to demonstrate that Doe has been guilty of unethical conduct that should be
added to the balance against him, A Corporation has brought to our attention material of record
indicating impropriety. Before filing suit, Doe threatened A Corporation with litigation on behalf of
a purported class if it did not meet demands that included the payment to him of a “contingent
attorney fee” of 10% of a fund he described as “millions of dollars.” From his actions thereafter,
something other than a disinterested effort to vindicate the rights of a group of wronged
employees might be inferred. When he filed suit, he did not seek only redress for his own claims
and for those members of the classes he wished to represent: in the suit involving the group
insurance, he demanded payment to himself, personally, of a “special award” of one-third of the
“class” recovery, which he asserted to be in the “millions,” as well as treble damages, and he
sought “at least $300,000” as personal recompense in the suit against the Benefit Plan. In
addition, he signed the complaints as co-counsel, and sought to be awarded an attorneys’ fee in
both actions, the fee in the group insurance suit to be based on a “percentage” of the “class”
recovery. If, indeed, it develops after the facts are fully explored that Doe attempted either to
blackmail or to mulct the corporation, we do not condone that conduct. If he has violated the
Code of Professional Responsibility, disciplinary charges should be brought against him. The
district court did not, however, dismiss Doe’s personal claim because of his misconduct. The
district judge granted summary judgment on the basis that Doe’s prior representation of A
Corporation was a per se bar. A lawyer, however, does not forfeit his rights simply because to

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prove them he must utilize confidential information. Nor does the client gain the right to cheat
the lawyer by imparting confidences to him.
The sole interest A Corporation can assert, other than defeating Doe's claim, is preservation of
confidentiality for the secrets Doe learned while in its employment. The corporation’s interest in
confidentiality, however, can be at least partially protected by anonymity. There is no social
interest in allowing the corporation to conceal wrongdoing, if in fact any has occurred. Nor is
there any social interest in allowing it to deny Doe pension rights or insurance benefits if they
are legally due him. But that would be the effect of our refusing to allow Doe to prosecute his
individual lawsuit.
IV.
Doe, in turn, seeks to disqualify counsel for the defendants on the basis that they represent both
A Corporation and the Benefit Plan, whose interests are allegedly conflicting. He relies on
Disciplinary Rule 5-105(B), which provides: “A lawyer shall not continue multiple employment if
the exercise of his independent professional judgment in behalf of a client will be or is likely to
be adversely affected by his representation of another client, or if it would be likely to involve
him in representing differing interests, except to the extent permitted under DR 5-105(C).”
Counsel representing both A Corporation and Benefit Plan assert that they have made a full
disclosure to their respective clients and that both have consented to the joint representation,
waiving any possible claim of conflict of interest which may arise. A potential or even real
conflict of interest may, of course, be waived, even in criminal cases. At the moment, A
Corporation and Benefit Plan share an important common interest in seeking to prevent misuse
of their confidences by their former lawyer and employee. While their interests may at some
time diverge, it is for them, once fully informed, to determine whether their lawyer can be faithful
to both of their interests.
Accordingly, we AFFIRM as much of the judgment as dismisses the class action claims in both
suits without prejudice, places the case records under seal, and enjoins Doe and co-counsel
from communicating with other persons to induce them to file suit and from disclosing any
confidential information Doe gained during his employment by A Corporation. We REVERSE
the judgment insofar as it dismisses Doe’s personal claim with prejudice and REMAND for
further proceedings consistent with this opinion. Each party shall bear its own costs.

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Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F. 2d 168 (5th Cir. 1979)
Summary: The Brennan family owned Brennan’s, Inc. in New Orleans and Brennan’s
Restaurants, Inc., which operated other restaurants. Edward F. Wegmann was general
counsel for all of the family businesses, and helped them register trademarks. After a
dispute, the family divided the enterprise, but did not determine rights to the trademarks.
Brennan’s Restaurants filed a trademark infringement action against Brennan’s, which
hired Wegmann to represent it. Wegmann hired Arnold Sprung, a trademark specialist,
as co-counsel. Brennan’s Restaurants filed a motion to disqualify Wegmann and Sprung,

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which the district court grant. The circuit court affirmed the disqualification of Wegmann,
based on the appearance of impropriety, but vacated and remanded the disqualification
of Sprung, to determine whether he actually learned any confidential information from
Wegmann.
TJOFLAT, Circuit Judge:
This is an action for trademark infringement and unfair competition. This appeal, however,
concerns the disqualification of attorneys. The district court barred the appellants’ attorneys
from further representing them on grounds of conflict of interest. The correctness of this order is
the only issue before us.
I
The underlying dispute in this case arises out of the business affairs of the Brennan family of
New Orleans, Louisiana, who have been in the restaurant business for many years. All of the
corporate parties are owned and closely held by various members of the Brennan family.
Appellee Brennan’s, Inc., the plaintiff below, owns and operates Brennan’s restaurant at 417
Royal Street in New Orleans. The corporate appellants own and operate other restaurants in
Louisiana, Texas, and Georgia. There has been no trial as yet, but a review of the facts leading
to the present suit, as disclosed by the pleadings and affidavits, is necessary to a decision of
this appeal. For convenience, the parties will be referred to in the capacities in which they
appear in the court below.
Prior to 1974, all the members of the Brennan family were stockholders and directors of plaintiff,
and some of them were stockholders and directors of the corporate defendants. All the
corporations were independent legal entities in the sense that none held any of the stock of
another, but they were all owned by members of the Brennan family and had interlocking boards
of directors. In 1971, Edward F. Wegmann became general counsel for the family businesses,
and his retainer was paid pro rata by all the corporations. He continued this joint representation
until November 1973.
As part of his services, Mr. Wegmann, in close cooperation with trademark counsel in
Washington, D.C., prosecuted applications for the federal registration of three service marks:
“Brennan’s,” “Breakfast at Brennan’s,” and a distinctive rooster design. A registration for the
rooster design was issued in February 1972, but the applications for the other two marks were
initially denied on the ground that they were primarily a surname. On the advice of Washington
trademark counsel, Mr. Wegmann collected data supporting a demonstration that the marks had
acquired a secondary meaning, and the applications were amended to include this material.
Registrations were subsequently issued in plaintiff's name in March 1973. These registered
service marks are the subject of this lawsuit.
Later in 1973 a dispute developed within the Brennan family over the operation and
management of the family businesses. This dispute was resolved in November 1974 by dividing

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the corporations’ stock between the two opposing family groups. Plaintiff became 100% owned
by one group and the corporate defendants became 100% owned by the second group,
composed of the individual defendants. Mr. Wegmann elected to continue to represent
defendants and severed his connections with plaintiff and its shareholders.
At no time during the negotiations which culminated in the November 1974 settlement was there
any discussion of who would have the right to use the registered service marks. Both sides
claimed ownership of the marks and continued to use them after the settlement. Attempts to
negotiate a license or concurrent registration were unsuccessful. Plaintiff filed this suit for
trademark infringement and unfair competition on May 21, 1976. In their answer and
counterclaim defendants alleged that the marks were registered in plaintiff’s name for
convenience only, and, “in truth and actuality, the applications were filed and the registrations
issued for the benefit and ownership of all of the Brennan family restaurants, including the
corporate defendants.” Defendants also alleged that the marks and registrations are invalid.
Upon the filing of this suit, Mr. Wegmann, on behalf of the defendants, retained the services of
Arnold Sprung, a New York patent and trademark attorney, to assist him in the defense of the
case. On October 22, 1976, plaintiff moved for the disqualification of both attorneys: Mr.
Wegmann on the ground that his present representation was at odds with the interests of
plaintiff, his former client, and Mr. Sprung by imputation of Mr. Wegmann’s conflict. After a
hearing, the district court granted the motion. It found that the subject matter of the present suit
is substantially related to matters in which Mr. Wegmann formerly represented plaintiff, and to
allow him now to represent an interest adverse to his former client creates the appearance of
impropriety. It also found that “the close working relationship which has been shown to exist
between Mr. Wegmann and Mr. Sprung creates a significant likelihood that Mr. Sprung would
have had access to or been informed of confidential disclosures made to Mr. Wegmann by his
former client.”
II
We first consider the disqualification of Mr. Wegmann.
Defendants argue that the district court failed to consider that in his prior representation of
plaintiff, Mr. Wegmann also represented defendants. This fact of joint representation is crucial,
they assert, since no confidences can arise as between joint clients. Hence, the argument goes,
Mr. Wegmann violates no ethical duty in his present representation.
We have not addressed this precise question before. In Wilson P. Abraham Construction Corp.
v. Armco Steel Corp., we reaffirmed the standard that “a former client seeking to disqualify an
attorney who appears on behalf of his adversary, need only to show that the matters embraced
within the pending suit are substantially related to the matters or cause of action wherein the
attorney previously represented him,” but we acknowledged that “this rule rests upon the
presumption that confidences potentially damaging to the client have been disclosed to the
attorney during the former period of representation.” Defendants contend that this presumption

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cannot apply in this case. This argument, in our view, interprets too narrowly an attorney’s duty
to “preserve the confidences and secrets of a client.” The fundamental flaw in defendants’
position is a confusion of the attorney-client evidentiary privilege with the ethical duty to
preserve a client’s confidences. Assuming the prior representation was joint, defendants are
quite correct that neither of the parties to this suit can assert the attorney-client privilege against
the other as to matters comprehended by that joint representation. But the ethical duty is
broader than the evidentiary privilege: “This ethical precept, unlike the evidentiary privilege,
exists without regard to the nature or source of information or the fact that others share the
knowledge.” “A lawyer should not use information acquired in the course of the representation of
a client to the disadvantage of the client.” The use of the word “information” in these Ethical
Considerations as opposed to “confidence” or “secret” is particularly revealing of the drafters’
intent to protect all knowledge acquired from a client, since the latter two are defined terms.
Information so acquired is sheltered from use by the attorney against his client by virtue of the
existence of the attorney-client relationship. This is true without regard to whether someone else
may be privy to it. The obligation of an attorney not to misuse information acquired in the course
of representation serves to vindicate the trust and reliance that clients place in their attorneys. A
client would feel wronged if an opponent prevailed against him with the aid of an attorney who
formerly represented the client in the same matter. As the court recognized in E.F. Hutton & Co.
v. Brown, this would undermine public confidence in the legal system as a means for
adjudicating disputes. We recognize that this concern implicates the principle embodied in
Canon 9 that attorneys “should avoid even the appearance of professional impropriety.” We
have said that under this canon there must be a showing of a reasonable possibility that some
specifically identifiable impropriety in fact occurred and that the likelihood of public suspicion
must be weighed against the interest in retaining counsel of one’s choice. The conflict of interest
is readily apparent here, however, and we think that the balance weighs in favor of
disqualification. The need to safeguard the attorney-client relationship is not diminished by the
fact that the prior representation was joint with the attorney’s present client. Since the district
court's findings of prior representation and substantial relationship are not disputed, we affirm
the disqualification of Mr. Wegmann.
III
Whether Mr. Sprung should be disqualified presents a more difficult case. He has never had an
attorney-client relationship with plaintiff; the district court disqualified him by imputation of Mr.
Wegmann's conflict. Up to this point we have accepted, for the sake of argument, defendants’
assertion that they were formerly joint clients with plaintiff of Mr. Wegmann. There is no dispute
that plaintiff and defendants were previously represented by Mr. Wegmann simultaneously, but
plaintiff maintains that, at least with respect to the registration of the service marks, Mr.
Wegmann was representing plaintiff alone. The district court made no findings on the issue.
Because we think that the disqualification of Mr. Sprung may turn on this fact and others not
found by the court below, we vacate that part of the court's order relating to Mr. Sprung and
remand the cause for further proceedings. For the guidance of the court on remand, we set forth
our view of the applicable ethical standards.

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If the court finds that Mr. Wegmann previously represented plaintiff and defendants jointly, we
can see no reason why Mr. Sprung should be disqualified. As between joint clients there can be
no “confidences” or “secrets” unless one client manifests a contrary intent. Thus, Mr. Sprung
could not have learned anything from Mr. Wegmann that defendants did not already know or
have a right to know. Plaintiff argues that this permits the defendants indirectly to gain the
benefit of Mr. Wegmann’s services when they could not do so directly. If the representation was
joint, however, defendants possess no information as to which plaintiff could have had any
expectation of privacy in relation to the defendants. The only remaining ground for
disqualification then would be an appearance of impropriety. In Part II of this opinion, we
decided there is such an appearance when an attorney represents an interest adverse to that of
a former client in a matter substantially related to the subject of the prior representation. Mr.
Sprung has never been plaintiff’s counsel, however; he is only the cocounsel of one who was.
We are enjoined not to give Canon 9 an overly broad application and to maintain “a reasonable
balance between the need to ensure ethical conduct on the part of lawyers and other social
interests, which include the litigant's right to freely chosen counsel.” In the case of Mr. Sprung,
we think the balance weighs against disqualification. Assuming that Mr. Wegmann’s prior
retainer was joint, plaintiff has suffered no actual prejudice from communications between Mr.
Wegmann and Mr. Sprung. There is a possibility that Mr. Sprung has obtained informally
information that he would otherwise have had to seek through discovery. The Second Circuit
has indicated that circumvention of the discovery rules is grounds for automatic disqualification.
This seems to us an overly rigid approach. In a disqualification case, it is well to remember that
“in deciding questions of professional ethics men of good will often differ in their conclusions.”
As the Second Circuit itself has said:
When dealing with ethical principles, we cannot paint with broad strokes. The lines are
fine and must be so marked. Guideposts can be established when virgin ground is being
explored, and the conclusion in a particular case can be reached only after painstaking
analysis of the facts and precise application of precedent.
Under the peculiar facts of this case, we do not think there would be such an appearance of
impropriety in Mr. Sprung's continued representation of defendants as to warrant his
disqualification.
If the district court finds that Mr. Wegmann did not previously represent these parties jointly, it
does not necessarily follow that Mr. Sprung should be disqualified. The courts have abjured a
per se approach to the disqualification of cocounsel of disqualified counsel. In the absence of an
attorney-client relationship between Mr. Sprung and plaintiff, a presumption of disclosure of
confidences is inappropriate. Mr. Sprung should not be disqualified unless he has learned from
Mr. Wegmann information the plaintiff had intended not be disclosed to the defendants.
Marcum v. Scorsone, 457 S.W.3d 710 (Ky. 2015)
Summary: Appellants Marcum, Conway, Foster Northrop, and Cheney sought a writ of
prohibition in the Court of Appeals to bar enforcement of an order disqualifying their

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lawyers, the firm Miller, Griffin & Marks, PSC (MGM), in a shareholder-derivative suit
brought by Paul R. Plante, Jr., where the order was granted based on a finding of an
“appearance of impropriety.” The court held that MGM’s representation of two
shareholders and officers of the company while advising the company’s board of
directors did not create an actual conflict of interest. Moreover, the mere appearance of
any resulting impropriety was not sufficient to merit MGM’s disqualification.
OPINION OF THE COURT BY Justice, NOBLE.
Appellants, Frank D. Marcum, James D. Conway, Foster Northrop, and Mark Cheney, sought a
writ of prohibition in the Court of Appeals to bar enforcement of an order disqualifying their
lawyers, the firm Miller, Griffin, & Marks, PSC (MGM), in a shareholder-derivative suit brought
by the Real Party in Interest, Paul R. Plante, Jr., where the order was granted based on a
finding of an “appearance of impropriety.” The Court of Appeals denied the writ, concluding that
one of the prerequisites for a writ, specifically a showing of irreparable harm, had not been
made. This Court concludes that the Appellants have adequately shown the prerequisites for
the availability of a writ and that the trial court applied an incorrect legal standard (“an
appearance of impropriety”) in disqualifying the firm. Moreover, disqualification was improper
under the correct standard (a showing of actual conflict), at least based on the current record
and findings of the trial court. Thus, this Court reverses and remands for entry of the requested
writ.
I. Background
The shareholder-derivative suit underlying this writ action gives an excellent corporate
representation of the infamous “Gordian knot.” The Real Party in Interest (Plante) and the
Appellants (Marcum, Conway, Northrop and Cheney), along with Bill Seanor, began their
journey as the shareholders of Arthrodynamic Technologies Animal Health Division, Inc. (ADT),
a Kentucky corporation that sells veterinary products. Originally, Marcum and Conway each
owned 37.5% of the shares; Cheney owned 10%; and Northrop, Plante, and Seanor each
owned 5%. All six shareholders were originally on the board of directors. Over time, disputes
among the shareholders led to changes in the officers and membership of the corporate board.
In late 2010, Plante and Seanor seized control of the board, apparently having convinced a
majority of the directors that Marcum and Conway had acted improperly, and caused Marcum
and Conway to be removed from the board. Plante and Seanor were installed as the secretary
and president respectively. In February 2011, Conway and Marcum, holding a total of 75% of
the shares of ADT, returned to the board, though Plante and Seanor remained in their role as
officers.
In March 2011, a majority of the board caused the corporation to file a lawsuit against Marcum
and Conway in Fayette Circuit Court alleging breach of fiduciary duties, misappropriation of
corporate funds, and other claims. The suit was later transferred to Woodford Circuit Court.

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Miller, Griffin and Marks (MGM) represented Marcum and Conway individually in that action
through the services of Thomas Miller.
On August 29, 2011, Bioniche Animal Health USA, Inc., which had been ADT’s manufacturer,
filed suit against ADT in federal court over a contract dispute. ADT was defended in the litigation
by Stites Harbison PLLC, a Kentucky law firm, and Sutherland Asbill & Brennan LLP, a firm
headquartered in Atlanta.
In October and November 2011, there was some shaking up of the board’s membership related
to Marcum’s claimed purchase of shares owned by Northrop, Cheney, and Conway. Northrop
tendered his resignation from the board, which was accepted at an October board meeting. In
October, Cheney also executed a resignation letter, addressed to Seanor as president, but the
letter was never delivered and was instead held by Marcum’s counsel. Upon acceptance of
Northrop’s resignation, Bob Watson was named to the board in his stead. On October 31, 2011,
a board meeting was held at which Seanor was removed as president and replaced by Marcum,
Cheney was made vice-president, Seanor was made secretary, and Watson was made
Treasurer.
At the board meetings in October and November 2011, MGM attorneys were present, recorded
minutes, and participated in discussions with the board members. Before the November
meeting, Marcum, acting as president, sent letters to the litigation firms asking that they take no
further action in the Bioniche litigation. At the November 2011 meeting, MGM advised the
directors to settle with Bioniche. Plante was a director at the time, and he objected to the
settlement. Three of the four Appellants (Marcum, Cheney, and Conway) were also on the
board at that time, however, and they, along with Watson, voted in favor of settling. Though the
record does not disclose the exact timing, it appears that the lawsuit by ADT against Marcum
and Conway was also discussed at these meetings, and it was dismissed soon after.
That, however, means that the suit by ADT against Marcum and Conway overlapped with the
Bioniche litigation against ADT. Both were ongoing actions as of the October and November
2011 board meetings. As a result, MGM represented the two individuals, Marcum and Conway,
in an action brought by ADT, at the board’s behest, at the same time that the firm was advising
the board in some capacity about the Bioniche suit.
On January 3, 2012, the underlying shareholder derivative action was filed by Plante and
Seanor (who has since settled his claim) in Fayette Circuit Court. The original complaint named
only two of ADT's directors, Marcum and Conway, as defendants. On April 18, 2012, Northrop
came back on the board, replacing Watson. After some discovery, the complaint was amended
to also name Cheney and Northrop as defendants. The suit alleges, among other things, that
the Appellants had violated various provisions of ADT’s shareholder agreement with respect to
sales of stock. MGM was retained to represent Appellants as they defended against this claim.
Another law firm, Stoll Keenon Ogden, represents ADT, which was included in the suit as a
nominal party on whose behalf Plante has brought the suit.

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On June 18, 2012, Plante moved to disqualify MGM as the counsel for the Appellants, alleging
that because MGM had represented the board, including Plante, in giving advice on the
Bioniche litigation, and because MGM had represented Marcum and Conway individually in
ADT’s suit against them in Woodford County, MGM’s participation in the underlying shareholder
action created a conflict of interest or at least an appearance of impropriety sufficient to require
MGM’s disqualification. In other words, because MGM represented Marcum and Conway
against ADT (of which Plante was a board member) in the Woodford County suit, and then
represented the board in the Bioniche suit (by advising the board), MGM effectively acted as
counsel both against the board and for the board. By extension, Plante, as a shareholder,
argued that MGM had taken a position against him and represented him at the same time.
In January 2013, Marcum, Conway, Cheney, and Northrop met, acting as a quorum of the
board. They adopted a resolution stating that there was no conflict of interest in MGM’s
representation of them “with respect to ADT,” and purporting to waive any conflict that might
exist.
Briefing and arguments regarding this motion and other matters occurred for some period of
time. (The exact scope of these proceedings is not clear because a writ action does not contain
the entire record of an underlying lawsuit.) Eventually, however, the motion was submitted for
decision, and the trial court ruled in Plante’s favor, granting his motion to disqualify MGM from
representing the Appellants. The court specifically found that “during the course of MGM's
representation of Conway and Marcum in the lawsuit filed against them by ADT, MGM also
provided legal advice to the board of directors of ADT in a separate lawsuit with Bioniche.”
But then the trial court specifically found, in the next two sentences, that it was making “no
finding on whether Miller and MGM provided legal advice in their capacity as representative of
Conway and Marcum or with the intent to represent ADT in settlement negotiations with
Bioniche,” and “no finding as to any actual impropriety on the part of Miller and MGM.”
(Emphasis added.) The court then said that it was difficult to see how Plante, as a part owner of
the corporation ADT, could perceive that he got “utmost advocacy” when MGM represented
“both the corporation in advising about Bioniche and individuals adverse to the corporation in
the suit against Conway and Marcum.” The court then concluded that disqualification of MGM
was required based on “the appearance of impropriety” under Lovell v. Winchester.
The Appellants filed a writ action at the Court of Appeals. The court denied the writ because
they had not shown irreparable injury, one of the usual prerequisites for issuance of such a writ.
The case is appealed to this Court as a matter of right.
II. Analysis
In disqualifying MGM, the trial judge, to his credit, was simply following precedent, namely,
Lovell v. Winchester. He justified the disqualification because he saw an appearance of
impropriety. He was bound by this Court’s decision to apply that standard.

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But this Court is not so bound, except by the force of stare decisis. And this Court has
concluded that disqualification based on an appearance of impropriety is inappropriate under
the existing Rules of Professional Conduct. It is telling that the appearance-of-impropriety
standard does not appear in those rules, except in commentary condemning its use and noting
that it has been deleted from the rules. Although this Court has previously upheld the use of that
standard in deciding lawyer disqualification questions, the standard must now be rejected.
Disqualification under that standard is “little more than a question of subjective judgment by the
former client.” In essence, all the former client has to do is claim discomfort with the subsequent
representation to create the appearance that something untoward is going on and thus that
there is an appearance of impropriety. Moreover, “since ‘impropriety’ is undefined, the term
‘appearance of impropriety’ is question-begging.” Even if impropriety is the same as an actual
conflict, there should be something more substantive than just a possible conflict before
disqualification takes place.
The simple fact is that disqualification is easier to achieve under the appearance-of-impropriety
standard. While that is appropriate for judicial recusal questions, because there is a heightened
concern about public confidence in the judiciary, that concern is less pressing when dealing with
the private lawyer-client relationship. If anything, use of such a low standard in that context
creates a “greater likelihood of public suspicion of both the bar and the judiciary” and “would
ultimately be self-defeating,” because it creates the impression that courts are ruling based on
appearances rather than facts. Before a lawyer is disqualified based on a relationship with a
former client or existing clients, the complaining party should be required to show an actual
conflict, not just a vague and possibly deceiving appearance of impropriety. And that conflict
should be established with facts, not just vague assertions of discomfort with the representation.
There is no doubt that personal choice of representation is based on a litigant's belief in the
competency of chosen counsel, and the confidence placed in counsel. Even though all
practicing lawyers are presumed to be competent, common sense dictates that not all lawyers
share the same degree of competence. Otherwise, clients would not care who their lawyers
were, and there would be little competition among lawyers for business. A litigant has the
reasonable expectation that he will have the best representation he can and is willing to afford,
and taking his chosen counsel away based on an “appearance” alone creates the belief that the
court is arbitrary or capricious. That undermines faith in the judicial process, which, in turn,
clearly affects the orderly administration of justice negatively in general and, in that specific
case, irreparably. On the other hand, specific findings of an actual conflict refute arbitrariness,
and promote faith in the fairness of the proceeding.
Lovell applied a standard that is no longer a part of the Rules of Professional Conduct and is
simply inadequate to preserve the interests involved when a conflict of interest is alleged. To the
extent that Lovell and other cases have approved the appearance-of-impropriety standard, they
are overruled. Instead, in deciding disqualification questions, trial courts should apply the
standard that is currently in the Rules of Professional Conduct, which at this time requires a
showing of an actual conflict of interest.

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To resolve that question, the trial court must hold an evidentiary hearing. And before
disqualifying counsel, the court must find that an actual conflict exists, and state on the record
what that conflict is. To the extent that the trial judge did not do this, consideration of a specialcases writ is appropriate in this case. Thus, a writ is available as a remedy.
Moreover, this Court concludes that the writ should issue. In many ways, the trial court in this
case complied with what we require today for disqualification of counsel. The trial court ordered
briefing on the disqualification issue, and conducted multiple hearings. The court heard
evidence and did not rely merely on allegations in motions and pleadings. And, as noted above,
the trial court applied the standard previously approved by this Court.
But, also as noted above, that standard is no longer appropriate under the Rules of Professional
Conduct. A mere appearance of impropriety, as found by the trial court in this case, cannot
support disqualification of counsel. Such an extreme remedy must be based on an actual
conflict of interest. And the trial court’s order specifically stated it was not finding an actual
impropriety, that is, an actual conflict.
Although the Court's order stated that MGM had represented ADT at the same time that it
represented individuals adverse to ADT, that does not, by itself, support disqualification in the
shareholder-derivative suit. First, it is not entirely clear that MGM actually represented the
corporation when providing advice on whether to settle the Bioniche litigation. In fact, the trial
court’s order specifically states that it “makes no findings on whether Miller and MGM provided
legal advice in their capacity as representatives of Conway and Marcum or with the intent to
represent ADT in settlement negotiations with Bioniche.” And ADT, as a corporate entity, had
been represented by other counsel in that litigation. Although Plante has argued that MGM
represented the corporation, whether that was actually the case is less than clear. Thus, the
concern that MGM may have been both for and against ADT at the same time may be
unfounded. At the very least, there are insufficient findings in the trial court’s order to show an
actual conflict.
Second, even if there was an actual conflict when MGM advised the board about the Bioniche
litigation, while also representing Marcum and Conway against ADT, that conflict only extended
to the Bioniche litigation. Once that case settled, and the Marcum-Conway case was dismissed,
there was no longer a conflict stemming from the simultaneous representation—and certainly
not one that extends to the derivative suit underlying this action.
For that reason, this Court concludes the trial court’s disqualification order was improper under
the standard articulated today. A writ of prohibition barring its enforcement is the appropriate
remedy.
This is not to say, however, that Plante cannot show a sufficient conflict to have MGM
disqualified once this case returns to the trial court. It is possible that by advising the board, of
which Plante was a member, about the Bioniche litigation, MGM was representing Plante. Since

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the allegedly improper resolution of the Bioniche litigation is part of the underlying derivative
suit, among other things, it is possible that MGM may have an actual conflict under Rule of
Professional Conduct 1.9, which governs duties to former clients. There has also been some
suggestion that MGM now represents the entire board, including Plante, in the derivative action,
although only the Appellants appear to have been named as defendants. If MGM is
representing the entire board, that could give rise to a conflict with an existing client under Rule
1.7.
But the focus in the trial court appears not to have been these possible conflicts, but the conflict
that previously existed in the Bioniche litigation itself. Regardless, the trial court's order does not
have findings sufficient to show such a conflict based on duties to former clients, and this Court
cannot make such findings, especially based on the limited record in a writ action. If the issue is
raised again in the trial court, it will be necessary to establish exactly who represents and has
represented whom, and when the representation occurred before the conflict issues can be
resolved. It will also be necessary to establish the precise relationship of the parties to each
other and in what capacities they have sued or been sued.
III. Conclusion
The Court concludes that review of the disqualification order in this case is available through the
special-cases exception for writs. Further, this Court concludes the trial court applied a
disqualification standard that is no longer appropriate under the Rules of Professional Conduct,
and that the trial court's factual findings are insufficient to allow disqualification under the proper
standard of a showing of actual conflict. For those reasons, a writ of prohibition barring
enforcement of the trial court's order is appropriate at this time, even though the issue of
disqualification may be revisited in the trial court. The Court of Appeals’ decision to deny the writ
is therefore reversed, and this matter is remanded to that court to issue the writ.

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4.6: Associational Conflicts of Interest
When attorneys are associated with each other in a partnership, firm, or similar organization, a
conflict of interest affecting one of the associated attorneys may be imputed to the other
attorneys who are members of the association. For example, associated attorneys typically may
not represent clients with adverse interests, just like individual attorneys may not represent
clients with adverse interests. Associated attorneys may not represent new clients whose
interests are adverse to the interests of a client of an associated attorney. And if the clients of
an associated attorney develop adverse interests, the attorneys may be required to withdraw
from representation.
Of course, conflicts of interest do not necessarily preclude representation. The clients of
associated attorneys may provide informed consent to representation despite the conflict, just
like the clients of individual attorneys.
Often, the clients of associated attorneys have conflicts of interest relating to the duty of
confidentiality. If the conflict in question can be resolved by informed consent, associated
attorneys often can avoid violating the duty of confidentiality by adopting screening procedures
that prevent attorneys representing one client from accessing confidential information provided
by the other client.
Rule 1.10: Imputation of Conflicts of Interest: General Rule
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
1. the prohibition is based on a personal interest of the disqualified lawyer and does
not present a significant risk of materially limiting the representation of the client
by the remaining lawyers in the firm; or
2. the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified
lawyer’s association with a prior firm, and
i.
the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom;
ii.
written notice is promptly given to any affected former client to enable the
former client to ascertain compliance with the provisions of this Rule,
which shall include a description of the screening procedures employed; a
statement of the firm's and of the screened lawyer's compliance with
these Rules; a statement that review may be available before a tribunal;
and an agreement by the firm to respond promptly to any written inquiries
or objections by the former client about the screening procedures; and
iii.
certifications of compliance with these Rules and with the screening
procedures are provided to the former client by the screened lawyer and
by a partner of the firm, at reasonable intervals upon the former client's
written request and upon termination of the screening procedures.

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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.
c. A disqualification prescribed by this rule may be waived by the affected client under the
conditions stated in Rule 1.7.
d. The disqualification of lawyers associated in a firm with former or current government
lawyers is governed by Rule 1.11.
Rule 1.10 Imputation of Conflicts of Interest: General Rule, Comment [1]
For purposes of the Rules of Professional Conduct, the term “firm” denotes lawyers in a law
partnership, professional corporation, sole proprietorship or other association authorized to
practice law; or lawyers employed in a legal services organization or the legal department of a
corporation or other organization.
Rule 1.10 Imputation of Conflicts of Interest: General Rule, Comment [2]
The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty
to the client as it applies to lawyers who practice in a law firm. Such situations can be
considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the
rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by
the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph
(a)(1) operates only among the lawyers currently associated in a firm.
Restatement (Third) of the Law Governing Lawyers § 123 (2000): Imputation of a Conflict
of Interest to an Affiliated Lawyer
Unless all affected clients consent to the representation under the limitations and conditions
provided in § 122 or unless imputation hereunder is removed as provided in § 124, the
restrictions upon a lawyer imposed by §§ 125- 135 also restrict other affiliated lawyers who:
1. are associated with that lawyer in rendering legal services to others through a law
partnership, professional corporation, sole proprietorship, or similar association;
2. are employed with that lawyer by an organization to render legal services either to that
organization or to others to advance the interests or objectives of the organization; or
3. share office facilities without reasonably adequate measures to protect confidential client
information so that it will not be available to other lawyers in the shared office.
Restatement (Third) of the Law Governing Lawyers § 124 (2000): Removing Imputation

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1. Imputation specified in § 123 does not restrict an affiliated lawyer when the affiliation
between the affiliated lawyer and the personally prohibited lawyer that required the
imputation has been terminated, and no material confidential information of the client,
relevant to the matter, has been communicated by the personally prohibited lawyer to
the affiliated lawyer or that lawyer's firm.
2. Imputation specified in § 123 does not restrict an affiliated lawyer with respect to a
former-client conflict under § 132, when there is no substantial risk that confidential
information of the former client will be used with material adverse effect on the former
client because:
a. any confidential client information communicated to the personally prohibited
lawyer is unlikely to be significant in the subsequent matter;
b. the personally prohibited lawyer is subject to screening measures adequate to
eliminate participation by that lawyer in the representation; and
c. timely and adequate notice of the screening has been provided to all affected
clients.
3. Imputation specified in § 123 does not restrict a lawyer affiliated with a former
government lawyer with respect to a conflict under § 133 if:
a. the personally prohibited lawyer is subject to screening measures adequate to
eliminate involvement by that lawyer in the representation; and
b. timely and adequate notice of the screening has been provided to the appropriate
government agency and to affected clients.
Cinema 5, Ltd. v. Cinerama, Inc., 528 F. 2d 1384 (2d Cir. 1976)
Summary: Attorney Manly Fleischmann was a partner in Jaeckle, Fleischmann and
Mugel of Buffalo and in Webster, Sheffield, Fleischmann, Hitchcock and Brookfield of
New York City. Cinerama distributed movies and operated movie theaters. Cinerama
hired Fleischmann and Jaeckle to defend it in an antitrust action in upstate New York.
Then, Cinema 5 hired Webster to represent it in an antitrust action in New York City.
Cinerama filed a motion to disqualify Webster because Fleischmann was a partner.
Fleischmann responded that the actions were not substantially related. The district court
granted the motion, and the circuit court affirmed.
Before MOORE, FEINBERG and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This appeal from an order granting defendants’ motion to disqualify plaintiff's counsel presents a
somewhat unusual set of facts. Counsel has been disqualified from further representation of
plaintiff because a partner in this New York City law firm is also a partner in a Buffalo firm which
is presently representing the defendant Cinerama, Inc. in other litigation of a somewhat similar
nature. Although we agree with the district court that there was no actual wrongdoing and intend
no criticism of the lawyers involved, we find no abuse of the district court’s discretion, and so
affirm.

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There is little or no dispute as to the facts, most of them having been stipulated. Attorney Manly
Fleischmann is a partner in Jaeckle, Fleischmann and Mugel of Buffalo and in Webster,
Sheffield, Fleischmann, Hitchcock and Brookfield of New York City. He divides his time between
the two offices. Cinerama is a distributor of motion pictures and the operator of several large
theater chains. In January 1972 the Jaeckle firm was retained to represent Cinerama and
several other defendants in an action brought in the United States District Court for the Western
District of New York. Plaintiffs in that suit are local upstate theater operators who allege antitrust
violations resulting from discriminatory and monopolistic licensing and distribution of motion
pictures in the Rochester area. A similar action involving allegedly illegal distribution in the
Buffalo area was commenced in March 1974, and the Jaeckle office represents the interests of
Cinerama in this action also. Both suits are presently pending in the Western District.
The instant action, brought in the Southern District of New York in August 1974, alleges a
conspiracy among the defendants to acquire control of plaintiff corporation through stock
acquisitions, with the intention of creating a monopoly and restraining competition in New York
City's first-run motion picture theater market. Judge Brieant found that there was sufficient
relationship between the two law firms and the two controversies to inhibit future confidential
communications between Cinerama and its attorneys and that disqualification was required to
avoid even the appearance of professional impropriety.
Appellant’s counsel strongly dispute these findings. They say that they should not be
disqualified unless the relationship between the controversies is substantial, and they contend
there is nothing substantial in the relationship between an upstate New York conspiracy to
deprive local theater operators of access to films and an attempted corporate take-over in New
York City.
The “substantial relationship” test is indeed the one that we have customarily applied in
determining whether a lawyer may accept employment against a former client. However, in this
case, suit is not against a former client, but an existing one. One firm in which attorney
Fleischmann is a partner is suing an actively represented client of another firm in which attorney
Fleischmann is a partner. The propriety of this conduct must be measured not so much against
the similarities in litigation, as against the duty of undivided loyalty which an attorney owes to
each of his clients.
A lawyer’s duty to his client is that of a fiduciary or trustee. When Cinerama retained Mr.
Fleischmann as its attorney in the Western District litigation, it was entitled to feel that at least
until that litigation was at an end, it had his undivided loyalty as its advocate and champion, and
could rely upon his “undivided allegiance and faithful, devoted service.” Because “no man can
serve two masters,” Matthew 6:24, it had the right to expect also that he would “accept no
retainer to do anything that might be adverse to his client's interests.” Needless to say, when
Mr. Fleischmann and his New York City partners undertook to represent Cinema 5, Ltd., they
owed it the same fiduciary duty of undivided loyalty and allegiance.

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Ethical Considerations 5-1 and 5-14 of the American Bar Association's Code of Professional
Responsibility provide that the professional judgment of a lawyer must be exercised solely for
the benefit of his client, free of compromising influences and loyalties, and this precludes his
acceptance of employment that will adversely affect his judgment or dilute his loyalty. The Code
has been adopted by the New York State Bar Association, and its canons are recognized by
both Federal and State Courts as appropriate guidelines for the professional conduct of New
York lawyers.
Under the Code, the lawyer who would sue his own client, asserting in justification the lack of
“substantial relationship” between the litigation and the work he has undertaken to perform for
that client, is leaning on a slender reed indeed. Putting it as mildly as we can, we think it would
be questionable conduct for an attorney to participate in any lawsuit against his own client
without the knowledge and consent of all concerned. This appears to be the opinion of the
foremost writers in the field, and it is the holding of the New York courts. In Matter of Kelly, New
York's highest court said that “with rare and conditional exceptions, the lawyer may not place
himself in a position where a conflicting interest may, even inadvertently, affect, or give the
appearance of affecting, the obligations of the professional relationship.” Nor is New York alone
in this view. In Grievance Committee v. Rottner, Connecticut’s highest court held that the
maintenance of public confidence in the bar requires an attorney to decline employment
adverse to his client, even though the nature of such employment is wholly unrelated to that of
his existing representation.
Whether such adverse representation, without more, requires disqualification in every case, is a
matter we need not now decide. We do hold, however, that the “substantial relationship” test
does not set a sufficiently high standard by which the necessity for disqualification should be
determined. That test may properly be applied only where the representation of a former client
has been terminated and the parameters of such relationship have been fixed. Where the
relationship is a continuing one, adverse representation is prima facie improper, and the
attorney must be prepared to show, at the very least, that there will be no actual or apparent
conflict in loyalties or diminution in the vigor of his representation. We think that appellants have
failed to meet this heavy burden and that, so long as Mr. Fleischmann and his Buffalo partners
continue to represent Cinerama, he and his New York City partners should not represent
Cinema 5, Ltd. in this litigation.
Because he is a partner in the Jaeckle firm, Mr. Fleischmann owes the duty of undivided loyalty
to that firm's client, Cinerama. Because he is a partner in the Webster firm, he owes the same
duty to Cinema 5, Ltd. It can hardly be disputed that there is at least the appearance of
impropriety where half his time is spent with partners who are defending Cinerama in multimillion dollar litigation, while the other half is spent with partners who are suing Cinerama in a
lawsuit of equal substance.55
55

Mr. Fleischmann's personal participation in the Buffalo litigation was minimal, and we are confident that
he would make every effort to disassociate himself from both lawsuits and would not divulge any
information that came to him concerning either. However, we cannot impart this same confidence to the
public by court order.

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Because “an attorney must avoid not only the fact, but even the appearance, of representing
conflicting interests,” this requires his disqualification. Moreover, because of the peculiarly close
relationship existing among legal partners, if Mr. Fleischmann is disqualified, his partners at the
Webster firm are disqualified as well.
Nothing that we have heretofore said is intended as criticism of the character and professional
integrity of Mr. Fleischmann and his partners. We are convinced that the dual representation
came about inadvertently and unknowingly, and we are in complete accord with Judge Brieant’s
finding that there has been no actual wrongdoing. Furthermore, the record shows that after
learning of the conflict which had developed, the Jaeckle firm, through Mr. Fleischmann, offered
to withdraw its representation of Cinerama in the Western District actions. However, that offer
was not accepted, and Mr. Fleischmann continued, albeit reluctantly, to have one foot in each
camp.
Under the circumstances, Judge Brieant’s order of disqualification cannot be construed as an
abuse of his discretion. We therefore affirm.
Questions:
1. Why did the court grant Cinerama’s motion to disqualify Fleischmann? Did it identify a
conflict of interest? Was Fleischmann working on the action against Cinerama?
2. Why did Cinerama file a motion to disqualify Webster? Should Cinema 5’s preferences
matter under the circumstances?
Borden v. Borden, 277 A. 2d 89 (D.C. App. 1971)
Summary: Helen Borden filed a complaint to divorce her husband, George, on the ground of
adultery. Helen was represented by an attorney from the Neighborhood Legal Services Program
(NLSP). Helen’s attorney moved for assignment of counsel to represent George. The trial court
ordered attorney David S. Raycroft, who works for NLSP, to represent George. Both attorneys
from NLSP filed a motion to set aside the trial court’s order since both attorneys were employed
by NLSP and the order created a conflict of interest under the Code of Professional
Responsibility. The trial court denied the motion because no economic conflict existed. The
appellate court reversed, because the NLSP functions as a firm and there is an inherent conflict
of interest that public policy concerns do not override.
KERN, Associate Judge:
The issue presented by this appeal is whether it was error for the trial judge sitting in the
Domestic Relations Branch of the District of Columbia Court of General Sessions to refuse to
vacate his order assigning an attorney employed by the Neighborhood Legal Services Program
(NLSP) to represent the defendant in this action, when the plaintiff was already represented by
an NLSP lawyer.

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On September 22, 1969, appellant Helen Borden filled a complaint seeking a divorce from
appellee George Borden on the ground of adultery. On April 2, 1970, appellant, represented by
an attorney from NLSP and proceeding in forma pauperis, moved for assignment of counsel to
represent appellee. The trial court ordered David S. Raycroft, an attorney employed by the
NLSP, to enter an appearance on behalf of and represent appellee. On June 8, 1970,
appellant's attorney, joined by appellee's attorney, filed a motion to set aside the trial court's
order of appointment of counsel on the ground that since both attorneys in the case were
employed by the NLSP the order created a conflict of interest under the Code of Professional
Responsibility, and the divorce ultimately obtained could be invalid due to alleged collusion.
On June 9, 1970, the trial judge denied the motion to set aside his appointment of counsel,
relying specifically on his order in another case, McGee v. McGee, which stated, inter alia:
Since, therefore, no economic conflict exists, no corporate interests is in any way
involved and no legal partnership as such has been disclosed it would appear that in fact
and objectively speaking there is no conflict of interest.
Mrs. Borden appeals from this order of denial.
While the trial court’s refusal to set aside his order of appointment is not final in the sense of
disposing of the case on its merits, it does have “a final and irreparable effect upon the rights of
the parties” and is therefore appealable. The effect of the trial court's order is to force the parties
to go to trial represented by attorneys who practice law within the same organization, which
appears on its face to constitute a conflict of interest, and who have stated upon the record their
inability to represent the cause of their clients and remain faithful to the Code of Professional
Responsibility. In addition, the parties have ground for concern that the final decree in the case
on the merits could be subject to the subsequent charge of collusion and its validity thus put in
question. We think that the administration of justice would best be served by recognizing the
cloud which the order of appointment of counsel has put upon the present proceedings and by
treating the order as final for the purpose of review.
Turning to the merits of the assignment of counsel order, it is axiomatic that members of the
same law firm may not represent adverse parties. Corporation Counsel concedes this but takes
the position that:
NLSP cannot be analogized to the typical law firm for purposes of application of the
conflict-of-interest concept NLSP’s activities more logically fall within the group legal
services concept.
It argues that under N.A.A.C.P. v. Button, the constitutional right being asserted must be
balanced on the scale of public interest against the alleged professional impropriety. When this
is done, in the instant case, so the argument goes, the right and need of the poor to have legal
representation in domestic relations matters is paramount to the allegedly remote possibility of a

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conflict of interest growing out of the representation of both parties by NLSP attorneys. It is
pointed out that since NLSP attorneys receive no compensation from their clients there can be
no economic conflict of interest, as would be the case if they were practicing in the same law
firm.
We are not persuaded that the possibility of conflict of interest which appellee’s attorney
proffered as his reason for wishing to withdraw from participation in this case is remote. While
the NLSP is not a law firm it is a group of attorneys practicing law together in an organizational
structure much like a law firm. It has a Board of Directors and an Executive Director who are
analogous to a firm’s managing partners. It has one attorney in each of its branch offices whose
responsibility is to supervise the junior attorneys, much like a firm's senior partner working with
his associates. All NLSP attorneys participate in office meetings and receive intra-office
communications on substantive law, litigation techniques and tactics and office policy. Lawyers
who practice their profession side-by-side, literally and figuratively, are subject to subtle
influences that may well affect their professional judgment and loyalty to their clients, even
though they are not faced with the more easily recognized economic conflict of interest. In
addition, the appointment of attorneys who work together presents an impression scarcely
consistent with the bar’s efforts to maintain public confidence in the law and lawyers.
Also we fail to find in this case the extraordinary circumstances present in N.A.A.C.P. v. Button,
where legal representation to vindicate constitutional rights of a group of citizens was simply
unavailable except in the form of group legal services which the State contended amounted to
barratry, maintenance and champerty. With all deference to the trial court’s efforts to date to
assure full representation of all who seek access to the Domestic Relations Court we are not
persuaded that the supply of attorneys available in the District of Columbia has been exhausted
so that NLSP attorneys must now represent both sides of a divorce action.
Finally, we are reluctant to approve any action in the matter of professional ethics which
distinguishes between attorneys who are in private practice and attorneys who are not. In the
first place, Congress has expressly recognized that “anti-poverty lawyers” are to be governed by
the traditional standards of the profession. The ABA has held that legal aid attorneys have a
“primary obligation of loyalty” to their clients and are required “to act in accordance with the
Code of Professional Responsibility.” Other jurisdictions have specifically barred anti-poverty
lawyers from representing adverse parties in domestic relations litigation because such
representation falls afoul of the Canons. We are reluctant ever to make an exception from the
professional norm for attorneys employed by the government or others who provide legal
representation without compensation from the client because then we might encourage a
misapprehension that the special nature of such representation justifies departure from the
profession's standards. We should avoid always any action that would give the appearance that
government attorneys are “legal Hessians” hired “to do a job” rather than attorneys at law. On
the other hand, we should expect always from these attorneys uncompromising adherence to
the profession's established standards.

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We conclude that it was error for the trial court to refuse to vacate its assignment of an NLSP
attorney to represent appellee in the trial of appellant's divorce action which was being
presented by another NLSP attorney and that this case must be remanded for appointment of
new counsel for appellee.
Questions:
1. What was the conflict of interest?
2. Why did NLSP’s corporate counsel argue against the motion?
3. What public policy concerns did the court say were not sufficient to override the inherent
conflict of interest?
4. Did the court’s ruling harm or benefit NLSP’s mission to provide legal services to the
poor?
People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., 20 Cal. 4th
1135 (Cal. 1999)

Summary: Attorney Eliot G. Disner was “of counsel” to Shapiro, Rosenfeld & Close.
Attorney Geordan Goebel represented SpeeDee Oil Change Systems. Goebel
consulted with Shapiro about an antitrust action SpeeDee had filed against Mobil Oil,
and then associated Shapiro with the action as counsel. Cohon and Gardner
represented Mobil in the SpeeDee action. Cohon consulted with Disner about the
SpeeDee action, and planned to retain him as a consultant. But when Cohon and
Gardner learned that Shapiro was representing SpeeDee, they filed a motion to
disqualify the firm, because of its association with Disner. The trial court denied the
motion, and the intermediate appellate court affirmed, because Disner did not
provide any confidential information to Shapiro. The California Supreme Court
reversed, because Disner represented adversaries in the same litigation.
CHIN, J.
When a conflict of interest requires an attorney’s disqualification from a matter, the
disqualification normally extends vicariously to the attorney’s entire law firm. This rule
safeguards clients’ legitimate expectations that their attorneys will protect client
confidences. Here, we decide whether the same rule should apply when a party
unknowingly consults an attorney “of counsel” to the law firm representing the party's
adversary in the subject of the consultation.
Mobil Oil Corporation consulted Attorney Eliot G. Disner, who was of counsel to Shapiro,
Rosenfeld & Close. Mobil was a defendant in a complaint in intervention by respondents
Gary and Annette Burch et al., Southern California franchisees of SpeeDee Oil Change
Systems, Inc. While Mobil was consulting Disner, respondents associated the Shapiro firm
as counsel of record in their action against Mobil. Mobil moved to disqualify the Shapiro firm

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upon learning of its association, arguing that Disner had a conflict of interest that required
its vicarious disqualification.
The trial court denied Mobil's motion. The court found no basis for a presumption that
Disner disclosed confidences to the Shapiro firm, notwithstanding Disner's relationship with
the firm. The Court of Appeal affirmed, concluding that substantial evidence existed for
implied findings that Disner’s relationship with the Shapiro firm was not “close, personal,
continuous, and regular” and that Disner conveyed no confidential information to the firm.
We granted Mobil's petition for review.
We adopt the prevailing rule concerning “of counsel” conflicts of interest and reverse the
judgment of the Court of Appeal. For attorneys in the same firm to represent adverse parties
in the same litigation is so patently improper that the rule of disqualification is a per se or
“automatic” one. Conflicting representations that would disqualify all of a law firm’s attorneys
are not more acceptable when an attorney of counsel to the firm creates the conflict.
Clients, and the public, should expect confidentiality and loyalty from attorneys who
effectively declare they practice law in a close, personal, and continuing association. These
legitimate expectations would be frustrated if a firm could represent one party in litigation
while an attorney of counsel to the firm represented an adversary in the same case.
FACTUAL AND PROCEDURAL BACKGROUND

Attorney Geordan Goebel, a sole practitioner, had represented respondents since 1994.
Because of the action’s scope, he decided to associate a law firm as attorneys of record to
help him prosecute respondents’ claims. Goebel approached the Shapiro firm because of its
expertise in franchise law and met with Mitchell Shapiro on June 22, 1996. Around this time,
the Shapiro firm's letterhead listed 14 attorneys’ names, with 4 more attorneys listed as of
counsel to the firm, all at the same office address. Among those identified as of counsel to
the firm was Eliot G. Disner, an attorney who had substantial experience with antitrust
issues.
Over the next few weeks, Goebel developed a “good working relationship” with the Shapiro
firm. On July 10, he signed a notice associating the Shapiro firm as counsel of record for
respondents. Mitchell Shapiro signed the notice for the Shapiro firm on July 12. The notice
of association of counsel was served by mail on July 15, 1996, and filed with the court the
following day.
The law firm of Cohon and Gardner represented Mobil in the SpeeDee Oil action. Early in
July 1996, Jeffrey Cohon, an associate with Cohon and Gardner, spoke to Attorney Steven
Hecht about contacting Disner concerning the case. Hecht knew both Cohon and Disner
personally. To facilitate an initial check for conflicts, Cohon told Hecht the name of the case
and the principal attorneys involved. Hecht spoke with Disner later that week. Hecht asked

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Disner if he knew of the case involving SpeeDee Oil and Mobil. When Disner said he did
not, Hecht asked him to call Jeffrey Cohon.
Disner and Cohon spoke by telephone on July 11 or 12. When Cohon returned Disner's
call, the receptionist answered the telephone, “Shapiro, Rosenfeld and Close.” Cohon's call
was put through to Disner, who confirmed he had spoken with Hecht and had not heard of
the SpeeDee Oil case or the attorneys involved in it. In a conversation Cohon believed was
confidential, he and Disner discussed the case’s substantive allegations, its procedural
status, and Mobil's theories. They arranged a meeting for July 16.
On July 16, 1996, Cohon and Gardner Attorneys Bennett Cohon, Jeffrey Cohon, and
Steven Gardner met with Disner to discuss his assisting with Mobil's representation. They
spoke for one to two hours over lunch. Gardner received a copy of Disner's resume,
which—like Disner's business card—prominently featured the Shapiro firm's name and
address.
Gardner briefed Disner on the case and Mobil's position. The matters disclosed to Disner
included "the background of the case, Mobil's theories in the case, Mobil's discovery
strategy and an analysis of the procedural and substantive issues which had arisen to date
and [were] likely to arise in the future, the state of the case, experts, and consultants, and
specific factual issues." The Cohon and Gardner attorneys considered the information
disclosed to Disner to be confidential and attorney work product.
According to Gardner's and Jeffrey Cohon's declarations, when the meeting ended,
Gardner and Disner agreed to prepare a document formally retaining Disner as a
consultant. Disner did not directly contradict the Cohon and Gardner attorneys' statements.
His declaration stated that at the end of the meeting, the Cohon and Gardner attorneys
"expressed interest" in using his services, although they did not know "exactly" how they
intended to do so.
Gardner further declared that Disner agreed to check some statutes and case law that
applied to a few of the issues they discussed. He stated that he and Disner spoke again
later in the afternoon of July 16, and Disner conveyed the results of his review of those
issues. No declaration contradicted Gardner's account of those discussions.
The next day, July 17, Gardner received the notice of the Shapiro firm's association as
counsel for respondents. Consequently, that same day the Cohon and Gardner firm
informed Disner that Mobil would not be using his services. Gardner immediately faxed a
letter to the Shapiro firm, Disner, and Goebel, stating that Mobil objected to the Shapiro
firm's participation in the case on behalf of respondents. Gardner's letter asserted the
Shapiro firm had an ethical conflict because of Cohon and Gardner's conversations with
and disclosures to Disner concerning the case. The Shapiro firm responded with a letter

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faxed the next day, contending there was no basis for the firm's disqualification. The
response stated that the Shapiro firm had already associated as counsel for respondents
when Disner met with the Cohon and Gardner attorneys. The response also stated that
Disner was of counsel to the Shapiro firm and not an associate, partner, or shareholder.
Four days later, on July 22, 1996, Mobil filed an ex parte application for an order shortening
time for a motion to disqualify the Shapiro firm. Mobil's motion was set for hearing on July
24, 1996. The moving and opposing papers included declarations and exhibits setting out
the facts related above. In addition, Disner's declaration stated he had not "discussed the
merits of the SpeeDee Oil action with any attorney or other employee" of the Shapiro firm.
He also said he customarily reviewed possible conflicts of interest with the firm before
associating with them on cases. Disner and the Shapiro firm did not discuss a potential
conflict in this instance because neither had asked the other to associate for the SpeeDee
Oil case. Similarly, Mitchell Shapiro declared that he had "not discussed this action" with
Disner and did not know "what was discussed between" Disner and the Cohon and Gardner
attorneys.
The Shapiro firm's declarations submitted in opposition to Mobil's motion provided additional
details of the firm's relationship with Disner. Disner's declaration stated: "Although I am
designated as `Of Counsel' to SRC [the Shapiro firm], I have a separate law practice from
SRC. I have my own clients, whom I bill separately from SRC. I pay rent to SRC for office
space. I have my own staff whom I pay for their services. I do not share in any profits of
SRC, nor do I incur any liabilities on behalf of SRC. In those few cases (perhaps 3-4 per
year) on which I associate with SRC, which is strictly determined on a case-by-case basis, if
I use any attorney from SRC to perform services, I pay SRC a percentage of that attorney[s]
usual hourly rate for the time spent working on my clients' cases. Similarly, if SRC uses my
services on any cases, it pays me a percentage of my usual hourly fee for services
rendered.”
The trial court denied Mobil's motion to disqualify the Shapiro firm. The court decided the
matter based on the written submissions, stating: “There is no basis on which to presume
that Eliot Disner, Esq., who is of counsel to the Shapiro firm, imparted any confidential
information to the firm, as concerns this case. Disner and the Shapiro firm were initially
unaware of each other's involvement in this case and Disner was not retained by MOBIL
nor is he presently involved in this case."
Court of Appeal affirmed the trial court's order, applying an abuse of discretion standard of
review. The court viewed the matter as one involving conflicting evidence and inferences on
the actual nature of the particular "of counsel" relationship in question: "We agree that if the
Shapiro firm simultaneously represented both Mobil and the respondents in this litigation, it
would be subject to automatic disqualification. And we assume for purposes of discussion
that by performing legal research for Mobil, Mr. Disner represented it. However, the trial

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court impliedly concluded Mr. Disner practiced law separate and apart from [the Shapiro
firm] except on those few annual occasions when Mr. Disner or [the Shapiro firm]
associated the other on a particular case.... [There] was probative and persuasive evidence
of a `close, personal, continuous, and regular' professional affinity which characterizes the
`of counsel' relationship.... However, there was conflicting evidence which indicated there
was in reality no `close, personal, continuous, and regular' relationship.... Simply stated, the
evidence concerning the relationship was in conflict and the trial judge resolved that dispute
in favor of one side. Furthermore, even if a concern for client confidentiality arose on the
facts of this case, substantial evidence established Mr. Disner did not impart any
confidential information to [the Shapiro firm]. Therefore, we find no abuse of discretion."
DISCUSSION

This case requires us to resolve two distinct questions. First, were Disner's contacts and
discussions with the Cohon and Gardner attorneys such that he represented Mobil for
purposes of a conflict of interest analysis? Second, if so, should any conflict of interest be
imputed to the law firm to which he was of counsel so as to require its disqualification? To
answer these questions, we first review the principles involved when one party seeks to
disqualify its opponent's counsel, beginning with the appropriate standard of appellate
review.
DISQUALIFICATION PRINCIPLES

A motion to disqualify a party's counsel may implicate several important interests.
Consequently, judges must examine these motions carefully to ensure that literalism does
not deny the parties substantial justice. Depending on the circumstances, a disqualification
motion may involve such considerations as a client's right to chosen counsel, an attorney's
interest in representing a client, the financial burden on a client to replace disqualified
counsel, and the possibility that tactical abuse underlies the disqualification motion.
Nevertheless, determining whether a conflict of interest requires disqualification involves
more than just the interests of the parties.
A trial court's authority to disqualify an attorney derives from the power inherent in every
court "[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all
other persons in any manner connected with a judicial proceeding before it, in every matter
pertaining thereto." Ultimately, disqualification motions involve a conflict between the clients'
right to counsel of their choice and the need to maintain ethical standards of professional
responsibility. The paramount concern must be to preserve public trust in the scrupulous
administration of justice and the integrity of the bar. The important right to counsel of one's
choice must yield to ethical considerations that affect the fundamental principles of our
judicial process.

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Protecting the confidentiality of communications between attorney and client is fundamental
to our legal system. The attorney-client privilege is a hallmark of our jurisprudence that
furthers the public policy of ensuring "`the right of every person to freely and fully confer and
confide in one having knowledge of the law, and skilled in its practice, in order that the
former may have adequate advice and a proper defense.' [Citation.]" To this end, a basic
obligation of every attorney is "[t]o maintain inviolate the confidence, and at every peril to
himself or herself to preserve the secrets, of his or her client."
To protect the confidentiality of the attorney-client relationship, the State Bar Rules of
Professional Conduct prohibits attorneys from accepting, without the client's informed
written consent, "employment adverse to the client or former client where, by reason of the
representation of the client or former client, the [attorney] has obtained confidential
information material to the employment." Where an attorney successively represents clients
with adverse interests, and where the subjects of the two representations are substantially
related, the need to protect the first client's confidential information requires that the
attorney be disqualified from the second representation. For the same reason, a
presumption that an attorney has access to privileged and confidential matters relevant to a
subsequent representation extends the attorney's disqualification vicariously to the
attorney's entire firm.
A related but distinct fundamental value of our legal system is the attorney's obligation of
loyalty. Attorneys have a duty to maintain undivided loyalty to their clients to avoid
undermining public confidence in the legal profession and the judicial process.The effective
functioning of the fiduciary relationship between attorney and client depends on the client's
trust and confidence in counsel. The courts will protect clients' legitimate expectations of
loyalty to preserve this essential basis for trust and security in the attorney-client
relationship. Therefore, if an attorney—or more likely a law firm—simultaneously represents
clients who have conflicting interests, a more stringent per se rule of disqualification applies.
With few exceptions, disqualification follows automatically, regardless of whether the
simultaneous representations have anything in common or present any risk that
confidences obtained in one matter would be used in the other.
The most egregious conflict of interest is representation of clients whose interests are
directly adverse in the same litigation. Such patently improper dual representation suggests
to the clients—and to the public at large—that the attorney is completely indifferent to the
duty of loyalty and the duty to preserve confidences. However, the attorney's actual
intention and motives are immaterial, and the rule of automatic disqualification applies. "The
rule is designed not alone to prevent the dishonest practitioner from fraudulent conduct," but
also to keep honest attorneys from having to choose between conflicting duties, or being
tempted to reconcile conflicting interests, rather than fully pursuing their clients' rights. The
loyalty the attorney owes one client cannot be allowed to compromise the duty owed
another.

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Here, any concerns about compromised attorney loyalty must take into account the limited
period during which the Shapiro firm represented respondents and Disner was engaged in
communications with Mobil's counsel. Mobil effectively ended the risk of divided loyalty by
promptly terminating Disner's services. However, the concern for client confidences, like the
attorney's duty to preserve those confidences, continues after the attorney's services end.
Therefore, we examine the relationship between Disner and Mobil, conducted through
Mobil's counsel, to determine whether Disner should be deemed to have represented Mobil
for purposes of a conflict of interest analysis.
CONSULTATION AND REPRESENTATION

In considering whether an attorney-client relationship has reached a point where the
attorney can be subject to disqualification for a conflict of interest, we begin with the
relationship's early stages, as noted in Beery v. State Bar: “The fiduciary relationship
existing between lawyer and client extends to preliminary consultations by a prospective
client with a view to retention of the lawyer, although actual employment does not result.
When a party seeking legal advice consults an attorney at law and secures that advice, the
relation of attorney and client is established prima facie. The absence of an agreement with
respect to the fee to be charged does not prevent the relationship from arising.”
The primary concern is whether and to what extent the attorney acquired confidential
information. That question is not necessarily answered by the amount of time involved.
"Even the briefest conversation between a lawyer and a client can result in the disclosure of
confidences." Consequently, a formal retainer agreement is not required before attorneys
acquire fiduciary obligations of loyalty and confidentiality, which begin when attorney-client
discussions proceed beyond initial or peripheral contacts. An attorney represents a client—
for purposes of a conflict of interest analysis—when the attorney knowingly obtains material
confidential information from the client and renders legal advice or services as a result.
The initial discussions between Disner and the Cohon and Gardner attorneys involved
substantial amounts of material confidential information. Moreover, Disner did not receive
the information about Mobil's case theories, strategy, and analyses from a lay person who
might or might not be knowledgeable about which matters were significant. Instead, after
receiving the background information on the case, Disner participated in an extended
briefing with the attorneys conducting Mobil's defense against respondents' claims.
Obviously, communications of that kind are likely to involve an efficient transfer of material
confidential information and attorney work product.
The record here shows without contradiction that Disner received material confidential
information concerning respondents' claims against Mobil. In his first telephone
conversation with one of Mobil's attorneys, Disner discussed the substantive allegations,

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the procedural status, and Mobil's theories of the case. During their luncheon meeting,
Mobil's attorneys again briefed Disner on Mobil's theories and on its attorneys' discovery
strategy, analyses of the issues, and assessment of the state of the case. Moreover, he
acted on some of that information and provided Mobil's attorneys with the results of his own
research. Although Disner stated that he did not discuss "the merits" of the case with
attorneys or employees of the Shapiro firm, the firm's declarations fail to establish that
Mobil's confidences were unavailable to its adversaries' attorneys, or that effective
screening procedures secured those confidences from disclosure.
Therefore, the undisputed facts established that, for purposes of a conflict of interest
analysis, Disner represented Mobil. Consequently, Disner and the firm to which he was of
counsel, the Shapiro firm, represented opposing parties in the same litigation. The potential
for a breach of the duty of confidentiality, whether inadvertent or otherwise, is apparent. The
record provides no basis for considering whether an ethical screen, or other means of
protecting Mobil's confidences, could serve the same prophylactic purpose as
disqualification. We turn, then, to the reasons for applying the rule of disqualification to
attorneys of counsel to a firm.
IMPUTED DISQUALIFICATION AND “OF COUNSEL” ATTORNEYS

As amicus curiae, the State Bar of California, observes, "The `of counsel' designation has,
over the years, come to mean a variety of things in jurisdictions across the nation."
Attorneys who are of counsel to a firm may be permanent full-time practitioners who for
various reasons are not on the traditional career path towards partnership in the firm. Of
counsel attorneys also may be part-time affiliates of a firm who have other personal or
professional commitments, or they may be potential partners brought into a firm for a
probationary period.
The minimum requirements for designating an attorney in California as being of counsel to a
firm are found among the standards for communications that presumptively violate the
prohibition against false or deceptive communications: "A `communication' which states or
implies that a member or law firm is `of counsel' to another lawyer or a law firm unless the
former has a relationship with the latter (other than as a partner or associate, or officer or
shareholder pursuant to Business and Professions Code sections 6160-6172) which is
close, personal, continuous, and regular."
We agree with the State Bar's view that the essence of the relationship between a firm and
an attorney of counsel to the firm "is the closeness of the `counsel' they share on client
matters. Members of the public are encouraged to consult with those sharing an `of counsel'
relationship with the expectation that the counselling resources of both are fully available to
clients." The same view was reflected in the Bar Association of San Francisco's Formal
Opinion No. 1985-1: "[A] firm which lists an attorney as `of counsel' on its letterhead, shingle

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or listing is making an affirmative representation to its clients that the services of that
attorney are available to clients of the firm."
As noted earlier, the need to protect client confidences can cause one attorney's conflict of
interest disqualification to be imputed to other attorneys in the same firm. When attorneys
presumptively share access to privileged and confidential matters because they practice
together in a firm, the disqualification of one attorney extends vicariously to the entire firm.
The vicarious disqualification rule recognizes the everyday reality that attorneys, working
together and practicing law in a professional association, share each other's, and their
clients', confidential information. The expectation that attorneys associated together will
share confidences is reflected in the American Bar Association Model Rules of Professional
Conduct, rule 1.6, comment [8]: "Lawyers in a firm may, in the course of the firm's practice,
disclose to each other information relating to a client of the firm, unless the client has
instructed that particular information be confined to specified lawyers."
The close, personal, continuous, and regular relationship between a law firm and the
attorneys affiliated with it as of counsel contains many of the same elements that justify the
rule of vicarious disqualification applied to partners, associates, and members. An of
counsel attorney, particularly one frequently in the firm's offices or in contact with the firm's
attorneys, may be consulted on a variety of matters without being formally identified as cocounsel. This close, fluid, and continuing relationship, with its attendant exchanges of
information, advice, and opinions, properly makes the of counsel attorney subject to the
conflict imputation rule, regardless of whether that attorney has any financial stake in a
particular matter.
We find persuasive amicus curiae the State Bar of California's conclusion in its 1993 ethics
opinion on the subject: "[T]o the extent the relationship between a principal member [of the
State Bar] or law firm and another member or law firm is sufficiently `close, personal,
regular and continuous,' such that one is held out to the public as `of counsel' for the other,
the principal and `of counsel' relationship must be considered a single, de facto firm for
purposes of rule 3-310. Accordingly, if the `of counsel' is precluded from a representation by
reason of rule 3-310 of the California Rules of Professional Conduct, the principal is
presumptively precluded as well, and vice-versa." The American Bar Association
Committee on Ethics and Professional Responsibility reached the same conclusion in its
Formal Opinion No. 90-357: "There can be no doubt that an of counsel lawyer (or firm) is
`associated in' and has an `association with' the firm (or firms) to which the lawyer is of
counsel, for purposes of both the general imputation of disqualification ... and the imputation
of disqualification resulting from former government service.... Similarly, the of counsel
lawyer is `affiliated' with the firm and its individual lawyers for purposes of the general
attribution of disqualifications under DR 5-105(d) of the Model Code." Notwithstanding the
variations to be expected across the nation on any point of law, the prevailing view is that

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for purposes of disqualification, the of counsel attorney is considered to be affiliated with a
firm so that the disqualification of one from representation must be imputed to the other.
In order to designate themselves as of counsel, attorneys must have close, personal,
continuous, and regular relationships with their affiliated firms. Consequently, the attorneys
brought together in these relationships frequently will have occasion to share client
confidences in the course of exchanging advice and performing legal services for those
clients. The fundamental nature of the relationship makes a presumption of shared
confidences as appropriate for the of counsel attorney as it is for partners, associates, and
members of law firms. From the clients' and the public's perspective, the of counsel attorney
can hardly be distinguished from other attorneys who may be more closely tied to a firm
financially. As a result, the need to preserve confidentiality and public confidence in the
integrity of the legal profession and judicial process require that of counsel attorneys be
regarded as the same as partners, associates, and members of law firms for conflict of
interest issues.
In this case, the of counsel attorney obtained confidential information and provided legal
services to Mobil. For conflict of interest purposes, the attorney's involvement went beyond
initial or peripheral contacts and rose to the level for which fiduciary duties of confidentiality
and loyalty properly can be imposed. This development meant that Disner and the Shapiro
firm represented adversaries in the same litigation, with the concomitant potential for a
breach of the duty of confidentiality.
Disner's conflict of interest must be imputed to the Shapiro firm because of the public
designation of their relationship. Consequently, Disner's conflict of interest must inevitably
lead to the Shapiro firm's vicarious disqualification from representing respondents to assure
the preservation of Mobil's confidences and the integrity of the judicial process.
Questions:
1. Why did the Supreme Court hold that the Shapiro firm was disqualified from
representing SpeeDee?
2. How could the Shapiro firm have avoided disqualification?
3. Could adopting “firewall” have enabled the Shapiro firm to represent SpeeDee?
Kala v. Aluminum Smelting & Refining Company, Inc., 81 Ohio St. 3d 1 (1998)
Summary: Attorney Pearson and the Spangenberg law firm represented Kala in an
action against his former employer, Aluminum Smelting. During Kala’s appeal, Pearson
left Spangenberg and joined the Duvin firm, which represented Aluminum Smelting in
the same action. Kala filed a motion to disqualify Duvin, which the Ohio Supreme Court
granted despite Duvin’s efforts to firewall Pearson, because of the strong appearance of
impropriety.

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LUNDBERG STRATTON, J.
The issue before the court is whether a law firm should be automatically disqualified from
representing a party when an attorney leaves his or her former employment with a firm
representing a party and joins the law firm representing the opposing party, or whether that law
firm may overcome any presumption of shared confidences by instituting effective screening
mechanisms. Although this issue has been dealt with in many other jurisdictions, this is a case
of first impression for Ohio. To fairly decide this issue, we must consider the Disciplinary Rules
and Ethical Considerations in the Ohio Code of Professional Responsibility, competing public
policy interests, and the guidance provided by federal case law.
ETHICAL PRINCIPLES
A fundamental principle in the attorney-client relationship is that the attorney shall maintain the
confidentiality of any information learned during the attorney-client relationship. A client must
have the utmost confidence in his or her attorney if the client is to feel free to divulge all matters
related to the case to his or her attorney.
The obligation of an attorney to preserve the confidences and secrets of the client continues
even after the termination of the attorney’s employment.
In addition, an attorney should avoid even the appearance of impropriety. Because of the
importance of these ethical principles, it is the court's duty to safeguard the preservation of the
attorney-client relationship. In doing so, a court helps to maintain public confidence in the legal
profession and assists in protecting the integrity of the judicial proceeding.
When an attorney leaves his or her former employment and becomes employed by a firm
representing an opposing party, a presumption arises that the attorney takes with him or her any
confidences gained in the former relationship and shares those confidences with the new firm.
This is known as the presumption of shared confidences. Some courts have held that such a
change of employment results in an irrebuttable presumption of shared confidences that
necessitates the disqualification of the attorney (primary disqualification) and the entire new firm
(imputed disqualification).
CLIENT'S RIGHT TO CHOOSE COUNSEL
Balanced against the former client’s interest in preventing a breach of confidence is the public
policy interest in permitting the opposing party's continued representation by counsel of his or
her choice. Disqualification interferes with a client's right to choose counsel.
“Disqualification, as a prophylactic device for protecting the attorney-client relationship, is a
drastic measure which courts should hesitate to impose except when absolutely necessary. A

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disqualification of counsel, while protecting the attorney-client relationship, also serves to
destroy a relationship by depriving a party of representation of their own choosing.”
This issue has become increasingly important as the practice of law has changed. A review of
the historical development of disqualification issues reveals the early conflicts created by the
clash of the above principles.
HISTORY OF MOTIONS TO DISQUALIFY
Many of the early disqualification cases arose out of charges of conflict of interest where
government attorneys left the public service and went into private practice. Early courts
struggled with the need to fashion a rule that would preserve the confidences of the government
client yet not discourage able attorneys from entering public service through fear of being locked
forever into government service, unable to change positions.
“If past employment in government results in the disqualification of future employers from
representing some of their long-term clients, it seems clearly possible that government attorneys
will be regarded as ‘Typhoid Marys.’ Many talented lawyers, in turn, may be unwilling to spend a
period in government service, if that service makes them unattractive or risky for large law firms
to hire.”
As more and more private attorneys also began changing firms, motions to disqualify under the
irrebuttable presumption of shared confidences increased, and inequities and abuses also
began to surface. While some of these motions to disqualify were legitimate and necessary,
such motions were also often misused to harass an opponent, disrupt the opponent's case, or to
gain a tactical advantage, and therefore were viewed with increasing caution.
As a result, several federal cases began fashioning a way to deal with the competing interests
caused by increased mobility of attorneys and the rise of motions to disqualify. The Court of
Appeals for the Sixth Circuit in Manning summed up the changing practice of law as follows:
Perhaps these motions have become more numerous simply because the changing
nature of the manner in which legal services are delivered may present a greater
number of potential conflicts. Certainly, the advent of law firms employing hundreds of
lawyers engaging in a plethora of specialties contrasts starkly with the former
preponderance of single practitioners and small firms engaging in only a few practice
specialties. In addition, lawyers seem to be moving more freely from one association to
another, and law firm mergers have become commonplace. At the same time that the
potential for conflicts of interest has increased as the result of these phenomena, the
availability of competent legal specialists has been concentrated under fewer roofs.
Consequently, these new realities must be at the core of the balancing of interests
necessarily undertaken when courts consider motions for vicarious disqualification of
counsel.

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As a result of the changing legal profession, federal courts and the ABA Model Rules of
Professional Conduct began allowing the use of various mechanisms to isolate an attorney who
had transferred employment. Although originally applied only to government attorneys, these
mechanisms have now been extended to situations involving transfers of private counsel as
well.
DEVELOPMENT OF STANDARDS FOR DISQUALIFICATION
Several federal courts in addressing both primary and imputed disqualification have devised a
three-part test to determine whether disqualification is proper when one attorney leaves a firm
and joins another firm representing an opposing party. We believe this test adequately covers
many different scenarios and will give the courts of Ohio guidance on disqualification issues.
First, a court must determine whether a substantial relationship exists between prior and
present representations. If there is no substantial relationship, then no ethical problem exists.
For example, when an attorney had represented a client in a trademark infringement case, the
Court of Appeals for the Sixth Circuit denied disqualification in a later unrelated civil RICO case.
Second, if a substantial relationship is found between the current matter and the prior matter,
the court must examine whether the attorney shared in the confidences and representation of
the prior matter. There is a presumption that such confidences would also be shared among
members of the prior firm, but that presumption may be rebutted.
In Freeman, the Court of Appeals for the Seventh Circuit, in setting the rules on primary
disqualification, instructed the trial court that it could “rely on any of a number of factors, among
them being the size of the law firm, the area of specialization of the attorney, the attorney’s
position in the firm, and the demeanor and credibility of witnesses at the evidentiary hearing.”
If the presumption of shared confidences within the prior firm is rebutted by such evidence, then
there is again no need for primary disqualification, as there are no confidences to be shared.
However, if that presumption is not rebutted, and the attorney does or is presumed to possess
client confidences, primary disqualification results, and a presumption of shared confidences
arises between the attorney and the members of the attorney's new firm. The issue then is
whether a presumption of shared confidences will also disqualify the entire new firm (imputed
disqualification). Kala implies that this presumption should be irrebuttable and that once an
attorney, particularly one as involved in the case as Pearson was, moves to opposing counsel's
firm, no steps can be taken to restore confidence so as to overcome the appearance of
impropriety; the entire firm must be disqualified.
Some courts have taken this approach. New Jersey has refused to adopt the rebuttablepresumption approach, finding that there is no way to overcome the appearance of impropriety
in a "side-switching attorney" case. Cardona, 942 F.Supp. at 976-977. The New Jersey courts

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cite the impossibility of proving when a breach has been made, as those lawyers within the new
firm are least likely to divulge such information. Judge Orlofsky in Cardona explained:
"At the heart of every `side-switching attorney' case is the suspicion that by changing sides, the
attorney has breached a duty of fidelity and loyalty to a former client, a client who had freely
shared with the attorney secrets and confidences with the expectation that they would be
disclosed to no one else. It is for this reason that the `appearance of impropriety doctrine' was
adopted to protect the public, our profession, and those it serves. In short, this much maligned
doctrine exists to engender, protect and preserve the trust and confidence of clients."
On the other hand, with the realities of modern-day practice, as discussed in the Manning case,
such a hard-and-fast rule works an unfair hardship also. Ultimately, one must have faith in the
integrity of members of the legal profession to honor their professional oath to uphold the Code
of Professional Responsibility, safeguarded by the precautions required to rebut the
presumption of shared confidences. If used properly, the process of screening attorneys who
possess client confidences from other members of a firm can preserve those confidences while
avoiding the use of the motion to disqualify as a device to gain a tactical advantage. Therefore,
we believe that the fairer rule in balancing the interests of the parties and the public is to allow
the presumption of shared confidences with members of the new firm to be rebutted.
Thus, the third part of the test on disqualification is whether the presumption of shared
confidences with the new firm has been rebutted by evidence that a "Chinese wall" has been
erected so as to preserve the confidences of the client.56 The Chinese wall is the specific
institutional screening mechanisms that will prevent the flow of confidential information from the
quarantined attorney to other members of the law firm.
Factors to be considered in deciding whether an effective screen has been created are whether
the law firm is sufficiently large and whether the structural divisions of the firm are sufficiently
separate so as to minimize contact between the quarantined attorney and the others, the
likelihood of contact between the quarantined attorney and the specific attorneys responsible for
the current representation, the existence of safeguards or procedures which prevent the
quarantined attorney from access to relevant files or other information relevant to the present
litigation, prohibited access to files and other information on the case, locked case files with
keys distributed to a select few, secret codes necessary to access pertinent information on
electronic hardware, instructions given to all members of a new firm regarding the ban on
exchange of information, and the prohibition of the sharing of fees derived from such litigation.

56

“Chinese wall" has become the legal term to describe a “procedure which permits an attorney involved
in an earlier adverse role to be screened from other attorneys in the firm so as to prevent disqualification
of the entire law firm simply because one member of firm previously represented a client who is now an
adversary of the client currently represented by the firm.” Black's Law Dictionary (6 Ed.Rev.1990) 240.
This term refers historically to the Great Wall of China, which served ancient Chinese emperors as a
barrier to invasion. Ironically, however, the Great Wall of China was of limited military value. The concept
is also referred to in cases and commentary as "screening devices," "ethical screens," or "institutional
mechanisms for screening." [Editor’s note: Screening procedures are now typically called “firewalls.”]

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A very strict standard of proof must be applied to the rebuttal of this presumption of shared
confidences, however, and any doubts as to the existence of an asserted conflict of interest
must be resolved in favor of disqualification in order to dispel any appearance of impropriety.
Some courts have held that unrebutted affidavits attesting to a Chinese wall are sufficient to
prevent disqualification. However, we reject such a bright-line test, as the court should maintain
discretion to weigh issues of credibility. The court should be free to assess the reputation of an
attorney and law firm for integrity and honesty. The court should also be free to balance the
appearance of impropriety against the protections of a Chinese wall. For example, suppose a
sole practitioner representing a plaintiff switches sides to a five-person defense firm
representing the opposing party, leaving his former client to seek new counsel. The appearance
of impropriety in such a fact pattern may be impossible to overcome.
If applied properly, screening mechanisms to insulate a quarantined attorney from the rest of the
firm can protect client confidences while allowing for attorney mobility and the right of a client to
choose counsel.
ADDITIONAL FACTORS TO CONSIDER IN MOTIONS TO DISQUALIFY
In addition to the screening devices, there are other important factors to be considered by the
trial court. First, the screening devices must be employed as soon as the disqualifying event
occurs. Very few cases address how early the disqualifying event occurs. In the Manning case,
a conflict arose with the attorney's former firm only after the attorney, with the former client's
knowledge, had moved to an uninvolved law firm. In Cromley, the attorney and the new firm
agreed that “absolutely nothing of a substantive nature regarding the instant lawsuit would occur
until decisions were made and the clients were made aware of them.” Other cases reviewed
have been silent as to the issue of when screening procedures were timely employed, although
all cases agree that the screens must be in place when the attorney joins the firm. Instituting
screens after a motion to disqualify is too late. Accordingly, a court must weigh the timeliness of
the screening devices.
A second factor to consider is the hardship that a client would incur in obtaining new counsel if a
motion to disqualify is granted. Hardship may be more of an issue if a conflict arose after a
transfer. However, hardship may not carry much weight in a “side-switching” case. Ironically,
where an attorney switches sides and joins an opposing counsel’s firm, the attorney has de
facto deprived his or her first client of the attorney of that client's choice, namely himself or
herself. If the attorney has been lead counsel, other counsel in the firm must spend time and
effort to take over the lead. If no one remaining in the prior firm is able to handle the matter, or if
the attorney was a sole practitioner, the former client must seek out new counsel and incur the
burden and expense created by the switch. In this scenario, the departing attorney has created
a competing hardship for his or her former client, and the claim by the new firm of hardship
created by its own doing in accepting the new attorney into the firm may no longer be
persuasive. These are matters that should be left to the trier of fact to weigh.

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In addition, a law firm contemplating hiring counsel who had been directly involved on the
opposing side also has a duty to disclose to its own client that such a hiring may place the firm
in conflict and could result in disqualification. The law firm may have to subordinate its desire to
augment its staff against its duties to its client and avoid placing the firm's interests above the
client's interests.
Finally, the court should hold an evidentiary hearing on a motion to disqualify and must issue
findings of fact if requested based on the evidence presented. Because a request for
disqualification implies a charge of unethical conduct, the challenged firm must be given an
opportunity to defend not only its relationship with the client, but also its good name, reputation
and ethical standards. In Analytica, the Court of Appeals for the Seventh Circuit summarized the
situation as follows:
An attorney’s and/or a law firm’s most valuable asset is their professional reputation for
competence, and above all honesty and integrity, which should not be jeopardized in a
summary type of disqualification proceeding of this nature. As court proceedings are
matters of public record, a news media report concerning a summary disqualification
order, based on a scant record of this type, can do irreparable harm to an attorney's or
law firm's professional reputation. We must recognize that the great majority of lawyers,
as officers of the court, do conduct themselves well within the bounds of the Code of
Professional Responsibility.
THE REBUTTABLE-PRESUMPTION TEST FOR MOTIONS TO DISQUALIFY
In conclusion, we hold that in ruling on a motion for disqualification of either an individual
(primary disqualification) or the entire firm (imputed disqualification) when an attorney has left a
law firm and joined a firm representing the opposing party, a court must hold an evidentiary
hearing and issue findings of fact using a three-part analysis:
(1) Is there a substantial relationship between the matter at issue and the matter of the
former firm's prior representation;
(2) If there is a substantial relationship between these matters, is the presumption of
shared confidences within the former firm rebutted by evidence that the attorney had no
personal contact with or knowledge of the related matter; and
(3) If the attorney did have personal contact with or knowledge of the related matter, did
the new law firm erect adequate and timely screens to rebut a presumption of shared
confidences with the new firm so as to avoid imputed disqualification?
APPLICATION OF TEST TO THIS CASE
Under the facts of this case, Pearson clearly met the substantial-relationship test and
possessed client confidences, as he was the lead attorney on Kala's lawsuit. Thus, the first two
parts of the test require disqualification of Pearson and raise a presumption in favor of

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disqualification of Duvin. No one disputes that Pearson, himself, cannot work further on the
case.
Therefore, we must determine whether the entire firm should be disqualified under the third part
of the analysis, imputed disqualification. The appellate court took evidence in the form of
affidavits but denied the parties oral argument. The appellate order consisted of the following
findings:
"Motion by appellant to disqualify counsel for defendants/appellees is granted. Appellee's new
counsel shall file a notice of appearance on or before May 31, 1996."
Therefore, we must examine the record we have before us, which consists of exhibits and
affidavits filed while the parties were briefing the disqualification question in the court of appeals.
Kala retained Pearson and the Spangenberg firm in 1993 as his attorneys. From 1993 through
1995, Kala trusted Pearson, relied upon him as his attorney, and disclosed all matters pertaining
to his case involving his former employer, Aluminum Smelting. Pearson proceeded to file an
appeal after the directed verdict and apparently even participated in a settlement conference
with the Eighth District Court of Appeals on November 13, 1995. On January 8, 1996, Pearson
obtained a continuance to file Kala's appellate brief. On January 22, 1996, Pearson left the
Spangenberg firm and joined the Duvin firm, which was representing Aluminum Smelting and
had been throughout the prior proceedings with Kala. The only conclusion that can be reached
from the record is that Pearson was negotiating with Duvin while still actively representing Kala
without disclosing to Kala his negotiations.
The appearance of impropriety is so strong that nothing that the Duvin firm could have done
would have had any effect on Kala's perception that his personal attorney had abandoned him
with all of his shared confidences and joined the firm representing his adversary while the case
was still pending. No steps of any kind could possibly replace the trust and confidence that Kala
had in his attorney or in the legal system if such representation is permitted. This is the classic
"side-switching attorney" case.
We find that under this set of egregious facts, the appearance of impropriety was so great that
the attempts made by Duvin to erect a Chinese wall were insufficient to overcome the
appearance of impropriety. Accordingly, we affirm the disqualification ruling of the court of
appeals.

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4.7: Specific Conflicts of Interest
I was gambling in havana, I took a little risk. Send lawyers, guns, and money, Dad, get me out
of this, hiyah!57
Under the Model Rules of Professional Conduct, special rules govern the attorney-client
relationship in specific circumstances, and define obligations imposed by the attorney’s fiduciary
duties. As discussed in Class 9, attorneys may engage in financial transactions with their clients
only if transaction is fair and reasonable to the client, and the attorney obtains the client’s
informed consent to the transaction in writing. But Rule 1.8 also imposes other specific
obligations on attorneys in relations to other potential agreements and transactions with their
clients. For example, it requires attorneys to obtain informed consent before using confidential
client information to the detriment of the client, and limits the ability of attorneys to receive gifts
from or makes loans to their clients.
Rule 1.8: Current Clients: Specific Rules
a. A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless:
1. the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing in a
manner that can be reasonably understood by the client;
2. the client is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek the advice of independent legal counsel on the
transaction; and
3. the client gives informed consent, in a writing signed by the client, to the
essential terms of the transaction and the lawyer's role in the transaction,
including whether the lawyer is representing the client in the transaction.
b. A lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent, except as permitted
or required by these Rules.
c. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift,
or prepare on behalf of a client an instrument giving the lawyer or a person related to the
lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the
client. For purposes of this paragraph, related persons include a spouse, child,
grandchild, parent, grandparent or other relative or individual with whom the lawyer or
the client maintains a close, familial relationship.
d. Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate
an agreement giving the lawyer literary or media rights to a portrayal or account based in
substantial part on information relating to the representation.
e. A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that:
57

Warren Zevon, Lawyers, Guns and Money, Excitable Boy (1978).

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1. a lawyer may advance court costs and expenses of litigation, the repayment of
which may be contingent on the outcome of the matter; and
2. a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client.
f. A lawyer shall not accept compensation for representing a client from one other than the
client unless:
1. the client gives informed consent;
2. there is no interference with the lawyer's independence of professional judgment
or with the client-lawyer relationship; and
3. information relating to representation of a client is protected as required by Rule
1.6.
g. A lawyer who represents two or more clients shall not participate in making an aggregate
settlement of the claims of or against the clients, or in a criminal case an aggregated
agreement as to guilty or nolo contendere pleas, unless each client gives informed
consent, in a writing signed by the client. The lawyer's disclosure shall include the
existence and nature of all the claims or pleas involved and of the participation of each
person in the settlement.
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.
Loans to Clients
In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the
streets and steal loaves of bread.58
In re Morse, 748 S.E.2d 921 (Ga. 2013)
Summary: Attorney Jack Morse lent a client $1,400 to avoid foreclosure and possible
jail time for his violation probation. Even though his client repaid the loan in full, Morse
admitted that this was a violation of Model Rule 1.8(e). Accordingly, the Supreme Court
of Georgia imposed a voluntary reprimand on Morse.
PER CURIAM.
This disciplinary matter is before the Court on a Petition for Voluntary Discipline filed by
Respondent Jack O. Morse (State Bar No. 525800) pursuant to Bar Rule 4-227(b)(2) before a
58

Anatole France, The Red Lily (1894).

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formal complaint was issued. In his petition, Morse admits violating Rule 1.8(e) of the Georgia
Rules of Professional Conduct set forth in Bar Rule 4-102(d). Although such a violation is
punishable by public reprimand, Morse requests the imposition of a Review Panel reprimand.
The State Bar has no objection.
Morse, who has been a member of the State Bar since 1972, admits that while representing a
client in a personal injury claim, he lent the client $1,400 for the client's use in avoiding
foreclosure and possible jail time for his violation of probation. Although the client repaid the
loan in full, Morse admits that he violated Rule 1.8(e). He asserts that while he has had three
instances of prior discipline (having received a 90-day suspension in 1996, and Review Panel
reprimands in both 1993 and 1998 — one of which was for similar misconduct), he has had no
disciplinary matters for an extended period of time. He further asserts that since 1998, he has
shown a strong regard for the professional standards of conduct and asks that this Court
consider, in mitigation, his cooperative attitude with disciplinary authorities and the fact that the
violation occurred as a result of him attempting to assist the client, a longtime acquaintance.
Under these specific circumstances, we agree that imposition of a Review Panel reprimand is
an appropriate sanction. Accordingly, we accept Morse's petition for voluntary discipline and
hereby order that Morse receive a Review Panel reprimand in accordance with Bar Rules 4102(b)(4) and 4-220(b) for his admitted violation of Rule 1.8(e).
Petition for voluntary discipline accepted. Review Panel reprimand.
All the Justices concur.
BLACKWELL, Justice, concurring.
I concur fully in the opinion of the Court, but I write separately to remind our readers that a
lawyer providing financial assistance to a litigation client is not always a violation of Rule 1.8(e).
With two exceptions, Rule 1.8(e) provides that “a lawyer shall not provide financial assistance to
a client in connection with pending or contemplated litigation.” By its plain terms, the Rule only
prohibits the provision of financial assistance to a litigation client to the extent of some
“connection” between the financial assistance on the one hand, and the litigation or
representation on the other. Absent such a “connection,” a lawyer may provide financial
assistance to a litigation client without running afoul of Rule 1.8(e).
This understanding not only is required by the plain terms of the Rule, but it also is perfectly
consistent with the three purposes of Rule 1.8(e). First, Rule 1.8(e) is intended to preserve the
loyalty and independence that the lawyer owes to the client, loyalty and independence that
might be compromised if the lawyer obtained “too great a financial stake in the litigation.”
Second, the Rule is intended to “prevent clients from selecting a lawyer based on improper
factors,” considering that “unregulated lending to clients might generate unseemly bidding wars
for cases.” Third, the Rule is intended to restrain the pernicious practices of barratry,
maintenance, and champerty. As I see it, financial assistance to an existing client that has no

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connection whatsoever with the litigation or representation of the client does not offend any of
the policies that the Rule is intended to promote.
This case is a little troubling to me because it appears from the record that Morse has been a
friend of his client for a long time, such that he might have provided financial assistance to his
client independent of the attorney-client relationship or the litigation, and indeed, even in the
absence of an attorney-client relationship or litigation. Lawyers can be generous, and it is not
uncommon for lawyers to help out their kin, their friends, and their neighbors. Nevertheless,
Morse has unequivocally admitted a violation of Rule 1.8(e), and as such, he has implicitly
admitted a connection between the financial assistance he provided and the litigation in which
he represented his client. For that reason, I am content to join the Court in accepting his petition
for voluntary discipline, and I am satisfied with the discipline that the Court has seen fit to
impose. I am authorized to state that Justice Hunstein joins in this concurrence.
State ex rel. Oklahoma Bar Ass’n v. Smolen, 17 P.3d 456 (Okla. 2000)
Summary: The Oklahoma Bar Association brought an action against attorney Donald E.
Smolen who made a loan to his client for living expenses in violation of Model Rule 1.8.
Smolen challenged this action on the grounds that Model Rule 1.8 violated the equal
protection clause of the Fourteenth Amendment because it treats similarly situated
classes of litigants differently: those who need advances for living expenses and those
who need advances for litigation costs. Accordingly, the Oklahoma Supreme Court
applied the rational basis test to determine that this disparate treatment was rationally
related to legitimate goal of protecting clients and maintaining integrity of the Bar.
Therefore, the Court imposed a 60 day suspension on Smolen.
I. OVERVIEW
Complainant, the Oklahoma Bar Association, alleged one count of misconduct warranting
discipline against respondent attorney, Donald E. Smolen (Respondent). The complaint alleged
that Respondent had violated rule 1.8(e) of the Oklahoma Rules of Professional Conduct
(ORPC), Okla. Stat. tit. 5, ch. 1, app. 3-A (1991) (prohibition against providing financial
assistance to a client in connection with pending or contemplated litigation). Respondent
received a public reprimand in 1992 for loaning money to clients. In an unpublished reprimand
issued in 1987, the respondent received an eight-month suspension from the practice of law.
The 1987 suspension was imposed for violations of DR 1-102(A)(3) ("engaging in illegal
conduct involving moral turpitude"), DR 1-102(A)(4) (engaging "in conduct involving dishonesty,
fraud, deceit, or misrepresentation"), DR 9-102(B) (failing to preserve the "identity of funds and
property of a client"), and rule 1.3 of the Rules Governing Disciplinary Proceedings (acting in a
manner "contrary to prescribed standards of conduct").
In the present matter, the parties have stipulated to the facts and recommended discipline. The
Professional Responsibility Tribunal (PRT) accepted the stipulations of fact, found that
Respondent had violated rule 1.8(e), and recommended Respondent be publicly censured.

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II. FACTS
During Respondent's representation of Mr. Miles in a case before the Workers' Compensation
Court, Respondent loaned Mr. Miles $1,200. The check to Mr. Miles recited that the money was
for travel expenses. Respondent admitted that the true purpose of the loan was for living
expenses because Mr. Miles' home had been destroyed by fire. Without the loan, Mr. Miles
indicated he would have to move to Indiana and would be unable to continue his medical
treatment or make court appearances. At the time of the loan, Mr. Miles was receiving
temporary total disability benefits of $426.00 a week from which Respondent's attorney fee was
subtracted. Mr. Miles received $384.00 a week before loan payments.
Respondent's loan to Mr. Miles was interest free and without penalty or cost other than the
amount of the principal. Mr. Miles was to repay the loan at $100.00 a week from his temporary
total disability benefits. Mr. Miles made three $100.00 payments on the loan. One of the
payments was returned to Mr. Miles resulting in his paying only $200.00 on the loan.
Respondent agreed to forego further repayment until final settlement of the Workers'
Compensation case.
When Mr. Miles became involved in other legal matters, he sought an attorney to handle the
additional matters together with the workers' compensation claim. After learning of Mr. Miles
search for a new attorney, Respondent terminated the attorney-client relationship with Mr. Miles.
Thereafter, Mr. Miles hired Mr. Elias to represent him. During mediation over a fee dispute
between Mr. Miles and Mr. Elias, the Tulsa County Bar Association learned of Respondent's
loan and reported Respondent's conduct to the Oklahoma Bar Association.
Respondent admits the loan to Mr. Miles is not an isolated incident. He testified that he had
consulted lawyers whose opinions are well respected in legal ethics, and it was their belief that
Respondent's conduct would not violate rule 1.8(e). Respondent admits that his actions violate
the express language of rule 1.8(e). However, Respondent submits that he has not violated the
intent of rule 1.8(e), and that rule 1.8(e) unconstitutionally treats clients who need humanitarian
loans differently than clients who receive advances of litigation expenses and court costs.
III. ANALYSIS
Rule 1.8(e) of the ORPC under which Respondent was disciplined in 1992 for giving financial
assistance to clients, provided:
While representing a client in connection with contemplated or pending litigation, a
lawyer shall not advance or guarantee financial assistance to a client, except that a
lawyer may advance or guarantee the expenses of litigation, including court costs,
expenses of investigation, expenses of medical examination, and costs of obtaining and
presenting evidence, provided the client remains ultimately liable for such expenses.

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Based on the Model Rules adopted by the American Bar Association, rule 1.8(e) was amended
in 1993 to provide:
A lawyer shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that a lawyer may advance court costs and expenses of
litigation, the repayment of which may be contingent on the outcome of the matter.
The primary change under the Model Rules is that the repayment of litigation expenses and
court costs may be contingent on the outcome of the case. Both the 1992 and 1993 versions of
rule 1.8(e) unambiguously prohibit a lawyer from advancing living expenses to clients. In this
case, Respondent advanced funds for living expenses to be repaid from the client's worker's
compensation benefits, an action admittedly prohibited by rule 1.8(e).
Most authorities prohibit a lawyer from providing financial assistance to clients for living
expenses during representation. In 1991, a draft of a provision of the Restatement of Law would
have allowed a lawyer to make or guarantee a loan to a client "if the loan was needed to enable
the client to withstand delay in litigation that otherwise might unjustly induce the client to settle
or dismiss a case because of financial hardship rather than on the merits." However, in 1996 the
American Law Institute Council decided the rule was ill-advised, and, in 1998, the provision was
removed. The final draft of the Restatement would not allow a lawyer to make or guarantee a
loan to a client except for litigation expenses and court costs. Rule 1.8(e) of the American Bar
Association's Model Rules of Professional Conduct adopted in 1983 prohibits a lawyer from
advancing funds to a client for living expenses. A proposal to allow lawyers to advance clients
funds for living expenses was rejected by the American Bar Association House of Delegates.
Twenty-nine states have adopted the current version of ABA Model Rule 1.8(e) which allows
repayment of litigation costs to be contingent on the outcome of the case but forbids advances
for living expenses. Fourteen other states follow the ABA Model Code of Professional
Responsibility, adopted in 1969, or a version of the Model Rules or Model Code that requires
the client remain liable for litigation expenses and court costs and prohibits advances for living
expenses. Only eight states explicitly allow lawyers to advance or guarantee loans to clients for
living expenses: Alabama, California, Louisiana, Minnesota, Mississippi, Montana, North
Dakota, and Texas.
Only one state has refused to discipline a lawyer for advancing funds to clients for living
expenses during representation. The Louisiana State Supreme Court stated that advancing
money to an indigent client for necessary living expenses during representation did not violate
the Louisiana rules of legal ethics. Even though the court questioned the constitutionality of the
rule, the court based its conclusion on a finding that the conduct did not violate the rule's intent.
The lawyer was disciplined for making advances which were not based on the client's needs. In
The Alaska Supreme Court held the rule did not unconstitutionally deny or interfere with the
client's access to the courts. Further, no court has invalidated rule 1.8(e) based on a
constitutional infirmity.

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We have has previously disciplined lawyers for providing financial assistance to clients for
purposes other than litigation expenses and court costs. Several other courts addressing the
question have also imposed discipline on lawyers for like conduct. The Mississippi Supreme
Court expressed its concern that allowing a lawyer to advance funds to a client for living
expenses would “generate unseemly bidding wars for cases and inevitably lead to further
denigration of our civil justice system.”
A. INTENT OF THE RULE
Respondent admits violating rule 1.8(e) but argues that he should not be disciplined because he
did not violate the intent of the rule. What Respondent in reality requests is that we adopt an
exception to the rule that allows attorneys to make loans to clients for necessary living expenses
after the attorney-client relationship is established.
The rule against attorneys providing financial assistance to clients for living expenses is based
on the common-law prohibitions against practice of champerty and maintenance. The evils
associated with champerty and maintenance intended to be prevented by rule 1.8(e)'s
prohibition are: (1) clients selecting a lawyer based on improper factors, and (2) conflicts of
interest, including compromising a lawyer's independent judgment in the case and creating the
potentially conflicting roles of the lawyer as both lawyer and creditor with divergent interests.
Respondent argues that he advanced the funds only after the attorney-client relationship was
established with repayment to be made from benefits which had already been awarded, and the
loan was for humanitarian purposes. Thus, he posits that the evils of champerty and
maintenance are absent here and that he should not be disciplined because he did not violate
the intent of the rule. We reject this argument as have most other states. First, Mr. Miles'
workers' compensation claim had not been completely resolved. He was receiving only
temporary benefits at the time Respondent made the loan, and, at least, a potential settlement
regarding permanent disability remained pending. Second, it would be unrealistic to conclude
that even if Respondent does not publicize that he makes loans to clients for living expenses,
potential clients would not learn of Respondent's practice from existing and past clients. Thus,
potential clients may base their decision to retain Respondent on improper inducements. The
fact that the loan was for humanitarian purposes may be a mitigating factor. Nonetheless,
Respondent violated rule 1.8(e).
Given that the Restatement and the ABA have rejected the same exception tendered by
Respondent and an overwhelming number of courts have also declined to adopt Respondent's
proposed exception, we also decline to make the ad hoc exception to rule 1.8(e) advocated by
Respondent. We are not unsympathetic to the plight of litigants. However, because of the
potential ethical problems which can arise from a lawyer advancing clients money for living
expenses, the explicit prohibition against such conduct in the Oklahoma Rules of Professional
Conduct, we believe Respondent should be disciplined.

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B. CONSTITUTIONALITY
Respondent asserts that rule 1.8(e) is invalid because it does not treat similarly situated classes
of litigants equally. The Fourteenth Amendment to the United States Constitution provides: "No
State shall make or enforce any law which shall deny to any person within its jurisdiction the
equal protection of the laws." This same prohibition is present in article 2, section 7 of the
Oklahoma Constitution. The two classes of clients proposed by Respondent are those who
need advances for living expenses and those who need advances for litigation costs.
The deferential rational basis test is applied in constitutional challenges based on the equal
protection clause when the classification is not based upon an inherently suspect characteristic
or jeopardizes a fundamental right. The divergent treatment must have only "some relevance to
the purpose for which the classification is made." Respondent does not argue that the
classification is based on an inherently suspect characteristic or that a fundamental right is
jeopardized. Thus, Respondent's challenge is analyzed under the rational basis test.
Assuming for purposes of argument that the two classes posed by Respondent are similarly
situated, rule 1.8(e)'s disparate treatment of advances for litigation expenses and court costs
and advances for all other expenses is based on legitimate goals and reflects the differences in
living expenses and litigation expenses and court costs. First, litigation expenses and court
costs are directly related to the actual litigation. Living and other expenses are not. Second,
litigation expenses and court costs are within a lawyer's expertise. Other expenses of clients are
not considered part of a lawyer's expertise. Third, it is a lawyer's duty to advise his client on
which litigation expenses and court costs are necessary for the litigation. It is not generally the
lawyer's duty to advise his clients as to what other expenses are necessary. Fourth, a lawyer
generally pays the litigation expenses and costs directly to the provider. In the case of other
expenses, the lawyer generally would give the money to the client, and there would be no
guarantee that the money would be utilized for the loan's intended purpose.
We agree with the drafters of the Restatement and the ABA Model Rules that a rule allowing
lawyers to make loans to clients for reasons other that advancing litigation expenses and court
costs is ill-advised. Because of the potentially inherent abuses in allowing lawyers to make
loans to clients for reasons other than litigation expenses and court costs, the divergent
treatment is rationally related to a legitimate goal of protecting clients and maintaining the
integrity of the Bar. Respondent has failed to show that rule 1.8(e) is unconstitutional.
IV. APPROPRIATE DISCIPLINE
Respondent has been previously disciplined by this Court, once in 1987 and again in 1992. In
1992, Respondent was publicly censured for the same misconduct with which he is presently
charged. He admits that the current loan is not an isolated incident. One of the purposes of
discipline is "deterrence of like behavior by both the respondent and other members of the bar."
This Court is not bound by the stipulated discipline of the parties. Because Respondent was
previously disciplined in 1987 for violations of ethical standards, was publicly censured in 1992

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for the same misconduct for which he is being disciplined in this matter, and has admitted that
the current violation is not an isolated incident, we deem the appropriate discipline is a sixty-day
suspension.
Fixed-Fee Agreements
American Ins. Ass’n v. Kentucky Bar Ass’n, 917 S.W.2d 568 (Ky. 1996)
Summary: The American Insurance Association and other insurance associations
sought review of Court of Advisory Ethics Opinion prohibiting any lawyer from entering
into contract with an insurer to do all of the insurer’s defense work for a set fee. The
Supreme Court held that such set fee arrangements are prohibited, because under rule
1.8(f)(2), it interferes with the exercise of the attorney’s independent professional
judgment. Instead, “the insurance company must hire members of the private bar to
undertake representation of their insured.”
STUMBO, Justice.
In this consolidated action, Complainants — American Insurance Association, National
Association of Independent Insurers, and State Farm Mutual Automobile Insurance Company
and State Farm Fire and Casualty Company — timely filed a motion seeking review by this
Court of Advisory Ethics Opinion E-368 which was issued by the Board of Governors of
Respondent, Kentucky Bar Association, and which appeared in the Fall 1994 issue of Kentucky
Bench & Bar. In addition, State Farm requests that this Court review that portion of
Unauthorized Practice of Law Opinion U-36 which proscribes the use, by insurance companies,
of salaried attorneys to provide defense services under the insurers' policies of insurance.
After carefully evaluating the opinions at issue, and the briefs filed and arguments advanced by
both Complainants and Respondent, we hereby approve and adopt E-368 as written, and
choose not to disturb U-36.
At issue in this action is the following question presented in E-368:
(1) May a lawyer enter into a contract with a liability insurer in which the lawyer or his
firm agrees to do all of the insurer's defense work for a set fee?
The Board of Governors answered “no” to this question, and stated that the arrangement at
issue would violate Kentucky Rules of Professional Conduct 1.7(b)[1] and 1.8(f)(2)[2], stating
therein “to some extent the lawyer becomes the insurer; and the lawyer stands to gain by
limiting the services rendered to the client.” The Board, indicating that the lawyer’s duty to the
insured client was a function of the attorney-client relationship and not governed by or limited by
the terms of the insurance contract, expressed concern that this set fee arrangement would
result in the loss of control of the insured client vis-a-vis actions taken by counsel in the course
of representation. The Board also noted that the insurer would take on a dual role in such a

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situation, in that “the insurer wants to continue to promise the insured a defense in the contract
of insurance, while limiting the extent of its undertaking in a side contract between the insured's
lawyer and the insurer to which the insured is not a party.” The Board characterized the
circumstance presented in E-368 as but the latest issue to arise from attempts by insurers to cut
costs. One such cost-cutting measure, referenced in the “Background” section of E-368 and
more fully discussed in U-36, involved the practice of insurers to attempt to provide defense
services directly through salaried attorney employees — a practice, the Board concluded, that
“is not permitted in Kentucky, for in addition to the obvious conflicts of interest that would be
presented by such an arrangement, the practice would violate the law governing unauthorized
practice.”
More specifically, this issue was addressed in U-36 through the following question:
May an insurance company employ in-house counsel (salaried employees) to represent
their insured after a lawsuit has been filed?
This question was answered in the negative. The opinion relied upon both Canon 3 of the ABA
Code of Professional Responsibility, which governs the areas of unauthorized practice of law,
and SCR 3.020, which defines the practice of law in Kentucky and recognizes that “nothing
herein shall prevent any natural person not holding himself out as a practicing attorney from
drawing any instrument to which he is a party without consideration unto himself therefor.” The
opinion also cited to long-standing Kentucky case law which proscribes a corporation from being
licensed to practice a learned profession, such as law. Ethical rules and legal precedent were
merged in the opinion to reach the conclusion that in the typical action on an insurance contract,
the insured, and not the insurer, was the party-defendant, and that, therefore, “the insurance
company must hire members of the private bar to undertake representation of their insured.”
Complainants contend that not only did the Board paint with too broad a brush in applying U-36
to E-368, but, that the former opinion, of itself, represents only a minority view of the
interpretation of the ABA Code of Professional Responsibility, and is, in fact, antithetical to the
precedent which attempts to follow the intent of the Code. Complainants seek support from the
ethics opinions and case law of other jurisdictions which allow house counsel to provide
insurance defense services. Additionally, State Farm asserts that Gardner v. North Carolina
State Bar, which is referenced in E-368 and which this Complainant terms “the sole court
decision holding that the use of claim litigation counsel constitutes the unauthorized practice of
law,” lacks substance. State Farm points out that this decision has been rejected by every court
to consider it.
In its attack upon U-36, State Farm goes so far as to characterize the opinion as “inconsistent
with law and logic.” The “law,” to which State Farm refers, appears to be contained in those
decisions of other jurisdictions which allow insurers to provide insurance defense services
through salaried attorney employees. Such precedent, as State Farm explains, is based upon
"the identity or community of financial interest between the insured and insurer in defending the
claim and because of the insurer's contractual obligation to defend the insured at the insurer's

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expense." The "logic," to which this Complainant refers, appears to lie within this rubric of
"community of interest." For example, State Farm indicates that it is contradictory for U-36 to
require the insurer to hire outside counsel to represent the insured once a complaint has been
filed, and yet to allow an insurer's employees, including attorneys, to take actions necessary to
protect the interests of both the insurer and its insured prior to the filing of a complaint, as this
latter activity is "inextricably intertwined with any defense of the insured." State Farm also
asserts that as the prohibition against the unauthorized practice of law is designed to protect the
public "from the incompetent, the untrained and the unscrupulous in the practice of law," who
could be more competent, trained and scrupulous therein than claims litigation counsel
employed by insurance companies who, because their practice is concentrated in automobile
and premises liability law, are able to specialize and become more proficient in the disposition of
such matters. State Farm implies that the legal system as a whole would benefit from such
house counsel, in that, as the compensation of these attorneys is not tied to billable hours, they
may be apt to dispose of these cases more quickly.
Notwithstanding the trends of other jurisdictions, any alleged nonsensical application of the
prohibition against the unauthorized practice of law, and the untapped resource of "competent,
trained and scrupulous" in-house insurance defense counsel as pipe cleaners for a clogged
legal system, we do not feel that U-36 deserves review. The age-old adage of "if it ain't broke,
don't fix it" seems appropriate in disposing of Complainants' argument herein, especially in light
of the fact that U-36 first surfaced nearly fifteen years ago and there is now no compelling
reason to overrule the more than fifty years of legal precedent which recognizes the principles
outlined in that opinion. "There is scarcely any judicial dissent from the proposition that a
corporation cannot lawfully engage in the practice of law." Moreover, "a corporation cannot
obtain license to practice law, since it is wholly incapable of acquiring the educational
qualifications necessary to obtain such license, nor can it possess in its corporate name the
necessary moral character required therefor." Nothing has changed since the rendering of
Kendall and Hobson, or since the adoption of U-36, to assuage the moral dilemmas and ethical
concerns connected to the unauthorized practice of law. In fact, no situation is more illustrative
of the inherent pitfalls and conflicts therein than that in which house counsel defends the insured
while remaining on the payroll of the insurer. "No man can serve two masters," regardless here
of either any perceived "community of interest," or Complainants' Pollyanna postulate that
house counsel will continue to provide undivided loyalty to the insured. Complainants' pleas for
logic are unpersuasive, as we are inclined to view U-36 in the way in which Respondent
characterizes the opinion — as a prophylactic measure, not unlike the imputed disqualification
rules. See Rule 1.10. As such, we believe that U-36 logically discerns when house counsel
would fall into that precarious position between employee of insurer and advocate of insured,
and, thus, logically prevents the occurrence of such a happening, and its onerous fallout.
Moreover, we are unswayed by Complainants' reliance on the practices of other jurisdictions
and what amounts to an “everyone else is doing it, why can’t we” argument. In State Farm Mut.
Auto. Ins. Co. v. Reeder, the task of this Court was to evaluate our state’s Unfair Claims
Settlement Practices Act to determine if a third-party claimant injured by an insurance
company’s violation of that statute could maintain a private right of action for damages. In our

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decision, we were unaffected by the “substantial split in authority among other states as to
whether individuals can maintain an action under their respective state laws.” In determining
that such a cause of action did exist in the Commonwealth, we concluded that “whether other
states permit private individuals to maintain claims is based upon their particular statutory
system and is of no consequence here. Our decision must be based on the language of the
Kentucky law.” Likewise, the Kentucky Rules of Professional Conduct and the means by which
this state oversees the conduct of its attorneys are personal to Kentucky. “The right to prescribe
such rules as are necessary to qualify, regulate, and control attorneys as officers of the court is
a right of self-preservation.” That other jurisdictions govern the practice of law differently, or
even allow for the unauthorized practice of law, is of no concern to us in this matter.
As for E-368, Complainants assert that there is no language within our Rules of Professional
Conduct which prevents an attorney and an insurer from entering into an agreement whereby
the attorney agrees to perform all of the insurer’s defense work for a set fee. In support,
Complainants analogize the set fee to other alternative billing methods — such as retainers and
contingency fees — and argue that there exists no real difference between these latter, more
accepted arrangements, and the set fee. Moreover, American and National contend that if any
type of fee arrangement is to be viewed as suspect, it is the hourly-based fee, which, these
Complainants argue, is vulnerable to “padding,” and even creates a conflict of interest wherein
the client has incentive to control costs by controlling counsel. The necessity to be free to
exercise independent judgment in order that the attorney may adequately represent the insured
is not, according to Complainants, jeopardized by the set fee arrangement, as the form of
compensation is not as significant a factor in evaluating the propriety of the attorney-client
relationship as, for example, whether or not the attorney has a personal interest in the outcome
of the litigation. American and National assert that the high standards of ethical conduct with
which attorneys must comply do not mandate a per se prohibition on set fee arrangements as
such “a blanket prohibition is overbroad and does nothing to protect the integrity of the
profession.” Likewise, State Farm maintains that these ethical standards, which include
counsel’s implied duty of loyalty, mandate zealous representation of the insured, even if the set
fee has been exhausted. Complainants remind us that not only does this Court have the power
to defend the attorney-client relationship, but that, should this relationship break down and the
insured incur damage, the insured would most likely have a cause of action against the attorney
or the insurer or both.
Taking these latter propositions first, we agree that this Court does indeed have the power to
protect the attorney-client relationship, and is, herein, exercising such power by adopting E-368
as written. Moreover, we do not take comfort, as Complainants do, in knowing that the insured,
aggrieved by inadequate representation occasioned by the set fee arrangement, could proceed
against the attorney and/or the insurer. Such recourse requires that the insured first suffer a
harm, a circumstance which cannot be reconciled with this Court’s view that the interest of the
insured is to be protected. We also do not agree with Complainants' contention that the form of
compensation has little relevance in examining the attorney-client relationship. To the contrary,
a set fee arrangement enables the insurer to constrain counsel for the insured by, in effect,
limiting the defense budget — a practice that Respondent cautioned, in E-331, could create

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ethical problems similar to those herein. We agree with Respondent that the pressures exerted
by the insurer through the set fee interferes with the exercise of the attorney's independent
professional judgment, in contravention of Rule 1.8(f)(2). The set fee arrangement also clashes
with Rule 1.7(b) in that it creates a situation whereby the attorney has an interest in the outcome
of the action which conflicts with the duties owed to the client: quite simply, in easy cases,
counsel will take a financial windfall; in difficult cases, counsel will take a financial loss. Finally,
Complainants' rationale that other, more commonly used and less restricted billing methods are
not as bad as, just as bad as, or worse, than the set fee does not influence us in our review of
E-368.
Complainants maintain that set fee arrangements do not create impermissible conflicts of
interest between the insurance defense attorney and the insured. In support, Complainants
again take solace with our Rules of Professional Conduct and contend that ethical constraints
do not allow for the scope of representation to be dependent upon the fee counsel is to be paid.
Additionally, Allstate and National retreat to the abstract and assert that potential conflicts of
interest are everywhere, and not just confined to set fee arrangements. These Complainants
argue that there is no rational basis which would support a conclusion that one form of
employment is more likely to generate conflicts than another, especially after considering that
there is no guarantee that the attorney stands to substantially profit from a set fee arrangement.
Moreover, State Farm contends that the potential for conflict is very often lacking, because in
general, the interests of the insurer and the insured are aligned. According to State Farm, only
when the coverage is in dispute is there any real conflict between these parties.
We dispose of these arguments by first stressing that the mere appearance of impropriety is just
as egregious as any actual or real conflict. Therefore, E-368, in the same manner as U-36, acts
as a prophylactic device to eliminate the potential for a conflict of interest or the compromise of
an attorney’s ethical and professional duties. Furthermore, we do not wear the blinders that
Complainants apparently have in place, for we view the situation surrounding the set fee
agreement as ripe with potential conflicts. Respondent was able to cite to nineteen such
conflicts, including representation of the insured which becomes more complex than anticipated,
resulting in financial hardship for the attorney; policy and/or coverage defenses asserted by the
insurer against the insured; and disagreement between the insured and the insurer with regard
to settlement negotiations. Moreover, we do not believe that in most instances the interests of
the insured and the insurer are alike, but are more apt to agree with Respondent’s contention
that while the insured and the insurer may share some common interests, the two parties are
subject to complete divergence at any time. Inherent in all of these potential conflicts is the fear
that the entity paying the attorney, the insurer, and not the one to whom the attorney is obligated
to defend, the insured, is controlling the legal representation.
Finally, Complainants attack the case law and ethics opinions upon which E-368 is founded. In
particular, State Farm contends that E-368 cites to decisions which have either been overruled,
are inapposite as silent on the ethical issues addressed in E-368, or lack a basis in law and
precedent. Complainants also attack E-368 as overbroad and lacking any factual predicate. In
arguing that a reasoned, fact-based analysis is required in order to evaluate potential conflicts of

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interest, State Farm relies on the commentary to the Kentucky Rules of Professional Conduct,
which states, in part: “A possible conflict does not itself preclude the representation. The critical
questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially
interfere with the lawyer's independent professional judgment.” Additionally, Allstate and
National contend that the Board adopted the wrong version of E-368, in that a revised draft of
the opinion better articulates the ethical standard which should apply to counsel involved in set
fee arrangements. These Complainants note that the ethics opinions referenced in E-368 —
such as E-331 and E-340 — bear out the assertion that blanket prohibitions are unnecessary
where sufficient reliance is placed upon counsel's ability to comply with the ethical obligations
owed to the client, including the requirement that counsel act in the best interest of the client.
First, we believe that the ethics opinions and case law cited in E-368 are on point, and defer to
our previous discussion on the inapplicability of the decisions of other jurisdictions to Kentucky's
own governance of professional responsibility. Moreover, we are convinced by Respondent's
assertion that few of the other jurisdictions to which Complainants cite have conducted any
meaningful analysis of the issues presented, nor do these jurisdictions share our state's
aversion to the practice of law by corporations. For example, Respondent distinguishes the
Tennessee opinion of Youngblood, from the North Carolina opinion of Gardner, by noting that
Tennessee does not proscribe a corporation from practicing law for the public, whereas North
Carolina does prohibit this practice, as does Kentucky. Finally, notwithstanding the language of
other ethics opinions issued by Respondent, or Complainants' argument regarding the alleged
inadequacy of the language of the ethics opinion at issue, we find, as discussed above, that the
language of E-368 is complete and articulate, and hold that the opinion clearly presents its
stated purpose and rationale.
For the foregoing reasons, we approve E-368 as written, and do not disturb U-36.
In re State Grand Jury Investigation, 983 A.2d 1097 (N.J. 2009)
Summary: In a grand jury proceeding investigating an employer for fraud, the state
moved to disqualify the counsel of the employees on the grounds that the employer had
selected the counsel and was paying them. The Supreme Court held that the
employees’ counsel was not required to be disqualified under RPC 1.7(a) or 1.8(f)
because the counsel had no present relationship to the employer, were barred from
disclosing any information to the employer, and were to be paid unless the court granted
the employer leave to discontinue payment.
Justice RIVERA-SOTO delivered the opinion of the Court.
Confronted with a grand jury inquiry that commanded the testimony of several of its employees,
an employer elected to provide and pay for counsel to those employees for purposes of that
investigation. Fearing that having individual employees/grand jury witnesses represented by
counsel retained and compensated by the putative target of the grand jury inquiry violated
several of the Rules of Professional Conduct, the State moved to disqualify those counsel. The

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trial court denied that application, limited the amount of information to be transmitted by such
counsel to the employer, and, further, imposed restrictions both on the ability of the employer to
discontinue paying the fees of counsel for the employees as well as on the ability of those
counsel to discontinue representing the subpoenaed employees.
Regardless of the setting—whether administrative, criminal or civil, either as part of an
investigation, during grand jury proceedings, or before, during and after trial—whether an
attorney may be compensated for his services by someone other than his client is governed in
large measure by RPC 1.8(f) and, to a lesser extent, RPC 1.7(a) and RPC 5.4(c). The
overarching Rule, which purposely is written in the negative, forbids a lawyer from “accepting
compensation for representing a client from one other than the client unless three factors
coalesce: (1) the client gives informed consent; (2) there is no interference with the lawyer's
independence of professional judgment or with the lawyer-client relationship; and (3) information
relating to representation of a client is protected" as provided in the RPCs. A straightforward
application of RPCs 1.7(a), 1.8(f) and 5.4(c) requires that we affirm the order of the trial court.
I.
The operative facts on which this appeal arise are readily stated. The State commenced a grand
jury investigation into whether a corporate contractor had submitted fraudulent invoices for
services purportedly rendered to a county government. That inquiry focused primarily on the
contractor and three of its employees. In response, the company arranged for counsel for its
employees. The company entered into four separate retainer agreements with four separate
lawyers, three of whom were assigned to represent, respectively, the three specific employees
noted, and the fourth was retained to represent “all non-target current and former employees of
the company in connection with the current state grand jury investigation.”
The retainer agreements with each of the four lawyers, however, shared common
characteristics and were, in all substantive and material respects, indistinguishable. A typical
retainer agreement provided (1) that the company “will be ultimately responsible to the law firm
for all reasonable and necessary legal fees and expenses incurred in this matter”; (2) that the
“undertaking by the company is made with the express understanding that the sole professional
obligation of the law firm will be to the named employee”; (3) that the “law firm is not required to
disclose any legal strategy, theory, plan of action, or the like, to the company”; (4) that “payment
of legal fees by the company to the law firm in no way depends upon any such disclosure”; (5)
that “no professional relationship will arise between the company and the law firm as a result of
the rendering of legal services by the law firm or the payment of legal fees and expenses by the
company”; (6) that “the reimbursement of legal fees and expenses is neither conditioned upon
nor dependent upon the law firm's cooperation with the company or any other party”; (7) that
while “detailed invoices will be provided to the represented employee, to preserve the
attorney/client privilege, only summary invoices will be submitted to the company”; and (8) that
the company would be responsible to pay those invoices “upon receipt.”

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Based on the company's retention of separate counsel for each of three employees identified by
the State, the company wrote to each such employee, informing them that:
As you know, the New Jersey Attorney General's office served the company with a
Grand Jury subpoena seeking various billing and payroll records related to the
company’s contract with the specified county government. The company has been fully
cooperative with the State's investigation.
Recently the Attorney General’s office has begun interviewing some of our employees at
the identified project. Given your position with the company and involvement in this
project, and based upon the advice of our attorneys in New Jersey, we believe it would
be prudent to retain separate counsel to represent you personally in connection with the
State’s investigation. Accordingly, the company has retained a specially retained lawyer
to represent you in connection with the State’s investigation. You do not have to use that
specially retained lawyer as your attorney. You are free to hire your own attorney, at
your own costs.
You should not interpret this decision to mean that the company believes there to have
been any illegal activity in this matter on the part of any company employee. Rather, it is
based upon the recognition that your personal rights may conflict with the interests of the
company. While the company agrees to pay for your legal representation in this matter,
please understand that it has no obligation to do so and may stop paying those legal
fees and costs at any time, should it believe it appropriate to do so.
Your specially retained lawyer may be reached at [____]. His firm address is: [_____].
Please expect your specially retained lawyer to contact you directly to arrange a
convenient time to meet and discuss this matter. Please feel free to contact me directly
or speak with the company's local counsel if you have any questions regarding this
matter.
Very truly yours,
/s/ Senior Vice President and General Counsel
The company also announced to all other employees that the company had retained a lawyer—
free of charge to the employees—with whom those employees could consult and who was
available to represent those employees in respect of the grand jury inquiry.
In time, two of the four lawyers retained by the company to represent its employees were
subpoenaed to appear before the grand jury; they declined to appear, and the State later
withdrew those subpoenas. The State then notified the company that it, along with several
unnamed employees, had been designated as targets of the grand jury’s investigation, and later
served grand jury subpoenas for the company's records in respect of the retention of counsel for
its employees. The company complied with that subpoena by producing responsive but nonprivileged documents.

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The State moved before the Superior Court to disqualify the counsel retained by the company to
represent its employees “from further participation in this matter, pursuant to RPC 1.7, RPC 1.8
and RPC 1.10.” In response, each of the employees to whom the company had provided
counsel to date—the three identified “target” employees and two additional “nontarget”
employees—submitted certifications asserting that none of them could afford to retain separate
counsel, and that each was satisfied with and wished to remain with their then counsel.
The trial court noted at the outset that it “viewed the company’s conduct as one that is certainly
to be appreciated.” Addressing the caliber of the lawyers retained by the company for its
employees, the trial court explained that “as a major corporation, the company didn’t go out and
hire some low-level attorney. They went out and hired competent, knowledgeable, respected
attorneys.” Focusing on the application of the Rules of Professional Conduct to the State's
motion for disqualification, the court first observed that RPC 1.5 “talks about fees being
reasonable and that is not an issue before the Court.” Moving on to the application of RPC 1.6,
which addresses the confidentiality of information between a lawyer and his client, the trial court
remarked that the retained lawyers had provided certifications and sample redacted bills.
Agreeing that the procedure employed was proper, the trial court emphasized that “the only
thing that I would require going forward is that all of the bills sent to the company be redacted
and that no specific information be detailed in the billing.”
Turning to RPC 1.7, the general conflict of interest rule, the trial court concluded that, “at least at
this point, there's been no demonstration that there is even a conflict and even if there were,
these employees have the right to waive that conflict.” It also declared itself “satisfied that there
has been informed consent given by all of the employees by way of what they have put in the
certifications.” It concluded that
The Court finds nothing improper about the attorneys that have been retained by the
company. In fact, the Court would go further and say that the company acted
responsibly, quite frankly, and with corporate policy and, quite frankly, having been
advised of the reputation of these attorneys. And clearly the understanding between the
company and these attorneys was spelled out in not only the retainer agreements, but in
previous letters before all this was signed.
It added, however, some restrictions: “that the company and the individual attorneys, prior to
ending any relationship for payment, would have to make application to the Court,” and that
counsel were to “redact the billings to cure any notion that the State may have that somehow
the billings will reveal significant aspects of the grand jury investigation.”
The trial court entered an order that denied the State's motion to disqualify counsel. More
specifically, it
FURTHER ORDERED that before the company may cease paying any of the attorney’s
legal fees and costs, the company shall provide notice to the Court and all parties, and

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the Court shall conduct a hearing on the issue of whether the company may cease
paying such legal fees and costs; and
IT IS FURTHER ORDERED that before any of the attorneys may withdraw from this
case based upon the refusal of the company to pay the attorney’s legal fees and costs,
such attorney shall provide notice to the Court and all parties, and the Court shall
conduct a hearing on the issue of the attorney's request to withdraw; and
IT IS FURTHER ORDERED that the attorneys henceforth shall submit to the company
legal bills either in summary form or with all detailed information redacted therefrom.
The State sought leave to appeal that determination and, in an unpublished order, the Appellate
Division denied that application. It then moved before this Court, seeking leave to appeal the
trial court’s order and other ancillary relief. Those motions were granted. We also granted leave
to the Association of Criminal Defense Lawyers of New Jersey to appear as amicus curiae. For
the reasons that follow, we affirm the order of the trial court.
II.
According to the State, a per se conflict of interest arises whenever, as here, two facts
contemporaneously appear: a target in a grand jury investigation unilaterally selects and retains
a lawyer to represent potential witnesses against it, and the lawyer relies on the target for
payment of legal fees. In the State’s view, that arrangement will split the attorney's loyalty and
will discourage the lawyer from counseling the client to cooperate with the State, even when
cooperation might be in the client's best interest. It asserts that the perceived effect of allowing a
target to select and pay for counsel for the witnesses against it is to irreparably taint the
proceedings. The State also claims that such a conflict cannot be waived and that, even if it
could be waived, a waiver could only be demonstrated through the live testimony of the
witnesses, and not, as was done here, via certifications.
The lawyers whose disqualification is sought counter that RPC 1.8(f) clearly contemplates an
employer designated as a grand jury “target” providing and paying for separate counsel for its
employees during that grand jury inquiry. They reject the State's claim that, in the criminal law
setting, the better rule is the imposition of a per se conflict. Finally, they assert that, even if a
potential conflict of interest exists, it has been effectively waived. Amicus ACDL-NJ repeats
those arguments.
The company echoes the arguments advanced both by the lawyers whose disqualification is
sought and by amicus, and further asserts that, under the laws of its place of incorporation, it
has an obligation to provide counsel to its employees, noting that, absent counsel provided by
and paid for by the company, most of its employees would be unable to afford a lawyer.
III.

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A.
Our evaluation of an actual or apparent conflict does not take place in a vacuum, but is, instead,
highly fact specific. In that respect, the Court’s attention is directed to something more than a
fanciful possibility. To warrant disqualification in this setting, the asserted conflict must have
some reasonable basis.
The State asserts that a target of a grand jury inquiry providing and paying for the lawyers who
will represent the target's employees before the very grand jury considering the target's
culpability creates an insoluble conflict not subject to waiver. Although the State's arguments
possess considerable initial appeal, in light of modern changes in the manner in which attorneyclient relationships are to be viewed, we are constrained to disagree.
No doubt, it long has been the law of this State that it is “improper for the attorney for an
employee to have accepted the organization’s promise to pay his bill, for such an arrangement
has the inherent risk of dividing an attorney’s loyalty between his client and his client’s employer
who will pay for the services.” In those instances, we have concluded that “a conflict of interest
inheres in every such situation,” one that cannot be waived “when the subject matter is crime
and when the public interest in the disclosure of criminal activities might thereby be hindered.”
Reasoning that “an attorney must realize that the employer who agrees to pay him is motivated
by the expectation that he will be protected," we have concluded that
It is inherently wrong to represent both the employer and the employee if the employee's
interest may, and the public interest will, be advanced by the employee's disclosure of
his employer's criminal conduct. For the same reasons, it is also inherently wrong for an
attorney who represents only the employee to accept a promise to pay from one whose
criminal liability may turn on the employee's testimony.
See also Wood v. Georgia, 450 U.S. 261, 268-69 (1981) (emphasizing that “courts and
commentators have recognized the inherent dangers that arise when a criminal defendant is
represented by a lawyer hired and paid by a third party, particularly when the third party is the
operator of the alleged criminal enterprise. One risk is that the lawyer will prevent his client from
obtaining leniency by preventing the client from offering testimony against his former employer
or from taking other actions contrary to the employer’s interest”).
B.
That said, effective September 10, 1984, New Jersey replaced its then extant Canons of
Professional Ethics and Disciplinary Rules with the more modern Rules of Professional
Conduct. Among these was RPC 1.8(f), which then provided that
A lawyer shall not accept compensation for representing a client from one other than the
client unless: (1) the client consents after consultation; (2) there is no interference with
the lawyer's independence of professional judgment or with the lawyer-client relationship

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and (3) information relating to representation of a client is protected as required by RPC
1.6.
Thereafter, starting in 2001 and continuing for almost two years, New Jersey engaged in a
“review of the existing Rules of Professional Conduct in light of the work of the American Bar
Association's Commission on Evaluation of the Rules of Professional Conduct.” This process
culminated in yet another round of modifications to the Rules of Professional Conduct. In
respect of RPC 1.8(f), however, only minor changes were made; it now provides in full as
follows:
A lawyer shall not accept compensation for representing a client from one other than the
client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or
with the lawyer-client relationship; and
(3) information relating to representation of a client is protected as required by RPC 1.6.
C.
However, RPC 1.8(f) does not exist in a vacuum: two other RPCs directly touch on the question
presented. First, RPC 1.7(a) forbids a lawyer from representing a client “if the representation
involves a concurrent conflict of interest.” That RPC recognizes “a concurrent conflict of interest
if: there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer’s responsibilities to a third person or by a personal interest of the lawyer.”
Second, RPC 5.4(c) provides that “a lawyer shall not permit a person who recommends,
employs, or pays the lawyer to render legal services for another to direct or regulate the
lawyer’s professional judgment in rendering such legal services.”
Our task, then, is to harmonize RPCs 1.7(a)(2), 1.8(f) and 5.4(c) seemingly overlapping
mandates so as to give proper guidance on whether, and under what circumstances, a lawyer
may represent a client when the fees and costs incurred are being paid by another.
D.
The starting point for analysis must be the RPC that most specifically addresses the question of
when a lawyer can represent a client while being paid by another: RPC 1.8(f). That RPC makes
clear that three factors must coalesce in order to allow a lawyer paid by a third party to
represent a client: the client must give informed consent; the lawyer’s independent professional
judgment and the lawyer-client relationship must be maintained sacrosanct; and no improper
disclosures relating or referring to the representation can be made. However, the considerations
that animate RPC 1.7(a)(2)—that there be no concurrent conflict of interest—and RPC 5.4(c)—
that no third party may influence the lawyer's professional judgment— also are relevant and
must be addressed.

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A synthesis of RPCs 1.7(a)(2), 1.8(f) and 5.4(c) yields a salutary, yet practical principle: a lawyer
may represent a client but accept payment, directly or indirectly, from a third party provided
each of the six conditions is satisfied. Those conditions are:
(1) The informed consent of the client is secured. In this regard, “‘informed consent’ is
defined as the agreement by a person to a proposed course of conduct after the lawyer
has communicated adequate information and explanation about the material risks of and
reasonably available alternatives to the proposed course of conduct.”
(2) The third-party payer is prohibited from, in any way, directing, regulating or interfering
with the lawyer’s professional judgment in representing his client.
(3) There cannot be any current attorney-client relationship between the lawyer and the
third-party payer.
(4) The lawyer is prohibited from communicating with the third-party payer concerning
the substance of the representation of his client. The breadth of this prohibition includes,
but is not limited to, the careful and conscientious redaction of all detail from any billings
submitted to the third-party payer.
(5) The third-party payer shall process and pay all such invoices within the regular
course of its business, consistent with manner, speed and frequency it pays its own
counsel.
(6) Once a third-party payer commits to pay for the representation of another, the thirdparty payer shall not be relieved of its continuing obligations to pay without leave of court
brought on prior written notice to the lawyer and the client. In such an application, the
third-party payer shall bear the burden of proving that its obligation to continue to pay for
the representation should cease; the fact that the lawyer and the client have elected to
pursue a course of conduct deemed in the client's best interests but disadvantageous to
the third-party payer shall not be sufficient reason to discontinue the third-party payer's
continuing obligation of payment. If a third-party payer fails to pay an employee's legal
fees and expenses when due, the employee shall have the right, via a summary action,
for an order to show cause why the third-party payer should not be ordered to pay those
fees and expenses.
E.
We now apply this principle, and its conditions, to the case on appeal.
Informed consent. Each of the letters from the company to the individual employees provided
that the employee “did not have to use the assigned counsel as your attorney. You are free to
hire your own attorney, at your own costs.” As conceded by counsel for the company during oral
argument, that “take-it-or-leave-it” approach, on its face, does not satisfy the requirement that

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the employee's acceptance of counsel be based on informed consent. Therefore,
presumptively, the retention of counsel here does not comply with RPC 1.8(f)(1). However, as
acknowledged by the trial court, each of the employees certified that he was satisfied with the
assigned counsel and wished to remain as that counsel’s client. Therefore, we conclude that the
arrangement approved by the trial court below is satisfactory, albeit with the caveat that, in the
future, no such limitations on the choice of counsel should be communicated or imposed on the
employee/client save for reasonable limitations on fees and expenses.
Interference with the lawyer’s professional judgment. As clearly set forth in the separate
retention letters between the lawyers and the company, each of the lawyers explained that “the
sole professional obligation of the law firm will be to the assigned client.” For the avoidance of
future doubt, such retention letters should clearly and conspicuously note that nothing in the
representation shall limit the lawyer’s responsibilities to the client, as provided in RPC 1.8(f)(2),
and that the third-party payer shall not, in any way, seek to “direct or regulate the lawyer's
professional judgment in rendering such legal services.” RPC 5.4(c).
Current representation. The record is clear that none of the lawyers selected to represent the
individual employees had any current relationship with the company, and that “no professional
relationship will arise between the company and the law firm as a result of the rendering of legal
services by the assigned lawyer or the payment of legal fees and expenses by the company.”
Those facts, standing alone, constitute a sufficient showing in favor of permitting this
representation. Again, as an aid in future matters, the retention letters should clearly spell out
that the lawyer does not have a professional relationship with the third-party payer.
Prohibited communications. Each of the retention letters made clear that the lawyer “is not
required to disclose any legal strategy, theory, plan of action, or the like, to the company and
payment of legal fees by the company to the law firm in no way depends upon any such
disclosure.” In this respect, the better practice is to affirmatively state that the lawyer will not
disclose any part of the substance of the representation of the client to the third-party payer.
Consistent with that representation, all billings from the lawyer to the third-party payer must
have any detail information redacted, simply stating the sum due for services rendered and the
sum due for expenses incurred. Because these latter conditions were imposed by the trial court,
the retention letters, as modified by the trial court, clearly comply with the requirements we have
imposed.
Prompt and continued payment. Once an employer commits to paying the legal fees and
expenses of its employees, it scrupulously must honor that commitment. Also, if the employer
wishes to discontinue paying the legal fees and expenses of one or more of its employees, it
may only do so by leave of court granted. Because this condition also was imposed by the trial
court and was agreed to by all parties, the arrangements at issue are satisfactory.
In sum, through the combined product of the good faith of an employer, the diligence of
competent counsel and the exercise of a trial court's supervisory authority, the net result of the
company's retention and payment of counsel for its employees complies with the Rules of

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Professional Conduct. For these reasons, the trial court properly denied the State's motion to
disqualify counsel.
IV.
The order of the Law Division denying the State's motion to disqualify the counsel retained to
represent the company's employees before the grand jury is affirmed.

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4.8: Personal Conflicts of Interest
Way out in Reno, Nevada, where romance blooms and fades, a great Philadelphia lawyer was
in love with a Hollywood maid. Come, love, and we’ll go ramblin’, down where the lights are so
bright. I'll win you a divorce from your husband, and we can get married tonight.59
Am I the only one who hears the screams and the strangled cries of lawyers in love?60
Do I look like I’m asking for it?61
It's harder to be friends than lovers, and you shouldn’t try to mix the two. Cause if you do it and
you’re still unhappy, then you know that the problem is you.62
Model Rule 1.8: Current Clients: Specific Rules
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.

Model Rule 1.8, Comments [17]-[19]: Client-Lawyer Sexual Relationships
[17] The relationship between lawyer and client is a fiduciary one in which the lawyer
occupies the highest position of trust and confidence. The relationship is almost always
unequal; thus, a sexual relationship between lawyer and client can involve unfair
exploitation of the lawyer's fiduciary role, in violation of the lawyer’s basic ethical
obligation not to use the trust of the client to the client's disadvantage. In addition, such a
relationship presents a significant danger that, because of the lawyer's emotional
involvement, the lawyer will be unable to represent the client without impairment of the
exercise of independent professional judgment. Moreover, a blurred line between the
professional and personal relationships may make it difficult to predict to what extent
client confidences will be protected by the attorney-client evidentiary privilege, since
client confidences are protected by privilege only when they are imparted in the context
of the client-lawyer relationship. Because of the significant danger of harm to client
interests and because the client's own emotional involvement renders it unlikely that the
client could give adequate informed consent, this Rule prohibits the lawyer from having
sexual relations with a client regardless of whether the relationship is consensual and
regardless of the absence of prejudice to the client.
[18] Sexual relationships that predate the client-lawyer relationship are not prohibited.
Issues relating to the exploitation of the fiduciary relationship and client dependency are
59

Woody Guthrie, Philadelphia Lawyer (1937).
Jackson Browne, Lawyers in Love (1983)
61
Chia Pet, Hey Baby (1992).
62
Liz Phair, Divorce Song, Exile in Guyville (1993).
60

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diminished when the sexual relationship existed prior to the commencement of the
client-lawyer relationship. However, before proceeding with the representation in these
circumstances, the lawyer should consider whether the lawyer's ability to represent the
client will be materially limited by the relationship. See Rule 1.7(a)(2).
[19] When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for
the organization (whether inside counsel or outside counsel) from having a sexual
relationship with a constituent of the organization who supervises, directs or regularly
consults with that lawyer concerning the organization’s legal matters.
Walter v. Stuart, 67 P.3d 1042 (Utah 2003)
Summary: Attorney Alan Stewart represented client Beth Walter in a divorce
proceeding. Stewart told Walter that he was divorced, and they began a personal
relationship, which soon became sexual. Eventually, Walter learned that Stewart was
actually married and ended the relationship. Walter filed an action against Stewart,
alleging breach of fiduciary duty. The trial court granted Stewart’s motion for summary
judgment, but the Supreme Court reversed, finding that issues of fact existed.
This case arises out of an attorney-client relationship, which turned sexually intimate, between
one-time client Beth Walter and her former attorney Alan Stewart. Following her discovery that
Stewart was married, Walter filed claims against Stewart for breach of fiduciary duty, fraud,
intentional infliction of emotional distress, reckless misconduct, breach of contract, and battery.
Upon Stewart's motion, the trial court entered summary judgment against Walter on all of her
claims. Walter now appeals. We reverse in part, affirm in part, and remand.
BACKGROUND
In June of 1998, Walter retained Stewart as her attorney in a divorce action. Through that
representation, Stewart learned that Walter was in a “fragile emotional state and had personal
self esteem issues,” including a “doubt in her ability to have a successful relationship.” Walter
decided to relocate to Maryland. In the first part of April of 1999, Walter phoned Stewart several
times, anxious that her divorce be finalized so she could move.
During his representation of Walter, Stewart became “very flirtatious, often commenting
regarding Walter’s personal appearance and grooming.” In April of 1999, Stewart began to call
Walter daily and, on April 15, took her on a lunch date. Following the lunch date Stewart asked
Walter, “If you move to Maryland, how are we supposed to have a relationship?” Walter then
“decided to postpone the move to see where Stewart’s ‘relationship’ with her would head.”
Through the first part of May, Stewart continued to tell Walter “that he was waiting to hear from
her husband’s lawyer to finalize the divorce.” On May 12, after personally contacting her exhusband and the trial court, Walter learned that her divorce had actually been finalized on April

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26.
The divorce decree required Walter to pay her ex-husband an amount of money. On May 13,
Walter asked Stewart about paying the judgment. Stewart told her “to hold off on payment to
see if her ex-husband would pursue collection and further advised her that if her ex-husband
tried to collect on the amount due, she could make arrangements to pay before a judgment was
levied against her.” Walter took Stewart’s advice and did not make the payment. Also upon
finalization of her divorce, Walter desired to resume the use of her maiden name and asked
Stewart “why her name change was not reflected in the divorce decree.” He told her that she
could take the decree to the Department of Social Security to have her name changed, which
she did.
Stewart and Walter continued to see each other on a personal basis, and on June 5, 1999,
Stewart kissed Walter, tried to undress her, and said that he wanted to “make love.” Upon
Walter’s questioning, Stewart told her that he was a divorced father of four children. The two did
not engage in sexual relations that day but did become sexually intimate on July 22, 1999. “On
that night as they discussed sleeping together, Walter told Stewart that she would only do so if
they were going to have an exclusive-monogamous relationship, a condition with which Stewart
readily concurred and agreed to.”
During their personal relationship, Stewart took Walter on numerous dates in public as well as
on business trips. He never wore a wedding ring. He displayed on his desk an engraved clock
that Walter gave him, and wore clothing she gave him. The two also spoke of getting married.
In August of 1999, Walter received an order to show cause for her failure to pay her ex-husband
what she owed him under the divorce decree. Walter contacted Stewart, and he said that he
would take care of the matter and declined her offer to pay for his services. He then made
payment arrangements with the attorney for Walter’s ex-husband, and the show-cause hearing
was canceled. “For his services rendered and as a token of appreciation, Walter bought Stewart
a $100 fountain pen."
In October of 1999, Walter considered breaking off her relationship with Stewart. However,
when she expressed those feelings to him, he “told her that he loved her, that he wouldn’t
accept her breaking up with him and that he would ‘stalk her and wait for her in the parking
garage at work.’” They continued to see each other, exchanged Christmas gifts, and spent
much of New Years Day 2000 together. Although their dates became less frequent in 2000,
Stewart continued to express a commitment to their relationship.
In September of 2000, while pursuing an unrelated international adoption, Walter was told by
the Immigration and Naturalization Service that she had illegally resumed use of her maiden
name since a name change was not included in her divorce decree. Walter contacted Stewart,
who told her that she would need to petition the court to amend the divorce decree. Because
Walter’s ex-husband would not cooperate in the action, she “retained Stewart’s services once
more to petition the court for a name change and paid him the sum of $350.00.”

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The hearing on Walter’s name change was held on November 2, 2000. “Following the hearing,
Stewart escorted Walter to her car. When they got to the car he grabbed her around the waist
and asked her to have sex with him.” “Because of the on again-off again nature of Stewart’s
relationship with her during the latter half of 2000, Walter became curious regarding his marital
status.” In a phone conversation on November 12, Stewart told Walter that he and his wife were
back together and that he had not been divorced, but only separated. After their phone
conversation, Stewart went to Walter’s home and told her that “he reconciled with his wife to be
with his children, that he was under discipline by his church for a previous affair, and that he had
been living with his mother.” Stewart nevertheless expressed a desire to keep in contact.
Over the next four days, Stewart called Walter “approximately four times a day,” and, on
November 16, took her out to lunch. On the evening of November 16, Walter called Stewart’s
wife and learned that Stewart had been married for twenty years, had never separated from his
wife, had not been disciplined by his church for a previous affair, and that he had not lived with
his mother at any time during his affair with Walter. Shortly after Walter’s conversation with
Stewart’s wife, Stewart called Walter and told her that she had ruined his life and then hung up.
The two have not spoken since.
Walter filed a complaint against Stewart. Her complaint includes claims for breach of fiduciary
duty, fraud, intentional infliction of emotional distress, reckless misconduct, breach of contract,
and battery. Stewart moved for summary judgment on all of Walter’s claims. The trial court
granted Stewart’s motion in its entirety, stating simply that Walter’s battery claims were barred
by the statute of limitations and that Walter “failed to support by Affidavit facts sufficient to
support” her other claims. She now appeals.
ANALYSIS
I. Breach of Fiduciary Duty
"Actions for breach of fiduciary duty are grounded on the fundamental principle that attorneys
must be completely loyal to their clients and must never use their position of trust to take
advantage of client confidences for themselves or for other parties. In all relationships with
clients, attorneys are required to exercise impeccable honesty, fair dealing, and fidelity.” Indeed,
due to their “professional responsibility and the confidence and trust” that their clients
“legitimately repose” in them, attorneys “must adhere to a high standard of honesty, integrity,
and good faith in dealing with” their clients. Attorneys are “not permitted to take advantage of
their position or superior knowledge to impose upon clients; nor to conceal facts or law, nor in
any way deceive clients without being held responsible therefor.”
“The essential elements of legal malpractice based on breach of fiduciary duty include the
following: (1) an attorney-client relationship; (2) breach of the attorney's fiduciary duty to the
client; (3) causation, both actual and proximate; and (4) damages suffered by the client.”

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It is undisputed that an attorney-client relationship existed between Stewart and Walter through
at least April of 1999. In May, Walter sought advice from Stewart regarding a sum of money she
owed her ex-husband under the divorce decree. Stewart “advised Walter to hold off on payment
to see if her ex-husband would pursue collection and further advised Walter that if her exhusband tried to collect on the amount due, she could make arrangements to pay before a
judgment was levied against her.” This evidence, when viewed in the light most favorable to
Walter, indicates that both Stewart and Walter anticipated further representation of her in the
divorce action. It is undisputed that Stewart later represented Walter on an order to show cause,
which came about because of the advice he gave her regarding payment of the judgment. He
represented her again in a name change hearing. Therefore, viewing the facts in a light most
favorable to Walter, an attorney-client relationship existed between the parties at all relevant
times.
As to a breach of the duty owed Walter, the facts viewed in a light most favorable to her indicate
that Stewart took advantage of information he gained during his representation of her to initiate
first a dating relationship and then a sexually intimate relationship with Walter. He also
misrepresented his marital status and the state of her legal affairs for his own interests.
Stewart’s conduct can be reasonably construed as taking advantage of a client’s fiduciary trust
through deception. Walter has thus stated facts sufficient to place the element of breach of duty
into dispute.
Walter states damages that she claims were caused, actually and proximately, by Stewart's
conduct. The reason for the dissolution of the parties’ relationship, as well as the timing of that
dissolution relative to the damages Walter alleges, raise a reasonable inference supporting both
actual and proximate causation. “Causation is an issue of fact, and we refuse to take it from the
jury if there is any evidence upon which a reasonable jury could infer causation.” We cannot,
therefore, rule against Walter as a matter of law on this element.
Stewart contends that “emotional injury, unaccompanied by a tangible manifestation of that
injury,” is not recoverable in a claim for breach of fiduciary duty. Walter, however, has alleged
the following damages arising from Stewart’s breach of duty: emotional pain, a need for mental
health counseling, physical pain, medical bills, loss of employment, and a need for sexual
therapy.
Because none of the elements of breach of fiduciary duty can be resolved against Walter as a
matter of law, we reverse the grant of summary judgment on this claim.
Questions:
City Bar Ass’n v. Williamson, 117 Ohio St. 3d 399 (Ohio 2008)
Summary: Attorney Karl Williamson represented a female client in a domestic-violence
action pending in Fairfield Municipal Court. He began to represent her, and eventually

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she and her two children moved in with him. When she and her husband reconciled after
five months, she and her two children moved out. Resultantly, Williamson withdrew from
representation. The Supreme Court held that Williamson’s relationship with his client
violated the professional rule and warranted indefinite suspension.
Respondent, Karl E. Williamson has been admitted to the practice of law in Ohio since 1990.
The Board of Commissioners on Grievances and Discipline now recommends that we
indefinitely suspend respondent’s license to practice based on findings that he became
intimately involved with a client after agreeing to represent her. On review, we agree that
respondent committed professional misconduct as found by the board and that an indefinite
suspension is appropriate.
Relator, Butler County Bar Association, charged respondent with two counts of misconduct, the
first relating to respondent’s affair with his client and the second for his failure to appear in
response to relator’s investigative subpoenas. Attempts to serve the complaint by certified mail
were unsuccessful and the mail was unclaimed, and relator served the Clerk of the Supreme
Court. A master commissioner appointed by the board heard the case, made findings of fact
and conclusions of law, and recommended an indefinite suspension. The board adopted the
master commissioner's findings of misconduct and recommended sanction.
Misconduct
Count One
In May 2004, respondent agreed to represent a female client in proceedings to terminate her
marriage before the Butler County Common Pleas Court. He also agreed to help her through a
domestic-violence action pending in Fairfield Municipal Court. The client paid respondent $500
toward a requested $1,000 fee.
Respondent began dating his client shortly after she hired him. Their relationship became
intimate in the end of May 2004, after the client paid the $500 and respondent had appeared at
a preliminary hearing in the domestic-violence case against her husband. By mid-June 2004,
respondent had allowed the client and her two children to move in with him. The client and her
children continued to reside with respondent until October 2004, when the client and her
husband reconciled.
In a letter to his client dated May 27, 2004, respondent claimed to be withdrawing as her lawyer
in the divorce or dissolution proceedings. Afterward, he began denying their attorney-client
relationship in correspondence to the lawyer representing her husband, although he continued
to assist her in secret. As part of his plan to hide their affair, respondent also directed his client
not to refer to him in public as her lawyer and promised to have another attorney, one of his
colleagues, “sign off” on any required papers. The colleague later testified in a deposition that
respondent never consulted him about the client.

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By engaging in an affair with his client and continuing to represent her, respondent risked his
client’s legal and personal interests for his own advantage. As we said in Disciplinary Counsel v.
Sturgeon, “a lawyer who attempts to engage in a sexual relationship with a client puts the
lawyer’s own personal feelings ahead of the objectivity that must be the hallmark of any
successful attorney-client relationship.” Respondent thereby violated DR 1-102(A)(5)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice),
1-102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on the
lawyer's fitness to practice law), and 2-110(B)(2) (requiring a lawyer to withdraw from
representation when the lawyer knows or it is obvious that his or her continued employment will
violate a Disciplinary Rule). Moreover, by lying to conceal the relationship, respondent violated
DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving fraud, deceit,
dishonesty, or misrepresentation).
Count Two
The client and her husband filed grievances against respondent. In investigating their claims,
relator subpoenaed respondent to appear twice, once in November 2005 and again in February
2006. Respondent did not comply with either subpoena. He thereby violated Gov.Bar R. V(4)(G)
(requiring a lawyer to cooperate in an investigation of misconduct).
Sanction
“We have consistently disapproved of lawyers engaging in sexual conduct with clients where the
sexual relationship arises from and occurs during the attorney-client relationship. A lawyer’s
sexual involvement with a client has warranted a range of disciplinary measures depending on
the relative impropriety of the situation, including actual suspension from the practice of law.”
Moreover, a lawyer's failure to cooperate in a disciplinary investigation, in and of itself, may
warrant an actual suspension from practice.
To determine the appropriate sanction, however, we must also weigh the aggravating and
mitigating factors of respondent’s case.
We accept the board's findings regarding aggravating factors. Respondent attempted to mislead
relator by reporting during the investigation that his client was actually represented by
independent counsel. He also changed the date of the letter purporting to terminate his
professional relationship with his client so that it appeared to coincide with a date after his last
appearance in court on her behalf. Moreover, respondent’s license to practice has been under
suspension since December 5, 2005, for his failure to properly register as an attorney. No
mitigating evidence dissuades us from imposing the recommended indefinite suspension.
Respondent is therefore indefinitely suspended from the practice of law in Ohio.
Questions:

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Cleveland Metro. Bar Assn. v. Paris, 148 Ohio St. 3d 55 (Ohio 2016)
Summary: The Bar association alleged that attorney Tasso Paris made unwelcome
sexual advance toward a female client and failed to appear at her criminal-sentencing
hearing for DUI. At several client meetings he referred to her as his beautiful red haired
Irish girl--which he thought relevant given her DUI coincided with St. Patrick’s day. The
client’s fiancee was apparently present for all but one of these meetings. He also asked
his client to go out with him several times and invited her to his house to join him in his
hot tub on more than one occasion. She discussed this with her fiancee, ultimately
agreeing she would go out with Paris just to ensure he represented her effectively. But
she could not bring herself to do so. After this, Paris failed to appear at her sentencing
hearing. His client then reported him. The Court compared his conduct to other similar
cases and resultantly would be suspended from the practice of law for six months if he
failed to pay restitution to the client’s fiancee.
Respondent, Tasso Paris of Cleveland, Ohio was admitted to the practice of law in Ohio in
1987.
In a January 2015 complaint, relator, Cleveland Metropolitan Bar Association, alleged that Paris
violated multiple Rules of Professional Conduct by making unwelcome sexual advances toward
a female client and failing to appear at her criminal-sentencing hearing.
The parties entered into stipulations of fact, misconduct, and aggravating and mitigating factors
and jointly recommended that Paris be suspended from the practice of law for six months, all
stayed on the condition that he engage in no further misconduct. A panel of the Board of
Professional Conduct conducted a hearing at which it admitted stipulations submitted by the
parties and heard testimony from Paris and the affected client. The panel largely adopted the
stipulations but, noting that Paris's testimony contradicted some of those stipulations, also found
that he failed to understand and acknowledge the wrongful nature of his conduct. The panel
therefore rejected the sanction suggested by the parties and recommended that Paris serve a
six-month actual suspension from the practice of law in Ohio. The board adopted the panel's
report in its entirety.
Paris objects to the board’s finding of an additional aggravating factor to which the parties had
not stipulated. He also argues that given the parties' comprehensive stipulations and the limited
nature of the testimony before the panel, this court should reject the sanction recommended by
the panel and adopt the stipulated sanction of the parties. We adopt the board's findings of fact
and misconduct but sustain Paris’s objections and suspend him from the practice of law in Ohio
for six months, all stayed on conditions.
Misconduct
Following an automobile accident that occurred on March 17, 2013, a woman hired Paris to
defend her in the Cleveland Municipal Court against charges of driving under the influence and

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driving under suspension, and her fiancé paid him $1,000. Paris stipulated that he referred to
her as his “beautiful Irish girl” but testified that he had referred to her as “a red haired Irish girl,
coming out of an Irish bar, in Cleveland, Ohio, on March 17th” only in the context of explaining
that no one was going to believe her claim that she had had only one drink before her St.
Patrick’s Day automobile accident. Paris also stipulated that during the course of his
representation, he asked his client to go out with him several times and invited her to his house
to join him in his hot tub on more than one occasion. Although he never denied the truth of that
stipulation, he also testified that the client's fiancé was present at all but one of their meetings.
Paris stipulated that his client was afraid to do anything about his conduct out of fear that it
would affect his representation. The client testified that his conduct made her uncomfortable but
that she never told him that she would not go out with him. Instead, she attempted to avoid the
issue by saying, “We’ll see” or “We will talk about it.” The client and her fiancé discussed her
concerns on several occasions and agreed that she would just go out with Paris so that he
would do a better job representing her, but she could not bring herself to go through with it. She
testified that as the case dragged on, however, she would have done “whatever he wanted” to
get it resolved.
On August 6, 2013, the client pleaded guilty to driving while under suspension and failure to
maintain reasonable control of her vehicle and was ordered to appear at a later date for
sentencing. Paris stipulated that he not only failed to attend the sentencing hearing but that he
also failed to notify the client of his absence and to request that another attorney attend the
hearing on his behalf. At the panel hearing, Paris acknowledged that stipulation and confirmed
its truth. He testified, however, that he had asked his father to attend the client's sentencing
hearing and that upon returning to the office after the hearing, his father reported that the case
had been “sent to another judge.” Paris’s father was not called as a witness, but he represented
Paris before the panel. During his closing argument, he stated that he attended the sentencing
hearing at Paris’s request. But the parties had stipulated — and the client's testimony confirmed
— that when the judge asked her whether she was represented by counsel, she responded that
Paris had failed to appear and that she did not expect him to because “he’s been doing nothing
but trying to get in my pants.”
Based on the client’s statement, the judge vacated the client’s plea and recused herself from the
case. The case was reassigned, and a public defender was appointed to represent the client.
The client ultimately pleaded guilty to operating an unsafe vehicle and was fined $200. She later
filed a grievance against Paris.
The board adopted the parties’ stipulations and agreed that Paris’s conduct violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client)
and 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a
consensual sexual relationship existed prior to the lawyer-client relationship).
Recommended Sanction

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When imposing sanctions for attorney misconduct, we consider several relevant factors,
including the ethical duties that the lawyer violated, relevant aggravating and mitigating
circumstances, and the sanctions imposed in similar cases.
The board adopted the parties’ stipulation that Paris has no prior disciplinary record and
cooperated with relator’s investigation. It also noted that Paris did not present evidence of any
other mitigating factors.
In addition to adopting the parties’ stipulated aggravating factors — that Paris acted with a
selfish motive and engaged in multiple offenses — the board found that Paris’s conduct harmed
a vulnerable client. The board also found that Paris did not understand or accept the wrongful
nature of his conduct based on testimony in which he (1) asked why the client referred a female
friend to him after terminating his representation if he was “hitting on” her, (2) stated that the
client's fiancé was present during all but one of their meetings, (3) claimed that he merely
referred to the client as a “red haired Irish girl” — and only when explaining that no one was
going to believe her claim that she had had only one drink before her St. Patrick's Day
automobile accident, and (4) claimed that his father had attended the client’s sentencing
hearing. While noting that relator offered no evidence that Paris engaged in a pattern of
misconduct, the board also commented that “there is likewise no evidence to assure the panel
that it was an isolated event that is unlikely to reoccur.”
The parties jointly recommend that Paris be suspended for six months but that the suspension
be stayed in its entirety on the condition that he engage in no further misconduct. In support of
that sanction, the parties cited Disciplinary Counsel v. Hubbell (imposing a conditionally stayed
six-month suspension on an attorney who attempted to initiate a romantic relationship with a
client whom he represented, pro bono, in a custody dispute), and Disciplinary Counsel v.
Quatman (imposing a conditionally stayed one-year suspension on an attorney who put his
hands on a client's breasts for several seconds and told her that they were “very nice”).
Noting the increasing frequency of cases involving repeated and unwelcome solicitation of
clients for sexual activity, the board, however, urges us to hold that in the absence of significant
mitigating factors, this court will impose an actual suspension on attorneys who have engaged
in such conduct — as we do in cases involving attorneys who have engaged in a material
misrepresentation to a court or have engaged in a pattern of dishonesty with a client.
In accordance with this suggested presumption and in light of Paris’s repeated and unwelcome
solicitation of his client, his failure to appear for her sentencing hearing after she rebuffed his
advances, his failure to acknowledge the wrongful nature of his conduct, and the absence of
additional mitigating evidence, the board recommends that we suspend Paris from the practice
of law for six months with no stay.
Paris’s Objections

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In his objections to the board’s report and recommendation, Paris urges us to reject the board’s
finding of the additional aggravating factor that Paris failed to accept the wrongful nature of his
conduct. He also challenges the board's recommended sanction and urges us to adopt the
parties’ stipulated sanction of a fully stayed six-month suspension.
We agree that Paris did not plainly acknowledge the wrongful nature of his conduct or make a
particularly strong showing of remorse at the panel hearing. But we also note that despite the
intention of the parties to submit the case entirely upon their stipulations, the panel sought to
hear testimony not only from Paris but also from the grievant. This created some confusion
regarding the scope of the evidence to be presented at the hearing. It also resulted in the
inadvertent admission of testimony that touched upon stipulated issues. Although relator and
the panel chairperson expressed that it was their intention to rely on the stipulations rather than
the testimony in those instances, there is a possibility that some of Paris’s contradictory
testimony was offered to rebut portions of the grievant’s testimony on those stipulated issues.
Therefore, in the interest of fairness, we decline to adopt additional aggravating factors based
on that testimony. Moreover, in light of Paris's nearly 30 years of practice with no disciplinary
record prior to this incident, we are inclined to agree that there is some evidence that his
behavior in this matter is an isolated incident.
We have consistently disapproved of the conduct of lawyers who have solicited or engaged in
sexual activity with their clients even before the adoption of Prof.Cond.R. 1.8(j), and depending
on the relative impropriety of the situation, we have imposed a wide range of disciplinary
measures for such conduct. We have publicly reprimanded attorneys who have commenced
consensual sexual relationships with their clients that have not compromised the clients'
interests. On the other end of the spectrum, we have disbarred an attorney who solicited sex
from clients in exchange for a reduced legal fee, made inappropriate sexual comments to
clients, touched them in a sexual manner, exposed himself to a client, and lied repeatedly
during the disciplinary process.
In between those two extremes, we typically impose term suspensions with all or part of the
suspension stayed, depending on the severity of the misconduct and the applicable aggravating
and mitigating factors.
We by no means condone Paris’s conduct in this matter, but on the stipulated facts before us,
we find that his actions are most comparable to cases in which we have imposed fully stayed
suspensions. Therefore, we sustain Paris’s objection to the board's recommended sanction and
find that a six-month suspension, stayed on conditions, is the appropriate sanction for his
misconduct.
Accordingly, Tasso Paris is suspended from the practice of law for six months, with the entire
suspension stayed on the conditions that he make full restitution of $1,000 to the affected client
and engage in no further misconduct. If Paris fails to comply with the conditions of the stay, the
stay will be lifted and he will serve the full six-month suspension. Costs are taxed to Paris.

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KENNEDY, J., concurring.
I agree with the majority that a six-month suspension, stayed on conditions, is the appropriate
sanction for the misconduct of respondent, Tasso Paris. The majority opinion tacitly rejects the
board's request that we adopt a new presumption that in the absence of significant mitigating
factors, the court will impose an actual suspension for the repeated and unwelcome solicitation
of vulnerable clients for sexual activity. The dissenting opinion argues in favor of adopting this
presumption. I write separately to squarely address whether it is this court's role to create a new
presumption in favor of an actual suspension in lieu of our deeply rooted process of determining
the appropriate sanction in each individual case.
Gov. Bar R. V(13) imposes a duty on the Board of Professional Conduct to examine the unique
facts and circumstances of each disciplinary case, the aggravating and mitigating factors
applicable to the individual attorney, and his or her life circumstances in order to determine the
appropriate sanction for that particular attorney. Therefore, the establishment of a presumption
of an actual suspension would be antithetical to our rules.
In 1995, this court established a presumption of an actual suspension in cases with misconduct
involving dishonesty, fraud, deceit, or misrepresentation, absent mitigating factors justifying a
stay. A majority of the court in Fowerbaugh reasoned that a presumption was warranted for
conduct by an attorney involving deception, falsehood, or fraud because “such conduct strikes
at the very core of a lawyer’s relationship with the court and with the client. Respect for our
profession is diminished with every deceitful act of a lawyer.”
In my view, however, deception and fraud are not the only types of misconduct that strike at the
core of a lawyer’s relationship with the court and with the client. Instead, every act of
misconduct does so and diminishes the honor and nobility of our great profession. But to echo
the views expressed in Justice Resnick's separate opinion in Fowerbaugh:
It is the responsibility of this court to give guidance as to what conduct constitutes a
violation of the Disciplinary Rules. It is not the province of this court to use syllabus law
to mandate a particular sanction once a violation has been found. The sanction in each
individual's case should be determined based upon the unique facts and circumstances
of that case.
Without question, inappropriate sexual conduct by an attorney toward his or her client
undermines the attorney-client relationship and diminishes respect for our profession. However,
if we were to adopt a presumption of an actual suspension for this category of misconduct
based on the reasoning advanced by the majority in Fowerbaugh, why not extend this approach
and establish a similar presumption for any and all cases involving violations that undermine the
attorney-client relationship and diminish respect for our profession? Adoption of the proposed
presumption in this case would move us closer to a reality in which the “exception swallows the
rule.”

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Gov.Bar R. V(2)(A) provides that “except as otherwise expressly provided in rules adopted by
the Supreme Court, all grievances involving alleged misconduct by attorneys shall be brought,
conducted, and disposed of in accordance with the provisions of this rule.” This provision
applies to all of Gov. Bar R. V, including Gov. Bar R. V(13). Presuming an actual suspension
would fundamentally transform our well-established individualized process of attorney discipline
into a formulaic “one size fits all” system. This philosophical shift should be carried out, if ever,
only pursuant to this court's longstanding rulemaking process, not through judicial fiat. It is for
the members of the legal community — guided by the principle that the primary purpose of the
disciplinary process is not to punish the offender but to “protect the public against members of
the bar who are unworthy of the trust and confidence essential to the relationship of attorney
and client” — to debate whether it would be appropriate to establish a presumption of an actual
suspension.
Accordingly, I respectfully concur.
LANZINGER, J., dissenting.
This court has been asked to consider establishing a presumption that in the absence of
significant mitigating factors, we will impose an actual suspension on attorneys who engage in
the repeated and unwelcome solicitation of vulnerable clients for sexual activity. We already
presume that an actual suspension will be the sanction for behavior involving dishonesty, fraud,
deceit, or misrepresentation, unless mitigating factors justify a stay. I believe that the same type
of sanction should be imposed upon respondents like Tasso Paris, especially because it
appears that cases of this type are increasing.
In my view, this court should do more than merely express disapproval of the attorney’s actions
by imposing a stayed suspension. The extent of the mitigation is that he has no previous
discipline and has cooperated with the investigation. On the other hand, he stipulated that he
acted with a selfish motive and engaged in multiple offenses. In addition, the board found that
he did not understand or accept the wrongful nature of his actions and so failed to show that his
misconduct was unlikely to recur. Most importantly, the client was harmed when Paris did not
appear for her sentencing, conduct that she attributed to her rebuffing his sexual advances.
I respectfully dissent from the court's judgment with respect to the sanction in this case. I would
adopt the recommendation of both the panel and the board and would suspend Paris from the
practice of law for a period of six months.
O'CONNOR, C.J., and O'NEILL, J., concur in the foregoing opinion.
Questions:
Disciplinary Counsel v. Engler, 110 Ohio St. 3d 138 (Ohio 2006)

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Summary: Attorney Engler had two sexual encounters with a 28-year-old female divorce
client. The client relationship began in June 2004 when Engler credited her bill for a
$400 painting of hers. In August she and her husband agreed to dissolve their marriage.
In September, Engler and his client met at a restaurant to discuss the dissolution
process and afterwards they had consensual sexual relations. Seven to ten days later,
they did it again at Engler’s home. Engler informed his client that they could no longer
have a personal relationship until her case was over and she was no longer his client.
Engler did some more work for his client but was dismissed in October. He reimbursed
his client for all she had paid and returned her painting. Because of several mitigating
factors including he had no prior record, he made restitution, he was cooperative in the
disciplinary proceedings, and had a good reputation, the Court imposed nothing more
than a public reprimand.
Respondent, David Lee Engler of Boardman, Ohio was admitted to the practice of law in Ohio in
1985.
On October 10, 2005, relator, Disciplinary Counsel, charged respondent with violating the Code
of Professional Responsibility by engaging in a sexual relationship with a client. A panel of the
Board of Commissioners on Grievances and Discipline heard the cause on the parties’ consentto-discipline agreement, filed pursuant to Section 11 of the Rules and Regulations Governing
Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline. The panel accepted the parties’ agreement and made corresponding findings of
misconduct and a recommendation, which the board adopted.
Misconduct
The parties stipulated that respondent had two sexual encounters with a divorce client and had
thereby violated DR 1-102(A)(6) (prohibiting conduct that adversely reflects on a lawyer's fitness
to practice law) and 5-101(A)(1) (prohibiting a lawyer from accepting employment if the exercise
of professional judgment on behalf of a client will be or reasonably may be affected by the
lawyer's personal interests). The parties also agreed that respondent’s misconduct warranted a
public reprimand.
Respondent has a law practice under the name of Engler & Associates. On June 29, 2004, a
28-year-old female client consulted respondent about ending her marriage. During their
discussions, respondent learned that the client was an artist and had sold some of her
paintings. He indicated an interest in possibly purchasing her work, and sometime later, the
client brought paintings to respondent's office. Respondent offered to buy some of the paintings
by crediting the client for $400 toward his $1,000 fee. The client agreed to trade the paintings
and paid the balance of respondent's $600 legal fee.
The client expected her husband to agree to dissolve their marriage, and in late August 2004,
respondent sent a separation agreement to the husband for review. On September 8, 2004,

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respondent met his client at a restaurant to discuss the dissolution process. Afterward,
respondent and the client went to his house and engaged in consensual sexual relations.
Approximately seven to ten days later, the client visited respondent at home again, and the
couple again had consensual sex. Respondent subsequently told his client that he could not
continue to have a personal relationship with her until her case had ended and she was no
longer his client. About the same time, respondent wrote a memo to the client's file indicating he
had told the client he could not have a personal relationship with her and that the client had
agreed.
In late September 2004, an attorney representing the husband sent respondent proposed
changes to the dissolution agreement. Early in October 2004, respondent met with his client in
the presence of his assistant to review the changes and then wrote to the other lawyer
regarding those changes.
In a telephone conversation on October 12, 2004, respondent again told his client that he could
not continue their personal relationship while he was representing her. The next day, the client
sent a letter of dismissal to respondent. Respondent promptly replied with a letter indicating that
he had completed his work in her case. Respondent enclosed a final invoice and a check
reimbursing the client for the remaining balance of her paid fees. Later, respondent also
returned the paintings that he had accepted from his client in partial payment of his fees.
Recommended Sanction
In recommending a sanction for respondent’s misconduct, the board weighed the mitigating and
aggravating factors of his case.
The parties stipulated to the mitigating factors that (1) respondent had no prior disciplinary
record, (2) he had made timely good-faith efforts at restitution, (3) he made a full and free
disclosure of information and was cooperative in the disciplinary proceedings, and (4) he had a
good reputation in the legal community apart from the underlying misconduct. According to the
parties, respondent on his own initiative had also received instruction on ethics and practice
management from a former president of the Mahoning County Bar Association. In addition, the
board found that respondent had acknowledged his wrongdoing in this isolated incident of
misconduct.
Adopting the panel’s report, the board recommended that respondent receive a public
reprimand for his misconduct.
Review
We agree that respondent violated DR 1-102(A)(6) and 5-101(A)(1), as found by the board.
Moreover, we generally impose a public reprimand when a sexual relationship develops during

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an attorney-client relationship if the affair is legal and consensual and has not compromised
client interests. Therefore, we find the recommended sanction appropriate.
Respondent is therefore publicly reprimanded for his violations of DR 1-102(A)(6) and 5101(A)(1).
Disciplinary Counsel v. Hines, 133 Ohio St. 3d 166 (Ohio 2012)
Summary: Attorney Dean Hines agreed to represent a client in an ongoing domesticrelations dispute with her ex-husband. Hines invited her to dinner and assured her a
personal relationship would not pose a conflict of interest; after a second dinner the next
evening, they had sex. His client testified she was afraid to resist Hines’ advances
because she needed his legal assistance. In the months that followed Hines hired her as
his bookkeeper, leased her a car, helped with her mortgage and utility payments, and
travelled together to Austria, Arizona, and South Carolina, and let her and her children
live with him while she recuperated from surgery. Eventually, the relationship fell apart
and Hines called 911 for a domestic violence incident. He fired the client the next day-the same time at which she received an adverse ruling she could only object to within 11
days. Considering some aggravating factors, including the client’s sensitivity and Hines
downplaying of his wrongdoing, the Court imposed a six month suspension.
Respondent, Dean Edward Hines of Centerville, Ohio was admitted to the practice of law in
Ohio in 1994. On October 11, 2010, relator, disciplinary counsel, filed a complaint alleging that
Hines had engaged in an inappropriate relationship with a client and violated Prof.Cond.R. 1.8(j)
and 8.4(h).
The parties stipulated to Hines’s misconduct. Upon the parties’ stipulations, the Board of
Commissioners on Grievances and Discipline accepted the parties’ joint recommendation that
we publicly reprimand Hines. However, we did not accept the recommendation and remanded
the case for further proceedings.
On October 14, 2011, the Board of Commissioners on Grievances and Discipline issued a
second report and recommended a 12-month suspension of Hines’s law license, with six
months stayed.
Misconduct
In early 2009, Hines agreed to represent a new client in an ongoing domestic-relations dispute
with the client’s ex-husband. On March 16, 2009, after several appointments and a pretrial
conference, Hines invited the client to dinner, where he discussed his interest in dating her.
Hines assured the client that a personal relationship between the two would not pose a conflict
of interest with respect to their attorney-client relationship. After another dinner the next
evening, Hines and the client became sexually intimate. Describing her feelings at this time, the

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client later testified that she was overwhelmed by Hines’s advances and that she was afraid to
resist him when she needed his legal assistance.
In the months that followed, Hines continued to represent the client in the domestic dispute
while continuing their romantic relationship. Hines hired the client to work as a bookkeeper at
his law firm, leased a car for her use, and contributed to her mortgage and utility payments.
They traveled together to Austria, Arizona, and South Carolina, and when the client underwent
surgery requiring a lengthy recovery period, Hines moved the client and her children into his
home.
The relationship fell apart in November 2009. On November 9, 2009, Hines called 9-1-1 to
report a domestic dispute with the client. He filed charges of aggravated menacing and
domestic violence and obtained a temporary protection order barring any contact with Hines.
The charges were eventually dropped.
The day after their altercation, Hines fired the client. A few days later, he mailed a letter
simultaneously notifying her of an adverse ruling in the underlying domestic case and of the end
of their attorney-client relationship.
When Hines mailed the letter, 11 days remained in which the client could protect her legal rights
by objecting to the magistrate’s ruling. Hines must have known about the client's vulnerability;
during their relationship, she had faced financial troubles and a serious physical illness requiring
surgery, not to mention the legal issues for which she had sought Hines’s help. Yet Hines did
not seek leave for an extension of this deadline, refer the client to another attorney, or otherwise
assist the client in protecting her rights. Instead, he left a vulnerable client without legal
representation or assistance at a critical time in her case, and he did so through an accusatory
letter that blamed the client for the adverse decision.
Although he left the client without counsel to protect her rights, Hines continued to make
overtures to her. He repeatedly e-mailed her and sent her text messages. As a practical matter,
these overtures encouraged the client to violate the temporary protection order. She did not
accept that invitation, even after Hines’s promises that he would not report her to police if she
responded.
The parties have stipulated that Hines’s conduct violated Prof.Cond.R. 1.8(j), which generally
prohibits sexual activity between attorneys and their clients, and Prof.Cond.R. 8.4(h), which bars
behavior that reflects adversely on the fitness of a lawyer to practice law. We adopt the board's
findings of fact and misconduct.
Sanction
The parties stipulated to the absence of aggravating factors. However, the Board of
Commissioners on Grievances and Discipline identified several aggravating factors pertaining to
Hines's misconduct: (1) he “knew from the outset that his conduct violated the Ohio Rules of

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Professional Conduct but he nevertheless acted with a clearly selfish motive,” (2) he “has
attempted to excuse or minimize that conduct rather than acknowledge that it was wrong,” and
(3) the client “was a vulnerable person and has been harmed as a result of” Hines's misconduct.
Hines objects to these findings. We overrule the objections and adopt the findings of
aggravating factors.
The parties stipulated to the following mitigating factors: (1) Hines has no prior disciplinary
record, (2) Hines cooperated with the investigation of his misconduct, and (3) as evidenced by
several letters of support, Hines enjoys a positive reputation in the legal community.
Disciplinary counsel suggests a six-month suspension, with all six months stayed. Hines
suggests a public reprimand or a stayed suspension of no more than six months. The Board of
Commissioners on Grievances and Discipline recommends that we suspend Hines from the
practice of law for 12 months, with the final six months stayed.
In the past, we have imposed public reprimands on attorneys who engaged in improper
consensual relationships with their clients, when the relationships did not compromise the
clients’ interests. But this is not a simple case of mutual consent; Hines used his position of
power to initiate and pursue an intimate relationship with a vulnerable client who was afraid to
resist. Furthermore, Hines’s conduct in leaving the client without legal assistance at a critical
juncture in her case threatened her interests. A public reprimand is not enough.
Nor do we find Hines's misdeeds comparable to those of attorneys whom we have suspended.
Hines’s conduct involved only one client, he has not engaged in any deception to hide the
misconduct, and he has cooperated with the disciplinary process.
The appropriate penalty in cases like these is often a stayed suspension, which reflects the
hope that the misconduct is limited to one occurrence and the reality that its recurrence would
necessitate serious consequences.
Like Hines, the attorney in Burkholder pursued an improper relationship with a vulnerable
domestic-relations client. Burkholder made numerous advances to the client until she fired him.
However, Burkholder had no prior disciplinary violations, and he cooperated throughout the
disciplinary process. We imposed a six-month, stayed suspension of Burkholder's license to
practice law.
We imposed the same penalty in Disciplinary Counsel v. Siewert. The attorney in Siewert
engaged in a consensual but improper relationship with a domestic-relations client. Unlike
Hines, Siewert had a record of prior discipline; however, we noted as mitigating factors
Siewert’s struggles with depression and his efforts to correct his personal problems.
We find Burkholder and Siewert instructive. Like the attorneys in those cases, Hines made a
serious mistake and abused the position of trust conferred upon attorneys, but the limited nature

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of his misconduct and his cooperative approach to the investigation give us reason to believe
that Hines will conduct himself appropriately in the future.
Accordingly, we suspend Hines from the practice of law for six months, and we stay the
suspension on the condition that Hines engage in no further misconduct. Costs are taxed to
Hines.

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Section 5: Confidentiality
5.1: The Duty of Confidentiality
I don’t know where you heard it. Don't know who’s spreading it round. All I know is, I’m clean as
a whistle, baby. I didn't utter a sound. I never said nothing.63
Attorneys have a fiduciary duty of confidentiality to their clients. The duty of confidentiality
provides that attorneys may not disclose confidential information provided to them by their
clients, unless their clients consent to disclosure, or an exception to the duty of confidentiality
permits disclosure. The duty of confidentiality applies to both current and former clients. Clients
disclose confidential information to their attorneys in order to obtain legal advice. Generally,
clients are entitled to assume that their attorney has a duty to maintain the confidentiality of any
information disclosed in private. However, the duty of confidentiality does not apply to
information that is “generally known” to the public.
The duty of confidentiality is broader in scope than the attorney-client privilege and the work
product doctrine. Information that is not privileged or protected from disclosure as attorney work
product may still be protected by the duty of confidentiality. Attorneys may not disclose
confidential information about their clients without informed consent, unless one of the
exceptions to confidentiality applies. Accordingly, the duty of confidentiality provides less
protection to confidential client information than the attorney-client privilege or the work product
doctrine, which may preclude the disclosure of confidential information when the duty of
confidentiality alone would not.
Model Rule 1.6: Confidentiality of Information
a. A lawyer shall not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out
the representation or the disclosure is permitted by paragraph (b).
b. A lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary:
1. to prevent reasonably certain death or substantial bodily harm;
2. to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer’s services;
3. to prevent, mitigate or rectify substantial injury to the financial interests or
property of another that is reasonably certain to result or has resulted from the
client's commission of a crime or fraud in furtherance of which the client has used
the lawyer’s services;
4. to secure legal advice about the lawyer’s compliance with these Rules;

63

Liz Phair, Never Said, Exile in Guyville (1993).

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5. to establish a claim or defense on behalf of the lawyer in a controversy between
the lawyer and the client, to establish a defense to a criminal charge or civil claim
against the lawyer based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer's representation
of the client;
6. to comply with other law or a court order; or
7. to detect and resolve conflicts of interest arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only
if the revealed information would not compromise the attorney-client privilege or
otherwise prejudice the client.
c. A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized
disclosure of, or unauthorized access to, information relating to the representation of a
client.
Model Rule 1.6: Confidentiality of Information, Comment [2]
A fundamental principle in the client-lawyer relationship is that, in the absence of the
client's informed consent, the lawyer must not reveal information relating to the
representation. This contributes to the trust that is the hallmark of the client-lawyer
relationship. The client is thereby encouraged to seek legal assistance and to
communicate fully and frankly with the lawyer even as to embarrassing or legally
damaging subject matter. The lawyer needs this information to represent the client
effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost
without exception, clients come to lawyers in order to determine their rights and what is,
in the complex of laws and regulations, deemed to be legal and correct. Based upon
experience, lawyers know that almost all clients follow the advice given, and the law is
upheld.
Restatement (Third) of the Law Governing Lawyers § 59 (2000): Definition of
“Confidential Client Information”
Confidential client information consists of information relating to representation of a
client, other than information that is generally known.
Restatement (Third) of the Law Governing Lawyers § 59 (2000): Comment b, Kinds of
confidential client information
A client’s approach to a lawyer for legal assistance implies that the client trusts the
lawyer to advance and protect the interests of the client. The resulting duty of loyalty is
the predicate of the duty of confidentiality. The information that a lawyer is obliged to
protect and safeguard is called confidential client information in this Restatement.
This definition covers all information relating to representation of a client, whether in oral,
documentary, electronic, photographic, or other forms. It covers information gathered

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from any source, including sources such as third persons whose communications are
not protected by the attorney-client privilege. It includes work product that the lawyer
develops in representing the client, such as the lawyer’s notes to a personal file, whether
or not the information is immune from discovery as lawyer work product. It includes
information acquired by a lawyer in all client-lawyer relationships, including functioning
as inside or outside legal counsel, government or private-practice lawyer, counselor or
litigator, advocate or intermediary. It applies whether or not the client paid a fee, and
whether a lawyer learns the information personally or through an agent, for example
information acquired by a lawyer's partners or associate lawyers or by an investigator,
paralegal, or secretary. Information acquired by an agent is protected even if it was not
thereafter communicated to the lawyer, such as material acquired by an investigator and
kept in the investigator's files.
The definition includes information that becomes known by others, so long as the
information does not become generally known. The fact that information falls outside the
attorney-client privilege or work-product immunity does not determine its confidentiality
under this Section.
A lawyer may learn information relevant to representation of a client in the course of
representing another client, from casual reading or in other accidental ways. In the
course of representation, a lawyer may learn confidential information about the client
that is not necessary for the representation but which is of a personal or proprietary
nature or other character such that the client evidently would not wish it disclosed. Such
information is confidential under this Section.
Restatement (Third) of the Law Governing Lawyers § 60 (2000): A Lawyer's Duty to
Safeguard Confidential Client Information
1. Except as provided in §§ 61- 67, during and after representation of a client:
a. the lawyer may not use or disclose confidential client information as defined in §
59 if there is a reasonable prospect that doing so will adversely affect a material
interest of the client or if the client has instructed the lawyer not to use or disclose
such information;
b. the lawyer must take steps reasonable in the circumstances to protect
confidential client information against impermissible use or disclosure by the
lawyer's associates or agents that may adversely affect a material interest of the
client or otherwise than as instructed by the client.
2. Except as stated in § 62, a lawyer who uses confidential information of a client for the
lawyer's pecuniary gain other than in the practice of law must account to the client for
any profits made.
Confidential & Privileged Information
In re Advisory Opinion No. 544 of NJ Sup. Court, 511 A. 2d 609 (N.J. 1986)

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Summary: The Community Health Law Project represented indigent and disabled
clients in New Jersey. Organizations providing funding requested client-identifying
information, but the Law Project provided only anonymized information. Some of the
funders objected, and the Advisory Committee on Professional Ethics found that
disclosure would not violate client confidence. The Law Project appealed, and the court
held that the attorney-client privilege and duty of confidentiality precluded the Law
Project from disclosing identifying information about its clients without informed consent
or a reasonable regulatory obligation.
We are called to consider in this case the application of attorney-client protections to the
relationship between a public legal services organization and the individuals whom it assists.
The issue posed is whether certain information relating to the clients of a legal services
organization, which provides legal assistance to mentally impaired or disabled and indigent
persons, may be disclosed to the private and governmental entities that provide funds to the
organization, without violating the protections of confidentiality accorded attorney-client
communications and relationships.
The legal services organization resisting such disclosure is the Community Health Law Project.
It is a non-profit organization providing legal services to indigent, mentally disabled and retarded
persons in Essex, Mercer, Union, and Camden counties. Its legal services are funded by private
and public sources. Various contracts with the funding entities obligate the Law Project to make
periodic reports relating to the services provided, including in some instances information about
the individual clients served.
Under the funding plans of several community mental health centers, identifying, descriptive
information, such as a client's name, address, and date of birth, have been sought by the
entities providing funds. The Law Project has chosen not to reveal the identity of individual
clients by furnishing such information. Rather, it has attempted to accommodate these requests
by providing data that have been aggregated and by disclosing information on individual clients
only to the extent and in a manner that the revelation would not serve to identify the clients
directly or indirectly. However, several funding entities expressed their dissatisfaction with the
generalized nature of the information received from the Law Project and have insisted upon
obtaining individual client-identifying information.
In the face of these more particularized demands, the Law Project has taken the position that
such identifying information is or may be protected from disclosure under the strictures
governing the professional conduct of lawyers. However, confronted by this genuine ethical
dilemma, the Law Project sought guidance from the Advisory Committee on Professional Ethics
in January 1984 to ensure that disclosure would not violate any ethical precepts.
In Opinion No. 544, the ACPE ruled that the disclosure of the information requested by private
and public funding entities does not violate the confidences of the Law Project’s clients and that
the information requested would not violate client secrets or confidences within the meaning of

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then-applicable ethics standards. The Law Project then filed a petition with this Court to review
the determination of the ACPE, which was originally denied. A motion for reconsideration of the
denial was then granted by this Court.
We must initially consider the applicability of the attorney-client privilege to the relationships that
exist between the Law Project and its clientele. The Law Project, as we have noted, is an
organization that provides legal services to a particular class of persons, consisting of indigent,
mentally-retarded, or disabled individuals. These persons are in need of legal assistance but
cannot otherwise afford to retain an attorney and hence turn to the Law Project for legal help.
The Law Project engages licensed attorneys of the State, who furnish legal advice and
counselling to the individuals eligible for such services.
As licensed attorneys, the Law Project’s lawyers are subject in every respect to the rules
governing the professional conduct of lawyers. Accordingly, lawyers employed by governmental
or public interest organizations are bound by the same ethical mandates of the Supreme Court's
Rules of Professional Conduct, as well as other standards governing the professional activities
of licensed attorneys.
Further, the persons who receive the legal services of the Law Project through its individual staff
attorney are “clients.” A client, in the context of the attorney-client privilege, is a person who
“consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice
from him in his professional capacity.” Consequently, it is not questioned that there exists
between the Law Project and its attorneys who render legal services and the persons who
receive those services an attorney-client relationship to which the attorney-client privilege fully
applies.
It is also beyond question that indigent, needy, or otherwise eligible clients, assisted by
attorneys without fees, are entitled to the same protections as clients who retain private counsel.
Because the status of clients in every sense is ascribed to these persons, we must accordingly
consider in this case the extent of these client-protections, particularly as to matters falling
within the ambit of the attorney-client privilege.
The major focus of the attorney-client privilege has historically and traditionally been upon the
communications that occur or information that is exchanged between an attorney and his or her
client relating to the special attorney-client relationship. The attorney-client privilege is
recognized as one of “the oldest of the privileges for confidential communications.” While the
attorney-client privilege has evolved and changed in terms of its emphasis and applications, the
primary justification and dominant rationale for the privilege has come to be the encouragement
of free and full disclosure of information from the client to the attorney. This has led to the
recognition that the privilege belongs to the client, rather than the attorney.
The extent of the protection accorded communications and other information arising in the
course of any attorney-client relationship is governed by the attorney-client privilege as well as
several ethics standards. The attorney-client privilege itself, while rooted in the common law,

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has acquired a basis in both statute and rule. This codification provides that communications
between a lawyer and his or her client in the course of that relationship and in professional
confidence are privileged; a client has a privilege (a) to refuse to disclose any such
communication, and (b) to prevent his or her lawyer from disclosing it. While in a sense the
privilege belongs to the client, the lawyer is obligated to claim the privilege unless otherwise
instructed by the client or the client's representative.
The scope of the attorney-client privilege or protections is also subject to ethics rules governing
attorney conduct. In this case, the ACPE determined the issue posed by the Law Project under
the former Disciplinary Rules. It applied Disciplinary Rule 4-101(A), entitled “Preservation of
Confidences and Secrets of a Client.” Under this rule, confidences are defined as information
protected by the attorney-client privilege under applicable law. Ibid. The rule also deals with
“secrets,” which are defined as other information gained in the professional relationship that the
client has requested be held inviolate or the disclosure of which would be embarrassing or
detrimental to the client.
The Disciplinary Rules have been superseded by the Rules of Professional Conduct. The
relevant rule now provides that a lawyer shall not reveal information relating to representation of
a client unless the client consents after consultation except for disclosures that are impliedly
authorized in order to carry out the representation. In comparison to the provisions of the former
Disciplinary Rule, this Rule expands the scope of protected information to include all information
relating to the representation, regardless of the source or whether the client has requested it be
kept confidential or whether disclosure of the information would be embarrassing or detrimental
to the client. Thus, the definition of confidential information under Rules of Professional Conduct
1.6(a) is broader and more inclusive than that of Disciplinary Rule 4-101(A).
The ethics rules generally forbid disclosure of client information, without the client's consent,
unless one of the exceptions to the rule is available. Disclosure of client information is
permissible if the client consents after consultation. In this case no one urges the possible
applicability of this provision dealing with consent. In situations such as this where the clients
receiving legal services are indigent as well as mentally impaired or disabled, they may not be
able to appreciate the nature or importance of their own interests or their ability to resist or
decline consent or disclosure.
The appropriate analysis must therefore focus upon whether the revelation of client information
to someone other than the lawyer amounts to the impermissible disclosure of a privileged
communication or a secret or information relating to the relationship. That inquiry is here
particularized in terms of whether certain information that identifies the disabled and indigent
persons receiving legal services from a legal services project may be disclosed to funding
sources without violating the attorney-client privilege as defined by both statute and the Court's
ethics strictures governing professional conduct.
Arguably “information gained in the course of an attorney-client relationship,” as provided under
the former Disciplinary Rule 4-101(A), might not include information that consists of only the

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identity of the client. The thrust of this definitional standard appears to be directed to information
in the nature of communications. While a client’s identity per se might not be necessarily
considered a privileged communication as such, in some instances disclosure of identity may
indirectly reveal other information about the client. Hence, depending upon the nature of such
additional or collateral information that is revealed by the disclosure of a client's identity, the
need for confidentiality could appropriately cloak even identity. In this case, for example,
disclosure of the identity of clients of the Law Project would be tantamount to the revelation of
the mental and financial status of the individuals, as well as the fact that he or she has a legal
problem that required the services of an attorney.
Furthermore, under the former Disciplinary Rules, it would appear that matters such as the
identification or address of a client could still be considered to be a “secret” entitled to nondisclosure. In Fellerman v. Bradley, an attorney refused to disclose the address of his client,
thereby thwarting the enforcement of a divorce judgment against the client. The Court
concluded that this information could be considered a confidence or in the nature of a protected
secret covered by the attorney-client privilege and the Disciplinary Rule, holding nonetheless
that, in the circumstances, the fraud exception to the privilege applied to preclude nondisclosure of the client's address.
The dilemma posed by requests for client-identity information has been addressed by the
American Bar Association Committee on Professional Ethics and various state advisory
committees. In an opinion issued in 1969, the Committee ruled that a legal services office could
allow the accounting office to examine its intake and disposition forms provided all identifying
data were deleted. Similarly, in 1974, the Committee determined that a legal services
organization could reveal client information to its Board of Directors if anonymity was preserved,
the information was reasonably required by the board for a legitimate purpose, and the client
expressed an informed consent.
The Board of Professional Responsibility of the Supreme Court of Tennessee reached a similar
result. It determined that a client's name, address, zip code, sex, race, age, social security
number, phone number, source of referral, and the dates representation began were all secrets
within the meaning of Disciplinary Rule 4-101 and could not be disclosed to funding sources
unless the client consented.
We are persuaded by the soundness of these opinions. Also highly relevant to our analysis is
the fact that client information that serves to identify the client would clearly be protected under
the current Rules of Professional Conduct, RPC 1.6. As noted, this rule accords confidentiality
to any information relating to the representation of a client. Manifestly this would include a
client's identity.
Accordingly, we hold that under current standards governing attorney conduct, client-identity
may not be disclosed to any private or public funding agency in the absence of appropriate
consent or other legal justification. In so ruling, we determine that a client's identity constitutes
information relating to the representation of a client under the current Rules of Professional

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Conduct and a secret entitled to non-disclosure, if not a protected confidential communication,
under the attorney-client privilege and former Disciplinary Rule 4-101(A), which was relied upon
by the ACPE in this case.
It is further suggested that even though this information might otherwise be subject to a privilege
against disclosure, there may be a legal justification that would allow such disclosure.
Disclosure of such information is permissible because, it is contended, the information sought is
required to be furnished by law. The Division of Mental Health and Hospitals has promulgated
regulations requiring reporting for all agencies receiving financial assistance through the
Division, to aid in monitoring compliance and for program planning and development. Also,
under N.J.A.C. 10:37-6.84 information such as client services and fiscal reports are to be
submitted to the Division. Further, the Divisions of Mental Health and Hospitals and
Developmental Disabilities and the various county mental health agencies are required to
maintain the confidentiality of any client information it receives from the Law Project. It is
contended that the reporting of information is needed to comply with these regulations and that
this would not constitute either impermissible disclosure or public disclosure of client information
violative of applicable ethics restrictions.
Under the Rules of Professional Conduct a lawyer may reveal such information to the extent the
lawyer reasonably believes necessary to comply with the law. However, the regulations
promulgated by the Division that provide for reporting as related to the persons assisted by the
Law Project do not specifically require client-identifying information. Moreover, there is no legal
requirement that client-identifying information be disclosed to private funding agencies. In the
absence of such requirements, we may not infer that this client-identifying information is
necessary to be disclosed as a matter of law. Hence, it may remain privileged under the Rules
of Professional Conduct.
This result, we point out, would not be different under the former ethics rules. In Fellerman v.
Bradley, the compliance-with-law exception of Disciplinary Rule 4-101(C)(3), was deemed to
prohibit disclosure of attorney-client information except in a situation in which the client was
attempting through non-disclosure to evade an order of a court. We expressed the view that the
policies underlying the privilege would not be advanced by allowing the client through his
attorney to perpetrate a fraud on the court or to thwart justice by consenting to and
subsequently ignoring a judgment of the court by refusing to disclose the client's address.
We acknowledge that if by statute or valid rule or regulation information concerning the identity
of clients of a legal services organization were clearly required to be reported for legitimate
governmental purposes, the analysis and result could well be different. A different conclusion as
to the propriety of disclosure might also obtain in the event private funding sources sought client
information under enforceable rules or regulations. It can reasonably be assumed that in such a
context, the welfare and interests of clients would remain a paramount concern and that the
disclosure occasioned by such necessary reporting would be attended by suitable protections
reflecting needs for confidentiality and privacy.

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II.
We conclude that client-identifying data with respect to persons receiving legal assistance
through the Law Project constitute matters clearly covered by the Rules of Professional Conduct
as “information relating to representation.” Such material is also covered under the attorneyclient privilege and the former Disciplinary Rule as information in the nature of client secrets that
could be embarrassing or detrimental to the client if revealed. Under these strictures we are
satisfied that it would be improper to reveal such information to either public or private funding
sources in the absence of valid consent or reasonable rules clearly requiring such disclosure for
legitimate purposes.
Accordingly, we reverse Opinion No. 544.
Questions:
1. Why did the court hold that the Law Project could not produce identifying information?
2. What is the difference between confidential information and privileged information?
When can an attorney disclose confidential information? When can an attorney disclose
privileged information?
3. When should attorneys address the disclosure of confidential information, if their clients
cannot provide informed consent?
“Generally Known” Information
The duty of confidentiality prevents attorneys from using information about their current or
former clients only if the information is “confidential.” Accordingly, the duty of confidentiality does
not apply to information that is “generally known.” Of course, whether information is “generally
known” may be unclear.
Restatement (Third) of the Law Governing Lawyers § 59 (2000): Comment d, Generally
Known Information
The “generally known” standard of this Section is the standard of ABA Model Rules of
Professional Conduct, Rule 1.9(b), which is not further elaborated upon in its Comment.
The ABA Model Code of Professional Responsibility (1969) included in DR 4-101(A) all
information, without regard to its public or private nature, within its definition of
“confidences and secrets.” ABA Model Rule 1.9(b), on the other hand, excepts from its
requirement of confidentiality information that “has become generally known.” No similar
exception is contained, however, in the general-purpose analog to ABA Model Rule
1.9(b), ABA Model Rule 1.8(b) Commentators have differed over the wisdom of the ABA
Model Rule approach. Case law is sparse, but extant authority agrees with the position
taken in the Section and Comment.

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The law generally provides that a client communication cannot become public and still
remain protected by the attorney-client privilege. The general law of agency also permits
a former agent to compete with a former principal so long as the agent employs only
information about the principal that is “a matter of general knowledge.” The scant case
authority is divided on the question whether the definition of confidential client
information includes publicly available information.
The position taken in the Section and Comment—that “generally known” information is
not part of the definition of confidential client information for either present or past
clients—adheres to ABA Model Rule 1.9(b). The absence of a similarly limiting provision
in ABA Model Rule 1.8(b), which applies to ongoing representations, is not inconsistent.
Any such lawyer use would be impermissible on the broad ground that a lawyer may not
use even publicly known information to the detriment of a current client, whether to
further a personal interest of the lawyer or to further the interest of another client.
Revealing client information adversely in a way that is gratuitous or negligent would
violate the duty to take all reasonably available steps to advance the client's lawful
objectives.
Dougherty v. Pepper Hamilton LLP, 133 A. 3d 792 (Pa. Super. Ct. 2016)
Summary: Pepper Hamilton LLP represented John J. Dougherty in a federal grand jury
investigation, which included a search of his house. The search warrant affidavit was
filed under seal, but the FBI later attached it to an unrelated public document by
accident. When Dougherty ran for public office, the Philadelphia Inquirer published
several articles stating that he had committed crimes. Daugherty filed a defamation
action against the Inquirer, which hired Pepper Hamilton. When Pepper Hamilton
threatened to submit the affidavit and other information, Daugherty filed a motion to
disqualify, as well as a malpractice action. The trial court granted the Inquirer’s motion
for summary judgment, but the appellate court reversed, holding that the affidavit was
still “confidential,” despite being attached to a public document, because it was not
“generally known.”
OPINION BY SHOGAN, J.:
Appellant, John J. Dougherty, appeals from the order granting summary judgment in favor of
Pepper Hamilton LLP and its attorneys Amy B. Ginensky, Michael E. Baughman, Peter M.
Smith, and Raphael Cunniff, in this civil action alleging breach of fiduciary duty and breach of
contract. For the reasons that follow, we reverse and remand for further proceedings.
We summarize the protracted history of this case as follows. On October 30, 2003, Appellant
retained Pepper Hamilton to represent him in relation to a federal matter involving a grand jury
subpoena he received. Although Appellant was not the target of the grand jury investigation, an
FBI Affidavit was filed to secure a search of Appellant’s residence. Appellant has alleged that he
provided Pepper Hamilton unfettered access to documents during the firm's representation of

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Appellant. Also, counsel from Pepper Hamilton was present during the execution of the search
warrant at Appellant’s home in November of 2006.
Initially, the FBI Affidavit securing the search warrant was under seal, but, somehow, the FBI
Affidavit inadvertently became attached to a document presented in an unrelated criminal matter
involving an unrelated person named “Donald Dougherty, Jr.” According to Appellant, on
January 30, 2008, the federal government filed a response to Donald Dougherty Jr.’s motion to
suppress evidence, which was entered as Document No. 27 on the federal criminal docket for
the prosecution of Donald Dougherty, Jr. This filing was allegedly made under “restricted
status.”64 Document No. 27 referenced, as Exhibit “A,” a copy of an affidavit by an FBI agent in
support of the issuance of a search warrant for Donald Dougherty, Jr.'s premises. However, the
affidavit that was attached to Document No. 27 as Exhibit “A” was actually the FBI Affidavit in
support of the search of Appellant's premises.
At least some of the documents in Donald Dougherty Jr.’s case were filed under seal and, thus,
not accessible to the public. Subsequently, however, in April of 2008, certain documents in
Donald Dougherty Jr.’s case were unsealed by Judge Robreno of the United States District
Court for the Eastern District of Pennsylvania. More specifically, Judge Robreno's April 11, 2008
order authorized the eastern district Clerk of Court to lift the seal on Documents 31, 32, 48 and
38. Appellant alleges that Document No. 27 was also, albeit mistakenly, removed from
“restrictive status” around this time.
When Appellant was running for a vacant seat in the Pennsylvania Senate in April of 2008, the
Philadelphia Inquirer published several articles about Appellant. The articles implied that
Appellant had engaged in criminal conduct in the past and was likely to do so again if elected to
the Pennsylvania Senate. In March of 2009, Appellant initiated a defamation suit against the
Inquirer in state court. In 2011, Pepper Hamilton assumed representation of the defense for the
Inquirer in the defamation suit filed by Appellant. In 2012, Pepper Hamilton informed the trial
court that the defense of the defamation action would rely on information relating to the federal
investigation in which Pepper Hamilton had previously represented Appellant. In 2013,
Appellant moved to have Pepper Hamilton removed as defense counsel in his defamation
action against the Inquirer. The trial court denied the motion to disqualify Pepper Hamilton. On
appeal this Court reversed the decision of the trial court and remanded the matter for the entry
of an order barring Pepper Hamilton and its attorneys from representing the Inquirer.
On December 10, 2012, while Pepper Hamilton and its attorneys were still representing the
Inquirer, the firm filed a motion for summary judgment in the defamation suit and included in the
attached exhibits a copy of the FBI Affidavit. On December 12, 2012, the Inquirer then published
a front-page article, which included detailed references to the FBI Affidavit.

64

Documents filed on the federal court's PACER system are publicly available for a fee to those who
have registered for and received a PACER account. However, in his memorandum of law in support of his
response to Pepper Hamilton's motion for summary judgment, Appellant asserts that a document on
“restricted status” is unavailable to anyone but the court and the parties.

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On February 11, 2013, Appellant initiated the instant action by filing a complaint against
Appellees alleging breach of fiduciary duty and breach of contract. Appellant alleged that, in
representing the Inquirer in the defamation suit, Pepper Hamilton acted against the interests of
Appellant, its former client. The trial court has summarized the subsequent procedural history of
this case as follows:
Appellees filed Preliminary Objections on April 3, 2013. These Preliminary Objections
were overruled by this Court by Order dated June 18, 2013. An Answer was filed by
Appellees on July 8, 2013. On May 27, 2014, after some discovery was conducted and a
Revised Case Management Order entered, Appellees filed a Motion for Summary
Judgment. An Answer in response to the Motion for Summary Judgment was filed by
Appellant on June 27, 2014. A Reply in Support of the Motion for Summary Judgment
was filed by Appellees on July 2, 2014. A Supplemental Memorandum in Support of the
Motion for Summary Judgment was filed by Appellees on July 25, 2014, and a
Supplemental Memorandum in Opposition was filed by Appellant on July 29, 2014. By
Order dated July 29, 2014, and entered on the docket on July 30, 2014, Summary
Judgment was granted.
This timely appeal followed.
Appellant presents the following issues for our review:
A. Whether the Trial Court erred in granting Appellees’ motion for summary judgment on
the mistaken basis that, because Pepper’s breach of fiduciary duty was also a violation
of the Pennsylvania Rules of Professional Conduct, Appellant cannot assert a claim
against Pepper as a matter of law.
B. Whether the Trial Court erred in holding that Appellees were entitled to summary
judgment because, although they used information against Appellant that is substantially
related to their former representation of him, that information is publicly available and
thus cannot form the basis of a disloyalty claim.
C. Whether the Trial Court prematurely granted Appellees motion for summary judgment
where the parties had exchanged limited written discovery and taken no depositions.
Each of Appellant’s issues challenges the propriety of the trial court’s determination granting
summary judgment.
A legal malpractice claim based on breach of contract, “involves (1) the existence of a contract,
(2) a breach of a duty imposed by the contract, and (3) damages.” With respect to a legal
malpractice claim based on breach of contract, this Court has stated the following:
The attorney’s liability must be assessed under the terms of the contract. Thus, if the
attorney agrees to provide her best efforts and fails to do so, an action in assumpsit will
accrue. An attorney who agrees for a fee to represent a client is by implication agreeing

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to provide that client with professional services consistent with those expected of the
profession at large.
With respect to a breach of fiduciary duty claim, “a confidential relationship and the resulting
fiduciary duty may attach wherever one occupies toward another such a position of advisor or
counsellor as reasonably to inspire confidence that he will act in good faith for the other's
interest.” The leading case in Pennsylvania discussing breach of a fiduciary duty by an attorney
with regard to a conflict of interest is Maritrans GP Inc. v. Pepper, Hamilton & Scheetz. In
Maritrans, our Supreme Court upheld the trial court’s issuance of a preliminary injunction
preventing Pepper Hamilton from representing its former clients’ competitors. The Court found
that a cause of action for breach of a fiduciary duty against a law firm was actionable where the
firm acquired confidential information during the course of its representation. In discussing
actionability for breach of a fiduciary duty, our Supreme Court reiterated the following longstanding principles:
Activity is actionable if it constitutes breach of a duty imposed by statute or by common
law. Our common law imposes on attorneys the status of fiduciaries vis a vis their
clients; that is, attorneys are bound, at law, to perform their fiduciary duties properly.
Failure to so perform gives rise to a cause of action. It is “actionable.”
At common law, an attorney owes a fiduciary duty to his client; such duty demands
undivided loyalty and prohibits the attorney from engaging in conflicts of interest, and
breach of such duty is actionable.
The Maritrans Court highlighted that Pepper Hamilton “was furnished with substantial
confidential commercial information” and “came to know the complete inner-workings of the
company along with Maritrans’ longterm objectives, and competitive strategies.” As explained by
the Court, adherence to a fiduciary duty “ensures that clients will feel secure that everything
they discuss with counsel will be kept in confidence” and that Pepper Hamilton “had a duty to
administer properly their responsibilities to respect the confidences of Maritrans.” It further
explained that the rationale behind this policy is to prevent an attorney from taking “undue
advantage of the confidential communications of such client.”
In reaching its determination, the Court in Maritrans emphasized the confidential information
that Pepper Hamilton garnered during the course of its representations.
Pennsylvania Rule of Professional Conduct 1.9 further addresses attorney duties to former
clients and provides, in relevant part, as follows:
(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.

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(c) A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit
or require with respect to a client.
The explanatory comment to Rule 1.9(c) offers the following pertinent insight:
[8] Paragraph (c) provides that information acquired by the lawyer in the course of
representing a client may not subsequently be used or revealed by the lawyer to the
disadvantage of the client. However, the fact that a lawyer has once served a client does
not preclude the lawyer from using generally known information about that client when
later representing another client.
In addition, section 59 of the Restatement (Third) of the Law Governing Lawyers defines the
term “Confidential Client Information” as “Confidential client information consists of information
relating to representation of a client, other than information that is generally known.” Comment b
to the above definition explains that “the definition includes information that becomes known by
others, so long as the information does not become generally known.” Furthermore, comment d
states the following:
d. Generally known information. Confidential client information does not include
information that is generally known. Such information may be employed by a lawyer who
possesses it in permissibly representing other clients and in other contexts where there
is a specific justification for doing so. Information might be generally known at the time it
is conveyed to the lawyer or might become generally known thereafter. At the same
time, the fact that information has become known to some others does not deprive it of
protection if it has not become generally known in the relevant sector of the public.
Whether information is generally known depends on all circumstances relevant in
obtaining the information. Information contained in books or records in public libraries,
public-record depositaries such as government offices, or in publicly accessible
electronic-data storage is generally known if the particular information is obtainable
through publicly available indexes and similar methods of access. Information is not
generally known when a person interested in knowing the information could obtain it only
by means of special knowledge or substantial difficulty or expense. Special knowledge
includes information about the whereabouts or identity of a person or other source from
which the information can be acquired, if those facts are not themselves generally
known.
A lawyer may not justify adverse use or disclosure of client information simply because
the information has become known to third persons, if it is not otherwise generally

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known. Moreover, if a current client specifically requests that information of any kind not
be used or disclosed in ways otherwise permissible, the lawyer must either honor that
request or withdraw from the representation.
We further observe that there is no Pennsylvania case law directly on point. However, as the
Supreme Court of Ohio aptly stated in Akron Bar Association v. Holder, “An attorney is not free
to disclose embarrassing or harmful features of a client’s life just because they are documented
in public records or the attorney learned of them in some other way.” Likewise, in Lawyer
Disciplinary Board v. McGraw, the Supreme Court of West Virginia observed that “the ethical
duty of confidentiality is not nullified by the fact that the information is part of a public record or
by the fact that someone else is privy to it.”
Here, the trial court concluded that because the FBI Affidavit was inadvertently appended to a
document in an unrelated criminal matter, the information contained therein was public.
Specifically, the trial court stated that “the fact that the FBI Affidavit in question was publicly
available for many years precludes a determination that the receipt of the improperly filed FBI
Affidavit through a breach by Appellees of the attorney-client relationship and duty of fidelity is
actionable.”
Our review of the record, in the light most favorable to Appellant as the non-moving party,
reflects that the trial court erred in granting summary judgment in this case. Indeed, this case
presents genuine issues of fact. The record reveals that the FBI Affidavit in question became
part of another criminal matter through inadvertence. Even accepting that the FBI Affidavit was
publicly available through PACER prior to December 10, 2012, we are left to ponder whether
the FBI Affidavit was actually “generally known.” All that is acknowledged at this point in the
proceedings is that the FBI Affidavit was inadvertently appended to a document in a case that
did not involve Appellant as a party. Therefore, it appears that such document was not “indexed”
under Appellant's name and that a person interested in the FBI Affidavit “could obtain it only by
means of special knowledge.” Furthermore, it is unknown exactly how and when the FBI
Affidavit came into the possession of the Inquirer and eventually became the subject of an
article in the Inquirer during Pepper Hamilton’s representation of the Inquirer. Whether Pepper
Hamilton committed a breach of its duties to Appellant depends on the answers to these
questions. Thus, these questions are sufficient to establish genuine issues of material fact
regarding Pepper Hamilton's conduct. Contrary to the trial court’s conclusion, in the event that
the FBI Affidavit was not generally known information, it appears that Pepper Hamilton
breached its duty to Appellant as a former client and such breach was actionable. Accordingly,
we reverse the order granting summary judgment.
Questions:
1. Why did the court hold that the information about Daugherty was protected by the duty of
confidentiality, even though it was publicly available?
2. How well-known does information have to be before it becomes “generally known”? Why
didn’t the Inquirer’s articles make the information at issue “generally known”?

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Matter of Tennant, 392 P. 3d 143 (Mont. 2017)
Summary: Attorney David G. Tennant was the subject of a disciplinary complaint based
on his representation of Richard and Debbie Harshman. When the Harshmans did not
pay Tennant’s bill, he filed an attorney’s lien on their property and purchased it at the
Sheriff’s sale. The Harshmans filed a complaint against Tennant with the Office of
Disciplinary Counsel, claiming that Tennant improperly used confidential client
information to their detriment. The Commission on Practice found no violation of the duty
of confidentiality, but the Montana Supreme Court reversed, because the information
was not “generally known.”
Justice Beth Baker delivered the Opinion and Order of the Court.
These consolidated proceedings include two formal disciplinary complaints filed against
Montana attorney David G. Tennant. The complaints, which arise from Tennant’s debt collection
practices against clients and former clients, will be referenced in this Opinion and Order as the
Ray complaint and the Harshman complaint.
BACKGROUND
Tennant represented Richard and Debbie Harshman in an action for eviction of tenants from,
and possession of, real property in Hungry Horse, Montana. The Harshmans obtained a default
judgment against their tenants for damages to the property, including attorney fees of
$3,063.54. When he was unable to collect the attorney fees through execution on the tenants
and the Harshmans did not pay their bill to Tennant’s firm, Tennant filed an attorney’s lien on
the property. He later filed a complaint against the Harshmans alleging breach of contract,
account stated, and foreclosure of the attorney's lien, in which action he was granted a default
judgment of $8,148.68. Tennant assigned the judgment to a collection agency, which obtained a
writ of execution on the Harshmans’ property. A sheriff's sale was held, at which the collection
agency was the successful bidder. The Harshmans later redeemed their property.
Both Ray and the Harshmans filed complaints against Tennant with the Office of Disciplinary
Counsel, and ODC filed formal disciplinary complaints in both matters. On August 31, 2016,
Tennant filed conditional admissions and an affidavit of consent to discipline in these
consolidated proceedings, pursuant to Rule 26, Montana Rules for Lawyer Disciplinary
Enforcement. ODC objected to Tennant’s conditional admissions. On October 20, 2016, the
Commission on Practice held a hearing on the complaints and to consider Tennant’s conditional
admissions. Tennant was present with counsel and testified on his own behalf.
On January 5, 2017, the Commission submitted to this Court its Findings of Fact, Conclusions
of Law, and Recommendation for Discipline. The Commission rejected Tennant’s conditional
admissions. The Commission concluded that ODC failed to carry its burden of proving by clear
and convincing evidence any MRPC violations alleged in the Harshman complaint.

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The Commission recommends that, as a result of his violations of the Montana Rules of
Professional Conduct, Tennant be disciplined by public censure by this Court. The Commission
recommends that, in the future, Tennant be required to provide to clients and former clients
copies of any attorney's liens he or his firm files against them. In addition, the Commission
recommends that, for a period of three years, Tennant be required to provide to ODC copies of
any attorney's liens filed by him or his firm, copies of all complaints filed by him or his firm and
served against former clients for unpaid fees, and copies of judgments or assignments of
judgments obtained by him or his firm against former clients.
ODC has filed written objections to the Commission's findings, conclusions, and
recommendation, and Tennant has filed a response.
DISCUSSION
ODC argues that the Commission erred in concluding that it failed to prove violation of Rule 1.9,
MRPC, in relation to the Harshmans. Rule 1.9(c) provides:
A lawyer who has formerly represented a client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has become generally known.
ODC alleged Tennant violated this Rule when he bid on the Harshmans’ Hungry Horse property
at the sheriff’s sale, because Tennant's knowledge of the property derived from his
representation of the Harshmans. The Commission determined that because Tennant could
have found out that the Harshmans owned property in Hungry Horse via public record and then
foreclosed his fee lien and bid at the sheriff’s sale, no violation of Rule 1.9 occurred.
As ODC emphasizes, Rule 1.9’s language requires that, in order for the attorney to be free from
the prohibition against using representation-related information to the disadvantage of a former
client, the information at issue must be “generally known.”
Whether information is generally known depends on all circumstances relevant in
obtaining the information. Information contained in books or records in public libraries,
public-record depositories such as government offices, or in publicly accessible
electronic-data storage is generally known if the particular information is obtainable
through publicly available indexes and similar methods of access. Information is not
generally known when a person interested in knowing the information could obtain it only
by means of special knowledge or substantial difficulty or expense.

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A lawyer may not justify adverse use or disclosure of client information simply because
the information has become known to third persons, if it is not otherwise generally
known.
Some courts have applied a strict definition of “generally known” in the context of a Rule 1.9
analysis. That the information at issue is generally available does not suffice; the information
must be within the basic understanding and knowledge of the public. “The client's privilege in
confidential information disclosed to his attorney is not nullified by the fact that the
circumstances to be disclosed are part of a public record, or that there are other available
sources for such information, or by the fact that the lawyer received the same information from
other sources.”
In this case, although it would have been possible for Tennant to discover the existence of the
Harshmans’ property through searches of public records, he undisputedly learned of the
property as part of his representation of the Harshmans. Tennant used that information to the
Harshmans’ disadvantage. We will not interpret the “generally known” provision of Rule 1.9(c) to
allow Tennant to take advantage of his former clients by retroactively relying on public records
of their information for self-dealing. The Commission erred in concluding that Tennant did not
violate Rule 1.9, MRPC.
ODC further claims that, absent the Harshmans’ redemption of their property, Tennant would
have exceeded his fee claim and lien by receiving a windfall from the sheriff's sale of upwards of
$80,000 — his former clients’ equity in their property. ODC submits that this is a clear violation
of Rule 1.9(c), MRPC. However, the Harshmans did redeem their property, and ODC's
assumptions do not satisfy its burden of proof.
Sanctions
Finally, ODC argues that the Commission's recommended sanctions are inadequate given
Tennant’s unethical conduct and will not deter the same type of conduct by other Montana
attorneys. ODC had recommended that Tennant be suspended from the practice of law for at
least seven months and that he be required to retake and pass the Multistate Professional
Responsibility Exam.
We have concluded that ODC established one ethical violation in addition to those recognized
by the Commission. However, that violation ultimately did not harm Tennant's clients — the
Harshmans redeemed their property. Further, the additional violation does not undermine the
Commission’s overall conclusions on the evidence presented, and on this record we are not
inclined to deviate from the discipline recommended by the Commission.
Questions:
1. A Sheriff’s sale is a public event. Why did the court hold that the duty of confidentiality
protected this information about the Harshmans?

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2. What would have happened if someone other than Tennant had purchased the
Harshmans’ property?
Stanley A. Kaplan, The Case of the Unwanted Will, 65 ABA J. 484 (1979)
John Smith and his wife Mary go to a lawyer who has handled some minor legal matters for
John to make their wills prior to going on a trip abroad.
John tells his lawyer what disposition he and his wife desire to make of their estates, and the
lawyer prepares separate wills for them to sign prior to their departure. After John has signed
his will, the lawyer suggests to John that he would like to be alone with Mary before she signs.
John withdraws to another office. The lawyer asks Mary if the will is as she would have made it
had her husband not been present at the conference and if the will were to be secret from her
husband.
She says no, that the will as drawn contains several provisions that are contrary to her wishes,
and that she would change if her husband were not to know the ultimate disposition of her
estate. However, she says that she would not be willing to precipitate the domestic discord and
confrontation that would occur if her husband were to learn that she had drawn a will contrary to
his wishes and in accordance with her own desires.
Mary asks the lawyer if he will write one page of her will to provide that certain persons
benefiting by her will as drawn will be replaced by certain other persons. The lawyer states that
under the circumstances he does not think that he can in fairness represent her in making these
changes but suggests that she go ahead and sign this will and then, as soon as possible, go to
some other lawyer and have her will rewritten in accordance with her true wishes.
The departure time for the trip comes on Mary before she is able to make arrangements to have
her will rewritten. John and Mary are involved in an airplane accident and both are killed while
on the trip. Their son, Tom, who is named as executor in each of their wills, comes to the lawyer
who drew the wills and asks him to represent him as executor in connection with probating the
wills and distributing the estate.
What are the ethical problems the lawyer faces in connection with probate and distribution in
accordance with the wills as drawn? Did the lawyer have any obligation to speak to Mary
separately, as he did, about her will? When the lawyer learned from Mary that she had other
wishes that were being suppressed, what were his obligations? What, if anything, should the
lawyer have done and, did not do after learning Mary's true wishes? Do Mary's true but
unfulfilled wishes concerning the revision of her will have any legal effect? Does the lawyer have
any right or obligation to disclose what Mary told him about her testamentary desires?
Comments from George W. Overton

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The first question to be asked in all problems involving professional responsibility or ethics is
“Who is the client?” Not “Who brought Mary to my office?” Not even “Who is paying my bill?"
And emphatically not “Whose anger will cost me the most business?” In facts given, John
probably presumes that the lawyer is his and that he is the lawyer’s client, and that's all that
need be said. The lawyer probably accepted this notion without clarification.
The problem is that in the drafting of Mary’s will Mary is the client, no matter who pays the bill
and no matter what chain of events brought Mary to the lawyer's office. The first issue that has
to be disposed of is: Can the lawyer continue to serve Mary in the preparation of any will other
than the one first drafted? Can he do so without John’s knowledge? I suggest that he cannot.
The lawyer must explain to Mary her three alternatives:
1. To execute the will, and she and the lawyer remain silent unless questioned.
Presumably this won't work, because the lawyer, if questioned by John, cannot lie to
him, although I do not believe the lawyer has a duty to volunteer any information. It is
enough that he says, in response to a question, either “John, I cannot answer your
question” or “Mary did not execute the will I drafted" and the lawyer should refuse to
answer further questions.
2. To execute the will as drafted, hoping to replace it soon. In this case he must explain to
Mary that it is unquestionably her will, until revoked, and that even if all their
conversation were reproduced in court, it would not affect the validity of the will, since it
could easily be proved that she had testamentary capacity, and contemporaneous
inconsistent statements are admissable only as to capacity.
3. To have a new will drawn (or a new insertion) but let the lawyer tell John: “Mary changed
her will.” The lawyer need not say more to John.
If, as we presuppose in 2, the lawyer explains to Mary her alternatives and the conclusiveness
of the execution of the will, he is out of trouble at the time of execution.
However, he should reflect, for the future, on how to avoid this awkward box. First of all, the
custom of separating spouses at execution of wills, although not uncommon, is an anachronism,
based on the notion that one spouse, presumably the husband, could coerce the other into an
unintended result? or someone could so claim. The time to elicit separate responses is at the
first meeting or immediately there after. Probably a letter, following the first meeting, could state
something like the following:
“I will proceed as instructed to draft both your wills, on the assumption that each of you has
given me your wishes. If there is anything on this subject that either of you wishes to discuss
this subject with me separately, please let me know and I will then decide if I can go further.”
As stated above, in preparing Mary’s will the lawyer can only be Mary’s lawyer, but has he made
this clear to John? Has he been guilty of any implied communication to John inducing John to
execute a will based on John’s presuppositions of Mary’s will that is misleading or false? In the

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technical sense, he has not. If John wanted his will to be conditioned on certain dispositions by
Mary, legal mechanisms existed (conditional bequests, or mutual wills, or a joint will) to
effectuate those purposes. But the lawyer has undoubtedly not outlined these alternatives.
On the other hand, it should not be said that there is an inherent conflict of interest in
representing both husband and wife in estate planning. Obviously, most couples would be
appalled at the notion of having to pay two lawyers’ fees for this service. What is necessary is
that the lawyer identify the possibility of disagreements at the earliest possible stage.
After Mary's death the lawyer’s responsibility is to file the will and assist, as necessary, in its
probate. For the reasons stated, Mary’s inconsistent comments made at the time of execution
are relevant only to the issue of capacity, and I do not see that the lawyer has a duty to anyone
to raise that issue if he has no doubts on that score.
The intricate ramifications of the ethical problem emerge, however, if the question of capacity is
raised. Let us suppose that her will excluded some heir by intestacy who attacks the will on this
ground. Probably in this event the lawyer should inform Tom of the facts, and Tom can decide
as the personal representative of Mary whether to attempt to assert privilege as to the testimony
involved. He is not likely to succeed in that endeavor. I cannot see that the lawyer has any duty
to Mary’s heirs at law to volunteer any information.
Comments from John C. Williams
The problems the lawyer faces concerning John and Mary and their wills are essentially
problems involving the interests of multiple clients. The special problems are these:
1. How do the general principles of multiple representation apply to estate planning work
for a married couple?
2. When a lawyer represents two clients on a common project, what are his responsibilities
in preserving the confidences of one client from the other?
3. When a lawyer who represents two clients learns that their interests are in fact
conflicting, what does the lawyer do about it, particularly in a case in which the conflict is
known to one of the clients but not the other?
Surprisingly, neither the Code of Professional Responsibility nor published opinions of the
American Bar Association Committee on Ethics and Professional Responsibility nor Drinker
offers much guidance, yet the second two questions presumably arise frequently in the practice
of, say, a lawyer who represents codefendants in criminal cases or coplaintiffs in personal injury
cases.
Who is the client? That’s the first question. There may be lawyers who suppose that the
husband and wife have such a community of interest or that the wife is so subservient to her
husband that they are, collectively, one client. Mr. Bumble would advise that if the lawyer

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supposes that, the lawyer is “a ass - a idiot” and probably a bachelor. Clearly, both must be
considered clients.
As was suggested in the first “Legal Ethics Forum,” there are many good, perhaps compelling,
reasons to avoid bringing multiple lawyers into an amicable situation. Expense may be a
prohibitive factor, and one must consider the risk that multiple lawyers will create problems
where none existed. These considerations are important enough when the clients are two
business partners. They are even more important when the clients are a happily married
husband and wife whose interest in the continuity and development of their marital relationship
may be more important than the outcome of a particularly legal negotiation.
Most married couples probably never consider consulting separate lawyers for the preparation
of their wills. They assume that their mutual interests will be served by working co-operatively
toward a co-ordinated estate plan and by confiding in one another in seeking to understand and
reconcile what differences may exist between them.
This assumption is so prevalent, on behalf of both clients and lawyers, that in most cases the
“multiple representation” problem is never discussed. Ethical Consideration 5-16 requires that
before a lawyer may represent multiple clients, he should explain fully to each client the
implications of the common representation and should accept or continue employment only if
the clients consent. I believe this is rarely done when the clients are husband and wife who
retain a lawyer for the preparation of wills. In my judgment it is unnecessary for a lawyer
formally to seek an express consent to multiple representation when the clients are a married
couple who want wills drawn, unless the lawyer knows of special circumstances that lead to the
belief that there is a substantial conflict of interests. An informed consent may properly be
inferred from the circumstances.
Problems such as those presented by this case might have been avoided, however, if at the
initial interview with John and Mary the lawyer had probed for possible conflicts. This is
especially important in cases in which the likelihood is great that the interests of the husband
and wife may be conflicting, such as in a marriage that is in the process of disintegration, in a
second marriage in which there are children by the spouses’ prior marriages, or in other cases
in which the natural objects of the bounty of the husband and wife are not identical.
Finally, one should recognize that women are taking an increasingly active voice in the conduct
of their personal business. A “liberated woman” may feel that sharing a lawyer with her husband
enhances neither her personal dignity nor the marital relationship. She may prefer independent
representation and be prepared to pay for it.
Confidentiality with multiple clients. Disciplinary Rule 4-101 directs that a lawyer shall not
knowingly reveal a confidence or secret of a client during or after the termination of the
professional relationship. In a multiple representation case the difficulty is determining what
constitutes a client’s “confidence.” When John, Mary, and the lawyer meet together face to face,
what Mary tells the lawyer is not a confidence, so far as John is concerned. But what if Mary

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meets privately with the lawyer, or telephones or writes him? There is an implied understanding,
when two or more clients retain a lawyer for work on a common project, that the lawyer is free to
disclose to all of his clients his communications with each of them.
It was a mistake for the lawyer to ask to meet privately with Mary before she signed her will. By
doing so, he invited Mary to speak “confidentially” with him and opened the door to the dilemma
that confronted him when Mary told him that she was dissatisfied with her will.
If, after the lawyer met with John and Mary jointly, he had no reason to be concerned as to lack
of testamentary capacity on Mary’s part or undue influence or duress by John, the private
meeting with Mary was a mistake. If he had these concerns, he should have resolved them by
withdrawing from employment.
The execution of Mary’s will. The lawyer was correct in refusing to cooperate with Mary in
making a secret change in her will. As E.C. 5-14 states, “maintaining the independence of
professional judgment required of a lawyer precludes his acceptance or continuation of
employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client.
This problem arises whenever a lawyer is asked to represent two or more clients who may have
differing interests.”
Though a husband and wife do not agree completely on the provisions of their wills, a lawyer
may prepare wills for both, but only if there is an informed consent. That prerequisite is missing
here. The consent given by implication at the initial meeting was vitiated when Mary sought to
make a change of which John was not informed.
The root of the conflict is Mary’s problem. She doesn’t like the will that was discussed in her
husband’s presence, but she doesn’t want to disclose to him her dissatisfaction with it. This
dilemma is Mary’s and she should decide what to do about it. The lawyer, by meeting privately
with Mary, has permitted her to transfer the problem to him.
I agree that the lawyer should have presented alternatives to Mary and required her to make the
choice. I disagree that it would be proper for the lawyer to draw a revised will for Mary on the
condition that he be permitted to tell John simply that “Mary changed her will.” This is not the full
disclosure that the canons require.
Validity of Mary’s will. Mary’s will is valid as signed. She understood the provisions of the will
and the significance of signing it. To my knowledge, there is no authority for refusing to probate
or for reforming a will on the basis of statements made by the testator at the time of signing that
he or she was not entirely satisfied with its provisions.
Most lawyers with extensive experience in writing wills have clients who never sign a will without
protesting that it is not final - perhaps they feel that acceptance of the will somehow involves an
acceptance of death. The courts properly attach no significance to these statements. There is

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no evidence that Mary did not understand what she was doing or of lack of capacity, undue
influence, or duress. The will should be probated as written.
The lawyer’s dilemma. After Mary advised the lawyer that she was dissatisfied with the will and
intended to change it, did the lawyer have further responsibilities? In the circumstances it is
clear that Mary considered her statements to the lawyer confidential, and the lawyer led her to
believe that they would be so treated. If the lawyer discloses to John what Mary has told him
about her intentions, he is revealing a client’s confidence.
On the other hand, if by silence the lawyer permits John to leave the office with the false
impression that Mary has signed the will she discussed in John’s presence, the lawyer may be
seen to have conspired with Mary to defraud John. By doing this, the lawyer has permitted
Mary’s desires to dilute his loyalty to John.
There is no easy way out for the lawyer. D.R. 5-105 requires that a lawyer shall not continue
employment if it would be likely to involve him in representing differing interests, unless it is
obvious that he can adequately represent the interest of each and if each consents, after full
disclosure. It is strange that the authorities offer little guidance as to what the lawyer must do
when multiple representation is no longer proper. There is some authority for the proposition
that the lawyer may continue to represent the client with the most seniority. The better view
would seem to be that when the interests of clients diverge and become antagonistic, their
lawyer must be absolutely impartial, which, unless they both or all desire him to represent them
both or all, usually means that he may represent none.
In most cases the conflict between clients will have become apparent to everyone. Here John
does not know that the conflict exists. The lawyer may not disclose Mary’s confidences to John,
but he must disclose to both John and Mary that they have differing interests and that he may
no longer represent either of them in connection with their estate planning. This will alert John to
the fact that something is amiss, with out directly breaching Mary’s confidence. This, in my
judgment, is the least bad solution.
Postdeath disclosure. Mary’s statements to the lawyer about her dissatisfaction with the will
were confidences not to be disclosed during her lifetime. It is well established, however, that
after the testator's death the attorney is at liberty to disclose all that affects the execution and
tenor of a will. If the lawyer were subpoenaed, he would be obliged to testify concerning these
matters, but Mary’s statements about her will would not be material in any suit to challenge
it. Thus, even though the privilege expires on her death, the lawyer should not be required to
testify.
Further Reading:
●
●

Thomas Shaffer, The Legal Ethics of Radical Individualism, 65 Tex. L. Rev. 963 (1987)
Teresa Stanton Collett, The Ethics of Intergenerational Representation, 62 Fordham L.
Rev. 1453 (1994)

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●
●

Alysa Christmas Rollock, Professional Responsibility and Organization of the Family
Business: The Lawyer as Intermediary, 73 Ind. L.J. 567 (1998)
Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts
in Representing Spouses , 62 Fordham L. Rev. 1253 (1994)

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5.2: Exceptions to the Duty of Confidentiality
Tell me at least six things you may or may not consider personal. I’m not talking about jet ski
accidents, rather truly things you’d never thought you’d tell.65
This very secret you’re trying to conceal, is the very same one you’re dying to reveal.66
1. Exceptions to the Professional Duty of Confidentiality
There are many state variations in the scope of the duty of confidentiality. As a result, a
practicing lawyer should be particularly attentive to local law. The lawyer should be
attentive to the distinction between a permission to disclose and a requirement to
disclose. This distinction is indicated by the use of “may” or “shall” in the language.
Remember that the ethical duty of confidentiality covers a broader range of information
than the privilege. The ethical duty also covers the use of information to the
disadvantage of a client, a prospective client, or a former client.
The third-party doctrine (the presence of a nonprivileged third person) does not
necessarily destroy an attorney’s duty of confidentiality. Confidential information remains
confidential even if it is known to others, unless the information becomes generally
known.
There are eight exceptions to the Duty of Confidentiality: client’s consent, dispute
concerning attorney’s conduct, disclosure to obtain legal ethics advice, disclosure
required by law or court order, disclosure to prevent death or substantial bodily harm,
disclosure to prevent or mitigate substantial financial harm, and disclosure to detect and
resolve conflicts of interest.
a. Client’s Informed Consent
Model Rule 1.6 implicitly says that an attorney may reveal or use confidential information
if the client gives informed consent. “Informed consent” means that the client agrees to a
proposed course of action after the lawyer has adequately explained the risks and
reasonable alternatives.
Model Rule 1.6(a)
Model Rule 1.0(e)
Restatement (Third) of the Law Governing Lawyers § 62 (2000): Using or Disclosing
Information with Client Consent

65
66

The Blow, Jet Ski Accidents.
Ronald Eldon Sexsmith, Secret Heart, Ron Sexsmith (1995).

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A lawyer may use or disclose confidential client information when the client consents
after being adequately informed concerning the use or disclosure.
b. Implied Authority
An attorney has implied authority from the client to use or disclose confidential
information when appropriate to carry out the representation, unless the client gives
specific instructions to the contrary.
Restatement (Third) of the Law Governing Lawyers § 61 (2000): Using or Disclosing
Information to Advance Client Interests
A lawyer may use or disclose confidential client information when the lawyer reasonably
believes that doing so will advance the interests of the client in the representation.
c. Dispute Concerning Attorney’s Conduct
An attorney may reveal a client’s confidential information to the extent necessary to
protect the attorney’s interests in a dispute that involves the conduct of the attorney. An
attorney wishing to use this exception should reveal only what is necessary, attempt to
limit the disclosure to those who need to know it, and obtain protective orders or take
other steps to minimize the risk of unnecessary harm to the client.
d. Disclosure to Obtain Legal Ethics Advice
A lawyer may disclose enough of the client’s confidential information as is necessary to
obtain legal ethics advice for the lawyer.
e. Disclosure Required by Law or Court Order
ABA Model Rule 1.6(b)(6) permits a lawyer to reveal her client’s confidential information
to the extent that she is required to do so by law or court order.
Restatement (Third) of the Law Governing Lawyers § 63 (2000): Using or Disclosing
Information When Required by Law
A lawyer may use or disclose confidential client information when required by law, after
the lawyer takes reasonably appropriate steps to assert that the information is privileged
or otherwise protected against disclosure.
f. Disclosure to Prevent Death or Substantial Bodily Harm

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ABA Model Rule 1.6(b)(1) permits a lawyer to reveal the client’s confidential information
to the extent that the lawyer reasonably believes necessary to prevent reasonably
certain death or substantial bodily harm. This exception applies to death or bodily harm
whatever the cause; it does not need to be caused by the client, and the cause need not
be a criminal act. It also does not need to be imminent, just reasonably certain.
The exception also gives the lawyer discretion to disclose the confidential information-- it
does not require disclosure. Some states may require disclosure if they have not
accepted the Model Rules.
Restatement (Third) of the Law Governing Lawyers § 66 (2000): Using or Disclosing
Information to Prevent Death or Serious Bodily Harm
(1) A lawyer may use or disclose confidential client information when the lawyer
reasonably believes that its use or disclosure is necessary to prevent reasonably certain
death or serious bodily harm to a person.
(2) Before using or disclosing information under this Section, the lawyer must, if feasible,
make a good-faith effort to persuade the client not to act. If the client or another person
has already acted, the lawyer must, if feasible, advise the client to warn the victim or to
take other action to prevent the harm and advise the client of the lawyer's ability to use
or disclose information as provided in this Section and the consequences thereof.
(3) A lawyer who takes action or decides not to take action permitted under this Section
is not, solely by reason of such action or inaction, subject to professional discipline,
liable for damages to the lawyer's client or any third person, or barred from recovery
against a client or third person.
g. Disclosure to Prevent or Mitigate Substantial Financial Harm
The Model Rules permit a lawyer to reveal the client’s confidential information to the
extent necessary to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial financial harm to someone if the client is using
or has used the lawyer’s services in the matter. The exception also applies if the client
has already acted, and the lawyer’s disclosure can prevent or mitigate the consequent
financial harm.

Restatement (Third) of the Law Governing Lawyers § 67 (2000): Using or Disclosing
Information to Prevent, Rectify, or Mitigate Substantial Financial Loss
(1) A lawyer may use or disclose confidential client information when the lawyer reasonably
believes that its use or disclosure is necessary to prevent a crime or fraud, and:
(a) the crime or fraud threatens substantial financial loss;
(b) the loss has not yet occurred;

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(c) the lawyer's client intends to commit the crime or fraud either personally or through a third
person; and
(d) the client has employed or is employing the lawyer's services in the matter in which the
crime or fraud is committed.
(2) If a crime or fraud described in Subsection (1) has already occurred, a lawyer may use or
disclose confidential client information when the lawyer reasonably believes its use or disclosure
is necessary to prevent, rectify, or mitigate the loss.
(3) Before using or disclosing information under this Section, the lawyer must, if feasible, make
a good-faith effort to persuade the client not to act. If the client or another person has already
acted, the lawyer must, if feasible, advise the client to warn the victim or to take other action to
prevent, rectify, or mitigate the loss. The lawyer must, if feasible, also advise the client of the
lawyer's ability to use or disclose information as provided in this Section and the consequences
thereof.
(4) A lawyer who takes action or decides not to take action permitted under this Section is not,
solely by reason of such action or inaction, subject to professional discipline, liable for damages
to the lawyer's client or any third person, or barred from recovery against a client or third
person.
h. Disclosure to Detect and Resolve Conflicts of Interest
Lawyers may disclose limited client information, such as client names and a summary of
general issues, when a lawyer changes firms, when two firms merge, or when a law
practice is being purchased. This is allowed in order to detect and resolve conflicts of
interest. This exception is subject to four conditions:
1. The disclosure may be made only after substantive discussions regarding the
new relationship have occurred
2. The disclosure must be limited to the minimum necessary to detect any conflicts
of interest
3. The disclosed information must not compromise the attorney-client privilege or
otherwise prejudice the clients; and
4. The disclosed information may be used only to the extent necessary to detect
and resolve any conflicts of interest
i. Protecting Confidential Information
A lawyer must make reasonable efforts to protect a client’s confidential information from
inadvertent or unauthorized disclosure by the lawyer and those under the lawyer’s
supervision, and from unauthorized access by third parties. The reasonableness of the
lawyer’s efforts is determined by considering such factors as the sensitivity of the client’s
information, the cost of additional safeguards, and the difficulty of implementing the
safeguards.
Model Rule of Professional Conduct 1.6: Confidentiality of Information, Comment [3]

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The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorneyclient privilege, the work product doctrine and the rule of confidentiality established in
professional ethics. The attorney-client privilege and work product doctrine apply in judicial and
other proceedings in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client. The rule of client-lawyer confidentiality applies in
situations other than those where evidence is sought from the lawyer through compulsion of
law. The confidentiality rule, for example, applies not only to matters communicated in
confidence by the client but also to all information relating to the representation, whatever its
source. A lawyer may not disclose such information except as authorized or required by the
Rules of Professional Conduct or other law.
United States v. Franklin, 598 F. 2d 954 (5th Cir. 1979)
Summary: Attorney Robert Senor represented Morton Franklin in relation to various
criminal charges. Senor offered confidential client information to the government in an
unsuccessful attempt to obtain more lenient treatment. Franklin filed a motion to dismiss
his indictment, on the ground that Senor improperly disclosed confidential information.
The district court denied the motion, and the circuit court affirmed, because Senor
disclosed the information in order to benefit Franklin, among other things.
PER CURIAM:
Appealing his false loan application and obstruction of justice convictions, defendant contends
that the indictment should have been dismissed because it was based on information obtained
by the Government from his attorney. Concluding that the facts of this case do not support the
relief requested, we affirm.
Defendant was charged with assisting in the submission of a materially false statement to a
federally insured bank to obtain financing for a gun smuggling operation and with obstructing
justice by preventing an investigation into these financial arrangements.
DISMISSAL OF INDICTMENT
Prior to trial, defendant moved to dismiss the indictment on the ground that the Government had
improperly obtained information from his attorney, Robert Senor. Senor had contacted
Government agents for the purpose of arranging leniency for the defendant on a marijuana
charge. Without detailing the evidence in relation to these contacts and the information revealed
to the Government by Senor, it appears from the record that defendant cannot prevail under any
theory presented.
In Weatherford v. Bursey, the Supreme Court held it fatal to a conviction for the Government to
obtain defense strategy from an attorney only where there was “a realistic possibility of injury to
defendant or benefit to the State.”

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Senor testified he had discussed defense strategy with his friend Edward Ragen, a Supervisory
Customs Air Officer. Since Ragen did not communicate this information to his superiors and
was not officially assigned to this case, and the Government did not purposely infiltrate the
defense camp, there was no realistic possibility of harm to defendant or benefit to the
Government. Senor's statement to Zisk that Franklin maintained his innocence cannot be
regarded as a disclosure of the defense strategy.
Defendant further contends that the Government had made Senor its undercover agent.
Although the affidavit for warrants to search codefendants’ premises and automobiles had listed
Senor as a “confidential source” and contained information relayed by Senor, the facts do not
support the contention here made.
Acting on defendant’s behalf in seeking to barter information for leniency on the marijuana
charge, defendant's attorney initiated the contact. It appeared to the Government that he was
acting with the approval of his client in his client’s best interests. Throughout these
communications Senor insisted that his client was innocent of any wrongdoing in the gun
smuggling operation and only wished to exchange information incriminating others for leniency.
This case is thus fundamentally different from Messelt v. Alabama, in which an “utter perversion
of the attorney-client relationship” resulted from the defense attorney’s effort to gain leverage for
the payment of his fee by suggesting to the prosecution that his client be charged with more
serious offenses, and his proposal to his client that they participate together in a drug scheme.
The Government’s response to Senor’s efforts was restrained and proper. The Government
agent, Philip Zisk, told Senor he was not interested in bargaining and already had access to
information about the smuggling operation. Although Zisk did list Senor as a source of
information in the application for the search warrants, he testified that the information on which
the affidavit was based came primarily from undercover officers, that Senor was only one of four
sources, and that the information provided by him was merely cumulative. Defendant had no
interest in the property searched, was without standing to challenge the validity of the search,
and did not attempt to do so. Senor thus was not, as claimed, a confidential agent in the service
of the Government.
Basically, Senor communicated three items of information to Zisk: (1) defendant's role in
arranging the financing of what he thought was to be a legitimate gun operation; (2) trips to
Cleveland by a codefendant to secure financing; and (3) details concerning Franklin's later
discovery of gun smuggling. That Senor communicated information given by his client to the
Government does not taint his conviction for several reasons. First, the information was
available to the Government from other sources and not based on Senor’s communications.
Second, the information did not incriminate defendant. Third, the information was communicated
voluntarily as an inducement to a plea bargain. Fourth, at a later meeting defendant himself
communicated substantially the same information to the Government through Senor, thereby
waiving any privilege he may have had and ratifying Senor’s communication, if he had not in
fact approved it from the outset. Fifth, neither the information communicated by Senor nor the
fact the communication took place was introduced at trial.

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The only evidence introduced at the trial that implicated defendant and which related to Senor’s
communication was a codefendant’s diary seized during the search. Even assuming that
evidence was obtained by the Government in an illegal manner, the proper remedy would be
suppression, not dismissal of the prosecution. Suppression was not sought. In any event, the
evidence had minimal impact.
Therefore, the district court did not err in denying the motion to dismiss the indictment.
Questions:
1. Why did Franklin think he was entitled to relief?
2. Did Senor violate his duty of confidentiality to Franklin by disclosing the information at
issue?
3. Did disclosure of the information materially impact Franklin’s trial? Should it matter?
In re Original Grand Jury Investigation, 89 Ohio St. 3d 544 (Ohio 2000)
Summary: An attorney represented a client in relation to grand jury investigation. The
attorney received a letter written by the client that disclosed a possible crime. The
attorney asked the court how to proceed, and ultimately orally disclosed the contents of
the letter, without disclosing the letter itself. The Ohio Supreme Court held that the letter
was a client “secret,” but that disclosure was required in order to prevent a crime.
FRANCIS E. SWEENEY, SR., J.
The issue presented in this case is whether an attorney can be compelled to disclose to the
grand jury a letter written by a client and discovered by an investigator that contains evidence of
a possible crime or whether the Ohio Code of Professional Responsibility prohibits such
disclosure.
At the outset, we understand that appellant was faced with an ethical dilemma and had the
difficult decision of determining how to respond to the competing challenges of maintaining
client confidentiality and preserving the safety concerns of the public. We appreciate that
appellant confronted the problem head-on by first asking the Secretary of the Board of
Commissioners on Grievances and Discipline of the Supreme Court for advice on whether he
had an obligation to report a possible crime and then by heeding that advice by reporting the
matter to the court and cooperating with the police. Nevertheless, for the reasons that follow, we
find that appellant must comply with the grand jury subpoena and relinquish the letter in
question.
The concept of client confidentiality, including the attorney's ethical obligations concerning
confidentiality, is embodied in DR 4-101. DR 4-101(A) defines the terms “confidence” and
“secret” as follows:

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“Confidence” refers to information protected by the attorney-client privilege under
applicable law and “secret” refers to other information gained in the professional
relationship that the client has requested to be held inviolate or the disclosure of which
would be embarrassing or would be likely detrimental to the client.
DR 4-101(B) states, “Except when permitted under DR 4-101(C), a lawyer shall not knowingly
reveal a confidence or secret of a client.”
We must first determine whether the letter sought falls within the definition of a client “secret.”
Unlike “confidence,” which is limited to information an attorney obtains directly from his or her
client, the term “secret” is defined in broad terms. Therefore, a client secret includes information
obtained from third-party sources, including “information obtained by a lawyer from witnesses,
by personal investigation, or by an investigation of an agent of the lawyer, disclosure of which
would be embarrassing or harmful to the client.”
The court of appeals found that the letter was not a secret because it was not information
gained in the professional relationship. Instead, the court said that the letter was simply physical
evidence, which needed to be disclosed to the authorities. Even though the letter does
constitute physical evidence of a possible crime, it also contains information detrimental to
appellant. Thus, we find that the letter falls within the definition of a client “secret,” since it was
obtained in the professional attorney-client relationship, by appellant’s agent (the investigator),
and since it contains detrimental information detailing a possible crime committed by appellant's
former client.
Although the letter is a client secret, this does not necessarily mean that disclosure of the letter
is absolutely prohibited. An attorney may disclose a client secret if one of the four listed
exceptions in DR 4-101(C) applies.
Appellant concedes that DR 4-101(C)(3) permits him to “reveal the intention of his client to
commit a crime and the information necessary to prevent the crime.”67 Nevertheless, appellant
contends that this provision is narrow in its scope and permits him to orally disclose the
information contained in the letter, but does not permit him to disclose the physical evidence
(the letter). Therefore, appellant maintains that DR 4-101(C)(3) did not permit him to reveal
more than he did when he orally disclosed the intention of his former client to commit a crime
and prevented a crime from occurring.
We agree with appellant that he was authorized by DR 4-101(C)(3) when he chose to reveal the
intent of his client to commit a crime, and, actually, went beyond what DR 4-101(C)(3) allows by
reading the entire letter to the trial court and police. However, the fact that he revealed this
67

Appellant points out that this provision is written in permissive terms, since it states that a lawyer “may”
reveal the client's intent to commit a crime. We acknowledge that DR 4-101(C)(3) is permissive.
Nevertheless, this has no bearing on the outcome in this case, since appellant concedes that he already
disclosed the relevant information to the authorities.

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information does not answer the question whether he is obligated to produce the letter itself.
Thus, the question that remains is whether appellant is required to relinquish the letter itself and
present it to the grand jury. We find that the exception found in DR 4-102(C)(2) governs
disposition of this issue.
DR 4-101(C)(2) provides that an attorney may reveal “confidences or secrets when permitted
under Disciplinary Rules or required by law or court order.” Although the language contained in
DR 4-101(C)(2), like that of DR 4-101(C)(3), is written in permissive terms, courts have
interpreted provisions similar to DR 4-101(C)(2) in such a manner as to require disclosure. The
exception of DR 4-101(C)(2) for disclosures required by law has been construed so that “the
effect of other rules compels disclosures.” Consequently, if a lawyer is “required by law” to
disclose information to the authorities, “these legal obligations create ‘forced’ exceptions to
confidentiality.” Under these circumstances, a lawyer’s duty “not to use or disclose confidential
client information is superseded when the law specifically requires such use or disclosure.”
The exception of DR 4-101(C)(2) for disclosures required by law has been applied in the context
of mandating that attorneys relinquish evidence and instrumentalities of crime to lawenforcement agencies. Thus, the rule has emerged that, despite any confidentiality concerns, a
criminal defense attorney must produce real evidence obtained from his or her client or from a
third-party source, regardless of whether the evidence is mere evidence of a client's crime, or is
a fruit or instrumentality of a crime. In either event, the physical evidence must be turned over to
the proper authorities. In essence, the confidentiality rules do not give an attorney the right to
withhold evidence.
Appellant contends, however, that there are strong policy reasons against mandating
disclosure. Appellant believes that mandatory disclosure will discourage attorneys from
reporting possible threats made by their clients and will therefore run contrary to the intent of the
code, which is to prevent crimes from occurring. Appellant cites the Massachusetts decision of
Purcell v. Dist. Atty. for Suffolk Dist., which highlights these concerns.
In Purcell, an attorney informed police about his client’s intention to commit arson. The trial
court ordered the attorney to testify about the conversation he had with his client concerning his
client's intention to commit this crime, and the state defended the order on the basis of the
crime-fraud exception to the attorney-client privilege. The Massachusetts Supreme Court
vacated the trial court’s order and held that the attorney did not have to testify against his client.
In so holding, the court noted:
We must be cautious in permitting the use of client communications that a lawyer has
revealed only because of a threat to others. Lawyers will be reluctant to come forward if
they know that the information that they disclose may lead to adverse consequences to
their clients. A practice of the use of such disclosures might prompt a lawyer to warn a
client in advance that the disclosure of certain information may not be held in
confidence, thereby chilling free discourse between lawyer and client and reducing the
prospect that the lawyer will learn of a serious threat to the well-being of others.

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Although these may be valid concerns, we find that the Purcell decision is distinguishable from
the instant case, and that the policy reasons cited in Purcell have less validity here. Purcell
involved direct communications between an attorney and client. The issue in that case was
whether the attorney was required to testify against his client. In this case, the attorney-client
privilege is not at issue. Nor is appellant being asked to testify against his former client. Instead,
the instant case revolves around whether a physical piece of evidence must be relinquished to
the grand jury. While we recognize the importance of maintaining a client’s confidences and
secrets and understand that an attorney may have concerns in turning over incriminating
evidence against his or her client, we do not believe that these concerns should override the
public interest in maintaining public safety and promoting the administration of justice by
prosecuting individuals for their alleged criminal activity.
Since the letter sought in this case contains evidence of a possible crime, we find that the letter
must be turned over to the grand jury. Accordingly, we hold that where an attorney receives
physical evidence from a third party relating to a possible crime committed by his or her client,
the attorney is obligated to relinquish that evidence to law-enforcement authorities and must
comply with a subpoena issued to that effect.
Other provisions of the code support our holding that appellant must relinquish the letter to the
grand jury. DR 7-109(A) provides, “A lawyer shall not suppress any evidence that he or his
client has a legal obligation to reveal or produce.” Furthermore, DR 7-102(A)(3) provides, “In his
representation of a client, a lawyer shall not conceal or knowingly fail to disclose that which he is
required by law to reveal.” Reading these rules together, we believe that under the facts
presented in this case, appellant has a legal obligation to turn the letter over to the grand jury.
We agree with the court of appeals that the sanction imposed against appellant stemming from
the contempt proceedings should be vacated, given that appellant challenged the subpoena on
confidentiality grounds in good faith. Under these circumstances, we do not believe appellant
should be punished and held in contempt. The finding of contempt is vacated on condition that
appellant comply with the subpoena. Accordingly, we affirm the judgment of the court of appeals
and order appellant to relinquish the letter in question to the grand jury.
PFEIFER, J., concurring in part and dissenting in part.
I agree with the majority that the letter is a client secret and that Helmick was authorized to
reveal the intent of his client to commit a crime. DR 4-101(C)(3). Revealing “the information
necessary to prevent the crime” should have concluded the matter. Unfortunately, the trial court
and now a majority of this court chose to read DR 4-101(C)(2) liberally. That reading of the
exception swallows the rule of DR 4-101(B)(1), which states that a lawyer “shall not knowingly
reveal a confidence or secret of his client,” and declares open season on defense attorney files.
The majority relies on cases from other jurisdictions in which attorneys were required to turn
over to the proper authorities the fruits and instrumentalities, including a gun, of crime. Those

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cases are not similar factually to this case. Purcell is, and we should have taken a similarly
cautious approach. Otherwise, “lawyers will be reluctant to come forward if they know that the
information that they disclose may lead to adverse consequences to their clients, thereby
chilling free discourse between lawyer and client and reducing the prospect that the lawyer will
learn of a serious threat to the well-being of others.”
Helmick acted the way all attorneys with an ethical dilemma should: he sought out competent
counsel and followed the advice given. He acted in a manner designed to prevent the
commission of a crime, which is what the (C)(3) exception to DR 4-101 is all about.
Today’s opinion will likely have two unfortunate results. First, overzealous prosecutors will be
more likely to engage in fishing expeditions. Second, attorneys and their clients will be less
likely to discuss potential crimes, which will decrease the likelihood that the crimes can be
prevented. I concur in part and dissent in part.
Questions:
1. Why did the appellate court and the Ohio Supreme Court disagree about whether the
letter was “confidential information” for the purpose of the duty of confidentiality?
2. Why did the court find that the attorney could disclose the contents of the letter? Do you
agree?
3. What is the difference between disclosing the information necessary to prevent a crime
from occurring and disclosing confidential information?
McClure v. Thompson, 323 F.3d 1233 (9th Cir. 2003)
Summary: Robert McClure was arrested for the murder of Carol Jones and the
disappearance of her two children. Attorney Christopher Mecca represented McClure. In
the course of representation, McClure told Mecca the location of the children. Mecca
disclosed that information to the police, who found their bodies. McClure was convicted
for three murders. He filed a habeas petition, alleging that Mecca improperly disclosed
confidential information. The district court denied the petition, and the Ninth Circuit
affirmed, holding that McClure had not provided informed consent to disclosure, but
Mecca reasonably believed disclosure could save the children.
WILLIAM W. FLETCHER, Circuit Judge:
Oregon state prisoner Robert A. McClure appeals the district court’s denial of his habeas corpus
petition challenging his jury trial conviction for three aggravated murders. McClure’s original
defense attorney, Christopher Mecca, placed an anonymous telephone call to law enforcement
officials directing them to the locations of what turned out to be the bodies of two children whom
McClure was ultimately convicted of killing. The district court rejected McClure’s arguments that
the disclosure constituted ineffective assistance of counsel, holding there was no breach of the
duty of confidentiality and no actual conflict of interest. We affirm.

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I. Background
A. Offense, Arrest and Conviction
On Tuesday, April 24, 1984, the body of Carol Jones was found in her home in Grants Pass,
Oregon. She had been struck numerous times on the head, arms and hands with a blunt object.
A gun cabinet in the home had been forced open and a .44 caliber revolver was missing. Two of
Jones’ children — Michael, age 14, and Tanya, age 10 — were also missing. The fingerprints of
Robert McClure, a friend of Jones, were found in the blood in the home. On Saturday, April 28,
McClure was arrested in connection with the death of Carol Jones and the disappearance of the
children.
That same day, McClure’s mother contacted attorney Christopher Mecca and asked him to
represent her son. As discussed in more detail below, sometime in the next three days, under
circumstances described differently by McClure and Mecca, McClure revealed to Mecca the
separate remote locations where the children could be found. On Tuesday, May 1, Mecca,
armed with a map produced during his conversations with McClure, arranged for his secretary
to place an anonymous phone call to a sheriff's department telephone number belonging to a
law enforcement officer with whom Mecca had met earlier.
Later that day and the following day, sheriff’s deputies located the children's bodies, which were
in locations more than 60 miles apart. The children had each died from a single gunshot wound
to the head. Mecca then withdrew from representation. On May 3, McClure was indicted for the
murders of Carol Jones and her children. At trial, the prosecution produced extensive evidence
that stemmed from the discovery of the children’s bodies and introduced testimony regarding
the anonymous phone call. McClure was found guilty of all three murders and was sentenced to
three consecutive life sentences with 30-year minimums. On direct appeal, his conviction was
affirmed without opinion.
B. Disclosure of the Children's Whereabouts
The parties agree that Mecca and McClure met at the jail and spoke on the telephone on a
number of occasions between April 28 and May 1. However, the substance of the conversations
between McClure and Mecca are the subject of significant dispute.
Mecca recorded his account in notes that he wrote immediately after the children's bodies were
discovered. Mecca also gave deposition testimony for McClure’s state post conviction
proceeding, submitted an affidavit prior to McClure's federal habeas proceeding, and gave
testimony at the federal district court evidentiary hearing in the habeas proceeding. In his notes,
Mecca wrote that McClure had initially claimed that he was “being framed” for the murder, but
that he was nervous about his fingerprints being in the house. He had asked Mecca to help him
remove some other potential evidence, which Mecca declined to do.

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According to the notes, on the Sunday night after McClure’s Saturday arrest, Mecca received a
“frantic phone call” from McClure's sister, who was convinced that McClure had murdered
Jones, but had reason to believe that the children were alive and perhaps “tied up or bound
someplace.” In response, Mecca set up a meeting with McClure, his sister and his mother at the
jail, at which McClure’s sister “directly confronted McClure and begged him to divulge
information about the whereabouts of the kids.” McClure and his sister discussed how McClure
sometimes did “crazy things” when he was using drugs, but McClure strongly maintained his
innocence as to Carol Jones’ murder and the children’s disappearance.
According to his notes, when Mecca next spoke with McClure on Monday, McClure was less
adamant in his denial. Mecca described how, when they met on Monday afternoon, McClure
began to tell him of his “sexual hallucinations and fantasies” involving young girls and about
“other situations that happened in the past involving things he would do while under the
influence of drugs.” “It was at that time,” Mecca wrote, “when I realized in my own mind that he
had committed the crime and the problem regarding the children intensified.” Mecca wrote that
he “was extremely agitated over the fact that these children might still be alive.”
After a Monday night visit to the crime scene, Mecca returned to the jail to speak with McClure
again, at which time he “peeled off most of the outer layers of McClure and realized that there
was no doubt in my mind that he had killed Carol Jones.” McClure told Mecca he wanted to see
a psychiatrist, then launched into “bizarre ramblings.” “Each time as I would try to leave,” Mecca
recalled in his notes, “McClure would spew out other information, bits about the children, and he
would do it in the form of a fantasy.” Mecca wrote that he “wanted to learn from him what
happened to those children.” He told McClure “that we all have hiding places, that we all know
when we go hiking or driving or something, we all remember certain back roads and remote
places,” and that McClure “related to me one place where a body might be” and then “described
where the other body would be located.” Mecca wrote that he “wasn't going to push him for
anything more,” but “when I tried to leave, he said, and he said it tentatively, ‘would you like me
to draw you a map and just give you an idea?’ and I said ‘Yes’ and he did.” Mecca recorded that
“at that time, I felt in my own mind the children were dead, but, of course, I wasn’t sure.”
Very late on Monday evening, McClure telephoned Mecca at home and said, “I know who did it.”
Mecca recorded in his notes that the next morning he went to meet with McClure, and asked
him about this statement. McClure told Mecca that “Satan killed Carol.” When Mecca asked,
“What about the kids?” McClure replied, “Jesus saved the kids.” Mecca wrote in his notes that
this statement “hit me so abruptly, I immediately assumed that if Jesus saved the kids, that the
kids are alive.” Mecca wrote that he “kind of felt that McClure was talking about a sexual thing,
but, in any event, I wasn’t sure.”
Mecca’s notes indicate that on Monday, before McClure made the “Jesus saved the kids”
comment, and again on Tuesday, immediately after the meeting at which he made that
comment, Mecca had conversations with fellow lawyers, seeking advice regarding “the dilemma
that he faced.” After the second of these conversations, which took place Tuesday morning,
Mecca arranged for a noon meeting with the undersheriff and the prosecutor. At the meeting, he

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“mentioned to them that I may have information which would be of interest to the State” and
attempted to negotiate a plea. When the prosecutor responded that there would be no deal,
Mecca recorded in his notes, “I had made up my mind then that I had to do the correct thing.
The only option I had, as far as I was concerned, was to disclose the whereabouts of the
bodies.” (Recall that by the time Mecca wrote these notes, he had learned that the children were
dead.) A law enforcement official testified in a federal court deposition that, after both the state
bar association and the attorney general “recommended that it would be unwise for Mr. Mecca
to provide us information,” Mecca “indicated that, even though there might be sanctions, that he
still was wanting to provide information that he had regarding the children.” Mecca stated that
when he spoke with McClure’s sister and mother, they were adamant that he do whatever he
could to locate the children, and that “they were still under the impression that one or both of the
children were alive, or at least there was a chance they were alive.”
Mecca then returned to the jail Tuesday afternoon and, according to his notes, “advised
McClure that if there was any possibility that these children were alive, we were obligated to
disclose that information in order to prevent, if possible, the occurrence of what could be the
elevation of an assault to a murder, for instance. I further indicated that if he really requested
psychiatric help, to help him deal with his problem, that this perhaps was the first step.” “In any
event,” Mecca recorded in his notes, “he consented.” “I arranged to have the information
released anonymously to the Sheriff’s Department with directions to the bodies.” He noted that
there was “no provable way to connect” McClure to the information, “but I think it’s rather
obvious from those in the know, who the information came from.”
In the deposition conducted in conjunction with McClure’s state habeas proceeding, Mecca
gave a similar account of the events surrounding disclosure of the locations of the children. He
emphasized that “it all happened relatively quickly” and that there was a public “hysteria about
these kids, whether the kids were dead, whether the kids were alive.” Mecca reiterated that
much of the later conversations with McClure consisted of hypotheticals and fantasies — “like
he was playing a game with me” — but that it was clear that McClure wanted to tell him where
the children were. Mecca stated in his deposition that “the condition of the children was never
discussed,” but that the insistence by McClure's mother and sister that McClure wouldn’t hurt
the children put him “in this mode of thinking these kids might be alive someplace.”
Mecca testified in his deposition that he thought that if the children were alive, it might relieve
McClure of additional murder charges, but that the children were his main concern. When asked
if he was “primarily concerned with the children’s welfare or with Mr. McClure’s welfare” at the
time he disclosed the location of the bodies, Mecca replied, “At that point I was concerned with
the children’s welfare.” When asked if he explained to McClure that “if they were in fact dead,
that revealing the location of the bodies would lead to evidence which could implicate Mr.
McClure in their murders,” Mecca answered: “No. I don't think I had the presence of mind to sit
down and analyze every single detail and go over with him, ‘Geez, you know, if they are really
dead, why don't you tell me.’” However, he testified, “McClure knew I thought there was a
chance those kids were alive.”

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Mecca testified in the deposition that the plan to place the anonymous telephone call was his,
but that McClure knew that he planned to do it, and that, in his late-night call, McClure had
made clear that he “absolutely wanted to disclose where those kids were.” When asked, “Did he
give you permission to reveal this information?” Mecca responded, “Oh, yes.”
In a 1999 affidavit submitted in conjunction with McClure’s federal habeas proceeding, Mecca
gave an additional statement regarding McClure's consent: “Mr. McClure did not orally or
expressly consent to the disclosure. I inferred consent from the circumstances, specifically, the
fact that Mr. McClure called me at home on several occasions with the request that I see him at
the jail, and the fact that he drew a map of the location of the bodies of the victim in his own
handwriting and gave me the map.”
In addition to reviewing Mecca’s notes, his state-court deposition testimony, and his federalcourt affidavit, the federal district court heard testimony from Mecca at an evidentiary hearing. In
this testimony, Mecca emphasized that he generally takes a low-keyed approach to questioning
his clients. He also emphasized that McClure was “fully engaged in his defense” and “was
running the show.” Every time they met or conversed, he said, it was at McClure’s request. He
said that he and McClure “discussed at various times various methods of what I was going to do
with this information.” Mecca testified that McClure never expressly said that he consented to
the disclosure, and that Mecca never asked for such consent. He confirmed his earlier
testimony that he inferred consent, and added for the first time that this inference was based on
McClure’s nodding, saying “okay,” and otherwise manifesting assent. He said this was what he
had meant when he had written in his notes that McClure consented. Mecca also reiterated that
he never told McClure of the legal risks involved in disclosing the children's locations.
Mecca testified that after the Monday conversation with McClure, “the conclusion I came to was
that, without telling me, he told me he had killed three people.” But he stated that he did not
confirm that conclusion by directly asking McClure if it was the case. Instead, he said, he
emphasized to McClure that if there was a chance the children were alive, they needed to save
them, and in response McClure “never said they were dead.” After the “Jesus saved the kids”
comment on Tuesday, Mecca testified, “I allowed myself to believe that these kids might
somehow be alive.” When asked on cross examination whether, at the time he decided to make
the anonymous call, he thought there was “a strong possibility the kids still may be alive,” Mecca
responded that he “felt that it was a possibility. I wouldn’t say a strong possibility.” One of the
reasons he felt this possibility existed, he said, was that his “client had not indicated anything
differently.” He testified that the possibility of saving his client from additional murder charges
“was something that was going through his mind” during his decisionmaking. He noted that the
weather at that time of year was “warm” and “pleasant,” and that if the children had been left in
the woods it was possible that the weather would not have contributed to their death.
McClure disagreed with Mecca’s account of the events leading up to the anonymous call. In
testimony in both the state and federal district court proceedings, he repeatedly insisted that he
did not give Mecca permission to disclose any information and that he was reassured that
everything he told Mecca would remain confidential. He said Mecca pressured him into

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disclosing information by setting up the meeting with his sister and mother, and then
disseminated that information to his detriment without his knowledge or consent.
McClure testified that Mecca never asked him directly if the children were alive or dead, but that
the hypothetical conversations that they had were about where Mecca might find dead “bodies,”
not live “children.” He said his disclosure of those locations was his way of admitting to having
killed them. He testified that Mecca never told him that he intended to make an anonymous
telephone call.
III. Discussion
McClure’s single claim is that habeas relief is appropriate because he received ineffective
assistance of counsel under the Sixth Amendment. He asserts three independent grounds on
which ineffectiveness could be found. The first two are based on alleged breaches of Mecca’s
professional duty to maintain client confidentiality. McClure argues that this duty was breached
both by a failure to obtain informed consent prior to the disclosure of confidential information
and by a failure to inquire thoroughly before concluding that disclosure was necessary to
prevent the deaths of the children. The third ground is that the primacy of Mecca’s concern for
the victims constituted a conflict of interest that rendered Mecca's counsel constitutionally
ineffective.
The Duty of Confidentiality
McClure contends that Mecca’s disclosure of McClure’s confidential statements about the
location of the children violated McClure’s Sixth Amendment right to effective assistance of
counsel. ABA Model Rule of Professional Conduct 1.6 sets forth a widely recognized duty of
confidentiality: “A lawyer shall not reveal information relating to representation of a client.” Our
legal system is premised on the strict adherence to this principle of confidentiality, and “the
Supreme Court has long held attorneys to stringent standards of loyalty and fairness with
respect to their clients.” There are few professional relationships “involving a higher trust and
confidence than that of attorney and client,” and “few more anxiously guarded by the law, or
governed by sterner principles of morality and justice.”
As critical as this confidential relationship is to our system of justice, the duty to refrain from
disclosing information relating to the representation of a client is not absolute. The ABA Model
Rule provides a list of well-established exceptions to the general principle of confidentiality, two
of which are pertinent to the present case. First, a lawyer may reveal confidential information if
“the client consents after consultation.” Second, “a lawyer may reveal such information to the
extent the lawyer reasonably believes necessary to prevent the client from committing a criminal
act that the lawyer believes is likely to result in imminent death or substantial bodily harm.” The
relevant provisions of the Oregon Code of Professional Responsibility echo both the general
principle of confidentiality and these particular exceptions.

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The duty of an attorney to keep his or her client’s confidences in all but a handful of carefully
defined circumstances is so deeply ingrained in our legal system and so uniformly
acknowledged as a critical component of reasonable representation by counsel that departure
from this rule “makes out a deprivation of the Sixth Amendment right to counsel.” With this
uncontested premise as our starting point, we examine whether the circumstances surrounding
Mecca’s revelation of a confidential client communication excused his disclosure, such that his
performance could have been found by the state court and the district court to be
constitutionally adequate. Specifically, we look to see if Mecca’s client “consented after
consultation” or if Mecca “reasonably believed the revelation was necessary to prevent the client
from committing a criminal act that Mecca believed was likely to result in imminent death or
substantial bodily harm.” We conclude that the first of these exceptions does not apply to justify
Mecca's behavior, but that the second does.
1. Consent After Consultation
McClure argues that Mecca rendered constitutionally ineffective assistance because he
breached his duty of confidentiality by not obtaining McClure's informed consent before
disclosure. The professional standard that allows disclosure of confidential communications
when “the client consents after consultation” has two distinct parts: consent by the client, and
consultation by the counsel. Our required deference to both the state court’s factual findings and
the district court’s credibility determination leads us to hold that the first of these elements was
met. However, despite this deference, we hold that the second element was not met.
a. Consent
The state court made the following finding: “Trial counsel received petitioner’s permission to
anonymously disclose the whereabouts of the children to the authorities.” AEDPA demands that
this finding of consent be presumed correct and accepted as true unless McClure rebuts the
presumption with clear and convincing evidence to the contrary. The district court, whose
credibility determinations are given great weight, and whose findings of fact are reviewed only
for clear error, explicitly accepted that finding, and stated that it did “not find credible petitioner’s
assertion that he did not consent to the disclosure of the information contained in the map.” It
found that McClure “voluntarily drew the map and gave it to Mecca,” and that, even in the
absence of the words “I consent,” Mecca could infer consent from the circumstances and from
McClure’s conduct. It stated that it found Mecca’s testimony “entirely credible and corroborated
by his contemporaneous notes which state specifically that petitioner consented to the
disclosure.”
There is evidence in the record to cast doubt on these consent findings — indeed, enough
evidence that if we were sitting as trier of fact, we might find that McClure did not give consent.
McClure repeatedly denied that he consented, and certainly would have had good reason not to
consent. The state court determination that McClure had consented was made before Mecca
clarified that the consent was implied and not express. Moreover, it was based on Mecca’s
unconditional affirmative response, in his state-court deposition, to the question of whether

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permission to reveal the information was granted. Only later, in the federal habeas proceeding,
did it come to light that Mecca had merely inferred McClure’s consent.
Further, Mecca’s account of the circumstances from which he inferred McClure’s consent
changed over the years. His initial account stated that he inferred consent from the fact that
McClure called him at home, drew the map, and gave it to him. It is a significant leap to infer
McClure’s consent to disclose the map to law enforcement authorities from the fact that McClure
gave the map to Mecca. Virtually all clients provide information to their attorneys, but they do so
assuming that the attorneys will not breach their duty of confidentiality. Further, Mecca’s
behavior at the time of the disclosure suggested that he thought he lacked the kind of informed
consent that would give him the legal authority to act.
However, the findings reached by the state and district courts are not so “implausible” —
particularly in light of the district court's credibility determinations — that they produce a “definite
and firm conviction that a mistake has been committed.” The district court believed Mecca's
account at the evidentiary hearing, disbelieved McClure's, and found the discrepancies in
Mecca’s testimony to be “minor.” Because there are “two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” We therefore hold that McClure
gave his consent to the disclosure.
b. Consultation
However, the mere fact of consent is not sufficient to excuse what would otherwise be a breach
of the duty of confidentiality. Consent must also be informed. That is, the client can provide valid
consent only if there has been appropriate “consultation” with his or her attorney. Mecca’s
consultation with McClure regarding his consent to disclosure was addressed in the state court
and district court findings. Both courts found that Mecca did not advise McClure about the
potential harmful consequences of disclosure. The state court found that “before petitioner
authorized trial counsel to reveal the childrens’ locations to authorities, trial counsel did not
advise petitioner that if authorities located the children, he could be further implicated in the
criminal activity and the evidence against him would be stronger.” The district court found that
“Mecca admits that he did not advise petitioner of all potential adverse consequences.”
Emphasizing that McClure was “fully engaged” in his defense and that he was told that the
obligation to disclose the children's location arose only if the children were alive, the district
court held that “under the circumstances, Mecca’s failure to advise petitioner of all possible
adverse consequences was not unreasonable.” We believe this holding is inconsistent with the
consultation requirement because it does not attach sufficient importance to the role that an
attorney's advice plays in the attorney-client relationship. It is not enough, as the district court
suggests, that McClure “did not dissuade Mecca from his intentions” to share the map with
authorities. The onus is not on the client to perceive the legal risks himself and then to dissuade
his attorney from a particular course of action. The district court’s statement that Mecca was
relieved of his duty to counsel his client because “common sense dictated that petitioner
understood the consequences of his actions” fails to acknowledge the seriousness of those

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consequences and the importance of good counsel regarding them. Even in cases in which the
negative ramifications seem obvious — for example, when criminal defendants opt for selfrepresentation — we require that a criminal defendant's decision be made on the basis of legal
guidance and with full cautionary explanation. We disagree with the district court’s conclusion
that this case was so exceptional that the attorney’s basic consultation duties did not apply. It is
precisely because the stakes were so high that Mecca had an obligation to consult carefully with
his client. In the absence of some other exception to the duty of confidentiality, his failure to
obtain informed consent would demonstrate constitutionally deficient performance under the
Sixth Amendment.
2. Prevention of Further Criminal Acts
The State contends that, even if Mecca did not have informed consent, his revelation of client
confidences did not amount to ineffective assistance of counsel because he reasonably
believed that disclosing the location of the children was necessary in order to prevent further
criminal acts. That is, Mecca reasonably believed that revealing the children's locations could
have prevented the escalation of kidnapping to murder. This is not a traditional “prevention of
further criminal acts” case, because all of the affirmative criminal acts performed by McClure
had been completed at the time Mecca made his disclosure. Mecca was thus acting to prevent
an earlier criminal act from being transformed by the passage of time into a more serious
criminal offense. Nonetheless, we believe that where an attorney’s or a client’s omission to act
could result in “imminent death or substantial bodily harm” constituting a separate and more
severe crime from the one already committed, the exception to the duty of confidentiality may be
triggered.
This exception, however, requires that an attorney reveal confidences only to the extent that he
“reasonably believes necessary to prevent” those criminal acts and imminent harms. In
assessing the effectiveness of McClure’s counsel in light of this standard, the first step is to
determine what a constitutionally effective counsel should be required to do before making a
disclosure. That is, we must determine what basis the attorney had for believing that the
precondition to disclosure was present, and how much investigation he or she must have
undertaken before it was “reasonable” to “believe it necessary” to make the disclosure to
prevent the harm. The second step is to apply that standard to the facts surrounding Mecca's
decision to disclose.
There is remarkably little case law addressing the first analytical step. Citing cases dealing with
a separate confidentiality exception allowing attorneys to reveal intended perjury on the part of
their clients, McClure argues that a lawyer must have a “firm factual basis” before adopting a
belief of impending criminal conduct. However, we are not persuaded that the perjury cases
provide the proper standard.
McClure is correct that our inquiry must acknowledge the importance of the confidential
attorney-client relationship and the gravity of the harm that results from an unwarranted breach
of that duty. However, the standard applied in the professional responsibility code asks only if

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the attorney “reasonably believes” disclosure is necessary to prevent the crime. Further, the
Strickland standard likewise focuses on “whether counsel's assistance was reasonable
considering all the circumstances.” Accordingly, we hold that the guiding rule for purposes of the
exception for preventing criminal acts is objective reasonableness in light of the surrounding
circumstances.
Reasonableness of belief may be strongly connected to adequacy of investigation or sufficiency
of inquiry in the face of uncertainty. Significantly, as indicated above, Strickland explicitly
imposes a duty on counsel “to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” In any ineffectiveness of counsel
case, “a particular decision not to investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference to counsel's judgments.” Thus, in
determining whether Mecca’s disclosure of confidential client information constituted ineffective
assistance of counsel, we must examine whether Mecca “reasonably believed” that the
precondition for disclosure existed and whether, in coming to that belief, Mecca conducted a
reasonable investigation and inquiry.
The parties vigorously debate both the reasonableness of Mecca’s belief that the children were
alive and the reasonableness of his level of investigation and inquiry on that point. McClure
argues that any conclusion that Mecca had a reasonable belief is unsupported because Mecca
himself indicated that he harbored doubts as to the children's state, and yet failed to inquire
further. He points to evidence in the record that Mecca, at least at some stages of his
representation of McClure, did not believe the children were alive—or that he, at the least,
suspected that they were dead. It is indisputable that this evidence exists, and that most of this
evidence is contained in statements by Mecca himself, whom the district court found “highly
credible.” Mecca’s notes state that, after McClure drew the map, Mecca “felt in my own mind
that the children were dead, but, of course, I wasn’t sure.” He testified in the district court
evidentiary hearing that the conclusion he came to was that, “without telling me, McClure had
told me he had killed three people.” And he stated in this same testimony that, at the time he
had his secretary place the anonymous call, he thought there was a “possibility,” but not a
“strong possibility,” that the children were alive.
McClure argues that the statement Mecca says abruptly changed his mind about the status of
the children — McClure's comment that “Jesus saved the kids” — was so vague and ambiguous
that it was not a sufficient basis for a “reasonable belief” that disclosure was necessary. Despite
Mecca’s acknowledgment that this comment led him only to “assume” that McClure was saying
the children were alive, Mecca never directly asked a question that could have confirmed or
refuted that assumption. Mecca repeatedly testified that he never squarely asked about the
condition of the children or whether McClure had killed them. Accordingly, McClure argues, any
finding that Mecca believed the children were alive is not sufficient to establish effective
assistance of counsel, because Mecca's failure to engage in a reasonable level of investigation
and inquiry rendered that belief unreasonable.

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Given the implicit factual findings of the state court, and the explicit factual findings of the district
court, which are at least plausible in light of the record viewed in its entirety, we disagree. The
ultimate question of the reasonableness of Mecca’s belief is a question of law, which we review
de novo. In answering that question, however, we look to the facts and circumstances of the
case, and as to these facts, we give great deference to the findings of the state court and the
district court.
The district court made a number of specific findings regarding the factual basis for Mecca’s
belief that the children were alive. It found that only McClure knew the true facts and that he
deliberately withheld them, leading Mecca to believe the children were alive. It found that
McClure controlled the flow of information, and that when Mecca informed McClure that he had
an obligation to disclose the children's whereabouts if there were a chance they were alive,
McClure did not tell him they were dead. It specifically rejected McClure’s assertion that Mecca
in fact believed that the children were dead or that he lacked information that they were alive,
noting that at the time there was no evidence, other than their disappearance and the passage
of time, that they had been injured or killed.
The district court also made specific factual findings regarding the nature of Mecca’s
investigation and inquiry. It found that “Mecca attempted to discern whether the children were
alive” and “that Mecca investigated to the best of his ability under extremely difficult
circumstances.” McClure argues that these findings are clearly erroneous, and that “arguments
that Mr. McClure was manipulative and difficult are essentially irrelevant to the lawyer’s
obligations.” But Strickland holds otherwise. The Strickland Court emphasized that “the
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant's own statements or actions.” More specifically, it held that “what investigation
decisions are reasonable depends critically” on the “information supplied by the defendant.”
This is a close case, even after we give the required deference to the state and district courts.
The choices made by McClure’s counsel give us significant pause, and, were we deciding this
case as an original matter, we might decide it differently. But we take as true the district court’s
specific factual findings as to what transpired — including what McClure said and did, and what
actions Mecca took and why he took them — and we conclude that Mecca made the disclosure
“reasonably believing it was necessary to prevent the client from committing a criminal act that
Mecca believed was likely to result in imminent death or substantial bodily harm.” Mecca
therefore did not violate the duty of confidentiality in a manner that rendered his assistance
constitutionally ineffective.
Conclusion
For the foregoing reasons, we conclude that McClure did not receive constitutionally ineffective
assistance of counsel. Accordingly, the district court's denial of McClure's petition for writ of
habeas corpus is affirmed.
Questions:

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1. Do you agree with the court’s conclusion that McClure did not provide informed consent
to disclosure?
2. Do you agree with the court’s conclusion that Mecca reasonably believed that disclosure
could save the children?
3. Should Mecca have disclosed the information under the circumstances? Should Mecca
have consulted with McClure about disclosure?

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5.3: The Attorney-Client Privilege
Nobody knows, nobody sees. Nobody knows, but me.68
The “attorney-client privilege” is an evidentiary privilege that protects certain confidential
communications between attorneys and their clients. Attorneys have a fiduciary duty of
confidentiality that prohibits them from disclosing any confidential client information unless their
client consents or they are required to disclose by law. The attorney-client privilege resembles
the duty of confidentiality, but provides broader protection for particular kinds of confidential
communications.
Specifically, the attorney-client privilege applies to confidential attorney-client communications
for the purpose of obtaining legal advice. All confidential client information is protected by the
duty of confidentiality, but only confidential attorney-client communications for the purpose of
obtaining legal advice are protected by the attorney-client privilege.
The attorney-client privilege provides broader protection than the duty of confidentiality. The
government can require the disclosure of confidential client information in circumstances where
it could not require the disclosure of privileged attorney-client communications. In fact, the
government can rarely require the disclosure of privileged information, and courts interpret the
exceptions to attorney-client privilege quite narrowly. But they also interpret the scope of the
attorney-client privilege quite strictly. The attorney-client privilege is quite strong, when it
applies. But it only applies to certain kinds of communications, and it is easy to lose.
To begin with, the attorney-client privilege only protects confidential attorney-client
communications. In other words, if a third-party receives the communication, then it is not
privileged, although it may still be confidential. So, if anyone other than the attorney and the
client participate in the communication, then it is not privileged.
Moreover, the attorney-client privilege only covers communications for the purpose of obtaining
legal advice. If an attorney-client communication does not concern legal advice, then it is not
privileged, even if it is confidential. The attorney-client privilege does not cover business advice,
or other non-legal advice.
In addition, the attorney-client privilege is easily destroyed. Like the duty of confidentiality, the
attorney-client privilege belongs to the client, not the attorney. Accordingly, only the client can
waive the privilege, not the attorney. But the client waives the privilege by disclosing privileged
information to a third-party, whether or not the client intended to waive the privilege. By contrast,
information remains “confidential” until it is “generally known.”

68

Danny Dill & Marijohn Wilkin, Long Black Veil (1959).

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Attorneys should emphasize to their clients the fragility of the attorney-client privilege. Clients
should know that any disclosure to a third-party destroys the privilege, regardless of the context.
Some courts have even held that inadvertent disclosure destroys the privilege.
Identifying Privileged Information
The definition of communications protected by the attorney-client privilege may differ slightly
from jurisdiction to jurisdiction. However, as a general rule, information is protected by the
attorney-client privilege only if:
1. An attorney-client relationship existed when the communication occurred;
2. The information was confidential and not shared with any third-parties; and
3. The information was communicated for the purpose of obtaining legal advice.
So, the attorney-client privilege only applies to communications made in the context of an
attorney-client relationship. Of course, the privilege applies whether the attorney-client
relationship is express or implied. But if no attorney-client relationship had formed or the
attorney-client relationship had ended when the communication occurred, then the information
is not privileged, although it may still be protected by the duty of confidentiality.
In addition, the attorney-client privilege only applies to information that is absolutely confidential.
If the information is disclosed to any third-parties, it is not privileged, although it may still be
protected by the duty of confidentiality. This limitation applies to third-parties who participate in
the initial communication as well as third-parties who receive the communication after the fact. If
a lawyer with whom the client lacks an attorney-client relationship receives the information, then
it is not privileged. And if a non-lawyer who is not part of the attorney-client relationship receives
the information, then it is not privileged. Notably, the “joint-defense privilege” or “common
defense rule” provides that joint defendants can share certain confidential information under
certain circumstances, without destroying the privilege.
Finally, the attorney-client privilege only protects information communicated for the purpose of
obtaining legal advice. Confidential communication between attorneys and clients for the
purpose of obtaining non-legal advice are not privileged, although they may be protected by the
duty of confidentiality. Attorneys often provide non-legal advice to their clients, especially when
those lawyers are employees of companies. Such non-legal advice is not protected by the
attorney client privilege.
The attorney-client privilege belongs to the client, not the attorney. Accordingly, only the client
can waive the privilege. And clients can waive the privilege either intentionally or unintentionally.
Attorneys should explicitly inform their clients that sharing privileged information with any thirdparty will destroy the privilege, and discourage their clients from sharing any privileged
information without consultation.

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Sometimes, attorneys or clients inadvertently disclose privileged information to third-parties.
Different courts treat such disclosures differently. Some courts hold that accidental disclosure
does not destroy the privilege, and that the recipient of the information must return or destroy it,
and may not use it. Other courts hold that accidental disclosure does destroy the privilege. In
those courts, an attorney may accidentally destroy the privilege, even though the attorney lacks
the authority to waive the privilege.
While the attorney-client privilege is quite strong, when it applies, there are certain exceptions to
the privilege.
There are a number of exceptions to the attorney-client privilege. Chief among them is the
“crime-fraud exception,” which provides that the privilege does not protect attorney-client
communications made for the purpose of committing or furthering a crime, fraud, or tort.
However, the exception applies only if the crime, fraud, or tort actually occurs. For example,
confidential communications between clients and attorneys for the purpose of determining
whether an action is a crime, fraud, or tort are protected by the privilege, so long as the crime,
fraud, or tort in questions is not actually committed.
The Purpose Attorney-Client Privilege

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People v. Belge, 83 Misc. 2d 186 (NY County Court 1975)

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Summary: Robert F. Garrow, Jr. was charged with murder and represented by Frank H.
Armani and Francis R. Belge, who presented an insanity defense. In the course of
representation, Garrow disclosed three other murders to his attorneys. Based on
information provided by Garrow, Belge discovered the body of one of the victims, but did
not disclose it to the police until the trial.
Ormand N. Gale, J.
In the summer of 1973 Robert F. Garrow, Jr., stood charged in Hamilton County with the crime
of murder. The defendant was assigned two attorneys, Frank H. Armani and Francis R. Belge. A
defense of insanity had been interposed by counsel for Mr. Garrow. During the course of the
discussions between Garrow and his two counsel, three other murders were admitted by
Garrow, one being in Onondaga County. On or about September of 1973 Mr. Belge conducted
his own investigation based upon what his client had told him and with the assistance of a friend
the location of the body of Alicia Hauck was found in Oakwood Cemetery in Syracuse. Mr.
Belge personally inspected the body and was satisfied, presumably, that this was the Alicia
Hauck that his client had told him that he murdered.
This discovery was not disclosed to the authorities, but became public during the trial of Mr.
Garrow in June of 1974, when to affirmatively establish the defense of insanity, these three
other murders were brought before the jury by the defense in the Hamilton County trial. Public
indignation reached the fever pitch, statements were made by the District Attorney of Onondaga
County relative to the situation and he caused the Grand Jury of Onondaga County, then sitting,
to conduct a thorough investigation. As a result of this investigation Frank Armani was no-billed
by the Grand Jury but Indictment No. 75-55 was returned as against Francis R. Belge, Esq.,
accusing him of having violated subdivision 1 of section 4200 of the Public Health Law, which, in
essence, requires that a decent burial be accorded the dead, and section 4143 of the Public
Health Law, which, in essence, requires anyone knowing of the death of a person without
medical attendance, to report the same to the proper authorities. Defense counsel moves for a
dismissal of the indictment on the grounds that a confidential, privileged communication existed
between him and Mr. Garrow, which should excuse the attorney from making full disclosure to
the authorities.
The National Association of Criminal Defense Lawyers, as amicus curiae, succintly state the
issue in the following language: If this indictment stands, “The attorney-client privilege will be
effectively destroyed. No defendant will be able to freely discuss the facts of his case with his
attorney. No attorney will be able to listen to those facts without being faced with the Hobson’s
choice of violating the law or violating his professional code of Ethics.”
Initially in England the practice of law was not recognized as a profession, and certainly some
people are skeptics today. However, the practice of learned and capable men appearing before
the court on behalf of a friend or an acquaintance became more and more demanding.
Consequently, the King granted a privilege to certain of these men to engage in such practice.

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There had to be rules governing their duties. These came to be known as “Canons.” The King
has, in this country, been substituted by a democracy, but the “Canons” are with us today,
having been honed and refined over the years to meet the changes of time. Most are constantly
being studied and revamped by the American Bar Association and by the bar associations of
the various States. While they are, for the most part, general by definition, they can be brought
to bear in a particular situation. Among those is the following, cited in United States v. Funk:
“Confidential communications between an attorney and his client are privileged from disclosure
as a rule of necessity in the administration of justice.”
In the most recent issue of the New York State Bar Journal there is an article by Jack B.
Weinstein, entitled “Educating Ethical Lawyers.” In a subcaption to this article is the following
language which is pertinent: “The most difficult ethical dilemmas result from the frequent
conflicts between the obligation to one’s client and those to the legal system and to society. It is
in this area that legal education has its greatest responsibility, and can have its greatest effects.”
In the course of his article Mr. Weinstein states that there are three major types of pressure
facing a practicing lawyer. He uses the following language to describe these: “First, there are
those that originate in the attorney’s search for his own wellbeing. Second, pressures arise from
the attorney’s obligation to his client. Third, the lawyer has certain obligations to the courts, the
legal system, and society in general.”
Our system of criminal justice is an adversary system and the interests of the State are not
absolute, or even paramount. “The dignity of the individual is respected to the point that even
when the citizen is known by the state to have committed a heinous offense, the individual is
nevertheless accorded such rights as counsel, trial by jury, due process, and the privilege
against self incrimination.”
A trial is in part a search for truth, but it is only partly a search for truth. The mantle of innocence
is flung over the defendant to such an extent that he is safeguarded by rules of evidence which
frequently keep out absolute truth, much to the chagrin of juries. Nevertheless, this has been a
part of our system since our laws were taken from the laws of England and over these many
years has been found to best protect a balance between the rights of the individual and the
rights of society.
The concept of the right to counsel has again been with us for a long time, but since the
decision of Gideon v. Wainwright, it has been extended more and more so that at the present
time a defendant is entitled to have counsel at a parole hearing or a probation violation hearing.
The effectiveness of counsel is only as great as the confidentiality of its client-attorney
relationship. If the lawyer cannot get all the facts about the case, he can only give his client half
of a defense. This, of necessity, involves the client telling his attorney everything remotely
connected with the crime.
Apparently, in the instant case, after analyzing all the evidence, and after hearing of the bizarre
episodes in the life of their client, they decided that the only possibility of salvation was in a

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defense of insanity. For the client to disclose not only everything about this particular crime but
also everything about other crimes which might have a bearing upon his defense, requires the
strictest confidence in, and on the part of, the attorney.
When the facts of the other homicides became public, as a result of the defendant’s testimony
to substantiate his claim of insanity, “Members of the public were shocked at the apparent
callousness of these lawyers, whose conduct was seen as typifying the unhealthy lack of
concern of most lawyers with the public interest and with simple decency.” A hue and cry went
up from the press and other news media suggesting that the attorneys should be found guilty of
such crimes as obstruction of justice or becoming an accomplice after the fact. From a layman’s
standpoint, this certainly was a logical conclusion. However, the Constitution of the United
States of America attempts to preserve the dignity of the individual and to do that guarantees
him the services of an attorney who will bring to the Bar and to the Bench every conceivable
protection from the inroads of the State against such rights as are vested in the Constitution for
one accused of crime. Among those substantial constitutional rights is that a defendant does not
have to incriminate himself. His attorneys were bound to uphold that concept and maintain what
has been called a sacred trust of confidentiality.
The following language from the brief of the amicus curiae further points up the statements just
made: “The client's Fifth Amendment rights cannot be violated by his attorney. There is no
viable distinction between the personal papers and criminal evidence in the hands or mind of
the client. Because the discovery of the body of Alicia Hauck would have presented ‘a
significant link in a chain of evidence tending to establish his guilt,’ Garrow was constitutionally
exempt from any statutory requirement to disclose the location of the body. And Attorney Belge,
as Garrow’s attorney, was not only equally exempt, but under a positive stricture precluding
such disclosure. Garrow, although constitutionally privileged against a requirement of
compulsory disclosure, was free to make such a revelation if he chose to do so. Attorney Belge
was affirmatively required to withhold disclosure. The criminal defendant’s self-incrimination
rights become completely nugatory if compulsory disclosure can be exacted through his
attorney.”
In the recent and landmark case of United States v. Nixon the court stated: “the constitutional
need for production of relevant evidence in a criminal proceeding is specific and neutral to the
fair adjudication of a particular criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated.” In the case at bar we must weigh
the importance of the general privilege of confidentiality in the performance of the defendant’s
duties as an attorney, against the inroads of such a privilege on the fair administration of
criminal justice as well as the heart tearing that went on in the victim's family by reason of their
uncertainty as to the whereabouts of Alicia Hauck. In this type situation the court must balance
the rights of the individual against the rights of society as a whole. There is no question but
Attorney Belge’s failure to bring to the attention of the authorities the whereabouts of Alicia
Hauck when he first verified it, prevented bringing Garrow to the immediate bar of justice for this
particular murder. This was in a sense, obstruction of justice. This duty, I am sure, loomed large
in the mind of Attorney Belge. However, against this was the Fifth Amendment right of his client,

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Garrow, not to incriminate himself. If the Grand Jury had returned an indictment charging Mr.
Belge with obstruction of justice under a proper statute, the work of this court would have been
much more difficult than it is.
There must always be a conflict between the obstruction of the administration of criminal justice
and the preservation of the right against self incrimination which permeates the mind of the
attorney as the alter ego of his client. But that is not the situation before this court. We have the
Fifth Amendment right, derived from the Constitution, on the one hand, as against the trivia of a
pseudo-criminal statute on the other, which has seldom been brought into play. Clearly the latter
is completely out of focus when placed alongside the client-attorney privilege. An examination of
the Grand Jury testimony sheds little light on their reasoning. The testimony of Mr. Armani
added nothing new to the facts as already presented to the Grand Jury. He and Mr. Belge were
cocounsel. Both were answerable to the Canons of professional ethics. The Grand Jury chose
to indict one and not the other. It appears as if that body were grasping at straws.
It is the decision of this court that Francis R. Belge conducted himself as an officer of the court
with all the zeal at his command to protect the constitutional rights of his client. Both on the
grounds of a privileged communication and in the interests of justice the indictment is
dismissed.
Questions:
1. You may find this video about the People v. Belge case interesting.
2. Why did the court hold that the attorney-client privilege superseded the criminal law
requiring Belge to disclose the location of the victim’s body? Do you agree?
3. What if Garrow had not been convicted of any other crime? Would the attorney-client
privilege have prevented Belge from disclosing the location of the victim’s body
indefinitely?
4. What if Belge had reason to believe the victim was still alive? Would the privilege have
prevented him from disclosing the victim’s location?
The Scope of the Attorney-Client Privilege
Colton v. United States, 306 F. 2d 633 (2d Cir. 1962)
Summary: Attorney Edward E. Colton represented Herbert and Mercedes Matter in
relation to their taxes. The IRS began an investigation of the Matters, and asked Colton
to provide testimony and relevant documents. Colton refused, citing the attorney-client
privilege. The district court ordered Colton to answer certain questions and produce
certain documents, and the circuit court affirmed, holding that those questions and
documents were not privileged.
LUMBARD, Chief Judge.

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These appeals raise questions concerning the propriety of a virtually complete refusal by tax
counsel, primarily on the ground of the attorney-client privilege, to answer questions and
produce files at an examination conducted by special agents of the Internal Revenue Service
concerning the tax liability of a client. We hold that it was proper to require counsel to answer
questions concerning the years during which they performed legal services and the general
nature of the services. We also affirm the order requiring counsel to produce certain documents
or files and to answer relevant questions concerning the nature of papers in their possession.
At some time prior to July 29, 1960, the Internal Revenue Service began an investigation into
the tax liabilities of Herbert Matter and his wife, Mercedes, apparently with a view to possible
criminal prosecution. On July 29, 1960, the Service served identical summonses upon Edward
E. Colton, an attorney, and Lillian Kaltman, an attorney associated with Mr. Colton, directing
them to appear in New York City before special agent Anton Kurtzuk on August 9, 1960 to give
testimony and to bring with them and produce “retained copies of income tax returns,
workpapers, correspondence files, memoranda and all other data relating to the preparation and
the filing of Federal Income Tax Returns for or on the behalf of the Matters covering and
including the years 1951 through 1958.” The appellants state, and the government does not
deny, that special agent Kurtzuk informed Miss Kaltman that “he wished to question the
attorneys about the reasons which the taxpayers gave their counsel for filing certain tax returns
late”; an affidavit submitted by agent Kurtzuk below states the primary purpose of the
investigation in similar language. The Service later consented to the adjournment of the return
date of the summonses to September 21, 1960.
On September 20, 1960, the appellants obtained from the district court an order requiring the
government to show cause why the summonses should not be quashed or modified and staying
compliance. The appellants stated that “the subject matter of Mr. Kurtzuk’s proposed inquiry
would so flagrantly induce a violation of their duty to the taxpayers arising out of the relationship
of attorney and client that this petition was deemed necessary by the petitioners.” Pending the
hearing of the petition, the appellants entered into a stipulation with the government that the
above quoted portion of the summonses be amended to add the phrase “except for such
portions of said testimony and production that are within the attorney-client privilege.” Pursuant
to further terms of the stipulation the appellants appeared to testify on November 23, 1960; the
stipulation provided that if the appearance was not accepted by the Service as adequate
compliance with the summonses, then the petition to quash should proceed for hearing in the
district court.
At the November 23 hearing, Mr. Colton and Miss Kaltman testified only that the Matters were
clients of their firm, refusing to give any substantial information as to the firm’s role, if any, in
preparing the tax returns in question. They had with them records of the firm pertaining to the
Matters, but refused to turn them over to the agents for examination without the consent of the
Matters. Virtually all of the questions asked by the agents were objected to on the basis of the
attorney-client privilege. Dissatisfied with the results of the hearing, the government caused the
appellants’ pending motion to quash to come on for hearing in the district court, on February 28,

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1961. Judge Dawson denied the motion and vacated the stay without opinion, and Mr. Colton
and Miss Kaltman filed their notice of appeal to this court.
Apparently the Internal Revenue Service requested Colton to return for further questioning and
he refused. The Service on March 7, 1961 served on Colton alone a new summons in
substance identical to the earlier ones as modified by the stipulation. Colton again appeared on
March 24, 1961, in response to this second summons, but gave the Service no more
satisfaction than he had at his first appearance, again declining on the basis of the attorneyclient privilege to answer certain questions concerning tax work his firm might have done for the
Matters.
Colton now offers to answer by affidavit thirteen of the questions he objected to at the March 24,
1961 hearing, and the government has accepted the offer, making the appeal moot insofar as
these questions are concerned. The remaining questions, all of which were objected to as
infringing upon the attorney-client privilege, may be grouped under two general headings: those
inquiring into the date and nature of the services performed by the Colton firm for the Matters,
and those relating to the files of the firm which the Service sought to have Mr. Colton turn over
to it.
Those questions which pertain to the date and general nature of the legal services performed by
the Colton firm for the Matters should be answered as they do not call for any confidential
communication. The question numbered 16 in the Internal Revenue Service's transcript of the
hearing, although ambiguous,69 appears to inquire whether in 1951 the firm performed any
services for the Matters other than the preparation of income tax returns. (Colton now agrees to
answer the preceding question, which asked whether or not the firm had prepared, or caused to
be prepared, a 1951 tax return.) Question 18 asked Colton to state the nature of the services he
admitted to having rendered the Matters in the years prior to 1951. In directing Colton to answer
this question, Judge Metzner limited the required information to “general responses, such as
‘litigation,’ ‘drafting of documents,’ ‘tax advice’ and the like,” thus excluding inquiry into specific
details; since the government does not here contest this interpretation, the question remains so
limited for our purposes. Questions 52 and 54 inquire whether the firm performed any legal
services for the Matters during 1954, 1955, 1956 and 1957. Question 55 asks whether the firm
received “any remunerations” for legal services during those four years. Finally, Question 80
asks, “Did you or any member of your firm cause to have prepared a 1953 income tax return for
or on behalf of Herbert and Mercedes Matter in 1954?”
This court has accepted, and few if any lawyers would quarrel with, Dean Wigmore's statement
of the basic principle underlying the attorney-client privilege:
In order to promote freedom of consultation of legal advisers by clients, the
apprehension of compelled disclosure by the legal advisers must be removed; hence the
law must prohibit such disclosure except on the client’s consent.
69

16. Q. Did you or any member of your firm perform any services, other than the preparation of income
tax returns for the year 1951 for Herbert and/or Mercedes Matter?

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It cannot be seriously argued that this policy justifies any member of the bar from refusing to
testify as to all transactions he may have had with any person whom he chooses to designate a
“client.” Thus, according to Judge Wyzanski’s much quoted formulation, it must be shown that:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of the bar of a court, or his
subordinate and (b) in connection with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was informed (a) by his client (b)
without the presence of strangers (c) for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not
(d) for the purpose of committing a crime or tort; and (4) the privilege has been (a)
claimed and (b) not waived by the client.
There can, of course, be no question that the giving of tax advice and the preparation of tax
returns — which unquestionably constituted a very substantial part of the legal services
rendered the Matters by the Colton firm — are basically matters sufficiently within the
professional competence of an attorney to make them prima facie subject to the attorney-client
privilege. But, although the word “communications” must be broadly interpreted in this context,
the authorities are clear that the privilege extends essentially only to the substance of matters
communicated to an attorney in professional confidence. Thus the identity of a client, or the fact
that a given individual has become a client are matters which an attorney normally may not
refuse to disclose, even though the fact of having retained counsel may be used as evidence
against the client. To be sure, there may be circumstances under which the identification of a
client may amount to the prejudicial disclosure of a confidential communication, as where the
substance of a disclosure has already been revealed but not its source.
We find, however, no such special circumstances in the case at bar. Nor was the permissible
inquiry in this regard ended when Colton stated that the Matters were his clients and had been
for some time. The principle that permits inquiry into the existence of a professional relationship
obviously also permits questioning as to the years during which the relationship has continued.
Thus, under the accepted doctrine, there was no basis for Colton’s refusal to answer Questions
52 and 54.
For similar reasons there was no basis for Colton’s refusal to state, in answer to Question 55,
whether he had received any remuneration from the Matters for legal services rendered during
the years 1954 through 1957. Although no question as to the relevancy of the matters inquired
into is before us, we note that the government states that this question is relevant to a
determination whether the attorney-client relationship actually existed, as well as to the propriety
of deductions for legal fees taken by the taxpayers in their returns for those years. Such matters
are surely relevant, and — in the absence of allegations as to special circumstances — we see
no reason why an attorney should be any less subject to questioning about fees received from a
taxpayer than should any other person who has dealt with the taxpayer. There is no further
encroachment here upon any confidential relationship than there is in questioning about the

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existence or date of the relationship. All these matters are quite separate and apart from the
substance of anything that the client may have revealed to the attorney.
Moreover, a determination whether Colton rendered legal services to the Matters in a given year
is proper as a basis for obtaining further unprivileged information from him. Not all
communications between an attorney and his client are privileged. Particularly in the case of an
attorney preparing a tax return (as the questioning agent attempted to establish Colton did for
the Matters), a good deal of information transmitted to an attorney by a client is not intended to
be confidential, but rather is given for transmittal by the attorney to others — for example, for
inclusion in the tax return. Such information is, of course, not privileged.
It was also proper for agent Kurtzuk, in Questions 16 and 18, to inquire into the nature of the
“legal services” rendered by Colton. Attorneys frequently give to their clients business or other
advice which, at least insofar as it can be separated from their essentially professional legal
services, gives rise to no privilege whatever. Indeed, Colton admitted at the Service hearing that
he sometimes gave “a little investment advice” to his clients. Because Colton's work for the
Matters — both legal and non-legal — may thus have involved unprivileged communications
with them, it is proper for the Service in its search for unprivileged matters not only to inquire
into the years during which he rendered “legal services” but also to explore, as it does in
Questions 16 and 18, to some extent the nature of the services rendered. These questions are
appropriate to a determination of what, if any, areas may be inquired into further and what is
protected by the attorney-client privilege. Judge Metzner excluded detailed inquiry into the work
done. Although it would be inappropriate for us to speculate regarding those questions which
might properly be asked in this area, we note that some restriction may be necessary to protect
the privilege and that none of the possible responses called for by Question 18 as now limited
would reveal anything which could be regarded as a communication within the meaning of the
privilege doctrine. Nor do we find anything in Question 80 which calls for the revelation of any
communication by the Matters.
2. The remaining questions, which pertain to documents and files, can be subdivided into two
categories. The colloquy relating to Questions 22, 73, 74 and 75 reflects Colton’s total refusal,
on grounds of the attorney-client privilege, to produce “retained copies of income tax returns,
workpapers, correspondence, memoranda and all other data pertaining to the preparation and
filing of the returns in question” and the fact that before and after the first hearing before the
Service the firm had returned some of these papers to the Matters. The remaining questions
inquire into the general nature of the papers presently or formerly in the firm's possession.
Judge Metzner ordered Colton to answer this last group of questions concerning the nature of
the papers, and held that the privilege did not justify a blanket refusal to produce those
documents and files still in the firm’s possession. He did not require Colton to make any efforts
to recapture any papers no longer in the firm's possession, and the government makes no
contention here that he should have. The judge apparently also held, and in any event the
government now concedes, that the privilege is still available to Colton to the extent of
permitting him to withhold any particular confidential papers which were “specifically prepared

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421
by the client for the purpose of consultation with his attorney” and any of the firm’s memoranda
and worksheets “to the extent of any unpublished expression made by an attorney therein of
confidences which had passed between him and his clients.”
It is self-evident that individual documents and files may still be withheld insofar as they thus are
or report confidential communications between Colton and his clients, the Matters. Documentary
evidence of confidential communications is necessarily privileged as much as testimonial
evidence. Moreover, if a proper showing is made, Colton will be able to raise the Matters’
privilege against self-incrimination as a basis for refusing to produce any independently preexisting records or other documents turned over to the firm by the Matters if the Matters could
have refused to produce them under that privilege.
Clearly Colton’s blanket refusal on the grounds of the attorney-client privilege to produce
anything was unjustified. As we have noted, the attorney-client privilege protects only those
papers prepared by the client for the purpose of confidential communication to the attorney or
by the attorney to record confidential communications, and Colton has not made the necessary
showing that the papers he refused to produce are of such nature.
Insofar as the papers include pre-existing documents and financial records not prepared by the
Matters for the purpose of communicating with their lawyers in confidence, their contents have
acquired no special protection from the simple fact of being turned over to an attorney. It is only
if the client could have refused to produce such papers that the attorney may do so when they
have passed into his possession. Any other rule would permit a person to prevent disclosure of
any of his papers by the simple expedient of keeping them in the possession of his attorney.
Appellant admits in his brief that statements, correspondence, and documents received from
third parties are not protected by the attorney-client privilege, and the principle is obvious. He
argues, however, that in any event such papers are wholly unavailable to the government under
the “work product” rule which the Supreme Court in Hickman v. Taylor held justified an
attorney’s refusal to permit discovery in a civil case of statements obtained by him from
prospective witnesses. We need not reach the government’s contention that the work-product
rule is inapplicable to such administrative investigations as that conducted by the Internal
Revenue Service here, because Colton has made no suggestion that any of the papers involved
were collected or prepared in anticipation of litigation, as must be shown to justify invocation of
this rule.
Because Colton was unjustified in his blanket refusal to produce all of his firm's papers
concerning the Matters, it was, of course, appropriate for agent Kurtzuk to question him at the
hearing concerning the nature of the papers in order to determine which of them were and
which were not privileged. All of the remaining questions are relevant to the government’s
proper attempt to uncover papers not protected under the attorney-client privilege. Questions
23, 25 and 76 have the identical purpose of trying to find out whether the firm’s files contain
documents received from or correspondence with third parties. We have already noted that
papers received from third parties are unprivileged and no theory has been presented on which

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communications from an attorney to a third party are privileged. Question 65 inquires whether
the firm’s “papers contained retained copies of Herbert and Mercedes Matter’s income tax
returns” for the relevant years. Such copies would be unprivileged as not confidential because
by definition they contain no information that was not intended to be given to the Internal
Revenue Service. None of these questions call for any information which could possibly reveal
protected communications. Thus these questions must be answered and the materials they
refer to must be produced.
Questions:
1. Why did the court find information relating to the date and general nature of the legal
services provided by Colton to the Matters was not privileged? Do you agree?
2. Why did the court found that the identity of a client is not privileged? Do you agree?
3. Why did the court find that pre-existing documents provided to Colton were not
privileged? Could the government draw incriminating inferences from the fact the
Matters provided those documents to Colton? Should that matter for the purpose of the
attorney-client privilege?
Confidentiality & Privilege
X Corp. v. Doe, 805 F. Supp. 1298 (E.D. Va. 1992)
ELLIS, District Judge.
Few problems are as vexing as determining what evidence justifies a lawyer's disclosure of a
client’s confidential information and documents, which the lawyer believes reflect an ongoing or
future crime or fraud. This case presents precisely this problem. Plaintiff, X Corp. brings this suit,
in part, to prevent defendant, John Doe, X Corp.’s former in-house counsel, from disclosing X
Corp.’s confidential information and documents retained by Doe following his discharge from X
Corp. X Corp. also seeks return of the documents. In support of the relief sought, X Corp. cites
the attorney-client privilege, the parties’ confidentiality agreement, and the lawyer’s general duty
to preserve a client’s confidences. For his part, Doe claims that the documents in issue disclose
ongoing civil and criminal frauds perpetrated by X Corp. against the federal government. As
such, according to Doe, the documents fall within the public policy crime-fraud exception to the
attorney-client privilege and to any general or contractual duty of confidentiality.
The matter is before the Court on X Corp.’s motion for a preliminary injunction. For the reasons
stated here, the motion is granted in part and denied in part.
Facts
X Corp. hired Doe in March 1989 as a member of its in-house legal staff based in Northern
California. Formerly an Associate Deputy Attorney General of the United States and Chief of
Staff to the Attorney General, Doe was a member of the bar of the state of Pennsylvania. When

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he was hired, Doe executed an “Employment, Invention and Confidential Information
Agreement,” in which he expressly agreed (i) to return to X Corp. all records obtained during, or
in connection with, his employment and (ii) to preserve X Corp.’s confidential information.
Thereafter, in the course of his employment, Doe regularly received confidential information
from X Corp. management and its employees in order to provide legal opinions and advice.
During approximately two years with X Corp., Doe apparently excelled; his professional
performance was regarded as excellent. Eventually he was promoted to Group Counsel with
primary responsibility worldwide for X Corp.’s compliance with numerous government
regulations and antitrust laws.
In November 1990, Doe was transferred from X Corp.’s California office to Virginia as X Corp.'s
only United States-based lawyer outside California. The parties sharply dispute the reason for
the transfer. In X Corp.’s view, the transfer occurred because Doe failed the California bar
examination. Doe, on the other hand, asserts that he initiated the transfer to escape California’s
high cost of living and because he and his wife wanted to live closer to their relatives in Virginia.
Doe also contends that X Corp. negotiated with him to retain his services because he was “an
important contributor and asset” and because X Corp. wanted to locate a regulatory and
antitrust attorney near Washington, D.C.
X Corp. terminated Doe’s employment effective February 28, 1992, providing him with thirty-one
weeks severance pay. The reason for Doe’s discharge is as hotly disputed as the reason for the
transfer. X Corp. claims Doe was laid-off as part of a company-wide reduction in force involving
over 700 employees. Doe counters, however, that he was unlawfully fired in retaliation for
actions X Corp. believed he was taking in furtherance of a possible qui tam suit. On leaving X
Corp.’s employ, Doe took with him copies of certain documents and files, leaving the originals
with X Corp. Doe claims these documents reveal that X Corp. is defrauding the federal
government, in violation of the False Claims Act.
X Corp.’s complaint asserts breach of the Confidentiality Agreement. X Corp. claims that filing
this action was necessary to prevent disclosure of X Corp.’s confidential information in the event
Doe filed his draft complaint on the public record. That circumstance never materialized.
Following oral argument, the Court took the matter under advisement. Doe, by counsel, agreed
to refrain from further disclosures of X Corp.’s claimed confidential information until the Court's
ruling.
Analysis
Without doubt, this litigation presents “grave or serious questions,” questions involving difficult
and troubling ethical issues arising in the context of attorney-client confidentiality. Few questions
are graver or more serious in the practice of law than determining what evidence of crime or
fraud justifies a lawyer’s disclosure of his client’s confidential information. Moreover, allegations
of attorney misconduct, or even potential misconduct, engender significant and serious
questions of professional conduct critical to the client, to the accused attorney, and to the bar as

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a whole. Such allegations, regardless of their veracity, erode the already fragile public
confidence in the legal profession and in the administration of justice. And it is undeniable that
our legal system cannot function effectively unless the public has confidence in the integrity and
competence of the system and its participants. Thus, it is paramount that lawyers understand
and abide by settled and accepted norms of professional conduct. But even settled and
accepted norms frequently provide inadequate or ambiguous guidance in the face of specific
factual circumstances. So it is here.
This litigation focuses on two professional standards of attorney confidentiality — (i) the
evidentiary attorney-client privilege and (ii) the broader ethical duty of confidentiality — and their
application to the specific facts presented. Understanding the distinction between these two
standards is essential to the matter at bar. For that reason, it is worth describing them here in
some detail.
The first of these standards, the evidentiary attorney-client privilege, is quite familiar, and the
principles associated with it are well-settled. This evidentiary privilege applies to disclosures of
certain types of confidences communicated between client and attorney during the course of the
attorney's representation of the client. To prevent such disclosures, the client, through counsel
or otherwise, may invoke the privilege. The purpose of the attorney-client privilege is to
encourage full and frank communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and administration of justice. The
privilege recognizes that sound legal advice or advocacy serves public ends and that such
advice or advocacy depends upon the lawyer's being fully informed by the client.
Nevertheless, because it “impedes the full and free discovery of the truth,” and is “in derogation
of the public’s ‘right to every man's evidence,’” the attorney-client privilege is not “favored” by
federal courts. Accordingly, the privilege is narrowly construed to apply only to those situations
in which the party invoking the privilege consulted an attorney for the purpose of securing a
legal opinion or services and in connection with that consultation communicated information
intended to be kept confidential.
The evidentiary attorney-client privilege, while more familiar, is not the lawyer’s only duty of
confidentiality to a client. Too often unrecognized is the broader ethical duty of an attorney to
preserve a client’s confidences and secrets that may fall outside the attorney-client privilege.
The leading case discussing this ethical duty is the Fifth Circuit's decision in Brennan’s Inc. v.
Brennan’s Restaurants, Inc. There, defendants took the position that the attorney-client privilege
barred an attorney from further representation of a former joint client. The Fifth Circuit
disagreed, noting that “the fundamental flaw in defendants’ position is a confusion of the
attorney-client evidentiary privilege with the ethical duty to preserve a client's confidences.” The
panel held that although a former joint client could not assert the attorney-client privilege as to
matters encompassed by the former joint representation because confidences cannot arise
between joint clients, a broader ethical duty protects joint clients. In this regard, the court stated:

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Information acquired from a client is sheltered from use by the attorney against his client
by virtue of the existence of the attorney-client relationship. This is true without regard to
whether someone else may be privy to it. The obligation of an attorney not to misuse
information acquired in the course of representation serves to vindicate the trust and
reliance that client's place in their attorneys. A client would feel wronged if an opponent
prevailed against him with the aid of an attorney who formerly represented the client in
the same matter this would undermine public confidence in the legal system as a means
for adjudicating disputes.
As the Fifth Circuit sensibly recognized in Brennan’s, attorney confidentiality is essential to
sustaining public confidence in the legal profession and the legal system. Clients therefore have
a right to enforce that confidentiality, absent specific circumstances abrogating that right. Of
course, an attorney’s duty to his client is limited by his duty to comply with the law and the
standards of professional conduct.
Consistent with most jurisdictions, Virginia recognizes a broad duty of confidentiality in Canon 4
of the Virginia Code of Professional Responsibility, which states: “A Lawyer Should Preserve
the Confidences and Secrets of a Client.” The corresponding Disciplinary Rules provide in
relevant part:
DR4-101. Preservation of Confidences and Secrets of a Client. — (A) “Confidence”
refers to information protected by the attorney-client privilege under applicable law, and
“secret” refers to other information gained in the professional relationship that the client
has requested be held inviolate or the disclosure of which would be embarrassing or
would be likely to be detrimental to the client.
(B) Except as provided by DR 4-101(C) and (D), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or a third person,
unless the client consents after full disclosure.
Thus, mandatory Disciplinary Rule 4-101 defines two categories of protected information: (i) a
narrow category of “confidences,” comprising information protected by the attorney-client
privilege, and (ii) a broader category of “secrets,” encompassing “other information gained in the
professional relationship that the client has requested be held inviolate or the disclosure of
which would be embarrassing or would be likely to be detrimental to the client.” In distinguishing
between these two categories, Virginia has manifest its intention to protect from disclosure a
range of communications broader than that protected by the attorney-client privilege.
Confidentiality of both categories of information must be maintained. Yet the duty of
confidentiality imposed by the Virginia Code of Professional Responsibility is not absolute. A
lawyer may reveal confidences and secrets in specific circumstances.

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Yet despite its similar purpose, DR 4-101(C)(3) "clearly establishes” standard imposes a heavier
burden on the party seeking disclosure than the prima facie standard of the crime-fraud
exception to the attorney-client privilege. In other words, matters subject to the attorney-client
privilege seem to be less stringently protected from disclosure than matters subject to the
ethical privilege. This, at first blush, seems puzzling, indeed paradoxical, for one would think
that the attorney-client privilege deserves the greater protection. On reflection, however, the two
different standards make sense given that they apply in different contexts. Succinctly put, the
evidentiary attorney-client privilege arises only where disclosures are sought to be compelled in
some litigation context, whereas the broader ethical duty arises in the context of voluntary or
uncompelled disclosures, typically outside a litigation context. More particularly, the attorneyclient privilege is an evidentiary privilege applicable where someone seeks to compel an
attorney or his client to reveal communications between lawyer and client made for the purpose
of securing a legal opinion or legal services and intended to be kept confidential. Thus, the
privilege arises in the context of litigation and is therefore subject to discipline of the adversary
process and the safeguard of judicial scrutiny, if the affected client invokes the privilege and the
opposing party seeks to overcome it. Significantly, however, the evidentiary attorney-client
privilege does not control where disclosures occur, or potential disclosures are contemplated, in
circumstances involving uncompelled disclosure and no judicial scrutiny. In such circumstances,
the ethical duty — with its appropriately higher standard of protection against unwarranted
disclosure of suspected fraudulent activities — governs.
Given this, in proving its claim that Doe is obligated to maintain its confidences pursuant to the
ethical duty, X Corp. bears the initial burden of establishing that the duty exists and that the
disputed communications are subject to it. To do so, X Corp. must show, inter alia, that the
communications sought to be protected are “confidences” or “secrets” within the meaning of
Virginia Code of Professional Responsibility DR4-101(A). If X Corp. carries this burden and
establishes that Doe is ethically bound not to disclose this material, the burden then shifts to
Doe.
Conclusion
In sum, the Court concludes that plaintiff’s motion for preliminary injunction should be granted in
part and denied in part. Specifically, an appropriately tailored preliminary injunction will issue
with respect to disclosure of X Corp.’s claimed confidential information and documents.
Questions:
1. How is the duty of confidentiality different from the attorney-client privilege?
2. Why did the court hold that the information at issue is covered by the duty of
confidentiality, rather than the attorney-client privilege?

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5.4: Applying the Attorney-Client Privilege
Pay no mind to what they say, it doesn’t matter anyway, our lips are sealed.70
The fiduciary duty of confidentiality protects confidential communications between attorneys and
their clients, as described in the Model Rules of Professional Conduct. The attorney-client
privilege also protects certain confidential communications between attorneys and their clients,
but it is not described by the Model Rules of Professional Conduct. In contrast to the duty of
confidentiality, which imposes a fiduciary duty on attorneys, the attorney-client privilege is a
common law doctrine that creates an evidentiary privilege for certain confidential attorney-client
communications, specifically communications for the purpose of obtaining or providing legal
advice.
The attorney-client privilege was created by the courts, and its scope is defined by the courts.
Accordingly, the attorney-client privilege differs from jurisdiction to jurisdiction. However, the
Restatement of the Law Governing Lawyer describes the paradigmatic form of the attorneyclient privilege.
Federal Rule of Evidence 501: Privilege in General
The common law - as interpreted by United States courts in the light of reason and experience governs a claim of privilege unless any of the following provides otherwise:
●
●
●

the United States Constitution;
a federal statute; or
rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law
supplies the rule of decision.
Restatement (Third) of the Law Governing Lawyers § 68 (2000): Attorney-Client Privilege
Except as otherwise provided in this Restatement, the attorney-client privilege may be invoked
with respect to:
1. a communication
2. made between privileged persons
3. in confidence
4. for the purpose of obtaining or providing legal assistance for the client.
Restatement (Third) of the Law Governing Lawyers § 69 (2000): “Communication”

70

The Go-Gos, Our Lips Are Sealed, Beauty and the Beat (1981).

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A communication within the meaning of § 68 is any expression through which a privileged
person, as defined in § 70, undertakes to convey information to another privileged person and
any document or other record revealing such an expression.
Restatement (Third) of the Law Governing Lawyers § 70 (2000): “Privileged Persons”
Privileged persons within the meaning of § 68 are the client (including a prospective client), the
client's lawyer, agents of either who facilitate communications between them, and agents of the
lawyer who facilitate the representation.
Restatement (Third) of the Law Governing Lawyers § 71 (2000): “In Confidence”
A communication is in confidence within the meaning of § 68 if, at the time and in the
circumstances of the communication, the communicating person reasonably believes that no
one will learn the contents of the communication except a privileged person as defined in § 70
or another person with whom communications are protected under a similar privilege.
Restatement (Third) of the Law Governing Lawyers § 72 (2000): Legal Assistance as the
Object of a Privileged Communication
A communication is made for the purpose of obtaining or providing legal assistance within the
meaning of § 68 if it is made to or to assist a person:
1. who is a lawyer or who the client or prospective client reasonably believes to be a
lawyer; and
2. whom the client or prospective client consults for the purpose of obtaining legal
assistance.
Who is a “Privileged Person”?
State v. Spell, 399 So. 2d 551 (La. 1981)
Summary: Jenkins, an inmate of the prison, worked at the law library. Defendant argues
that Jenkins was acting as an attorney when the inculpatory statements were made.
Jenkins wasn’t an attorney and didn’t hold himself out as a lawyer. Defendant knew
Jenkins was not an attorney and voluntarily gave information to Jenkins. The
communication is not subject to the attorney-client privilege.
JASPER E. JONES, Justice Ad Hoc.
Thomas Rhuel Spell was charged by grand jury indictment with the crime of second degree
murder of Ricky Mire. On December 20, 1979 defendant was convicted before a jury of twelve
by a vote of eleven to one. The defendant was sentenced to life imprisonment without eligibility
for parole, probation, or suspension of sentence for forty years.

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Defendant appealed his conviction. While the case was pending on appeal, defendant filed a
motion for new trial based upon a contention that he had discovered new evidence which, if it
had been introduced at trial, would probably have changed the verdict of guilty. The defendant's
new trial motion contended that the new evidence could not have been discovered by him
before or during the trial. This court remanded the case to the trial court for a hearing on
defendant’s motion for a new trial.
Following a hearing on the new trial motion the trial court denied the new trial. The case is now
before this court on the merits of the appeal which were not considered before the remand.
The evidence at trial reflected the following facts:
On November 12, 1975, at about 4:00 p. m., Anthony Broussard was driving his car in the south
part of Crowley, La. in the Parish of Acadia when he was stopped by defendant. Defendant
asked Broussard to take him for a ride, and Broussard agreed to the request. Shortly after
Broussard and defendant commenced their ride they observed Ricky Mire walking down the
street. Defendant had Broussard stop and defendant went and talked to Mire. Mire returned to
Broussard’s car with defendant and got into the car with Broussard and defendant.
At defendant's direction Broussard drove to an isolated area in Crowley near a dried-up
drainage canal and stopped. Mire and defendant got out of the car, and while Mire was standing
near the front of the vehicle, defendant secured the car keys from Broussard, opened the trunk
of the car and removed from it a tire tool. Mire and defendant then walked out of sight in the
direction of the drainage ditch. Defendant carried the tire tool with him as he left the vehicle.
Soon after defendant and Mire disappeared from view Broussard got out of the car and went in
search of them and found them a short distance away, apparently over the drainage ditch levee.
Broussard observed defendant push Mire who was in front of him. Broussard then returned to
his car. After the elapse of about ten minutes defendant returned to Broussard’s vehicle without
Mire and advised Broussard not to ask any questions and to return him to his car which he had
left at the point where he had entered Broussard's vehicle.
Broussard did not see the tire tool in defendant’s hands when he returned to the car, but he
heard defendant drop it upon the floor. When the pair arrived back at defendant’s car, defendant
got out of Broussard’s car and the tire tool was not left in Broussard’s vehicle. Broussard did not
see defendant take the tire tool out of his car.
At about 5:00 p. m. that afternoon, three horseback riders found Mire in the drainage ditch
apparently unconscious with his head and face covered with blood. There was a lot of blood on
the ground near Mire. They notified the sheriff’s office who obtained an ambulance and carried
Mire to a Crowley hospital where his head was bandaged in the emergency room. The parish
coroner arrived at 6:30 p. m. and observed that Mire was in a critical condition and ordered his
immediate transfer to a Lafayette hospital where Mire died at 9:35 p. m. that night.

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Mire’s body was returned to Crowley and examined by the parish coroner who testified he died
from several head injuries that appeared to have been caused by a blunt instrument with a
sharp end.
ASSIGNMENT OF ERROR
Defendant contends that the trial judge erred in admitting over his objection the testimony of
Ronald Jenkins that defendant had told him he had killed the victim. Defendant contends that
these inculpatory statements were made to Jenkins in confidence and were therefore
inadmissible. Jenkins, an inmate of the prison, was assigned to the law library to help other
prisoners with their legal problems by writing letters, preparing pleadings, and otherwise giving
them whatever advice he could. Defendant contends that the information was a privileged
communication because Jenkins was acting as an attorney in the law library at the Dixon
Correctional Institute when the inculpatory statements were made to him by defendant.
Defendant cites no authority for his contention.
Jenkins was not an attorney and did not hold himself out as a lawyer. Defendant knew that
Jenkins was a fellow inmate in the prison and was not an attorney. He voluntarily gave the
information to Jenkins. The communication is not subject to the attorney-client privilege. In the
case of State v. Lassai, the court rejected the contention that a communication given by the
defendant to a counselor at a drug abuse center was privileged where communications to
certified social workers are classified as privileged communication. The court there said:
Nor does the record disclose a privilege which would prevent the evidentiary use of an
admission by defendant to the director of counseling at the Euterpe Center; it was not
shown that she was a social worker, and for that reason R.S. 37:2714 is not applicable.
Privileges are narrowly construed, and will not be extended to the counselor solely
because she was “in the same position” as a physician or social worker.
Defendant’s inculpatory statements to Jenkins were not subject to any privilege.
Questions:
1. What if Jenkins had been an imprisoned attorney?
2. Can Jenkins effectively provide legal advice to the prisoners if their communications with
him are not privileged?
Jones v. US, 828 A. 2d 169 (DC App. 2003)
Summary: The police contacted Stacy Jones about the murder of Darcie Silver, and
asked for a DNA sample. Jones called his girlfriend, Tina Ducharme, an attorney
employed by the federal government, and asked her for advice. Later, Jones was
arrested and charged with murder. Ducharme testified at the trial. Jones argued that

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their telephone conversation was protected by the attorney-client privilege. The trial
court disagreed, and the appellate court affirmed.
TERRY, Associate Judge:
After a jury trial, appellant was convicted of first-degree burglary, first-degree sexual abuse, firstdegree felony murder, and second-degree murder. On appeal he contends that the trial court
erred when it ruled that the attorney-client privilege did not require the exclusion of testimony
about a conversation that appellant had with his girlfriend (at the time), who was an attorney
employed by the federal government. We affirm on the merits, and remand for the sole purpose
of vacating a redundant conviction.
I
On Saturday, March 23, 1996, at about 10:00 a.m., Metropolitan Police officers found Darcie
Silver dead in her apartment after they received a call from her concerned co-workers reporting
that she had failed to show up for work. The medical examiner determined that the cause of
death was asphyxia by strangulation; other injuries indicated that she might also have been
smothered. In addition, there were burns around her genital area; pieces of burned newspaper
were found in the vicinity of her crotch. A vaginal swab revealed the presence of male
deoxyribonucleic acid (DNA). In addition, investigators found semen stains on Ms. Silver’s
nightgown and on a denim jacket recovered from her apartment. The DNA evidence was later
matched to appellant through testing by the FBI.
A police investigation revealed that on Friday evening, March 22, Ms. Silver had dinner with a
co-worker from her job at Bread & Circus, a supermarket in the Georgetown area of the city.
She returned to her apartment at approximately 10:00 p.m. and spoke to her father on the
telephone from 10:47 p.m. on Friday until 12:03 a.m. on Saturday.
Two neighbors in Ms. Silver’s apartment building heard a knocking at the front door of the
building at about 2:30 a.m. on Saturday. One of the neighbors looked out a window and saw a
“stocky” man with a fair to medium complexion at the door. This description was similar to that
of appellant, who is a weightlifter and bodybuilder. Both neighbors heard the man respond to the
building intercom using the name “Darcie.” They then heard him say that he had locked himself
out of his apartment and needed to borrow a telephone. The intercom made a buzzing noise,
which unlocked the front door, and the man walked upstairs to the area of Ms. Silver’s
apartment. About fifteen minutes later, one neighbor heard a “crash” coming from Silver’s
apartment, and the other heard a loud “thump.”
II
Appellant’s primary argument on appeal is that the court erred when it ruled that the attorneyclient privilege did not attach to a conversation that he had with his girlfriend at the time, Tina
Ducharme, who was also a lawyer.

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After Darcie Silver was murdered, the police interviewed several employees, including
appellant, at the Bread & Circus store where Ms. Silver worked. The police requested hair and
blood samples from appellant, but he declined to give them. He told the police that his girlfriend
was a lawyer and that he “wanted to talk to her first and he even invited them to come to his
house to talk to them if they wanted to, but only in her company.” Later appellant called his girl
friend, Tina Ducharme, a lawyer who worked for the federal government. At the time, she was
away on business in San Diego. Appellant left a message at her hotel there, and she returned
his call some time thereafter.
During their telephone conversation, appellant told Ms. Ducharme about the police interview at
Bread & Circus. Defense counsel moved to exclude any testimony from Ms. Ducharme about
that conversation. At a pre-trial hearing on the motion, Ms. Ducharme testified that appellant
“told me that the police had been by his work and had questioned him and several other people
who used to work with Darcie and had asked for blood samples from several individuals.” Ms.
Ducharme’s response to appellant’s concern was that “obviously he didn’t have to provide the
police with a sample if they didn’t have a warrant.” She also asked him, however, “why he
wouldn’t, since it would clear the air. Obviously he didn't have anything to do with it or didn’t
have anything to be concerned about. I didn't understand why he wouldn’t just go ahead and do
it.” Appellant also told her that “he had been in Darcie’s apartment before, and he questioned
whether or not some fingerprints of his would be remaining in the apartment,” particularly on
some drinking glasses. Ms. Ducharme replied with the “common sense advice” that “probably
Darcie had washed her glasses in the intervening amount of time.” Finally, appellant asked
“what if he had gone to the bathroom and left some sperm in there?” Ms. Ducharme laughed
and commented that “unless he was masturbating in her bathroom, I really didn't think that
would be a concern.” Ms. Ducharme testified that appellant never said anything about her
representing him in a criminal matter, nor did she intend to advise appellant as a lawyer, adding,
“I wasn't qualified to advise anyone on criminal matters.” Appellant, in fact, had never asked her
to perform any legal work on his behalf. Besides, she said, she was barred by a regulation from
representing any private individual “either criminally or civilly” because she was a government
lawyer. Further, she believed the conversation was a typical call between boyfriend and
girlfriend: “when either of us had a problem, we would call the other person to ask their advice
or tell them about it.”
Appellant’s account of the conversation was different. He stated that he telephoned Ms.
Ducharme because he “wanted to know what kind of position I would be putting myself in by
giving hair and blood samples.” Appellant said that he called her “because she’s an attorney”
and that he “was seeking legal advice.” He testified, “I never thought she could be subpoenaed
or anything because she was an attorney.” On the basis of his prior experience with other
attorneys, appellant believed their conversation would remain confidential.
At the close of the hearing, the court ruled that the conversation was not protected by the
attorney-client privilege. Accepting Ms. Ducharme’s version of the conversation as credible, the
court found appellant’s testimony incredible because he “kept switching around on the witness

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stand as if he was waiting on which way to go.” In addition, the court ruled that the only thing
Ms. Ducharme “said as a lawyer” was that appellant did not have to give the police hair and
blood samples, which he had already elected not to do. Otherwise, said the court, the types of
questions appellant asked Ms. Ducharme were “what if” questions that were more scientific than
legal:
They were questions about—they’re scientific questions. And she wasn’t a criminal
lawyer to begin with. What if I used a glass, would the fingerprints still be there? Not a
legal question. What if I went to the bathroom, would I have semen there? That’s not a
legal question. None of these were legal questions. The only legal question in this thing
he already knew the answer to.
As a result, the court refused to allow appellant to invoke the attorney-client privilege, and Ms.
Ducharme’s testimony about the telephone conversation was later introduced into evidence at
trial.
In the case at bar, the court heard testimony about the nature and substance of the
conversation between appellant and his one-time girl friend, Ms. Ducharme. It made a credibility
determination about the contents of the conversation and a factual finding that Ms. Ducharme
was not acting as an attorney, but as a friend. On this record we see no reason to depart from
our usual standard of review for factual findings by a trial court; i.e., we must uphold that court's
determination of the facts unless it is “plainly wrong or without evidence to support it.” In
particular, a trial court's “findings of fact relevant to the essential elements of a claim of attorneyclient privilege will not be overturned unless clearly erroneous.” This standard of review places a
heavy burden on appellant. Because appellant has not shown that the trial court’s factual
findings were clearly erroneous or, in the words of our statute, “plainly wrong,” we uphold the
court’s rejection of his claim of privilege.
The attorney-client privilege is the oldest of the established privileges for confidential
communications. Its main purpose is to encourage full and frank communication between
attorneys and their clients. Nevertheless, courts construe the attorney-client privilege narrowly
to protect only those purposes which it serves. Thus the privilege applies only in the following
circumstances:
(1) where legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the protection be waived.
The burden of proving that the attorney-client privilege shields a particular communication from
disclosure rests with the party asserting the privilege. This means that the party asserting the
privilege must clearly show that the communication was made “in a professional legal capacity.”
“In general, American decisions agree that the privilege applies if one of the significant purposes
of a client in communicating with a lawyer is that of obtaining legal assistance.”

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Whether a purpose is significantly that of obtaining legal assistance or is for a nonlegal purpose
depends upon the circumstances, including the extent to which the person performs legal and
nonlegal work, the nature of the communication in question, and whether or not the person had
previously provided legal assistance relating to the same matter.
In the case of someone seeking advice from a friend who is also a lawyer, the lawyer-friend
must be giving advice as a lawyer and not as a friend in order for the privilege to attach. The
nature of the relationship is a factual question for the trial court to decide.
Finally, the relationship between attorney and client hinges on the client’s intention to seek legal
advice and his belief that he is consulting an attorney. In this case the government argues that
the conversation in question was not privileged because Ms. Ducharme was not a criminal
lawyer; because, as a government employee, she was barred by a regulation from representing
appellant—or any other individual—in a private capacity; and because she believed that she
was speaking to appellant as his girlfriend and not as a lawyer.71 These arguments fall short,
however, because the intent of the person seeking advice is assessed from that person's
viewpoint, not that of the attorney. The issue ultimately is what appellant believed when he was
seeking advice and whether his belief about the confidentiality of the conversation was
reasonable. Thus Ms. Ducharme’s understanding of the conversation and of why appellant had
called her is relevant only to whether appellant reasonably believed he was consulting her as an
attorney, with the protections that such a relationship provides.
Guided by these principles, we agree with the trial court that appellant failed to make the clear
showing necessary to establish that his conversation with Ms. Ducharme was within the
protection of the attorney-client privilege. We note that the trial court found appellant’s testimony
incredible, in part, because he appeared to have tailored his testimony to fit the legal standard
for the privilege, which counsel and the court had discussed in front of him during the hearing.
The court said to defense counsel:
It's the court's observation that appellant is very bright. And I was especially fond of his
answer to counsel’s last question about whether he heard me. Then counsel and I had
this legal discussion, at which time your client then answered the question, he didn’t
understand the concept. It’s as if we helped him answer the question, the two of us.
In addition, the court ruled that the questions appellant asked Ms. Ducharme were not “legal”
questions. The court noted that appellant knew his rights when he refused to provide blood and
hair samples to the police. According to Ms. Ducharme, whose testimony the court expressly
credited, appellant did not inquire about his right not to give samples without a warrant, but

71

During the evidentiary hearing, defense counsel attempted to impeach Ms. Ducharme with her grand
jury testimony. Before the grand jury, Ms. Ducharme initially testified that she gave appellant advice “as a
lawyer,” but then stated a few moments later that appellant had called her “as his girlfriend.” The trial
court presumably considered this discrepancy but nevertheless found Ms. Ducharme credible.

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instead asked “scientific” questions about whether or not his fingerprints might remain on a
glass or whether his semen and hair might be discovered in the bathroom.
While such concerns about “bad facts” might fall within the privilege if they were expressed in a
communication within a clearly established attorney-client relationship, we conclude, like the
trial court, that appellant failed to establish that, as a matter of fact, such a relationship existed
between him and Ms. Ducharme. We see no reason to upset the court’s conclusion, which
rested largely on its determination that Ms. Ducharme was credible and that appellant was not.
We find no error in that determination.72
Questions:
1. Why did the court hold that the communications at issue were not protected by the
attorney-client privilege?
2. If Jones had been speaking to hired or appointed counsel, would the communications at
issue have been protected by the attorney-client privilege?
What is a “Communication”?
In re Grand Jury Proceedings, 791 F. 2d 663 (8th Cir. 1986)
BRIGHT, Senior Circuit Judge.
Janet Cheetham appeals from the district court’s denial of her motion to quash a subpoena
requiring her testimony before a grand jury investigating one of her clients. We affirm.
I. BACKGROUND.
A grand jury is investigating John Doe on suspicion of bank and credit card fraud. As part of its
investigation, the grand jury seeks photographs and handwriting exemplars of Doe for
comparison with signatures used on the fraudulent documents.
The Immigration and Naturalization Service has produced documents purporting to bear the
signatures and photograph of Doe. These documents also bear the signature of Cheetham
attesting that she prepared the documents. Cheetham represented Doe in INS matters
unrelated to the grand jury proceedings, and does not represent Doe in the grand jury
investigation.
The grand jury subpoenaed Cheetham to testify regarding the authenticity of Doe’s signatures
and photograph on the INS documents. Cheetham brought a motion to quash before the
72

The government argues that even if there was error in the admission of the conversation, the error was
harmless because the case against appellant was strong, noting in particular the DNA evidence and the
testimony of the two neighbors. Given our conclusion that the conversation between appellant and Ms.
Ducharme was not protected by the attorney-client privilege, we need not reach this issue.

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magistrate, which was denied. She appealed to the district court, which also denied her motion
and ordered her to testify.73 Cheetham brings this appeal, contending that the district court erred
in concluding that her testimony would not be protected by the attorney-client privilege, and in
not requiring the Government to prove the need for her testimony through affidavit.
II. DISCUSSION.
The common law rule of attorney-client privilege74 extends only to confidential communications
from a client to his or her attorney. Confidential communications encompass that information
communicated on the understanding that it would not be revealed to others, and to matters
constituting protected attorney work product. The identity of one’s client usually falls outside the
scope of the attorney-client privilege. Moreover, matters existing in the public eye, such as a
person’s appearance and handwriting, are generally not confidential communications because
they were not exposed on the assumption that others would not learn of them. Indeed, in this
case, Doe voluntarily revealed his signatures and photograph to the INS.
Cheetham contends that the attorney-client privilege should apply here because the information
sought might tend to incriminate her client. She argues that any information gained by an
attorney in her relationship with a client is privileged if exposure of the information might
become a link in a chain of evidence connecting her client with a crime. Cheetham asserts that
she gained the information sought by the grand jury during her legal relationship with Doe, and
that her testimony could provide the necessary link between Doe and the fraudulent scheme.
We disagree. It is true that certain information ordinarily outside the privilege may become
privileged if, by revealing the information, the attorney would necessarily disclose confidential
communications. Nonprivileged information is not suddenly transformed into confidential
communications, however, whenever it becomes relevant to a criminal investigation or
prosecution of a client. We conclude that the information sought by the grand jury does not
constitute confidential communications protected by the attorney-client privilege.
When is a Communication “In Confidence”?
73

Cheetham was ordered to answer these specific questions:
1. Do you know John Doe?
2. When did you first meet him?
3. How many times have you met with him in person?
4. Would you recognize him if you saw him again?
5. Did you (or someone from your office) prepare Exhibits 1-5 [the INS documents] at his request?
6. Is the photograph on Exhibits 1 and 2 a true likeness of John Doe?
7. Did you witness John Doe sign his name on Exhibits 1-5?
8. If not, do you know who, if anyone, witnessed the signature?
74
Cheetham seeks to invoke the Texas statutory attorney-client privilege as controlling in this action. The
“Texas Rule” provides that “an attorney shall not disclose any other facts which came into knowledge of
such attorney by reason of such relationship.” However, questions of privilege are governed by the
common law as interpreted by federal courts in the absence of a relevant Supreme Court rule, federal
statute, or constitutional provision. We therefore apply the common law rule in this action, and not the
Texas Rule.

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Hofmann v. Conder, 712 P. 2d 216 (Utah 1985)
PER CURIAM.
This matter comes before the Court in an extraordinary proceeding to prohibit the district court
from compelling petitioner’s hospital nurse to testify about statements she overheard petitioner
make to his attorney. The trial court made no findings of fact, although it prepared a
memorandum decision. It appears from that decision that the controlling issue on which the trial
court decided the matter was a legal one, namely, the standard determining when the presence
of a third party during communications between a lawyer and client results in a waiver of the
attorney-client privilege. We hold that the trial court erred in deciding that the attorney-client
privilege applies only if the presence of a third person, who overhears a confidential
communication, is “necessary for urgent or life-saving procedures.” The proper standard is
whether the third person’s presence is reasonably necessary under the circumstances.
The record establishes that the presence of petitioner’s hospital nurse was reasonably
necessary under the circumstances. The threshold question of whether the communication was
intended to be confidential was not ruled on by the trial court, or at least the judge’s decision
gives us no indication of his having made any factual findings on that question. Although there
are ambiguities in the record, the totality of the circumstances surrounding petitioner’s
communications to his attorney require the inference that the communication was intended to be
confidential and within the protection of the statutory privilege. Immediately before the
communication, petitioner had requested the presence of his attorney, he had stated that he
would not make a statement to the police that night, and he had acquiesced in the request of his
attorney that the police and hospital security personnel not only leave the room but also go far
enough away to be out of earshot. Given his helpless physical condition and the intensive
nature of the hospital care he had been receiving throughout the evening and during this
incident, we cannot infer that petitioner intended his communications to his attorney to be public.
Since the presence of the hospital nurse was reasonably necessary under all the
circumstances, the privilege was not waived because of that presence.
The order of the trial court is vacated, and this matter is remanded for the entry of a protective
order preventing the disclosure by the witness of confidential communications overheard by her.
ZIMMERMAN, Justice (dissenting).
I agree that Judge Conder applied the wrong standard in concluding that the presence of the
nurse made the attorney-client privilege unavailable. A third person’s presence should not avoid
an otherwise available privilege if the third person’s presence is reasonably necessary under the

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circumstances. The evidence indicates that the nurse’s presence was reasonably necessary for
Hofmann’s well-being.75
I disagree with the result reached by the Court, however, and would uphold the ruling below,
because I conclude that petitioner has not met the threshold requirement for claiming an
attorney-client privilege — petitioner has failed to establish that the communication between the
client and the attorney was intended by the client to be confidential. “The mere fact that the
relationship of attorney and client exists between two individuals does not ipso facto make all
communications between them confidential. The circumstances must indicate whether by
implication the communication was of a sort intended to be confidential.” I think the Court slights
this inquiry. By failing to carefully consider the question of the client’s intent, courts may shield
from scrutiny communications that the privilege was not created to protect.
There is evidence in the record sufficient to establish that the attorney thought the
communication was at least private and perhaps confidential. However, I find the record very
sparse on the question of the client’s intention. Although the client was available to give an
affidavit in support of his claim of privilege, the record is strangely devoid of direct evidence as
to the client’s state of mind at the time of the communication. As for the facts and circumstances
in the record that constitute indirect evidence of his intent, I find them ambiguous at best. All
persons must give evidence, unless they establish a recognized justification for refusing to do
so. Petitioner has the burden of establishing that the communication was privileged. On the
present state of the record, I conclude that petitioner has not carried this burden. Therefore, I
would uphold the trial court’s refusal to find the communication privileged.
Communication for the Purpose of Legal Advice
In the Matter of a Grand Jury Investigation, 453 Mass. 453 (Mass. 2009)
SPINA, J.
This case requires us to decide whether the attorney-client privilege applies where a client
leaves messages on his counsel’s telephone answering machine threatening to harm others
and the attorney discloses those communications in order to protect those threatened.
The salient facts are not in dispute. Attorney John Doe was representing Michael Moe, a father,
in a care and protection proceeding in the Juvenile Court. On November 8, 2007, two days after
an adverse ruling by a Juvenile Court judge, Moe left six messages on Attorney Doe’s
answering machine between 1:08 A.M. and 1:24 A.M. Moe indicated that he knew where the
judge lived and that she had two children. In the fourth message, a voice that Attorney Doe
75

I also conclude that the privilege is not lost if a third person whose presence is not otherwise justified
overhears a confidential attorney-client communication without the client’s knowledge, so long as
reasonable precautions were taken to protect against overhearing. However, because the nurse’s
presence was justified, the reasonableness of the precautions taken to exclude third parties has no
bearing on the question before us.

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recognized as Moe’s wife stated that she and Moe were going to “raise some hell.” In the fifth
message, Moe stated that “some people need to be exterminated with prejudice.” Attorney Doe
subsequently erased the messages from the answering machine.
During the following week, Attorney Doe observed that Moe had become “more and more
angry,” and on November 13, 2007, he filed a motion to withdraw as Moe’s counsel, which was
subsequently allowed. Concerned for the safety of the judge and her family, he disclosed the
substance of the messages to the judge.
On November 21, 2007, Attorney Doe was interviewed by a State trooper regarding the
substance of the messages, but declined to sign a written statement.
A District Court complaint alleging threats to commit a crime and intimidation of a witness
subsequently issued against Moe. The Commonwealth then initiated grand jury proceedings
and filed a motion to summons Attorney Doe before the grand jury. That motion was allowed.
On December 21, 2007, Attorney Doe, citing the attorney-client privilege, moved to quash the
summons. A judge in the Superior Court denied Attorney Doe’s motion, reasoning that Attorney
Doe and Moe had not carried their burden of demonstrating that the attorney-client privilege
applied “because they failed to show that the messages were left in an attempt to obtain legal
services.” Attorney Doe filed a motion to reconsider, requesting, inter alia, an evidentiary
hearing. The motion was denied. The Commonwealth and Attorney Doe submitted a joint
request to report the decision to the Appeals Court. The Superior Court judge reported the case,
and we transferred the case here on our own motion.
Neither party disputes that Attorney Doe could, consistent with rule 1.6, disclose the substance
of Moe’s messages. Rule 1.6 provides, in pertinent part:
(a) A lawyer shall not reveal confidential information relating to representation of a client
unless the client consents after consultation, except for disclosures that are impliedly
authorized in order to carry out the representation, and except as stated in paragraph
(b).
(b) A lawyer may reveal, and to the extent required by Rule 3.3, Rule 4.1 (b), or Rule 8.3
must reveal, such information: (1) to prevent the commission of a criminal or fraudulent
act that the lawyer reasonably believes is likely to result in death or substantial bodily
harm."
While nothing in rule 1.6 (b) required Attorney Doe to disclose Moe’s communications to the
judge or police, he had discretion to do so. However, the ethical permissibility of Attorney Doe’s
disclosure does not resolve the distinct issue presented here: whether Attorney Doe can be
compelled to testify before the grand jury.
Evidentiary privileges “are exceptions to the general duty imposed on all people to testify.” We
accept such privileges “only to the very limited extent that permitting a refusal to testify or
excluding relevant evidence has a public good transcending the normally predominant principle

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of utilizing all rational means for ascertaining truth.” The attorney-client privilege “is founded
upon the necessity, in the interest and administration of justice, of the aid of persons having
knowledge of the law and skilled in its practice, which assistance can only be safely and readily
availed of when free from the consequences or the apprehension of disclosure.” A party
asserting the privilege must show that (1) the communications were received from the client in
furtherance of the rendition of legal services; (2) the communications were made in confidence;
and (3) the privilege has not been waived.
The Commonwealth contends that the attorney-client privilege does not apply because Moe’s
communications were not made “for the purpose of facilitating the rendition of legal services.” In
making this argument, the Commonwealth implicitly asks us to reconsider a portion of our
discussion in the Purcell case.
In Purcell, the client was discharged as a maintenance man at the apartment building in which
his apartment was located and had received an order to vacate his apartment. During
consultation with an attorney, the client stated an intent to burn the apartment building. The
attorney disclosed these communications to police and criminal charges were brought against
the client. When the prosecutor subpoenaed the attorney to testify at trial, the attorney filed a
motion to quash, which was denied. The central issue in that case was whether the crime-fraud
exception to the attorney-client privilege applied. We concluded that the communications would
not fall within the crime-fraud exception unless the district attorney could establish facts by a
preponderance of the evidence showing that the client's communication sought assistance in or
furtherance of future criminal conduct.
Recognizing that whether the attorney-client privilege applied at all was open on remand, we
also considered whether a communication of an intention to commit a crime, if not within the
crime-fraud exception, could be considered a communication for the purposes of facilitating the
rendition of legal services. We held that a “statement of an intention to commit a crime made in
the course of seeking legal advice is protected by the privilege, unless the crime-fraud exception
applies.” We reasoned that a gap between the crime-fraud exception and the applicability of the
privilege “would make no sense,” because the attorney-client privilege was premised on the
benefits of unimpeded communication between attorney and client, and noted that “an informed
lawyer may be able to dissuade the client from improper future conduct and, if not, under the
ethical rules may elect in the public interest to make a limited disclosure of the client's
threatened conduct.”
The limited disclosure adverted to in the Purcell case occurred here. Concerned for the safety of
the judge, her family, and a social worker, Attorney Doe disclosed Moe’s communications to the
judge and law enforcement authorities to protect them from harm.
We discern no reason to depart from the Purcell decision, and hold that Moe’s communications
were made in furtherance of the rendition of legal services and thus protected by the attorneyclient privilege. The Commonwealth’s argument to the contrary essentially raises an issue of
germaneness. Scholars, commentators, and courts have formulated a number of tests for

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determining the germaneness of a client's communication. However, none of these formulations
appears to give clients breathing room to express frustration and dissatisfaction with the legal
system and its participants. The expression of such sentiments is a not uncommon incident of
the attorney-client relationship, particularly in an adversarial context, and may serve as a
springboard for further discussion regarding a client’s legal options. If a lawyer suspects that the
client intends to act on an expressed intent to commit a crime, the lawyer may attempt to
dissuade the client from such action, and failing that, may make a limited disclosure to protect
the likely targets. Requiring the privilege to yield for purposes of a criminal prosecution not only
would hamper attorney-client discourse, but also would discourage lawyers from exercising their
discretion to make such disclosures, as occurred here, and thereby frustrate the beneficial
public purpose underpinning the discretionary disclosure provision of rule 1.6. Furthermore, any
test to ascertain the germaneness of an ostensibly threatening communication on a case-bycase basis would make the privilege’s applicability uncertain, rendering the privilege “little better
than no privilege.” Warning clients that communications deemed irrelevant to the matter for
which they have retained counsel will not be protected not only may discourage clients from
disclosing germane information, but also may disincline clients to share their intentions to
engage in criminal behavior. In the latter circumstance, a lawyer’s ability to aid in the
administration of justice by dissuading a client from engaging in such behavior is impaired. The
lawyer also may never receive the very information necessary for him or her to determine
whether to make a limited disclosure to prevent the harm contemplated by the client.
In sum, we reaffirm that a client’s communications to his lawyer threatening harm are privileged
unless the crime-fraud exception applies. Because the Commonwealth does not assert that
Moe’s communications come within the crime-fraud exception, they were privileged. The order
denying Attorney Doe’s motion to quash is hereby vacated and the case is remanded to the
Superior Court for further proceedings consistent with this opinion.
Keating v. McCahill, Civil Action No. 11-518 (E.D. Pa. 2012)
Summary: Equisoft hired Keating as a management consultant. Soon afterward,
Keating quit Equisoft and joined Capgemini. Equisoft hired Synnott, a Canadian lawyer,
to provide legal advice. After consultation with Synnott, Equisoft sent a letter to
Capgemini making certain demands. After receiving the letter, Capgemini fired Keating,
who filed a tort action against Equisoft, asserting several claims. During discovery,
Equisoft produced certain documents, as well as a privilege log listing relevant
documents not produced. Keating filed a motion to compel those documents. The court
found that some of the documents were protected by the attorney-client privilege or the
work product doctrine, and others were not.
GENE E.K. PRATTER, District Judge.
Plaintiff Daniel Keating has objected to Defendants Equisoft, Inc., Thomas McCahill, and Luis
Romero’s assertion of attorney-client privilege and work product protection over certain
documents in the Defendants' privilege log. The parties have submitted twenty-five documents

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— twenty-four produced with redactions and one withheld in full — to the Court for an in camera
review to determine whether the communications at issue are shielded from disclosure by the
attorney-client privilege and/or the work product doctrine.
For the reasons that follow, the Court finds that the twenty-four redacted documents may remain
redacted as presented to the Court, but Equisoft shall produce the one unproduced document in
redacted form as more fully set forth below.
I. FACTUAL BACKGROUND
Mr. Keating, a management consultant in the software industry, alleges that in late November
2009, his consulting business, the Keating Consulting Group, Inc., entered into a three month
consulting services contract with Equisoft, Inc. The consulting services contract was terminable
at-will by either party with 30 days written notice. Mr. Keating also entered into a NonSolicitation Agreement, a Confidentiality Agreement, and an Intellectual Property Agreement
with Equisoft, Inc.
Approximately halfway through the term of the consulting agreement, Mr. Keating was offered
and accepted a position with Capgemini Financial Services USA, Inc. and entered an
employment agreement with Capgemini on January 14, 2010. The next day, Mr. Keating
traveled to Equisoft’s Pennsylvania offices to give Mr. McCahill, Equisoft, Inc.’s Life Insurance
Division President, the required 30 days notice pursuant to the contract. On January 21, 2010,
Mr. Keating began working for Capgemini.
In the immediate wake of Mr. Keating giving his notice, Mr. McCahill and certain members of
Equisoft’s senior management convened to address the issues posed by Mr. Keating's
resignation. These individuals included the Equisoft CEO Mr. Romero, Equisoft Vice President
and COO Steeve Michaud, and then-Equisoft General Manager for Philadelphia Operations
William O’Donnell. Equisoft hired Bernard Synnott, a Canadian attorney to advise senior
management on issues relating to Mr. Keating’s resignation. Mr. Michaud was responsible for
communicating with Mr. Synnott on behalf of Equisoft, and “relayed questions, information,
comments, and advice from Mr. Synnott to senior management, and conveyed questions,
information and comments from the senior management to Mr. Synnott."
From January 18, 2010 to February 8, 2010, Messrs. Michaud, O’Donnell, and Romero activity
assisted Mr. Synnott in formulating strategy and drafting a demand letter to effectuate that
strategy. On February 8, 2010, Mr. Synnott sent the final version of this demand letter to Mr.
Keating and Capgemini representatives threatening litigation if Mr. Keating continued to work for
Capgemini. Three weeks after he began his new job, on February 16, 2010, Mr. Keating was
terminated by Capgemini.
In September 2010, Mr. Synnott received a letter from Mr. Keating's attorney, Heather
Sussman, Esq., threatening to commence litigation if Equisoft did not comply with various
demands. For the remainder of September 2010, Messrs. Michaud, O’Donnell, and Romero

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assisted Mr. Synnott in evaluating Ms. Sussman’s demand letter and drafting a response, which
was sent on September 24, 2010.
On January 25, 2011, Mr. Keating filed this lawsuit, asserting that his termination from
Capgemini was the result of Equisoft’s unlawful actions. He claims tortious interference with his
contractual relationship with Capgemini and his prospective economic advantage, defamation
via slander and libel, intentional infliction of emotional distress, and prima facie tort.
After Mr. Keating served his initial document requests, the Defendants provided Mr. Keating
with a privilege log. On October 17, 2011, one week after Equisoft provided Mr. Keating with
their privilege log, Mr. Keating filed a motion to compel requesting that Equisoft produce every
document on its privilege log not already produced because (1) Mr. Synnott, a foreign attorney,
is not “a member of the bar of a court” as, Mr. Keating claims, is necessary for the attorneyclient privilege to apply, (2) the attorney-client privilege cannot apply where the challenged
communications do not include a lawyer as a sender or a recipient, and (3) the work product
doctrine cannot apply where the documents at issue were not prepared by an attorney or his
representative.
Since the filing of that motion — which was mooted by Order of the Court — the parties have
reduced the universe of documents in dispute from 253 to 25. Twenty-four of these disputed
documents have been produced in redacted form, and one document has been withheld in its
entirety. These 25 documents have been submitted to the Court for an in camera review to
determine whether the attorney-client privilege and/or the work product doctrine shields them
from disclosure. Along with the documents submitted for judicial review, Equisoft submitted
affidavits from Mr. Synnott, Mr. Romero, Mr. O’Donnell, and Mr. Michaud in support of its
assertion of privilege and work product protection.
II. LEGAL STANDARDS
A. Attorney-Client Privilege
Federal courts sitting in diversity, as in this case, apply the law of the host state to determine
privilege. Thus, Pennsylvania law governs the privilege issues in this case. In order for the
attorney-client privilege to apply in Pennsylvania, the following conditions must be met: “(1) the
asserted holder of the privilege is or sought to become a client; (2) the person to whom the
communication was made is a member of the bar of a court, or his subordinate; (3) the
communication relates to a fact of which the attorney was informed by his client, without the
presence of strangers, for the purpose of securing either an opinion of law, legal services or
assistance in a legal matter, and not for the purposes of committing a crime or tort; and (4) the
privilege has been claimed and is not waived by the client.” Here, only the second and third
elements are in dispute.
The Pennsylvania rule that the lawyer must be “a member of the bar of a court” does not limit
the privilege to members of the Pennsylvania bar. Rather, “the privilege applies to

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communications to a person whom the client reasonably believes to be a lawyer. Thus, a lawyer
admitted to practice in another jurisdiction or a lawyer admitted to practice in a foreign nation is
a lawyer for the purposes of the privilege.”
The attorney-client privilege protects the communications themselves, not the underlying facts.
The privilege may cover documents that “while not involving employees assisting counsel, still
reflect confidential communications between client and counsel or subordinates of counsel for
the purposes of either (1) providing legal services or (2) providing information to counsel to
secure legal services. The privilege applies to both corporations and natural persons. The
“scope of an individual’s employment is highly relevant to the question of maintenance of
confidentiality,” and “the privilege is waived if the communications are disclosed to employees
who did not need access to them.”
However, “a document need not be authored or addressed to an attorney in order to be properly
withheld on attorney-client privilege grounds.” Where a corporate client is involved, “privileged
communications may be shared by non-attorney employees in order to relay information
requested by attorneys.” “Documents subject to the privilege may be transmitted between nonattorneys so that the corporation may be properly informed of legal advice and act
appropriately.” “Drafts of documents prepared by counsel or circulated to counsel for comments
on legal issues are considered privileged if they were prepared or circulated for the purpose of
giving or obtaining legal advice and contain information or comments not included in the final
version.”
Because the privilege obstructs the truth-finding process, it should be “applied only where
necessary to achieve its purpose.” And because the privilege promotes the “dissemination of
sound legal advice,” it applies only where the advice is legal in nature, and not where the lawyer
provides non-legal business advice. Thus, “the party asserting the privilege bears the burden of
proving that it applies to the communications at issue” and “Federal Rule of Evidence 501
requires the federal courts, in determining the nature and scope of an evidentiary privilege, to
engage in the sort of case-by-case analysis that is central to common-law adjudication.”
B. Work Product Doctrine
Federal Rule of Civil Procedure 26(b)(3) outlines work product protection in diversity cases. In
order to come within the qualified immunity from discovery created by Rule 26(b)(3) three tests
must be satisfied. The material must be: (1) “documents and tangible things;” (2) “prepared in
anticipation of litigation or for trial;” and (3) “by or for another party or by or for that other party’s
representative.”
“Work-product immunity protects only documents and tangible things prepared in anticipation of
litigation or for trial, such as memoranda, letters, and e-mails.”
Documents are prepared in anticipation of litigation when “in light of the nature of the document
and the factual situation in the particular case, the document can be fairly said to have been

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prepared or obtained because of the prospect of litigation.” The preparer’s anticipation of
litigation must be objectively reasonable. Generally, a reasonable anticipation of litigation
requires existence of an identifiable specific claim or impending litigation at the time the
materials were prepared.
As Rule 26(b)(3) makes clear, the materials themselves need not be prepared by a lawyer or a
lawyer’s representative to qualify for work product protection. Rather, “the focus of the rule
seems to be on whether the work was done in anticipation of litigation by the person preparing
the work.” Indeed, the fact that the documents sought for discovery do not include legal advice
is, “as a matter of law, irrelevant provided they were prepared in anticipation of litigation.”
A party claiming work product protection bears the initial burden of showing that the materials in
question were prepared in anticipation of litigation. A party seeking disclosure of documents
claimed as work product must demonstrate substantial need for the materials in the preparation
of his case and is unable without undue hardship to obtain the substantial equivalent of the
materials by other means.
III. DISCUSSION
Seven documents contain all of the redacted material at issue, as the redacted material in the
other eighteen documents is fully duplicated within these seven. Equisoft argues that attorneyclient privilege and the work product doctrine shield each of these documents from disclosure.
Accordingly, the Court will analyze each of these documents in turn.
A. Document 96
Document 96 is a February 2010 string of e-mails between Mr. Michaud and Mr. O’Donnell
regarding the February 8, 2010 demand letter.76 Equisoft produced the document to Mr. Keating
but redacted two e-mails in the chain: a February 6, 2010 e-mail from Mr. Michaud to Mr.
O’Donnell, and Mr. O’Donnell's February 7, 2010 response.

76

Neither Mr. Michaud nor Mr. O’Donnell are attorneys, and they are the only individuals copied on either
of the redacted e-mails or any e-mails in the string. Unless otherwise indicated, the same is true for the
other documents in question. However, each of the individuals in the senior management of the
Company, as well as Mr. Synnott, have affirmed that Mr. Michaud “was responsible for communicating
with Mr. Synnott on behalf of the company,” and “often relayed questions, information, comments, and
advice” from Mr. Synnott to the control group. Because a document “need not be authored or addressed
to an attorney in order to be properly withheld on attorney-client privilege grounds,” provided it “reflects
confidential communications between client and counsel for the purposes of (1) providing legal services
or (2) providing information to counsel to secure legal services,” the absence of an attorney copied on the
e-mails in question does not necessarily defeat the assertion of the attorney client privilege. Also, as
noted above, the Court is not persuaded that simply because Mr. Synnott is admitted to practice law only
in foreign jurisdictions that he is not “a member of the bar of a court" for the purposes of the attorneyclient privilege and the work product doctrine. Therefore, the Court will treat Mr. Synnott as an attorney
(which he, indeed, is) for the purposes of this analysis.

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Mr. Michaud attests that the material redacted from his February 6, 2010 e-mail is “advice that
he received from Mr. Synnott regarding the demand letters” to be sent to Mr. Keating and
Capgemini. After careful in camera review of the redacted e-mail, the Court concludes that Mr.
Michaud’s e-mail relayed Mr. Synnott’s legal advice and strategy regarding the demand letters
to Mr. O'Donnell, and, accordingly, is privileged and may remain withheld except as redacted.
To require disclosure of this e-mail would reveal client communications and legal advice from
counsel.
Mr. O’Donnell affirms that his February 7, 2010 e-mail “consists of his opinion regarding the
legal advice from Mr. Synnott that Mr. Michaud relayed to him regarding the demand letters.” He
further asserts generally, that he “often conveyed questions, information, and comments, to Mr.
Michaud with the understanding that he would relay them to Mr. Synnott.”
Unlike Mr. Michaud’s e-mail, the Court does not conclude that Mr. O’Donnell’s e-mail is a
privileged communication. As an initial matter, without the disclosure of the underlying
communication from Mr. Synnott via Mr. Michaud, Mr. O’Donnell’s e-mail does not contain any
confidential information and does not divulge any legal advice from Mr. Synnott. Rather, it
merely indicates Mr. O’Donnell’s agreement with the redacted advice of counsel communicated
to him via Mr. Michaud. Additionally, although Mr. O’Donnell has indicated in a general sense
that he had the “understanding” that Mr. Michaud would relay all of his comments to Mr. Synnott
relating to Mr. Keating in the month of September, Equisoft has not offered evidence that this
particular communication was made for the purpose of securing either an opinion of law, legal
services, or assistance in a legal matter.
Nevertheless, the work product doctrine shields Mr. O’Donnell’s e-mail from disclosure.
Although it does not qualify as “core or opinion work product that encompasses the mental
impressions, conclusions, opinion, or legal theories of an attorney or other representative of a
party concerning the litigation which is generally afforded near absolute protection from
discovery,” Mr. O’Donnell’s e-mail most certainly qualifies as a document prepared by a party
“because of” or in anticipation of litigation. Moreover, Mr. Keating has made no claim of
substantial need or undue hardship that would justify disclosure notwithstanding the work
product claim.
Accordingly, the Court finds that protection attaches to Mr. Michaud’s February 6, 2010 e-mail,
and that the work product doctrine shields Mr. O’Donnell’s February 7, 2010 e-mail from
disclosure.
B. Document 202
Document 202 is a September 2010 string of e-mails between Mr. Michaud and Mr. O’Donnell
regarding revisions to a draft of Equisoft’s September 2010 letter. Equisoft produced the
document to Mr. Keating but redacted two e-mails in the chain: a September 15, 2010 e-mail
from Mr. Michaud to Mr. O’Donnell, and Mr. O’Donnell’s September 15, 2010 response.

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Mr. Michaud attests that his e-mail “discloses requests that Mr. Romero and he made to Mr.
Synnott regarding Ms. Sussman’s demand letter and Mr. Synnott’s response thereto.” Based
upon the text of the e-mail, the Court discerns no particular “requests” Mr. Romero and Mr.
Michaud made of Mr. Synnott. The redacted portion of Mr. Michaud’s e-mail merely reflects Mr.
Michaud’s opinion about whether the draft letter incorporates his and Mr. Romero's
communications to counsel. The e-mail does not divulge the communications themselves.
Accordingly, the Court concludes that the redacted portion of Mr. Michaud’s e-mail is not
shielded by the attorney-client privilege.
However, the work product doctrine does shield Mr. Michaud's e-mail from disclosure because it
is a document prepared by a party in anticipation of litigation, and Mr. Keating has made no
claim of substantial need or undue hardship that would justify disclosure.
Regarding Mr. O’Donnell's redacted response, Mr. O’Donnell affirms that the redacted portion of
his e-mail “consists of his comments regarding a draft that he reviewed of Mr. Synnott’s
response to Ms. Sussman’s demand letter,” and that his intent was for Mr. Michaud to relay
some or all of his comments to Mr. Synnott.”
Here, Mr. O’Donnell’s statement that he intended for “some or all” of his comments to be
relayed to Mr. Synnott is unhelpful in the Court's review because it offers no specifics as to
which of his comments he intended for Mr. Michaud to forward to Mr. Synnott. However, the text
of the redacted e-mail and the other e-mails on the chain make clear that Mr. O’Donnell
intended his comments to be forwarded to Mr. Synnott. Indeed, in a 12:10 p.m. e-mail on
September 15, 2010 in the chain, Mr. Michaud indicated to Mr. O’Donnell his intention “to give
Mr. Synnott their feedback later today.” Mr. O’Donnell’s e-mail, a mere five hours later, was
clearly sent with the intention that it be sent along to Mr. Synnott.
However, even if the attorney-client privilege does not apply to Mr. O’Donnell's e-mail, the work
product doctrine protects the redacted portion of Mr. Michaud’s e-mail from disclosure because
it is a document prepared by a party in anticipation of litigation. Once again, Mr. Keating has
made no claim of substantial need or undue hardship that would justify disclosure.
Accordingly, the Court finds that the privilege attaches to the redacted portions of both Mr.
Michaud’s and Mr. O'Donnell’s e-mails.
C. Document 207
Document 207 is a September 2010 string of e-mails between Mr. Michaud and Mr. O’Donnell
with an attached draft letter from Mr. Synnott to Mr. Keating’s attorney. Equisoft produced the
document to Mr. Keating but redacted a portion of Mr. Michaud's 11:39 a.m. e-mail on
September 17, 2010, and the entirety of the attachment
Mr. Michaud attests that the redacted portion of his September 17, 2010 e-mail is “advice he
received from Mr. Synnott regarding the timing of his response to Ms. Sussman's demand

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letter,” and that, consistent with his responsibilities, he relayed this information from Mr. Synnott
to the other senior management, in this case, Mr. O’Donnell. After careful in camera review of
the redacted portion of the e-mail, the Court concludes that Mr. Michaud’s e-mail relayed Mr.
Synnott’s legal advice and strategy to Mr. O’Donnell regarding the demand letters. Accordingly,
the document is privileged and may remain redacted.
Turning to the attached draft letter, Mr. O’Donnell affirms that it “consists of his proposed
revisions to a draft that he reviewed of Mr. Synnott’s response to Ms. Sussman’s demand
letter,” and that “his intent was for Mr. Michaud to relay some or all of his revisions to Mr.
Synnott.”
First, the draft letter authored by Mr. Synnott is protected by the attorney-client privilege as
“drafts of documents prepared by counsel are considered privileged if they were prepared or
circulated for the purpose of giving or obtaining legal advice and contain information or
comments not included in the final version.” Here, the draft document contains both information
and comments not contained in the final version.
Second, Mr. O’Donnell’s proposed revisions to the attached letter were clearly intended to be
communicated to Mr. Synnott through Mr. Michaud for the purpose of securing either an opinion
of law, legal services or assistance in the legal matter. Although Mr. O'Donnell's statement that
he intended for “some or all” of his comments to be relayed to Mr. Synnott is unhelpful in the
Court’s review, that is of no moment. Accordingly, the Court concludes that Mr. O’Donnell’s
proposed revisions to Mr. Synnott’s draft are protected by the attorney-client privilege.
Third, the attached letter as a whole is shielded from disclosure by the work product doctrine.
The attachment was a draft document prepared by counsel in reasonable anticipation of
litigation. That the draft was sent to Mr. O’Donnell through Mr. Michaud does not remove it from
the protection of the work product doctrine. Regardless, Mr. Keating has not established a
substantial need for the materials to prepare his case or undue hardship in obtaining the
substantial equivalent of the materials by other means.
Accordingly, the Court finds that the privilege attaches to Mr. Michaud’s e-mail, and both the
attorney-client privilege and the work product doctrine shields the attachment from disclosure.
D. Document 215
Document 215 is a September 2010 string of e-mails between Mr. Michaud and Mr. O’Donnell
regarding revisions to a draft of Equisoft’s September 2010 letter responding to Mr. Keating’s
attorney. The document includes eight e-mails, four of which contain redactions.
Mr. Michaud’s 11:39 a.m. e-mail on September 17, 2010 is a duplicate of the redacted e-mail in
Document 207. Accordingly, the Court concludes that this e-mail is privileged and may remain
redacted for the same reasons as described above.

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Mr. O’Donnell affirms that the redacted portion of his 10:04 a.m. e-mail on September 20, 2010
“consists of his comments regarding a draft that he reviewed of Mr. Synnott’s response to Ms.
Sussman’s demand letter,” and that “his intent was for Mr. Michaud to relay some or all of this
information to Mr. Synnott.”
After careful in camera review of the redacted portions of Mr. O’Donnell’s e-mail, the Court
cannot conclude that Mr. O’Donnell's 10:04 a.m. e-mail is shielded from disclosure by the
attorney-client privilege. As discussed above, Mr. O’Donnell’s statement that he intended for
“some or all” of his comments to be relayed to Mr. Synnott is unhelpful in the Court’s review.
The text of the e-mail and the chain as a whole does not indicate that Mr. O’Donnell intended
Mr. Michaud to communicate his comments to Mr. Synnott for the purpose of securing either an
opinion of law, legal services or assistance in a legal matter. If anything, as indicated by the
unredacted portion of the e-mail, Mr. O’Donnell is soliciting a response from Mr. Michaud, as he
noted, “Let me know what you think.” Thus, this communication is not protected by the attorneyclient privilege.
Mr. Michaud attests that the redacted portion of his 10:11 a.m. e-mail on September 20, 2010
“consists of his opinion regarding Mr. O’Donnell's comments on and proposed revisions to a
draft of Mr. Synnott’s response to Ms. Sussman’s demand letter.” The redactions also “consist
of his opinion regarding litigation threatened by Ms. Sussman in her demand letter and the
effect Mr. Synnott’s would have on that threatened litigation.”
Upon careful in camera review of Mr. Michaud'’ e-mail, the Court is not persuaded that the
redacted portions of Mr. Michaud’s e-mail are shielded from disclosure by the attorney-client
privilege. The redactions merely reflect Mr. Michaud’s own opinion about Mr. O’Donnell’s
comments, and there is no evidence that Mr. Michaud intended this opinion to be communicated
to Mr. Synnott. Also, the redacted portion does not divulge any communications between
counsel and client. The Court is not persuaded that when one non-lawyer (Mr. Michaud) gives
his opinion to a second non-lawyer (Mr. O’Donnell) about the second non-lawyer’s comments
about a lawyer’s draft document, that the communication is protected under the attorney-client
privilege. Accordingly, the Court concludes that the redacted portion of Mr. Michaud’s e-mail is
not protected by the attorney-client privilege.
Finally, Mr. O’Donnell attests that the redacted portion of his 10:15 a.m. e-mail on September
20, 2010 “consists of his opinion regarding the litigation threatened by Ms. Sussman in her
demand letter and the effect Mr. Synnott’s response would have on that threatened litigation,”
and that “his intent was for Mr. Michaud to relay some or all of this information to Mr. Synnott.”
Once again, Mr. O’Donnell’s statement that he intended for “some or all” of his comments to be
relayed to Mr. Synnott is unhelpful in the Court’s review. Likewise, it does not appear from the
text of his e-mail or the other e-mails on the chain that Mr. O’Donnell intended for the redacted
portion of the communication to be communicated to Mr. Synnott for the purpose of securing
either an opinion of law, legal services or assistance in a legal matter. Accordingly, the Court

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concludes that the redacted portion of Mr. Michaud's e-mail is not protected by the attorneyclient privilege.
Even though the attorney-client privilege does not apply to the redacted portions of these
communications, the work product doctrine shields the redacted portions of this e-mail chain
from disclosure. The redacted statements were committed to documents and were prepared by
a party in anticipation of litigation. Mr. Keating has made no claim of substantial need or undue
hardship that would justify disclosure.
E. Document 226
Document 226 is a September 2010 string of e-mails between Mr. Michaud and Mr. O’Donnell
regarding revisions to a draft of Equisoft’s September 2010 letter responding to Mr. Keating's
attorney. The document includes eight e-mails, six of which contain redactions.
Mr. Michaud attests that his two redacted e-mails to Mr. O’Donnell on the e-mail string “consist
of his opinion about Mr. O’Donnell's comments on a draft of Mr. Synnott’s response to Mr.
Sussman’s demand letter.” Mr. O’Donnell affirms that his three redacted e-mails to Mr. Michaud
and one redacted e-mail to himself on the e-mail string “consist of his comments regarding a
draft that I reviewed of Mr. Synnott’s response to Mr. Sussman’s demand letter,” and that his
“intent was for Mr. Michaud to relay some or all of his comments to Mr. Synnott.”
The redacted information in Mr. O’Donnell's September 21, 2010 e-mails at 10:16 a.m., (2)
10:21 a.m., and (3) 10:21:49 a.m. contain substantive revisions to Mr. Synnott’s draft letter and
were clearly intended to be communicated to Mr. Synnott through Mr. Michaud for the purpose
of securing either an opinion of law, legal services, or assistance in the legal matter. Indeed, in
Mr. Michaud’s 8:49 p.m. e-mail of the previous day, he included a revised version of the letter
he sent to Mr. Synnott, and told Mr. O’Donnell that the lawyer “will call me to discuss the
changes.” Also, after providing all of his substantive changes, Mr. O’Donnell asked Mr. Michaud
to “call him after he talks with the lawyer.” Accordingly, in light of the factual background and the
content of the letters, it seems that Mr. O’Donnell intended the redacted portion of these e-mails
to be communicated to Mr. Synnott for the purpose of obtaining legal advice. Thus, the Court
concludes that these three e-mails are protected by the attorney-client privilege.
The Court does not find, however, that the remaining redacted material in the e-mail string is
protected by the attorney-client privilege. Regarding the redacted material in Mr. Michaud's
September 21, 2010 e-mails at 10:49 a.m. and 1:31 p.m., as with Mr. Michaud's 10:11 a.m. email on September 20, 2010 from Document 215, the Court is not persuaded that Mr. Michaud
providing his opinion to Mr. O’Donnell about Mr. O’Donnell’s comments about a lawyer’s draft
document is protected under the attorney-client privilege. This is especially true, where, as here,
the Court cannot discern what “opinion” about Mr. O’Donnell's comments, if any, Mr. Michaud is
communicating. Mr. Michaud’s two e-mails in this string do not divulge anything about Mr.
Synnott’s underlying communications in the draft letter, or anything about Mr. O’Donnell’s

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comments about the letter. Accordingly, the Court concludes that the redacted portions of Mr.
Michaud’s e-mails are not shielded by the attorney-client privilege.
However, the work product doctrine does shield the redacted portions of Mr. Michaud’s e-mails
from disclosure. The redacted statements clearly qualify as a document prepared by a party in
anticipation of litigation. Mr. Keating has made no claim of substantial need or undue hardship
that would justify disclosure.
Finally, the redacted information in Mr. O’Donnell’s 10:53 a.m. e-mail on September 21, 2010 is
not protected from disclosure by the attorney-client privilege because there is no indication that
he intended his redacted statements to be communicated to Mr. Synnott and the statement
does not request an opinion of law, legal services, or assistance in a legal matter. However, this
document is entitled in work product protection for the same reasons as Mr. Michaud’s e-mails.
Accordingly, the Court finds that the attorney-client privilege and/or the work product doctrine
shields the redacted portions of these documents from disclosure.
F. Document 240
Document 240 is a September 2010 string of e-mails between or among Mr. Michaud, Mr.
O’Donnell, and Mr. Synnott regarding revisions to Equisoft’s September 2010 draft letter to Mr.
Keating’s attorney. Equisoft produced the document to Mr. Keating but redacted Mr. Synnott’s
10:30 a.m. e-mail on September 22, 2010 to Mr. Michaud, and Mr. Michaud’s 12:15 p.m. e-mail
to Mr. O'Donnell.
Mr. Michaud has affirmed that Mr. Synnott’s letter to him “consists of Mr. Synnott’s comments
regarding a draft of his response to Ms. Sussman’s demand letter,” and his e-mail to Mr.
O'Donnell “consists of his comments regarding that draft of Mr. Synnott’s letter and the timing of
the sending of the final version.”
Mr. Synnott’s e-mail to Mr. Michaud is protected by the attorney-client privilege because it is a
communication from an attorney to a client “relating to a fact of which the attorney was informed
by his client for the purpose of securing either an opinion of law, legal services or assistance in
a legal matter.”
The redacted portion of Mr. Michaud’s e-mail to Mr. O’Donnell is not protected by the attorney
client privilege, however, because, as noted above, the personal opinion or comments from a
non-lawyer to another non-lawyer about communications from a lawyer are not protected under
the attorney client privilege. Rather, only the communications to or from the attorney are
protected. Accordingly, Mr. Michaud’s e-mail is not shielded from disclosure by the attorneyclient privilege.
However, the work product doctrine does shield the redacted portions of Mr. Michaud’s e-mail
from disclosure. The redacted statements are contained in a document prepared by a party in

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anticipation of litigation. Mr. Keating has made no claim of substantial need or undue hardship
that would justify disclosure.
Accordingly, the Court finds that the privilege attaches to Mr. Synnott's e-mail, and the work
product doctrine shields Mr. Michaud’s e-mail from disclosure.
G. Document 253
Document 253 is a November 17, 2010 Executive Summary presented to the Equisoft Board of
Directors, the last paragraph of which reports on Ms. Sussman’s September 2, 2010 demand
letter and provides Mr. Synnott’s assessment regarding the probability of litigation. Equisoft has
withheld the entire document — the final paragraph on work product and attorney-client
privilege grounds and the rest because it is irrelevant to the subject lawsuit.
As an initial matter, the Court agrees that all but the last paragraph of this document is
completely irrelevant to the subject lawsuit. Accordingly, it need not be disclosed.
With respect to the one relevant paragraph of the document, Mr. Michaud asserts that “along
with Mr. Romero and Equisoft Finance Director Aurora Ciugulan,” he prepared the document for
Equisoft’s seven board of directors, Equisoft’s Chief Information Officer Nicolas Ledoux,
Equisoft Lead Architect Stephane Boutros, and Equisoft VP for Financial Products Jonathan
Georges. Mr. Michaud asserts that “the final paragraph recounts Mr. Synnott’s assessment of
the probability of Mr. Keating commencing litigation against Equisoft.”
The evidence submitted to the Court is insufficient to establish that the attorney-client privilege
protects this document from disclosure. First, Mr. Michaud and Mr. Romero have attested that
beyond the named individuals, they are “not aware of any further distribution of the document.”
Indeed, Equisoft has not and cannot argue that Document 253 was seen only by the individuals
discussed above. Regardless, even if the document was limited to these individuals, many of
them were outside the group of senior management who Equisoft has indicated was responsible
for making strategic decisions related to the legal issues involving Mr. Keating.
Moreover, contrary to Mr. Michaud’s assertions, only the final sentence of the Executive
Summary — rather than the final paragraph — recounts Mr. Synnott’s assessment of the
probability of Mr. Keating commencing litigation against Equisoft. The remainder of the
paragraph merely recounts underlying facts that are not shielded by the attorney-client privilege.
Nothing in the Executive Summary or in any of the supporting affidavits suggests that Mr.
Synnott drafted these underlying facts. In fact, Mr. Michaud attested that he, not Mr. Synnott,
prepared the final paragraph of the document. Only the last sentence offers any assessment by
Mr. Synnott of the probability of litigation. Accordingly, the Court cannot conclude that Document
253 is fully shielded from disclosure by the attorney-client privilege.
Nor can the Court conclude that the work product doctrine shields this document from
disclosure. Mr. Michaud asserts that “he prepared the final paragraph because of potential

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litigation with Mr. Keating,” but a document “falls within the scope of the work-product doctrine
only if it was prepared primarily in anticipation of future litigation.” “Documents created in the
ordinary course of business, even if useful in subsequent litigation, are not protected by the
work-product doctrine.” Here, the Court cannot conclude that the executive summary was
prepared primarily in anticipation of litigation. To the contrary, the purpose of the document was
to update the board of directors on various issues facing the company, including the demand
letter sent by Mr. Keating.
Accordingly, the Court finds that the last paragraph of Document 253 must be disclosed, but the
remainder of the document may remain redacted on the basis of attorney-client privilege.
IV. CONCLUSION
In light of the foregoing, the twenty-four documents that Equisoft has redacted on the basis of
attorney client privilege and/or the work product doctrine may remain redacted as presented to
the Court in Equisoft's March 23, 2012 submission, but Equisoft shall produce Document 253 in
redacted form as discussed above.

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5.5: Corporate Privilege
When an attorney represents an organization, the default position of the law is that the client is
the organization, and not its agents. However, an attorney representing an organization can
form an attorney-client relationship with one or more agents of the organization, in addition to or
instead of the organization itself, by explicit agreement. For example, an attorney could
represent a particular agent of the organization, or a component of the organization, like its
board of directors.
When an attorney-client relationship exists between an attorney and an organization, the
attorney-client privilege may protect communications between the attorney and the organization.
As a practical matter, the privilege may protect communications between the attorney and
certain agents of the organization. Courts must determine whether the privilege applies to
communications with particular agents and about particular subjects.
When an attorney represents an organization, the attorney-client privilege belongs to the
organization, not its agents. Accordingly, only the organization can waive the privilege. While an
agent of the organization must effectuate the waiver, agents may waive the privilege only for the
benefit of the organization, not for their own personal benefit or the benefit of any third-party. In
addition, the organization may waive the privilege without the consent of the agent or agents
who participated in the communication.
Of course, the agents of an organization may form an attorney-client relationship with their own
attorney, in which case their communications with their attorney may also be protected by the
attorney-client privilege. But the agents of an organization may not personally claim the privilege
in relation to communications they made as agents of the organization.
While the attorney-client privilege may protect communications between an attorney
representing an organization and the agents of that organization, it does not necessarily protect
all such communications, only those for the purpose of providing legal advice. And it does not
necessarily protect communications with all agents. A small minority of states apply the “control
group” test, which provides that the privilege only protects communications with the
management of the organization. But most states and the federal courts apply the “Upjohn” test
adopted by the Supreme Court, under which the privilege can protect communications with any
agent, so long as the communication was for the purpose of providing legal advice, including the
collection of information for the purpose of providing legal advice.
The “Upjohn” Test for Corporate Privilege
Upjohn Co. v. United States, 449 U.S. 383 (1981)
Summary: The Supreme Court held that the attorney-client privilege applies to an
organization’s attorney’s communications with its agents: 1) when a communication is
made to the organization’s counsel that is acting in their capacity as counsel (and not as

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business consultants, for example); 2) at the direction of management for the purpose of
securing legal advice from counsel; 3) concerning a subject within the scope of
employment; and 4) when the agent knows that the purpose of the communication is for
the organization to procure legal advice.
JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari in this case to address important questions concerning the scope of the
attorney-client privilege in the corporate context and the applicability of the work-product
doctrine in proceedings to enforce tax summonses. With respect to the privilege question the
parties and various amici have described our task as one of choosing between two “tests” which
have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to
decide concrete cases and not abstract propositions of law. We decline to lay down a broad rule
or series of rules to govern all conceivable future questions in this area, even were we able to
do so. We can and do, however, conclude that the attorney-client privilege protects the
communications involved in this case from compelled disclosure and that the work-product
doctrine does apply in tax summons enforcement proceedings.
I
Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January
1976 independent accountants conducting an audit of one of Upjohn’s foreign subsidiaries
discovered that the subsidiary made payments to or for the benefit of foreign government
officials in order to secure government business. The accountants so informed petitioner Mr.
Gerard Thomas, Upjohn’s Vice President, Secretary, and General Counsel. Thomas is a
member of the Michigan and New York Bars, and has been Upjohn’s General Counsel for 20
years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn’s Chairman of the Board.
It was decided that the company would conduct an internal investigation of what were termed
“questionable payments.” As part of this investigation the attorneys prepared a letter containing
a questionnaire which was sent to “All Foreign General and Area Managers” over the
Chairman’s signature. The letter began by noting recent disclosures that several American
companies made “possibly illegal” payments to foreign government officials and emphasized
that the management needed full information concerning any such payments made by Upjohn.
The letter indicated that the Chairman had asked Thomas, identified as “the company's General
Counsel,” “to conduct an investigation for the purpose of determining the nature and magnitude
of any payments made by the Upjohn Company or any of its subsidiaries to any employee or
official of a foreign government.” The questionnaire sought detailed information concerning such
payments. Managers were instructed to treat the investigation as “highly confidential” and not to
discuss it with anyone other than Upjohn employees who might be helpful in providing the
requested information. Responses were to be sent directly to Thomas. Thomas and outside
counsel also interviewed the recipients of the questionnaire and some 33 other Upjohn officers
or employees as part of the investigation.

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On March 26, 1976, the company voluntarily submitted a preliminary report to the Securities and
Exchange Commission on Form 8-K disclosing certain questionable payments. A copy of the
report was simultaneously submitted to the Internal Revenue Service, which immediately began
an investigation to determine the tax consequences of the payments. Special agents conducting
the investigation were given lists by Upjohn of all those interviewed and all who had responded
to the questionnaire. On November 23, 1976, the Service issued a summons demanding
production of:
All files relative to the investigation conducted under the supervision of Gerard Thomas
to identify payments to employees of foreign governments and any political contributions
made by the Upjohn Company or any of its affiliates since January 1, 1971 and to
determine whether any funds of the Upjohn Company had been improperly accounted
for on the corporate books during the same period.
The records should include but not be limited to written questionnaires sent to managers
of the Upjohn Company’s foreign affiliates, and memorandums or notes of the interviews
conducted in the United States and abroad with officers and employees of the Upjohn
Company and its subsidiaries.
The company declined to produce the documents specified in the second paragraph on the
grounds that they were protected from disclosure by the attorney-client privilege and constituted
the work product of attorneys prepared in anticipation of litigation. On August 31, 1977, the
United States filed a petition seeking enforcement of the summons in the United States District
Court for the Western District of Michigan. That court adopted the recommendation of a
Magistrate who concluded that the summons should be enforced. Petitioners appealed to the
Court of Appeals for the Sixth Circuit which rejected the Magistrate's finding of a waiver of the
attorney-client privilege, but agreed that the privilege did not apply “to the extent that the
communications were made by officers and agents not responsible for directing Upjohn’s
actions in response to legal advice for the simple reason that the communications were not the
‘client’s.’” The court reasoned that accepting petitioners’ claim for a broader application of the
privilege would encourage upper-echelon management to ignore unpleasant facts and create
too broad a “zone of silence.” Noting that Upjohn’s counsel had interviewed officials such as the
Chairman and President, the Court of Appeals remanded to the District Court so that a
determination of who was within the “control group” could be made. In a concluding footnote the
court stated that the work-product doctrine “is not applicable to administrative summonses.”
II
Federal Rule of Evidence 501 provides that “the privilege of a witness shall be governed by the
principles of the common law as they may be interpreted by the courts of the United States in
light of reason and experience.” The attorney-client privilege is the oldest of the privileges for
confidential communications known to the common law. Its purpose is to encourage full and
frank communication between attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice. The privilege recognizes that

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sound legal advice or advocacy serves public ends and that such advice or advocacy depends
upon the lawyer’s being fully informed by the client. “The lawyer-client privilege rests on the
need for the advocate and counselor to know all that relates to the client's reasons for seeking
representation if the professional mission is to be carried out.” The purpose of the privilege is “to
encourage clients to make full disclosure to their attorneys.” This rationale for the privilege has
long been recognized by the Court. Admittedly complications in the application of the privilege
arise when the client is a corporation, which in theory is an artificial creature of the law, and not
an individual; but this Court has assumed that the privilege applies when the client is a
corporation, and the Government does not contest the general proposition.
The Court of Appeals, however, considered the application of the privilege in the corporate
context to present a “different problem,” since the client was an inanimate entity and “only the
senior management, guiding and integrating the several operations, can be said to possess an
identity analogous to the corporation as a whole.”
Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of
professional advice to those who can act on it but also the giving of information to the lawyer to
enable him to give sound and informed advice. The first step in the resolution of any legal
problem is ascertaining the factual background and sifting through the facts with an eye to the
legally relevant. See ABA Code of Professional Responsibility, Ethical Consideration 4-1:
A lawyer should be fully informed of all the facts of the matter he is handling in order for
his client to obtain the full advantage of our legal system. It is for the lawyer in the
exercise of his independent professional judgment to separate the relevant and
important from the irrelevant and unimportant. The observance of the ethical obligation
of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates
the full development of facts essential to proper representation of the client but also
encourages laymen to seek early legal assistance.
In the case of the individual client the provider of information and the person who acts on the
lawyer’s advice are one and the same. In the corporate context, however, it will frequently be
employees beyond the control group as defined by the court below—”officers and agents
responsible for directing the company’s actions in response to legal advice” —who will possess
the information needed by the corporation's lawyers. Middle-level—and indeed lower-level—
employees can, by actions within the scope of their employment, embroil the corporation in
serious legal difficulties, and it is only natural that these employees would have the relevant
information needed by corporate counsel if he is adequately to advise the client with respect to
such actual or potential difficulties.
In a corporation, it may be necessary to glean information relevant to a legal problem
from middle management or non-management personnel as well as from top executives.
The attorney dealing with a complex legal problem “is thus faced with a ‘Hobson's
choice’. If he interviews employees not having ‘the very highest authority’, their
communications to him will not be privileged. If, on the other hand, he interviews only

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those employees with ‘the very highest authority’, he may find it extremely difficult, if not
impossible, to determine what happened.”
The control group test adopted by the court below thus frustrates the very purpose of the
privilege by discouraging the communication of relevant information by employees of the client
to attorneys seeking to render legal advice to the client corporation. The attorney’s advice will
also frequently be more significant to noncontrol group members than to those who officially
sanction the advice, and the control group test makes it more difficult to convey full and frank
legal advice to the employees who will put into effect the client corporation’s policy.
The narrow scope given the attorney-client privilege by the court below not only makes it difficult
for corporate attorneys to formulate sound advice when their client is faced with a specific legal
problem but also threatens to limit the valuable efforts of corporate counsel to ensure their
client's compliance with the law. In light of the vast and complicated array of regulatory
legislation confronting the modern corporation, corporations, unlike most individuals, “constantly
go to lawyers to find out how to obey the law,” particularly since compliance with the law in this
area is hardly an instinctive matter. The test adopted by the court below is difficult to apply in
practice, though no abstractly formulated and unvarying “test” will necessarily enable courts to
decide questions such as this with mathematical precision. But if the purpose of the attorneyclient privilege is to be served, the attorney and client must be able to predict with some degree
of certainty whether particular discussions will be protected. An uncertain privilege, or one which
purports to be certain but results in widely varying applications by the courts, is little better than
no privilege at all. The very terms of the test adopted by the court below suggest the
unpredictability of its application. The test restricts the availability of the privilege to those
officers who play a “substantial role” in deciding and directing a corporation's legal response.
Disparate decisions in cases applying this test illustrate its unpredictability.
The communications at issue were made by Upjohn employees to counsel for Upjohn acting as
such, at the direction of corporate superiors in order to secure legal advice from counsel. As the
Magistrate found, “Mr. Thomas consulted with the Chairman of the Board and outside counsel
and thereafter conducted a factual investigation to determine the nature and extent of the
questionable payments and to be in a position to give legal advice to the company with respect
to the payments.” Information, not available from upper-echelon management, was needed to
supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws,
currency regulations, duties to shareholders, and potential litigation in each of these areas. The
communications concerned matters within the scope of the employees’ corporate duties, and
the employees themselves were sufficiently aware that they were being questioned in order that
the corporation could obtain legal advice. The questionnaire identified Thomas as “the
company's General Counsel” and referred in its opening sentence to the possible illegality of
payments such as the ones on which information was sought. A statement of policy
accompanying the questionnaire clearly indicated the legal implications of the investigation. The
policy statement was issued “in order that there be no uncertainty in the future as to the policy
with respect to the practices which are the subject of this investigation.” It began “Upjohn will
comply with all laws and regulations,” and stated that commissions or payments “will not be

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used as a subterfuge for bribes or illegal payments” and that all payments must be “proper and
legal.” Any future agreements with foreign distributors or agents were to be approved “by a
company attorney” and any questions concerning the policy were to be referred “to the
company’s General Counsel.” This statement was issued to Upjohn employees worldwide, so
that even those interviewees not receiving a questionnaire were aware of the legal implications
of the interviews. Pursuant to explicit instructions from the Chairman of the Board, the
communications were considered “highly confidential” when made, and have been kept
confidential by the company. Consistent with the underlying purposes of the attorney-client
privilege, these communications must be protected against compelled disclosure.
The Court of Appeals declined to extend the attorney-client privilege beyond the limits of the
control group test for fear that doing so would entail severe burdens on discovery and create a
broad “zone of silence” over corporate affairs. Application of the attorney-client privilege to
communications such as those involved here, however, puts the adversary in no worse position
than if the communications had never taken place. The privilege only protects disclosure of
communications; it does not protect disclosure of the underlying facts by those who
communicated with the attorney:
The protection of the privilege extends only to communications and not to facts. A fact is
one thing and a communication concerning that fact is an entirely different thing. The
client cannot be compelled to answer the question, “What did you say or write to the
attorney?” but may not refuse to disclose any relevant fact within his knowledge merely
because he incorporated a statement of such fact into his communications to his
attorney.
Here the Government was free to question the employees who communicated with Thomas and
outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has
already interviewed some 25 of them. While it would probably be more convenient for the
Government to secure the results of petitioner's internal investigation by simply subpoenaing the
questionnaires and notes taken by petitioner's attorneys, such considerations of convenience do
not overcome the policies served by the attorney-client privilege. As Justice Jackson noted in
his concurring opinion in Hickman v. Taylor: “Discovery was hardly intended to enable a learned
profession to perform its functions on wits borrowed from the adversary.”
Needless to say, we decide only the case before us, and do not undertake to draft a set of rules
which should govern challenges to investigatory subpoenas. Any such approach would violate
the spirit of Federal Rule of Evidence 501. While such a “case-by-case” basis may to some
slight extent undermine desirable certainty in the boundaries of the attorney-client privilege, it
obeys the spirit of the Rules. At the same time we conclude that the narrow “control group test”
sanctioned by the Court of Appeals in this case cannot, consistent with “the principles of the
common law as interpreted in the light of reason and experience,” govern the development of
the law in this area.
Questions:

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1. Which agents of an organization can be parties to privileged communications?
2. When is a communication with an agent of an organization not privileged?
3. Is the Upjohn test for corporate privilege too narrow, too broad, or just right?
Matter of Bevill, Bresler & Schulman Asset Manag., 805 F. 2d 120 (3d Cir. 1986)
Summary:
SEITZ, Circuit Judge.
This appeal arises out of two related proceedings currently before the district court: the Chapter
11 reorganization of Bevill, Bresler & Schulman Asset Management Corporation (AMC) and the
liquidation of Bevill, Bresler & Schulman, Inc. (BBS) under the Security Investor Protection Act
(SIPA). Intervenors John D. Rooney and Robert L. Bevill, two principals of the corporations,
appeal the order of the district court directing Gilbert Schulman, president of AMC, and Hellring,
Lindeman, Goldstein, Siegal & Greenberg, counsel for BBS, to respond to questions posed in
depositions by the trustees for AMC and BBS. The order permits the trustees to discover the
substance of certain meetings that took place between the law firm and the principals of the
corporations before the Chapter 11 petition was filed. Because Rooney and Bevill allege that the
district court's order violates their attorney-client privilege, we have jurisdiction.
I.
We turn first to the facts as narrated by the district court. Gilbert Schulman first became aware
that AMC was in financial difficulties on March 19, 1985, when Robert Bevill telephoned him in
Greece. After talking again with Bevill on the following day, Schulman flew back to the United
States. According to Schulman, he was unable to obtain any information about AMC until he
consulted with Hellring, Lindeman on March 25, 1985.
Between March 25, 1985 and April 7, 1985, Schulman met with Hellring, Lindeman almost daily.
Other principals of BBS and AMC, including Bevill and Rooney, were present at some of these
meetings.
When Schulman first met with Hellring, Lindeman, he explained that he was seeking both
personal and corporate legal advice. In his deposition, he testified that with regard to the March
26th meeting:
I stated to Mr. Hellring and Mr. Goldstein that I had arranged for Mr. Bevill to come down
and meet them and at that point I had said to them that “Possibly you will represent me,
possibly you will represent Mr. Bevill and me, possibly you will represent the firms,” but I
was definitely seeking personal legal advice at that time.

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On March 31, 1985, Hellring, Lindeman was retained to represent BBS. In addition, it continued
to consider whether it would represent the principals of BBS. On April 4, 1985, Hellring,
Lindeman informed the principals that they should obtain separate counsel.
On April 7, 1985, AMC filed a petition for bankruptcy under Chapter 11 of the Bankruptcy Code.
A trustee was subsequently appointed by the district court. On April 8, the SEC filed a civil
complaint in the district court alleging fraud against AMC, BBS, and the principals of the
corporations, including appellants. In addition, the SEC began a criminal investigation, and there
is currently a grand jury investigation into the affairs of the two corporations. On May 8, the
district court placed BBS under a SIPA receivership and the SIPA trustee commenced a
liquidation proceeding.
On May 13, 1985, the counsel for the AMC trustee began to depose Schulman. By the consent
of the parties, this deposition was conducted as a joint proceeding in the AMC Chapter 11
proceeding, the BBS SIPA liquidation, and the SEC proceeding. The AMC trustee sought to
depose Schulman as to the substantive communications between Hellring, Lindeman and the
principals, and indicated that the trustee had waived AMC's attorney-client privilege. Schulman's
counsel instructed Schulman not to answer the questions. Counsel for the other principals also
instructed Schulman not to respond, asserting the existence of a joint defense privilege.
On May 21, 1985, the deposition of Schulman resumed, and the AMC trustee began
questioning Schulman about the circumstances surrounding the meetings with counsel,
including the dates of the meetings, who was present, and whether the discussions involved
personal or corporate matters. Once again, counsel for the other principals objected on the
grounds of a joint defense privilege.
The AMC and BBS trustees and the SEC subsequently filed motions with the district court for an
order directing the principals and Hellring Lindeman to respond to a series of questions as to the
circumstances surrounding the meetings. In opposition to these motions, Rooney filed an
unsworn affirmation with the district court stating that he met with counsel for personal advice
and with the expectation that the communications would be confidential. He further stated that
he would not have met with counsel without the assurance of confidentiality.
After a hearing, the district court ordered Bevill, Rooney, Schulman, Robert Levine, another
principal, and Hellring, Lindeman to answer written interrogatories about the scope of counsel's
representation. Bevill and Rooney refused to answer the interrogatories on the ground of the
fifth amendment. Schulman stated that he attended all meetings except the March 31st meeting
for the purpose of securing personal legal advice. Levine concurred in this statement, and also
stated that the participants in the meetings were engaged in a joint defense effort. Schulman,
however, has asserted in a letter to the BBS trustee from his counsel that he was never part of a
joint defense.
Hellring, Lindeman confirmed in their answers to the interrogatories that the principals had
sought both personal and corporate legal advice at the meetings that occurred from March 25th

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through April 4th. In a letter to the BBS trustee, it further explained its understanding of its
representation:
Our firm was initially consulted on Monday, March 25, 1985. On that date and during the
week of March 25, 1985 we were consulted by officials of Bevill, Bresler & Schulman,
Inc. on a confidential and privileged basis for the purpose of personal representation as
well as corporate representation of Bevill, Bresler & Schulman, Inc. and other
companies.
We were not retained until Sunday, March 31, 1985 on which date we agreed to
represent Bevill, Bresler & Schulman, the broker/dealer and its affiliated broker/dealer
companies and to consider further the matter of representation for the individuals and
other corporations.
During the next few days we continued to be consulted by officials of Bevill, Bresler &
Schulman, Inc. on a confidential and privileged basis for purposes of personal
representation and to consider the need therefor.
Within a few days of March 31, 1985 we advised each individual official to retain
separate and individual counsel.
The trustees, relying on their waiver of the corporations’ attorney-client privileges, moved for an
order directing Schulman and Hellring, Lindeman to testify about the substance of the meetings
insofar as they related to the affairs of the two corporations and Schulman's activities as a
director or officer of the corporations. Bevill and Rooney opposed the motions based on their
attorney-client privileges and a joint defense privilege.
After hearing argument from counsel on the trustees' motions, the district court, in an oral
opinion, granted the motions in part. The court held that a corporate officer must satisfy the
following test to assert a personal claim of attorney-client privilege as to communications with
corporate counsel:
First, they must show they approached counsel for the purpose of seeking legal advice.
Second, they must demonstrate that when they approached counsel they made it clear
that they were seeking legal advice in their individual rather than in their representative
capacities. Third, they must demonstrate that the counsel saw fit to communicate with
them in their individual capacities, knowing that a possible conflict could arise. Fourth,
they must prove that their conversations with counsel were confidential. And, fifth, they
must show that the substance of their conversations with counsel did not concern
matters within the company or the general affairs of the company.
The court rejected Rooney’s claim that he consulted with counsel for the sole or primary
purpose of securing personal legal advice, finding such a claim unsupported by the evidence. It
then turned to the principals’ contention that the corporate communications were

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indistinguishable from those that related to their personal legal problems, and that, therefore, all
communications are privileged. The court agreed with Bevill and Rooney insofar as the trustees
sought to obtain information about meetings prior to March 31st when Hellring, Lindeman
agreed to represent BBS. The court thus held that these communications were privileged. The
trustees do not appeal this ruling.
It, however, rejected the appellants claim of a blanket privilege for those meetings that occurred
after March 31st. It found that once Hellring, Lindeman agreed to represent BBS, it was to BBS
that the lawyers owed any duty. Further, based on counsel’s knowledge of BBS and AMC when
the bankruptcy petition was filed, the court found that “it is obvious that immediately after March
31, 1985, Hellring, Lindeman turned its attention to the affairs of its corporate clients.” Finally,
the court stated that the only personal advice that had been identified was that relating to
separate representation.
The court also rejected Bevill’s and Rooney’s claim of a joint defense privilege, finding that they
did not bear their burden of showing that a joint defense in fact existed.
The district court ordered Hellring, Lindeman to testify as to all communications about the
corporations and the roles and functions of the officers that took place after the law firm agreed
to represent BBS. It further held that no questions could be asked concerning separate
representation or the officers' potential personal liabilities, unless the communications also
related to the business and assets of the corporations or the roles of the principals in the
corporations. Finally, the court stated that Hellring, Lindeman could submit any communications
it was doubtful about to the court for in camera inspection. This appeal followed.
II.
Bevill and Rooney claim that the district court’s order directing disclosure of the substantive
communications with counsel between March 31st and April 4th violates their attorney-client
privilege. In addition, Bevill claims that such disclosure is barred by the joint defense privilege.
Privileges in federal court are “governed by the principles of common law as they may be
interpreted in light of reason and experience.” Whether there is a valid claim of privilege is
decided on a case-by-case basis. Although the applicability of a privilege is a factual question,
determining the scope of a privilege is a question of law, subject to plenary review.
A.
The purpose of the attorney-client privilege “is to encourage full and frank communication
between attorneys and their clients and thereby promote broader public interests in observance
of the law and administration of justice.” This privilege applies to corporations as well as
individuals. As the Supreme Court has recognized, however, “the administration of the privilege
in the case of corporations presents special problems. As an inanimate entity, a corporation
must act through agents.”

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In this case, we address the relationship between a corporation’s waiver of its privilege and the
individual directors’ assertion of a claim of personal attorney-client privilege with respect to
counsel consulted on both a personal and corporate basis after the counsel has been retained
by the corporation. The parties agree that the trustees had the power to waive the corporations’
attorney-client privilege regarding prebankruptcy communications with counsel. They also agree
that the directors or officers may have an individual attorney-client privilege apart from those of
the corporations. The dispute centers on whether the individuals’ assertion of an attorney-client
privilege can prevent the disclosure of corporate communications with corporate counsel when
the corporation’s privilege has been waived.
As we understand appellants’ position, they claim that the district court erred as a matter of law
in holding that communications related to their role as corporate officers were not privileged.
They contend that because their personal legal problems were inextricably intertwined with
those of the corporation, disclosure of discussions of corporate matters would eviscerate their
personal privileges. They therefore assert that a blanket privilege should be applied to all
communications with counsel between March 31st and April 4th.
The appellants’ argument, however, does not pay sufficient attention to the fact that under
existing law, any privilege that exists as to a corporate officer’s role and functions within a
corporation belongs to the corporation, not the officer. Because a corporation can act only
through its agents, a corporation’s privilege consists of communications by corporate officials
about corporate matters and their actions in the corporation. A corporate official thus may not
prevent a corporation from waiving its privilege arising from discussions with corporate counsel
about corporate matters.
The two decisions cited by appellants, In re Citibank v. Andros and Diversified Industries, Inc. v.
Meredith, do not support their position that they may assert their personal privilege over the
corporation's waiver with regard to corporate matters. Rather, these two cases simply recognize
that an individual officer may have an individual claim of attorney-client privilege with regard to
communications with corporate counsel.
Moreover, we find that appellants' position is contrary to the public policies identified by the
Supreme Court. The Weintraub Court found that permitting a bankrupt corporations’
management to assert the corporation's privilege against the bankruptcy trustee would defeat
the Bankruptcy Code’s goal of uncovering insider fraud. To provide a blanket privilege regarding
all discussions of corporate matters on the basis of an assertion of personal privileges by the
officers would prevent the trustee from investigating possible misconduct by the officers and
permit the officers to “use the privilege as a shield against the trustee’s efforts.”
The test adopted by the district court does not invade the personal privilege of the officers
because they do not have an attorney-client privilege with regard to communications made in
their role as corporate officials. Moreover, the district court has not precluded the possibility that
appellants may assert their personal privilege as to matters not related to their role as officers of

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the corporation. First, the order directs that no questions could be asked regarding the need for
separate representation. Second, the court allowed for the possibility that appellants could
demonstrate that some of the communications after March 31st were personal and protected
communications relating to the principals’ personal liabilities, except insofar as they were related
to their role as corporate officers. Finally, the district court held that it would review in camera
any communication over which there was a question whether it was personal or corporate in
nature.
In light of the foregoing analysis, we find that that the district court’s order properly defined the
extent to which the principals were entitled to bar discovery of communications with counsel
based on their individual attorney-client privileges.
Questions:
1. Under the commonly used Bevill standard, agents of an organization seeking to prove
either a joint or separate attorney-client relationship with the organization’s attorney must
establish that: 1) the employee approached the corporation’s attorney for legal advice; 2)
the employee made it clear that the request had to do with matters that arose in his or
her individual capacity; 3) the attorney understood this request and advised on the
matter even though there was a potential for conflict; 4) these communications were
confidential; and 5) the subject matter of the communication did not concern a more
general corporate matter. How frequently do you think agents will be able to satisfy
these criteria?
The “Need to Know” Standard
Summary:
FTC v. GlaxoSmithKline, 294 F. 3d 141 (D.C. Cir. 2002)
GINSBURG, Chief Judge:
In the course of investigating whether a manufacturer of drugs listed its patents properly in the
compilation maintained by the Food and Drug Administration, the Federal Trade Commission
issued a subpoena directing the company to produce documents relating to a particular drug.
When the company resisted, claiming the attorney-client privilege shields the documents, the
Commission repaired to the district court, which enforced the subpoena. We reverse the
decision of the district court because the court both relied upon an argument to which the
company had no opportunity to respond and ruled erroneously that, by failing to keep
confidential the contents of the documents, the company had waived the attorney-client
privilege.
I. Background

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GlaxoSmithKline manufactures paroxteine hydrochloride hemihydrate under the brand name
Paxil, the annual sales of which in the United States exceed $1 billion. Several companies have
applied to the Food and Drug Administration for permission to sell generic versions of Paxil
when GSK’s patents expire. The Federal Trade Commission is investigating whether GSK, in an
attempt to prevent or delay competition from generic versions of Paxil, has abused the process
for listing its patents in the FDA’s compilation of “Approved Drug Products with Therapeutic
Evaluations.”
The Commission issued a subpoena directing GSK to produce two types of documents. First,
the Commission sought all documents concerning Paxil that the United States District Court for
the Northern District of Illinois had directed GSK to disclose when GSK had sued two
manufacturers of generic pharmaceuticals for infringement of its patents — the so-called
Chicago documents. Second, the Commission wanted all “documents related to the
manufacturing and marketing of Paxil, the listing and use of any patents regarding Paxil, and
any filings with the FDA regarding Paxil.” GSK and the Commission resolved their differences
over the inclusion or exclusion of thousands of documents, but because GSK declined to
produce hundreds of others — primarily on the ground that they were shielded by the attorneyclient privilege — the Commission petitioned the district court to enforce the subpoena.
The parties then agreed upon a procedure for presenting their positions to the district court.
First, each would submit its contentions about the Chicago documents. If the court compelled
GSK to produce those documents, then the parties would contest the second category of
documents as follows. The Commission would “identify for GSK every responsive (and allegedly
privileged) document that the Commission sought to have produced and the reason(s) why
each privilege claim was invalid." GSK would then either produce the document or list it in a
“privilege log identifying any documents as to which it continued to assert privilege.”
Accordingly, only after the Commission had informed GSK of its objections to the Company's
claims of privilege would the parties seek judicial resolution. At that final stage the court would
either call for oral argument or resolve summarily “any issues submitted to it in connection with
the FTC’s enforcement petition.”
The district court did enforce the subpoena with respect to the Chicago documents. The parties
then resolved through negotiation their disputes about the disclosure of hundreds more
documents, leaving unresolved the status of only 91. GSK asserted that all 91 documents were
protected by the attorney-client privilege and that 34 of them were protected also by the
privilege for attorney work product. The Commission told GSK it considered the assertions of
privilege invalid for two reasons: (1) GSK had forfeited its claim to confidentiality by
disseminating all 91 documents widely both within GSK and to consultants and other thirdparties; and (2) the decision in Apotex estopped GSK from asserting that the 34 documents
were attorney work product, that is, were prepared in anticipation of litigation. In response to
these objections, GSK compiled a privilege log describing each of the 91 documents, and the
parties presented their arguments to the district court.

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In its opening brief to the district court, the Commission raised the two objections it had
previously presented to GSK. The Commission also introduced in that brief a new argument:
Regardless whether Apotex foreclosed the Company’s claim of attorney work product, GSK’s
privilege log “failed to provide facts demonstrating that the documents were created in
anticipation of litigation.” When GSK objected that the Commission had not made this argument
during pre-motion negotiations, the Commission withdrew the argument. It explained in a
Stipulation approved by the district court that it had “inadvertently failed to provide GSK with the
agreed advance notice regarding the grounds for challenging the documents.”
GSK submitted its responsive brief to the district court and attached thereto the Company’s
privilege log and the affidavit of Charles Kinzig, GSK’s Vice President and Director of Corporate
Intellectual Property. For each document, the log described the contents; listed the author,
intended recipients, and date of creation; and noted whether the author or intended recipients
were attorneys. A supplement to the log indicated the title or titles of each person therein named
who was not an attorney. The Kinzig Declaration stated that the documents had been
disseminated to various “teams” of company employees and contractors, and explained the
duties of each team. According to Kinzig, all the teams were “involved in seeking or giving legal
advice and/or gathering and recording information in anticipation of or preparation for litigation.”
The Kinzig Declaration states also that every employee and contractor named in the privilege
log was “bound not to disclose confidential information to persons outside GSK” without
receiving permission from a high-ranking official of the Company.
The Commission then filed a reply brief in which it made yet another argument for the first time:
The attorney-client privilege does not shield the documents because they contain no
confidential information.
The district court ordered GSK to produce the 91 documents. The court rejected GSK’s claims
of attorney-client privilege on the grounds that (1) “GSK had not sustained its burden of
demonstrating that the relevant documents were distributed on a ‘need to know’ basis or to
employees that were ‘authorized to speak or act’ for GSK," and (2) the Company had “failed to
provide sufficient evidence that the information contained therein is confidential.” The court
rejected GSK’s claims of attorney work product for the reason withdrawn by the Commission,
namely, that “GSK failed to set forth objective facts that support the corporation’s assertion that
the relevant documents were created in anticipation of litigation.” Having determined that “even
if GSK is not precluded from asserting the privilege for attorney work product, it has failed to
satisfy its burden of showing the applicability of the doctrine to the relevant documents,” the
district court found it unnecessary to resolve whether the decision in Apotex estopped GSK from
claiming otherwise. GSK sought and we granted a stay pending appeal.
II. Analysis
GSK contends the district court erred both by rejecting its claims of privilege based upon
arguments the Commission did not raise properly and by misapplying the standard for
determining whether a corporation has kept confidential the contents of a communication. The

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Commission defends the decision of the district court and argues that GSK is collaterally
estopped in any event, by reason of the Apotex litigation, from claiming the 34 documents are
attorney work product.
The district court held that GSK failed to establish either of two prerequisites for recognition of
the attorney-client privilege — that the documents contain confidential information and that they
have been kept confidential. As the Company points out, during the parties’ negotiations the
Commission did not dispute that the documents contain confidential information. The
Commission did not even raise the argument in its opening brief before the district court, waiting
instead until its reply brief and thereby depriving GSK of any opportunity to respond.
The Commission had agreed, pursuant to the Scheduling Stipulation approved by the district
court, to inform GSK of its reasons for disputing the Company's claims of privilege before asking
the court for a ruling. The Commission therefore was bound not to put before the district court
any objection not first raised with its adversary. Accordingly, the district court abused its
discretion when it ruled against GSK based upon an argument that was raised not only in
violation of the Scheduling Stipulation but so belatedly that the Company had no chance to
respond to it.
The question that remains is whether the district court erred in ruling that GSK failed to satisfy
the second prerequisite for attorney-client privilege — that the documents have been kept
confidential. GSK contends that this issue, too, was raised in a manner that deprived the
Company of an opportunity to respond. We think not. The Commission took the position in its
negotiations with GSK that the Company had lost its claim of privilege by disseminating the
documents widely. This argument put the Company on notice that it needed to establish it had
kept the documents confidential. The Commission renewed the point in its opening brief to the
district court thus: “In view of the breadth of distribution and GSK’s failure to carry its burden of
establishing that each and every recipient had a demonstrable ‘need to know,’ GSK’s assertions
of attorney-client privilege must fail." And the Company joined this argument on the merits
before the district court. Having defended as sufficient the evidence it submitted to the district
court on this point, GSK may not now claim it was unfairly surprised by the argument.
Although the district court was correct to entertain the Commission’s second argument, it erred
in resolving the legal issue. The applicable standard is, as the district court recognized, whether
the “the documents were distributed on a ‘need to know’ basis or to employees that were
‘authorized to speak or act’ for the company.” The Company’s privilege log and the affidavit of
Charles Kinzig establish that GSK circulated the documents in question only to specifically
named employees and contractors, most of whom were attorneys or managers and all of whom
“needed to provide input to the legal department and/or receive the legal advice and strategies
formulated by counsel.” The affidavit also states that each intended recipient was bound by
corporate policy or, in the case of the contractors, by a separate understanding, to keep
confidential the contents of the documents. The Company’s submission thus leads ineluctably to
the conclusion that no document was “disseminated beyond those persons who, because of the
corporate structure, needed to know its contents.”

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The district court faulted GSK for not having explained “why any, let alone all, of the employees
received copies of certain documents,” and the Commission likewise claims on brief that GSK
should have shown why each individual in possession of a confidential document “needed the
information therein to carry out his/her work.” These demands are overreaching. The
Company’s burden is to show that it limited its dissemination of the documents in keeping with
their asserted confidentiality, not to justify each determination that a particular employee should
have access to the information therein. Not only would that task be Herculean — especially
when the sender and the recipient are no longer with the Company — but it is wholly
unnecessary. After all, when a corporation provides a confidential document to certain specified
employees or contractors with the admonition not to disseminate further its contents and the
contents of the documents are related generally to the employees’ corporate duties, absent
evidence to the contrary we may reasonably infer that the information was deemed necessary
for the employees’ or contractors’ work. We do not presume, therefore, that any business would
include in a restricted circulation list a person with no reason to have access to the confidential
document — that is, one who has no “need to know.”
Moreover, we can imagine no useful purpose in having a court review the business judgment of
each corporate official who deemed it necessary or desirable for a particular employee or
contractor to have access to a corporate secret. It suffices instead that the corporation limited
dissemination to specific individuals whose corporate duties relate generally to the contents of
the documents. As we have seen in this case, the privilege log and the Kinzig Declaration
together establish that GSK did just that, and the Company thereby demonstrated its entitlement
to the attorney-client privilege. The FTC has proffered nothing to the contrary.
Our conclusion that the documents are protected by the attorney-client privilege extends also to
those communications that GSK shared with its public relations and government affairs
consultants. The Kinzig affidavit notes that GSK’s corporate counsel “worked with these
consultants in the same manner as they did with full-time employees; indeed, the consultants
acted as part of a team with full-time employees regarding their particular assignments” and, as
a result, the consultants “became integral members of the team assigned to deal with issues
that were completely intertwined with GSK’s litigation and legal strategies.” In these
circumstances, “there is no reason to distinguish between a person on the corporation’s payroll
and a consultant hired by the corporation if each acts for the corporation and possesses the
information needed by attorneys in rendering legal advice.”
Questions:
1. Why does it matter for the attorney-client privilege whether an agent of an organization
“needed to know” about a communication?
2. How demanding is the “need to know” standard?
3. When does an agent of an organization fail to satisfy the “need to know” standard?
Independent Contractors

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Steinfeld v. IMS Health Inc., No. 10 Civ. 3301 (S.D.N.Y. 2011)
PAUL E. DAVISON, Magistrate Judge.
By letter dated October 31, 2011, Plaintiff seeks an order compelling Defendant to produce
certain documents containing communications shared between attorneys for Defendant and a
compensation consulting firm and its principal, Steven Root. Defendant’s offer to produce the
documents at issue for in camera inspection was accepted and that material has been
reviewed.
IMS retained Root as an independent equity compensation consultant.77 He advises IMS
directors and counsel on matters involving the company’s executive compensation and benefits
plans and disclosure obligations. On this basis, Defendant contends that the communications
shared between counsel for IMS and Root are protected by the attorney-client privilege.
Defendant relies upon the theory announced by the Eighth Circuit in In re Bieter Co., and which
a small number of district courts within this circuit have recognized. Under this authority, the
privilege is extended in certain narrow instances to protect “communications between a
corporation’s attorney and outside agents or consultants to the corporation who act as the
functional equivalent of a corporate employee.” Defendant specifically argues that Root was the
functional equivalent of an IMS employee because he “contributed to the rendering of legal
advice in communications with the client's outside counsel,” was “necessary to such
communications,” and “possessed information needed by IMS counsel in order to render legal
advice” to their client.
Generally, the presence of third parties waives entitlement to the attorney-client privilege. While,
as discussed below, certain exceptions apply, courts should be cautious when expanding the
privilege’s application. The party asserting entitlement to the privilege bears the burden of proof.
Because the cases relied upon by counsel in this matter are extremely fact-specific, I first
discuss Bieter and other cases applying its functional equivalence test.
In Bieter, a two-man partnership formed for purposes of developing farm land. A third-party real
estate consultant was retained who worked out of the company's office for several years. The
consultant's primary duty was to secure tenants for the development project. He also worked
directly with architects, other consultants, and attorneys on matters related to the project and its
ensuing litigation. He appeared on behalf of the company at public hearings and was viewed by
the public as a representative of the company. Accordingly, the court determined that “there was
no principled basis to distinguish the consultant’s role from that of an employee, and his
involvement in the subject matter of the litigation makes him precisely the sort of person with
whom a lawyer would wish to confer confidentially in order to understand the company’s
reasons for seeking representation.”
77

Although Root is an attorney, Defendant acknowledges that IMS retained him as a compensation
consultant and not as a legal advisor.

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In In re Copper Market Antitrust Litigation, a Japanese corporation retained a public relations
firm as an independent consultant after a corporate executive disclosed information which
prompted government investigations and litigation. The corporation had no experience with, or
other employees who could deal with, public relations communications in the English-speaking,
Western media. The PR firm issued press statements on behalf of the corporation and
otherwise communicated with the Western press as an agent of the corporation. In the course of
preparing and making its communications and statements, the firm consulted with the
corporation's in-house and outside counsel. The firm also had the authority to make
independent decisions on the corporation's behalf with respect to public relations matters.
Accordingly, the court determined that the firm was the functional equivalent of a corporate
employee.
In Twentieth Century Fox Film Corporation v. Marvel Enterprises, a studio contracted with
individuals as independent contractors to perform movie production services. The film produced
became the subject of ensuing litigation. The court held that the contractors were the functional
equivalent of employees because “the sporadic nature of employment in the motion picture
industry dictates the use of independent contractors over employees.”
In In re Adelphia Communications Corporation, an independent credit counseling firm was
retained as an independent contractor. An employee of the contractor worked full-time at the
corporation for three years. He held substantial responsibility with respect to the corporation's
relations with another company. He also became the primary contact person between the
corporation and the other company, and was given authority to make decisions and to speak on
behalf of the corporation. In addition, the employee of the contractor sought legal advice from
the corporation's counsel as part of his job duties. Accordingly, the court held that this individual
was “the functional equivalent of a corporate employee.”
In American Manufacturers Mutual Insurance Company v. Payton Lane Nursing Home, an
independent construction management contractor was retained by a company for purposes of
overseeing the daily operations of a construction project. The company itself did not send its
own employees to the construction site, nor did it employ staff with construction experience. The
contractor was given authority to speak for, and to make decisions on behalf of, the company
relating to the construction project. This included negotiating with contractors and pursuing
payments. The contractor also sought legal advice from the company’s attorney regarding the
construction project. Accordingly, the court held that the contractor served as the company's
“eyes and ears” and was therefore the functional equivalent of an employee.
In contrast, in Export-Import Bank of the United States v. Asia Pulp and Paper Company, a
Singapore corporation retained an independent financial consultant to help the corporation
restructure its debt. The corporation did not have employees of its own with experience in
restructuring. The consultant negotiated on behalf of the corporation and communicated the
corporation’s positions to creditors. Although the corporation provided the consultant with office
space in its building, the office was not used. Additionally, the court determined that the

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consultant did not spend a sufficient amount of his time working with corporation. Accordingly,
the court held that the party asserting entitlement to the attorney-client privilege failed to meet
its burden to show that the consultant was “so fully integrated into the corporation’s hierarchy as
to be a de facto employee.”
In this case, Defendant has failed to meet its burden to show that Root is the functional
equivalent of an IMS employee. First, there is no indication that IMS uses independent
contractors instead of employees because its business is sporadic. Second, there is no
evidence that Root has ever appeared on behalf of IMS, corresponded with third parties as a
representative of IMS, or has been viewed by others as an employee of IMS. In camera review
of the documents at issue reveals that Root frequently signed his emails as the managing
director of his consulting firm and submitted memoranda on his own firm’s letterhead.
Third, Defendant offers nothing to suggest that Root was so physically present that he
functioned as a de facto employee. For example, there is nothing to indicate that Root has ever
maintained an office at IMS or otherwise spent a substantial amount of his time interacting with,
and working on behalf of, the corporation.
Fourth, Defendant offers nothing to show that IMS lacked the internal resources necessary for
an employee to perform Root’s services. Indeed, as in camera review tends to confirm. Root
participated as part of a “team” of IMS employees and outside counsel.
Fifth, the evidence presented does not reveal that Root exercises any measure of independent
decision-making authority within this team. Instead, it appears that Root’s role was to provide
suggestions, comments, and (non-legal) advice.
Finally, Defendant has failed to show that Root has ever sought out legal advice from IMS’s
attorneys as part of his work with the corporation. Rather, the communications reviewed indicate
that it was Root who offered advice and suggestions to counsel and the team in general.
Root’s status vis-a-vis Defendant is simply distinguishable from the situations in those cases
that have followed Bieter. Root is not, therefore, the functional equivalent of an IMS employee.78
Accordingly, Plaintiffs request to compel production Is GRANTED. Defendant is directed to
produce to Plaintiff the documents shared with Mr. Root or his firm no later than December 16,
2011.
Former Employees

78

To the extent Defendant separately argues the privilege applies because Root acted as an agent of
IMS who had information necessary for counsel to render legal advice to IMS, Defendant has similarly
failed to meet its burden of proof. An attorney's communications with a third party will be privileged “if the
third party's role is limited to helping a lawyer give effective advice by explaining concepts to the lawyer.”
Here, Root’s role was simply more expansive than this. He did not explain unfamiliar concepts to counsel,
but instead provided the “team” with suggestions and advice on what actions may be undertaken. Such
communications are not privileged.

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473
US v. Merck-Medco Managed Care, LLC, 340 F. Supp. 2d 554 (E.D. Pa. 2004)
SCUDERI, United States Magistrate Judge.
After consideration of a Motion to Compel Testimony From Susan Elliott filed by the United
States Government, the Response of Defendants, Merck-Medco Managed Care, LLC, Plaintiffs
Reply, and Medco Defendants’ Sur-Reply, it is hereby ORDERED that the Motion is GRANTED,
as follows:
In the instant motion, Plaintiffs seek to compel additional testimony from Susan Elliott, a former
employee of Medco Defendants. Plaintiffs deposed Ms. Elliott on July 28, 2004, at which time
she testified that she did not have her own attorney, and that she was not represented by
counsel for Medco Defendants. Counsel for Medco Defendants confirmed that they did not
represent Ms. Elliott. Nevertheless, counsel for Medco Defendants asserted the attorney-client
privilege and instructed Ms. Elliott not to answer any questions concerning communications
between Medco Defendants and Ms. Elliott in preparation for her deposition, or concerning
communications that occurred during breaks in her deposition. Ms. Elliott complied with all
instructions not to answer such questions.
Statements made under oath by Ms. Elliott at her deposition clearly differed from statements
she previously made regarding certain activities which are material to this case. As a result,
Plaintiffs seek additional testimony from Ms. Elliott regarding four (4) specific categories of
questions:
a. Statements made by Medco Defendants’ counsel to Ms. Elliott regarding the nature of
the case;
b. Statements made by Ms. Elliott to Medco Defendants’ counsel regarding her
conversations with Government investigators;
c. Descriptions and/or summaries of witness testimony provided to Ms. Elliott by counsel
for Medco Defendants; and
d. Conversations between counsel for Medco Defendants and Ms. Elliott while she was
under oath during the deposition.
Plaintiffs argue that they are entitled to question Ms. Elliott on these topics because her
communications with corporate counsel had the potential to “affect, influence or change” Ms.
Elliott’s testimony.
Medco Defendants oppose the current motion, arguing that all of the communications at issue
between Ms. Elliott and counsel for Medco Defendants are protected by the attorney-client
privilege because the privilege should be applied in the same way for former employees as for
current employees.
In Upjohn Co. v. United States, the Supreme Court held that a corporation’s attorneys’
conversations with current corporate employees could be covered by the attorney-client

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privilege. The privilege applies when the conversations: (1) were made to the corporate counsel,
acting as such; (2) were made at the direction of corporate supervisors for the purpose of
securing legal advice from counsel; (3) concerned matters within the scope of the employees’
corporate duties; and (4) the employees were sufficiently aware that they were being questioned
in order that the corporation could obtain legal advice. In a concurring opinion, Chief Justice
Berger opined that the attorney-client privilege should be extended to protect communications
between corporate counsel and former employees. Nevertheless, the Supreme Court in Upjohn
left open the question of whether communications between corporate counsel and former
employees were included within the privilege.
As noted by the parties, the Third Circuit has not addressed the question left open by the
Supreme Court in Upjohn. Moreover, although this Court has acknowledged that the Upjohn
privilege may apply to former employees as well as current employees, that case is factually
distinguishable and did not specifically address whether corporate counsel’s communications
with a former employee are privileged as to the four discrete topics at issue in the instant
motion.
Fortunately, other federal courts have addressed the present issue under similar circumstances.
In Infosystems, Inc. v. Ceridian Corp., the District Court for the Eastern District of Michigan
extended the privilege over former employees, but limited it to communications which
themselves were privileged and which occurred during the employment relationship. The Court
explained that the willingness of former employees to provide information is generally unrelated
to directions from former corporate superiors and, therefore, “counsel’s communications with a
former employee of the client corporation generally should be treated no differently from
communications with any other third-party fact witness.” In City of New York v. Coastal Oil New
York, Inc., the District Court for the Southern District of New York confronted the same issue
presented here, namely, whether plaintiffs’ counsel should be permitted to question a former
employee of the defendant corporation about conversations he had with corporate defense
counsel in preparation for his deposition, as well as conversations that may have occurred
during a recess in the deposition. The Court concluded that, because corporate counsel did not
represent the former employee and there was no evidence that the conversations occurred for
the purpose of legal advice, the record did not contain any basis for an assertion of the attorneyclient privilege. In so holding, the District Court in Coastal Oil explicitly followed the reasoning of
Peralta.
In Peralta, the District Court for the District of Connecticut rejected a defendant corporation's
attempt to utilize the attorney-client privilege to block all questions about communications
between corporate counsel and a former employee. Instead, the court limited the privilege to
communications that either: (1) concerned knowledge obtained or conduct that occurred during
the course of the former employee's employment; or (2) related to communications which were
themselves privileged and which occurred during the employment relationship. Importantly, the
court specified that the attorney-client privilege would not apply in certain specific
circumstances, such as to information given by corporate counsel to the former employee
regarding the testimony of other witnesses, or to discussions between the former employee and

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475
corporate counsel during breaks in a deposition. These are virtually the same circumstances
present here. Moreover, the court in Peralta explained that allowing limited discovery regarding
such communications was particularly necessary “given their potential to influence a witness to
conform or adjust her testimony to such information, consciously or unconsciously.” The
identical concern is present here.
The Court is persuaded by the reasoning set forth in the aforementioned cases, as well as both
the reasoning and the practical solutions set forth by the District Courts in Peralta and Coastal
Oil. The Court is aware of potential difficulties in separating facts developed during litigation,
which are not privileged pursuant to the aforementioned case law, and facts known by the
employee as a result of her employment, which likely would be privileged. However, as the court
in Peralta made clear, the line to be drawn is not difficult: if the communication sought to be
elicited relates to Ms. Elliott’s conduct or knowledge during her employment with Medco
Defendants, or if it concerns conversations with corporate counsel that occurred during her
employment, the communication is privileged; if not, the attorney-client privilege does not apply.
As a result of the foregoing - and because it is apparent that the communications between Ms.
Elliott and Medco Defendants’ may have influenced her testimony - Plaintiffs’ motion is granted.
However, Plaintiffs may obtain additional testimony from Ms. Elliott only regarding the four
specific avenues of inquiry previously discussed, and in a manner consistent with the limitations
set forth above.
Questions:

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476
5.6: The Work Product Doctrine
Let's make some plans ‘cause they can’t go wrong. Getting there may be times three maybe
not. To loosen your lips and you’re talking rubbish. To loosen your whole mistaken tenfold.79
Andy said a lot of things, I stored them all away in my head. Sometimes, when I can't decide
what I should do, I think, “What would Andy have said?” He’d probably say, “You think too
much, that’s ‘cause there's work that you don't want to do.” It’s work. The most important thing is
work.80
The “Work Product Doctrine” is an evidentiary privilege providing that attorneys ordinarily cannot
be required to produce documents they created in the course of preparing for litigation. It
applies to the notes, records, and other documents created by attorneys in gathering
information in preparation for litigation and in the course of preparing litigation documents.
The work product doctrine differs from the attorney-client privilege in several respects. First, it
applies to different subject matter. The attorney-client privilege applies to confidential
communications with clients for the purpose of providing legal advice, but the work product
doctrine applies to certain documents created by attorneys, whether or not those documents are
communicated to the client. Second, it belongs to a different party. The attorney-client privilege
belongs to the client, so the client is the only person who can waive the privilege, but the work
product doctrine belongs to the attorney. Third, it is not as strong. The attorney-client privilege is
sacrosanct and abrogated only if abused, but the work product doctrine can give way to
necessity.
Notably, the work product doctrine may cover any documents created by or for an attorney in
anticipation of litigation. This requirement is generally interpreted liberally. A document is
created “in anticipation of litigation” if litigation is conceivable, even if no actual litigation has
commenced. In addition, the document need not be created by an attorney. A document created
for an attorney in anticipation of litigation may be protected by the work product doctrine.
However, while the protection provided by the work product doctrine is broader than the
protection provided by the attorney-client privilege, it is also weaker. Unlike the attorney-client
privilege, the work product doctrine can be overcome by a showing of necessity. Specifically,
courts distinguish between “fact” and “opinion” work product. Fact work product is factual
documents created in anticipation of litigation, and opinion work product is documents that
reflect the mental impressions, conclusions, opinions or legal theories of an attorney. Fact work
product is discoverable if the opposing party can show a substantial need for the document, and
it cannot obtain the relevant information by other means, without undue hardship. But opinion
work product generally is not discoverable, unless one of the exceptions to the attorney-client
privilege applies.

79
80

Close Lobsters, Let’s Make Some Plans, What Is There To Smile About (1988).
Lou Reed & John Cale, Work, Songs for Drella (1990).

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For example, if an attorney records an interview with a non-client witness and takes notes, the
recording and notes will be protected by the work product doctrine, but not the attorney-client
privilege. Under the work product doctrine, neither the recording nor the notes would normally
be discoverable, as opposing counsel can interview the witness independently. But if the
witness is unavailable, then opposing counsel may be entitled to limited discovery, to the extent
necessary to obtain material information. Typically, the interview would be discoverable
because it is fact work product, but the attorney’s notes would not be discoverable because they
are opinion work product. If fact work product and opinion work product are combined in the
same document, then the opinion work product would be redacted before the document is
produced.
Federal Rule of Civil Procedure 26: General Provisions Governing Discovery
b. Discovery Scope and Limits.
3. Trial Preparation: Materials.
A. Documents and Tangible Things. Ordinarily, a party may not discover
documents and tangible things that are prepared in anticipation of
litigation or for trial by or for another party or its representative (including
the other party's attorney, consultant, surety, indemnitor, insurer, or
agent). But, subject to Rule 26(b)(4), those materials may be discovered
if:
i.
they are otherwise discoverable under Rule 26(b)(1); and
ii.
the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.
B. Protection Against Disclosure. If the court orders discovery of those
materials, it must protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party's attorney or other
representative concerning the litigation.
C. Previous Statement. Any party or other person may, on request and
without the required showing, obtain the person's own previous statement
about the action or its subject matter. If the request is refused, the person
may move for a court order, and Rule 37(a)(5) applies to the award of
expenses. A previous statement is either:
i.
a written statement that the person has signed or otherwise
adopted or approved; or
ii.
a contemporaneous stenographic, mechanical, electrical, or other
recording—or a transcription of it—that recites substantially
verbatim the person's oral statement.

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478

The J.M. Taylor, Philadelphia, Pa. (~1940)
Hickman v. Taylor, 329 U.S. 495 (1947)
Summary: A tugboat sank and five crewmen died. The owners and insurers were
represented by Fortenbaugh, who interviewed the surviving crewmen and memorialized
the interviews. The estates of the dead crewmen filed wrongful death actions against the
owners, all of which settled but one. Plaintiff’s counsel asked Fortenbaugh to produce
any information related to the interviews. Fortenbaugh refused, the district court ordered
him to produce the information, and the circuit court reversed, under the work product
doctrine. The Supreme Court affirmed, holding that work product is discoverable only
with a sufficient showing of necessity.
MR. JUSTICE MURPHY delivered the opinion of the Court.
This case presents an important problem under the Federal Rules of Civil Procedure as to the
extent to which a party may inquire into oral and written statements of witnesses, or other
information, secured by an adverse party’s counsel in the course of preparation for possible
litigation after a claim has arisen. Examination into a person's files and records, including those
resulting from the professional activities of an attorney, must be judged with care. It is not
without reason that various safeguards have been established to preclude unwarranted
excursions into the privacy of a man’s work. At the same time, public policy supports reasonable

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and necessary inquiries. Properly to balance these competing interests is a delicate and difficult
task.
On February 7, 1943, the tug “J.M. Taylor” sank while engaged in helping to tow a car float of
the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. The accident was
apparently unusual in nature, the cause of it still being unknown. Five of the nine crew members
were drowned. Three days later the tug owners and the underwriters employed a law firm, of
which respondent Fortenbaugh is a member, to defend them against potential suits by
representatives of the deceased crew members and to sue the railroad for damages to the tug.
A public hearing was held on March 4, 1943, before the United States Steamboat Inspectors, at
which the four survivors were examined. This testimony was recorded and made available to all
interested parties. Shortly thereafter, Fortenbaugh privately interviewed the survivors and took
statements from them with an eye toward the anticipated litigation; the survivors signed these
statements on March 29. Fortenbaugh also interviewed other persons believed to have some
information relating to the accident and in some cases he made memoranda of what they told
him. At the time when Fortenbaugh secured the statements of the survivors, representatives of
two of the deceased crew members had been in communication with him. Ultimately claims
were presented by representatives of all five of the deceased; four of the claims, however, were
settled without litigation. The fifth claimant, petitioner herein, brought suit in a federal court
under the Jones Act on November 26, 1943, naming as defendants the two tug owners,
individually and as partners, and the railroad.
One year later, petitioner filed 39 interrogatories directed to the tug owners. The 38th
interrogatory read: “State whether any statements of the members of the crews of the Tugs
‘J.M. Taylor’ and ‘Philadelphia’ or of any other vessel were taken in connection with the towing
of the car float and the sinking of the Tug ‘John M. Taylor.’ Attach hereto exact copies of all
such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral
statements or reports.”
Supplemental interrogatories asked whether any oral or written statements, records, reports or
other memoranda had been made concerning any matter relative to the towing operation, the
sinking of the tug, the salvaging and repair of the tug, and the death of the deceased. If the
answer was in the affirmative, the tug owners were then requested to set forth the nature of all
such records, reports, statements or other memoranda.
The tug owners, through Fortenbaugh, answered all of the interrogatories except No. 38 and the
supplemental ones just described. While admitting that statements of the survivors had been
taken, they declined to summarize or set forth the contents. They did so on the ground that such
requests called “for privileged matter obtained in preparation for litigation” and constituted “an
attempt to obtain indirectly counsel’s private files.” It was claimed that answering these requests
“would involve practically turning over not only the complete files, but also the telephone records
and, almost, the thoughts of counsel.”

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480
In connection with the hearing on these objections, Fortenbaugh made a written statement and
gave an informal oral deposition explaining the circumstances under which he had taken the
statements. But he was not expressly asked in the deposition to produce the statements. The
District Court for the Eastern District of Pennsylvania, sitting en banc, held that the requested
matters were not privileged. The court then decreed that the tug owners and Fortenbaugh, as
counsel and agent for the tug owners, forthwith “answer Plaintiff’s 38th interrogatory and
supplementary interrogatories; produce all written statements of witnesses obtained by Mr.
Fortenbaugh, as counsel and agent for Defendants; state in substance any fact concerning this
case which Defendants learned through oral statements made by witnesses to Mr. Fortenbaugh
whether or not included in his private memoranda and produce Mr. Fortenbaugh’s memoranda
containing statements of fact by witnesses or to submit these memoranda to the Court for
determination of those portions which should be revealed to Plaintiff.” Upon their refusal, the
court adjudged them in contempt and ordered them imprisoned until they complied.
The Third Circuit Court of Appeals, also sitting en banc, reversed the judgment of the District
Court. It held that the information here sought was part of the “work product of the lawyer” and
hence privileged from discovery under the Federal Rules of Civil Procedure. The importance of
the problem, which has engendered a great divergence of views among district courts, led us to
grant certiorari.
The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most
significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice,
the pre-trial functions of notice-giving, issue-formulation and fact-revelation were performed
primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was
narrowly confined and was often cumbersome in method. The new rules, however, restrict the
pleadings to the task of general notice-giving and invest the deposition-discovery process with a
vital role in the preparation for trial. The various instruments of discovery now serve (1) as a
device, along with the pre-trial hearing under Rule 16, to narrow and clarify the basic issues
between the parties, and (2) as a device for ascertaining the facts, or information as to the
existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts
no longer need be carried on in the dark. The way is now clear, consistent with recognized
privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before
trial.
In urging that he has a right to inquire into the materials secured and prepared by Fortenbaugh,
petitioner emphasizes that the deposition-discovery portions of the Federal Rules of Civil
Procedure are designed to enable the parties to discover the true facts and to compel their
disclosure wherever they may be found. It is said that inquiry may be made under these rules,
epitomized by Rule 26, as to any relevant matter which is not privileged; and since the discovery
provisions are to be applied as broadly and liberally as possible, the privilege limitation must be
restricted to its narrowest bounds. On the premise that the attorney-client privilege is the one
involved in this case, petitioner argues that it must be strictly confined to confidential
communications made by a client to his attorney. And since the materials here in issue were

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481
secured by Fortenbaugh from third persons rather than from his clients, the tug owners, the
conclusion is reached that these materials are proper subjects for discovery under Rule 26.
As additional support for this result, petitioner claims that to prohibit discovery under these
circumstances would give a corporate defendant a tremendous advantage in a suit by an
individual plaintiff. Thus in a suit by an injured employee against a railroad or in a suit by an
insured person against an insurance company the corporate defendant could pull a dark veil of
secrecy over all the pertinent facts it can collect after the claim arises merely on the assertion
that such facts were gathered by its large staff of attorneys and claim agents. At the same time,
the individual plaintiff, who often has direct knowledge of the matter in issue and has no counsel
until some time after his claim arises could be compelled to disclose all the intimate details of
his case. By endowing with immunity from disclosure all that a lawyer discovers in the course of
his duties, it is said, the rights of individual litigants in such cases are drained of vitality and the
lawsuit becomes more of a battle of deception than a search for truth.
But framing the problem in terms of assisting individual plaintiffs in their suits against corporate
defendants is unsatisfactory. Discovery concededly may work to the disadvantage as well as to
the advantage of individual plaintiffs. Discovery, in other words, is not a one-way proposition. It
is available in all types of cases at the behest of any party, individual or corporate, plaintiff or
defendant. The problem thus far transcends the situation confronting this petitioner. And we
must view that problem in light of the limitless situations where the particular kind of discovery
sought by petitioner might be used.
We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal
treatment. No longer can the time-honored cry of “fishing expedition” serve to preclude a party
from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant
facts gathered by both parties is essential to proper litigation. To that end, either party may
compel the other to disgorge whatever facts he has in his possession. The deposition-discovery
procedure simply advances the stage at which the disclosure can be compelled from the time of
trial to the period preceding it, thus reducing the possibility of surprise. But discovery, like all
matters of procedure, has ultimate and necessary boundaries. As indicated by Rules 30(b) and
(d) and 31(d), limitations inevitably arise when it can be shown that the examination is being
conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person
subject to the inquiry. And as Rule 26(b) provides, further limitations come into existence when
the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.
We also agree that the memoranda, statements and mental impressions in issue in this case fall
outside the scope of the attorney-client privilege and hence are not protected from discovery on
that basis. It is unnecessary here to delineate the content and scope of that privilege as
recognized in the federal courts. For present purposes, it suffices to note that the protective
cloak of this privilege does not extend to information which an attorney secures from a witness
while acting for his client in anticipation of litigation. Nor does this privilege concern the
memoranda, briefs, communications and other writings prepared by counsel for his own use in

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prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's
mental impressions, conclusions, opinions or legal theories.
But the impropriety of invoking that privilege does not provide an answer to the problem before
us. Petitioner has made more than an ordinary request for relevant, non-privileged facts in the
possession of his adversaries or their counsel. He has sought discovery as of right of oral and
written statements of witnesses whose identity is well known and whose availability to petitioner
appears unimpaired. He has sought production of these matters after making the most
searching inquiries of his opponents as to the circumstances surrounding the fatal accident,
which inquiries were sworn to have been answered to the best of their information and belief.
Interrogatories were directed toward all the events prior to, during and subsequent to the sinking
of the tug. Full and honest answers to such broad inquiries would necessarily have included all
pertinent information gleaned by Fortenbaugh through his interviews with the witnesses.
Petitioner makes no suggestion, and we cannot assume, that the tug owners or Fortenbaugh
were incomplete or dishonest in the framing of their answers. In addition, petitioner was free to
examine the public testimony of the witnesses taken before the United States Steamboat
Inspectors. We are thus dealing with an attempt to secure the production of written statements
and mental impressions contained in the files and the mind of the attorney Fortenbaugh without
any showing of necessity or any indication or claim that denial of such production would unduly
prejudice the preparation of petitioner's case or cause him any hardship or injustice. For aught
that appears, the essence of what petitioner seeks either has been revealed to him already
through the interrogatories or is readily available to him direct from the witnesses for the asking.
The District Court, after hearing objections to petitioner's request, commanded Fortenbaugh to
produce all written statements of witnesses and to state in substance any facts learned through
oral statements of witnesses to him. Fortenbaugh was to submit any memoranda he had made
of the oral statements so that the court might determine what portions should be revealed to
petitioner. All of this was ordered without any showing by petitioner, or any requirement that he
make a proper showing, of the necessity for the production of any of this material or any
demonstration that denial of production would cause hardship or injustice. The court simply
ordered production on the theory that the facts sought were material and were not privileged as
constituting attorney-client communications.
In our opinion, neither Rule 26 nor any other rule dealing with discovery contemplates
production under such circumstances. That is not because the subject matter is privileged or
irrelevant, as those concepts are used in these rules.81 Here is simply an attempt, without

81

The English courts have developed the concept of privilege to include all documents prepared by or for
counsel with a view to litigation. “All documents which are called into existence for the purpose — but not
necessarily the sole purpose — of assisting the deponent or his legal advisers in any actual or anticipated
litigation are privileged from production. Thus all proofs, briefs, draft pleadings, etc., are privileged; but not
counsel’s indorsement on the outside of his brief, nor any deposition or notes of evidence given publicly
party bona fide for the use of his solicitor for the purposes of the action, whether in fact so used or not.
Reports by a company’s servant, if made in the ordinary course of routine, are not privileged, even though
it is desirable that the solicitor should have them and they are subsequently sent to him; but if the solicitor

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purported necessity or justification, to secure written statements, private memoranda and
personal recollections prepared or formed by an adverse party’s counsel in the course of his
legal duties. As such, it falls outside the arena of discovery and contravenes the public policy
underlying the orderly prosecution and defense of legal claims. Not even the most liberal of
discovery theories can justify unwarranted inquiries into the files and the mental impressions of
an attorney.
Historically, a lawyer is an officer of the court and is bound to work for the advancement of
justice while faithfully protecting the rightful interests of his clients. In performing his various
duties, however, it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's
case demands that he assemble information, sift what he considers to be the relevant from the
irrelevant facts, prepare his legal theories and plan his strategy without undue and needless
interference. That is the historical and the necessary way in which lawyers act within the
framework of our system of jurisprudence to promote justice and to protect their clients'
interests. This work is reflected, of course, in interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and
intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as
the “work product of the lawyer.” Were such materials open to opposing counsel on mere
demand, much of what is now put down in writing would remain unwritten. An attorney’s
thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices
would inevitably develop in the giving of legal advice and in the preparation of cases for trial.
The effect on the legal profession would be demoralizing. And the interests of the clients and
the cause of justice would be poorly served.
We do not mean to say that all written materials obtained or prepared by an adversary’s counsel
with an eye toward litigation are necessarily free from discovery in all cases. Where relevant
and non-privileged facts remain hidden in an attorney’s file and where production of those facts
is essential to the preparation of one’s case, discovery may properly be had. Such written
statements and documents might, under certain circumstances, be admissible in evidence or
give clues as to the existence or location of relevant facts. Or they might be useful for purposes
of impeachment or corroboration. And production might be justified where the witnesses are no
longer available or can be reached only with difficulty. Were production of written statements
and documents to be precluded under such circumstances, the liberal ideals of the depositiondiscovery portions of the Federal Rules of Civil Procedure would be stripped of much of their
meaning. But the general policy against invading the privacy of an attorney’s course of
preparation is so well recognized and so essential to an orderly working of our system of legal
procedure that a burden rests on the one who would invade that privacy to establish adequate
reasons to justify production through a subpoena or court order. That burden, we believe, is
necessarily implicit in the rules as now constituted.

has requested that such documents shall always be prepared for his use and this was one of the reasons
why they were prepared, they need not be disclosed.”

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Rule 30(b), as presently written, gives the trial judge the requisite discretion to make a judgment
as to whether discovery should be allowed as to written statements secured from witnesses. But
in the instant case there was no room for that discretion to operate in favor of the petitioner. No
attempt was made to establish any reason why Fortenbaugh should be forced to produce the
written statements. There was only a naked, general demand for these materials as of right and
a finding by the District Court that no recognizable privilege was involved. That was insufficient
to justify discovery under these circumstances and the court should have sustained the refusal
of the tug owners and Fortenbaugh to produce.
But as to oral statements made by witnesses to Fortenbaugh, whether presently in the form of
his mental impressions or memoranda, we do not believe that any showing of necessity can be
made under the circumstances of this case so as to justify production. Under ordinary
conditions, forcing an attorney to repeat or write out all that witnesses have told him and to
deliver the account to his adversary gives rise to grave dangers of inaccuracy and
untrustworthiness. No legitimate purpose is served by such production. The practice forces the
attorney to testify as to what he remembers or what he saw fit to write down regarding
witnesses’ remarks. Such testimony could not qualify as evidence; and to use it for
impeachment or corroborative purposes would make the attorney much less an officer of the
court and much more an ordinary witness. The standards of the profession would thereby suffer.
Denial of production of this nature does not mean that any material, non-privileged facts can be
hidden from the petitioner in this case. He need not be unduly hindered in the preparation of his
case, in the discovery of facts or in his anticipation of his opponents’ position. Searching
interrogatories directed to Fortenbaugh and the tug owners, production of written documents
and statements upon a proper showing and direct interviews with the witnesses themselves all
serve to reveal the facts in Fortenbaugh’s possession to the fullest possible extent consistent
with public policy. Petitioner’s counsel frankly admits that he wants the oral statements only to
help prepare himself to examine witnesses and to make sure that he has overlooked nothing.
That is insufficient under the circumstances to permit him an exception to the policy underlying
the privacy of Fortenbaugh’s professional activities. If there should be a rare situation justifying
production of these matters, petitioner's case is not of that type.
We fully appreciate the wide-spread controversy among the members of the legal profession
over the problem raised by this case. It is a problem that rests on what has been one of the
most hazy frontiers of the discovery process. But until some rule or statute definitely prescribes
otherwise, we are not justified in permitting discovery in a situation of this nature as a matter of
unqualified right. When Rule 26 and the other discovery rules were adopted, this Court and the
members of the bar in general certainly did not believe or contemplate that all the files and
mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And
we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result.
We therefore affirm the judgment of the Circuit Court of Appeals.
MR. JUSTICE JACKSON, concurring.

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The narrow question in this case concerns only one of thirty-nine interrogatories which
defendants and their counsel refused to answer. As there was persistence in refusal after the
court ordered them to answer it, counsel and clients were committed to jail by the district court
until they should purge themselves of contempt.
The interrogatory asked whether statements were taken from the crews of the tugs involved in
the accident, or of any other vessel, and demanded “Attach hereto exact copies of all such
statements if in writing, and if oral, set forth in detail the exact provisions of any such oral
statements or reports.” The question is simply whether such a demand is authorized by the
rules relating to various aspects of “discovery.”
The primary effect of the practice advocated here would be on the legal profession itself. But it
too often is overlooked that the lawyer and the law office are indispensable parts of our
administration of justice. Law-abiding people can go nowhere else to learn the ever changing
and constantly multiplying rules by which they must behave and to obtain redress for their
wrongs. The welfare and tone of the legal profession is therefore of prime consequence to
society, which would feel the consequences of such a practice as petitioner urges secondarily
but certainly.
“Discovery” is one of the working tools of the legal profession. It traces back to the equity bill of
discovery in English Chancery practice and seems to have had a forerunner in Continental
practice. Since 1848 when the draftsmen of New York’s Code of Procedure recognized the
importance of a better system of discovery the impetus to extend and expand discovery, as well
as the opposition to it, has come from within the Bar itself. It happens in this case that it is the
plaintiff’s attorney who demands such unprecedented latitude of discovery and, strangely
enough, amicus briefs in his support have been filed by several labor unions representing
plaintiffs as a class. It is the history of the movement for broader discovery, however, that in
actual experience the chief opposition to its extension has come from lawyers who specialize in
representing plaintiffs, because defendants have made liberal use of it to force plaintiffs to
disclose their cases in advance. Discovery is a two-edged sword and we cannot decide this
problem on any doctrine of extending help to one class of litigants.
It seems clear and long has been recognized that discovery should provide a party access to
anything that is evidence in his case. It seems equally clear that discovery should not nullify the
privilege of confidential communication between attorney and client. But those principles give us
no real assistance here because what is being sought is neither evidence nor is it a privileged
communication between attorney and client.
To consider first the most extreme aspect of the requirement in litigation here, we find it calls
upon counsel, if he has had any conversations with any of the crews of the vessels in question
or of any other, to “set forth in detail the exact provision of any such oral statements or reports.”
Thus the demand is not for the production of a transcript in existence but calls for the creation of
a written statement not in being. But the statement by counsel of what a witness told him is not

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evidence when written. Plaintiff could not introduce it to prove his case. What, then, is the
purpose sought to be served by demanding this of adverse counsel?
Counsel for the petitioner candidly said on argument that he wanted this information to help
prepare himself to examine witnesses, to make sure he overlooked nothing. He bases his claim
to it in his brief on the view that the Rules were to do away with the old situation where a law
suit developed into “a battle of wits between counsel.” But a common law trial is and always
should be an adversary proceeding. Discovery was hardly intended to enable a learned
profession to perform its functions either without wits or on wits borrowed from the adversary.
The real purpose and the probable effect of the practice ordered by the district court would be to
put trials on a level even lower than a “battle of wits.” I can conceive of no practice more
demoralizing to the Bar than to require a lawyer to write out and deliver to his adversary an
account of what witnesses have told him. Even if his recollection were perfect, the statement
would be his language, permeated with his inferences. Every one who has tried it knows that it
is almost impossible so fairly to record the expressions and emphasis of a witness that when he
testifies in the environment of the court and under the influence of the leading question there will
not be departures in some respects. Whenever the testimony of the witness would differ from
the “exact” statement the lawyer had delivered, the lawyer's statement would be whipped out to
impeach the witness. Counsel producing his adversary's “inexact” statement could lose nothing
by saying, “Here is a contradiction, gentlemen of the jury. I do not know whether it is my
adversary or his witness who is not telling the truth, but one is not.” Of course, if this practice
were adopted, that scene would be repeated over and over again. The lawyer who delivers such
statements often would find himself branded a deceiver afraid to take the stand to support his
own version of the witness’s conversation with him, or else he will have to go on the stand to
defend his own credibility — perhaps against that of his chief witness, or possibly even his
client.
Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is
partly because it is not his role; he is almost invariably a poor witness. But he steps out of
professional character to do it. He regrets it; the profession discourages it. But the practice
advocated here is one which would force him to be a witness, not as to what he has seen or
done but as to other witnesses’ stories, and not because he wants to do so but in self-defense.
And what is the lawyer to do who has interviewed one whom he believes to be a biased, lying or
hostile witness to get his unfavorable statements and know what to meet? He must record and
deliver such statements even though he would not vouch for the credibility of the witness by
calling him. Perhaps the other side would not want to call him either, but the attorney is open to
the charge of suppressing evidence at the trial if he fails to call such a hostile witness even
though he never regarded him as reliable or truthful.
Having been supplied the names of the witnesses, petitioner’s lawyer gives no reason why he
cannot interview them himself. If an employee-witness refuses to tell his story, he, too, may be
examined under the Rules. He may be compelled on discovery, as fully as on the trial, to

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disclose his version of the facts. But that is his own disclosure — it can be used to impeach him
if he contradicts it and such a deposition is not useful to promote an unseemly disagreement
between the witness and the counsel in the case.
It is true that the literal language of the Rules would admit of an interpretation that would sustain
the district court’s order. So the literal language of the Act of Congress which makes “any writing
or record made as a memorandum or record of any occurrence, or event” admissible as
evidence, would have allowed the railroad company to put its engineer's accident statements in
evidence. But all such procedural measures have a background of custom and practice which
was assumed by those who wrote and should be by those who apply them. We reviewed the
background of the Act and the consequences on the trial of negligence cases of allowing
railroads and others to put in their statements and thus to shield the crew from crossexamination. We said, “Such a major change which opens wide the door to avoidance of crossexamination should not be left to implication.” We pointed out that there, as here, the “several
hundred years of history behind the Act indicate the nature of the reforms which it was designed
to effect.” We refused to apply it beyond that point. We should follow the same course of
reasoning here. Certainly nothing in the tradition or practice of discovery up to the time of these
Rules would have suggested that they would authorize such a practice as here proposed.
The question remains as to signed statements or those written by witnesses. Such statements
are not evidence for the defendant. Nor should I think they ordinarily could be evidence for the
plaintiff. But such a statement might be useful for impeachment of the witness who signed it, if
he is called and if he departs from the statement. There might be circumstances, too, where
impossibility or difficulty of access to the witness or his refusal to respond to requests for
information or other facts would show that the interests of justice require that such statements
be made available. Production of such statements are governed by Rule 34 and on “showing
good cause therefor” the court may order their inspection, copying or photographing. No such
application has here been made; the demand is made on the basis of right, not on showing of
cause.
I agree to the affirmance of the judgment of the Circuit Court of Appeals which reversed the
district court.
Questions:
1. Why did the Supreme Court find that the work product doctrine is justified?
2. How does the justification for the work product doctrine differ from the justification for the
attorney-client privilege?
3. How does the protection provided by the work product doctrine differ from the protection
provided by the attorney-client privilege?
4. Why didn’t plaintiff’s counsel make a sufficient showing of necessity in this case?

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The J.M. Taylor, Philadelphia, Pa. (~1940)
Upjohn Co. v. United States, 449 U.S. 383 (1981)
Summary: The Supreme Court held that notes and memoranda generated by Upjohn’s
attorneys that were not protected by the attorney-client privilege could still be protected
by the work product doctrine. Specifically, it found that necessity alone was not enough
to require production of opinion work product.
Our decision that the communications by Upjohn employees to counsel are covered by the
attorney-client privilege disposes of the case so far as the responses to the questionnaires and
any notes reflecting responses to interview questions are concerned. The summons reaches
further, however, and Thomas has testified that his notes and memoranda of interviews go
beyond recording responses to his questions. To the extent that the material subject to the
summons is not protected by the attorney-client privilege as disclosing communications
between an employee and counsel, we must reach the ruling by the Court of Appeals that the
work-product doctrine does not apply.

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489
While conceding the applicability of the work-product doctrine, the Government asserts that it
has made a sufficient showing of necessity to overcome its protections. The Magistrate
apparently so found. The Government relies on the following language in Hickman:
We do not mean to say that all written materials obtained or prepared by an adversary's
counsel with an eye toward litigation are necessarily free from discovery in all cases.
Where relevant and nonprivileged facts remain hidden in an attorney’s file and where
production of those facts is essential to the preparation of one’s case, discovery may
properly be had. And production might be justified where the witnesses are no longer
available or can be reached only with difficulty.
The Government stresses that interviewees are scattered across the globe and that Upjohn has
forbidden its employees to answer questions it considers irrelevant. The above-quoted language
from Hickman, however, did not apply to “oral statements made by witnesses whether presently
in the form of the attorney’s mental impressions or memoranda.” As to such material the Court
did “not believe that any showing of necessity can be made under the circumstances of this
case so as to justify production. If there should be a rare situation justifying production of these
matters, petitioner's case is not of that type.” Forcing an attorney to disclose notes and
memoranda of witnesses’ oral statements is particularly disfavored because it tends to reveal
the attorney’s mental processes.
Rule 26 accords special protection to work product revealing the attorney’s mental processes.
The Rule permits disclosure of documents and tangible things constituting attorney work
product upon a showing of substantial need and inability to obtain the equivalent without undue
hardship. This was the standard applied by the Magistrate. Rule 26 goes on, however, to state
that “in ordering discovery of such materials when the required showing has been made, the
court shall protect against disclosure of the mental impressions, conclusions, opinions or legal
theories of an attorney or other representative of a party concerning the litigation.” Although this
language does not specifically refer to memoranda based on oral statements of witnesses, the
Hickman court stressed the danger that compelled disclosure of such memoranda would reveal
the attorney’s mental processes. It is clear that this is the sort of material the draftsmen of the
Rule had in mind as deserving special protection.
Based on the foregoing, some courts have concluded that no showing of necessity can
overcome protection of work product which is based on oral statements from witnesses. Those
courts declining to adopt an absolute rule have nonetheless recognized that such material is
entitled to special protection.
We do not decide the issue at this time. It is clear that the Magistrate applied the wrong
standard when he concluded that the Government had made a sufficient showing of necessity
to overcome the protections of the work-product doctrine. The Magistrate applied the
“substantial need” and “without undue hardship” standard articulated in the first part of Rule
26(b)(3). The notes and memoranda sought by the Government here, however, are work
product based on oral statements. If they reveal communications, they are, in this case,

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protected by the attorney-client privilege. To the extent they do not reveal communications, they
reveal the attorneys’ mental processes in evaluating the communications. As Rule 26 and
Hickman make clear, such work product cannot be disclosed simply on a showing of substantial
need and inability to obtain the equivalent without undue hardship.
While we are not prepared at this juncture to say that such material is always protected by the
work-product rule, we think a far stronger showing of necessity and unavailability by other
means than was made by the Government or applied by the Magistrate in this case would be
necessary to compel disclosure. Since the Court of Appeals thought that the work-product
protection was never applicable in an enforcement proceeding such as this, and since the
Magistrate whose recommendations the District Court adopted applied too lenient a standard of
protection, we think the best procedure with respect to this aspect of the case would be to
reverse the judgment of the Court of Appeals for the Sixth Circuit and remand the case to it for
such further proceedings in connection with the work-product claim as are consistent with this
opinion.
Questions:
1. How does the Court distinguish between fact work product and opinion work product?
2. Why is the standard for discovery of fact work product lower than the standard for
opinion work product?
3. Should opinion work product ever be discoverable? What if it is inextricable from fact
work product?
4. How would discoverability of fact or opinion work product affect the incentives of
attorneys?

National Semiconductor DM7432N Quad 2-Input OR Gates
Sporck v. Peil, 759 F. 2d 312 (3d Cir. 1985)
Summary: Peil filed an action against Sporck and Sprague, alleging that they conspired
to inflate the value of National Semiconductor stock. Among other things, defendants

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491
produced more than 100,000 documents. Counsel for defendants showed Sporck
documents while preparing him for a deposition. Plaintiff asked Sporck to identify all of
the documents he reviewed in preparation for the deposition. Sporck refused, the district
court ordered production, and the circuit court reversed, holding that the attorney’s
choice of which documents to show Sporck was opinion work product.
JAMES HUNTER, III, Circuit Judge.
This case arises on a Petition for Writ of Mandamus involving a discovery dispute between the
parties to a securities fraud class action suit. The underlying action involves an allegation by
plaintiff-respondent Raymond K. Peil that defendant National Semiconductor Corporation,
defendant-petitioner Charles F. Sporck, NSC’s president, and defendant Peter J. Sprague,
NSC’s chairman, conspired to inflate artificially the value of NSC stock, in order to enable
Sporck and Sprague to sell their own shares at the inflated level. The wrongful conduct alleged
includes various misrepresentations and nondisclosures of material facts during an eight-month
period continuing from July 1, 1976, until March 1, 1977.
During pretrial discovery, attorneys for Peil served numerous sets of combined interrogatory and
document requests on defendants. In response, defendants produced hundreds of thousands of
documents, from which Peil's attorneys selected more than 100,000 for copying. There is no
allegation in this case that defendants have improperly concealed or refused to produce
requested documents.
The issue presently before this court arose on May 16, 1983, at the deposition of defendantpetitioner Sporck. Prior to the deposition, counsel for defendants had prepared Sporck for his
expected week-long deposition by showing him an unknown quantity of the numerous
documents produced by defendants in response to plaintiff’s discovery requests. Defense
counsel selected and compiled these documents in a folder in Philadelphia, and transported
them to California solely for the deposition. According to defense counsel, the selected
documents represented, as a group, counsel’s legal opinion as to the evidence relevant both to
the allegations in the case and the possible legal defenses. It is conceded that none of the
individual documents, in their redacted form, contained work product of defense counsel.
At the inception of the Sporck deposition, Peil’s attorney asked: “Mr. Sporck, in preparation for
this deposition, did you have occasion to examine any documents?” Sporck answered
affirmatively, and Peil’s attorney first orally, and then by written motion pursuant to Federal Rule
of Civil Procedure 34, requested identification and production of “all documents examined,
reviewed or referred to by Charles E. Sporck in preparation for the session of his deposition
commencing May 16, 1983.” Defense counsel refused to identify the documents, arguing first
that all the documents had previously been produced, and second, that the select grouping of
the documents was attorney work product protected from discovery by Federal Rule of Civil
Procedure 26(b)(3). Defense counsel agreed, however, to allow Peil’s counsel to ask Sporck
about his reliance on individual documents in the context of specific factual questions, and
Sporck’s deposition continued on this basis.

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Peil filed a motion to compel identification and production of the selected documents, on the
ground that all documents used in preparing a witness for a deposition are properly
discoverable under Federal Rule of Evidence 612. Judge John B. Hannum granted Peil’s
motion, and ordered that defendant produce or identify all documents reviewed by Sporck in
preparation for his deposition. Upon petitioner’s motion for reconsideration, Judge Hannum
reaffirmed his order, holding that although the select grouping of documents constituted attorney
work product, it was not “opinion” work product entitled to absolute protection, and that the
principles behind Federal Rule of Evidence 612 supported Peil’s claim to identification of the
documents. Sporck now asks this court to issue a writ of mandamus directing the trial court to
vacate both orders.
The threshold issue in this case is whether the selection process of defense counsel in grouping
certain documents together out of the thousands produced in this litigation is work product
entitled to protection under Federal Rule of Civil Procedure 26(b)(3) and the principles of
Hickman v. Taylor. Petitioner concedes that the individual documents that comprise the
grouping are not attorney work product, but argues that the selection process itself represents
defense counsel’s mental impressions and legal opinions as to how the evidence in the
documents relates to the issues and defenses in the litigation. Because identification of the
documents as a group will reveal defense counsel’s selection process, and thus his mental
impressions, petitioner argues that identification of the documents as a group must be
prevented to protect defense counsel's work product. We agree.
The work product doctrine had its modern genesis in the seminal opinion in Hickman v. Taylor.
In Hickman, the Court rejected “an attempt, without purported necessity or justification, to
secure written statements, private memoranda and personal recollections prepared or formed
by an adverse party's counsel in the course of his legal duties.” Preserving the privacy of
preparation that is essential to the attorney's adversary role is the central justification for the
work product doctrine. Without this zone of privacy:
Much of what is now put down in writing would remain unwritten. An attorney’s thoughts,
heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices
would inevitably develop in the giving of legal advice and in the preparation of cases for
trial. The effect on the legal profession would be demoralizing. And the interests of the
clients and the cause of justice would be poorly served.
The work product doctrine as articulated in Hickman has been partially codified in Federal Rule
of Civil Procedure 26(b)(3). That rule conditions the production of “documents and tangible
things” prepared in anticipation of litigation by or for an opposing party on the moving party's
showing of substantial need and undue hardship. Even where such a showing is made,
however, the trial court, in ordering the production of such materials, “shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation.” Thus, Rule 26(b)(3) recognizes the
distinction between “ordinary” and “opinion” work product first articulated by the Supreme Court.

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Opinion work product includes such items as an attorney’s legal strategy, his intended lines of
proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws
from interviews of witnesses. Such material is accorded an almost absolute protection from
discovery because any slight factual content that such items may have is generally outweighed
by the adversary system’s interest in maintaining the privacy of an attorney’s thought processes
and in ensuring that each side relies on its own wit in preparing their respective cases.
We believe that the selection and compilation of documents by counsel in this case in
preparation for pretrial discovery falls within the highly-protected category of opinion work
product. As the court succinctly stated in James Julian, Inc. v. Raytheon Co.:
In selecting and ordering a few documents out of thousands counsel could not help but
reveal important aspects of his understanding of the case. Indeed, in a case such as
this, involving extensive document discovery, the process of selection and distillation is
often more critical than pure legal research. There can be no doubt that at least in the
first instance the binders were entitled to protection as work product.
Further, in selecting the documents that he thought relevant to Sporck’s deposition, defense
counsel engaged in proper and necessary preparation of his client's case. As the Supreme
Court noted in Hickman:
Proper preparation of a client's case demands that he assemble information, sift what he
considers to be the relevant from the irrelevant facts, prepare his legal theories and plan
his strategy without undue and needless interference. That is the historical and the
necessary way in which lawyers act within the framework of our system of jurisprudence
to promote justice and to protect their client's interest.
In the instant case, without the protection that the work product doctrine accords his
preparation, defense counsel may have foregone a sifting of the documents, or at the very least
chosen not to show the documents to petitioner. As a result, petitioner may not have been as
well-prepared for his deposition, and neither plaintiff nor defendant would have realized the full
benefit of a well-prepared deponent's testimony. For these reasons, Rule 26(b)(3) placed an
obligation on the trial court to protect against unjustified disclosure of defense counsel's
selection process.
This conclusion, however, does not end the issue. Respondent argues, and the trial court
agreed, that operation of Federal Rule of Evidence 612 removed any protection that defense
counsel’s selection process would ordinarily enjoy. Because we find that Federal Rule of
Evidence 612 does not apply to the facts of this case, we disagree.
Federal Rule of Evidence 612 provides in relevant part:

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If a witness uses a writing to refresh his memory for the purpose of testifying, (2) before
testifying, if the court in its discretion determines it is necessary in the interest of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to introduce in evidence those portions which
relate to the testimony of the witness.
This rule is applicable to depositions and deposition testimony. Although applicable to
depositions, Rule 612 is a rule of evidence, and not a rule of discovery. Its sole purpose is
evidentiary in function - “to promote the search of credibility and memory.”
By its very language, Rule 612 requires that a party meet three conditions before it may obtain
documents used by a witness prior to testifying: 1) the witness must use the writing to refresh
his memory; 2) the witness must use the writing for the purpose of testifying; and 3) the court
must determine that production is necessary in the interests of justice. The first requirement is
consistent with the purposes of the rule, for if the witness is not using the document to refresh
his memory, that document has no relevance to any attempt to test the credibility and memory
of the witness.
The second requirement — that the witness use the document for the purpose of testifying —
was designed “to safeguard against using the rule as a pretext for wholesale exploration of an
opposing party’s files and to insure that access is limited only to those writings which may fairly
be said in part to have an impact upon the testimony of the witness.” As with the first
requirement, the second requirement recognizes that the document is of little utility for
impeachment and cross-examination without a showing that the document actually influenced
the witness’ testimony. Finally, the third requirement codifies the Supreme Court’s holding in
Goldman v. United States, that even though a witness may review notes prior to testifying, a trial
court should exercise discretion to guard against “fishing expeditions among a multitude of
papers which a witness may have used in preparing for trial.”
In the case before us, the apparent conflict between the protected status of defense counsel's
document selection process under Rule 26(b)(3) and the asserted need, for cross-examination
purposes, of the identification of the documents actually selected resulted from the failure to
establish the first two requirements under Rule 612. In seeking identification of all documents
reviewed by petitioner prior to asking petitioner any questions concerning the subject matter of
the deposition, respondent’s counsel failed to establish either that petitioner relied on any
documents in giving his testimony, or that those documents influenced his testimony. Without
first eliciting the testimony, there existed no basis for asking petitioner the source of that
testimony. We conclude, therefore, that deposing counsel failed to lay a proper foundation
under Rule 612 for production of the documents selected by counsel.
Indeed, if respondent’s counsel had first elicited specific testimony from petitioner, and then
questioned petitioner as to which, if any, documents informed that testimony, the work product
petitioner seeks to protect — counsel’s opinion of the strengths and weaknesses of the case as
represented by the group identification of documents selected by counsel — would not have

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been implicated. Rather, because identification of such documents would relate to specific
substantive areas raised by respondent's counsel, respondent would receive only those
documents which deposing counsel, through his own work product, was incisive enough to
recognize and question petitioner on. The fear that counsel for petitioner's work product would
be revealed would thus become groundless.
Rule 612, therefore, when properly applied, does not conflict with the protection of attorney work
product of the type involved in this case. Because the trial court did not properly condition its
application of Rule 612 on a showing that petitioner relied upon the requested documents for his
testimony and that those documents impacted on his testimony, the court committed legal error.
This error became prejudicial when it implicated work product of petitioner’s counsel. Proper
application of Rule 612 should never implicate an attorney's selection, in preparation for a
witness’ deposition, of a group of documents that he believes critical to a case. Instead,
identification of such documents under Rule 612 should only result from opposing counsel’s
own selection of relevant areas of questioning, and from the witness’ subsequent admission that
his answers to those specific areas of questioning were informed by documents he had
reviewed. In such a case, deposing counsel would discover the documents through his own wit,
and not through the wit of his adversary.
We conclude, therefore, that the trial court committed clear error of law in ordering the
identification of the documents selected by counsel. Because we are confident that the district
court will proceed in accordance with our opinion without formal issuance of the writ, we will
remand to the district court.
SEITZ, Circuit Judge, dissenting.
The majority approves in effect the use of the work product doctrine to prevent an identification
of documents reviewed by a witness in preparation for his deposition. I dissent because I am
convinced that such a ruling is an impermissible expansion of the work product doctrine at the
expense of legitimate discovery.
The plaintiffs-respondents sought in the district court the discovery of relevant objective facts:
the identities of the documents that the deponent reviewed prior to testifying. These facts are
not, in themselves, the opinion or thought processes of an attorney. Nor were the contents of
the documents, all of which had already been produced by the defendants, created by
defendants’ attorney in anticipation of litigation.
Yet, the defendant-petitioner claims that the mere identification of the documents examined
prior to his deposition would reveal his attorney’s litigation strategy. Presumably, the petitioner’s
argument must be that if the respondents knew which documents were reviewed, they could,
upon examination of the documents identified, draw conclusions as to why each document was
chosen.

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The problem with the petitioner's theory is that it assumes that one can extrapolate backwards
from the results of a selection process to determine the reason a document was selected for
review by the deponent. There are many reasons for showing a document or selected portions
of a document to a witness. The most that can be said from the fact that the witness looked at a
document is that someone thought that the document, or some portion of the document, might
be useful for the preparation of the witness for his deposition. This is a far cry from the
disclosure of the a lawyer’s opinion work product. Even assuming that the documents were
selected by the petitioner’s attorney, the subject matter is so undifferentiated that its potential for
invasion of work product is miniscule at best.
Every act by a litigant or his attorney gives rise to similar vague inferences. For example, a
typical interrogatory from a leading treatise would permit questions of the following form:
“Identify each writing which relates or refers directly or indirectly to a transaction in question.” It
cannot seriously be contended that an answer is not required because it would reveal the fact
that the attorney thought that certain documents were relevant to the transaction.
Moreover, in order to claim the shield of opinion work product, it must be established that it is
the attorney’s thought processes that are revealed. The respondents’ request did not require the
identification of the person who selected the documents. The only disclosed connection to the
petitioner’s attorney in our situation is that the petitioner gratuitously volunteered the fact that his
attorney selected the documents. To permit this volunteered information to provide a necessary
link to attorney’s thought processes, as the majority has done, is to permit the petitioner to cloak
the non-work product aspects of the information sought with work product protection. Certainly
an attorney cannot cloak a document under the mantle of work product by simply reviewing it. It
is difficult to see how an attorney or his witness may insulate the discoverable fact that the
witness reviewed a particular document by volunteering that the attorney selected the document
for deposition preparation purposes.
Finally, the petitioner contends that the information sought was “fact” work product, and that the
respondents have made an insufficient showing of need to require its production. Assuming
without deciding that the information sought was fact work product, I would not decide this issue
on a petition for a writ of mandamus. To reach this issue would require us to review a decision
committed to the discretion of the district court, and such decisions do not constitute “clear and
indisputable” legal error. Further, revelation of fact work product does not constitute the same
sort of irreparable harm that would come from the revelation of opinion work product.
Because I find no disclosure of the attorney's work product that would provide a basis for
granting the writ, I would not reach the issue of whether a proper foundation had been
established for the requested information under Federal Rule of Evidence 612 or the provision
covering relevant evidence found in Federal Rule of Civil Procedure 26(b)(1). Decisions on such
matters are not independently reviewable on a petition seeking the extraordinary remedy of
mandamus.

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Based on the record presented by the petitioner, I fail to see how any conclusions may be
drawn as to what his attorney may or may not have thought about this litigation. The mere
identification of documents used to prepare a witness for his deposition does not convey any
meaningful information of the type entitled to protection under the work product doctrine. I would
deny the petition.
Questions:
1. Why did the majority hold that the attorney’s choice of which documents to show Sporck
in preparation for the deposition was opinion work product?
2. Why did the dissent argue that it was not work product at all?
United States v. Deloitte LLP, 610 F. 3d 129 (D.C. Cir. 2010)
Summary: Dow Chemicals filed an action disputing a tax adjustment. Among other
things, the IRS subpoenaed documents from Deloitte & Touche, Dow’s auditor. Deloitte
refused to produce three documents, under the work product doctrine. The district court
denied the IRS’s motion to compel, finding that the documents were created in
anticipation of litigation and reflected attorney thoughts, and therefore were protected by
the work product doctrine. The circuit court vacated in part and affirmed in part, holding
that the district court lacked sufficient information to determine whether some of the
documents were work product, but did not abuse its discretion with respect to other
documents.
SENTELLE, Chief Judge:
The United States appeals from a district court order denying its motion to compel Dow
Chemical Company’s independent auditor, Deloitte & Touche USA, LLP, to produce three
documents in connection with ongoing tax litigation between Dow and the government. The
district court ruled that all three documents were protected from discovery under the workproduct doctrine. On appeal, the government contends that one of the documents is not work
product because it was prepared by Deloitte during the audit process. In addition, while it
concedes that the other two documents are work product, it argues that Dow waived workproduct protection when it disclosed them to Deloitte. We vacate the district court's decision that
the document prepared by Deloitte is work product and remand for in camera review to
determine whether it is entirely work product. With respect to the other two documents, we
affirm the district court’s decision that Dow did not waive work-product protection when it
disclosed them to Deloitte.
I. Background
This discovery dispute arises from ongoing tax litigation in the U.S. District Court for the Middle
District of Louisiana. The litigation concerns the tax treatment of two partnerships owned by
Dow Chemical Company and two of its wholly-owned subsidiaries. The first of these

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partnerships was Chemtech I; it was succeeded by Chemtech II. In 2005, Dow filed a civil suit
challenging IRS adjustments to partnership returns filed by Chemtech I and Chemtech II. During
discovery, the government subpoenaed documents from Dow’s independent auditor, Deloitte &
Touche USA, LLP. Since the subpoena sought production in Washington, D.C., it issued from
the U.S. District Court for the District of Columbia. Deloitte produced a number of documents,
but refused to produce three documents Dow identified as attorney work product. In response,
the government filed a motion to compel production.
The three disputed documents are described in Dow’s privilege log and in a declaration by
William Curry, Dow’s Director of Taxes. The first document is a 1993 draft memorandum
prepared by Deloitte that summarizes a meeting between Dow employees, Dow’s outside
counsel, and Deloitte employees about the possibility of litigation over the Chemtech I
partnership, and the necessity of accounting for such a possibility in an ongoing audit. This
meeting took place after Dow informed Deloitte about the likelihood of litigation over the
Chemtech I transaction. The second is a 1998 memorandum and flow chart prepared by two
Dow employees — an accountant and an in-house attorney. The third is a 2005 tax opinion
prepared by Dow’s outside counsel. Curry’s declaration explains that the second and third
documents were disclosed to Deloitte so that it could “review the adequacy of Dow’s
contingency reserves for the Chemtech transactions. According to Curry, Deloitte “compelled
Dow’s production of these documents by informing the company that access to these
documents was required in order to provide Dow with an unqualified audit opinion for its public
financial statements.” The privilege log describes the subject matter of these documents as “tax
issues related to the Chemtech partnership” and states that each one is a “document prepared
in anticipation of litigation.” We will refer to the first document, which was prepared by Deloitte,
as the “Deloitte Memorandum,” and the second and third documents, which were created by
Dow, as the “Dow Documents.”
The district court denied the government’s motion to compel without reviewing the disputed
documents in camera. It concluded that the Deloitte Memorandum was work product because it
was “prepared because of the prospect of litigation with the IRS over the tax treatment of
Chemtech.” The court further concluded that, although the document was created by Deloitte, it
was nonetheless Dow’s work product because “its contents record the thoughts of Dow’s
counsel regarding the prospect of litigation.” In addition, the court rejected the government’s
contention that Dow had waived work-product protection for the three documents. The court
acknowledged that disclosing work product to a third party can waive protection if that
disclosure is “inconsistent with the maintenance of secrecy from the disclosing party’s
adversary,” but concluded that Dow’s disclosure to Deloitte was not inconsistent with
maintaining secrecy because (1) Deloitte was not a potential adversary and (2) nothing
suggested that it was unreasonable for Dow to expect Deloitte to maintain confidentiality. The
government appeals this ruling, and Dow has intervened to assert work-product protection.
II. Analysis

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The government contends that the Deloitte Memorandum is not attorney work product.
Alternatively, it argues that even if the Deloitte Memorandum is work product, Dow waived workproduct protection when it orally disclosed the information recorded therein to Deloitte. Turning
to the Dow Documents, the government concedes they are attorney work product, but argues
that Dow waived work-product protection when it gave them to Deloitte.
A. The Work-Product Doctrine
The Supreme Court established the work-product doctrine in Hickman v. Taylor, which held that
an attorney's notes recording his interviews with witnesses to the litigation-prompting incident
were protected from discovery. The Court recognized that to prepare for litigation, an attorney
must “assemble information, sift what he considers to be the relevant from the irrelevant facts,
prepare his legal theories and plan his strategy without undue and needless interference.” This
preparation “is reflected in interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and intangible ways.” The Court
reasoned that giving opposing counsel access to such work product would cause significant
problems:
Much of what is now put down in writing would remain unwritten. An attorney’s thoughts,
heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices
would inevitably develop in the giving of legal advice and in the preparation of cases for
trial. The effect on the legal profession would be demoralizing. And the interests of the
clients and the cause of justice would be poorly served.
Consequently, the Court concluded that attorney work product is protected from discovery
unless “the one who would invade that privacy” carries the burden of “establishing adequate
reasons to justify production through a subpoena or court order.”
The work-product doctrine announced in Hickman was subsequently partially codified in Federal
Rule of Civil Procedure 26(b)(3), which states:
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents
and tangible things that are prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent).
Rule 26(b)(3) allows a court to order disclosure when the requesting party can show a
“substantial need” for the material and an inability to procure equivalent information “without
undue hardship.” When a court orders disclosure under this exception, however, it must still
“protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of
a party’s attorney or other representative concerning the litigation.” This type of work product,
which is often described as opinion work product, “is virtually undiscoverable.”
B. The Deloitte Memorandum

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The government makes two categorical arguments that the Deloitte Memorandum cannot be
work product. First, it argues that the Deloitte Memorandum cannot be work product because it
was created by Deloitte, not Dow or its representative. Second, it argues that the Deloitte
Memorandum cannot be work product because it was generated as part of the routine audit
process, not in anticipation of litigation. If either argument is correct, the Deloitte Memorandum
cannot be work product, regardless of its contents. We reject both arguments, but nevertheless
conclude that the district court lacked sufficient information to determine that the entire Deloitte
Memorandum is work product.
1
The government first contends that Dow cannot claim work-product protection for the Deloitte
Memorandum because it was prepared by Deloitte. Rule 26(b)(3) only protects “documents and
tangible things that are prepared by or for another party or its representative.” Given this
language, the government argues that the Deloitte Memorandum is not work product because
Deloitte is not Dow’s representative. It relies principally on United States v. Arthur Young & Co.,
in which the Supreme Court refused to recognize an accountant work-product privilege. In
Arthur Young, the Court contrasted the role of an attorney with that of an accountant, explaining
that an attorney is “a loyal representative whose duty it is to present the client’s case in the most
favorable possible light,” whereas an independent certified public accountant has a “public
responsibility” and “owes ultimate allegiance to the corporation’s creditors and stockholders, as
well as to the investing public.” In the government’s view, Arthur Young demonstrates that
Deloitte cannot be Dow’s representative, which in turn means that the Deloitte Memorandum
cannot be work product under the plain language of Rule 26(b)(3). Dow counters that the
“representative” for purposes of Rule 26(b)(3) is its counsel, whose thoughts and opinions are
recorded in the document. In addition, it argues that the Deloitte Memorandum is work product
because it contains the same type of opinion work product that is found in the Dow Documents,
which the government concedes are work product.
Even if the government is correct in asserting that the Deloitte Memorandum falls outside the
definition given by Rule 26(b)(3), this does not conclusively establish that it is not work product.
The government mistakenly assumes that Rule 26(b)(3) provides an exhaustive definition of
what constitutes work product. On the contrary, Rule 26(b)(3) only partially codifies the workproduct doctrine announced in Hickman. Rule 26(b)(3) addresses only “documents and tangible
things,” but Hickman's definition of work product extends to “intangible” things. Moreover, in
Hickman, the Court explained that the attorney’s “mental impressions” were protected from
discovery, so that he could not be forced to “repeat or write out” that information in discovery.
Thus Hickman provides work-product protection for intangible work product independent of Rule
26(b)(3).
The government focuses on Deloitte’s role in creating the document and on its relationship to
Dow. Under Hickman, however, the question is not who created the document or how they are
related to the party asserting work-product protection, but whether the document contains work

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product — the thoughts and opinions of counsel developed in anticipation of litigation. The
district court found that the memorandum records those thoughts, even though Deloitte and not
Dow or its attorney committed them to paper. The work product privilege does not depend on
whether the thoughts and opinions were communicated orally or in writing, but on whether they
were prepared in anticipation of litigation. Thus Deloitte’s preparation of the document does not
exclude the possibility that it contains Dow’s work product.
2
The government next contends that the Deloitte Memorandum cannot be work product because
it was generated during an annual audit, not prepared in anticipation of litigation. The courts are
not unanimous on the proper test for determining whether a document was prepared “in
anticipation of litigation.” Under the test adopted by most circuits, the question is whether the
document was created “because of” the anticipated litigation. The Fifth Circuit, however,
requires that anticipation of litigation be the “primary motivating purpose” behind the document’s
creation.
Like most circuits, we apply the “because of” test, asking “whether, in light of the nature of the
document and the factual situation in the particular case, the document can fairly be said to
have been prepared or obtained because of the prospect of litigation.” In addition, while this
standard addresses a “document,” it applies equally to work product in other forms. Thus for the
Deloitte Memorandum, the question is whether it records information prepared by Dow or its
representatives because of the prospect of litigation.
In the government’s view, the Deloitte Memorandum was prepared not “because of the prospect
of litigation,” but as part of the routine audit process. The government asserts that a document’s
function, not its content, determines whether it is work product. For this proposition the
government relies on Delaney, Migdail & Young, Chartered v. IRS. In Delaney, a law firm
sought to obtain under the Freedom of Information Act memoranda and supporting documents
relating to the government’s legal analysis of an Internal Revenue Service program concerning
the use of statistical sampling in auditing large accounts. In that case it was the IRS that
asserted work-product protection. The court held that the documents were work product
because they “advised the agency of the types of legal challenges likely to be mounted against
a proposed program, potential defenses available to the agency, and the likely outcome.” In its
reasoning, the court noted that a previous work-product decision had identified “the function of
the documents as the critical issue.” The government seizes on this language, arguing that the
Deloitte Memorandum is not work product because its function was to facilitate Deloitte’s audit,
not to prepare Dow for litigation.
We think the government misreads Delaney. While Delaney used the term “function,” it was not
considering any distinction between function and content in determining whether a document
constituted work product. On the contrary, the court evaluated the function of the IRS
documents at issue by examining their contents. It contrasted the documents at issue in the
Coastal States case, which were like “an agency manual, fleshing out the meaning of the statute

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it was authorized to enforce,” with the documents at issue in Delaney, which were memoranda
describing potential legal challenges, possible defenses, and likely outcomes. Delaney does not
support the proposition that we should look solely to a document's function divorced from its
contents in determining its status as work product.
In short, a document can contain protected work-product material even though it serves multiple
purposes, so long as the protected material was prepared because of the prospect of litigation.
3
Rejecting the government's categorical arguments establishes only that the Deloitte
Memorandum may be protected work product under the law; we must now determine whether it
is. On examination of the record, we conclude that the district court did not have a sufficient
evidentiary foundation for its holding that the memorandum was purely work product. According
to the record, the document was created during Deloitte’s preparation of an audit report which in
Deloitte’s view required consideration of potential litigation. The meeting generating the
document included both Deloitte and Dow employees, as well as Dow's outside counsel. The
document itself was prepared by a third party. While none of this negates the possibility of workproduct privilege, it could make it likely that the document includes other information that is not
work product. According to Dow’s privilege log and the Curry declaration, the memorandum
does contain thoughts and analyses by legal counsel, but this does not rule out or even render
unlikely the possibility that it also includes other facts, other thoughts, other analyses by nonattorneys which may not be so intertwined with the legal analysis as to warrant protection under
the work-product doctrine. We will therefore remand this question to the district court for the
purpose of independently assessing whether the document was entirely work product, or
whether a partial or redacted version of the document could have been disclosed. Accordingly,
we vacate the district court's decision that the Deloitte Memorandum was work product and
remand so that the district court can examine the document in camera to determine whether it is
entirely work product.
C. The Dow Documents
Although the government concedes that the Dow Documents are work product, it contends that
Dow waived work-product protection by disclosing them to Deloitte. To the best of our
knowledge, no circuit has addressed whether disclosing work product to an independent auditor
constitutes waiver. Among the district courts that have addressed this issue, most have found
no waiver.
While voluntary disclosure waives the attorney-client privilege, it does not necessarily waive
work-product protection. The attorney-client privilege and the work-product doctrine serve
different purposes: the former protects the attorney-client relationship by safeguarding
confidential communications, whereas the latter promotes the adversary process by insulating
an attorney’s litigation preparation from discovery. Voluntary disclosure waives the attorneyclient privilege because it is inconsistent with the confidential attorney-client relationship.

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Voluntary disclosure does not necessarily waive work-product protection, however, because it
does not necessarily undercut the adversary process. Nevertheless, disclosing work product to
a third party can waive protection if “such disclosure, under the circumstances, is inconsistent
with the maintenance of secrecy from the disclosing party's adversary.” Under this standard, the
voluntary disclosure of attorney work product to an adversary or a conduit to an adversary
waives work-product protection for that material.
Applying this standard, the government contends that Dow has waived work-product protection
for the Dow Documents because Deloitte is (1) a potential adversary and (2) a conduit to other
adversaries. We reject both contentions and conclude that Dow has not waived the protection.
1
The government contends that Deloitte is a potential adversary of Dow because disputes
sometimes arise between independent auditors and their clients and because independent
auditors have the power to issue opinions that adversely affect their clients. Neither argument
demonstrates that Deloitte is a potential adversary for purposes of waiver analysis. First, as an
independent auditor, Deloitte cannot be Dow’s adversary. Even the threat of litigation between
an independent auditor and its client can compromise the auditor's independence and
necessitate withdrawal. Further, Deloitte’s power to issue an adverse opinion, while significant,
does not make it the sort of litigation adversary contemplated by the waiver standard. Similarly,
“any tension between an auditor and a corporation that arises from an auditor’s need to
scrutinize and investigate a corporation's records and book-keeping practices simply is not the
equivalent of an adversarial relationship contemplated by the work product doctrine.” Second,
the possibility of a future dispute between Deloitte and Dow does not render Deloitte a potential
adversary for the present purpose. If it did, any voluntary disclosure would constitute waiver. Yet
the work-product doctrine allows disclosures as long as they do not undercut the adversary
process.
Here, the question is not whether Deloitte could be Dow’s adversary in any conceivable future
litigation, but whether Deloitte could be Dow’s adversary in the sort of litigation the Dow
Documents address. We conclude that the answer must be no. In preparing the Dow
Documents, Dow anticipated a dispute with the IRS, not a dispute with Deloitte. The documents,
which concern the tax implications of the Chemtech partnerships, would not likely be relevant in
any dispute Dow might have with Deloitte. Thus Deloitte cannot be considered a potential
adversary with respect to the Dow Documents.
2
The government also asserts that Deloitte is a conduit to Dow’s adversaries. It claims the district
court failed to address this question, but this ignores the district court's explicit statement that
“no evidence suggests that it was unreasonable for Dow to expect Deloitte USA to maintain
confidentiality.” Like the district court, we conclude that Deloitte is not a conduit to Dow’s
adversaries.

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Our prior decisions applying the “maintenance of secrecy” standard, while fact-intensive, have
generally made two discrete inquiries in assessing whether disclosure constitutes waiver. First,
we have considered whether the disclosing party has engaged in self-interested selective
disclosure by revealing its work product to some adversaries but not to others. Such conduct
militates in favor of waiver, for it is “inconsistent and unfair to allow parties to select according to
their own self-interest to which adversaries they will allow access to the materials.”
Second, we have examined whether the disclosing party had a reasonable basis for believing
that the recipient would keep the disclosed material confidential. A reasonable expectation of
confidentiality may derive from common litigation interests between the disclosing party and the
recipient. “The existence of common interests between transferor and transferee is relevant to
deciding whether the disclosure is consistent with the nature of the work product privilege.” This
is true because when common litigation interests are present, “the transferee is not at all likely
to disclose the work product material to the adversary.” Alternately, a reasonable expectation of
confidentiality may be rooted in a confidentiality agreement or similar arrangement between the
disclosing party and the recipient. Nevertheless, a confidentiality agreement must be relatively
strong and sufficiently unqualified to avoid waiver. In Williams, for example, we concluded that
the government’s assurance that it would maintain confidentiality “to the extent possible” was
not sufficiently strong or sufficiently unqualified to prevent the government from disclosing the
information to a criminal defendant under Brady v. Maryland. Likewise, we have determined that
a mere promise to give the disclosing party notice before releasing documents does not support
a reasonable expectation of confidentiality.
The selective disclosure inquiry is straightforward. Selective disclosure involves disclosing work
product to at least one adversary. As we have explained, Deloitte is not an adversary, so Dow’s
disclosure to Deloitte was not selective disclosure. The “reasonable expectation of
confidentiality” inquiry is more complicated. As to common interests, Dow and Deloitte do not
have common litigation interests in the Dow Documents — Dow has a litigation interest in the
documents because of its interest in the Chemtech partnerships, but Deloitte has no similar
interest in the documents. Absent common interests, the question is whether a confidentiality
agreement or similar assurance gave Dow a reasonable expectation that Deloitte would keep its
work product confidential.
We conclude that Dow had a reasonable expectation of confidentiality because Deloitte, as an
independent auditor, has an obligation to refrain from disclosing confidential client information.
Rule 301 of the American Institute of Certified Public Accountants Code of Professional Conduct
provides: “A member in public practice shall not disclose any confidential client information
without the specific consent of the client.” William Curry's declaration explains that “Dow
furnished these documents to Deloitte with the expectation that Deloitte would retain the
confidentiality of the two documents.” Given the obligation imposed by Rule 301, we think this
expectation was reasonable.

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505
The government responds that this is a “qualified assurance’ that does not suffice to prevent
waiver because Rule 301 also explains that it “shall not be construed to affect in any way the
member’s obligation to comply with a validly issued and enforceable subpoena or summons.”
But an assertion of work-product protection challenges the enforceability of a subpoena with
respect to those materials. Thus Deloitte could refuse to produce the documents, thereby
allowing Dow to intervene and assert work-product protection, without violating its obligation to
comply with enforceable subpoenas. Indeed, this is exactly what Deloitte did. Accordingly, this
caveat does not significantly diminish the reasonableness of Dow's expectation of
confidentiality.
The government also attempts to bolster its waiver argument by identifying instances in which
an independent auditor might disclose information obtained from a company whose finances it
audits. For example, it asserts that Deloitte could make Dow disclose its confidential tax
analysis in footnotes to its public financial statements. Likewise, Deloitte could testify about
confidential information obtained from Dow in proceedings brought by the SEC or private
parties. Or Deloitte might report illegal acts it detects during its audit. Finally, the government
returns to Arthur Young, arguing that as an independent auditor, Deloitte is a “public watchdog”
whose ultimate allegiance is to Dow's creditors, stockholders, and the investing public — all
potential adversaries of Dow. In sum, the government contends that Dow could not reasonably
expect confidentiality from Deloitte after giving it the Dow Documents, given the myriad ways
Deloitte could reveal that information.
Of course Deloitte might disclose some information relevant to Dow’s finances. But the
government has neither pointed to any regulatory provision nor posited any specific
circumstance under which Deloitte would be required to disclose attorney work product like that
contained in the Dow Documents. An independent auditor can fulfill its duties and render an
opinion concerning a company’s public financial statements without revealing every piece of
information it reviews during the audit process. In short, Deloitte’s independent auditor
obligations do not make it a conduit to Dow’s adversaries.
Likewise, the government's reliance on Arthur Young is misplaced. In Arthur Young, the Court
considered whether accountant work-product should be granted the same protection attorney
work product receives. The government quotes the Court's statement that “To insulate from
disclosure a certified public accountant's interpretations of the client's financial statements
would be to ignore the significance of the accountant's role as a disinterested analyst charged
with public obligations.” All well and good. In this case, however, the government attempts to
discover not an independent auditor's “interpretations of the client's financial statements,” which
Arthur Young would permit, but an attorney's thoughts and opinions developed in anticipation of
litigation, which the work-product doctrine forbids.
Furthermore, we are mindful that independent auditors have significant leverage over the
companies whose finances they audit. An auditor can essentially compel disclosure by refusing
to provide an unqualified opinion otherwise. Finding waiver based on such disclosures could
well encourage the sort of “inefficiency, unfairness and sharp practices" that Hickman sought to

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506
avoid. For example, it might discourage companies from seeking legal advice and candidly
disclosing that information to independent auditors. Moreover, the government has not proffered
any good reason for wanting the Dow Documents other than its desire to know what Dow's
counsel thought about the Chemtech partnerships. Granting discovery under these
circumstances would undercut the adversary process and let the government litigate "on wits
borrowed from the adversary," We conclude that the district court applied the correct legal
standard and acted within its discretion in determining that Dow had not waived work-product
protection. Consequently, we affirm the district court's decision denying the government's
motion to compel with respect to the Dow Documents.
Questions:
1. Why did the court hold that a document disclosed to a third-party can be protected by
the work product doctrine? Do you agree with its conclusion?
2. When would a document disclosed to a third-party not be protected by the work product
doctrine?
Further Reading:
●
●
●

Sean Grammel, Comment, Protecting Search Terms as Opinion Work Product: Applying
the Work Product Doctrine to Electronic Discovery, 161 U. Pa. L. Rev. 2063 (2013)
Sherman L. Cohn, The Work-Product Doctrine: Protection, Not Privilege, 71 Geo. L.J.
917 (1984)
Vivian K. Yamaguchi, Discovery and the Work Product Doctrine, 11 Loy. U. Chi. L. J.
863 (1980)

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507
5.7: Exceptions to Privilege & Work Product
Hush hush, keep it down now, voices carry.82
Listen, do you want to know a secret? Do you promise not to tell? Closer. Let me whisper in
your ear, say the words you long to hear.83
While the attorney-client privilege and work product doctrine provide strong protection against
discovery of the communications and documents they protect, they are both subject to waiver
and other exceptions.
The attorney-client privilege belongs to the client, and can be waived by the client. Obviously, a
client can intentionally waive the attorney-client privilege. But it less clear whether a client can
unintentionally waive the attorney-client privilege, and if so, when an unintentional waiver will be
effective. And it is even less clear whether an attorney or third-party can unintentionally waive
the attorney-client privilege.
Typically, a client’s intentional disclosure of a privileged communication to an non-privileged
third-party constitutes a waiver of the attorney-client privilege, even if the client didn’t intend to
waive the privilege. But what if the client unintentionally disclosed the communication? For
example, what if the client misplaced a copy of a privileged communication and a non-privileged
third-party found it? Or what if the client disclosed a privileged communication to a nonprivileged third-party, under the mistaken belief that the third-party was privileged?
In theory, an attorney cannot waive the attorney-client privilege. But it is unclear whether
communications intentionally or unintentionally disclosed to a third-party by an attorney retain
the privilege. For example, what if an attorney inadvertently produces a privileged document?
Or what if an attorney intentionally discloses a privileged communication to the public? Likewise,
it is unclear whether communications obtained and disclosed by a third-party retain the
privilege.
In most jurisdictions, inadvertent disclosure does not necessarily destroy the privilege.
Specifically, if an attorney inadvertently produces a privileged document, opposing counsel must
return or destroy the document, and may not read or otherwise use the document. And even an
intentional disclosure by an attorney will not necessarily destroy the privilege. But in some
jurisdictions, inadvertent disclosure may destroy the privilege. And if a privileged communication
becomes generally known, at some point the privilege is probably constructively waived,
irrespective of how the waiver occurred.
In addition, the attorney-client privilege and work product doctrine are subject to the crime-fraud
exception, which provides that communications and documents in furtherance of a crime or

82
83

‘Til Tuesday, Voices Carry, Voices Carry (1985).
The Beatles, Do You Want to Know a Secret, Please Please Me (1963).

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508
fraud are not protected. The privilege applies to confidential attorney-client communications
about a crime or fraud that has already occurred, in order to enable clients to obtain candid legal
advice. But the privilege does not apply to communications in furtherance of a future crime or
fraud.
The work product doctrine may be subject to an even broader exception for “attorney
misconduct,” which provides that documents are not protected if they are the product of
improper behavior on the part of the attorney.
Federal Rule of Civil Procedure Rule 26(b): Duty to Disclose
5. Claiming Privilege or Protecting Trial-Preparation Materials.
A. Information Withheld. When a party withholds information otherwise discoverable
by claiming that the information is privileged or subject to protection as trialpreparation material, the party must:
i.
expressly make the claim; and
ii.
describe the nature of the documents, communications, or tangible things
not produced or disclosed—and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to
assess the claim.
B. Information Produced. If information produced in discovery is subject to a claim
of privilege or of protection as trial-preparation material, the party making the
claim may notify any party that received the information of the claim and the
basis for it. After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use or disclose
the information until the claim is resolved; must take reasonable steps to retrieve
the information if the party disclosed it before being notified; and may promptly
present the information to the court under seal for a determination of the claim.
The producing party must preserve the information until the claim is resolved.
Federal Rule of Evidence 502: Attorney-Client Privilege and Work Product; Limitations on
Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication
or information covered by the attorney-client privilege or work-product protection.
a. Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a
Waiver. When the disclosure is made in a federal proceeding or to a federal office or
agency and waives the attorney-client privilege or work-product protection, the waiver
extends to an undisclosed communication or information in a federal or state proceeding
only if:
1. the waiver is intentional;
2. the disclosed and undisclosed communications or information concern the same
subject matter; and

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509

b.

c.

d.

e.

f.

g.

3. they ought in fairness to be considered together.
Inadvertent Disclosure. When made in a federal proceeding or to a federal office or
agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
1. the disclosure is inadvertent;
2. the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
3. the holder promptly took reasonable steps to rectify the error, including (if
applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
Disclosure Made in a State Proceeding. When the disclosure is made in a state
proceeding and is not the subject of a state-court order concerning waiver, the
disclosure does not operate as a waiver in a federal proceeding if the disclosure:
1. would not be a waiver under this rule if it had been made in a federal proceeding;
or
2. is not a waiver under the law of the state where the disclosure occurred.
Controlling Effect of a Court Order. A federal court may order that the privilege or
protection is not waived by disclosure connected with the litigation pending before the
court - in which event the disclosure is also not a waiver in any other federal or state
proceeding.
Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a
federal proceeding is binding only on the parties to the agreement, unless it is
incorporated into a court order.
Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to
state proceedings and to federal court-annexed and federal court-mandated arbitration
proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this
rule applies even if state law provides the rule of decision.
Definitions. In this rule:
1. “attorney-client privilege” means the protection that applicable law provides for
confidential attorney-client communications; and
2. “work-product protection” means the protection that applicable law provides for
tangible material (or its intangible equivalent) prepared in anticipation of litigation
or for trial.

Inadvertent Waiver
In re Sealed Case, 877 F. 2d 976 (D.C. Cir. 1989)
Summary: The IRS investigated a company for tax evasion and subpoenaed documents
relevant to the investigation. The company refused to produce certain documents,
claiming attorney-client privilege. The government conceded that the attorney-client
privilege applied to the documents, but argued that it had been waived. The district court
found that the privilege was waived with respect to all of the documents, because they
were disclosed to third-parties. The circuit court found that the privilege had been waived
for some of the documents, but possibly not all of them.

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510
SILBERMAN, Circuit Judge:
The appellant, “Company,” appeals from a contempt order of the district court. Company
refused to comply with a grand jury subpoena insofar as it was directed to six documents that
Company claimed were covered by attorney-client privilege. The district court held the privilege
was waived as to all six documents. We agree that there was at least a partial waiver of the
privilege, but we remand for the district court to further consider of the scope of the waiver.
I.
Appellant is a government contractor performing work for the Defense Department on a costplus basis. Company and its former chief executive officer are under a grand jury investigation
into the possibility of Company’s tax evasion as well as a possible conspiracy to defraud the
United States. It is thought CEO may have engineered a scheme whereby he received secret
rebates (undeclared personal income to him) from subcontractors while the amounts rebated
were included on Company’s books as payments to the subcontractors and thus business
expenses.
The grand jury issued a subpoena in June 1988 to Company seeking production of documents
relating to certain adjusting entries made to Company's books in the latter part of 1987.
Company produced the documents sought, except for six it claimed were protected by the
attorney-client privilege. Three of these documents contain notes taken by Company’s former
vice president for finance at meetings with attorneys from a law firm retained by Company. The
other three are memoranda from that vice president to Company's chief accounting officer
transmitting the law firm's legal advice to amend the corporate books to reflect that certain
amounts previously reported on its books — and to the IRS — as business expenses be shown
as nondeductible income payments to CEO.
The government moved to compel production of all six documents, arguing that the privilege
was waived since the documents presumably contained only information that had been or would
eventually be reported to the IRS. The district court granted the order, concluding “whatever
attorney-client privilege that may have attached to the documents was waived by the filing (or
the intention to file) of required forms to the IRS.” Company refused to comply, was held in
contempt, and thereafter brought an appeal.
While the appeal was pending, the government learned that one of the memoranda in question
had already been disclosed, in January 1988, by the CAO to the Defense Contract Audit
Agency during a routine audit of the contractor's travel expenses. The government sought and
gained a remand to permit the district court to consider this additional ground for the
government's claim of waiver. Appellant claimed on remand that the disclosure of the one
document to the DCAA had been inadvertent (“a bureaucratic error”) and offered to prove that
through the testimony of its CAO, but only if his testimony were limited to that issue and his Fifth
Amendment privilege were not waived. The district court rejected the proffer, reiterated its prior
finding that if the privilege existed, it had been waived because the information in the documents

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511
was to be publicly reported, and further found that the disclosure of the one document “was a
voluntary intentional disclosure” which “constituted a further waiver of the attorney-client
privilege not only with respect to the particular document but also as to all related
communications.” The district court believed that had the disclosure to DCAA been inadvertent
rather than intentional, it would have constituted a waiver (if that were the sole grounds for
finding a waiver) only with respect to that document and not the other five.
Prior to the remand hearing it was further revealed that the vice president had entered into a
personal immunity agreement with the government in October 1987 and, at that time, given all
six of the documents to the government without Company’s authorization. From that, we infer
the government continues to seek the documents through subpoena because it is uncertain as
to the use that can be made of the copies voluntarily turned over by the vice president. The
government asserts that the attorney handling the grand jury proceedings has not been given
access to the documents. Nevertheless, Company urged the district court, in the exercise of its
supervisory power over grand jury proceedings, to conduct an evidentiary hearing to determine
whether the government had engaged in misconduct, which Company apparently thought might
justify quashing the subpoena. The district court declined to do so and Company appeals that
determination as well.
II.
The government does not dispute that all six documents fall within Company’s attorney-client
privilege. It is not argued, for instance, that the memoranda from the vice president to the CAO,
communicating the advice given by counsel and directing the adjusting entries be made in
accordance with that advice, are outside the privilege. Nor is it claimed that the conversation
between the corporate officers and the law firm were not intended to be confidential so that the
privilege never attached. Instead, the government relies on two grounds for concluding
Company waived the privilege for all six documents.
The government first claims that because the documents provide background “detail” supporting
the adjusting bookkeeping entries that have been reported to the IRS, Company has waived its
privilege in the documents. The government relies on several cases that have addressed the
status of the attorney-client privilege in cases involving disclosure of financial information to the
IRS or other third parties. In United States v. Cote, the Eighth Circuit held that the act of filing
amended IRS returns waived any attorney-client privilege in an attorney-supervised
accountant's workpapers, which contained information later transcribed onto the returns. But the
Court remanded to the district court to determine whether any of the workpapers contained
“unpublished expressions” not part of the data revealed on the tax returns. The Court also
recognized that in tax cases, waiver typically is not an issue, because “the privilege is said not
to attach to information which the taxpayer intends his attorney to report in the contents of a tax
return.”
In that vein, United States v. (Under Seal) held that the privilege did not cover documents,
including communications between two attorneys relating to a proposed tax ruling for a client,

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512
and material supplied by the client concerning commercial transactions upon which the
proposed tax ruling would be based. These documents, according to the court, either did not
reveal client communications or were not meant to be confidential. The court thus applied its
previous holding in In re Grand Jury Proceedings that “if a client communicates information to
his attorney with the understanding that the information will be revealed to others, that
information, as well as the details underlying the data which was to be published, will not enjoy
the privilege.” Apparently recognizing the aphorism that “God is in the details,” the court
explained in a footnote:
The details underlying the published data are the communications relating the data, the
document, if any, to be published containing the data, all preliminary drafts of the
document, and any attorney’s notes containing material necessary to the preparation of
the documents. Copies of other documents, the contents of which were necessary to the
preparation of the published document, will also lose the privilege. But if any of the nonprivileged documents contain client communications not directly related to the published
data, those communications, if otherwise privileged, must be removed by the reviewing
court before the document may be produced.
Although these cases seem to conflate two theories — waiver of an existing privilege and
absence of an intent to maintain confidentiality in the first place — we think under either theory
the IRS cases are inapposite; the government much too facilely claims that the six documents
are merely “details” underlying past or future returns. To be sure, virtually all the material in the
documents reflects adjusting entries in Company's books, which have been or will be reported
to the IRS.84 But the crucial significance of the documents — and the apparent reason the
government wishes to present them to the grand jury — is that they suggest Company made the
adjusting entries on the advice of counsel (after the investigation commenced).
The raison d’etre of the hallowed attorney-client privilege is the protection of a client’s
communications to counsel so that persons, including organizations, will be induced to consult
counsel when needed. The attorney’s communications (his advice) to the client must also be
protected, because otherwise it is rather easy to deduce the client's communications to counsel.
The documents sought in this case reveal directly the attorney’s confidential advice, and their
disclosure thereby invades the core of the privilege; it permits an inference to be drawn as to the
nature of the client's communications with its lawyers, and, perhaps, as to their motivation (e.g.,
guilty knowledge) for consulting counsel as well.
Even the very existence of an attorney-client relationship, not normally protected, is privileged in
the rare case when a “strong possibility exists that disclosure of the information would implicate
the client in the very matter for which legal advice was sought in the first case.” We therefore do
not think that any portion of the six documents revealing that the adjusting entries were made on
the advice of counsel would be disclosable under the government’s primary theory of waiver.

84

If the information has not yet been disclosed, it is hard to think of Company’s action as a waiver.
Rather, data that Company intends to report is never privileged in the first place.

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513
Alternatively, however, the government relies on a waiver caused by the disclosure of one
memo to a DCAA auditor, and we think the government is, in this respect, on firmer ground. It
will be recalled that Company does not dispute the disclosure but denies its voluntariness,
claiming it was inadvertent — “a bureaucratic error.” The district court found otherwise, but we
do not think it matters whether the waiver is labeled “voluntary” or “inadvertent” and thus do not
find it necessary to consider appellant's claim that the CAO should have been permitted to offer
limited testimony on this issue only.
Although the attorney-client privilege is of ancient lineage and continuing importance, the
confidentiality of communications covered by the privilege must be jealously guarded by the
holder of the privilege lest it be waived. The courts will grant no greater protection to those who
assert the privilege than their own precautions warrant. We therefore agree with those courts
which have held that the privilege is lost “even if the disclosure is inadvertent.”
Even assuming Company’s disclosure was due to “bureaucratic error,” which we take to be a
euphemism that necessarily implies human error, that unfortunate lapse simply reveals that
someone in the company and thereby Company itself (since it can only act through its
employees) was careless with the confidentiality of its privileged communications. Normally the
amount of care taken to ensure confidentiality reflects the importance of that confidentiality to
the holder of the privilege. To hold, as we do, that an inadvertent disclosure will waive the
privilege imposes a self-governing restraint on the freedom with which organizations such as
corporations, unions, and the like label documents related to communications with counsel as
privileged. To readily do so creates a greater risk of “inadvertent” disclosure by someone and
thereby the danger that the “waiver” will extend to all related matters, perhaps causing grave
injury to the organization. But that is as it should be. Otherwise, there is a temptation to seek
artificially to expand the content of privileged matter. In other words, if a client wishes to
preserve the privilege, it must treat the confidentiality of attorney-client communications like
jewels — if not crown jewels. Short of court-compelled disclosure or other equally extraordinary
circumstances,85 we will not distinguish between various degrees of “voluntariness” in waivers of
the attorney-client privilege.
Our conclusion that Company’s disclosure of the one memorandum constitutes a waiver still
leaves a question as to the scope of the waiver. Appellant would confine the waiver to the one
document, but, as we have previously said, a waiver of the privilege in an attorney-client
communication extends “to all other communications relating to the same subject matter.” Since
such determinations properly depend heavily on the factual context in which the privilege is
asserted, we will not disturb a district court’s decision as to the question unless it can be shown
the court abused its discretion. In this case, although the district court extended the waiver to all
six documents, it did not fully explain why the communications were related. Of course, all six —
including the notes of the meeting — stemmed from the same consultation Company had with
its law firm. But the “subject matter” of the waiver could, nevertheless, be defined in a number of
different ways. Did the district court mean, for instance, to define the “subject matter” as all
85

We do not face here any claim that the information was acquired by a third party despite all possible
precautions, in which case there might be no waiver at all.

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514
communications “relating” to the adjustment entries, which — as suggested at oral argument —
would permit the individual lawyers and corporate officers present at the meeting to be called
before the grand jury to describe their discussions, or perhaps even other communications
between Company and its counsel? Or, alternatively, was the waiver limited to those intraCompany communications revealing that Company’s accounting adjustments were made upon
the advice of counsel, in which case is it not clear whether the actual notes of the meeting must
be disclosed? Given the potential implications of a broad definition of the subject matter of
Company’s waiver, we think it appropriate to remand to the district court for further
consideration of that issue.
Further Reading:
●

Shawn T. Gaither, The Attorney-Client Privilege: An Analysis of Involuntary Waiver, 48
Clev. St. L. Rev. 311 (2000)

The Crime-Fraud Exception
Clark v. United States, 289 U.S. 1 (1933)
MR. JUSTICE CARDOZO delivered the opinion of the Court.
There is a privilege protecting communications between attorney and client. The privilege takes
flight if the relation is abused. A client who consults an attorney for advice that will serve him in
the commission of a fraud will have no help from the law. He must let the truth be told. There
are early cases apparently to the effect that a mere charge of illegality, not supported by any
evidence, will set the confidences free. But this conception of the privilege is without support in
later rulings. “It is obvious that it would be absurd to say that the privilege could be got rid of
merely by making a charge of fraud.” To drive the privilege away, there must be “something to
give colour to the charge;” there must be “prima facie evidence that it has some foundation in
fact.” When that evidence is supplied, the seal of secrecy is broken. Nor does the loss of the
privilege depend upon the showing of a conspiracy, upon proof that client and attorney are
involved in equal guilt. The attorney may be innocent, and still the guilty client must let the truth
come out.

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515

Mary Sue & L. Ron Hubbard (~1970)
United States v. Zolin, 491 U.S. 554 (1989)
Summary: In a case against the Church of Scientology (Church), the IRS sought to introduce
into evidence tape recordings of meetings between representatives of the Church and its
attorney. The IRS claimed that the tapes fell within the crime-fraud exception to the attorneyclient privilege and asked the district court to listen to the tapes in camera to determine if the
privilege applied. The IRS attempted to provide the court with partial transcripts of the tape
recordings that it acquired from a confidential source so that the court could make its
determination. The district court refused to listen to the tapes and the court of appeals affirmed
by categorically refusing to listen to the tapes or read the transcripts. The IRS appealed.
JUSTICE BLACKMUN delivered the opinion of the Court.
This case arises out of the efforts of the Criminal Investigation Division of the Internal Revenue
Service to investigate the tax returns of L. Ron Hubbard, founder of the Church of Scientology
for the calendar years 1979 through 1983. We granted certiorari to consider two issues that
have divided the Courts of Appeals. The first is whether, when a district court enforces an IRS
summons, the court may condition its enforcement order by placing restrictions on the
disclosure of the summoned information. The Court of Appeals in this case upheld the
restrictions. We affirm its judgment on that issue by an equally divided Court.
The second issue concerns the testimonial privilege for attorney-client communications and,
more particularly, the generally recognized exception to that privilege for communications in

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516
furtherance of future illegal conduct — the so-called “crime-fraud” exception. The specific
question presented is whether the applicability of the crime-fraud exception must be established
by “independent evidence” (i.e., without reference to the content of the contested
communications themselves), or, alternatively, whether the applicability of that exception can be
resolved by an in camera inspection of the allegedly privileged material. We reject the
“independent evidence” approach and hold that the district court, under circumstances we
explore below, and at the behest of the party opposing the claim of privilege, may conduct an in
camera review of the materials in question. Because the Court of Appeals considered only
“independent evidence,” we vacate its judgment on this issue and remand the case for further
proceedings.
I
In the course of its investigation, the IRS sought access to 51 documents that had been filed
with the Clerk of the Los Angeles County Superior Court in connection with a case entitled
Church of Scientology of California v. Armstrong. The Armstrong litigation involved, among
other things, a charge by the Church that one of its former members, Gerald Armstrong, had
obtained by unlawful means documentary materials relating to Church activities, including two
tapes. Some of the documents sought by the IRS had been filed under seal.
The IRS, by its Special Agent Steven Petersell, served a summons upon the Clerk on October
24, 1984, demanding that he produce the 51 documents. The tapes were among those listed.
On November 21, IRS agents were permitted to inspect and copy some of the summoned
materials, including the tapes.
On November 27, the Church and Mary Sue Hubbard, who had intervened in Armstrong,
secured a temporary restraining order from the United States District Court for the Central
District of California. The order required the IRS to file with the District Court all materials
acquired on November 21 and all reproductions and notes related thereto, pending disposition
of the intervenors’ motion for a preliminary injunction to bar IRS use of these materials. By order
dated December 10, the District Court returned to the IRS all materials except the tapes and the
IRS’ notes reflecting their contents.
On January 18, 1985, the IRS filed in the District Court a petition to enforce its summons. In
addition to the tapes, the IRS sought 12 sealed documents the Clerk had refused to produce in
response to the IRS summons. The Church and Mary Sue Hubbard intervened to oppose
production of the tapes and the sealed documents. Respondents claimed that IRS was not
seeking the documents in good faith, and objected on grounds of lack of relevance and
attorney-client privilege.
Respondents asserted the privilege as a bar to disclosure of the tapes. The IRS argued, among
other things, however, that the tapes fell within the crime-fraud exception to the attorney-client
privilege, and urged the District Court to listen to the tapes in the course of making its privilege
determination. In addition, the IRS submitted to the court two declarations by Agent Petersell. In

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517
the first, Petersell stated his grounds for believing that the tapes were relevant to the
investigation. In the second, Petersell offered a description of the tapes’ contents, based on
information he received during several interviews. Appended to this declaration — over
respondents’ objection — were partial transcripts of the tapes, which the IRS lawfully had
obtained from a confidential source.86 In subsequent briefing, the IRS reiterated its request that
the District Court listen to the tapes in camera before making its privilege ruling.
After oral argument and an evidentiary hearing, the District Court rejected respondents’ claim of
bad faith. The court ordered production of 5 of the 12 documents and specified: “The documents
delivered hereunder shall not be delivered to any other government agency by the IRS unless
criminal tax prosecution is sought or an Order of Court is obtained.”
Turning to the tapes, the District Court ruled that respondents had demonstrated that they
contain confidential attorney-client communications, that the privilege had not been waived, and
that “the ‘fraud-crime’ exception to the attorney-client privilege does not apply. The quoted
excerpts tend to show or admit past fraud but there is no clear indication that future fraud or
crime is being planned.” On this basis, the court held that the Clerk “need not produce its copy
of the tapes pursuant to the summons.” The District Court denied the IRS’ motion for
reconsideration, rejecting the IRS’ renewed request that the court listen to the tapes in toto.
“While this was at one time discussed with counsel, thereafter Mr. Petersell’s declaration was
submitted, and no one suggested that this was an inadequate basis on which to determine the
attorney-client privilege question.”
Respondents appealed to the Court of Appeals for the Ninth Circuit, and the IRS crossappealed on two relevant grounds. First, the IRS claimed that the District Court abused its
discretion by placing conditions on the IRS’ future use of the subpoenaed information. The
Court of Appeals disagreed, holding: “A district court may, when appropriate, condition
enforcement of a summons on the IRS’ agreeing to abide by disclosure restrictions.”
Second, the IRS contended that the District Court erred in rejecting the application of the crimefraud exception to the tapes. In particular, the IRS argued that the District Court incorrectly held
that the IRS had abandoned its request for in camera review of the tapes, and that the court
should have listened to the tapes before ruling that the crime-fraud exception was inapplicable.
Respondents contended, in contrast, that the District Court erred in the opposite direction: they
argued that it was error for the court to rely on the partial transcripts, because “in this Circuit, a
party cannot rely on the communications themselves — whether by listening to the tapes or

86

The IRS denied that the transcripts were made using tapes obtained from the Superior Court or from
any other illicit source. Agent Petersell declared: “The partial transcripts were not prepared by the United
States from the tapes in the custody of the Superior Court for Los Angeles County, California, nor from
copies of the tape now in the custody of the Clerk of this Court. The transcripts were obtained from a
confidential source by another Special Agent prior to the issuance of this summons. The source was not a
party to Church of Scientology v. Armstrong, nor an attorney for any party in that proceeding.” As the
District Court made no finding of illegality, we assume for present purposes that the transcripts were
legally obtained.

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518
reviewing excerpts or transcripts of them — to bear its burden to invoke the exception but must
bear the burden by independent evidence.”
The panel of the Court of Appeals agreed with respondents that, under Shewfelt, “the
Government’s evidence of crime or fraud must come from sources independent of the attorneyclient communications recorded on the tapes,” thereby implicitly holding that even if the IRS had
properly preserved its demand for in camera review, the District Court would have been without
power to grant it. The Court of Appeals then reviewed “the Government's independent
evidence.” That review appears to have excluded the partial transcripts, and thus the Court of
Appeals implicitly agreed with respondents that it was improper for the District Court to have
considered even the partial transcripts. On the basis of its review of the “independent evidence,”
the Court of Appeals affirmed the District Court's determination that the IRS had failed to
establish the applicability of the crime-fraud exception.
II
This Court is evenly divided with respect to the issue of the power of a district court to place
restrictions upon the dissemination by the IRS of information obtained through a § 7604
subpoena-enforcement action. We therefore affirm the judgment of the Court of Appeals insofar
as it upheld the District Court’s conditional-enforcement order.
III
Questions of privilege that arise in the course of the adjudication of federal rights are “governed
by the principles of the common law as they may be interpreted by the courts of the United
States in the light of reason and experience.” We have recognized the attorney-client privilege
under federal law, as “the oldest of the privileges for confidential communications known to the
common law.” Although the underlying rationale for the privilege has changed over time, courts
long have viewed its central concern as one “to encourage full and frank communication
between attorneys and their clients and thereby promote broader public interests in the
observance of law and administration of justice.” That purpose, of course, requires that clients
be free to “make full disclosure to their attorneys” of past wrongdoings, in order that the client
may obtain “the aid of persons having knowledge of the law and skilled in its practice.”
The attorney-client privilege is not without its costs. “Since the privilege has the effect of
withholding relevant information from the factfinder, it applies only where necessary to achieve
its purpose.” The attorney-client privilege must necessarily protect the confidences of
wrongdoers, but the reason for that protection — the centrality of open client and attorney
communication to the proper functioning of our adversary system of justice — “ceases to
operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but
to future wrongdoing.” It is the purpose of the crime-fraud exception to the attorney-client
privilege to assure that the “seal of secrecy,” between lawyer and client does not extend to
communications “made for the purpose of getting advice for the commission of a fraud” or
crime.

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The District Court and the Court of Appeals found that the tapes at issue in this case recorded
attorney-client communications and that the privilege had not been waived when the tapes were
inadvertently given to Armstrong. These findings are not at issue here. Thus, the remaining
obstacle to respondents’ successful assertion of the privilege is the Government’s contention
that the recorded attorney-client communications were made in furtherance of a future crime or
fraud.
A variety of questions may arise when a party raises the crime-fraud exception. The parties to
this case have not been in complete agreement as to which of these questions are presented
here. In an effort to clarify the matter, we observe, first, that we need not decide the quantum of
proof necessary ultimately to establish the applicability of the crime-fraud exception. Rather, we
are concerned here with the type of evidence that may be used to make that ultimate showing.
Within that general area of inquiry, the initial question in this case is whether a district court, at
the request of the party opposing the privilege, may review the allegedly privileged
communications in camera to determine whether the crime-fraud exception applies. If such in
camera review is permitted, the second question we must consider is whether some threshold
evidentiary showing is needed before the district court may undertake the requested review.
Finally, if a threshold showing is required, we must consider the type of evidence the opposing
party may use to meet it: i.e., in this case, whether the partial transcripts the IRS possessed
may be used for that purpose.
A
We consider first the question whether a district court may ever honor the request of the party
opposing the privilege to conduct an in camera review of allegedly privileged communications to
determine whether those communications fall within the crime-fraud exception. We conclude
that no express provision of the Federal Rules of Evidence bars such use of in camera review,
and that it would be unwise to prohibit it in all instances as a matter of federal common law.
(1)
At first blush, two provisions of the Federal Rules of Evidence would appear to be relevant. Rule
104(a) provides: “Preliminary questions concerning the qualification of a person to be a witness,
the existence of a privilege, or the admissibility of evidence shall be determined by the court. In
making its determination it is not bound by the rules of evidence except those with respect to
privileges.” Rule 1101(c) provides: “The rule with respect to privileges applies at all stages of all
actions, cases, and proceedings.” Taken together, these Rules might be read to establish that in
a summons-enforcement proceeding, attorney-client communications cannot be considered by
the district court in making its crime-fraud ruling: to do otherwise, under this view, would be to
make the crime-fraud determination without due regard to the existence of the privilege.
Even those scholars who support this reading of Rule 104(a) acknowledge that it leads to an
absurd result.

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Because the judge must honor claims of privilege made during his preliminary fact
determinations, many exceptions to the rules of privilege will become “dead letters,”
since the preliminary facts that give rise to these exceptions can never be proved. For
example, an exception to the attorney-client privilege provides that there is no privilege if
the communication was made to enable anyone to commit a crime or fraud. There is
virtually no way in which the exception can ever be proved, save by compelling
disclosure of the contents of the communication; Rule 104(a) provides that this cannot
be done.
We find this Draconian interpretation of Rule 104(a) inconsistent with the Rule’s plain language.
The Rule does not provide by its terms that all materials as to which a “claim of privilege” is
made must be excluded from consideration. In that critical respect, the language of Rule 104(a)
is markedly different from the comparable California evidence rule, which provides that “the
presiding officer may not require disclosure of information claimed to be privileged under this
division in order to rule on the claim of privilege.” There is no reason to read Rule 104(a) as if its
text were identical to that of the California rule.
Nor does it make sense to us to assume, as respondents have throughout this litigation, that
once the attorney-client nature of the contested communications is established, those
communications must be treated as presumptively privileged for evidentiary purposes until the
privilege is “defeated” or “stripped away” by proof that the communications took place in the
course of planning future crime or fraud. Although some language in Clark might be read as
supporting this view, respondents acknowledged at oral argument that no prior holding of this
Court requires the imposition of a strict progression of proof in crime-fraud cases.
We see no basis for holding that the tapes in this case must be deemed privileged under Rule
104(a) while the question of crime or fraud remains open. Indeed, respondents concede that “if
the proponent of the privilege is able to sustain its burden only by submitting the
communications to the court” for in camera review, the court is not required to avert its eyes (or
close its ears) once it concludes that the communication would be privileged, if the court found
the crime-fraud exception inapplicable. Rather, respondents acknowledge that the court may
“then consider the same communications to determine if the opponent of the privilege has
established that the crime-fraud exception applies.” Were the tapes truly deemed privileged
under Rule 104(a) at the moment the trial court concludes they contain potentially privileged
attorney-client communications, district courts would be required to draw precisely the
counterintuitive distinction that respondents wisely reject. We thus shall not adopt a reading of
Rule 104(a) that would treat the contested communications as “privileged” for purposes of the
Rule, and we shall not interpret Rule 104(a) as categorically prohibiting the party opposing the
privilege on crime-fraud grounds from relying on the results of an in camera review of the
communications.
(2)

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Having determined that Rule 104(a) does not prohibit the in camera review sought by the IRS,
we must address the question as a matter of the federal common law of privileges. We conclude
that a complete prohibition against opponents’ use of in camera review to establish the
applicability of the crime-fraud exception is inconsistent with the policies underlying the
privilege.
We begin our analysis by recognizing that disclosure of allegedly privileged materials to the
district court for purposes of determining the merits of a claim of privilege does not have the
legal effect of terminating the privilege. Indeed, this Court has approved the practice of requiring
parties who seek to avoid disclosure of documents to make the documents available for in
camera inspection, and the practice is well established in the federal courts. Respondents do
not dispute this point: they acknowledge that they would have been free to request in camera
review to establish the fact that the tapes involved attorney-client communications, had they
been unable to muster independent evidence to serve that purpose.
Once it is clear that in camera review does not destroy the privileged nature of the contested
communications, the question of the propriety of that review turns on whether the policies
underlying the privilege and its exceptions are better fostered by permitting such review or by
prohibiting it. In our view, the costs of imposing an absolute bar to consideration of the
communications in camera for purpose of establishing the crime-fraud exception are intolerably
high.
“No matter how light the burden of proof which confronts the party claiming the exception, there
are many blatant abuses of privilege which cannot be substantiated by extrinsic evidence. This
is particularly true of situations in which an alleged illegal proposal is made in the context of a
relationship which has an apparent legitimate end.” A per se rule that the communications in
question may never be considered creates, we feel, too great an impediment to the proper
functioning of the adversary process. This view is consistent with current trends in the law.
B
We turn to the question whether in camera review at the behest of the party asserting the crimefraud exception is always permissible, or, in contrast, whether the party seeking in camera
review must make some threshold showing that such review is appropriate. In addressing this
question, we attend to the detrimental effect, if any, of in camera review on the policies
underlying the privilege and on the orderly administration of justice in our courts. We conclude
that some such showing must be made.
Our endorsement of the practice of testing proponents’ privilege claims through in camera
review of the allegedly privileged documents has not been without reservation. This Court noted
that “examination of the evidence, even by the judge alone, in chambers” might in some cases
“jeopardize the security which the privilege is meant to protect.” Analogizing to claims of Fifth
Amendment privilege, it observed more generally: “Too much judicial inquiry into the claim of

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privilege would force disclosure of the thing the privilege was meant to protect, while a complete
abandonment of judicial control would lead to intolerable abuses.”
The Court recognized that some compromise must be reached. In Reynolds, it declined to “go
so far as to say that the court may automatically require a complete disclosure to the judge
before the claim of privilege will be accepted in any case.” We think that much the same result is
in order here.
A blanket rule allowing in camera review as a tool for determining the applicability of the crimefraud exception, as Reynolds suggests, would place the policy of protecting open and legitimate
disclosure between attorneys and clients at undue risk. There is also reason to be concerned
about the possible due process implications of routine use of in camera proceedings. Finally, we
cannot ignore the burdens in camera review places upon the district courts, which may well be
required to evaluate large evidentiary records without open adversarial guidance by the parties.
There is no reason to permit opponents of the privilege to engage in groundless fishing
expeditions, with the district courts as their unwitting (and perhaps unwilling) agents. Courts of
Appeals have suggested that in camera review is available to evaluate claims of crime or fraud
only “when justified” or “in appropriate cases.” Indeed, the Government conceded at oral
argument (albeit reluctantly) that a district court would be mistaken if it reviewed documents in
camera solely because “the government begged it” to do so, “with no reason to suspect crime or
fraud.” We agree.
In fashioning a standard for determining when in camera review is appropriate, we begin with
the observation that “in camera inspection is a smaller intrusion upon the confidentiality of the
attorney-client relationship than is public disclosure.” We therefore conclude that a lesser
evidentiary showing is needed to trigger in camera review than is required ultimately to
overcome the privilege. Ibid. The threshold we set, in other words, need not be a stringent one.
We think that the following standard strikes the correct balance. Before engaging in in camera
review to determine the applicability of the crime-fraud exception, “the judge should require a
showing of a factual basis adequate to support a good faith belief by a reasonable person” that
in camera review of the materials may reveal evidence to establish the claim that the crimefraud exception applies.
Once that showing is made, the decision whether to engage in in camera review rests in the
sound discretion of the district court. The court should make that decision in light of the facts
and circumstances of the particular case, including, among other things, the volume of materials
the district court has been asked to review, the relative importance to the case of the alleged
privileged information, and the likelihood that the evidence produced through in camera review,
together with other available evidence then before the court, will establish that the crime-fraud
exception does apply. The district court is also free to defer its in camera review if it concludes
that additional evidence in support of the crime-fraud exception may be available that is not

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523
allegedly privileged, and that production of the additional evidence will not unduly disrupt or
delay the proceedings.
C
The question remains as to what kind of evidence a district court may consider in determining
whether it has the discretion to undertake an in camera review of an allegedly privileged
communication at the behest of the party opposing the privilege. Here, the issue is whether the
partial transcripts may be used by the IRS in support of its request for in camera review of the
tapes.
The answer to that question, in the first instance, must be found in Rule 104(a), which
establishes that materials that have been determined to be privileged may not be considered in
making the preliminary determination of the existence of a privilege. Neither the District Court
nor the Court of Appeals made factual findings as to the privileged nature of the partial
transcripts, so we cannot determine on this record whether Rule 104(a) would bar their
consideration.
Assuming for the moment, however, that no rule of privilege bars the IRS’s use of the partial
transcripts, we fail to see what purpose would be served by excluding the transcripts from the
District Court’s consideration. There can be little doubt that partial transcripts, or other evidence
directly but incompletely reflecting the content of the contested communications, generally will
be strong evidence of the subject matter of the communications themselves. Permitting district
courts to consider this type of evidence would aid them substantially in rapidly and reliably
determining whether in camera review is appropriate.
Respondents suggest only one serious countervailing consideration. In their view, a rule that
would allow an opponent of the privilege to rely on such material would encourage litigants to
elicit confidential information from disaffected employees or others who have access to the
information. We think that deterring the aggressive pursuit of relevant information from thirdparty sources is not sufficiently central to the policies of the attorney-client privilege to require us
to adopt the exclusionary rule urged by respondents. We conclude that the party opposing the
privilege may use any nonprivileged evidence in support of its request for in camera review,
even if its evidence is not “independent” of the contested communications as the Court of
Appeals uses that term.87
D

87

In addition, we conclude that evidence that is not “independent” of the contents of allegedly privileged
communications — like the partial transcripts in this case — may be used not only in the pursuit of in
camera review, but also may provide the evidentiary basis for the ultimate showing that the crime-fraud
exception applies. We see little to distinguish these two uses: in both circumstances, if the evidence has
not itself been determined to be privileged, its exclusion does not serve the policies which underlie the
attorney-client privilege.

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524
In sum, we conclude that a rigid independent evidence requirement does not comport with
“reason and experience,” and we decline to adopt it as part of the developing federal common
law of evidentiary privileges. We hold that in camera review may be used to determine whether
allegedly privileged attorney-client communications fall within the crime-fraud exception. We
further hold, however, that before a district court may engage in in camera review at the request
of the party opposing the privilege, that party must present evidence sufficient to support a
reasonable belief that in camera review may yield evidence that establishes the exception’s
applicability. Finally, we hold that the threshold showing to obtain in camera review may be met
by using any relevant evidence, lawfully obtained, that has not been adjudicated to be
privileged.
Because the Court of Appeals employed a rigid independent-evidence requirement which
categorically excluded the partial transcripts and the tapes themselves from consideration, we
vacate its judgment on this issue and remand the case for further proceedings consistent with
this opinion. On remand, the Court of Appeals should consider whether the District Court's
refusal to listen to the tapes in toto was justified by the manner in which the IRS presented and
preserved its request for in camera review. In the event the Court of Appeals holds that the
IRS’s demand for review was properly preserved, the Court of Appeals should then determine,
or remand the case to the District Court to determine in the first instance, whether the IRS has
presented a sufficient evidentiary basis for in camera review, and whether, if so, it is appropriate
for the District Court, in its discretion, to grant such review.

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L. Ron Hubbard with audiotape recorders
Blumenthal v. Kimber Mfg., 265 Conn. 1 (2003)
Summary: The Attorney General of Connecticut opened an antitrust investigation and
sent Kimber a subpoena. While Kimber produced some documents, it refused to
produce one email. Exceptions to the attorney-client privilege should be made only when
the reason for disclosure outweighs the potential chilling of essential communications.
The burden of proof is on the party seeking to pierce the privilege.
The crime fraud exception applies only after a determination by the trial court “that there
is probable cause to believe that a crime or fraud has been attempted or committed and
that the communication was in furtherance thereof.” Probable cause requires that a

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526
prudent person have a reasonable basis to suspect the perpetration or attempted
perpetration of a crime or fraud and that the communication was in furtherance thereof.

Katz, J.
The petitioner, Richard Blumenthal, the attorney general of the state of Connecticut, appeals
from the decision of the trial court denying his application for an order requiring the respondents,
Kimber Manufacturing, Inc., a firearms manufacturer with its principal place of business in
Yonkers, New York, and Leslie Edelman, Kimber’s president, to comply with the petitioner’s
discovery request for a certain document sent from one Kimber employee to an attorney and
three other Kimber employees. The petitioner contends that the trial court improperly
determined that: (1) the communication was protected by the attorney-client privilege; and (2)
the communication was not otherwise subject to disclosure under the crime-fraud exception to
that privilege. We conclude that the trial court properly determined that the document was
protected by the attorney-client privilege and that the petitioner did not meet his burden of
establishing that the crime-fraud exception applies to exclude the document from protection
under the privilege. Accordingly, we affirm the decision of the trial court.
The record discloses the following relevant facts. On March 17, 2000, Smith and Wesson
Corporation (Smith & Wesson), a firearms manufacturer located in Springfield, Massachusetts,
entered into an agreement with representatives of various federal, state and local governmental
agencies (agreement). The agreement was an attempt to settle both pending and threatened
litigation by these governmental agencies against various firearms manufacturers. The
agreement required Smith & Wesson, as well as all other potential signatories to the agreement,
to engage in certain practices, opposed by most of the firearms industry, regarding the
manufacturing, sale and marketing of firearms. At the time of the proceeding before the trial
court, Smith & Wesson was the only firearms manufacturer to have signed the agreement.
On May 2, 2000, based on his suspicion of the respondents' participation in a retaliatory
economic boycott against Smith & Wesson, the petitioner issued to the respondents
interrogatories and a subpoena duces tecum, pursuant to the petitioner's investigatory authority
under General Statutes § 35-42, seeking documents “as to any matter relevant to any alleged
violation of the Connecticut Antitrust Act”; and specifically any documents related to Smith &
Wesson. On May 31, 2000, the respondents submitted responses, and thereafter submitted
supplemental responses on July 20 and December 28, 2000. Unsatisfied with the respondents'
disclosure, on March 20, 2001, the petitioner filed with the trial court an application for
compliance. Thereafter, the respondents submitted five additional supplemental responses,
leading to a total disclosure of approximately 577 pages of documents. After negotiation
between the parties as to outstanding documents sought, the hearing on the petitioner's
application for compliance was reduced to one issue — a claim of attorney-client privilege on a
document sent via electronic mail (e-mail) by Dwight Van Brunt, a Kimber employee, to
Edelman, Denis Schusterman, another Kimber employee, and Jerry S. Goldman, an attorney in
private practice.[3] The e-mail also was copied to Ryan Busse, another Kimber employee. The e-

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527
mail expressly referred to the Smith & Wesson agreement, and the firearms industry's initial
reaction to it.
In response to a joint motion for entry of consent order, the trial court directed the respondents
to submit the e-mail to the court for an in camera determination of the privilege issue. The
parties submitted to the court a joint stipulation of facts, setting forth the factual and procedural
background of the matter. At a hearing on the consent order, following a joint request, the trial
court sealed the record.
Goldman, one of the parties to whom the e-mail had been sent, appeared as counsel on behalf
of the respondents. Goldman represented to the court that, because the agreement arose out of
a series of lawsuits that all named John Doe as a defendant in the complaints, potential firearms
manufacturer defendants, like Kimber, needed to evaluate the agreement and the firearms
industry's reaction to the agreement in order to plan an effective legal strategy of their own.
Goldman also provided the court with the corporate titles of each of the e-mail recipients, which
identified them as senior Kimber officers. Goldman contended that, because the reactions of
others in the firearms industry to the agreement — such as whether to sign similar agreements
or litigate — would inform Kimber's legal decision making, Kimber's management needed to
keep track of these developments and communicate them to him, as Kimber's counsel.
The petitioner contended that the e-mail was not subject to the attorney-client privilege because
it was not marked as confidential and did not request legal advice; rather, according to the
petitioner, the subject matter of the e-mail concerned ongoing business developments. The
petitioner also contended that the respondents had presented no evidence that litigation had
been filed or even threatened against Kimber, nor any evidence of the existence of “John Doe”
defendants in such litigation. The petitioner further claimed that, because reference to the e-mail
itself did not indicate that it satisfied the requirements of the attorney-client privilege, and
because the respondents did not produce any evidence beyond the e-mail and the stipulated
facts, the respondents had failed to satisfy their burden of proof to invoke the privilege.
Furthermore, the petitioner argued that, even if the trial court were to infer that the e-mail had
been a request for legal advice, and therefore privileged, it would be subject to disclosure under
the crime-fraud exception to the privilege.
On September 10, 2001, the same day as the consent order hearing, the trial court issued an
order stating that the e-mail was subject to a valid claim of attorney-client privilege. On January
30, 2002, in response to the petitioner's motion for articulation, the trial court issued a
memorandum of decision setting forth the reasons for its decision. Specifically, the trial court set
forth and applied the four part test that we articulated in Shew v. Freedom of Information
Commission, for determining whether the attorney-client privilege applies to protect
communications between corporate employees and attorneys retained by the corporation. The
court determined that, under the test, the e-mail qualified for protection from disclosure.
Additionally, the court concluded that the crime-fraud exception did not apply because the email “is a patent update of firearms litigation developments and does not advocate any criminal
or illegal activity.” This appeal followed.

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I
We turn to the petitioner’s claim that, even if we were to assume that the privilege generally
applied, the trial court improperly determined that the e-mail was not subject to disclosure under
the crime-fraud exception to the attorney-client privilege. Specifically, the petitioner contends
that other documents submitted as exhibits to the trial court provide probable cause to believe
that the respondents engaged in an unlawful boycott of Smith & Wesson and that the e-mail
was in direct furtherance of the boycott. We conclude that the trial court properly concluded that
the e-mail did not fall under the crime-fraud exception.
As an initial matter, we note that “exceptions to the attorney-client privilege should be made only
when the reason for disclosure outweighs the potential chilling of essential communications.”
The crime-fraud exception to the attorney-client privilege, therefore, is a limited one, and the
burden of proof is on the party seeking to pierce the privilege. We also recognize, however, “that
since the attorney-client privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose.” In Olson v. Accessory Controls &
Equipment Corp., we set forth the proper inquiry for determining when the crime-fraud exception
extinguishes the attorney-client privilege. The exception applies only after a determination by
the trial court “that there is probable cause to believe that a crime or fraud has been attempted
or committed and that the communication was in furtherance thereof.”
Probable cause “requires that a prudent person have a reasonable basis to suspect the
perpetration or attempted perpetration of a crime or fraud, and that the communication was in
furtherance thereof.” “The appropriate inquiry under the probable cause standard targets the
client’s intent in obtaining legal advice; only if there is probable cause to believe that the client
intended to perpetrate a crime or fraud does the exception properly come to bear.” We have
explained that, “without reference to intent, the attorney-client privilege would be pierced
whenever probable cause could be made that an illegal act occurred after the client conferred
with an attorney — even if the consultation was part of a good-faith attempt to follow the law.
Good-faith consultations with attorneys by clients who are uncertain about the legal implications
of a proposed course of action however are entitled to the protection of the privilege, even if that
action should later be held improper.”
We note that, in the present case, the trial court did not determine specifically whether the
petitioner had met this probable cause requirement. Even if we were to assume, however, that
there was probable cause to believe that the respondents had committed or intended to commit
a crime by engaging in an economic boycott in violation of antitrust law, we nevertheless
conclude that the petitioner failed to meet his burden of proof.
In addition to probable cause, the crime-fraud exception is limited by a second requirement that
the communication sought in discovery was made in furtherance of that unlawful act. “The
crime-fraud exception does not apply simply because privileged communications would provide

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an adversary with evidence of a crime or fraud. Mere relevance is insufficient; there must be a
showing that the communications at issue were made with an intent to further an unlawful act.”
Our analysis as to the “in furtherance” requirement is informed largely by our reasoning in part I
of this opinion. As we previously stated, the trial court reasonably could have found that the email concerned matters involving the agreement by a major firearms manufacturer seeking to
avoid litigation, and how that agreement, along with the litigation that gave rise to it, similarly
might affect the respondents. Moreover, the e-mail reveals nothing that suggests an intent to
break the law. Indeed, we agree with the trial court's determination that the critical statements at
issue are “not words of advocacy, but, rather, statements of fact or impression.” Furthermore, to
the extent that the e-mail refers to any action, it is the actions of others, and not of the
respondents; it neither advocates that Kimber take any action of its own, nor that others take a
particular action. The evidence does not support a conclusion that the respondents sent the email with the intent to further a fraud or crime. Rather, as the trial court reasonably concluded, it
was intended to keep Goldman informed so that he could provide them with sound legal advice.
Accordingly, the injury that would inure to the relationship of Kimber and its attorneys by
disclosure of the e-mail is greater than the benefit that would be gained by its disclosure to the
petitioner.
Therefore, we conclude that the trial court properly concluded that the e-mail is not subject to
disclosure under the crime-fraud exception to the attorney-client privilege.

Attorney Misconduct & the Work Product Doctrine
Moody v. Internal Revenue Service, 654 F. 2d 795 (D.C. Cir. 1981)
WALD, Circuit Judge:
This action is an appeal from a judgment of the district court upholding the Internal Revenue
Service’s refusal to disclose documents pertinent to appellant’s Freedom of Information Act
requests. Appellant Shearn Moody, Jr. filed three requests pursuant to the FOIA, asking for the
release of all records in the IRS’s possession regarding Moody, several business and charitable
entities in which he had interests, and “Project Southwest.” The IRS released many documents
pertinent to these requests, but withheld approximately 150 documents or portions of
documents. After an in camera examination of a sample of thirty-five of the challenged
withholdings, the district court upheld the IRS’s claims of exemptions with respect to all except
portions of four documents.
The appellant promptly challenged every aspect of the trial court’s decision, seeking before this
court both reversal of the findings of applicability of FOIA exemptions to particular documents
and a remand on the issues of segregability and the propriety of an award of attorney’s fees.
The bulk of appellant’s arguments on appeal were explicitly, and we feel correctly, dealt with in
the district court's admirably comprehensive nineteen page opinion. However, we find two

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issues deserve additional consideration, and remand the case to the district court for this
purpose.
DOCUMENT 19 AND THE WORK PRODUCT EXEMPTION
Exemption 5 of the FOIA permits non-disclosure of:
Inter-agency or intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency.
Among the civil litigation privileges incorporated into the FOIA by this section is the attorney
work product privilege.
The work product privilege, “distinct from and broader than the attorney-client privilege,”
exempts from discovery documents prepared by an attorney in contemplation of litigation.
Document 19, which the trial court held non-disclosable as attorney work product, seems to fall
within this class. It details a meeting held between an IRS lawyer and the federal district judge
presiding over the receivership of W. L. Moody & Sons, Banker, regarding the enforcement of a
summons served on E. O. Buck, the bank’s receiver. Prepared as a memorandum to the file by
the participating IRS attorney, Document 19 predates by two days the filing of a petition to
enforce the summons.
Appellant contends, however, that the work product doctrine does not cover Document 19
because it is the fruit of impermissible legal conduct. According to appellant, the purposeful
exclusion of opposing counsel from the meeting violated the court’s rules and the American Bar
Association's ethical standards. Moody argues that it would be a perversion of the work product
doctrine, designed “to encourage effective legal representation within the framework of the
adversary system,” to allow it to be used to “cover up” activities destructive of that system.
We agree that, at least in some circumstances, a lawyer’s unprofessional behavior may vitiate
the work product privilege. We therefore remand this case to the district court so that it may
determine in the first instance whether such circumstances exist in this case, and more
fundamentally, whether the actions of the IRS attorney in fact violated professional standards.
The work product privilege creates a zone of privacy within which a lawyer can prepare his case
free of adversarial scrutiny. From its inception, however, the courts have stressed that the
privilege is “not to protect any interest of the attorney, who is no more entitled to privacy or
protection than any other person, but to protect the adversary trial process itself.” Some
protection of lawyers’ “heretofore inviolate” thoughts was deemed necessary to avoid an
incentive to develop “unfair and sharp practices for the giving of legal advice and in the
preparation of cases for trial,” as the development of such practices would “poorly serve the
interests of the clients and the cause of justice.”

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It would indeed be perverse, as appellant contends, to allow a lawyer to claim an evidentiary
privilege to prevent disclosure of work product generated by those very activities the privilege
was meant to prevent. Non-disclosure would then88 provide an incentive for, rather than against,
the disfavored practices. The integrity of the adversary process is not furthered by protecting a
lawyer who steps outside his role as “an officer of the court working for the advancement of
justice while faithfully protecting the rightful interests of his clients.” An attorney should not be
able to exploit the privilege for ends outside of and antithetical to the adversary system any
more than a client who attempts to use the privilege to advance criminal or fraudulent ends.
However, the conclusion that an attorney has no right to object to the disclosure of work product
made possible by his misconduct does not necessarily mean that the work product privilege is
inapplicable to such documents. Unlike the attorney-client privilege, which exists solely for the
benefit of the client, and can be asserted and waived exclusively by him, the work product
privilege creates a legally protectable interest in non-disclosure in two parties: lawyer and client.
Just as “an invasion of the attorney’s necessary privacy may not be justified by the misfortune of
representing a fraudulent client,” the client's interest in preventing disclosures about his case
may survive the misfortune of his representation by an unscrupulous attorney. A court must look
to all the circumstances of the case, including the availability of alternate disciplinary
procedures,89 to decide whether the policy favoring disclosure outweighs the client's legitimate
interest90 in secrecy. No court should order disclosure under the FOIA or in discovery if the
disclosure would traumatize the adversary process more than the underlying legal misbehavior.
We have attempted to outline in our footnotes to this opinion some of the factors we would take
into consideration when balancing the policy favoring disclosure against that favoring continued
secrecy. However, each case obviously presents new permutations and combinations of fact
patterns, all of which must be taken into account when reaching a decision. For this reason, the
trial court, which is both familiar with the case and in a position to gather any evidence deemed
necessary to a reasoned decision, is best equipped to weigh the balance.

88

We stress that in this case, appellee has admitted engaging in the conduct which forms the basis of the
charge of unprofessional conduct. We are therefore not dealing with a situation where disclosure is
sought for the purpose of determining whether such misbehavior has in fact occurred. The latter case
involves an entirely different problem — an exception which threatens to swallow the rule — than is
presented in this case.
89
Lawyers, of course, are always subject to disciplinary proceedings, if not criminal or civil malpractice
sanctions, for malfeasance in the conduct of their legal affairs. Thus, disclosure is not the sole available
remedy for a breach of a professional duty, and may in fact bear so little relationship to the underlying
breach as to be inappropriate as a remedy. In this case, of course, if a violation of legal standards
occurred, it lay in the attorney's exclusion of the opposing party and his counsel from a meeting;
disclosure of what went on at that meeting to that opponent, the appellant in this FOIA action, would
therefore seem an appropriate remedy.
90
A client's interest in non-disclosure would be illegitimate, of course, if he knowingly instigated or
participated in the conduct which constituted the breach of duty. In some cases, the extent to which a
client should be allowed to benefit from unprofessionally obtained information may also be questioned;
such benefits, in some cases, may not be deemed a “legitimate” secrecy interest.

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We therefore remand this case for reconsideration of the withholdings from Document 19 in light
of our Neufeld decision, for an evaluation of the attorney’s conduct and, if it is found in violation
of professional standards, a determination of whether his breach of professional standards
vitiated the work product privilege otherwise attributable to Document 19. If the documents
released as a result of the proceedings on remand are sufficient for a court to conclude
appellant substantially prevailed in his FOIA action, he will then become eligible for an award of
attorney’s fees.
Haigh v. Matsushita Elec. Corp. of America, 676 F. Supp. 1332 (E.D. Va. 1987)
SPENCER, District Judge.
Plaintiff Richard Haigh, a Virginia citizen, was employed by defendant Matsushita Electric
Corporation of America from October 17, 1974 through January 27, 1987. He is fifty-seven
years old, and is Jewish. Plaintiff Norma Haigh, a Virginia citizen, is Haigh’s wife.
Defendant Panasonic is a Delaware corporation.
The Second Amended Complaint, which is currently before the Court, is sixty-eight pages long,
and contains a plethora of allegations. In brief, Haigh states that he was a salesman for
Panasonic who handled the accounts of Best Products and Circuit City. Haigh claims that during
his tenure business with these two outfits skyrocketed. In December 1986, Haigh was told that
the Best Products and Circuit City accounts were being taken away from him and given to
defendant Weber. Haigh also claims he was told his salary would be cut, along with his
earnable bonuses. Additionally, he was told that he would be reassigned from his Richmond,
Virginia location to the Panasonic accounts in western Virginia. Haigh claims he argued that the
reassignment was unlawful, and requested to be told the legitimate business reason for the
action. In response, defendants Willner and Adamyk allegedly proposed that the Richmond
accounts of Thalhimers, Miller & Rhoads, Robert’s Leasing, and Dominion Pottery be added to
Haigh’s new territory. Haigh also asserts that these two defendants sought a complete release
for all of Panasonic’s actions to date.
In due course, by letter dated January 27, 1987, Haigh stated that his reassignment was
unacceptable, and claimed that Panasonic had constructively terminated his employment. Since
that time, Haigh claims to have vigorously sought employment without success.
Defendants move for an order compelling discovery of certain tape recordings, and awarding
expenses in connection thereto. The facts underlying the motion are as follows. Defendants
made the usual request for production of documents in August 1987. Subsequently, during
Haigh’s deposition on October 21, 1987, he admitted that he had taped conversations with fiftyeight individuals. The tapes were made without the knowledge of these individuals, at Haigh’s
own initiative, and absent directives from Haigh’s attorneys. Upon learning of their existence,
defendants asked for the tapes. Plaintiffs turned over three tapes, which contained

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conversations with named defendants. Plaintiffs also surrendered a list of the names of the
individuals who were on the recordings.
Defendants now seek the production of all the recordings. Plaintiffs argue that the tapes come
within the work product privilege in that they were prepared in anticipation of litigation.
Specifically, plaintiffs state that Haigh consulted legal counsel in December 1986, evidently
fearing that defendants were trying to push him out of the company. Haigh considered himself
constructively terminated in late January 1987. On March 12, 1987, he filed an EEOC
complaint. He states that between February 1987 and October 1987, he made the tape
recordings. He delivered the cassette tapes to counsel for the plaintiffs within a day or two
following each conversation, and the contents of such tapes were reviewed by counsel and
used by counsel to prepare the Complaint and discovery requests.
This matter came before the Court on defendants’ November 2, 1987 motion. The motion was
briefed by the parties, and oral argument was held on November 13, 1987, at which time the
Court directed counsel to submit additional memoranda addressed to the question whether the
work product privilege had been vitiated. The parties have filed their memoranda, and the
motion is now ripe for decision. Although several issues are raised by the parties, only two need
to be addressed by this Court.
Issue I — Are the tapes protected by the work product privilege?
Issue II — If the answer to the question in Issue I is yes, is the privilege vitiated in this case?
Issue I
Federal Rule of Civil Procedure 26(b)(3) addresses the work product privilege. Basically, in
order for the privilege to be applicable, the material must be (1) documents or tangible things,
(2) prepared in anticipation of litigation or for trial, and (3) prepared by or for another party or by
or for that other party's representative. Additionally, the question whether the material was
prepared in anticipation of litigation does not turn on whether a suit had already been filed.
In arguing that the work product privilege does not apply here, defendants make the following
statement: “The tapes were made by a party to this action and apparently do not contain the
thoughts and impressions of plaintiff's counsel, who was not involved in the conversations, and,
therefore, cannot be considered attorneys' work product under the most liberal interpretation of
that doctrine.”
Defendants are living in the past, and are presenting a pre-1970 argument. “The 1970
amendment to Fed. R. Civ. P. 26 extends the work product protection to documents and things
prepared for litigation or trial by or for the adverse party himself or his agent. Prior to the
amendment some cases have held that documents of this kind were not within the immunity.”
Moreover, in an identical situation, the United States District Court for the Southern District of
New York held that a party's surreptitiously obtained tape recordings are protected under Fed.

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R. Civ. P. 26(b)(3), assuming that the statements were obtained and recorded in anticipation of
litigation or in preparation for trial.
Based upon the facts and arguments as now appearing before the Court, the Court is of the
opinion that the work product privilege would apply to the tape recordings, and production would
be denied unless the Court became convinced that defendants had a substantial need for the
recordings and were unable to obtain their equivalent without undue hardship.
Issue II
The Court need not delve into questions of “substantial need,” “undue hardship,” or “substantial
equivalent.” The Court holds that the work product privilege has, in this case, been vitiated.
In recent years, courts have come to recognize that “in some circumstances, a lawyer’s
unprofessional behavior may vitiate the work product privilege.”
The Moody opinion was discussed by the Eleventh Circuit in Parrott v. Wilson. There, plaintiff’s
attorney had clandestinely taped telephone conversations with two witnesses. Defendants
moved to compel production of the recordings, and plaintiff objected on the ground that the
tapes were work product under Fed. R. Civ. P. 26(b)(3). It is helpful to quote in length from that
opinion.
The Moody court reasoned that the purpose of the work product privilege is to protect
the integrity of the adversary process; therefore, it would be improper to allow an
attorney to exploit the privilege for ends that are antithetical to that process. In the
instant case, the record clearly demonstrates that counsel for the appellant clandestinely
recorded conversations with witnesses. While this practice violates no law, the Code of
Professional Conduct imposes a higher standard than mere legality. The American Bar
Association’s Committee on Ethics and Professional Responsibility has ruled that the
recording of conversations of witnesses without their consent is unethical.
We are mindful of the client's interest in protecting against the disclosure of work
product. However, we are unable to say that the disclosure in this case “traumatized the
adversary process more than the underlying legal misbehavior.” The only discernible
effect of the disclosure was that the depositions of Sharp and Godfrey commenced with
the playing of the taped conversations. We thus hold that whatever work product
privilege might have existed was vitiated by counsel's clandestine recording of
conversations with witnesses.
Carrying the question a step further, one court has recognized the potential difficulties of the
situation in which an attorney directs his client to engage in behavior that would be improper for
the attorney. It is apparent to this Court that such a course of action on the part of an attorney
would clearly be improper.

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In the instant situation, counsel for plaintiffs did not direct Haigh to undertake the clandestine
recordings. As represented to this Court, he clearly initiated such conduct on his own, and he, of
course, is not bound by the ethical strictures which bind his counsel.
This does not end the question, however. The Court is troubled by language contained in
plaintiff's memorandum in response to the motion to compel.
Haigh began a concerted effort to interview persons throughout the United States who
may have relevant information relating to his legal claims. Between February 1987 and
October 1987, Haigh has telephoned approximately fifty-eight such persons and, in most
instances, tape recorded the conversations. The cassette tapes were delivered to
counsel for the plaintiffs within a day or two following each such conversation and the
contents of such tapes reviewed by counsel. In many instances, the information obtained
during such telephone conversations was used by plaintiffs’ counsel to prepare the initial
complaint, the first amended and restated complaint, and the second amended and
restated complaint filed in this action. Counsel also used such information to prepare
other discovery requests.
While counsel did not tell Haigh to initiate or continue taping conversations, the old adage
“actions speak louder than words” comes to mind. Indeed, Haigh and his attorneys fell into a
pattern of conduct whereby Haigh would tape conversations and almost immediately turn the
tapes over to counsel for their use. This pattern of conduct continued over a period of
approximately nine months, and included the taping of fifty-eight conversations.
The Court would not be so troubled if it were faced with the situation where a party, in his
exuberance over pending litigation, pursued such a course of conduct and delivered a handful
of tapes to his counsel. In that situation, the lawyer’s conduct could fairly be described as simple
acquiescence in the situation created by the client’s exuberance. There is a point, however,
where acquiescence ceases to be passive and noncommittal, and becomes active
encouragement and affirmative support. There is, and can be, no bright line to determine when
this point is reached. Instead, the circumstances of each case must be viewed in their totality in
an attempt to get a fix on that point. Here, the Court is certain that that point has been crossed.
As such, the Court holds that the work product privilege has been vitiated.
The ruling today should not be taken as an indictment of counsel’s ethics or professionalism. To
be sure, the law on this point is in an infant, perhaps even fetal, state. The Court in no way
assumes or believes that counsel's intent was to run afoul of ethical strictures.
Additionally, it should be noted that this ruling may be interpreted by some as punishment for
Haigh’s retention of counsel. Indeed, if Haigh were proceeding pro se, the privilege would not be
vitiated. However, an attorney’s clients may not reap the benefits of the attorney’s expertise in a
vacuum-like state. Rather, the client must realize that the attorney is bound by a Code of
Professional Responsibility, and, when he retains the attorney, he also retains the
responsibilities imposed on that attorney.

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Questions:
Further Reading:
●
●
●

G. Michael Halfenger, The Attorney Misconduct Exception to the Work Product Doctrine,
58 U. Chi. L. Rev. 1079 (1991)
David J. Fried, Too High a Price for Truth: The Exception to the Attorney-Client Privilege
for Contemplated Crimes and Frauds, 64 N.C. L. Rev. 443 (1986)
Michele DeStefano Beardslee, Taking the Business Out of Work Product, 79 Fordham L.
Rev. 1869 (2011)

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Section 6: Advocacy & Conduct
6.1: Frivolous Pleadings
Meaningless, who dare to say it wasn’t meaningless? Shout from the rooftops and address the
press. Ha ha ha it was totally meaningless.91
While courts have always prohibited “frivolous” litigation, they have also struggled to define it. In
theory, frivolous litigation consists of a pleading or motion that a competent attorney would know
has no legitimate basis in fact or law. But of course, it is often hard to know whether a legal
claim is legitimate or has a chance of success. Sometimes, courts change their minds, and
sometimes, juries are unpredictable. Frivolity is often in the eye of the beholder.
The Supreme Court has revised the procedural rules governing frivolous litigation many times,
and adopted different approaches to identifying and dissuading frivolous litigation at different
points in time. The notes of the Advisory Committee on the Federal Rules of Civil Procedure
seem to reflect both frustration with frivolous litigation and uncertainty how to prevent it. For
example, the 1983 notes observe, “Experience shows that in practice Rule 11 has not been
effective in deterring abuses.” They accompanied revisions that encouraged the imposition of
sanctions. And the 1993 notes observe, “Experience shows that in practice Rule 11 has not
been effective in deterring abuses.” They accompanied revisions that discouraged the
imposition of sanctions.
Under the current version of Rule 11, a party may file a motion for sanctions only after serving
the draft motion on opposing counsel and giving them time to respond. While courts may
impose sanctions under Rule 11 sua sponte, the Rule implicitly discourages sanctions and
encourages dispute resolution.
Federal Rule of Civil Procedure 11: Signing Pleadings, Motions, and Other Papers;
Representations to the Court; Sanctions
a. Signature. Every pleading, written motion, and other paper must be signed by at least
one attorney of record in the attorney’s name—or by a party personally if the party is
unrepresented. The paper must state the signer's address, e-mail address, and
telephone number. Unless a rule or statute specifically states otherwise, a pleading need
not be verified or accompanied by an affidavit. The court must strike an unsigned paper
unless the omission is promptly corrected after being called to the attorney's or party's
attention.
b. Representations to the Court. By presenting to the court a pleading, written motion, or
other paper—whether by signing, filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the person’s knowledge, information, and
belief, formed after an inquiry reasonable under the circumstances:
91

The Magnetic Fields, Meaningless, 69 Love Songs (1999).

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1. it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
2. the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
3. the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
4. the denials of factual contentions are warranted on the evidence or, if specifically
so identified, are reasonably based on belief or a lack of information.
c. Sanctions.
1. In General. If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule or is
responsible for the violation. Absent exceptional circumstances, a law firm must
be held jointly responsible for a violation committed by its partner, associate, or
employee.
2. Motion for Sanctions. A motion for sanctions must be made separately from any
other motion and must describe the specific conduct that allegedly violates Rule
11(b). The motion must be served under Rule 5, but it must not be filed or be
presented to the court if the challenged paper, claim, defense, contention, or
denial is withdrawn or appropriately corrected within 21 days after service or
within another time the court sets. If warranted, the court may award to the
prevailing party the reasonable expenses, including attorney's fees, incurred for
the motion.
3. On the Court's Initiative. On its own, the court may order an attorney, law firm, or
party to show cause why conduct specifically described in the order has not
violated Rule 11(b).
4. Nature of a Sanction. A sanction imposed under this rule must be limited to what
suffices to deter repetition of the conduct or comparable conduct by others
similarly situated. The sanction may include nonmonetary directives; an order to
pay a penalty into court; or, if imposed on motion and warranted for effective
deterrence, an order directing payment to the movant of part or all of the
reasonable attorney's fees and other expenses directly resulting from the
violation.
5. Limitations on Monetary Sanctions. The court must not impose a monetary
sanction:
A. against a represented party for violating Rule 11(b)(2); or
B. on its own, unless it issued the show-cause order under Rule 11(c)(3)
before voluntary dismissal or settlement of the claims made by or against
the party that is, or whose attorneys are, to be sanctioned.
6. Requirements for an Order. An order imposing a sanction must describe the
sanctioned conduct and explain the basis for the sanction.

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d. Inapplicability to Discovery. This rule does not apply to disclosures and discovery
requests, responses, objections, and motions under Rules 26 through 37.
Further Reading:
●
●
●
●
●

Georgene Vairo, Rule 11 and the Profession, 67 Fordham L. Rev. 589 (1998)
Julia K. Cowles, Rule 11 of the Federal Rules of Civil Procedure and the Duty to
Withdraw a Baseless Pleading, 56 Fordham L. Rev. 697 (1988)
Suja A. Thomas, Frivolous Cases, 59 DePaul L. Rev. 633 (2010)
Charles Yablon, Hindsight, Regret, and Safe Harbors in Rule 11 Litigation, 37 Loy. L.A.
L. Rev. 599 (2004)
Robert G. Bone, Modeling Frivolous Suits, 145 U. Pa. L. Rev. 519 (1997)

Simpson v. Welch, 900 F. 2d 33 (4th Cir. 1990)
Summary: Simpson filed an employment discrimination action against the Chesapeake
Health Department, but failed to respond to subsequent motions or to appear at the
hearing, so the district court dismissed the complaint and granted the defendant’s motion
for fees and costs under Rule 11. The circuit court reversed, because Rule 11 only
covers frivolous pleadings, not the failure to respond to motions or pleadings.
PER CURIAM:

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540

The questions presented are whether the district court properly dismissed plaintiff’s complaint
and whether the court properly awarded sanctions pursuant to Rule 11 of the Federal Rules of
Civil Procedure. We hold that the dismissal was proper, but that Rule 11 does not provide
authority for the sanctions imposed in this case.
I
Appellant is a black employee at the Chesapeake Health Department in Chesapeake, Virginia.
After receiving “Right to Sue” letters from the Equal Employment Opportunity Commission, she
filed this employment discrimination suit on February 16, 1989. The individual appellees, the
present and former directors of the Department, filed a motion to dismiss on March 13, 1989.
The City of Chesapeake filed a motion for summary judgment on March 20, 1989.
An initial pretrial conference was held on April 3, 1989, at which all counsel were present. At the
conference, an April 17, 1989 deadline was established for appellant to file responses to the
motions to dismiss and for summary judgment, and a hearing on these motions was scheduled
for May 2, 1989. Appellant failed to oppose these motions, and appellees moved for judgment
on the pleadings. After appellant's counsel also failed to appear at the May 2, 1989 hearing, the
district court granted appellees' motions and dismissed the complaint.
The court concluded that the Department and its employees were agents of the state, not the
City. Therefore, the court granted the City’s motion for summary judgment and held that the
Eleventh Amendment barred appellant's claims for damages and other relief. The Court also
held that all of appellant's claims should be dismissed under Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. Appellant’s “vague and conclusory” allegations were
insufficient to satisfy the notice pleading requirements of the Federal Rules of Civil Procedure.
In the alternative, the court held that “plaintiff’s continued failure to follow the rules and orders of
this Court or even to appear in Court as required justifies dismissal under Rule 41(b).”
Appellees moved for an award of attorneys’ fees and costs, and appellant moved under Rule
60(b) for relief from the order of dismissal. The district court denied the Rule 60(b) motion,
finding no excuse for appellant’s counsel’s neglect in failing to respond to appellees’ motions to
dismiss and for summary judgment. The court extended the deadline for appellant to oppose
appellees’ motion for attorneys’ fees and costs, but appellant again failed to file any opposition.
Thus, on July 13, 1989, the district court granted appellees’ motion for attorneys’ fees and costs.
II
The allegations in appellant’s complaint are insufficient to state a claim upon which relief can be
granted. Appellant alleges that she was “required to work in places and under conditions where
prejudice and bias exist,” but her complaint nowhere alleges any specific oppressive conditions
or expressions of “prejudice and bias.” She alleges that she was “denied opportunities to be
promoted,” but never indicates the positions for which she applied. She asserts that she was

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541
“treated poorly on the job and harassed,” but described no specific incidents of improper
treatment or of harassment. As the district court stated:
The Complaint contains no factual allegations whatsoever to support these charges. The
plaintiff has set forth no specific incidents of discrimination, no details of promotions to
which she was entitled but which she did not receive, no explanation of the forms that
any alleged harassment took, no specifics regarding her claims of disparate treatment of
blacks and whites. The Complaint alleges religious discrimination but fails even to state
what plaintiff’s religious affiliation is, let alone how it has been the basis of any
discriminatory acts. In short, the Complaint fails to allege sufficient facts to state a claim
of racial or religious discrimination.
Appellant’s conclusory allegations of discrimination and harassment do not state a claim upon
which relief can be granted. The district court properly dismissed appellant's complaint in its
entirety.
In the alternative, the district court did not abuse its discretion when it dismissed appellant’s
complaint for failure to comply with court orders. Appellant failed to oppose appellees’ motions
to dismiss and for summary judgment, even after the district court extended the time to respond,
and appellant’s counsel failed to appear at the May 2, 1989 hearing. The district court acted
within its discretion when it dismissed the complaint under Rule 41(b).
III
Although appellees moved for attorneys’ fees and costs under Rules 11 and 54(d) of the
Federal Rules of Civil Procedure and under 42 U.S.C. § 1988, the district court’s order awarding
fees and costs mentions only Rule 11. Rule 11 states:
Every pleading, motion, and other paper of a party represented by an attorney shall be
signed by at least one attorney of record in the attorney's individual name. The signature
of an attorney or party constitutes a certificate by the signer that the signer has read the
pleading, motion, or other paper; that to the best of the signer's knowledge, information,
and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification, or reversal of
existing law, and that it is not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of litigation. If a pleading,
motion, or other paper is signed in violation of this rule, the court, upon motion or upon
its own initiative, shall impose upon the person who signed it, a represented party, or
both, an appropriate sanction, which may include an order to pay to the other party or
parties the amount of the reasonable expenses incurred because of the filing of the
pleading, motion, or other paper, including a reasonable attorney's fee.
The rule imposes “a duty to conduct a pre-filing examination of both the facts and the law before
instituting legal process.” The rule does not purport to be a means for district courts to sanction

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542
conduct in the course of a lawsuit, such as failure to comply with court orders, that does not
involve the signing of pleadings, motions, or other papers.
The district court faulted appellant for filing a suit in which the “weight of existing law” favored
appellees, but the court admitted that there was a legal basis for appellant’s Title VII claims. The
court justified its sanction under Rule 11 by noting that appellant had failed to oppose the
motions to dismiss and for summary judgment and that the complaint set forth only vague and
conclusory allegations. But this does not establish that there was not a factual and legal basis
for appellant’s claim under Title VII. It merely establishes that appellant’s counsel failed to
comply with court orders and filed an inartfully pled complaint. Even a vague and conclusory
complaint may be “well grounded in fact and warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law.” Indeed, if Rule 11 permitted
sanctions merely on the basis of inartful pleading, rather than for a failure to investigate the legal
and factual basis for that pleading, Rule 12(e) motions for a more definite statement would be
virtually unheard of. The fact that appellant's complaint was vague and conclusory does not
justify sanctions under Rule 11.
The district court also awarded attorneys’ fees and costs because of appellant’s counsel’s
“blatant disregard” for the local rules of the district court and for “his lackadaisical attitude in
failing to respond to defendants’ Motion for Award of Attorneys’ Fees.” Because the order
awarding fees and costs does not indicate any other source of authority, we must presume that
the district court awarded fees on this ground pursuant to Rule 11. Again, Rule 11 is
inapplicable. Rule 16(f) specifically provides for sanctions “if a party or party’s attorney fails to
obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a
scheduling or pretrial conference.” In contrast, Rule 11, by its own terms, can never be the basis
for sanctions for failure to file certain papers. Thus, although appellant’s counsel’s conduct in
the course of this lawsuit fully justified sanctions, Rule 11 is an inappropriate vehicle for the
imposition of such sanctions. Because appellees’ motion for attorneys’ fees and costs rested on
a number of grounds and because the district court appeared to rely only on Rule 11, the award
of fees and costs must be vacated and the issue remanded to the district court for consideration
of alternative bases for such an award.
IV
The district court properly dismissed appellant's complaint for failure to state a claim upon which
relief could be granted and for failure to comply with court orders. Although the district court had
ample grounds under Rule 16(f) for imposing sanctions on appellant's counsel, Rule 11 does
not provide authority for sanctions in this case.
Questions:
1. Should the circuit court have read Rule 11 this narrowly?
2. If sanctions were permitted on a basis other than Rule 11, why didn’t the circuit court
affirm on alternative grounds?

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3. Should plaintiff’s failure to respond be sanctionable? What about defendant’s failure to
respond?
In re Sargent, 136 F. 3d 349 (4th Cir. 1998)
Summary: Cox filed a complaint alleging that Saunders and others violated his
constitutional rights by subjecting him to harmful prison conditions. The district court
dismissed all but one of Cox’s claims, and informed him that the Prison Litigation Reform
Act precluded prisoners who filed three frivolous complaints from filing any additional
complaints, unless they were in danger of imminent harm. Assistant Attorney General
Sargent filed a motion for summary judgment, arguing that Cox’s complaint was
frivolous. The district court dismissed and then reinstated Cox’s complaint, at his
request. The district court also imposed Rule 11 sanctions on Sargent for
misrepresenting the PLRA and enjoined application of the PLRA to Cox. The circuit court
reversed, holding that Sargent’s motion for summary judgment did not violate Rule 11
and that precluding application of the PLRA to Cox was not an appropriate remedy for
the alleged misconduct.
WILKINS, Circuit Judge:
Pamela A. Sargent, an Assistant Attorney General for the Commonwealth of Virginia, appeals a
sanction imposed pursuant to Federal Rule of Civil Procedure 11 enjoining application of the
Prison Litigation Reform Act to inmate Richard Cox in any civil action in the United States
District Court for the Western District of Virginia. We reverse.
I.
Cox, a Virginia prisoner, filed an action against Warden Lonnie Saunders and other prison
officials, alleging that they had violated his constitutional rights by, inter alia, intentionally
subjecting him to harmful prison conditions. The prison officials filed a motion to dismiss Cox’s
action, which was granted except as to one claim. Soon afterward, the district court issued a
notice informing Cox of the passage and practical effects of the PLRA. The court correctly
explained that under the PLRA
A prisoner may not bring a civil action without prepayment of the appropriate filing fee if
the prisoner has, on three or more prior occasions, brought an action or appeal in a
federal court that was dismissed as frivolous, as malicious, or for failure to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.
Shortly thereafter, Sargent filed a motion for summary judgment on behalf of the prison officials.
In the penultimate paragraph of the accompanying memorandum, she asserted:

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Cox has already had two cases dismissed for being frivolous or for failure to state a
claim. Pursuant to the newly enacted Prison Litigation Reform Act, Cox will forfeit the
right to file future cases if a third case is found to be frivolous, malicious or fails to state a
claim upon which relief can be granted. The prison officials submit that this is that third
case and that an Order should be entered dismissing the case with prejudice, awarding
them costs and attorney's fees, and barring Cox from future filings.
Approximately one week later, Cox requested that his action be dismissed without prejudice,
and the district court granted the dismissal. Thereafter, however, the district court granted Cox’s
motion to reinstate the action. In ruling on that motion, the district court found that Sargent’s
contentions were “a blatant misrepresentation of the content of that provision and its application
to this case” because a portion of Cox’s complaint had already survived a motion to dismiss.
The district court also noted that Sargent had misstated the law regarding the filing of future
cases because § 1915(g) of the PLRA provides that an inmate who has three qualifying
dismissed cases is not barred from all future filings but only from filing actions in forma pauperis
when he does not face an imminent danger of serious physical injury. The district court directed
Sargent to show cause why the memorandum in support of the motion for summary judgment
did not violate Federal Rule of Civil Procedure 11(b). After receiving Sargent’s response, the
district court determined that sanctions were warranted and enjoined application of § 1915(g) to
Cox until further order of the court.
II.
Sargent first argues that the sanction should be reversed because the district court abused its
discretion in finding that the legal contentions contained in the memorandum in support of the
motion for summary judgment violated Rule 11. We agree.
The provisions of Rule 11 dictate that in presenting a motion to a court, an attorney represents
that the “legal contentions therein are warranted by existing law or by a nonfrivolous argument
for the extension, modification, or reversal of existing law or the establishment of new law.” An
assertion of law violates Rule 11(b)(2) when, applying a standard of objective reasonableness, it
can be said that “a reasonable attorney in like circumstances could not have believed his
actions to be legally justified.” A legal contention is unjustified when “a reasonable attorney
would recognize it as frivolous.” Put differently, a legal position violates Rule 11 if it “has
absolutely no chance of success under the existing precedent.”
Here, the district court first took issue with Sargent's contention that the earlier dismissal of
some of the claims in Cox’s present lawsuit should be considered his third strike for the purpose
of § 1915(g). However, ten of the eleven claims in Cox's complaint had been dismissed for
failure to state a claim upon which relief could be granted, and it was well within the bounds of
fair adversarial argument for the Government to suggest that the remaining claim must also be
dismissed as frivolous, causing the three-strike rule to apply. If the latter occurred, Cox’s
underlying suit could indeed constitute the third strike against him. We cannot say that the
position had no chance of success under existing law.

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The district court next found fault with Sargent’s representation that pursuant to § 1915(g) a
third dismissal for frivolity, malice, or failure to state a claim would bar Cox from future filings.
Assuredly, Sargent’s legal contention was not a complete explanation of the consequences of a
third strike. But, the consequences of a third strike in all future cases were not put into issue by
the motion. And, Sargent explains that the statement was meant to convey only that Cox would
be barred from filing cases pursuant to § 1915 — the statute at issue — which addresses only in
forma pauperis filings. Thus, although Sargent’s statement of the consequences of obtaining a
third strike perhaps was not completely thorough, it can plausibly be read as a mere shorthand
reference to the statute and was not unwarranted under the circumstances. Accordingly, we find
the decision of the district court to sanction Sargent under Rule 11 constituted an abuse of
discretion.
III.
Sargent also maintains that even if her conduct warranted sanctions, the district court abused its
discretion in choosing the particular sanction imposed. “A sanction imposed for violation of Rule
11 shall be limited to what is sufficient to deter repetition” of the objectionable conduct. This
court has made “clear that the primary purpose of Rule 11 is to deter future litigation abuse.”
Other objectives advanced by the imposition of a sanction are remediation of the harm caused
by the Rule 11 violation, for example by compensating the victim for attorney’s fees expended in
responding to the frivolous claim; punishment of the person or entity responsible for the
violation; and enhancement of judicial administration.
With these purposes in mind, we conclude that the district court abused its discretion in ruling
that the sanction imposed was limited to what was sufficient to deter Sargent’s conduct. The
finding by the district court that Sargent violated Rule 11 by advancing an unsupported legal
assertion essentially amounts to a public reprimand that, in and of itself, should be a significant
deterrent to future violations. And, there is no serious suggestion that further sanction was
necessary to curb future abuses by Sargent. Further, Cox was in no way prejudiced by
Sargent’s legal assertion. Assuming that Cox moved to dismiss his action based upon Sargent’s
legal representations, the district court permitted reinstatement of the action upon Cox’s
request. Thus, the imposition of any sanction was unnecessary for purposes of remediating
harm caused by the Rule 11 violation. Moreover, assuming that Cox was prejudiced in some
way by Sargent’s statements, the sanction imposed by the district court failed to provide
remediation because it had no potential to alleviate any type of harm that Cox could have
suffered in the present litigation. Indeed, we can envision no circumstances in which such a
sanction would be appropriate to remediate harm to a victim of a Rule 11 violation. Finally, there
is no suggestion that an injunction on application of § 1915(g) to Cox was necessary to punish
Sargent or to enhance judicial administration. For that matter, it is difficult to say that the
sanction adversely impacted Sargent in the least. And, we fail to appreciate how the suspension
of a statute specifically designed to reduce the amount of frivolous prisoner litigation could be
thought to enhance the administration of justice. Accordingly, we conclude that the district court

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abused its discretion in choosing a sanction to impose upon Sargent even if her conduct had
violated Rule 11.
Questions:
1. When should an argument in a pleading be sanctionable under Rule 11?
2. Should prosecutors and other government lawyers be held to a different standard than
private attorneys or pro se litigants?
3. What is the appropriate sanction for a Rule 11 violation?
The Duty of Reasonable Investigation
Cleveland Demolition Co., Inc. v. Azcon Scrap Corp., 827 F. 2d 984 (4th Cir. 1987)
Summary: Paul Haddad represented himself as the President of Cleveland Demolition
and sold scrap material to Azcon Scrap. But when Azcon tried to collect the scrap,
Cleveland refused to provide it, arguing that Haddad was not its President and that he
was not authorized to sell the scrap. Azcon filed a breach of contract action against
Cleveland. At trial, Azcon Vice-President Richard Spine testified that he had requested a
verbal Dun & Bradstreet report on Cleveland that listed Haddad as President. A later,
printed report listed Haddad as President, and the district court granted summary
judgment to Azcon. Cleveland filed a motion to vacate, arguing that Spine perjured
himself, because Dun & Bradstreet had no record of a verbal report. The district court
dismissed the motion and imposed Rule 11 sanctions on Cleveland, finding that its
claims lacked a factual basis, and the circuit court affirmed.
WILKINSON, Circuit Judge:
Cleveland Demolition seeks to set aside an earlier jury verdict for Azcon Scrap on the basis that
Azcon’s trial attorney conspired with a witness to present perjured testimony. The only evidence
of this alleged conspiracy, however, is an evidentiary conflict between the witness’s testimony
and statements made by a different party in a subsequent lawsuit. This routine evidentiary
conflict does not justify an action for fraud on the court or the serious allegations of attorney
misconduct leveled in this case. We therefore affirm the district court’s decision to grant
summary judgment for Azcon and to impose Rule 11 sanctions on Cleveland and its attorneys.
I.
In 1983, Cleveland Demolition demolished a power plant for an electric company in West
Virginia, leaving Cleveland with several tons of scrap material. In June 1983, Paul Haddad, who
represented himself as the president of Cleveland, contacted Richard Spine, a vice-president of
Azcon Scrap, to inquire whether Azcon was interested in buying the scrap. After inspecting the
site and negotiating over terms, Spine and Haddad signed a contract on July 14th. When an
Azcon crew arrived at the demolition site, however, it was prevented from removing the scrap by

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Cleveland employees, who informed them that Haddad was not the president of Cleveland and
had no authority to sign the contract with Azcon. Azcon sued Cleveland for breach of contract.
A crucial issue at trial was whether Haddad had apparent authority to sell the scrap for
Cleveland Demolition. Azcon presented a great deal of evidence to justify its belief that Haddad
was the president of Cleveland. For example, Cleveland employees at the scrap site had
treated Haddad as if he were the president and a representative of the electric company had
told Spine that Haddad was the president of Cleveland. Haddad also testified that Phillip
Schwab, the owner of Cleveland, had asked him to act as president in dealing with the West
Virginia electric company because a different Schwab company had defaulted on an earlier
contract with the same power company.
During the trial, Spine testified that on July 5th, before signing the contract with Haddad, he
requested a verbal Dun & Bradstreet report on Cleveland Demolition from Azcon’s Chicago
office. According to Spine, Azcon’s Chicago office reported that Haddad was listed as the
president of Cleveland Demolition. After learning that Haddad was not the actual president,
Azcon requested a print-out of the Dun & Bradstreet report. This report, dated August 2nd and
introduced at trial, indicated that Haddad was the president of Cleveland. Based on this
evidence, the jury returned a $500,000 verdict for Azcon. This court affirmed in an unpublished
opinion, concluding that “sufficient evidence exists to support the jury’s finding that Paul Haddad
was acting as an agent of Cleveland Demolition.”
Cleveland now claims that the earlier verdict should be vacated because Spine deliberately lied
when he testified that he requested a Dun & Bradstreet report on July 5th. To support this
charge of perjury, Cleveland claims that Spine’s pretrial deposition, in contrast to his specific
trial testimony, was ambiguous and did not clearly reveal that he requested a July report.
Moreover, Cleveland notes that Dun & Bradstreet has no internal record of a request by Azcon
for information on July 5th. Cleveland concludes that Spine lied about the July request to help
Azcon's case.
Cleveland does not stop at alleging perjury by Spine. It claims that Azcon’s trial attorney,
Lawrence Demase, conspired with Spine to present this perjured testimony. In an attempt to
prove Demase’s involvement, Cleveland notes that he prepared two affidavits for Spine, but
neither affidavit mentioned a July 5th request for a Dun & Bradstreet report. Nonetheless,
Demase questioned Spine about the July 5th report at the trial and used this testimony in his
opening and closing statements. Cleveland cites as further evidence of Demase’s participation
his acknowledgement that he and Spine reviewed Spine’s deposition statements and concluded
that they did not completely reflect what Spine had intended to say. Finally, Cleveland claims
that Demase should have known that Spine did not request a report on July 5th because Dun &
Bradstreet has no record of this request.
In sum, Cleveland believes that Spine must have perjured himself because his deposition is
unclear and his trial testimony conflicts with Dun & Bradstreet’s records. Cleveland concludes
that Demase must have actively participated in this perjury because he was Azcon’s trial

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attorney. Relying on such conclusory allegations, Cleveland brought this independent action to
set aside the earlier verdict, claiming that it was obtained by a fraud on the court. The district
court granted Azcon’s motion for summary judgment, finding that there was “no evidence here
that either Spine gave false testimony or that Demase participated.” The district court noted that
Cleveland had produced no “smoking gun”, nor even so much as a “singed paperclip.” Because
Cleveland’s attorneys did not adequately investigate the factual or legal basis for this lawsuit,
the district court also assessed attorney fees and costs under Rule 11.
II.
A verdict may be set aside for fraud on the court if an attorney and a witness have conspired to
present perjured testimony. The only evidence that Spine committed perjury, however, is the
conflict between his trial testimony and Dun & Bradstreet’s version of the July 5th report; the
only evidence of Demase’s involvement is that he was Azcon’s trial attorney. This meager
evidence falls woefully short of proving a fraud on the court. More importantly, if a losing party
could attack a verdict whenever two witnesses disagreed and an attorney was involved, no
verdict would be final. The district court properly granted summary judgment for Azcon.
District courts may entertain an independent action in equity to set aside a judgment for fraud on
the court. Fraud on the court is a serious allegation, however, involving “corruption of the judicial
process itself.” A verdict will be vacated only in the “most egregious cases in which the integrity
of the court and its ability to function impartially is directly impinged.” Although perjury by a
witness will not suffice, the “involvement of an attorney, as an officer of the court, in a scheme to
suborn perjury should certainly be considered fraud on the court.” Thus, if Spine deliberately lied
and Demase participated in the fraud, the earlier verdict for Azcon should be set aside.
According to Cleveland, Spine must have committed perjury because his deposition is vague
and Dun & Bradstreet has no record of a July 5th request. Cleveland, however, overestimates
the ambiguity of the deposition. Although not a model of clarity, Spine’s deposition does state
that he requested a verbal Dun & Bradstreet report when the Azcon employees inspected the
demolition site, which was in late June or early July. The deposition also shows that Spine
claimed that Azcon’s Chicago office reported that Haddad was listed as the president on the
Dun & Bradstreet report. The deposition is not inconsistent with Spine’s subsequent testimony;
the trial testimony is simply more specific.
The lack of a Dun & Bradstreet record also fails to show that Spine committed perjury.
Cleveland did not learn that there was no record until it sued Dun & Bradstreet for negligently
informing Azcon that Haddad was the president. Thus, the statements by Dun & Bradstreet
employees that they have no internal record actually amount to nothing more than unverified,
exculpatory claims by an interested party. This evidence does not show that Spine never
requested a report from the Chicago office or that Spine deliberately lied on the stand. It simply
shows that Spine and Dun & Bradstreet disagree over whether Azcon made a request on July
5th. Although Cleveland could certainly have used this evidence to impeach Spine during the

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initial trial, it cannot use this routine evidentiary conflict to support an action for fraud on the
court.
Cleveland has produced even less evidence of Demase’s involvement in this alleged
conspiracy. Demase acted only as Azcon’s trial attorney, performing such typical activities as
preparing affidavits and questioning witnesses. Cleveland apparently argues for a virtually
automatic rule that, whenever a witness lies on the stand, his attorney must have known about
and actively participated in the perjury. In addition to being unjustified, this rule would allow
parties to circumvent the Rule 60(b)(3) one-year time limitation on motions to set aside a
judgment for fraud or misrepresentation. Losing parties could transform a perjury case into an
action for fraud on the court simply by alleging that an attorney was present.
In essence, Cleveland asks this court to vacate the earlier verdict because Spine’s testimony
conflicts with the Dun & Bradstreet statements and Demase participated in the trial. Not only
does this argument fail to establish any evidence of a fraud on the court, but it seriously
undermines the principle of finality. If a routine evidentiary dispute, which occurs in virtually all
trials, could justify an action for fraud on the court, then any losing party could bring an
independent action to set aside the verdict, forcing extended proceedings in almost every case.
Because Rule 60(b) imposes no time limit on these independent actions, they could be brought
at any time. Thus, under Cleveland’s version of the doctrine, no verdict would ever be final until
a second proceeding was held to determine if there was a fraud on the court.
Rather than unravel the finality of judgments through the abuse of Rule 60(b), we adhere to the
well-established rule that evidentiary conflicts must be resolved during the initial trial. Cleveland
should have been aware of the conflict between Spine’s testimony and Dun & Bradstreet’s
records; Spine’s deposition was specific enough to put Cleveland on notice. Having failed to
depose Dun & Bradstreet in time for the trial, Cleveland cannot avoid the verdict by leveling a
charge of fraud on the court. Because Cleveland has produced no evidence of a conspiracy
between Spine and Demase, Azcon was entitled to summary judgment.
III.
After granting summary judgment, the district court imposed Rule 11 sanctions on Cleveland
and its attorneys for filing this action. A decision to impose sanctions will be reversed only for an
abuse of discretion. Because Cleveland did not conduct a reasonable investigation of the factual
and legal basis for this claim, we think the district court acted well within its discretion in
imposing sanctions.
When an attorney signs a complaint, he certifies that “to the best of his knowledge, information,
and belief formed after reasonable inquiry, the complaint is well grounded in fact and is
warranted by existing law.” Under this rule, Cleveland’s attorneys were required to investigate
the factual and legal basis for the claim before filing this lawsuit. The 1972 amendments
underscored this duty by eliminating the subjective “good faith” harbor and requiring an attorney
to conduct an objectively reasonable investigation. If an attorney signs a complaint without

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undertaking the necessary investigation, Rule 11 provides that the district court “shall” impose
sanctions.
The district court found that Cleveland did not conduct a reasonable factual or legal
investigation. We agree. Although Cleveland discovered a conflict between the Spine and Dun
& Bradstreet versions, this discovery should have been only the beginning of the inquiry into
whether Spine committed perjury. Rather than continuing its investigation, however, Cleveland
was apparently satisfied with a few interviews with a Dun & Bradstreet employee.
A complaint of this nature has a potentially devastating impact upon professional reputations.
Even if Cleveland had found evidence of perjury, it had an obligation to investigate whether
attorney Demase was involved. Cleveland’s inquiry never produced any evidence that Demase
participated in Spine’s alleged perjury. As the district court noted, “this part of Cleveland’s case
has always been nothing more than speculative and conclusory.” Instead of conducting a
reasonable factual investigation, Cleveland apparently chose to build its case on the
unsupported assumption that Spine must have been lying and that Demase must have been
participating. This speculative basis for a Rule 60(b) action alleging attorney misconduct of the
most serious nature does not satisfy Rule 11 standards.
Cleveland also failed to conduct a reasonable legal investigation to determine if the complaint
was “warranted by existing law.” Cleveland limited its inquiry to a brief reading of Rule 60, a
portion of American Jurisprudence, a Federal Procedure Guide, and Hazel-Atlas Glass Co. v.
Hartford-Empire Co. (1944). If Cleveland had conducted even a minimal investigation into
Fourth Circuit precedent, it would have discovered Great Coastal Express v. International
Brotherhood of Teamsters. Although Great Coastal suggests that a conspiracy by a witness and
an attorney to commit perjury will amount to a fraud on the court, the case specifically notes that
other sanctions exist to punish perjury and that “perjury or fabricated evidence are not grounds
for relief as a fraud on the court.” Thus, even if Cleveland had evidence of perjury by Spine, it
was still required to show that Demase participated. Because Cleveland had absolutely no
evidence of involvement by Demase, a quick reading of Great Coastal would have revealed that
Cleveland’s complaint had “absolutely no chance of success under the existing precedent.”
In sum, Rule 11 “explicitly and unambiguously imposes an affirmative duty on each attorney to
conduct a reasonable inquiry into the validity of a pleading before it is signed.” The Rule does
not seek to stifle the exuberant spirit of skilled advocacy or to require that a claim be proven
before a complaint can be filed. The Rule attempts to discourage the needless filing of
groundless lawsuits. To fulfill his duty, an attorney must investigate the facts, examine the law,
and then decide whether the complaint is justified. Cleveland failed to discharge this duty; it
conducted only a minimal factual inquiry and a cursory legal investigation. The district court
properly imposed sanctions.
In determining the specific amount of the sanctions, the district court reduced Azcon’s legal fees
by 10%, finding that the case was slightly over-lawyered and did not require a trial. The hourly
fees of several attorneys were lowered to reflect the prevailing local rate, while the fees of

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attorneys from out of state were reduced by 10% because they failed to provide the district court
with sufficient information about their professional backgrounds. These adjustments are
consistent with the twelve factors listed in Barber v. Kimbrell's, Inc., and we therefore affirm the
amount of the award in this case.
Questions:
1. What was the basis for Cleveland’s claim that Spine perjured himself?
2. What investigation should Cleveland have done before filing its motion to vacate?
3. Is it possible that Spine did not request a verbal report from Dun & Bradstreet? Does it
matter?

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William Kunstler (1989)

Eddie Hatcher & Timothy Jacobs
In re Kunstler, 914 F. 2d 505 (4th Cir. 1990)
Summary: Eddie Hatcher and Timothy Jacobs hijacked the offices of the Robeson,
North Carolina newspaper The Robesonian and took its employees hostage. They
eventually surrendered, in exchange for a promise that the governor would investigate
their claims of government corruption. The federal government prosecuted Hatcher and

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Jacobs, but they were acquitted. Then, North Carolina prosecuted Hatcher and Jacobs.
Barry Nakell, Lewis Pitts, and William Kunstler filed a § 1983 against the Governor of
North Carolina and other state officials, for improper prosecution. The district court
dismissed the action and imposed Rule 11 sanctions on Nakell, Pitts, and Kunstler. The
circuit court affirmed, but remanded for reconsideration of the sanctions.
CHAPMAN, Circuit Judge:
Three attorneys appeal the award of Rule 11 sanctions against them in the amount of
$122,834.28. Appellants were sanctioned following the dismissal of a 42 U.S.C. § 1983 action,
in which they represented certain plaintiffs seeking monetary damages and injunctive relief from
the Governor of North Carolina, a number of North Carolina district attorneys, a sheriff, certain
State Bureau of Investigation officers, the State Attorney General and others for an allegedly
improper state criminal prosecution and harassment. We affirm in part, vacate in part, and
remand with instructions.
I
The appellant attorneys are Barry Nakell, a professor at the University of North Carolina School
of Law; Lewis Pitts, Director of the Christic Institute South, a public interest law firm in Carrboro,
North Carolina; and William Kunstler, a nationally known civil rights attorney. The § 1983 action
was connected with the appellants’ earlier representation of two American Indians, Eddie
Hatcher and Timothy Jacobs, in a federal criminal case.
On February 1, 1988, Hatcher and Jacobs staged an armed takeover of The Robesonian, a
local newspaper in Robeson County, North Carolina. Hatcher and Jacobs held twenty hostages
and charged the State District Attorney and the Sheriff’s Office with corruption and criminal
misconduct. Hatcher and Jacobs surrendered to federal authorities in exchange for a promise
that a Governor’s Task Force would investigate their complaints. The Task Force ultimately
announced that it had found no evidence to support Hatcher’s and Jacobs’ charges.
Hatcher and Jacobs were acquitted of federal criminal charges on October 14, 1988, but North
Carolina District Attorney Joe Freeman Britt announced that Hatcher and Jacobs might face
state indictments. Soon after that announcement, Hatcher began a petition drive seeking to
have Hubert and Kevin Stone removed from the Sheriff’s Office. The Robeson Defense
Committee, which had supported Hatcher in his federal trial, supported the petition drive. In
November 1988, newspaper reports indicated that the State Bureau of Investigation was
investigating whether there had been a conspiracy in the takeover of The Robesonian.
Appellants Barry Nakell and Lewis Pitts contacted the Attorney General’s office to express their
concern that SBI agents would intimidate citizens who were working with Hatcher in the petition
drive. The Attorney General responded that no action would be taken by his office because he
did not believe that the SBI was engaged in any abuse of process. Attorney Nakell alleges that
the Deputy Attorney General orally admitted that the decision was political.

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Attorney Pitts volunteered legal assistance to anyone on the Robeson Defense Committee
subjected to harassment because of their participation in the petition drive. Appellants allege
that six members of the Defense Committee contacted Attorneys Pitts and Nakell with claims of
harassment by SBI agents and the Sheriff's Department, primarily involving surveillance and
questioning.
On December 6, 1988, Hatcher and Jacobs were indicted on state charges. After the
indictment, Jacobs fought extradition from New York. Hatcher was in federal custody in
California.
By late December 1988, appellants contend that they believed that Jacobs’ extradition, the
pending state prosecutions, and an alleged pattern of activity by the District Attorney and his
staff, members of the Sheriff's Department, and the SBI raised constitutional concerns which
could only be resolved by a civil suit, because public officials were unresponsive. Appellants
contend that they also believed that there was an illegal campaign to split Jacobs from Hatcher,
and to interfere with Jacobs' right to counsel by persuading him to hire local counsel.
Attorneys Pitts and Nakell contend that they initially refrained from filing the complaint in hopes
of enhancing Jacobs’ plea bargaining opportunities, but Mr. Nakell filed the complaint on
January 31, 1989, the eve of the one-year anniversary of the armed takeover of The
Robesonian, and he called a press conference to announce the filing. An amended complaint,
signed by all three appellants, was filed on March 16, 1989.
The suit named eight plaintiffs, including various members of the Robeson Defense Committee,
and Jacobs and Hatcher. The thirty-page amended complaint names nineteen defendants,
including two district attorneys and members of their staffs, five SBI agents, the SBI Director,
the Sheriff of Robeson County and five Deputy Sheriffs, the Attorney General of North Carolina,
and the Governor of North Carolina. The complaint alleges First Amendment and Sixth
Amendment violations concerning an alleged campaign of intimidation of political activity, and
efforts to induce Jacobs to testify against Hatcher. All defendants were sued in their official and
individual capacities, except the Governor, who was named only in his official capacity in a
count seeking an injunction against extradition. The complaint also sought injunctions against
the pending state criminal prosecutions, and against the defendants’ harassment and
interference with the attorney-client relationship established by Jacobs. The complaint sought
damages against all individually named defendants and Robeson County.
After the case was filed, appellants sought expedited discovery to depose defendant SBI agent
Bowman, who was the case agent in the state’s pending criminal action against Jacobs and
Hatcher. The defendants moved for a protective order claiming that discovery was improperly
sought to obtain information concerning the state criminal proceedings, which plaintiffs could not
otherwise obtain. The district court did not rule on this motion prior to the dismissal of the case.
In late March 1989, Jacobs, having failed in resisting extradition, was returned to North
Carolina. In April, Jacobs agreed to a plea bargain. Appellants contend that a variety of events

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then caused them to reevaluate the viability of their civil suit, and to conclude that dismissal was
appropriate.
On April 20, Mr. Nakell called Joan Byers, a Special Deputy Attorney General, seeking
defendants’ approval to a stipulated dismissal under Rule 41(a)(1)(ii). Byers would not stipulate
to a dismissal under Rule 41(a)(1), but authorized appellants to state that defendants did not
object to a dismissal under Rule 41(a)(2). Appellants proceeded under Rule 41(a)(2), and the
order dismissing the case was entered on May 2, 1989.
On June 13, 1989, the state defendants filed their Rule 11 motion, and the county defendants
filed a similar motion for sanctions on July 5. On August 8, appellants responded to the Rule 11
motions and requested an evidentiary hearing. On September 5, appellants filed a Rule 11
motion seeking sanctions against the appellees. On September 8, the court heard arguments of
counsel and shortly thereafter requested submissions by defendants’ counsel of their fees and
expenses. On September 29, the district court imposed Rule 11 sanctions upon appellants, and
dismissed appellants' Rule 11 motion. Sanctions against appellants included full fees and costs
of $92,834.28 and $10,000 additional sanctions against each appellant based upon the
baseless claims which appellants had taken care to publicize. We affirm the district court's
findings that appellants violated all three prongs of Rule 11, but vacate and remand for
reconsideration of the appropriate sanction.
II
SANCTIONS AFTER DISMISSAL
Initially, we must determine whether the defendants' failure to notify the plaintiffs or the court
prior to dismissal that defendants intended to file a Rule 11 motion should have precluded
consideration of the Rule 11 motion. Appellants cite Barr Labs., Inc. v. Abbott Labs., where the
Second Circuit affirmed the denial of a Rule 11 motion filed after a stipulated dismissal under
Rule 41(a)(1)(ii). There, the defendant’s attorney did not indicate an intention to seek Rule 11
sanctions prior to dismissal and implied in a letter to plaintiff's counsel, prior to the dismissal,
that sanctions would not be sought if the case were voluntarily dismissed. The Barr court
enunciated a rule “prohibiting a motion for Rule 11 sanctions after the execution of a stipulation
of dismissal without a reservation of the right to move for such relief.”
The present case is different from Barr because it does not involve a stipulated dismissal, which
requires opposing counsel to sign the dismissal order. We have a dismissal under Rule
41(a)(2), which does not require a stipulation by the defendants. No court has adopted a rule
prohibiting a motion for Rule 11 sanctions after a dismissal with prejudice under Rule 41(a)(2).
In addition, unlike Barr, there is no evidence that defendants indicated that they would not
pursue Rule 11 sanctions. We decline to extend Barr to dismissals under Rule 41(a)(2).
Appellants also argue that since Rule 41(a)(2) specifies that dismissal is subject to such “terms
and conditions as the court deems proper,” the potential for Rule 11 sanctions should be stated

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by a defendant as a condition to a dismissal. We disagree. Rule 41(a)(2) does not require the
defendant or a court to indicate the possibility of Rule 11 sanctions as a “term or condition” of a
plaintiff’s dismissal. Recently, in Cooter & Gell v. Hartmarx Corp., the Supreme Court
hypothesized that even a Rule 11 sanction which prohibited refiling a complaint dismissed
without prejudice under Rule 41(a)(1) would not be a “term or condition” placed upon the
dismissal. Waiver of a Rule 11 motion may not be a condition to dismissal because a decision
not to dismiss may not prevent the imposition of sanctions for an improvidently filed complaint.
“As the ‘violation of Rule 11 is complete when the paper is filed,’ a voluntary dismissal does not
expunge the Rule 11 violation.”
There may be circumstances under which Rule 11 sanctions should not be granted after the
voluntary dismissal of a case, i.e., a defendant has indicated an intent not to pursue sanctions,
or the motion is filed an inordinately long time after the dismissal. “Although Rule 11 does not
establish a deadline for the imposition of sanctions, the Advisory Committee did not contemplate
there would be a lengthy delay prior to their imposition.” However, these considerations are
equitable, and must be resolved on a case by case analysis. The party seeking sanctions may
avoid such problems by notifying his opponent and the court of his intention to pursue sanctions
at the earliest possible date.
As the Supreme Court has recently confirmed, there is no jurisdictional bar to the imposition of
sanctions after a voluntary dismissal.
In order to comply with Rule 11's requirement that a court “shall” impose sanctions “if a
pleading, motion, or other paper is signed in violation of this rule,” a court must have the
authority to consider whether there has been a violation of the signing requirement
regardless of the dismissal of the underlying action.
“The only time limitation in filing Rule 11 arises out of equitable considerations.” The defendants
filed their motion six weeks after the Rule 41(a)(2) dismissal, the appellants were not prejudiced
by appellees’ delay in filing, and the district court’s consideration of the motion was proper.
III VIOLATIONS OF RULE 11
Rule 11 states, in relevant part:
The signature of an attorney or party constitutes a certificate by the signer that the signer
has read the pleading, motion, or other paper; that to the best of the signer's knowledge,
information, and belief formed after reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good faith argument for the extension, modification, or
reversal of existing law, and that it is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation. If a
pleading, motion, or other paper is signed in violation of this rule, the court, upon motion
or upon its own initiative, shall impose upon the person who signed it, a represented
party, or both, an appropriate sanction, which may include an order to pay to the other

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party or parties the amount of the reasonable expenses incurred because of the filing of
the pleading, motion, or other paper, including a reasonable attorney’s fee.
The district court found that the three appellants violated all three prongs of Rule 11 by failing to
make a reasonable inquiry to determine that the complaint stood well grounded in fact and
warranted by existing law, and by filing the complaint for an improper purpose. We review all
aspects of the district court’s Rule 11 determinations under an abuse-of-discretion standard.
A. Mr. Kunstler’s Liability
Before reviewing the specific violations of Rule 11 found by the district court, we note that Mr.
Kunstler’s affidavit states that he “did not actively participate in the instant litigation, relying on
Prof. Barry Nakell, who was on the scene, to prepare and file it.” The district court stated that “in
light of the serious allegations in the complaint, Mr. Kunstler's total reliance on other counsel is
itself a violation of Rule 11.” This finding is supported by a recent pronouncement of the
Supreme Court. Mr. Kunstler’s reliance on others was indeed an improper delegation of his
responsibility under Rule 11 to certify that the pleading filed over his name was well grounded in
fact and in law.
The signing attorney cannot leave it to some trusted subordinate, or to one of his
partners, to satisfy himself that the filed paper is factually and legally responsible; by
signing he represents not merely the fact that it is so, but also the fact that he personally
has applied his own judgment.
“The purpose of Rule 11 as a whole is to bring home to the individual signer his personal,
nondelegable responsibility.” Having failed in his responsibility, Mr. Kunstler may not now be
heard to protest that he does not share in any violations of Rule 11 which are evident on the
face of the complaint.
B. Well Grounded in Fact
The district court based sanctions in part on a violation of the first prong of Rule 11 — finding
that the complaint was not well grounded in fact. An objective test is used “to determine the
reasonableness of a lawyer’s prefiling investigation.” “Blind reliance on the client is seldom a
sufficient inquiry.” Mr. Nakell and Mr. Pitts have argued that they had “an intimate knowledge of
the county and its people; factors which made them professionally capable of assimilating and
weighing the facts gathered prior to filing the civil suit.” In light of that knowledge, the factual
inaccuracies in the complaint are even more egregious.
The district court noted numerous misstatements of fact, such as the assertion that the district
attorney “serves as the criminal prosecution arm of Defendant Robeson County and as such
makes policy in police investigation and criminal prosecution matters for Defendant Robeson
County.” In fact, the District Attorney is an officer of the state, not an agent nor an employee of
the county. Contrary to the complaint, defendants Britt, Townsend, and Sampson, and the

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District Attorney’s staff, are state officers, not agents or employees of Robeson County. The
complaint alleges that District Attorney Britt refused and failed to discipline, train and supervise
the Sheriff’s deputies “under their control and supervision.” District Attorneys possess no such
power or responsibility.
Appellants acknowledge some errors, but contend they are “isolated” and thus do not warrant
sanctions. We do not agree with this characterization. The errors pervade the complaint and
concern information which either was or should have been known to appellants. The errors
provide a false foundation for appellants’ allegation of a county-wide “conspiracy,” and are
central to the complaint. Appellants also suggest that, under Pembaur v. Cincinnati (1986), state
officials can sometimes establish county policy for purposes of § 1983 liability. Unlike Pembaur,
there is no provision of North Carolina law which suggests that the state officials in this case
either could or did act to establish county policy.
Other causes of action were founded on allegations which utterly lacked any basis in fact. For
example, the complaint alleged that the Governor, the Attorney General and District Attorney
entered into a “no state prosecution” agreement, and this agreement was breached when the
state prosecution commenced. The district court found that prior to filing their complaint,
appellants
had access to the transcript of the negotiations leading to the hostage release
agreement as well as a copy of the written agreement. Nothing in the agreement or in
any of the negotiations, suggests an agreement that Hatcher and Jacobs would not face
North Carolina charges, and none of the negotiators had the authority to so agree.
Moreover, North Carolina law does not grant the Governor or the State Attorney General the
power to bind the state not to prosecute. Neither the Attorney General nor District Attorney Britt
played any role in the hostage negotiations, but appellants now argue that unspecified
evidence, obtainable through discovery, “could show” that a no prosecution agreement was
made. While a lawyer may rely on discovery to reveal additional facts to support claims which
are well grounded in fact, Rule 11 sanctions are appropriate when a lawyer attempts to use
discovery to support outrageous and frivolous claims for which there is no factual support.
Unsubstantiated claims such as these constitute an abuse of the judicial process for which Rule
11 sanctions were designed.
Appellants appear to have relied entirely upon discovery in the hope of finding some factual
support for many of their claims. In their Memorandum and Opposition to Defendants’ Motion for
a Protective Order, appellants wrote:
Plaintiffs anticipate that as a result of deposing SBI defendant Bowman they will be in a
position to apply to the Court for temporary injunctive relief and make the showing
required by Rule 65(b) of the Federal Rules of Civil Procedure.

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Appellants requested a temporary restraining order in their complaint. Rule 65(b) makes clear
that a temporary restraining order may be granted only if
it clearly appears from specific facts shown by affidavit or by the verified complaint that
immediate and irreparable injury, loss, or damage will result to the applicant before the
adverse party or his attorney can be heard in opposition.
Rule 65(b) does not authorize counsel to request relief and then search through discovery for
facts to support the relief already requested. The rule requires that “specific facts” be “shown” to
the court with the request for relief. We agree with the district court that the appellants’ request
for relief and their indication that they were not “in a position to make the showing required by
Rule 65(b)” without later discovery indicates an unacceptable level of pre-filing investigation.
We affirm the district court's findings that many of the allegations against state and local officials
“have nothing to do with this case and are factually unsubstantiated.” Allegations which suggest
that the Sheriff is engaged in drug trafficking and that a black inmate died while in the Sheriff’s
custody are irrelevant. These allegations involve no injury to the plaintiffs, and the report of drug
trafficking by the Sheriff’s Office is wholly unsupported in fact. Appellants protest that these
allegations were represented in the complaint only as beliefs of their clients, but this does not
make them relevant to the complaint or less scandalous in nature. While irrelevant allegations,
standing alone, may not be cause for Rule 11 sanctions, the existence of numerous irrelevant,
unsubstantiated, and sensational allegations is an appropriate factor for a district court to
consider in determining whether the pleading as a whole lacks adequate factual foundation.
In this case, the complaint was filled with irrelevant allegations not tied to specific injuries to
plaintiffs, i.e., general allegations of abusive behavior against blacks and Indians, and
allegations that Robeson County is beleaguered by poverty, illiteracy, and violence. There was
little basis for the allegation that Britt, Townsend, Thornburg and Morgan conspired to appoint
Townsend as District Attorney and to use SBI agents as political police to discredit the
Republican candidate, and that allegation was again irrelevant. Hatcher and Jacobs had been
indicted prior to Townsend’s appointment, and none of the other candidates for District Attorney
suggested that they would not continue the prosecution. Appellants’ arguments as to the
relevance of such allegations are tangential at best and often strain credulity.
Although Mr. Nakell and Mr. Pitts filed lengthy affidavits detailing their factual inquiry, such
affidavits do not provide factual or legal support for the inaccuracies noted by the district court.
The number of hours allegedly spent by counsel in prefiling investigation does not dissuade us
from affirming the district court’s findings of Rule 11 violations. Given the adequate time to
prepare and hours allegedly spent in preparation of the complaint, appellants have presented no
excuse for the many clear factual errors in this pleading.
Appellants have argued that, despite the lack of pre-filing foundation for their claims, it was
appropriate to include the claims because support for them could only be obtained through
discovery. In Kraemer v. Grant County, the court held that sanctions were not warranted where

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an attorney relied on client information to support a cause of action based on a theory of
conspiracy, even though additional facts were needed to prove the claim. “If discovery is
necessary to establish a claim, then it is not unreasonable to file a complaint so as to obtain the
right to conduct that discovery.” Despite this sweeping statement, there were in Kraemer a
number of factors cautioning against sanctions which are not present here. In Kraemer, the
attorney was a recent law school graduate, and had hired a private investigator to look into his
client’s allegations. The investigator’s report did not discredit any part of the client’s story and
the prospective defendants refused to cooperate with the investigator. Only a single portion of
the complaint — that dealing with the proof of state action — was ultimately found to be without
support.
In the present case, appellants are experienced attorneys with both the time and the means to
conduct a responsible factual investigation. The complaint contains myriad inaccuracies rather
than a single error. Many of the factual inaccuracies could have been discovered by the most
cursory investigation. The irrelevances are inexcusable considering the attorneys’ experience.
Indeed, it is remarkable that so many errors could have been undetected by appellants. The
number of claims without factual foundation warrants sanctions, whether the errors stem from
incompetency or wilful misconduct.
The need for discovery to complete the factual basis for alleged claims is not an excuse to
allege claims with no factual basis. While we do not disagree with the result obtained in
Kraemer, we find that it is not applicable to the present case. A lawyer is an officer of the court,
and he should never file a lawsuit without confidence that it has a reasonable basis in fact and is
well grounded in law. For the purposes of Rule 11, the factual inquiry necessary to file a
complaint is generally satisfied if all of the information which can be obtained prior to suit
supports the allegations made, even though further facts must be obtained through discovery to
finally prove the claim. However, a complaint containing allegations unsupported by any
information obtained prior to filing, or allegations based on information which minimal factual
inquiry would disprove, will subject the author to sanctions.
C. Well Grounded In Law
The district court found that the complaint was not well grounded in law. We agree. Appellants
contend that the strength of the legal basis of the complaint is demonstrated by their opponent’s
lengthy response to them, and the approval of a civil rights attorney, who reviewed and
approved of, but did not sign, the complaint. The length of an opponent’s response to a
complaint does not validate the otherwise insubstantial claims therein, because a lengthy
response may reveal less the merit of particular claims than the number of valid defenses to
them. An opponent may have employed “scorched earth” tactics in composing a response far
beyond what is required to oppose frivolous claims. Nor is the Rule 11 standard of whether a
“reasonable attorney in like circumstances would believe his actions to be factually and legally
justified” satisfied merely by having another attorney review a complaint. The reviewing attorney
may be unfamiliar with the true facts of the case, the factual and legal investigation conducted,
or the law relevant to the complaint.

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The district court enumerated several substantial claims without legal foundation. The court
found no factual or legal basis for the double jeopardy claim to the state prosecution of Hatcher
and Jacobs following the federal prosecution, because a subsequent prosecution by a different
sovereign plainly does not constitute double jeopardy. Although a “tool of the same authorities”
exception is possible in some circumstances, that exception may only be established by proof
that State officials had little or no independent volition in their proceedings. In this case,
however, the complaint alleged that the state officials instituted and controlled the state
proceeding, which precludes the establishment of that exception. The district court also
considered a quotation attributed to Mr. Pitts in a newspaper article that the state charges did
not constitute double jeopardy. Although we caution the court against relying too heavily on
press reports, we do not fault the district court for considering the statement.
The district court found without legal foundation the plaintiffs’ claim that Hatcher’s Fifth
Amendment rights were damaged when the state tried to extract testimony from Jacobs. Fifth
Amendment protection is personal to the individual whose testimony is being compelled and
appellants as experienced attorneys should have been well aware of this. Appellants make no
attempt to explain away this glaring blunder.
Appellants sought to enjoin state criminal proceedings, but the district court found that the
Younger v. Harris abstention doctrine clearly barred such relief. The court also found that
Hatcher and Jacobs could have presented their federal constitutional claims to the state court.
We agree that plaintiffs had no factual basis for claiming that the state prosecution was brought
in bad faith, or without a reasonable expectation of conviction, because Hatcher and Jacobs had
never denied taking hostages. Although appellants cite an Eighth Circuit case which suggests
that the Younger abstention doctrine does not apply if “a prosecution was brought in retaliation
for or to discourage the exercise of constitutional rights ‘regardless of whether valid convictions
conceivably could be obtained,’” that proposition has been rejected by this court. In Suggs v.
Brannon, we upheld the use of the Younger abstention doctrine when plaintiffs claimed that their
prosecution under obscenity laws chilled their First Amendment rights.
The district court also noted “serious standing problems with many of the plaintiffs’ claims.” For
example, on the claim that the prosecution chilled Hatcher and Jacobs’ First Amendment
expression, the complaint presented no facts showing specific harm or threat of harm.
Appellants respond that they did show concrete and specific harm insofar as plaintiffs’
participation in the petition drive was curtailed. However, Hatcher and Jacob’s participation was
not curtailed, and the district court’s observation on their standing problem with respect to that
claim is valid.
We therefore affirm the court's findings that the complaint on the whole was not well grounded
in law.
D. Improper Purpose

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Sanctions could have been imposed for the violations already discussed, but the district court
also based the award of sanctions on appellants’ improper purpose in filing the complaint. The
type and number of Rule 11 violations are considered in determining the appropriate sanction,
and it was proper for the district court to consider appellants’ purpose. Although the district court
first discussed “improper purpose” under Rule 11, whether or not a pleading has a foundation in
fact or is well grounded in law will often influence the determination of the signer’s purpose, and
we suggest that a district court should consider the first two prongs of Rule 11 before making a
determination of improper purpose.
Appellants argue that the district court’s conclusions as to their purpose are clearly erroneous,
because there is no evidence in the record to support the court’s findings, or the findings are
based on factual conclusions which were contested by affidavit. The district court concluded that
sanctions would be appropriate based on the improper purpose of the lawsuit “even if the
complaint had a proper legal and factual basis.” Since we have affirmed the court’s findings that
the complaint in the instant case was not well grounded in law or in fact, we need not decide
whether a complaint which is well grounded in law and in fact can be sanctioned solely on the
basis that it was filed for an improper purpose. Rather, we look only to whether the court abused
its discretion in finding that the complaint was filed for an improper purpose.
Rule 11 defines the term “improper purpose” to include factors “such as to harass or to cause
unnecessary delay or needless increase in the costs of litigation.” The factors mentioned in the
rule are not exclusive. If a complaint is not filed to vindicate rights in court, its purpose must be
improper. However, if a complaint is filed to vindicate rights in court, and also for some other
purpose, a court should not sanction counsel for an intention that the court does not approve, so
long as the added purpose is not undertaken in bad faith and is not so excessive as to eliminate
a proper purpose. Thus, the purpose to vindicate rights in court must be central and sincere.
Filing of excessive motions may sometimes constitute “harassment” under the rule even if the
motions are well grounded. Likewise, filing a motion or pleading without a sincere intent to
pursue it will garner sanctions.
We have previously stated that in order to determine “improper purpose,” a district court must
judge the conduct of counsel under an objective standard of reasonableness rather than
assessing subjective intent. This test was derived from Zaldivar v. City of Los Angeles, where it
was stated that “harrassment under Rule 11 focuses upon the improper purpose of the signer,
objectively tested, rather than the consequences of the signer’s act, subjectively viewed by the
signer’s opponent.” In other words, it is not enough that the injured party subjectively believes
that a lawsuit was brought to harass, or to focus negative publicity on the injured party; instead,
such improper purposes must be derived from the motive of the signer in pursuing the suit. An
opponent in a lawsuit, particularly a defendant, will nearly always subjectively feel that the
lawsuit was brought for less than proper purposes; plaintiffs and defendants are not often on
congenial terms at the time a suit is brought. However, a court must ignore evidence of the
injured party’s subjective beliefs and look for more objective evidence of the signer’s purpose.

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There is some paradox involved in this analysis, because it is appropriate to consider the
signer’s subjective beliefs to determine the signer’s purpose in filing suit, if such beliefs are
revealed through an admission that the signer knew that the motion or pleading was baseless
but filed it nonetheless. This evidence may be said to be “objective” in the sense that it can be
viewed by a court without fear of misinterpretation; it does not involve difficult determinations of
credibility. Circumstantial facts surrounding the filing may also be considered as evidence of the
signer’s purpose. Repeated filings, the outrageous nature of the claims made, or a signer’s
experience in a particular area of law, under which baseless claims have been made, are all
appropriate indicators of an improper purpose.
The district court concluded that plaintiffs’ counsel never intended to litigate this § 1983 action
and that counsel filed it for publicity, to embarrass state and county officials, to use as leverage
in criminal proceedings, to obtain discovery for use in criminal proceedings, and to intimidate
those involved in the prosecution of Hatcher and Jacobs.
The court drew its conclusions without the aid of an evidentiary hearing, but relied upon the
evidence before it. The court’s first conclusion, that counsel never intended to litigate the action,
is the one which most clearly supports sanctions based on a finding of improper purpose. The
fact that so many allegations in the complaint lacked a basis in law or in fact strongly supports
the court’s finding of improper purpose. The existence of baseless allegations does not alone
require a finding of improper purpose, because inexperience or incompetence may have caused
their inclusion in a pleading, rather than or in addition to willfulness or deliberate choice.
However, in this case counsel are clearly not inexperienced, and the number and magnitude of
claims without foundation suggests that incompetence is not the cause for such allegations in
the complaint. This court is left with the conclusion, drawn by the district court, that counsel
wilfully included the baseless claims. If counsel wilfully files a baseless complaint, a court may
properly infer that it was filed either for purposes of harassment, or some purpose other than to
vindicate rights through the judicial process. We therefore affirm the district court’s finding that
appellants violated the improper purpose prong of Rule 11.
In addition to relying upon the complaint itself, the district court inferred an improper purpose
from the timing of the filing of the complaint, on the eve of the anniversary of the takeover of The
Robesonian, and some time after the alleged constitutional violations began. The court also
viewed with suspicion the timing and nature of the dismissal of the complaint, which occurred
after Jacobs lost his extradition fight in the criminal case, and before any significant discovery
might have given notice to the plaintiffs that their claims were not valid. The district court
dismissed as incredible appellants’ explanations for dismissal, which contended that many of
the claims had become moot through a series of events. The district court found it “absurd” to
think that the wide-spread conspiracy involving high-level state and public officials had suddenly
become unimportant by May 2, 1989. The court noted that the basis of the complaint — the
breach of the alleged no-prosecution agreement — still existed even after Hatcher’s and
Jacobs’ guilty pleas to the state charges. The court stated that the double jeopardy claims,
damage claims, and other requests for equitable relief, if ever valid, did not cease being valid. In

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finding improper purpose, the district court was also influenced by the outrageous nature of the
claims made.
The affidavits submitted by counsel strongly disputed the court’s conclusions as to the timing of
the filing and of the dismissal of the suit, and claimed that no improper motive influenced the
timing of events. As to the decision to dismiss, appellants argued that it was based solely on
financial considerations and the necessity of devoting professional resources elsewhere.
Appellants argue that many equitable claims had become moot, and that the prospect for
damages on the remaining claims did not warrant the expense of continuing the suit. However,
the district court’s determination that these explanations are not reasonable or believable, in
light of all of the evidence surrounding the filing of the complaint and the frivolous nature of the
allegations made, is not clearly erroneous.
The district court noted other evidence which suggested that appellants’ purpose in filing the
complaint was not to vindicate plaintiffs’ rights, such as appellants sending a copy of the
complaint to the state judge who likely would have tried Hatcher and Jacobs in the criminal
case. The court also noted a quotation reported by the media, in which Mr. Pitts allegedly
suggested that the suit was dropped after the Attorney General’s office showed strong
opposition to the suit. The court further considered an affidavit by New York attorney Neal Rose
concerning Mr. Pitts’ alleged admission that the suit was commenced as leverage and lacked a
factual basis, although that affidavit was contradicted by an affidavit by attorney Alan Rosenthal.
In light of other evidence which supports the court's finding of improper purpose, we cannot say
that it was an abuse of discretion for the court to consider these matters as additional support,
even though determinations of credibility are best made after an evidentiary hearing.
In concluding that appellants had never intended to litigate their suit, the district court also
concluded that circumstances surrounding the case, when viewed as a whole, supported the
conclusion that appellants’ primary motives in filing the complaint were to gain publicity, to
embarrass state and county officials, to gain leverage in criminal proceedings, to obtain
discovery for use in criminal proceedings, and to intimidate those involved in the prosecution of
Hatcher and Jacobs. At least some of these motives would not warrant sanctions under the
improper purpose portion of Rule 11, if appellants’ central purpose in bringing suit had been to
vindicate rights of the plaintiffs. Holding a press conference to announce a lawsuit, while
perhaps in poor taste, is not grounds for a Rule 11 sanction, nor is a subjective hope by a
plaintiff that a lawsuit will embarrass or upset a defendant, so long as there is evidence that a
plaintiff’s central purpose in filing a complaint was to vindicate rights through the judicial
process. In this case, however, there was no proper purpose for appellants’ filing of the suit, and
the district court’s consideration of other possible motives for the suit based on the evidence
available was proper.
We have affirmed the district court’s conclusion that sanctions were warranted based on the
improper purpose prong of Rule 11 because it is not clearly erroneous and is supported by facts
such as the baseless allegations made, appellants’ legal experience, and the cumulative nature
of the evidence. However, we urge district courts to exercise special caution when evaluating a

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signer’s purpose under Rule 11. When there are issues of credibility, disputed questions of fact,
and rational explanations of purpose given, an evidentiary hearing may well be necessary to
resolve the issues. This is particularly true when large sanctions are being considered on the
ground of improper purpose as well as failure to comply with the first two prongs of Rule 11. We
do not find that the court erred in failing to hold an evidentiary hearing in this case, because the
cumulative nature of the evidence, as well as our earlier findings on the frivolousness of the
allegations made in the complaint and the lack of a legal or factual basis, convinces us that the
court’s finding of improper purpose is not clearly erroneous and would not have been altered by
an evidentiary hearing.
IV DUE PROCESS
Appellants argue that the district court should not have found a violation of the “improper
purpose” prong of Rule 11 without holding an evidentiary hearing. We disagree. Due process
does not require an evidentiary hearing before sanctions are imposed, even when sanctions are
imposed in part under the improper purpose prong of Rule 11. The Advisory Committee Note on
Rule 11, indicates that satellite litigation over sanctions and separate hearings should be limited
to the extent possible. “The court must to the extent possible limit the scope of the sanction
proceedings to the record.”
In determining whether and to what extent a hearing is required prior to the imposition of
sanctions, we are guided by the Advisory Committee Note to Rule 11 and the reasoning of
Donaldson v. Clark:
The Advisory Committee Note indicates some of the matters to be considered: (1) the
circumstances in general; (2) the type and severity of the sanction under consideration;
and (3) the judge’s participation in the proceedings, the judge’s knowledge of the facts,
and whether there is need for further inquiry. The Advisory Committee Note observes
that “in many situations the judge’s participation in the proceedings provides him with full
knowledge of the relevant facts and little further inquiry will be necessary.”
When an attorney has failed to present necessary factual support for claims despite
several opportunities to do so, for example, further hearing on the sanctions issue may
well be not only unnecessary but also a waste of judicial resources. On the other hand,
when a court is asked to resolve an issue of credibility or to determine whether a good
faith argument can be made for the legal position taken, the risk of an erroneous
imposition of sanctions under limited procedures and the probable value of additional
hearing are likely to be greater. Prior opportunities to respond to Rule 11 charges will
also influence the extent to which further hearing is necessary.
As mentioned by the Advisory Committee, the type and severity of the sanction are
necessary elements in the calculus. The more serious the possible sanction both in
absolute size and in relation to actual expenditures, the more process that will be due.

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Even if an evidentiary hearing is not required in every “improper purpose” case, appellants
argue that such hearing was required in this case. Although the number of credibility
determinations which the court made without an evidentiary hearing should have suggested to
the court that an evidentiary hearing would have been of value, we affirm the court's findings
that appellants violated all three prongs of Rule 11 because the findings are not clearly
erroneous even excluding some evidence of “improper motive” which appellants contested.
The district judge’s participation in the proceedings was adequate to give him full knowledge of
the relevant facts without the necessity of an evidentiary hearing. The district court had before it
the pleadings, the summary judgment motions of the state defendants and the 12(b) motion of
the county defendants. We also find that counsel were given an adequate opportunity to contest
the court’s determinations that Rule 11 was violated. The district court allowed appellants to
submit affidavits, and voluminous written legal arguments. The district judge also heard oral
argument. We find that due process requirements were satisfied by the opportunities appellants
were given to respond to the charges that their complaint violated Rule 11.
However, although we find that counsel had an adequate opportunity to contest the court’s
finding that Rule 11 was violated, we find that appellants were not given an adequate
opportunity to respond to the type and amount of sanction imposed, particularly in light of the
large monetary sanction. Appellants were given no opportunity to contest the fee statements
submitted, and the amount of the sanction was largely the result of those statements. Under the
facts of this case, particularly the amount of the sanction, due process requires that appellants
have some opportunity to contest the amount of the sanction imposed. We therefore vacate the
sanction imposed. As discussed below, we vacate the type and amount of sanction chosen by
the district court for certain additional reasons. On remand, under the guidelines set forth below
the appellants will be given an appropriate opportunity to respond to the type and the amount of
the sanction.
V AMOUNT OF SANCTION
A. Attorney Fees Portion
Rule 11 requires that “an appropriate sanction” be imposed upon those who violate its
requirements. Appellants argue that the amount of sanctions was inappropriate, in part because
the district court used the Rule to shift fees and compensate the defendants, rather than to deter
improper litigation. We agree and vacate the amount of the monetary sanction.
We have previously held that the least severe sanction adequate to serve the purposes of Rule
11 should be imposed. It is clear that Rule 11 should not blindly be used to shift fees. In this
instance, it appears that the district court erred in assuming that “the first purpose of sanctions
under Rule 11 is to compensate the offended parties.” In establishing the amount of the
sanction, the district court improperly focused on providing “compensatory sanctions.” The
amount of expense borne by opposing counsel in combatting frivolous claims may well be an
appropriate factor for a district court to consider in determining whether a monetary sanction

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should issue and if so, in what amount. However, it is clear that the primary, or “first” purpose of
Rule 11 is to deter future litigation abuse. A district court can and should bear in mind that other
purposes of the rule include compensating the victims of the Rule 11 violation, as well as
punishing present litigation abuse, streamlining court dockets and facilitating court
management. But the amount of a monetary sanction should always reflect the primary purpose
of deterrence.
When a monetary award is issued, a district court should explain the basis for the sanction so a
reviewing court may have a basis to determine whether the chosen sanction is appropriate. A
district court should consider the four factors recently enumerated by the Tenth Circuit in White
v. General Motors Corp.: (1) the reasonableness of the opposing party’s attorney’s fees; (2) the
minimum to deter; (3) the ability to pay; and (4) factors related to the severity of the Rule 11
violation.
1) Reasonableness (lodestar) calculation. Because the sanction is generally to pay the
opposing party’s “reasonable expenses including a reasonable attorney’s fee,” incurred
because of the improper behavior, determination of this amount is the usual first step.
The plain language of the rule requires that the court independently analyze the
reasonableness of the requested fees and expenses. The injured party has a duty to
mitigate costs by not overstaffing, overresearching or overdiscovering clearly meritless
claims. In evaluating the reasonableness of the fee request, the district court should
consider that the very frivolousness of the claim is what justifies the sanctions.
Attorney time which is attributed to responding to the media, or to claims within a pleading which
do not merit sanctions, should be excluded from consideration. Only attorney time which is in
response to that which has been sanctioned should be evaluated. In this case, it is appropriate
for the court to consider on remand whether the large amount of time devoted to the pursuit of
sanctions was warranted, and whether the injured parties failed to mitigate their costs by
delaying their pursuit of sanctions until after the dismissal. It would also be appropriate for the
district court to reduce the amount of any fees awarded based on appellees’ failure to give
earlier notice to appellants that their conduct warranted Rule 11 sanctions. While the analysis of
the reasonableness of costs may call for fairly detailed affidavits, this requirement is not
intended to require evidentiary hearings.
Although amici curiae for appellants argue that sanctions based in whole or in part on attorney's
fees require the same procedures of discovery, briefing, and argument allowed in attorney’s
fees cases, we have already stated that sanctions, unlike attorney’s fees, are not primarily
intended to compensate the prevailing party. Because the purposes of sanctions differ from
those of attorney’s fees, the amount of process due the offending party differs.
The determination of the type or amount of the sanction imposed comes only after the offending
party has had an opportunity to defend against the imposition of any sanction. Presumably, a
party’s interest in the kind and amount of a sanction is of less import than his or her interest in
the decision to impose any sanction. As stated, a district court is required to choose the least

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severe sanction adequate to accomplish the purpose of Rule 11. Thus, a monetary sanction
should never be based solely on the amount of attorney’s fees claimed by the injured party,
even where a court determines that the amount of the sanction should equal the fees claimed
by the injured party. As we have previously stated, “reasonable” attorney’s fees in the context of
Rule 11 “does not necessarily mean actual expenses and attorney’s fees.” Because the amount
of a monetary sanction is not based solely on any claimed amount of attorney's fees, but rather
on all of the factors listed herein, the risk of an erroneous calculation based on fee statements is
less troublesome in the context of a Rule 11 sanction than in attorney's fees cases. We also
bear in mind the interest in avoiding additional hearings for purposes of calculating the amount
of fees in the context of Rule 11. Given these considerations, we hold that a sanctioned party is
not entitled to an evidentiary hearing or to all of the procedural safeguards available in the
context of attorney's fees actions. Instead, a district court may permit a sanctioned party to
respond to an opposing party's fee statements in its discretion. Of course, such discretion must
be exercised with proper considerations of due process. Where a court determines that a large
monetary sanction should issue, and the amount is heavily influenced by an injured party's fee
statements, as was the case here, the court should permit the sanctioned party to examine and
contest the injured party's fee statements as an aid to the court's own independent analysis of
the reasonableness of the claimed fees.
2) Minimum to deter. As we have already stated, the primary purpose of sanctions is to
deter attorney and litigant misconduct, not to compensate the opposing party for its costs
in defending a frivolous suit. It is particularly inappropriate to use sanctions as a means
of driving certain attorneys out of practice. Such decisions are properly made by those
charged with handling attorney disbarment and are generally accompanied by specific
due process provisions to protect the rights of the attorney in question. The amount of
sanctions is appropriate only when it is the “minimum that will serve to adequately deter
the undesirable behavior.” Thus, the limit of any sanction award should be that amount
reasonably necessary to deter the wrongdoer.
A district court must constantly bear in mind the limited purposes of Rule 11, particularly in a
case such as this, where a court may disagree with aspects of counsel's conduct which fall
outside of the scope of Rule 11. Of course, a court must also constantly bear in mind that the
rule is not to chill the bringing of facially valid lawsuits, or a lawyer's creativity in introducing
novel theories of recovery.
3. Ability to pay. The offender’s ability to pay must also be considered, not because it
affects the egregiousness of the violation, but because the purpose of monetary
sanctions is to deter attorney and litigant misconduct. Because of their deterrent
purpose, Rule 11 sanctions are analogous to punitive damages. It is hornbook law that
the financial condition of the offender is an appropriate consideration in the
determination of punitive damages. Inability to pay what the court would otherwise
regard as an appropriate sanction should be treated as reasonably akin to an affirmative
defense, with the burden upon the parties being sanctioned to come forward with
evidence of their financial status.

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Although the burden is upon the parties being sanctioned to come forward with evidence of their
financial status, a monetary sanction imposed without any consideration of ability to pay would
constitute an abuse of discretion. A court should refrain from imposing a monetary award so
great that it will bankrupt the offending parties or force them from the future practice of law.
Generally, the smaller the amount of the monetary sanction imposed, the greater the likelihood
that a court’s consideration of the ability to pay will not want for lack of the formal submission of
evidence on a sanctioned party’s financial status. When the monetary sanction is large,
however, the parties should generally be given the opportunity to submit affidavits on their
financial status, or to submit such other evidence as the court’s discretion permits. In this case,
the amount of the monetary sanction originally imposed was substantial, and the parties should
have been afforded the opportunity to submit evidence on the issue of whether the amount
imposed was so great as to unfairly restrict their access to the courts or to otherwise curtail their
ability to practice law or to cause them great financial distress.
4. Other factors. In addition, the court may consider factors such as the offending party’s
history, experience, and ability, the severity of the violation, the degree to which malice
or bad faith contributed to the violation, the risk of chilling the type of litigation involved,
and other factors as deemed appropriate in individual circumstances.
In this case, it is appropriate for the court to consider counsel’s vast experience, the outrageous
and scandalous nature of the claims made, and the improper purpose of the lawsuit. A court
might also increase a sanction if one attorney has been previously sanctioned, because such
conduct might indicate that the previous sanction was not enough to deter the repetition of the
offense.
In addition to the four factors just stated, a district court must sometimes consider whether joint
and several liability is appropriate, such as where sanctions are to be imposed against both a
client and his counsel. In this case, joint and several liability among attorneys, who each signed
a complaint in violation of Rule 11, was not inappropriate. Each attorney has a duty to ensure
that the pleading he has signed comports with Rule 11. Issues of individual culpability do not
arise where each sanctioned party has committed the same Rule 11 violations.
B. Additional Sanctions
In addition to imposing sanctions in the amount of attorney's fees claimed by the defendants,
the district court imposed sanctions in the amount of $10,000 upon each appellant based on his
conduct in wilfully filing outrageous claims and appellants’ “pains to publicize the allegations
through the media.” We believe this sanction was error. Rule 11 does not confine courts to any
maximum monetary sanction, nor does it even require courts to restrict themselves to monetary
penalties. However, Rule 11 must be accorded its plain meaning. The text of the Rule clearly
pertains only to a “pleading, motion, or other paper.” Rule 11 does not encompass all conduct
within judicial proceedings, and it clearly does not reach conduct outside of the judicial process.
In this case, it appears the court imposed sanctions in part based on appellants’ publication of

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their baseless claims through the media. While such publication may not be actionable as libel
or slander, and is reprehensible, Rule 11 was clearly not designed to encompass such conduct.
CONCLUSION
In sum, we affirm the findings of the district court which led to the imposition of Rule 11
sanctions in this case against plaintiffs’ attorneys. However, we vacate the sanction imposed,
because it was based on improper considerations and the size of the sanction required the
district court to allow sanctioned counsel an opportunity to respond, at least to the fee
statements on which the sanction was based. On remand, the district court should consider the
factors which we have adopted prior to determining the sanction which should be imposed.
Questions:
1. Do you agree with the district court’s conclusion that Nakell, Pitts, and Kunstler violated
Rule 11? Do you find Kunstler’s defense compelling?
2. Should courts impose Rule 11 sanctions on attorneys representing clients pro bono?
Should they be more reluctant to impose sanctions?

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572

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573

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Pro Se Litigants
Typically, courts exempt pro se litigants from the requirements of Rule 11. While many pro se
complaints are frivolous, some pro se complaints are meritorious, and some have even caused
dramatic changes in the law. For example, in 1962, Clarence Earl Gideon filed a handwritten
pro se petition for certiorari alleging that Florida had violated his civil rights by denying him legal
representation. The Supreme Court granted his petition and held in Gideon v. Wainwright, 372
U.S. 335 (1963) that the Sixth Amendment guarantees criminal defendants the right to
representation.
By contrast, Jonathan Lee Riches filed more than 2600 complaints while he was incarcerated at
the Federal Medical Center in Lexington, Kentucky, none of which were successful. His
complaints alleged improbable harms and requested unusual forms of relief. For example,
Riches filed a complaint alleging, inter alia, tort claims against Michael Vick for stealing his dogs
and using them for dogfighting, then selling the dogs and using the proceeds to purchase
missiles from Iran. Among other things, Riches asked the court to order Vick “to stop physically
hurting my feelings and dashing my hopes.” Eventually, the court prohibited Riches from filing
any more complaints in forma pauperis, meaning that he would have to pay filing fees.
Questions:
1. How should courts evaluate pro se filings?
2. Should courts apply Rule 11 to pro se plaintiffs?

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6.2: Improper Advocacy
Here’s the last toast of the evening, here’s to those who still believe. All the losers will be
winners, all the givers shall receive. Here’s to trouble-free tomorrows, may your sorrows all be
small. Here’s to the losers, bless them all.92
The head on my shoulders is sorta loose, and I ain’t got the sense God gave a goose. Lord, I
ain’t crazy, but I'm a nut.93
Federal Rule of Civil Procedure 11 prohibits frivolous pleadings. But Model Rule of Professional
Conduct 3.1 goes farther, prohibiting frivolous argument and abusive litigation tactics as well. In
other words, under Rule 3.1, litigants must not only ensure that their pleadings are meritorious,
but also that their litigation tactics are reasonable. Unsurprisingly, this rule is enforced almost
entirely in the breach. Courts are reluctant to sanction attorneys for improper tactics, and when
they do, the sanctions are often reversed as improperly imposed.
Nevertheless, good attorneys realize that the court is always watching. And they know that
judges tend to reward good behavior and punish bad behavior. Sometimes, those rewards and
punishments are explicit. But more often they are implicit, and come in the form of motions
granted or denied.
Model Rule of Professional Conduct 3.1: Meritorious Claims & 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.
Model Rule of Professional Conduct 3.1: Meritorious Claims & Contentions, Comments
[1]-[3]
1. The advocate has a duty to use legal procedure for the fullest benefit of the client's
cause, but also a duty not to abuse legal procedure. The law, both procedural and
substantive, establishes the limits within which an advocate may proceed. However, the
law is not always clear and never is static. Accordingly, in determining the proper scope
of advocacy, account must be taken of the law's ambiguities and potential for change.
2. The filing of an action or defense or similar action taken for a client is not frivolous
merely because the facts have not first been fully substantiated or because the lawyer

92
93

Robert Wells & Jack Segal, Here’s to the Losers (1963).
Leroy Pullins, I’m a Nut (1966).

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expects to develop vital evidence only by discovery. What is required of lawyers,
however, is that they inform themselves about the facts of their clients' cases and the
applicable law and determine that they can make good faith arguments in support of
their clients' positions. Such action is not frivolous even though the lawyer believes that
the client's position ultimately will not prevail. The action is frivolous, however, if the
lawyer is unable either to make a good faith argument on the merits of the action taken
or to support the action taken by a good faith argument for an extension, modification or
reversal of existing law.
3. The lawyer's obligations under this Rule are subordinate to federal or state constitutional
law that entitles a defendant in a criminal matter to the assistance of counsel in
presenting a claim or contention that otherwise would be prohibited by this Rule.
Model Code of Professional Responsibility, Canon 7: A Lawyer Should Represent
a Client Zealously Within the Bounds of the Law (1969)
EC 7-1 The duty of a lawyer, both to his client1 and to the legal system, is to represent his client
zealously within the bounds of the law, which includes Disciplinary Rules and enforceable
professional regulations. The professional responsibility of a lawyer derives from his
membership in a profession which has the duty of assisting members of the public to secure
and protect available legal rights and benefits. In our government of laws and not of men, each
member of our society is entitled to have his conduct judged and regulated in accordance with
the law; to seek any lawful objective through legally permissible means; and to present for
adjudication any lawful claim, issue, or defense.
EC 7-2 The bounds of the law in a given case are often difficult to ascertain. The language of
legislative enactments and judicial opinions may be uncertain as applied to varying factual
situations. The limits and specific meaning of apparently relevant law may be made doubtful by
changing or developing constitutional interpretations, inadequately expressed statutes or judicial
opinions, and changing public and judicial attitudes. Certainty of law ranges from well-settled
rules through areas of conflicting authority to areas without precedent.
EC 7-3 Where the bounds of law are uncertain, the action of a lawyer may depend on whether
he is serving as advocate or adviser. A lawyer may serve simultaneously as both advocate and
adviser, but the two roles are essentially different. In asserting a position on behalf of his client,
an advocate for the most part deals with past conduct and must take the facts as he finds them.
By contrast, a lawyer serving as adviser primarily assists his client in determining the course of
future conduct and relationships. While serving as advocate, a lawyer should resolve in favor of
his client doubts as to the bounds of the law. In serving a client as adviser, a lawyer in
appropriate circumstances should give his professional opinion as to what the ultimate decisions
of the courts would likely be as to the applicable law.
Duty of the Lawyer to a Client

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EC 7-4 The advocate may urge any permissible construction of the law favorable to his client,
without regard to his professional opinion as to the likelihood that the construction will ultimately
prevail. His conduct is within the bounds of the law, and therefore permissible, if the position
taken is supported by the law or is supportable by a good faith argument for an extension,
modification, or reversal of the law. However, a lawyer is not justified in asserting a position in
litigation that is frivolous.
EC 7-5 A lawyer as adviser furthers the interest of his client by giving his professional opinion as
to what he believes would likely be the ultimate decision of the courts on the matter at hand and
by informing his client of the practical effect of such decision. He may continue in the
representation of his client even though his client has elected to pursue a course of conduct
contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to
engage in illegal conduct or to take a frivolous legal position. A lawyer should never encourage
or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid
punishment therefor.
In re Snyder, 472 U.S. 634 (1985)
Summary: Snyder objected to the United States District Court for the District of North
Dakota’s treatment of attorneys representing indigent criminal defendants, and refused
to apologize for the tone of his objection. The Chief Judge of the district court suspended
Snyder for one year for disrespecting the court and the circuit court affirmed. The
Supreme Court reversed, holding that Snyder’s conduct was not sanctionable.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to review the judgment of the Court of Appeals suspending petitioner from
practice in all courts of the Eighth Circuit for six months.
I
In March 1983, petitioner Robert Snyder was appointed by the Federal District Court for the
District of North Dakota to represent a defendant under the Criminal Justice Act. After petitioner
completed the assignment, he submitted a claim for $1,898.55 for services and expenses. The
claim was reduced by the District Court of $1,796.05.
Under the Criminal Justice Act, the Chief Judge of the Court of Appeals was required to review
and approve expenditures for compensation in excess of $1,000. Chief Judge Lay found the
claim insufficiently documented, and he returned it with a request for additional information.
Because of technical problems with his computer software, petitioner could not readily provide
the information in the form requested by the Chief Judge. He did, however, file a supplemental
application.

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The secretary of the Chief Judge of the Circuit again returned the application, stating that the
proffered documentation was unacceptable. Petitioner then discussed the matter with Helen
Monteith, the District Court Judge’s secretary, who suggested he write a letter expressing his
view. Petitioner then wrote the letter that led to this case. The letter, addressed to Ms. Monteith,
read in part:
In the first place, I am appalled by the amount of money which the federal court pays for
indigent criminal defense work. The reason that so few attorneys in Bismarck accept this
work is for that exact reason. We have, up to this point, still accepted the indigent
appointments, because of a duty to our profession, and the fact that nobody else will do
it.
Now, however, not only are we paid an amount of money which does not even cover our
overhead, but we have to go through extreme gymnastics even to receive the puny
amounts which the federal courts authorize for this work. We have sent you everything
we have concerning our representation, and I am not sending you anything else. You
can take it or leave it.
Further, I am extremely disgusted by the treatment of us by the Eighth Circuit in this
case, and you are instructed to remove my name from the list of attorneys who will
accept criminal indigent defense work. I have simply had it.
Thank you for your time and attention.
The District Court Judge viewed this letter as one seeking changes in the process for providing
fees, and discussed these concerns with petitioner. The District Court Judge then forwarded the
letter to the Chief Judge of the Circuit. The Chief Judge in turn wrote to the District Judge,
stating that he considered petitioner’s letter:
totally disrespectful to the federal courts and to the judicial system. It demonstrates a
total lack of respect for the legal process and the courts.
The Chief Judge expressed concern both about petitioner’s failure to “follow the guidelines and
refusal to cooperate with the court,” and questioned whether, “in view of the letter” petitioner
was “worthy of practicing law in the federal courts on any matter.” He stated his intention to
issue an order to show cause why petitioner should not be suspended from practicing in any
federal court in the Circuit for a period of one year. Subsequently, the Chief Judge wrote to the
District Court again, stating that if petitioner apologized the matter would be dropped. At this
time, the Chief Judge approved a reduced fee for petitioner’s work of $1,000 plus expenses of
$23.25.
After talking with petitioner, the District Court Judge responded to the Chief Judge as follows:

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He sees his letter as an expression of an honest opinion, and an exercise of his right of
freedom of speech. I, of course, see it as a youthful and exuberant expression of
annoyance which has now risen to the level of a cause.
He has decided not to apologize, although he assured me he did not intend the letter as
you interpreted it.
The Chief Judge then issued an order for petitioner to show cause why he should not be
suspended for his “refusal to carry out his obligations as a practicing lawyer and officer of the
court” because of his refusal to accept assignments under the Criminal Justice Act. Nowhere in
the order was there any reference to any disrespect in petitioner’s letter of October 6, 1983.
Petitioner requested a hearing on the show cause order. In his response to the order, petitioner
focused exclusively on whether he was required to represent indigents under the Criminal
Justice Act. He contended that the Act did not compel lawyers to represent indigents, and he
noted that many of the lawyers in his District had declined to serve. He also informed the court
that prior to his withdrawal from the Criminal Justice Act panel, he and his two partners had
taken 15 percent of all the Criminal Justice Act cases in their district.
At the hearing, the Court of Appeals focused on whether petitioner’s letter of October 6, 1983,
was disrespectful, an issue not mentioned in the show cause order. At one point, Judge Arnold
asked: “I am asking you, sir, if you are prepared to apologize to the court for the tone of your
letter?” Petitioner answered: “That is not the basis that I am being brought forth before the court
today.” When the issue again arose, petitioner protested: “But, it seems to me we’re getting far
afield here. The question is, can I be suspended from this court for my request to be removed
from the panel of attorneys.”
Petitioner was again offered an opportunity to apologize for his letter, but he declined. At the
conclusion of the hearing, the Chief Judge stated:
I want to make it clear to Mr. Snyder what it is the court is allowing you ten days lapse
here, a period for you to consider. One is, that, assuming there is a general requirement
for all competent lawyers to do pro bono work that you stand willing and ready to
perform such work and will comply with the guidelines of the statute. And secondly, to
reconsider your position as Judge Arnold has requested, concerning the tone of your
letter of October 6.
Following the hearing, petitioner wrote a letter to the court, agreeing to “enthusiastically obey
the mandates” of any new plan for the implementation of the Criminal Justice Act in North
Dakota, and to “make every good faith effort possible” to comply with the court’s guidelines
regarding compensation under the Act. Petitioner’s letter, however, made no mention of the
October 6, 1983, letter.
The Chief Judge then wrote to Snyder, stating among other things:

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The court expressed its opinion at the time of the oral hearing that interrelated with our
concern and the issuance of the order to show cause was the disrespect that you
displayed to the court by way of your letter addressed to Helen Montieth, Judge Van
Sickle’s secretary, of October 6, 1983. The court expressly asked if you would be willing
to apologize for the tone of the letter and the disrespect displayed. You serve as an
officer of the court and, as such, the Canons of Ethics require every lawyer to maintain a
respect for the court as an institution.
Before circulating your letter of February 23, I would appreciate your response to Judge
Arnold’s specific request, and the court’s request, for you to apologize for the letter that
you wrote.
Please let me hear from you by return mail. I am confident that if such a letter is
forthcoming that the court will dissolve the order.
Petitioner responded to the Chief Judge:
I cannot, and will never, in justice to my conscience, apologize for what I consider to be
telling the truth, albeit in harsh terms.
It is unfortunate that the respective positions in the proceeding have so hardened.
However, I consider this to be a matter of principle, and if one stands on a principle, one
must be willing to accept the consequences.
After receipt of this letter, petitioner was suspended from the practice of law in the federal courts
in the Eighth Circuit for six months. The opinion stated that petitioner “contumaciously refused to
retract his previous remarks or apologize to the court.” It continued:
Petitioner’s refusal to show continuing respect for the court and his refusal to
demonstrate a sincere retraction of his admittedly “harsh” statements are sufficient to
demonstrate to this court that he is not presently fit to practice law in the federal courts.
All courts depend on the highest level of integrity and respect not only from the judiciary
but from the lawyers who serve in the court as well. Without public display of respect for
the judicial branch of government as an institution by lawyers, the law cannot survive.
Without hesitation we find Snyder’s disrespectful statements as to this court’s
administration of CJA contumacious conduct. We deem this unfortunate.
We find that Robert Snyder shall be suspended from the practice of law in the federal
courts of the Eighth Circuit for a period of six months; thereafter, Snyder should make
application to both this court and the federal district court of North Dakota to be
readmitted.

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The opinion specifically stated that petitioner’s offer to serve in Criminal Justice Act cases in the
future if the panel was equitably structured had “considerable merit.”
Petitioner moved for rehearing en banc. In support of his motion, he presented an affidavit from
the District Judge’s secretary — the addressee of the October 6 letter — stating that she had
encouraged him to send the letter. He also submitted an affidavit from the District Judge, which
read in part:
I did not view the letter as one of disrespect for the Court, but rather one of somewhat
frustrated lawyer hoping that his comments might be viewed as a basis for some
changes in the process.
Mr. Snyder has appeared before me on a number of occasions and has always
competently represented his client, and has shown the highest respect to the court
system and to me.
The petition for rehearing en banc was denied. An opinion for the en banc court stated:
The gravamen of the situation is that Snyder in his letter of October 6, 1983 became
harsh and disrespectful to the Court. It is one thing for a lawyer to complain factually to
the Court, it is another for counsel to be disrespectful in doing so.
Snyder states that his letter is not disrespectful. We disagree. In our view, the letter
speaks for itself.
The en banc court opinion stayed the order of suspension for 10 days, but provided that the stay
would be lifted if petitioner failed to apologize. He did not apologize, and the order of suspension
took effect.
We granted certiorari. We reverse.
II
A
Petitioner challenges his suspension from practice on the grounds (a) that his October 6, 1983,
letter to the District Judge's secretary was protected by the First Amendment, (b) that he was
denied due process with respect to the notice of the charge on which he was suspended, and
(c) that his challenged letter was not disrespectful or contemptuous. We avoid constitutional
issues when resolution of such issues is not necessary for disposition of a case. Accordingly,
we consider first whether petitioner’s conduct and expressions warranted his suspension from
practice; if they did not, there is no occasion to reach petitioner’s constitutional claims.

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587
Courts have long recognized an inherent authority to suspend or disbar lawyers. This inherent
power derives from the lawyer’s role as an officer of the court which granted admission. The
standard for disciplining attorneys practicing before the courts of appeals is set forth in Federal
Rule of Appellate Procedure 46:
(b) Suspension or Disbarment. When it is shown to the court that any member of its bar
has been suspended or disbarred from practice in any other court of record, or has been
guilty of conduct unbecoming a member of the bar of the court, he will be subject to
suspension or disbarment by the court. The member shall be afforded an opportunity to
show good cause, within such time as the court shall prescribe, why he should not be
suspended or disbarred. Upon his response to the rule to show cause, and after hearing,
if requested, or upon expiration of the time prescribed for a response if no response is
made, the court shall enter an appropriate order.
The phrase “conduct unbecoming a member of the bar” must be read in light of the “complex
code of behavior” to which attorneys are subject. Essentially, this reflects the burdens inherent
in the attorney's dual obligations to clients and to the system of justice. Justice Cardozo once
observed:
Membership in the bar is a privilege burdened with conditions. An attorney is received
into that ancient fellowship for something more than private gain. He becomes an officer
of the court, and, like the court itself, an instrument or agency to advance the ends of
justice.
As an officer of the court, a member of the bar enjoys singular powers that others do not
possess; by virtue of admission, members of the bar share a kind of monopoly granted only to
lawyers. Admission creates a license not only to advise and counsel clients but also to appear in
court and try cases; as an officer of the court, a lawyer can cause persons to drop their private
affairs and be called as witnesses in court, and for depositions and other pretrial processes that,
while subject to the ultimate control of the court, may be conducted outside courtrooms. The
license granted by the court requires members of the bar to conduct themselves in a manner
compatible with the role of courts in the administration of justice.
Read in light of the traditional duties imposed on an attorney, it is clear that “conduct
unbecoming a member of the bar” is conduct contrary to professional standards that shows an
unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the
administration of justice. More specific guidance is provided by case law, applicable court rules,
and “the lore of the profession,” as embodied in codes of professional conduct.
B
Apparently relying on an attorney’s obligation to avoid conduct that is “prejudicial to the
administration of justice,” the Court of Appeals held that the letter of October 6, 1983, and an
unspecified “refusal to show continuing respect for the court” demonstrated that petitioner was

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588
“not presently fit to practice law in the federal courts.” Its holding was predicated on a specific
finding that petitioner’s “disrespectful statements in his letter of October 6, 1983 as to this
court's administration of the CJA constituted contumacious conduct.”
We must examine the record in light of Rule 46 to determine whether the Court of Appeals’
action is supported by the evidence. In the letter, petitioner declined to submit further
documentation in support of his fee request, refused to accept further assignments under the
Criminal Justice Act, and criticized the administration of the Act. Petitioner’s refusal to submit
further documentation in support of his fee request could afford a basis for declining to award a
fee; however, the submission of adequate documentation was only a prerequisite to the
collection of his fee, not an affirmative obligation required by his duties to a client or the court.
Nor, as the Court of Appeals ultimately concluded, was petitioner legally obligated under the
terms of the local plan to accept Criminal Justice Act cases.
We do not consider a lawyer’s criticism of the administration of the Act or criticism of inequities
in assignments under the Act as cause for discipline or suspension. The letter was addressed to
a court employee charged with administrative responsibilities, and concerned a practical matter
in the administration of the Act. The Court of Appeals acknowledged that petitioner brought to
light concerns about the administration of the plan that had “merit,” and the court instituted a
study of the administration of the Criminal Justice Act as a result of petitioner’s complaint.
Officers of the court may appropriately express criticism on such matters.
The record indicates the Court of Appeals was concerned about the tone of the letter; petitioner
concedes that the tone of his letter was “harsh,” and, indeed it can be read as illmannered. All
persons involved in the judicial process — judges, litigants, witnesses, and court officers — owe
a duty of courtesy to all other participants. The necessity for civility in the inherently contentious
setting of the adversary process suggests that members of the bar cast criticisms of the system
in a professional and civil tone. However, even assuming that the letter exhibited an
unlawyerlike rudeness, a single incident of rudeness or lack of professional courtesy — in this
context — does not support a finding of contemptuous or contumacious conduct, or a finding
that a lawyer is “not presently fit to practice law in the federal courts.” Nor does it rise to the level
of “conduct unbecoming a member of the bar” warranting suspension from practice.
Questions:
1. Why did the district court sanction Snyder? Why did the circuit court affirm? And why did
the Supreme Court reverse?
2. When should courts be able to sanction attorneys for disrespectful behavior? When
should the discretion of the court be limited?

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589

Gadda v. Ashcroft, 377 F. 3d 934 (9th Cir. 2004)

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590
Summary: The California Bar disbarred Gadda for incompetence, based on his failure to
provide competent legal representation to clients in immigration court. The Ninth Circuit
also disbarred Gadda, based on the California Bar’s decision. Gadda objected to his
disbarment by the 9th Circuit, arguing that the California Bar lacked authority to
discipline him for incompetent representation in immigration court. The 9th Circuit
disagreed, holding that both the California Bar and the 9th Circuit had the authority to
discipline him.
BEEZER, Circuit Judge.
On July 30, 2001, the California State Bar Court found that Miguel Gadda, Esq. repeatedly
failed to perform legal services competently. It placed Gadda on involuntary inactive status and
recommended that Gadda be disbarred.
This opinion and order relate to two federal proceedings resulting from the State Bar Court’s
recommendation. In the first, Gadda appeals an order of the United States District Court for the
Northern District of California, which denies Gadda's motion to preliminarily enjoin the Board of
Immigration Appeals decision to suspend him from practice based on his suspension by the
State Bar Court. Gadda asserts that the State Bar Court cannot affect his right to practice before
the BIA. The other proceeding is a disciplinary action initiated by this court after we received
notice of Gadda’s suspension from practice by the State Bar Court.
Gadda argues that any reciprocal discipline imposed by the BIA or by this court based on the
State Bar Court’s suspension order is invalid because the Supreme Court of California lacked
jurisdiction to discipline him. He claims that federal law preempts the states’ authority to regulate
attorneys, like him, who practice only in the administration of immigration law and in the federal
courts, but not in the state courts. Because both of these proceedings involve the same
underlying preemption issue, we consolidate them for opinion purposes only.
We conclude that federal law does not preempt the Supreme Court of California’s authority to
suspend or disbar attorneys admitted to practice in California state courts. The Supreme Court
of California’s discipline orders may serve as the basis for reciprocal disbarment actions by both
the BIA and this court.
We disbar Gadda from the practice of law before the United States Court of Appeals for the
Ninth Circuit.
I
Gadda was admitted to the California State Bar in 1975. Thereafter, he was admitted to practice
law and became a member of the bar of the United States District Court for the Northern District
of California, the United States Court of Appeals for the Ninth Circuit, and the Supreme Court of
the United States. He was also admitted to practice before the Board of Immigration Appeals

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591
and was authorized to appear for clients before the BIA and in all Immigration Courts throughout
the United States.
A. California State Court Disciplinary Proceedings
On August 26, 2002, the Review Department of the California State Bar Court affirmed the State
Bar Court’s decision recommending Gadda's disbarment and placing him on involuntary inactive
status. On January 22, 2003, the Supreme Court of California ordered that Gadda be disbarred
from the practice of law in California, effective February 21, 2003.
The Review Department’s opinion surveyed Gadda's history of federal immigration practice,
concluding that “disbarment is warranted under the circumstances for the protection of the
public, the courts, and the legal profession.” The Review Department cited seventeen acts of
misconduct extending over six years and involving eight federal immigration client matters and
one client trust account matter. This misconduct included Gadda’s failure to appear at
scheduled court conferences and to keep clients apprised of the proceedings and relevant court
dates. Five of Gadda's clients were ordered deported in absentia and at least six courts found
Gadda to have provided ineffective assistance. The Review Department concluded that Gadda
failed “to perform legal services competently, demonstrated indifference toward rectification of
or atonement for the consequences of his misconduct, and significantly harmed clients.” The
Review Department determined that aggravating factors, including prior discipline for similar
misconduct in 1990, outweighed any mitigating factors Gadda presented.
We incorporate by reference that portion of the Review Board’s opinion which inventories
Gadda’s incompetence between 1994 and 1999. Of the eight federal immigration client matters
which the Review Board describes, that of the Saba family is especially egregious.
The four minor Saba children applied for political asylum. After the INS denied their application,
the children retained Gadda to represent them. Gadda advised the children to withdraw their
asylum claim; the Immigration Judge ordered that they voluntarily depart from the United States.
Thereafter, the children’s parents became naturalized citizens. The children were eligible for
priority consideration of their application for adjustment of status to legal residency or citizenship
based on their parents’ naturalization. However, as a result of Gadda’s neglect and
incompetence, the children were deprived of an adjustment of their immigration status, and
ultimately were placed in deportation proceedings.
Gadda moved for a stay of the children’s deportation. In the course of a hearing on that motion,
Gadda left the Saba family unrepresented before an immigration officer. Gadda also directed
the children to sign a statement promising they would voluntarily depart once the stay expired.
The immigration court granted the stay but the children did not depart as promised. Gadda
assured the children that he was appealing the earlier BIA decision.

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592
Because Gadda negligently allowed the time for an appeal from the BIA to this court to lapse,
he was forced to seek habeas corpus relief before the district court. Gadda directed William
Gardner, an attorney Gadda employed on a contract basis but did not supervise, to file the
habeas petition. Before Gardner filed the habeas petition, the IJ ordered the Saba children to be
deported on account of their refusal to depart voluntarily at the expiration of the stay. Gadda
once again advised the children not to comply with the court's order.
Gardner subsequently filed the habeas petition and the district court ordered a hearing. The
district court made a sua sponte finding of ineffective assistance by Gadda and remanded the
matter to the immigration court to reopen the deportation hearing. By the time the case was
heard, two of the Saba children were no longer minors. Gadda has not refunded the $3,000 the
Saba children paid him.
Regarding the Saba matter, the Review Department agreed with the State Bar that Gadda
“recklessly and repeatedly failed to perform legal services” and “failed to refund unearned fees
promptly upon termination.” Specifically, the Review Department found Gadda’s performance
incompetent in the following ways:
(1) by leaving the children alone, unrepresented, in the middle of a hearing before an
immigration officer and advising them to sign a voluntary departure form; (2) by failing to
advise the Saba children to depart on or before the deadline; (2) by failing to timely
move to reopen deportation proceedings; (4) by failing to file a petition for review with
the Ninth Circuit; (5) by failing to file for adjustment of status after Mrs. Saba became a
naturalized citizen and instead filing for adjustment of status on the children’s last day to
depart voluntarily, approximately three months later; and (6) by failing to supervise
Gardner in filing a petition for writ of habeas corpus.
B. Gadda v. Ashcroft — appeal from BIA disciplinary proceedings
Based on the State Bar Court's order, on October 2, 2001, the BIA suspended Gadda from
practice before the BIA, the Immigration Courts, and the Department of Homeland Security.
Gadda unsuccessfully sought a preliminary injunction of the BIA’s action in the district court.
Gadda appealed the denial of the preliminary injunction to this court. We deferred submission
pending the outcome of disciplinary proceedings before the BIA.
Meanwhile, the Office of General Counsel for the Executive Office for Immigration Review
initiated disciplinary proceedings and an adjudicatory official suspended Gadda indefinitely from
practice on August 22, 2002. On July 8, 2003, the BIA dismissed Gadda’s appeal and ordered
him expelled from practice before the BIA, the Immigration Courts, and the DHS.
C. Ninth Circuit Disciplinary Proceedings
On May 29, 2002, we ordered Gadda to resign from the Ninth Circuit’s bar or show cause why
he should not be suspended or disbarred based on the California State Bar Court’s order

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593
placing him on involuntary inactive status and recommending that he be disbarred. Gadda
responded and we referred the case to the Appellate Commissioner. On September 25, 2002,
the Appellate Commissioner stayed the disciplinary proceedings pending a decision by the
Supreme Court of California on the State Bar Court’s recommendation or a decision by us.
Following the Supreme Court of California’s January 22, 2003 order disbarring Gadda, the
Appellate Commissioner again ordered Gadda to resign from the bar of the United States Court
of Appeals for the Ninth Circuit or show cause why he should not be suspended or disbarred.
Gadda requested a stay, claiming that the Supreme Court of California’s disbarment order was
not final and that we should first resolve Gadda v. Ashcroft.
The Appellate Commissioner conducted a hearing on March 27, 2003 and filed a report and
recommendation on May 22, 2003. The Appellate Commissioner recommends that Gadda be
disbarred from the practice of law before the United States Court of Appeals for the Ninth
Circuit.
II
“Membership in the bar is a privilege burdened with conditions. An attorney is received into that
ancient fellowship for something more than private gain. He becomes an officer of the court,
and, like the court itself, an instrument or agency to advance the ends of justice.” We have both
statutory and inherent power to suspend or disbar an attorney who has been admitted to this
court’s bar.
Federal Rule of Appellate Procedure 46 regulates attorney conduct, including admission to the
bar of the Ninth Circuit and the conditions for suspension and disbarment. FRAP 46 provides
that a member of this court's bar is subject to suspension or disbarment if the member either (1)
“has been suspended or disbarred from practice in any other court”; or (2) “is guilty of conduct
unbecoming a member of the court's bar.”
A. Reciprocal Discipline
In this case, Gadda’s suspension and disbarment from the practice of law in California forms the
basis for his disbarment from the BIA and this court.
B. Conduct Unbecoming
Even if the California courts had not acted to disbar Gadda, we have independent authority to
suspend or disbar him from practice. Conduct unbecoming a member of the bar of the Ninth
Circuit is sufficient cause for disbarment. Unlike some of our sister circuits, the Ninth Circuit has
not adopted local rules elaborating on FRAP 46’s “conduct unbecoming” standard. The
Supreme Court has held that “conduct unbecoming” is conduct “contrary to professional
standards that show an unfitness to discharge continuing obligations to clients or courts, or

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594
conduct inimical to the administration of justice.” We have consistently found conduct
unbecoming where an attorney failed to prosecute an appeal with due diligence.
Because we have jurisdiction over appeals from the immigration courts, the quality of the
practice by attorneys appearing before the immigration courts is crucial to our ability to
administer justice and function effectively. The quality of our review is heavily dependent on the
record established in administrative immigration hearings, which in turn is dependent on the
competence of the attorneys creating that record. Gadda’s incompetence impedes our
operations and endangers the rights of his clients.
In the course of one immigration matter, for example, Gadda neglected to introduce crucial
documents relating to changed country conditions. Although his client was in possession of
such documents, Gadda failed to have the documents translated and offered as evidence. In
that same matter, the Review Department found that Gadda failed to elicit persuasive testimony
in support of his client's contention of fear of future persecution. Gadda currently represents
petitioners in approximately 50 matters pending before this court. We hold that conduct such as
his before the immigration courts is sufficient to constitute "conduct unbecoming" a member of
the bar of this court.
C. Inherent Power
We hold that we also have inherent authority respecting the suspension and disbarment of
attorneys who perform incompetently in federal immigration proceedings. This power derives
from an attorney’s role as an officer of the court which granted the attorney admission to the
bar; it is necessary to maintain the respectability and harmony of the bar, as well as to protect
the public. We exercise this power with restraint and discretion.
“The behavior for which an attorney is disciplined pursuant to our inherent power must have
some nexus with the conduct of the litigation before the court.” Such a connection exists in the
context of immigration proceedings because, as noted above, we have jurisdiction over appeals
from the immigration courts and rely on the records established in those courts.
III
It is ORDERED that Miguel Gadda, Esq. should be and hereby is disbarred from the practice of
law before the United States Court of Appeals for the Ninth Circuit and his name shall be
stricken from the roll of attorneys.
Questions:
1. When should the courts discipline attorneys like Gadda? What kind of discipline should
they impose?
2. Why was Gadda disbarred? Is it possible that he provided some of his clients with
competent representation?

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595

Avista Management vs. Wausau Underwriters Insurance Co. (M.D. Fl. 2006)
This matter comes before the Court on Plaintiff's Motion to designate location of a Rule 30(b)(6)
deposition. Upon consideration of the Motion ñ the latest in a series of Gordian knots that the
parties have been unable to untangle without enlisting the assistance of the federal courts ñ it is
ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative
dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a
neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet
on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa,

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Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act
as an attendant and witness. At that time and location, counsel shall engage in one (1) game of
“rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for
the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 1112, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a
hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3,
George C. Young United States Courthouse and Federal Building, 80 North Hughey Avenue,
Orlando, Florida 32801.
Jan Pudlow, ‘Rock, paper, scissors’ order garners worldwide attention, Florida Bar News
(July 1, 2006)
Dutifully following a playful, but pointed, federal court order, Tampa lawyers David Pettinato, of
the Merlin Law Group, and D. Lee Craig, of Butler Pappas, will meet June 20 and engage in one
game of “rock, paper, scissors” to solve a dispute in the midst of heated litigation.
“We will do it quickly, humbly, and go on about our business,” said a contrite Pettinato, who is
amazed about “getting bombarded from news media from all over the country.”
CNN, ABC, The Wall Street Journal, and The New York Times, to name a few.
Make that international news, as London’s The Guardian also did its version of the everybody’stalking-about-it June 6 order issued by U.S. Middle District Judge Gregory Presnell, who was a
member of The Florida Bar Board of Governors from 1989-93.
At issue was the childlike squabbling between the attorneys in Avista Management, Inc., vs.
Wausau Underwriters Insurance Co., in litigation over an insurance settlement stemming from
2004’s Hurricane Charley.
Even though the sparring lawyers’ offices are only four floors apart in the same building at 777
S. Harbor Island Blvd. in Tampa, they could not agree on where to hold a deposition. Craig,
representing Wausau, wanted to question a witness in his office. Pettinato, representing Avista,
was not willing to let Craig have the home-court advantage, and insisted on a neutral setting of
a court reporter’s office down the street.
When they took the matter to the court, Presnell let them have it, fed up with “the latest series of
Gordian knots that the parties have been unable to untangle without enlisting the assistance of
the federal courts.”
In what the judge called “a new form of alternative dispute resolution,” Presnell ordered that
each attorney will be “accompanied by one paralegal who shall act as an attendant and
witness,” and “the winner of this engagement shall be entitled to select the location for the
30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12,

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597
2006. If either party disputes the outcome of this engagement, an appeal may be filed and a
hearing will be held at 8:30 a.m. on Friday, July 7, before the undersigned in Courtroom 3.”
That creative order compelled St. Petersburg Times columnist Sue Carlton to nominate Presnell
for “Jurist of the Year.”
NO NEED FOR AN APPEAL
On June 8, Pettinato said that he and Craig have resolved the issue. Pettinato said both sides
agreed to play rock, paper, scissors, at “an undisclosed location.” Whoever wins will get to hold
the deposition in his office.
“We want to do it out of respect for the judge’s order,” said Pettinato, who added, “I have to say I
am a little disappointed that we couldn’t resolve our differences without this court order. But it
provided us with an eye-opener to resolve our differences in a more amicable way. Since the
hurricanes, we have been having huge battles trying to get insurance companies to pay.. . . If
you get a little too passionate advocating for your client, it helps to rethink your strategy.”
The matter has been zinging across the state, around the country, and across the ocean, on
news Web sites, lawyers’ e-mails, and law blogs.
Orlando lawyer Lynn James Hinson, who called Presnell an excellent lawyer and judge, posted
this comment on The Wall Street Journal’s Law Blog: “Many lawyers act like they are in
kindergarten, and this order treats them appropriately.”
Craig, who did not return the News ’ request for an interview, may be at a disadvantage.
Pettinato has a kindergartner in the house, as the father of a 5-year-old and 9-year-old.
“I play it all the time with them. I can’t say I’m an expert, but I know the rules,” Pettinato said.
“Now, my 5-year-old keeps throwing her hand out, saying, ‘Dad, let’s practice.’”
Pettinato said his kids have advised him to open with rock, which he thought was apropos
“because my case is solid as a rock.”
But Matti Leshem, co-commissioner of the USA Rock Paper Scissors League, told The New
York Times, “I guarantee you right now that both lawyers will open with paper. Lawyers open
with paper 67 percent of the time, because they deal with so much paper.”
Leshem agreed to officiate, saying, “What I don’t want is some rogue element of rock-paperscissors coming down from the bench. When the law takes rock-paper-scissors into its own
hands, mayhem can occur.”
While Pettinato said he has greatest respect for the judge and “got the message,” he is willing to
laugh at himself, “or else I’ll grow despondent.”

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Taking it somewhat seriously is the World Rock Paper Scissors Society.
“This is a landmark case of how RPS should be used to keep the wheels of justice moving
forward when dealing with lawyer engaging in posturing tactics,” Doug Walker, managing
director of the World RPS Society, told the News.
“Although we take issue with RPS being labeled as a ‘new’ form of dispute resolution, we
understand it is not commonly used in courtrooms and applaud Judge Presnell’s wisdom in the
matter.”
Noting that Rock, Paper, Scissors dates back to at least the 18th century in Japan, it was used
to settle an auction-house dispute in April when “an $18 million art portfolio was acquired by
Christie’s due to a cleverly executed throw of paper,” over Sotheby’s rock.
The World Rock Paper Scissors Society, Walker said, plans to invite Judge Presnell to attend
the International Rock Paper Scissors Championships in Toronto on September 30, as “chief
consultant to Head Referee Brad Fox.”
No word yet on whether the judge will accept the invitation.
Questions:
1. Why did the court order Pettinato and Craig to resolve their dispute via a game of
Roshambo?
2. Was the judge’s decision justified and appropriate under the circumstances?
Auto-Owners Ins. Co. v. Summit Park Townhome, 886 F. 3d 863 (10th Cir. 2018)
Summary: Harris and Pettinato represented Summit Park in an action against AutoOwners. Summit Park was damaged by hail, but the parties disagreed about the amount
of damage. The district court ordered them both to obtain independent appraisals. Harris
and Pettinato retained Keys as their appraiser, but did not disclose their previous
relationship with him. When the district court learned that Keys was not impartial, it
sanctioned Harris and Pettinato. They appealed, but the circuit court affirmed.
BACHARACH, Circuit Judge.
Mr. William Harris and Mr. David Pettinato are two attorneys who represented Summit Park
Townhome Association. While representing Summit Park against its insurer, the two attorneys
were sanctioned for failing to disclose information. In this appeal, the attorneys challenge the
sanctions based on five arguments:
1. The district court lacked authority to require the disclosure requirements.

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2. The attorneys did not violate the court’s disclosure requirements.
3. The district court awarded attorneys’ fees beyond the scope of an earlier sanctions
order.
4. The district court's award of attorneys’ fees resulted in a deprivation of due process.
5. The amount of attorneys’ fees awarded was unreasonable.
We affirm. Regardless of whether the district court had authority to require the disclosures, the
attorneys were obligated to comply. They did not, and the district court acted reasonably in
issuing sanctions, determining the scope of the sanctions, and calculating the amount of the
sanctions.
I. Mr. Harris and Mr. Pettinato were sanctioned for failing to comply with the disclosure order.
This appeal grew out of an insurance dispute. Summit Park sustained hail damage and filed a
claim with its insurer, Auto-Owners Insurance Company. The parties agreed that damage had
occurred but disagreed on the dollar amount of the damage. Auto-Owners sued for a
declaratory judgment to decide the value.
Summit Park retained Mr. Harris and Mr. Pettinato, who successfully moved to compel an
appraisal based on the insurance policy. In the event of an appraisal, the insurance policy
required:
Each party will select a competent and impartial appraiser. The two appraisers will select
an umpire. If they cannot agree, either may request that selection be made by a judge of
a court having jurisdiction. The appraisers will state separately the value of the property
and amount of loss. If they fail to agree, they will submit their differences to the umpire.
A decision agreed to by any two will be binding.
Based on continuing disputes between the parties, Auto-Owners asked the district court to
resolve these disputes by ordering an “appraisal agreement.” The court did so and ordered
disclosure of facts potentially bearing on the appraisers' impartiality:
An individual who has a known, direct, and material interest in the outcome of the
appraisal proceeding or a known, existing, and substantial relationship with a party may
not serve as an appraiser. Each appraiser must, after making a reasonable inquiry,
disclose to all parties and any other appraiser any known facts that a reasonable person
would consider likely to affect his or her impartiality, including (a) a financial or personal
interest in the outcome of the appraisal; and (b) a current or previous relationship with
any of the parties (including their counsel or representatives) or with any of the
participants in the appraisal proceeding. Each appraiser shall have a continuing
obligation to disclose to the parties and to any other appraiser any facts that he or she
learns after accepting appointment that a reasonable person would consider likely to
affect his or her impartiality.

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600
The court warned: “Notice is given that, if the court finds that the parties and/or their counsel
have not complied with this order, the court will impose sanctions against the parties and/or their
counsel pursuant to the court's inherent authority.”
Before the court imposed these requirements, Summit Park selected Mr. George Keys as its
appraiser. This selection led Auto-Owners to express doubt about Mr. Keys’s impartiality. But
Auto-Owners did not object to Mr. Keys or move to compel further disclosures.
Mr. Keys and the court-appointed umpire agreed on an appraisal award of over $10 million,
which was 47% higher than Summit Park’s own public adjuster had determined. Auto-Owners
then launched an investigation, which culminated in an objection to Mr. Keys. In the objection,
Auto-Owners argued that Mr. Keys was not impartial and that Summit Park had failed to
disclose evidence bearing on his impartiality. The district court credited these arguments,
disqualifying Mr. Keys and vacating the appraisal award.
With vacatur of the appraisal award, Auto-Owners moved for sanctions against Mr. Harris and
Mr. Pettinato, seeking attorneys’ fees and expenses based on violation of the disclosure order.
The district court granted the motion, assessing sanctions against Mr. Harris and Mr. Pettinato
for $354,350.65 in attorneys' fees and expenses.
II. Mr. Harris and Mr. Pettinato were bound by the court’s disclosure order.
Mr. Harris and Mr. Pettinato challenge the district court’s authority to enter the disclosure order.
But even if the court had exceeded its authority, Mr. Harris and Mr. Pettinato would still have
needed to comply with the disclosure order. If the two attorneys believed that the order had
been unauthorized, they could have sought reconsideration or a writ; but they could not violate
the order.
There is “impressive authority for the proposition that an order issued by a court with jurisdiction
over the subject matter and person must be obeyed by the parties until it is reversed by orderly
and proper proceedings.” The parties agree that the district court had jurisdiction over the
subject matter and parties; thus, the attorneys and parties bore an obligation to comply in the
absence of an appellate challenge. In light of the duty to comply, violation of the order could
trigger sanctions.
Regardless of whether the district court had authority to issue the disclosure order, Mr. Harris
and Mr. Pettinato:
●
●

bore an obligation to comply in the absence of an appellate challenge and
could be sanctioned for noncompliance.

III. Mr. Harris and Mr. Pettinato violated the disclosure order.

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601
The district court concluded that the two attorneys had violated the disclosure order.
Challenging this conclusion, Mr. Harris and Mr. Pettinato make two arguments:
1. The district court misinterpreted the term “impartial.”
2. Mr. Harris and Mr. Pettinato disclosed sufficient information about Mr. Keys.
Both arguments fail.
B. Mr. Harris and Mr. Pettinato failed to disclose information specified in the disclosure order.
The district court required disclosure of:
●
●
●

the appraiser’s “financial or personal interest in the outcome of the appraisal,”
Any “current or previous relationship” between the appraiser and Summit Park’s counsel,
and
any other facts subsequently learned that “a reasonable person would consider likely to
affect” the appraiser's impartiality.

1. Mr. Harris and Mr. Pettinato did not disclose the extent of their relationships with Mr. Keys.
Regardless of whether the district court had correctly defined “impartial,” the disclosure order
itself was clear in what was required. For example, the order expressly required disclosure of
the attorneys’ current or previous relationships with the appraiser. The failure to disclose this
information constituted a sanctionable violation regardless of the court's interpretation of the
word “impartial.”
The district court could reasonably find that the two attorneys had failed to disclose the extent of
their relationships with Mr. Keys. For example, the attorneys failed to disclose that
●
●
●
●

other attorneys in their law firm (the Merlin Law Group) had worked with Mr. Keys on
appraisals for at least 33 clients,
Merlin attorneys had represented Mr. Keys on various matters for over a decade,
Merlin’s founder and Mr. Keys had co-founded a Florida lobbying operation, whose
“number one goal was to protect policyholders and the public adjusting profession,” and
Merlin attorneys had served as the incorporator and registered agent for one of Mr.
Keys’s companies.

Mr. Harris and Mr. Pettinato argue that their disclosures were sufficient. They made two
disclosures:
1. “Mr. Keys does not have any significant prior business relationship with Merlin, Summit
Park, or C3 Group. Mr. Keys has acted as a public adjuster and/or appraiser on behalf of
policyholders that Merlin has represented in the past, however, this obviously does not
affect his ability to act as an appraiser in this matter.”

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602
2. “Mr. Keys has acted as a public adjuster and/or appraiser on behalf of policyholders that
Merlin has represented in the past. Mr. Keys has no financial interest in the claim, and
has no previous relationship with the policyholder in this matter.”
In addition, Mr. Keys disclosed:
I do not have a material interest in the outcome of the Award and have never acted
either for or against Summit Park Townhome Association. My fee agreement is based
upon hourly rates plus expenses. I do not have any substantial business relationship or
financial interest in Merlin. There have been cases where both Merlin and Keys Claims
Consultants acted for the same insured but under separate contracts.
Mr. Harris and Mr. Pettinato make two defenses of their disclosures:
1. They disclosed enough information about Mr. Keys’s impartiality.
2. Mr. Harris and Mr. Pettinato lacked personal knowledge about the undisclosed facts.
These arguments fail.
First, the district court acted within its discretion in concluding that Mr. Harris and Mr. Pettinato
had failed to disclose the extent of their relationships with Mr. Keys. The two attorneys disclosed
only that Mr. Keys had worked as an appraiser on behalf of Merlin’s clients, and Mr. Keys stated
that he lacked a substantial business relationship with Merlin. The district court could
reasonably find that these disclosures had failed to provide meaningful information about the
extent of the relationships between the two attorneys and Mr. Keys.
Second, Mr. Harris and Mr. Pettinato cannot avoid sanctions based on their asserted lack of
knowledge about Mr. Keys’s contacts with other Merlin attorneys. Mr. Harris and Mr. Pettinato
knew about some of the contacts, as reflected in Mr. Pettinato's description of his firm’s
connection with Mr. Keys: “Both Mr. Keys and his staff have assisted me as well as my firm in
resolving an untold number of large multi-million dollar losses to an amicable resolution and
settlement to the policyholders’ benefit and satisfaction.” In addition, however, Mr. Harris and
Mr. Pettinato bore an obligation to make “a reasonable inquiry.” In light of this obligation, Mr.
Harris and Mr. Pettinato could not profess ignorance while failing to inquire about contacts with
other Merlin attorneys.
In these circumstances, the district court acted within its discretion in finding a failure to disclose
the extent of the relationships between the two attorneys and Mr. Keys.
2. Mr. Harris and Mr. Pettinato distort the effect of the district court’s definition of “impartial.”
The district court required disclosure not only of the appraiser’s relationship with counsel but
also of known facts that a reasonable person would consider likely to affect the appraiser's

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603
impartiality. This part of the disclosure requirement was tied to the court's definition of the term
“impartial.”
Mr. Harris and Mr. Pettinato focus on the court’s definition of “impartial,” arguing that it was
wrong and that the court failed to adequately inform Mr. Harris and Mr. Pettinato of the scope of
their obligations. But in the disclosure order itself, the court stated what it meant by “impartial”:
“An individual who has a known, direct, and material interest in the outcome of the appraisal
proceeding or a known, existing, and substantial relationship with a party may not serve as an
appraiser.” Because the court stated precisely what it meant by “impartial,” Mr. Harris and Mr.
Pettinato knew what was required. And as we have discussed, Mr. Harris and Mr. Pettinato
could not disobey the order even if the court had based the disclosure requirements on a
misguided definition of “impartial.”
3. The district court reasonably found a violation of the disclosure order tied to this test of
“impartial.”
Based on this definition, the district court required disclosure of any facts that a reasonable
person would view as likely to affect the appraiser’s impartiality. Mr. Harris and Mr. Pettinato
argue that evidence of an appraiser’s advocacy was unlikely to affect the appraiser’s
impartiality. For the sake of argument, let’s assume that Mr. Harris and Mr. Pettinato are right.
Still, the district court could reasonably view Mr. Keys’s undisclosed prior statements as likely to
affect his impartiality based on a known, direct, and material interest in the outcome.
For example, in a presentation to a group of public adjusters in Florida, Mr. Keys taught
participants how to “harvest the claim money” from an insurer during an appraisal. And one of
Mr. Keys’s companies maintains a website stating: “Our purpose is simple: To shift the balance
of power from the insurer to the policy holder.” The district court could reasonably view these
undisclosed statements as proof of a material interest in an outcome favoring the policyholder
over the insured.
Evidence also suggests that Mr. Harris and Mr. Pettinato were aware of Mr. Keys’s bias. For
example, in an advertisement on Mr. Keys’s website, Mr. Pettinato endorsed Mr. Keys, saying:
“Both Mr. Keys and his staff have assisted me as well as my firm in resolving an untold number
of large multi-million dollar losses to an amicable resolution and settlement to the policyholders’
benefit and satisfaction.” And a profile on Merlin's website reported that Mr. Keys “had
dedicated his professional life to being a voice for policyholders in property insurance claims.” In
this profile, Mr. Keys stated: “I was taught to always handle a claim as if my momma was the
insured.”
In sum, the district court did not abuse its discretion in finding that Mr. Harris and Mr. Pettinato
had violated the disclosure order.
C. Waiver

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604
Mr. Harris and Mr. Pettinato contend that Auto-Owners waived its objection to the sufficiency of
the disclosures by failing to object despite knowledge of Mr. Keys’s relationship with Merlin and
past expressions of bias toward policyholders. We disagree. Auto-Owners had some knowledge
about Mr. Keys’s bias but did not know much of what had been withheld. Without full knowledge
of the undisclosed information, Auto-Owners did not waive its right to seek sanctions for
nondisclosure.
IV. The district court reasonably interpreted the scope of its sanctions order.
In sanctioning the two attorneys, the court invoked 28 U.S.C. § 1927. Under § 1927, an attorney
“who so multiplies the proceedings in any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.” Applying this statute in the sanctions order, the court found
that Mr. Harris and Mr. Pettinato had unreasonably prolonged the proceedings:
I note that Section 1927 indicates a purpose to compensate victims of abusive litigation
practices, not to deter and punish offenders. With this purpose in mind, I reject AutoOwners’ request for fees for proceedings in this Court that relate to conducting the
appraisal process and conducting the appraisal process itself because Auto-Owners
would have incurred these fees regardless of Harris' and Pettinato's misconduct. I grant
the request, however, as to Auto-Owners’ investigation into George Keys and its
objections to his participation in the appraisal, as this work would not have taken place in
the absence of Harris’ and Pettinato’s misconduct. The award shall be assessed against
Harris and Pettinato jointly and severally.
Mr. Harris and Mr. Pettinato challenge the scope of this order. They concede that the award
covered Auto-Owners’ objection to Mr. Keys ($186,705.50) and investigation of Mr. Keys
($33,805). But the attorneys disagree with the inclusion of attorneys’ fees for
●
●
●

Auto-Owners’ preparation of the motion for sanctions ($51,309.50),
Auto-Owners’ preparation of the application for attorneys’ fees and expenses
($16,960.50), and
Auto-Owners' other related work ($61,662.50).

According to Mr. Harris and Mr. Pettinato, these activities fell outside of the initial sanctions
order. We disagree.
In setting attorneys’ fees following the sanctions order, the district court explained:
Thus, viewed properly in its context, my award encompasses any fees incurred as a
result of Harris’ and Pettinato’s misconduct. The fees requested by Auto-Owners for
work on the third amended petition, the reservation of rights letter, and other matters
described in the detailed billing records would not have been incurred but for Harris’ and
Pettinato’s misconduct. I therefore conclude they are within the scope of the award.

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605

We give deference to the district court’s interpretation of its own order.
With such deference, we conclude that the district court reasonably interpreted its prior
sanctions order. The sanctions order had noted that § 1927 was designed “to compensate
victims of abusive litigation practices.” In light of this purpose, the court interpreted its sanctions
order against Mr. Harris and Mr. Pettinato as encompassing all of the attorneys’ fees and
expenses resulting from violation of the disclosure order. This interpretation was reasonable.
The sanctions order expressly included the investigation of and objection to Mr. Keys. But the
district court could reasonably interpret the sanctions order to go beyond the investigation and
objection. If Mr. Harris and Mr. Pettinato had not violated the disclosure order, Auto-Owners
would not have had to move for sanctions, seek attorneys’ fees and expenses, and complete
other work. As a result, the district court could reasonably consider these litigation expenses as
the product of the two attorneys’ misconduct. In these circumstances, it was reasonable for the
district court to conclude that the earlier sanctions order had encompassed attorneys’ fees and
expenses from the motion for sanctions, application for attorneys’ fees and expenses, and
related work involving the motion and application.
V. The district court did not deprive the two attorneys of due process.
Alternatively, Mr. Harris and Mr. Pettinato assert a deprivation of due process based on an
inability to respond to the district court’s inclusion of litigation activities outside of the initial
sanctions order. We disagree. Auto-Owners filed an application for attorneys’ fees, and Mr.
Harris and Mr. Pettinato had an opportunity to respond. In the response, they could have
objected to any of the attorneys’ fees being sought. This opportunity supplied due process.
VI. The amount of attorneys' fees awarded was reasonable.
Mr. Harris and Mr. Pettinato also argue that the court awarded an unreasonable amount of
attorneys’ fees. We disagree.
The district court closely reviewed the information in Auto-Owners’ request for fees, determining
that most of the fee requests were reasonable given
●
●
●

the circumstances of the case,
the hourly rates prevailing in the community, and
the use of billing judgment.

First, the district court concluded that it was reasonable for Auto-Owners’ counsel to spend long
hours because “Auto-Owners had over $30 million at stake” and the issues were complex. This
conclusion was reasonable.

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606
Second, the court considered the local market, the qualifications of the attorneys, and the
contentiousness of the litigation. These considerations led the district court to find that the billing
rates had been reasonable. In our view, this finding was permissible under the record.
Third, the court considered the use of billing judgment by Auto-Owners’ counsel through
concessions such as staffing with lower-billing attorneys, declining to charge for all hours
worked, and discounting hours worked by paralegals and secretaries. The district court acted
reasonably in considering these concessions.
For these three reasons, we conclude that the district court did not abuse its discretion in
calculating the amount of the sanction ($354,350.65).
VII. Conclusion
The district court did not err in sanctioning Mr. Harris and Mr. Pettinato. Regardless of the
validity of the disclosure order, compliance was required in the absence of an appellate
challenge. Mr. Harris and Mr. Pettinato violated the order by failing to disclose information
bearing on Mr. Keys's impartiality. In light of this violation, the district court had the discretion to
sanction Mr. Harris and Mr. Pettinato and set a reasonable amount. We therefore affirm the
assessment of sanctions.
Questions:
1. Why was it improper for Harris and Pettinato not to disclose their previous relationship
with Keys?
2. Could Harris and Pettinato have hired Keys as their expert, if they made the proper
disclosures?
Further Reading:
●

Benjamin Edwards, The Professional Prospectus: A Call for Effective Professional
Disclosure, W&L L. Rev. (forthcoming)

Further Listening:
●

Benjamin Edwards on Improving the Market for Professional Services, Ipse Dixit, March
19, 2019

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607
6.3: Attorney Misconduct
Walking the line, you were a marksman. Told me that law, like wine, is ageless. Public defender,
you had to admit, you wanted the love of a sex offender.94
In addition to their disciplinary authority under Federal Rule of Civil Procedure 11 and Model
Rule of Professional Conduct 3.1, courts have the “inherent authority” to regulate the conduct of
attorneys and punish attorney misconduct. This inherent authority is recognized by both state
and federal courts, and is not derived from any particular state or rule. Rather, it is a function of
the need for courts to “manage their own affairs.” As the Supreme Court observed in Chambers
v. Nasco, Inc., 501 U.S. 32 (1991):
It has long been understood that certain implied powers must necessarily result to our
Courts of justice from the nature of their institution, powers which cannot be dispensed
with in a Court, because they are necessary to the exercise of all others. For this reason,
Courts of justice are universally acknowledged to be vested, by their very creation, with
power to impose silence, respect, and decorum, in their presence, and submission to
their lawful mandates. These powers are governed not by rule or statute but by the
control necessarily vested in courts to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.
The inherent authority of a court is non-exclusive of any statutes or rules that prohibit the same
or similar conduct, and courts may use their inherent authority to punish conduct that would fall
outside the scope of otherwise applicable statutes of rules. Among other things, courts can use
their inherent authority to punish attorneys for conduct that is abusive, vexatious or in bad faith.
For example, as the Supreme Court observed in Chambers:
A court may assess attorney’s fees when a party has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons. In this regard, if a court finds that fraud has been
practiced upon it, or that the very temple of justice has been defiled, it may assess
attorney’s fees against the responsible party, as it may when a party shows bad faith by
delaying or disrupting the litigation or by hampering enforcement of a court order. The
imposition of sanctions in this instance transcends a court’s equitable power concerning
relations between the parties and reaches a court’s inherent power to police itself, thus
serving the dual purpose of vindicating judicial authority without resort to the more
drastic sanctions available for contempt of court and making the prevailing party whole
for expenses caused by his opponent's obstinacy.
The Inherent Authority of the Court

94

Blondie, X Offender, Blondie (1976).

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608

Marvin Kurzban & Ira J. Kurzban
Lee v. American Eagle Airlines, Inc., 93 F. Supp. 2d 1322 (S.D. Fla. 2000)
MIDDLEBROOKS, District Judge.
Summary: Marvin and Ira Kurzban represented Anthony Lee in an employment
discrimination action against American Eagle Airlines, alleging racial discrimination. The
found for Lee on his hostile work environment claim and awarded him $300,000 in
compensatory damages and $650,000 in punitive damages, but denied Lee’s claim for
termination on account of his race. The Kurzbans filed motion seeking $1,611,910.50 in
attorney’s fees and costs. The district court criticized their conduct during the trial, and
relied on its inherent authority to award only $312,324.63 in attorney’s fees and costs. In
addition, it reported their conduct to the Florida Bar.
This Cause came before the Court upon Plaintiff’s Amended Verified Motion for Attorney’s Fees
and Costs.
I. Introduction
“Let's kick some ass,” Marvin Kurzban said loudly to his client, Anthony Lee, and his co-counsel,
Ira Kurzban. I had taken the bench, and Court was in session. Opposing counsel and their client
representatives were seated across the aisle. The jury was waiting to be called into the
courtroom. Mr. Kurzban’s comment was suited more to a locker room than a courtroom of the
United States, and the conduct of Plaintiff’s counsel that followed disrupted the adversary
system and interfered with the resolution of a civil dispute.
The trial of this case lasted approximately fourteen days. The jury found that American Eagle
Airlines had subjected Mr. Lee to a racially hostile work environment. As compensation, the jury
awarded Mr. Lee $300,000. In addition, the jury awarded Mr. Lee $650,000 in punitive
damages. The jury denied Mr. Lee’s other claim, finding that Mr. Lee had not been terminated
because of his race. This motion seeking attorney’s fees and costs followed.

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609
As the prevailing party in a Title VII action, the Plaintiff now seeks $1,611,910.50 in attorney’s
fees. This request presents the question of whether unprofessional and disruptive conduct of
counsel which prolongs the proceedings and creates animosity which interferes with the
resolution of a cause can be considered in determining an award of attorney’s fees.
In their post-trial motions, counsel for the parties filed opposing affidavits concerning additional
misconduct that was not directly observed by the Court. Since these affidavits presented vastly
different versions of events, an evidentiary hearing was held; counsel and other witnesses
testified.
These issues have been distasteful and time consuming. There is a great temptation to simply
move on and ignore the issue. It is unpleasant to hear lawyers accusing each other of lies and
misrepresentations. Unprofessionalism on the part of lawyers is a distraction and takes time
away from other pending cases; it also embroils the Court in charges and counter charges.
However, the functioning of our adversary system depends upon being able to rely upon what a
lawyer says. So, confronted by affidavits of counsel that were directly contradictory, I decided to
hear testimony and make credibility findings. These findings are based upon direct observations
by the Court, the transcript of the trial, and the evidentiary hearing.
In addition, we contacted the Florida Bar to determine whether counsel had been the subject of
complaints regarding unprofessional conduct. The Florida Bar forwarded a record of a previous
complaint by a state court judge concerning the conduct of Marvin Kurzban. In response to that
complaint, and immediately before the trial in this cause, the Florida Bar had directed Mr.
Kurzban to attend an ethics class and pay a fine.
II. Findings of Fact Pertaining to Misconduct by Counsel
Discovery in this case was rancorous from the beginning. As is often the case, counsel for both
sides contributed to the lack of civility. The tone of depositions was harsh, witnesses were
treated with discourtesy, and discovery disputes were abundant. The transcripts of the
depositions in this case are weighted down with bitter exchanges between the lawyers.
Testimony at the evidentiary hearing reflected that this uncivil conduct also continued during
conversations between counsel. The testimony of a young lawyer formerly with the Defendant's
counsel’s law firm was particularly poignant. This lawyer testified that during telephone
conversations with Ira Kurzban, she was hung up on, told that she had only been assigned to
work on the case because she was African-American, and wrongly accused of
misrepresentations. She testified that her experience with opposing counsel in this case was a
factor in her decision to leave her litigation practice.
This testimony was not only powerful and credible, but it also reflects the corrosive impact this
type of unprofessional behavior can have upon the bar itself. A litigation practice is stressful and
often exhausting. Unprofessional litigation tactics affect everyone exposed to such behavior and
the ripple effect of incivility is spread throughout the bar.

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610

The trial began. Testimony at the evidentiary hearing reveals that Mr. Kurzban’s “Let’s kick
some ass” comment was not an aberration. A client representative of the Defendant, a lawyer
for American Airlines, testified that she and others were subjected to a barrage of comments out
of the hearing of the Court and jury which she likened to trash talk at a sporting event. Local
counsel for the Defendant was called a “Second Rate Loser” by Marvin Kurzban. She testified
that each day as court began, Marvin Kurzban would say, “Let the pounding begin.” In front of
defense counsel’s client, Mr. Kurzban would ask, “How are you going to feel when I take all of
your client's money?” When walking out of the courtroom, Marvin Kurzban would exclaim,
“Yuppies out of the way.”
Other than Mr. Kurzban’s opening comment, I was unaware of this conduct towards opposing
counsel and their client’s representatives, although counsel for the Defendants alluded to it
during the trial. However, I observed continuing misconduct during the trial itself.
Early in the trial, an episode occurred when defense counsel brought to the Court’s attention
that after an instruction to a witness not to discuss his testimony during a break in his testimony
for lunch, Ira and Marvin Kurzban had approached the witness and had a discussion — with an
open deposition transcript in hand. Marvin Kurzban responded, “That's a lie.” The Kurzbans
then explained that they had the transcript open because they were looking at it, but that they
were not talking with the witness about it. Their explanation was that they were talking about
where they were going for lunch. I accepted the explanation, but with the observation that it was
an exercise of poor judgment. (Tr. 324-325).
Shortly afterward, Marvin Kurzban objected to a question, and I overruled his objection. He
continued to argue his point, then he visibly expressed his dismay with the ruling. I asked
counsel to approach for a sidebar conference, wherein I advised him that for the third time he
had made visible displays of disagreement with rulings by nodding his head or looking upward
at the ceiling. I told him to stop that conduct and to cease making speaking objections.
Subsequently, I warned both counsel again; once before the jury, and again at the close of the
mornings testimony. Ira Kurzban responded that he was way beyond acrimony with opposing
counsel.
After this warning, defense counsel followed the Court’s admonition and refused to respond to
provocations from opposing counsel. Later than day, Marvin Kurzban interrupted an appropriate
cross-examination and requested a sidebar to accuse counsel of intentionally delaying the
examination so that he could not reach a witness.
Despite repeated warnings, Plaintiff’s counsel continued to address comments to opposing
counsel rather than to the Court and interject inappropriate comments before the jury.

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611
The belligerence of Plaintiff'’s counsel, particularly Marvin Kurzban, spread like a contagion
through the courtroom. On September 22, 1999, I returned to the bench after a luncheon break.
Marvin Kurzban wanted to raise a matter prior to the jury’s return.
Mr. Kurzban stated:
I am concerned about the record, Your Honor. I went over to the ... Mr. Reporter there,
when we took the first break, and asked him about the ability to get a page typed. And
instead I ended up having names called at me and a confrontation. I only bring it to the
Court’s attention because I am concerned about the record being clear. I feel this Court
Reporter for whatever reason ... I don't know the gentlemen, never met him before — is
either unstable based on his reaction and not competent to be reporting or has some
bias.
At the next recess, I asked the Court Reporter what had happened. He indicated that at the
break, which was a brief break for him inasmuch as we had a calendar call scheduled during
that luncheon break, Marvin Kurzban asked him for a portion of transcript. The reporter
responded that he could not produce those pages over the break (because he had to report the
calendar call). Marvin Kurzban responded, “What are you here for, just to look pretty?” The
Court Reporter responded with an epithet, at which point Marvin Kurzban remarked, “We’re not
talking about your family.” Then Mr. Kurzban said, “I guess money talks,” suggesting that since
the Defendant was ordering daily copy, the reporter was biased in their favor. At that point, the
Court Security Officer intervened.
I required the Court Reporter to apologize for his behavior. Because of the accusation of bias, I
arranged for other Court Reporters to cover the remainder of the trial.
I learned that accusations of bias followed any disagreement with positions espoused by
Plaintiff’s counsel: “There's no question that he's entitled to it, so it's no — if I understand what
Your Honor’s saying, you don’t want it to go in front of the jury for whatever reason.” “Your
Honor, I know you’re angry at me, but I hope you’re not taking it out on my client.” “In fact, I
think that the Court has exhibited extreme bias in this case and your rulings on objections.”
“Well, Your Honor, I respectfully disagree with you, that's for a court of appeals ultimately to
decide, but to put a motive on it I think it exhibits a substantial amount of bias on behalf of Your
Honor.” “And I concur with what my brother has said. There's been clear animus by this Court to
this side.” “I’ve practiced 26 years and I’ve tried over 50 cases, and I’ve won multimillion dollar
verdicts on more than a dozen cases. I don’t need for this Court to allow a witness to have his
wife introduced. I can’t think of any reason or purpose, other than prejudice, that this Court
would allow such an act to occur.”
Disturbing behavior by both Marvin Kurzban and Ira Kurzban occurred repeatedly during the
trial. When confronted about their conduct, they would deny that which I had just observed and
then lash out in a personal attack. For instance, after I overruled an objection made by Ira
Kurzban, Marvin Kurzban laughed. Other examples of their conduct following rulings include

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612
Marvin Kurzban tossing a pen; Ira Kurzban exclaiming, “This is outrageous”; the rolling of eyes;
exasperated looks at the ceiling; and flailing of arms. I warned counsel about this behavior.
After the episode of Marvin Kurzban laughing at my ruling, I asked counsel to approach the
bench. Marvin Kurzban responded: “I didn’t laugh. What I started doing was writing a note,
saying to my brother ... I didn't realize I was saying it out loud — we’re not trying his case. That's
what the objection was, because he's telling about his problems.” Ira Kurzban then interjected:
“I’d like to add, Your Honor, there’s a continuing pattern of conduct we believe shows enormous
bias and has turned this trial into a circus-like atmosphere.”
Ira Kurzban then listed a litany of complaints about rulings which he stated should result in a
mistrial. (When offered a mistrial, the Plaintiff declined.) Defense counsel and the Court Security
officer also heard a laugh.
Shortly thereafter, during a discussion between the Court, Marvin Kurzban, and defense
counsel about the admissibility of an exhibit a witness had allegedly drawn during a videotaped
deposition but which was not on the Plaintiff’s exhibit list, Ira Kurzban walked to the video
machine and begin playing the videotape of the deposition in front of the jury. I directed that the
machine be turned off and we took a fifteen minute break.
After the break, defense counsel raised the issue and requested some sanction. I asked Ira
Kurzban for an explanation. He responded:
Mr. Kurzban: Yes, Your Honor. First, Mr. Connor asked me not to tamper with the tape
now, because you were going to come out and rule. I assume he didn't have any ex
parte communication with you. I’m a little perturbed about the fact that somehow he
knew you were coming out to make a ruling, which I was totally unaware.
The Court: I think he knew that I was coming back after a 15 minute break. There has
been absolutely no contact between me and Mr. Connor or any other lawyer in this case
between the time I left the bench 15 minutes ago and when I returned now. Now, is there
some reason why you would make that accusation?
Ira Kurzban: Yes, Your Honor.
The Court: All right. What was it?
Ira Kurzban: Mr. Connor said the Judge is going to come out here, he’s going to impose
some sanction. That's what Mr. Connor said, Your Honor, you are not here.
I'm simply saying that's what Mr. Connor did. I’m not accusing you of anything. We can
have the marshal testify that I should not touch the tape because you were going to
impose sanctions.
The Deputy: No, no.
The Court: The marshal is nodding no. Mr. Marshal?
The Deputy: No mention of sanctions was ever made.
Mr. Kurzban then stated that he had put the tape into the machine so that it would be ready if
needed and that the tape began playing accidentally. I accepted his explanation but stated:

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613

If I can’t rely on lawyers being able to respect each other and be respected and accept
what other people say in the courtroom, this system can’t work. It’s as important to me
as whether or not you have a law degree. I’m beginning to really have a problem with
what you are telling me is happening, based on what I’m seeing and what others in the
courtroom are seeing. So you all really need to think about that.
During a cross-examination concerning how much time the witness spent on various shifts,
Marvin Kurzban held a file towards the witness and asked:
Marvin Kurzban: I have your personnel file (indicating). How many times did you have to
work between 1992 and 1994, sir? Do you think it was more than a handful of times?
After an objection, and out of the presence of the jury, I asked Mr. Kurzban for the witness’s
personnel file. He responded:
Marvin Kuzban: Actually, we do have Mr. Blades’s personnel file, when it was produced
among all the other personnel files in Miami of the people. I don’t know if that box is here
or I left it in the office. I think the personnel files that we were given by counsel is in the
office.
The Court: So it wasn’t in the folder that you picked up and carried to the stand?
Marvin Kurzban: No it wasn’t, Your Honor.
The Court: You said, :Mr. Blades, we have your personnel file here!” You believe it is
permissible to pick up a file from your desk, carry it to the witness stand and tell the
witness “Mr. Blades, we have your personnel file,” and then begin questioning him? You
believe that’s appropriate court examination?
Marvin Kurzban: I do, on hostile witnesses; on cross-examination, I believe that I’m
entitled to have that witness believe I’m going to question him on something whether or
not I have that in my hand or not. Yes, I do.
The Court: I believe, frankly, that it is inappropriate to make a deliberate
misrepresentation to a witness or to ask, implying in your questioning something that is
not true.
Marvin Kurzban: Neither was I implying something that wasn’t true, nor was I making a
misrepresentation. The question was about how many times he worked, Your Honor.
The question wasn’t: In your personnel file it says something. I didn't make any such
misrepresentation.
Mr. Kurzban insisted that he had the personnel file back at his office. He was asked to produce
it and he responded that he would the following day. The file was never produced.
At the end of the trial, defense counsel Connor approached Ira Kurzban and offered his hand in
congratulations. Mr. Kurzban refused to shake his hand. The trial ended much like it had begun.

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At the evidentiary hearing, Plaintiff's counsel were unrepentent, attacking opposing counsel and
accepting no responsibility for their own actions. They argued that the perceived misconduct
was only a matter of style and the exercise of first amendment rights. In keeping with that
“style,” Marvin Kurzban ended the hearing with the proclamation that he had called his opponent
a loser, but not a second-rate loser because, “I don't rate losers.” Mr. Kurzban's testimony
reflects that he has no clue about what it means to be a lawyer.
III. Analysis
Courts presiding over civil rights actions may, in their discretion, award the prevailing party a
“reasonable attorney’s fee (including expert fees)” as part of its costs. Although the presiding
court has discretion, a prevailing plaintiff is to be awarded attorney’s fees “in all but special
circumstances.” This presumption in favor of awarding attorney’s fees is a reflection of
Congress’ clear intent to “cast the Title VII plaintiff in the role of ‘a private attorney general,’
vindicating a policy of the highest priority.” By awarding prevailing plaintiffs their attorney’s fees,
the section “makes it easier for a plaintiff of limited means to bring a meritorious suit.”
Courts determining attorney’s fee awards begin by determining the “lodestar”: the product of the
number of hours reasonably expended on the litigation and a reasonable hourly rate for the
attorney’s services. This lodestar may then be adjusted for the results obtained.
1. The reasonable hourly rate
“A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.” The party
seeking attorney’s fees, in this case Mr. Lee, bears the burden of producing “satisfactory
evidence that the requested rate is in line with prevailing market rates.” To be satisfactory,
evidence must consist of “more than the affidavit of the attorney performing the work.”
Prior to adoption of the lodestar formula, the so-called “Johnson factors” governed fee awards.
Although the lodestar formula has since displaced the “Johnson factors,” the Eleventh Circuit
has permitted district courts to consider the factors in establishing a reasonable hourly rate.
Among those factors is the experience, reputation, and ability of the attorneys and the skill
requisite to perform the legal service properly. As explained more fully in the findings of
misconduct, the conduct of Ira Kurzban and Marvin Kurzban both during and prior to trial was
very troubling. In my estimation, the manner in which a lawyer interacts with opposing counsel
and conducts himself before the Court is as indicative of the lawyer’s ability and skill as is
mastery of the rules of evidence. Upon review of the trial transcripts and the evidence presented
during the evidentiary hearing on attorney conduct and based on observations at trial, I find that
the conduct of Ira Kurzban and Marvin Kurzban in the litigation of this case fell far below
acceptable standards, especially in light of the $300 hourly rate the attorneys claim.
Accordingly, I find “special circumstances” justifying a departure from counsels’ requested rates:
Ira Kurzban shall be awarded $150 per hour for his pretrial work and $0 for his trial work; Marvin
Kurzban’s rate for this action is $0.

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For further support of the above rate reductions, we rely upon our “inherent power” to sanction
attorney misconduct. “It is well-established that ‘certain implied powers must necessarily result
to our Courts of justice from the nature of their institution,’ powers ‘which cannot be dispensed
with in a Court, because they are necessary to the exercise of all others.’ For this reason,
‘Courts of justice are universally acknowledged to be vested, by their very creation, with power
to impose silence, respect, and decorum, in their presence, and submission to their lawful
mandates.’ These powers are ‘governed not by rule or statute but by the control necessarily
vested in courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.’”
Among these powers is the contempt sanction, “which a judge must have and exercise in
protecting the due and orderly administration of justice and in maintaining the authority and
dignity of the court.” “The inherent power of a court to manage its affairs necessarily includes
the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing
before it.”
A finding that counsels’ conduct “constituted or was tantamount to bad faith” must precede any
sanction levied pursuant to a court’s inherent powers. The Court of Appeals for the Second
Circuit requires that bad faith be shown by (1) “clear evidence” or (2) “harassment or delay or
other improper purposes.” Where imposed for the purpose of deterring misconduct rather than
remedying some prejudice, as here, the District of Columbia Circuit has held that sanctions
must be supported by “clear and convincing evidence” of “flagrant or egregious misconduct.”
Before imposing a severe sanction based on principles of deterrence, a district court must
consider whether a lesser sanction is more proportionate to the misconduct.
In this case, we are imposing a lesser sanction. We did not dismiss this case, but rather
permitted it to go the jury. Moreover, although counsel were warned during the trial that further
disruptive conduct would be a basis for criminal contempt, that sanction was not employed. We
have also elected not to deny Plaintiff’s fee request altogether, though we are reducing it
significantly. Additionally, our sanction is supported by “clear and convincing” evidence of
“flagrant or egregious” misconduct demonstrating counsels’ “bad faith.” In assessing attorney
misconduct, the Court had the benefit of an exhaustive evidentiary hearing concerning attorney
misconduct and trial transcripts replete with examples of unprofessional behavior. Most
significantly, much of the misconduct in this matter occurred before the Court. Plaintiff’s
counsels’ continued misbehavior in the face of repeated verbal reprimands and warnings that
the Court intended to revisit counsels' misconduct at a later date demonstrated counsels’ “bad
faith.”
There is precedent for denying a party attorney’s fees to which it was otherwise statutorily
entitled as a sanction for attorney misconduct. In Litton Sys., Inc. v. American Tel. and Tel. Co.,
the Second Circuit Court of Appeals affirmed the district court’s denial of attorney’s fees to a
prevailing plaintiff in an antitrust suit. The plaintiff was entitled to its costs and fees under,
among other provisions, the Clayton Act. Though the Litton court based its decision on its power

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to sanction disobedience of court orders under Federal Rule of Civil Procedure 37(b), it noted
that “given the court’s express findings of bad faith, it could also have imposed sanctions on the
plaintiff as an exercise of its inherent powers.”
In addition, the Court reduces the rates sought by Plaintiff for associate work. Magistrate Judge
Barry L. Garber recently found, by order dated May 5, 1999, that $125 was a reasonable hourly
rate for associates. Magistrate Judge Stephen T. Brown, in a recommendation dated August 17,
1999, noted that the parties agreed to an hourly rate of $125 for associates. Accordingly, the
Court finds that $125 is the prevailing hourly rate in the Southern District for associate work.
Thus, the work of Brian Torres, Raquel Libman, Jed Kurzban, and Florence Zolin shall be billed
at a rate of $125 per hour. Peter Hoffer, who has eight years of civil rights litigation experience,
shall be billed at $175.
2. The number of hours reasonably expended
Defendant argues that not all of the 3,269.54 hours claimed by Plaintiff were "reasonably
expended." Specifically, Defendant contends that Plaintiff claims hours from another case,
which are not compensable in this matter, and that Plaintiff did not exercise proper billing
judgment.
i. Hours spent on another case
Defendant points out that although Plaintiff initiated the action before this Court on March 21,
1997, Plaintiff has submitted time records with dates as early as August 1994. Defendant
surmises that many of these entries are for work done on other cases and thus are not
compensable. Plaintiff replies that the Kurzban firm had begun representing Mr. Lee in 1994,
before the firm’s formal retention by Mr. Lee and commencement of this action, and that the
work underlying these entries was the basis for Plaintiff’s hostile environment claim. Initially, Ira
Kurzban represents that he advised Mr. Lee and other black mechanics at American Eagle who
complained of racism at American Eagle, then Flagship Airlines. Thereafter, Mr. Kurzban
assisted Plaintiff in his negotiations with American Eagle and in his claims before the Equal
Employment Opportunity Commission.
Kurzban, Kurzban et al. may collect fees for legal services it provided Mr. Lee prior to
commencement of this action or its formal retention by Mr. Lee. Defendant does not seem to
contest this, but rather asks the Court to strike those hours it claims were clearly not spent on
matters related to this case.
We begin by striking those entries, dated prior to the commencement of this action, that appear
to relate to motions practice and other matters in a pending lawsuit or which do not seem
sufficiently related to this action. These entries add up to 137.15 hours. In addition, the Court
reduces by 50% the remaining hours claimed between August 10, 1994 and January 2, 1997.
We find Plaintiff’s documentation to be inadequate for purposes of demonstrating that these
hours were reasonably expended in the litigation of this matter. While the information gathered

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at this stage was likely helpful in the eventual litigation of Mr. Lee’s claims, the information was
being gathered for other purposes. Accordingly, the Court is not convinced that all the time
claimed, or even most of it, was reasonably expended in the pursuit of Mr. Lee’s claims.
ii Billing judgment
Fee applicants must exercise “billing judgment.” That means that they must exclude from their
fee applications “excessive, redundant, or otherwise unnecessary hours,” which are hours “that
would be reasonable to bill to a client and therefore to one’s adversary irrespective of the skill,
reputation or experience of counsel.” Defendant maintains that further reductions are warranted
based on Plaintiff's counsels’ time and record keeping practices. Vague entries, according to
Defendant, preclude the Court from determining that hours were reasonably expended, and
cannot be cured by Plaintiff’s counsel’s post hoc, hand-written notes. Defendant also contests
counsels’ repetitious charges, claims for hours spent by attorneys “getting up to speed,” and
excessive time spent on certain activities.
While wary of counsels’ after-the-fact, clarifying notes, the Court does not ignore the added
detail and takes counsel at their word that the additions are supported by reference to red
books, pertinent files, and their own memories. The Court is more concerned about the
excessive number of hours billed in this case in light of its nature. This case involved racial
harassment endured by a single plaintiff at a single site of employment. Although this matter
was hotly contested, due in large part to overzealousness on both sides, the $1,611,910.50 in
fees sought by Plaintiff's counsel based on 3,269.54 hours is clearly excessive. This view is
supported by a review of recent awards in employment discrimination cases in the Southern
District, which the Court may consider under Johnson. This case was not so much more lengthy
or complex than these cases to justify such a grossly disproportionate award. Indeed, Judge
Hurley, following a eight-day trial, awarded $191,524.75 in attorneys’ fees. The award followed
a jury verdict in favor of the plaintiff on her sexually hostile work environment and retaliation
claims.
To account for the excessive number of hours claimed in this case, we reduce Plaintiff’s
counsels’ hours by 40% across-the-board. In addition, the Court reduces by one-third Ira
Kurzban’s non-contemporaneous October 8, 1998 entry, allotting 30 hours to the reading of “all
new 11th Circuit cases on employment discrimination related to case” over the past six months.
3. The lodestar figure
i. Reasonable hours
For the period August 10, 1994 to January 2, 1997, after deleting hours unrelated to this
litigation, the Court recognizes 106.4 hours. We then reduce that figure by 50%, as explained
above, for Plaintiff's failure to establish that those hours were spent on matters sufficiently
related to this litigation, leaving 53.2 hours. All but one of these hours was billed to Brian Torres
or Raquel Libman; the other hour was billed to Ira Kurzban. For the period January 2, 1997 to

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September 14, 1999, the date the trial began, we recognize the following hours: 1,879.85 hours
for Ira Kurzban; 682.24 hours for Raquel Libman; 669.2 hours for Peter Hoffer; 28.6 hours for
Jed Kurzban; and 12 hours for Florence Zolin. Finally, for the trial period, we credit 81.7 hours to
Jed Kurzban.
Next the Court cuts counsels’ hours by 40% across-the-board for the period January 2, 1997
through trial, having found, upon review of counsels’ billing records and other employment
discrimination cases in the District, counsels’ claimed hours to be excessive:
●
●
●
●
●

Ira Kurzban:
1,879.85 × .6 = 1,127.91 hours
Raquel Libman: 682.24 × .6 = 409.34 hours
Peter Hoffer: 669.2 × .6 = 401.52 hours
Jed Kurzban:
(28.6 + 81.7) × .6 = 66.18 hours
Florence Zolin: 12 × .6 = 7.2 hours

ii. Multiplied by the reasonable hourly rates
Associates:
Peter Hoffer:
Ira Kurzban:
Final lodestar:

534.92[13] × $125 = $66,865
401.52 × $175 = $70,266
1,128.91[14] × $150 = $169,336.50
$306,467.50

4. The results obtained
As noted above, the lodestar may then be adjusted for the results obtained. This factor is
particularly important where, as here, Plaintiff is deemed “prevailing” even though he succeeded
on only one of his claims for relief.
The Court finds that as in many civil rights cases, Plaintiff’s claims involve a common core of
facts and related legal theories. Accordingly, the Court does not treat Plaintiff’s suit as a series
of discrete claims, readily separated for purposes of apportioning hours between prevailing and
non-prevailing claims. Rather, the Court focuses on the overall results achieved by Plaintiff in
relation to the hours reasonably expended by Plaintiff’s counsel on the litigation. Having done
this, the Court finds that Plaintiff achieved only limited success, rendering the product of the
hours reasonably expended on the litigation as a whole and the reasonable hourly rates an
excessive fee recovery. While Plaintiff’s recovery on his hostile environment claim was
significant, he was unable to convince the jury that he had been discharged based on his race.
Moreover, the Court dismissed on summary judgment Plaintiff’s claims for intentional and
negligent infliction of emotional distress, as well as his state civil rights claims. At trial, the Court
granted Defendant’s Motion for Judgment as a Matter of Law on Plaintiff’s claims of negligent
training, retention, and supervision. Even though Plaintiff’s claims were “interrelated,
nonfrivolous, and raised in good faith,” we may reduce the lodestar to account for his limited
success.

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For guidance in reducing the lodestar, we turn to Bohen v. City of E. Chicago, a case involving
similar facts: plaintiff prevailed on her sexual harassment claim, but failed on her discriminatory
discharge claim. Judge Easterbrook, sitting by designation, reduced the plaintiff’s fees to
account for her limited success, but did so only by 10% across-the-board. He noted that the
same witnesses dealt with both aspects of the case and that since the claimed harassment was
extensive, it would have been necessary to examine the plaintiff’s whole period of employment
even without the discharge claim. Noting that at least some time was spent solely on the
discharge claim, though he could not say precisely how much, Judge Easterbrook concluded
that the plaintiff’s counsel would have spent about 90% of the time it did had there been no
discharge claim. The same reasoning applies here. However, the Court awards Plaintiff 80% of
the lodestar, estimating that 20% of Plaintiff's counsels’ time was devoted exclusively to the
discharge claim. Specifically, the Court finds that significant time was spent by Plaintiff
examining Defendant’s alleged early release program, which was only tangentially related to the
hostile environment claim.
Final lodestar figure adjusted for results obtained: $306,467.50 × .8 = $245,174
IV. Costs
The Court recognizes that the traditional limits on what costs may be taxed,do not apply to
requests submitted under § 1988 and that the Eleventh Circuit traditionally takes a liberal
approach when reimbursing attorney expenses. However, Plaintiff still bears the burden of
submitting a request for expenses that would enable the Court to determine what expenses
were incurred and whether Plaintiff is entitled to them. Plaintiff's entries for photocopy,
telephone, and fax charges are wholly devoid of explanation. The Court has no way of knowing
whether the rates paid for the photocopies were reasonable or even whether these expenses
were related to this action. Therefore, the Court will not tax these costs or others that lack
description. Moreover, the Court finds that the costs incurred prior to commencement of the
action are not taxable.
Having deleted expenses associated with the above-described entries, we tax $67,150.63 as
costs.
V. Conclusion
As I considered this issue, I reflected upon a letter recently received from a trial lawyer following
a discussion on civility and professionalism with the Miami Chapter of the American Board of
Trial Advocates. This lawyer stated:
It seems to me that the courts are basically facing this issue as one of education. Hence
we have seminars, guidelines and articles from both that state and federal bench
explaining what lawyers should do to be civil and professional to each other. However, I
do not think that problem is that lawyers do not know how to act in a civil manner.
Rather, I think some lawyers will simply do that with which they can get away.

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Special masters, grievance committees and educational seminars are not as effective as
a sanction for uncivil behavior.
I know our federal court is quite busy and that the time it takes to consider uncivil
behavior may have to be taken from some other pending case. However, I would submit
that eliminating uncivil behavior not only helps that case, but every other case in which
that lawyer is involved. Moreover, as the word spreads as to the price to be paid for
unprofessionalism, other lawyers and other cases will be implicated.
I believe that this reduction in attorney fees is an appropriate response to the conduct by
Plaintiff’s counsel in this case, but I am not convinced it will deter future misconduct. I frankly
considered denying fees altogether but while I have reviewed many of the depositions, I did not
observe everything that happened during the pretrial phase of the case. The reduction in
attorneys’ fees based upon misconduct of counsel is therefore approximately $358,423.20.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiff's Amended
Verified Motion for Attorney's Fees and Costs is GRANTED. Based on the foregoing we award
Plaintiff $312,324.63 in fees and costs.
Furthermore, because of the misconduct of counsel which occurred in this case, a copy of this
order shall be sent to the Florida Bar and the Peer Review Committee for the Southern District
of Florida for any action deemed appropriate.
Questions:
1. This article from the New York Post provides some additional information about the case
and the judge. Marvin Kurzban and Ira J. Kurzban were partners in a Florida law firm.
Marvin Kurzban was disciplined by the Florida Bar for his conduct in this action. In 2019,
another disciplinary complaint was filed against him, for violating an evidentiary ruling
and insulting the judge and opposing counsel. He petitioned for disciplinary revocation
without leave for readmission, and is currently disbarred in Florida. Ira Kurzban is still
practicing, teaches immigration law at the University of Miami School of Law as an
adjunct professor, and is the author of Kurzban’s Immigration Law Sourcebook.
2. Was the court justified in criticizing the conduct of Marvin and Ira Kurzban? Does it
matter that they won? Does it matter that the jury imposed substantial punitive damages
on the defendant?
3. Was the court justified in reducing the attorney’s fees and costs award? If so, did it go
too far or not far enough? Could the court have denied attorney’s fees and costs
altogether?
Limitations on Inherent Authority

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Ophelia F. Camiña
Positive Software Solutions v. New Century Mortg., 619 F. 3d 458 (5th Cir. 2010)
Summary: Positive Software filed an infringement action against New Century, which
was represented by Camiña. The district court sent the action to arbitration, then
vacated the award, because the arbitrator failed to disclose a previous relationship with
Camiña. The circuit court reversed and remanded, at which point New Century declared
bankruptcy, and the parties settled. As part of the settlement, New Century assigned its
attorney-client privilege and work product rights to Positive Software, which moved for
sanctions against Camiña, based on her actions in the arbitration. The district court
exercised its inherent authority and imposed a $10,000 sanction for acting in bad faith,
but the circuit court reversed, holding that actions in arbitration are outside the inherent
authority of the court.
JERRY E. SMITH, Circuit Judge:
Ophelia Camiña appeals the district court’s imposition of sanctions for her conduct during
arbitration. Because that court lacked inherent authority to impose those sanctions, we reverse
and remand.
I.
In 2003, Positive Software Solutions, Inc., sued New Century Mortgage Corporation for
allegedly infringing telemarketing software licensed to New Century. Ophelia Camiña, a partner
at Susman Godfrey LLP, appeared as attorney for New Century. Over Positive Software’s
objection, the district court ordered the case to arbitration in accordance with the parties’
contract.

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During arbitration, Camiña advised New Century on various discovery matters. In September
2004, the district court vacated the award because the arbitrator had failed to disclose his
previous professional relationship with Camiña. This court reversed the vacatur and remanded.
After remand, New Century declared bankruptcy. In the course of the bankruptcy proceedings,
Positive Software settled its claims against New Century, and the case was administratively
closed. Under the settlement, New Century waived and assigned to Positive Software its
attorney-client and work-product rights. The district court granted Positive Software’s demand
that Susman Godfrey LLP turn over its files for use by Positive Software in pursuing sanctions.
In March 2008, Positive Software moved for sanctions against Camiña, Barry Barnett, and
Susman Godfrey LLP under Federal Rule of Civil Procedure 37, 28 U.S.C. § 1927, and the
court’s inherent authority. In February 2009, using its purported inherent authority, the court
sanctioned Camiña $10,000, representing a portion of Positive Software's attorneys’ fees.
Camiña appeals the sanction.
III.
Camiña claims that the district court lacked inherent authority to impose sanctions for her
conduct during arbitration. In the alternative, she argues that the court employed the wrong
standard of proof in finding that she acted in bad faith, and that the sanctions were not
supported by the evidence. Because the court lacked inherent authority to sanction Camiña for
her actions during arbitration, we need not address her alternative claims.
A.
A district court has the inherent authority to impose sanctions “in order to control the litigation
before it.” The court may also use that power to sanction conduct, if it is “in direct defiance of the
sanctioning court,” or constitutes “disobedience to the orders of the Judiciary,” Inherent power,
however, “may be exercised only if essential to preserve the authority of the court.”
In Maxxam, we confirmed the limited reach of the court’s inherent authority. There the FDIC
sued Charles Hurwitz, alleging that he was responsible for the failure of a savings and loan
association. The FDIC also encouraged the Office of Thrift Supervision to pursue similar claims
in an administrative proceeding. The FDIC moved that the district court stay its case pending
completion of the OTS proceeding. When the district court denied that motion, the FDIC
continued to support the administrative action. Invoking its inherent powers, the court
sanctioned the FDIC for Hurwitz’s expenses in defending the OTS action. We reversed part of
those sanctions on the ground that the inherent power does not extend to collateral proceedings
that “do not threaten the court’s own judicial authority or proceedings.” Inherent authority “is not
a broad reservoir of power, ready at an imperial hand, but a limited source; an implied power
squeezed from the need to make the court function.”

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Here the district court distinguished Maxxam, positing that arbitration is not a collateral
proceeding but instead an “annex” to litigation. It reasoned that because the court ordered the
parties to arbitrate, it retained the authority to impose sanctions for conduct committed in
arbitration. That approach is puzzling. To begin with, arbitration is not an annex to litigation, but
an alternative method for dispute resolution. Treating arbitration as if it were an appendage to
adjudication is a mistake that would undermine the very purpose of arbitration — “the provision
of a relatively quick, efficient and informal means of private dispute settlement.” Parties agree to
arbitration to avoid litigation; they voluntarily surrender judicial remedies in favor of an
extrajudicial process.
Furthermore, the notion that the court’s inherent authority turns on whether the arbitration was
“court-ordered” is untenable. Positive Software claims that the district court retained significant
supervisory authority by virtue of ordering the parties to arbitrate. When asked, in oral argument,
whether the court would have had inherent authority to sanction Camiña if the parties had
chosen to enter arbitration at the outset, Positive Software’s counsel candidly stated, “of course
not — that’s Maxxam.” Positive Software’s distinction, then, would allow trial courts to oversee
arbitrations in which one party had to be compelled to arbitrate but not those in which both
parties complied with their arbitration agreement. Such a significant and perverse asymmetry
cannot be justified, and Positive Software’s efforts to distinguish this case from Maxxam are
unavailing.
In an attempt to rescue the sanctions order, Positive Software additionally claims that the
sanctions are based on Camiña’s direct defiance of the preliminary injunction and protective
order. That assertion, however, is belied by the court’s own explicit explanation that the
sanctioned conduct “took place in connection with the arbitration, not in connection with
discovery under the Court's supervision.” In other words, the court imposed sanctions not on
account of any direct violation of a court order, but only because it found that Camiña had
exhibited four particular instances of bad faith during arbitration.
Positive Software’s argument, therefore, fails according to the court’s own findings. Because
Camiña’s conduct was neither before the district court nor in direct defiance of its orders, the
conduct is beyond the reach of the court’s inherent authority to sanction.
B.
Not only are the sanctions at odds with our caselaw on inherent authority, but they also are in
serious tension with the Federal Arbitration Act. Under the FAA, the district court has the
authority to determine (1) whether arbitration should be compelled, and (2) whether an
arbitration award should be confirmed, vacated, or modified. Beyond those narrowly defined
procedural powers, the court has no authority to interfere with an arbitration proceeding.
Because both parties agree that their contract gave the arbitrator authority to sanction Camiña
for bad-faith conduct, the FAA counsels against the district court’s assigning itself that task.

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Positive Software cites LaPrade v. Kidder Peabody & Co., to resolve the apparent tension
between the sanction order and the FAA. In LaPrade, the district court stayed an action brought
by Linda LaPrade against her former employer because the dispute was covered by a valid
arbitration agreement. While the arbitration was pending, LaPrade’s attorney went into state
court and obtained an ex parte order staying the arbitration without informing that court of the
district court’s previous order. On the employer’s motion, the district court lifted the state court’s
stay and imposed sanctions against LaPrade’s attorneys under 28 U.S.C. § 1927 for their
“vexatious and dilatory tactics.” On appeal, the District of Columbia Circuit upheld the sanctions,
concluding that the FAA did not divest the district court of jurisdiction to enter the sanctions
order.
LaPrade, however, does not support the district court's exercise of inherent power against
Camiña. First, LaPrade held only that the FAA does not affect the district court’s jurisdiction over
a case stayed pending arbitration. But jurisdiction alone does not create the inherent power to
sanction arbitration conduct. That power must be grounded in some threat to the court’s
authority or its ability to function and must not be contrary to statute. Unlike the court in
LaPrade, which involved sanctions under a specific statutory provision, the district court here
relied only on its inherent authority, which, as noted, was not up to the task.
Furthermore, it is misleading to suggest that LaPrade’s attorneys were sanctioned for conduct in
arbitration. Instead, the court imposed sanctions for the direct violation of its order. In staying
the federal suit, the court mandated that LaPrade seek redress of her employment-related
grievances only through arbitration. By obtaining a stay of arbitration in state court, her
attorneys disregarded that order, thereby posing a threat to the federal district court’s authority.
That conduct might have been analogous to what happened here if Camiña’s sanctions had
rested on her violation of the preliminary injunction or the protective order. But as already
discussed, the district court found no such violation.
C.
Finally, and perhaps most importantly, the sanctions order threatens unduly to inflate the
judiciary’s role in arbitration. The FAA provides for minimal judicial involvement in resolving an
arbitrable dispute; the court is limited to only a few narrowly defined, largely procedural tasks.
But by using its power to sanction, a court could seize control over substantive aspects of
arbitration. The court would, in effect, become a roving commission to supervise a private
method of dispute resolution and exert authority that is reserved, by statute, caselaw, and longstanding practice, to the arbitrator. That supervision is inconsistent with the scope of inherent
authority and with federal arbitration policy, which aims to prevent courts from delaying the
resolution of disputes through alternative means.
In response, Positive Software claims that expansion of district court authority is necessary
here, because Positive Software did not discover some of Camiña’s alleged misdeeds until after
the case had been settled and administratively closed. Positive Software argues that without the
district court’s assertion of inherent authority, there would have been no means to redress

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625
Camiña's supposed wrongdoing. That argument, however, ignores at least two other
procedures that were available to Positive Software.
First, it could have asked the American Arbitration Association to re-open the proceedings so it
could request sanctions from the arbitrator. Second, it could have relied on the grievance
process. In fact, it did: Its counsel filed a grievance against Camiña, which was dismissed as
lacking just cause. Contrary to Positive Software’s contentions, then, there was no particular
need for the district court to expand its inherent authority to prevent misdeeds from falling
through the cracks.
IV.
In sum, the district court lacked inherent authority to sanction Camiña for her conduct during
arbitration. That conduct was neither before the district court nor in direct defiance of its orders.
If inherent authority were expanded to cover Camiña’s conduct, there would be nothing to
prevent courts from inserting themselves into the thicket of arbitrable issues — precisely where
they do not belong. Such an expansion would also threaten the integrity of federal arbitration
law in the name of filling a gap that does not exist. We therefore REVERSE the sanctions95 and
REMAND for any further proceedings that may be needed.
Questions:
1. Why did the circuit court hold that Camiña’s conduct was outside the scope of the district
court’s inherent authority? Why didn’t it matter that the district court had sent the action
to arbitration?
2. The district court had the authority to review at least some aspects of the arbitration.
Why didn’t that place Camiña’s conduct during the arbitration within the scope of its
inherent authority?
3. Notably, New Century was a subsidiary of New Century Financial Corporation, a real
estate investment trust, and one of the largest issuers of subprime mortgages. When
New Century filed for bankruptcy in 2007, it signaled the beginning of the subprime
mortgage crisis.
Candor to the Court

95

We do not condone Camiña’s complained-of actions as they are alleged to have occurred. The clerk is
directed to send a copy of this opinion to the Office of the General Counsel of the State Bar of Texas. We
are mindful that the State Bar declined to act on this matter in response to Positive Software’s request,
and we express no view on whether the State Bar should consider this matter further or, if it does, on
what action it should take. We opine only that the federal courts are without power to issue sanctions
under these particular facts.

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The Orlando Sentinel (Orlando, Florida), Tues., Dec. 3, 1985, at 45

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627

The Orlando Sentinel (Orlando, Florida), Fri., Jan. 10, 1986, at 149
Jorgenson v. Volusia County, 846 F. 2d 1350 (11th Cir. 1988)
Summary: Porky’s was a topless bar outside of DeLand, Florida. When Volusia County
passed an ordinance prohibiting topless bars, Porky’s challenged the constitutionality of
the ordinance, represented by Latinsky and Fendt. The standard of review of the
ordinance depended on whether Florida had delegated its powers under the 21st
Amendment to counties and municipalities. In City of Daytona Beach v. Del Percio, the
Florida Supreme Court held that it had, but Latinsky and Fendt argued that it hadn’t, and
did not cite Del Percio. The district court sanctioned them under Rule 11 for intentionally
failing to cite controlling adverse precedent and the circuit court affirmed.
PER CURIAM:
The appellants, attorneys Eric Latinsky and Fred Fendt, were sanctioned by the district court
pursuant to Fed. R. Civ. P. 11 for failing to cite adverse, controlling precedent in a memorandum
filed in support of an application for a temporary restraining order and a preliminary injunction. In

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628
the appellants’ initial appeal to this court, the case was remanded to the district court because
the court had failed to notify the attorneys in advance that it was considering sanctions, and did
not give them an opportunity to respond. On remand, the district court reaffirmed the imposition
of sanctions, and the attorneys appeal. We affirm.
Appellants filed an application in the district court for a temporary restraining order and a
preliminary injunction on behalf of their clients, who own and operate a lounge known as
“Porky’s.” In support of the application, appellants filed a memorandum of law which challenged
the validity of a Volusia County ordinance prohibiting nude or semi-nude entertainment in
commercial establishments at which alcoholic beverages are offered for sale or consumption.
The memorandum failed to discuss or cite two clearly relevant cases: City of Daytona Beach v.
Del Percio and New York State Liquor Authority v. Bellanca. We find that this failure supports
the imposition of Rule 11 sanctions in the circumstances of this case.
The field of law concerning the regulation of the sale and consumption of alcohol in connection
with nude entertainment is a narrow and somewhat specialized field. Prior to the opinion of the
Supreme Court of Florida in Del Percio, the critical question of whether the state of Florida had
delegated its powers under the Twenty-First Amendment to counties and municipalities had
gone unanswered. In some circles, that decision was long-awaited. If the state had delegated
the authority, local ordinances regulating the sale or consumption of alcohol would be entitled to
a presumption in favor of their validity which is conferred by the Twenty-First Amendment. If the
state had not delegated the authority, the ordinances would be subject to the stricter review
applicable to exercises of the general police power.
The question regarding Florida’s delegation of its powers under the Twenty-First Amendment
was answered by the Supreme court of Florida in Del Percio, a case in which one of the
appellants, Latinsky, participated. The court held that the powers had been delegated. Less
than one year later, on or about January 13, 1986, Latinsky and an associate brought the
instant suit seeking a declaration that a similar ordinance was unconstitutional and requesting a
temporary restraining order and a preliminary injunction. In their presentation to the court, the
appellants cited a number of cases describing the limits on the exercise of the general police
power. However, they did not advise the court in any way that Del Percio had been decided,
despite the fact that Del Percio required that the validity of the ordinance be judged in light of
powers retained under the Twenty-First Amendment rather than the general police power.
The appellants purported to describe the law to the district court in the hope that the description
would guide and inform the court’s decision. With apparently studied care, however, they
withheld the fact that the long-awaited decision by the Supreme Court of Florida had been
handed down. This will not do. The appellants are not redeemed by the fact that opposing
counsel subsequently cited the controlling precedent. The appellants had a duty to refrain from
affirmatively misleading the court as to the state of the law. They were not relieved of this duty
by the possibility that opposing counsel might find and cite the controlling precedent, particularly
where, as here, a temporary restraining order might have been issued ex parte.

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In this court, appellants argue that the cases were not cited because they are not controlling.
We certainly acknowledge that attorneys are legitimately entitled to press their own
interpretations of precedent, including interpretations which render particular cases inapplicable.
It is clear, however, that appellants’ attempts to show that Del Percio and Bellanca are not
controlling are simply post hoc efforts to evade the imposition of sanctions. Neither the original
complaint nor the memorandum of law filed by appellants in the district court reflect or support
the arguments they now raise. Indeed, it is likely that the arguments were not raised previously
because they are completely without merit. In the circumstances of this case, the imposition of
Rule 11 sanctions by the district court was warranted. The judgment of the district court is
affirmed.
Questions:
1. You can read newspaper articles about Porky’s here and here. After the court’s ruling in
1986, the bar changed to a “bottle club,” where patrons purchased alcohol elsewhere
and mixed their own drinks, in order to avoid the ordinance, but soon closed. You can
read a newspaper article about the disciplinary case against Latinsky and Fendt case
here. The district court accused them of “reprehensible” conduct and imposed a $500
fine. Do you think that is adequate?
2. Model Rule 3.3(a)(2) provides: “A lawyer shall not knowingly 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.” Latinsky
and Fendt argued that the action challenging the ordinance was in federal court, so the
decision of the Florida Supreme Court was not controlling. Should that have excused
their failure to cite it? What if the district court had to independently determine whether
Florida had delegated its authority?

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Board of Ethics & Conduct v. Lane, 642 N.W.2d 296 (Iowa 2002)
Summary: Lane represented Sicard in an employment discrimination action. Among
other things he filed a post-trial brief, the entire contents of which were plagiarized from
a treatise. Lane won the trial, and submitted a bill for attorney’s fees, requesting $16,000
for 80 hours drafting the post-trial brief. When the court requested documentation of the
drafting of the brief, Lane eventually submitted a list of 200 sources, from which the court
discovered his plagiarism. The court sanctioned Lane’s conduct and suspended his
license for 6 months.
STREIT, Justice.
An Iowa attorney passed someone else’s writing as his own and claimed he spent almost two
weeks writing that which he used. The Iowa Supreme Court Board of Professional Ethics and
Conduct filed a complaint with our Grievance Commission against respondent, William J. Lane,
alleging he violated several ethical rules and recommended we suspend Lane’s license to

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631
practice law for three months. We agree with the Commission's findings of misconduct but
suspend Lane’s license for six months.
I. Background Facts and Proceedings
After the conclusion of a trial in federal court in which Daniel Sicard claimed a violation of the
Americans with Disabilities Act, attorney Lane submitted a post-trial brief to the court. The legal
portion of the brief was in great part plagiarized from a treatise written by Barbara Lindemann
and Paul Grossman. Lane later applied to the court for attorney fees. Among other charges,
Lane requested compensation for eighty hours of work spent to prepare the questioned brief.
Charging $200 per hour, Lane asked for $16,000 to write the brief that was largely copied from
an uncredited source. In total, Lane requested $104,127 in attorney fees plus $13,363.29 in
costs for his representation of Sicard.
On May 5, 1998, there was a hearing on Lane’s attorney fee application. The United States
magistrate judge stated it did not appear to him that Lane wrote the legal portions of the brief.
Lane responded, “I borrowed liberally from other sources. Yes, your Honor.” The court noted,
Because of the consistency of style and the sequence of footnotes, the court assumes
that the brief is from a particular source. If the source is a published treatise, it can
simply be identified by name, author, and publisher.
To address this suspicion, the judge ordered Lane to explain or identify the sources cited in his
brief within ten days. At the end of the ten days, Lane did nothing to comply with the court’s
order. On June 4, 1998, a member of the judge’s staff asked Lane if he intended to respond to
the order. Only days later, a fire at Lane’s home destroyed many of his files and records in the
Sicard matter. In July 1998, Lane closed his office, but continued to practice out of his home.
Four months passed and Lane still did not respond to the judge’s order. On September 30,
1998, the judge entered an order awarding Lane $20,000 in fees in the Sicard case. The judge
stated “there were many serious problems with plaintiff’s fees and cost claim.” The court was
particularly concerned because Lane did not support his contention he was entitled to receive
compensation at the rate of $200 per hour for his services. Lane also requested $9000 as
compensation for the time he spent preparing his bill. The judge stated Lane requested $16,000
for the lifted brief but failed to comply with the court’s order to “disclose the sources from which
counsel ‘borrowed liberally.’” Lane also requested compensation for fifty-nine hours of legal
research preceding the trial. The court concluded
It is not reasonable to bill 59 hours of legal research in the two weeks prior to trial. If
counsel spent this amount for time performing research, it is further evidence that he
does not possess the skill and experience of those who charge $200 per hour.
The court further explained its reduction of the attorney fees awarded by citing to Lane’s
charges of $5.00 per telephone call, $1.00 per page of facsimile transmissions, $191 for long

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distance transmission, and $.50 per photocopy. Finally, the court stated Lane did not cite
authority for the ability to charge for estimated pretrial travel expenses. Lane did not appeal the
$20,000 award of attorney fees.
On October 30, 1998, Lane filed a compliance with the judge’s order to document his sources
but the judge was not made aware of the compliance until March 1999. When the judge read
Lane’s compliance he did not notice any reference to the primary source of the legal portion of
Lane’s brief. Lane’s compliance constituted four pages of single-spaced lists of authorities.
Among them was the Grossman treatise. However, no particular attention was drawn to this
source. Consequently, the judge undertook his own investigation and discovered Lane took the
legal portion of his brief verbatim from the Grossman treatise.
This complaint also involves Lane’s representation in two separate and unrelated bankruptcy
cases. The Ethics Board charged Lane with, among other violations, neglect of clients’ legal
matters, withdrawal from employment without taking reasonable steps to avoid prejudice to his
clients and without promptly refunding unearned fees, and failure to seek the lawful objectives of
his clients. The Commission found, and we agree, the Ethics Board failed to satisfy its burden to
prove Lane violated any ethical rules in representing his clients in the bankruptcy matters.
Therefore, we will only address the charges relevant to the Sicard case.
III. Complaint
The Ethics Board alleges violations of DR 1-102(A)(1), (3), (4), (5), and (6). This rule provides in
part, a lawyer shall not:
● Violate a disciplinary rule;
● Engage in illegal conduct involving moral turpitude;
● Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
● Engage in conduct that is prejudicial to the administration of justice; and
● Engage in any other conduct that adversely reflects on the fitness to practice law.
The Ethics Board also charges Lane with a violation of DR 2-106(A) which states, “a lawyer
shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.” The
Commission found Lane violated DR 1-102(A)(1), (3), (4), (5), and (6) and DR 2-106(A) by his
handling of the Sicard case.
IV. Ethical Violations
Lane plagiarized from a treatise and submitted his plagiarized work to the court as his own. This
plagiarism constituted, among other things, a misrepresentation to the court. An attorney may
not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. This issue is
akin to the matter of ghost-writing attorneys who “author pleadings and necessarily guide the
course of the litigation with unseen hand.” In this situation, an attorney authors court documents
for a pro se litigant who, in turn, submits the court document as his or her own writing. This
practice is widely condemned as unethical and a “deliberate evasion of the responsibilities

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imposed on attorneys.” Just as ghost writing constitutes a misrepresentation on the court, so
does plagiarism of the type we have before us.
Plagiarism itself is unethical. “Plagiarism, the adoption of the work of others as one’s own, does
involve an element of deceit, which reflects on an individual's honesty.” Use of “appropriated
material cannot go undisciplined, especially because honesty is so fundamental to the
functioning of the legal profession.” Undoubtedly, Lane’s plagiarism reflects poorly on both his
professional ethics and judgment.
It was not difficult to find similarity between Lane’s post-trial brief and the Grossman treatise.
The legal argument of Lane’s post-trial brief consisted of eighteen pages of plagiarized material,
including both text and footnotes, from the treatise. In copying this material, Lane cherry-picked
the relevant portions and renumbered the footnotes to reflect the altered text. Examination of
Lane’s brief does not reveal any independent labor or thought in the legal argument.
On the first occasion plagiarism became an issue, Lane appeared to be forthcoming with the
court and admitted “he borrowed liberally from other sources.” It also appears Lane attempted to
identify the source of his writing before the court but was unable to recall the exact title of the
treatise. Lane later had the chance to identify his source to the court, but when he responded to
the court's order, he failed to specifically draw the court's attention to the Grossman treatise.
Instead, Lane buried the title within a list of over 200 other sources. Though a technical
compliance with the court’s order, Lane’s continued lack of candor indicates he hoped, by
concealing the treatise among 200 other titles, the judge would not recognize the extent of
Lane’s plagiarism.
We do recognize Lane’s personal circumstances shortly after the time of the court’s order were
not ideal. Lane’s home was nearly destroyed by the fire forcing him and his family to live in a
motel for two months. However, this does not excuse his failure to comply with the court's order
in a timely fashion. We will not excuse the seriousness of passing off another’s work as one’s
own. We find the record shows Lane knowingly plagiarized and intended to deceive the court.
Equally troubling is Lane’s application for attorney fees. Lane copied the entire portion of his
legal argument out of a book and then claimed it took him eighty hours to write the brief
containing the copied material. He requested attorney fees for this work at the rate of $200 per
hour. Other than Lane’s assertions that perhaps he works less efficiently than other lawyers,
there is little in the record to indicate Lane actually spent this amount of time writing the brief.
Because he plagiarized the entire legal argument, the chances are remote that it took Lane
eighty hours to write the argument. Rather, the facts show Lane stole all eighteen pages of his
legal argument from a single source. Then to justify his request for attorney fees for the eighty
hours it took to “write” the brief, Lane submitted a list of over 200 legal sources to the court. In
doing so, Lane attempted to have the court believe he researched and relied on each of these
sources in writing the brief. These circumstances only support the conclusion Lane endeavored
to deceive the court.

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The Ethics Board argues Lane's plagiarism was part of a larger scheme to defraud the court by
means of inflated time and expense billings. When Lane requested compensation for time he
did not spend working on the case, he violated the professional rule forbidding a lawyer from
entering into an agreement for, charging, or collecting an illegal or clearly excessive fee. Even
after the plagiarism issue arose, Lane continued to assert he was entitled to receive $200 for
the eighty hours it took him to copy the material in his brief. He did not at any time admit that it
did not take, nor could it have taken him that long to simply copy his legal argument out of a
treatise. Charging such a clearly excessive bill brings Lane’s integrity into question and the
entire legal profession into disrepute.
It is important to note that Lane’s request for attorney fees in this case is not similar to cases
where the attorney is simply not awarded the fee requested. Lane relies on one particular case
in which the district court reduced the attorney's fee application of over $171,000 to $95,000.
The dispute in Lynch involved the attorney’s expenditure of time, effort, and money in
representing her client. There, the trial court properly considered several factors in reducing the
award of attorney fees. These factors included: the time necessarily spent; the difficulty of
handling and importance of the issues; the responsibility assumed and results obtained; the
standing and experience of the attorney in the profession; and the customary charges for similar
service. In Lynch, there was no suggestion of impropriety or intent to deceive the court on the
part of the attorney who submitted the fee application. Moreover, the record contained no
evidence to contradict the evidence supporting the fee application.
In many cases a fee application may not necessarily be a precise measure of the time an
attorney spent on a particular case. Ethics concerns are not unavoidably raised where the court
reduces the attorney fee award merely reflecting considerations that do not bring into question
the attorney’s honesty or integrity in submitting the fee application. On the other hand, although
ethics is not a matter of degree of misstatement—any knowing misstatement to the court being
unethical—the nature and depth of Lane’s misrepresentation speaks of knowing deception.
The record before us amply supports the conclusion Lane’s conduct rises to the level of intent to
deceive. Action based in the hopes of deceiving the court are not the same as those arising
from simple negligence or even recklessness. A lawyer who knowingly submits a fee application
to the court and thereby attempts to misrepresent the amount of time he or she spent working
on a case has committed serious ethical violations. Accordingly, we will not treat all of the cases
the same. When the fee application involves culpable conduct, the seriousness of the offense
will be considered in fashioning the appropriate sanction. We conclude the record supports the
Commission’s findings that Lane charged a clearly excessive fee in the Sicard case.
V. Discipline
In determining the proper sanction, we consider the particular facts and circumstances of each
case. Among the factors we give weight to are the need for deterrence, protection of the public,
maintenance of the reputation of the Bar as a whole, and the violator's fitness to continue to
practice law. We also consider any aggravating or mitigating circumstances.

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One such aggravating circumstance is a lawyer’s prior disciplinary history. Lane has once
before faced attorney disciplinary proceedings. In 1997, the Commission sanctioned Lane for
failing to respond to an inquiry. He was publicly reprimanded for conduct prejudicial to the
administration of justice and conduct adversely reflecting on his fitness to practice law.
A mitigating factor to consider is Lane’s recognition of some wrongdoing. Lane filed
“Respondent’s Statement” with this court. Although not evidence, we will treat this statement as
a supplemental brief. Lane stated,
I can accept that my behavior was the result of bad judgment, ignorance, even stupidity
or carelessness, or sloppiness, or any number of things, such as laziness, negligence,
arrogance, indolence, pettiness, or just plain old incompetence.
Lane asserted he did not intend to deceive the court and cited his reputation for honesty. In
support of this contention, several character witnesses testified on Lane’s behalf at the hearing
before the Commission. Despite Lane’s statements to the court, he still does not appear to
comprehend the wrongfulness of his actions. In requesting excessive and unreasonable
attorney fees for a brief he did not write, Lane was not negligent, or even reckless. Rather, more
seriously, he intended to deceive. Lane’s purported acknowledgment of misconduct fails to
recognize the full extent of his wrongdoing.
Mitigating factors alone do not overcome our responsibility to the public and to the legal
profession. Though Lane offered evidence of difficult personal circumstances, this does not
excuse his unethical conduct. Taking all of the above factors into consideration, we conclude in
cases of this type, fairness and justice require discipline be imposed to deter future misconduct,
protect the public, and maintain the reputation of the Bar as a whole. Lane’s excessive billing for
writing a largely plagiarized brief cannot go undisciplined. Honesty is fundamental to the
functioning of the legal profession, and Lane’s conduct in this case has compromised that
honesty. Moreover, Lane has jeopardized the integrity of the Bar and the public’s trust in the
legal profession. We conclude a six-month license suspension is warranted. We therefore
suspend Lane’s license to practice law in the State of Iowa, with no possibility of reinstatement
for a period of six months from the date of the filing of this opinion. Upon application for
reinstatement, Lane shall have the burden to prove he has not practiced law during the period of
suspension and that he meets the requirements of Iowa Court Rule 35.13. Any hearing on
application for reinstatement shall be at least sixty days after the filing of such application.
Questions:
1. Did the court sanction Lane for plagiarizing the contents of the brief, billing for hours he
didn’t work, or lack of candor to the court?
2. The court stated that “plagiarism itself is unethical.” Do you agree? Does it depend on
the context? The court relied on cases involving law students who plagiarized in
coursework. Is that an appropriate comparison?

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3. Lane’s plagiarized brief was apparently effective, as he won the case. As Lane’s client,
would you have been upset to learn that he plagiarized the brief, if he only billed you for
the number of hours he actually spent drafting the brief? Should the court have censured
Lane for plagiarism, if he had only billed for the number of hours he actually spent
drafting the brief?
4. Why did Lane plagiarize the treatise rather than quoting it? Would citing the treatise
have made Lane’s argument weaker or stronger?
Further Reading:
●

Brian L. Frye, Plagiarism is Not a Crime, 54 Duq. L. Rev. 133 (2016)

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6.4: Client Perjury
If the truth will hurt someone you love, tell a lie.96
Under the Model Rule of Professional Conduct 3.3, attorneys may not permit their clients to
testify falsely or introduce false evidence. And under Model Rule 4.1, attorneys may be required
to withdraw from representation, if they knows that their client has or will introduce false
evidence. As the Restatement of the Law Governing Lawyers § 120 observes, “A lawyer may
not knowingly counsel or assist a witness to testify falsely or otherwise to offer false evidence.”
What should attorneys do, if they know that their client or a witness has or will introduce false
evidence? In many cases, they can simply refuse to introduce the evidence in question. If their
client plans to lie, they can refuse to call their client, and they can counsel their client not to lie. If
their client does lie, they can ask the client to retract the false evidence. And if the client refuses,
the attorney may withdraw from representation. If the false evidence could materially affect the
outcome, the attorney must also disclose it to the court.
Criminal cases are more complicated, because criminal defendants have a constitutional right to
testify under the Sixth Amendment. Attorneys should still advise criminal defendants not to lie.
But if they know that their client intends to lie, some jurisdiction permit the client to testify in
narrative form, so long as the attorney does not rely on the perjured testimony.
Some legal scholars, most notably the late Monroe Freedman, argue that an attorney’s duty of
loyalty to the client must trump the attorney’s duty of candor to the court. Accordingly, attorneys
should put criminal clients on the stand without notifying the court, even if they know the client
will testify falsely. A few scholars argue that attorneys should simply refuse to call their client at
all, if they know the client plans to lie.
Each time I was wrong or each time that I lied or somebody made me scared, I would simply
report them to Rosemary Woods, and she would make them disappear.97
Model Rule 3.3: Candor Toward the Tribunal
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; or
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

96
97

The Chromatics, Tell a Lie (1956).
Bill Horwitz, If I Had a Friend Like Rosemary Woods, Lies, Lies, Lies (1975).

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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.
d. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to
the lawyer that will enable the tribunal to make an informed decision, whether or not the
facts are adverse.
Model Rule 3.3: Comments
5. Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows
to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s
obligation as an officer of the court to prevent the trier of fact from being misled by false
evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the
purpose of establishing its falsity.
6. If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce
false evidence, the lawyer should seek to persuade the client that the evidence should
not be offered. If the persuasion is ineffective and the lawyer continues to represent the
client, the lawyer must refuse to offer the false evidence. If only a portion of a witness's
testimony will be false, the lawyer may call the witness to testify but may not elicit or
otherwise permit the witness to present the testimony that the lawyer knows is false.
7. The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense
counsel in criminal cases. In some jurisdictions, however, courts have required counsel
to present the accused as a witness or to give a narrative statement if the accused so
desires, even if counsel knows that the testimony or statement will be false. The
obligation of the advocate under the Rules of Professional Conduct is subordinate to
such requirements.
8. The prohibition against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude
its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however,
can be inferred from the circumstances. Thus, although a lawyer should resolve doubts
about the veracity of testimony or other evidence in favor of the client, the lawyer cannot
ignore an obvious falsehood.
9. Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer
knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the
lawyer reasonably believes is false. Offering such proof may reflect adversely on the
lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's

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effectiveness as an advocate. Because of the special protections historically provided
criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the
testimony of such a client where the lawyer reasonably believes but does not know that
the testimony will be false. Unless the lawyer knows the testimony will be false, the
lawyer must honor the client’s decision to testify.
Model Rule 4.1: Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
a. make a false statement of material fact or law to a third person; or
b. fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited.
Model Rule 4.1: Comments
Crime or Fraud by Client
1. Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct
that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific
application of the principle set forth in Rule 1.2(d) and addresses the situation where a
client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer
can avoid assisting a client’s crime or fraud by withdrawing from the representation.
Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal
and to disaffirm an opinion, document, affirmation or the like. In extreme cases,
substantive law may require a lawyer to disclose information relating to the
representation to avoid being deemed to have assisted the client’s crime or fraud. If the
lawyer can avoid assisting a client’s crime or fraud only by disclosing this information,
then under paragraph (b) the lawyer is required to do so, unless the disclosure is
prohibited by Rule 1.6.
Restatement (Third) of the Law Governing Lawyers § 120 (2000): False Testimony or
Evidence
1. A lawyer may not:
a. knowingly counsel or assist a witness to testify falsely or otherwise to offer false
evidence;
b. knowingly make a false statement of fact to the tribunal;
c. offer testimony or other evidence as to an issue of fact known by the lawyer to be
false.
2. If a lawyer has offered testimony or other evidence as to a material issue of fact and
comes to know of its falsity, the lawyer must take reasonable remedial measures and
may disclose confidential client information when necessary to take such a measure.

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3. A lawyer may refuse to offer testimony or other evidence that the lawyer reasonably
believes is false, even if the lawyer does not know it to be false.
Further Reading:
●
●

●
●
●
●
●
●

Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent
Harm, 70 Iowa L. Rev. 1091 (1985)
H. Lowell Brown, The Dilemma of Corporate Counsel Faced with Client Misconduct:
Disclosure of Client Confidences or Constructive Discharge, 44 Buffalo L. Rev. 777
(1996)
Thomas L. Shaffer, On Lying for Clients, 71 Notre Dame L. Rev. 195 (1995-1996)
Richard H. Underwood, Perjury! The Charges and the Defenses, 36 Duq. L. Rev. 715
(1998)
Barry Adler, The Ethics of Perjury, 71 ABA Journal 76 (November 1985)
Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The
Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966)
Monroe H. Freedman, Getting Honest About Client Perjury, 21 Geo. J. Legal Ethics 133
(2008)
Ray McKoski, Prospective Perjury by a Criminal Defendant: It’s All about the Lawyer, 44
Ariz. St. L.J. 1575 (2012)

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Nix v. Whiteside Courtroom Drawing
Nix v. Whiteside, 475 U.S. 157 (1986)
Summary: Emmanuel Charles Whiteside was charged with the murder of Calvin Love,
and was represented by Gary L. Robinson and Donna Paulsen. Whiteside pleaded selfdefense. Initially, he told Robinson that he believed Love had a gun, but had not actually
seen one. Later, he told Robinson that he had seen “something metallic.” Robinson
advised Whiteside that this testimony would be perjury, and that he would inform the
court and withdraw from representation if Whiteside committed perjury. Whiteside did not
testify that he had seen “something metallic,” and was convicted of second-degree
murder. The Supreme Court of Iowa affirmed the conviction. Whiteside filed a federal
habeas petition alleging ineffective assistance of counsel. The district court denied the
writ, but the circuit court reversed. The Supreme Court granted certiorari and reversed,

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holding that criminal defendant does not have a right to commit perjury, so Whiteside’s
right to counsel was not infringed.
We granted certiorari to decide whether the Sixth Amendment right of a criminal defendant to
assistance of counsel is violated when an attorney refuses to cooperate with the defendant in
presenting perjured testimony at his trial.
Whiteside was convicted of second-degree murder by a jury verdict which was affirmed by the
Iowa courts. The killing took place on February 8, 1977, in Cedar Rapids, Iowa. Whiteside and
two others went to one Calvin Love’s apartment late that night, seeking marihuana. Love was in
bed when Whiteside and his companions arrived; an argument between Whiteside and Love
over the marihuana ensued. At one point, Love directed his girlfriend to get his “piece,” and at
another point got up, then returned to his bed. According to Whiteside’s testimony, Love then
started to reach under his pillow and moved toward Whiteside. Whiteside stabbed Love in the
chest, inflicting a fatal wound.
Whiteside was charged with murder, and when counsel was appointed he objected to the
lawyer initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly
been a prosecutor. Gary L. Robinson was then appointed and immediately began an
investigation. Whiteside gave him a statement that he had stabbed Love as the latter “was
pulling a pistol from underneath the pillow on the bed.” Upon questioning by Robinson, however,
Whiteside indicated that he had not actually seen a gun, but that he was convinced that Love
had a gun. No pistol was found on the premises; shortly after the police search following the
stabbing, which had revealed no weapon, the victim’s family had removed all of the victim’s
possessions from the apartment. Robinson interviewed Whiteside’s companions who were
present during the stabbing, and none had seen a gun during the incident. Robinson advised
Whiteside that the existence of a gun was not necessary to establish the claim of self-defense,
and that only a reasonable belief that the victim had a gun nearby was necessary even though
no gun was actually present.
Until shortly before trial, Whiteside consistently stated to Robinson that he had not actually seen
a gun, but that he was convinced that Love had a gun in his hand. About a week before trial,
during preparation for direct examination, Whiteside for the first time told Robinson and his
associate Donna Paulsen that he had seen something “metallic” in Love's hand. When asked
about this, Whiteside responded:
In Howard Cook’s case there was a gun. If I don’t say I saw a gun, I’m dead.
Robinson told Whiteside that such testimony would be perjury and repeated that it was not
necessary to prove that a gun was available but only that Whiteside reasonably believed that he
was in danger. On Whiteside’s insisting that he would testify that he saw “something metallic”
Robinson told him, according to Robinson's testimony:

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We could not allow him to testify falsely because that would be perjury, and as officers of
the court we would be suborning perjury if we allowed him to do it. I advised him that if
he did do that it would be my duty to advise the Court of what he was doing and that I
felt he was committing perjury; also, that I probably would be allowed to attempt to
impeach that particular testimony.
Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted
on committing perjury.
Whiteside testified in his own defense at trial and stated that he “knew” that Love had a gun and
that he believed Love was reaching for a gun and he had acted swiftly in self-defense. On
cross-examination, he admitted that he had not actually seen a gun in Love’s hand. Robinson
presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that
the police search of the apartment may have been careless, and that the victim’s family had
removed everything from the apartment shortly after the crime. Robinson presented this
evidence to show a basis for Whiteside’s asserted fear that Love had a gun.
The jury returned a verdict of second-degree murder, and Whiteside moved for a new trial,
claiming that he had been deprived of a fair trial by Robinson’s admonitions not to state that he
saw a gun or “something metallic.” The trial court held a hearing, heard testimony by Whiteside
and Robinson, and denied the motion. The trial court made specific findings that the facts were
as related by Robinson.
The Supreme Court of Iowa affirmed respondent’s conviction. That court held that the right to
have counsel present all appropriate defenses does not extend to using perjury, and that an
attorney’s duty to a client does not extend to assisting a client in committing perjury. Relying on
the Iowa Code of Professional Responsibility for Lawyers, which expressly prohibits an attorney
from using perjured testimony, and the Iowa Code, which criminalizes subornation of perjury,
the Iowa court concluded that not only were Robinson’s actions permissible, but were required.
The court commended “both Mr. Robinson and Ms. Paulsen for the high ethical manner in which
this matter was handled.”
Whiteside then petitioned for a writ of habeas corpus in the United States District Court for the
Southern District of Iowa. In that petition Whiteside alleged that he had been denied effective
assistance of counsel and of his right to present a defense by Robinson’s refusal to allow him to
testify as he had proposed. The District Court denied the writ. Accepting the state trial court’s
factual finding that Whiteside’s intended testimony would have been perjurious, it concluded that
there could be no grounds for habeas relief since there is no constitutional right to present a
perjured defense.
The United States Court of Appeals for the Eighth Circuit reversed and directed that the writ of
habeas corpus be granted. The Court of Appeals accepted the findings of the trial judge,
affirmed by the Iowa Supreme Court, that trial counsel believed with good cause that Whiteside
would testify falsely and acknowledged that under Harris v. New York, a criminal defendant's

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privilege to testify in his own behalf does not include a right to commit perjury. Nevertheless, the
court reasoned that an intent to commit perjury, communicated to counsel, does not alter a
defendant’s right to effective assistance of counsel and that Robinson’s admonition to Whiteside
that he would inform the court of Whiteside’s perjury constituted a threat to violate the attorney’s
duty to preserve client confidences. According to the Court of Appeals, this threatened violation
of client confidences breached the standards of effective representation set down in Strickland
v. Washington. The court also concluded that Strickland’s prejudice requirement was satisfied
by an implication of prejudice from the conflict between Robinson’s duty of loyalty to his client
and his ethical duties. A petition for rehearing en banc was denied. We granted certiorari and
we reverse.
A
The right of an accused to testify in his defense is of relatively recent origin. Until the latter part
of the preceding century, criminal defendants in this country, as at common law, were
considered to be disqualified from giving sworn testimony at their own trial by reason of their
interest as a party to the case. Iowa was among the states that adhered to this rule of
disqualification.
By the end of the 19th century, however, the disqualification was finally abolished by statute in
most states and in the federal courts. Although this Court has never explicitly held that a
criminal defendant has a due process right to testify in his own behalf, cases in several Circuits
have so held, and the right has long been assumed. We have also suggested that such a right
exists as a corollary to the Fifth Amendment privilege against compelled testimony.
B.
We turn next to the question presented: the definition of the range of “reasonable professional”
responses to a criminal defendant client who informs counsel that he will perjure himself on the
stand. We must determine whether, in this setting, Robinson’s conduct fell within the wide range
of professional responses to threatened client perjury acceptable under the Sixth Amendment.
In Strickland, we recognized counsel’s duty of loyalty and his “overarching duty to advocate the
defendant’s cause.” Plainly, that duty is limited to legitimate, lawful conduct compatible with the
very nature of a trial as a search for truth. Although counsel must take all reasonable lawful
means to attain the objectives of the client, counsel is precluded from taking steps or in any way
assisting the client in presenting false evidence or otherwise violating the law. This principle has
consistently been recognized in most unequivocal terms by expositors of the norms of
professional conduct since the first Canons of Professional Ethics were adopted by the
American Bar Association in 1908. The 1908 Canon 32 provided:
No client, corporate or individual, however powerful, nor any cause, civil or political,
however important, is entitled to receive nor should any lawyer render any service or
advice involving disloyalty to the law whose ministers we are, or disrespect of the judicial
office, which we are bound to uphold, or corruption of any person or persons exercising

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a public office or private trust, or deception or betrayal of the public. He must observe
and advise his client to observe the statute law.
Of course, this Canon did no more than articulate centuries of accepted standards of conduct.
Similarly, Canon 37, adopted in 1928, explicitly acknowledges as an exception to the attorney’s
duty of confidentiality a client's announced intention to commit a crime:
The announced intention of a client to commit a crime is not included within the
confidences which the attorney is bound to respect.
These principles have been carried through to contemporary codifications of an attorney’s
professional responsibility. Disciplinary Rule 7-102 of the Model Code of Professional
Responsibility (1980), entitled “Representing a Client Within the Bounds of the Law,” provides:
(A) In his representation of a client, a lawyer shall not:
(4) Knowingly use perjured testimony or false evidence.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or
fraudulent.
This provision has been adopted by Iowa, and is binding on all lawyers who appear in its courts.
The more recent Model Rules of Professional Conduct (1983) similarly admonish attorneys to
obey all laws in the course of representing a client:
RULE 1.2 Scope of Representation
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the
lawyer knows is criminal or fraudulent.
Both the Model Code of Professional Responsibility and the Model Rules of Professional
Conduct also adopt the specific exception from the attorney-client privilege for disclosure of
perjury that his client intends to commit or has committed. Indeed, both the Model Code and the
Model Rules do not merely authorize disclosure by counsel of client perjury; they require such
disclosure.
These standards confirm that the legal profession has accepted that an attorney’s ethical duty to
advance the interests of his client is limited by an equally solemn duty to comply with the law
and standards of professional conduct; it specifically ensures that the client may not use false
evidence. This special duty of an attorney to prevent and disclose frauds upon the court derives
from the recognition that perjury is as much a crime as tampering with witnesses or jurors by
way of promises and threats, and undermines the administration of justice. The offense of
perjury was a crime recognized at common law, and has been made a felony in most states by
statute, including Iowa. An attorney who aids false testimony by questioning a witness when
perjurious responses can be anticipated risks prosecution for subornation of perjury.

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It is universally agreed that at a minimum the attorney’s first duty when confronted with a
proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of
conduct. Withdrawal of counsel when this situation arises at trial gives rise to many difficult
questions including possible mistrial and claims of double jeopardy.
The essence of the brief amicus of the American Bar Association reviewing practices long
accepted by ethical lawyers is that under no circumstance may a lawyer either advocate or
passively tolerate a client's giving false testimony. This, of course, is consistent with the
governance of trial conduct in what we have long called “a search for truth.” The suggestion
sometimes made that “a lawyer must believe his client, not judge him” in no sense means a
lawyer can honorably be a party to or in any way give aid to presenting known perjury.
Considering Robinson’s representation of respondent in light of these accepted norms of
professional conduct, we discern no failure to adhere to reasonable professional standards that
would in any sense make out a deprivation of the Sixth Amendment right to counsel. Whether
Robinson’s conduct is seen as a successful attempt to dissuade his client from committing the
crime of perjury, or whether seen as a “threat” to withdraw from representation and disclose the
illegal scheme, Robinson’s representation of Whiteside falls well within accepted standards of
professional conduct and the range of reasonable professional conduct acceptable under
Strickland.
The Court of Appeals assumed for the purpose of the decision that Whiteside would have given
false testimony had counsel not intervened; its opinion denying a rehearing en banc states:
We presume that appellant would have testified falsely. Counsel’s actions prevented
Whiteside from testifying falsely. We hold that counsel’s action deprived appellant of due
process and effective assistance of counsel. Counsel's actions also impermissibly
compromised appellant’s right to testify in his own defense by conditioning continued
representation by counsel and confidentiality upon appellant's restricted testimony.
While purporting to follow Iowa’s highest court “on all questions of state law,” the Court of
Appeals reached its conclusions on the basis of federal constitutional due process and right to
counsel.
The Court of Appeals’ holding that Robinson’s “action deprived Whiteside of due process and
effective assistance of counsel” is not supported by the record since Robinson’s action, at most,
deprived Whiteside of his contemplated perjury. Nothing counsel did in any way undermined
Whiteside’s claim that he believed the victim was reaching for a gun. Similarly, the record gives
no support for holding that Robinson’s action “also impermissibly compromised Whiteside’s right
to testify in his own defense by conditioning continued representation and confidentiality upon
Whiteside’s restricted testimony.” The record in fact shows the contrary: (a) that Whiteside did
testify, and (b) he was “restricted” or restrained only from testifying falsely and was aided by
Robinson in developing the basis for the fear that Love was reaching for a gun. Robinson
divulged no client communications until he was compelled to do so in response to Whiteside’s

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post-trial challenge to the quality of his performance. We see this as a case in which the
attorney successfully dissuaded the client from committing the crime of perjury.
Paradoxically, even while accepting the conclusion of the Iowa trial court that Whiteside’s
proposed testimony would have been a criminal act, the Court of Appeals held that Robinson’s
efforts to persuade Whiteside not to commit that crime were improper, first, as forcing an
impermissible choice between the right to counsel and the right to testify; and, second, as
compromising client confidences because of Robinson’s threat to disclose the contemplated
perjury. Whatever the scope of a constitutional right to testify, it is elementary that such a right
does not extend to testifying falsely. In Harris v. New York, we assumed the right of an accused
to testify “in his own defense, or to refuse to do so” and went on to hold:
That privilege cannot be construed to include the right to commit perjury. Having
voluntarily taken the stand, petitioner was under an obligation to speak truthfully.
In Harris we held the defendant could be impeached by prior contrary statements which had
been ruled inadmissible under Miranda v. Arizona. Harris and other cases make it crystal clear
that there is no right whatever -- constitutional or otherwise -- for a defendant to use false
evidence.
The paucity of authority on the subject of any such “right” may be explained by the fact that such
a notion has never been responsibly advanced; the right to counsel includes no right to have a
lawyer who will cooperate with planned perjury. A lawyer who would so cooperate would be at
risk of prosecution for suborning perjury, and disciplinary proceedings, including suspension or
disbarment.
Robinson’s admonitions to his client can in no sense be said to have forced respondent into an
impermissible choice between his right to counsel and his right to testify as he proposed for
there was no permissible choice to testify falsely. For defense counsel to take steps to persuade
a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his
right to counsel nor the right to testify truthfully. In United States v. Havens, we made clear that
“when defendants testify, they must testify truthfully or suffer the consequences.” When an
accused proposes to resort to perjury or to produce false evidence, one consequence is the risk
of withdrawal of counsel.
On this record, the accused enjoyed continued representation within the bounds of reasonable
professional conduct and did in fact exercise his right to testify; at most he was denied the right
to have the assistance of counsel in the presentation of false testimony. Similarly, we can
discern no breach of professional duty in Robinson’s admonition to respondent that he would
disclose respondent’s perjury to the court. The crime of perjury in this setting is indistinguishable
in substance from the crime of threatening or tampering with a witness or a juror. A defendant
who informed his counsel that he was arranging to bribe or threaten witnesses or members of
the jury would have no “right” to insist on counsel’s assistance or silence. Counsel would not be
limited to advising against that conduct. An attorney's duty of confidentiality, which totally covers

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the client’s admission of guilt, does not extend to a client’s announced plans to engage in future
criminal conduct. In short, the responsibility of an ethical lawyer, as an officer of the court and a
key component of a system of justice, dedicated to a search for truth, is essentially the same
whether the client announces an intention to bribe or threaten witnesses or jurors or to commit
or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.
The rule adopted by the Court of Appeals, which seemingly would require an attorney to remain
silent while his client committed perjury, is wholly incompatible with the established standards of
ethical conduct and the laws of Iowa and contrary to professional standards promulgated by that
State. The position advocated by petitioner, on the contrary, is wholly consistent with the Iowa
standards of professional conduct and law, with the overwhelming majority of courts, and with
codes of professional ethics. Since there has been no breach of any recognized professional
duty, it follows that there can be no deprivation of the right to assistance of counsel under the
Strickland standard.
Conclusion
Whiteside’s attorney treated Whiteside’s proposed perjury in accord with professional
standards, and since Whiteside’s truthful testimony could not have prejudiced the result of his
trial, the Court of Appeals was in error to direct the issuance of a writ of habeas corpus and
must be reversed.
JUSTICE BRENNAN, concurring in the judgment.
This Court has no constitutional authority to establish rules of ethical conduct for lawyers
practicing in the state courts. Nor does the Court enjoy any statutory grant of jurisdiction over
legal ethics.
Accordingly, it is not surprising that the Court emphasizes that it “must be careful not to narrow
the wide range of conduct acceptable under the Sixth Amendment so restrictively as to
constitutionalize particular standards of professional conduct and thereby intrude into the state’s
proper authority to define and apply the standards of professional conduct applicable to those it
admits to practice in its courts.” I read this as saying in another way that the Court cannot tell
the States or the lawyers in the States how to behave in their courts, unless and until federal
rights are violated.
Unfortunately, the Court seems unable to resist the temptation of sharing with the legal
community its vision of ethical conduct. But let there be no mistake: the Court’s essay regarding
what constitutes the correct response to a criminal client’s suggestion that he will perjure himself
is pure discourse without force of law. As JUSTICE BLACKMUN observes, that issue is a thorny
one, but it is not an issue presented by this case. Lawyers, judges, bar associations, students,
and others should understand that the problem has not now been “decided.”

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I join JUSTICE BLACKMUN’s concurrence because I agree that respondent has failed to prove
the kind of prejudice necessary to make out a claim under Strickland v. Washington.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE
STEVENS join, concurring in the judgment.
How a defense attorney ought to act when faced with a client who intends to commit perjury at
trial has long been a controversial issue. But I do not believe that a federal habeas corpus case
challenging a state criminal conviction is an appropriate vehicle for attempting to resolve this
thorny problem. When a defendant argues that he was denied effective assistance of counsel
because his lawyer dissuaded him from committing perjury, the only question properly
presented to this Court is whether the lawyer’s actions deprived the defendant of the fair trial
which the Sixth Amendment is meant to guarantee. Since I believe that the respondent in this
case suffered no injury justifying federal habeas relief, I concur in the Court's judgment.
I
On February 7, 1977, Emmanual Charles Whiteside stabbed Calvin Love to death. At trial,
Whiteside claimed self-defense. On direct examination, he testified that Love’s bedroom, where
the stabbing had occurred, was “very much dark, and that he had stabbed Love during an
argument because he believed that Love was about to attack him with a weapon:
Q. Did you think that Calvin had a gun?
A. Most definitely I thought that.
Q. Why did you think that?
A. Because of Calvin's reputation, his brother’s reputation, because of the prior
conversation that Calvin and I had, I didn’t have no other choice but to think he had a
gun. And when he told his girlfriend to give him his piece, I couldn’t retreat.
Whiteside’s testimony was consistent with that of other witnesses who testified that the room
was dark, and that Love had asked his girlfriend to get his “piece” (which they all believed
referred to a weapon). No gun, however, was ever found.
Whiteside, who had been charged with first-degree murder, was convicted of second-degree
murder, and sentenced to 40 years’ imprisonment. He moved for a new trial, contending that his
court-appointed attorneys, Gary Robinson and Donna Paulsen, had improperly coerced his
testimony. Whiteside now claimed that he had seen a gun, but had been prevented from
testifying to this fact.
At an evidentiary hearing on this motion, Whiteside testified that he had told Robinson at their
first meeting that he had seen a weapon in Love’s hand. Some weeks later, Robinson informed
Whiteside that the weapon could not be found and, according to Whiteside, told him to say only
that he thought he had seen a gun, rather than that he in fact had seen one. Whiteside “got the

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impression at one time that maybe if I didn’t go along with — with what was happening, that it
was no gun being involved, maybe that he will pull out of my trial.”
Robinson’s testimony contradicted Whiteside’s. According to Robinson, Whiteside did not
initially claim to have seen a gun, but rather claimed only that he was convinced Love had had
one. Roughly a week before the trial, however, in the course of reviewing Whiteside’s testimony,
Whiteside “made reference to seeing something ‘metallic’ I don't think he ever did say a gun”:
And at the end Donna asked him about that, because that was the first time it had ever
been mentioned either to her or to myself. His response to that was, “in Howard Cook's
case there was a gun. If I don’t say I saw a gun, I’m dead.” I explained to him at that time
that it was not necessary that the gun be physically present for self-defense, one; two,
that to say that would be perjury on his part because he had never at any time indicated
that there was a gun; three, that we could not allow him to do that; four, I advised him
that if he did do that it would be my duty to advise the Court of what he was doing; also,
that I probably would be allowed to attempt to impeach that particular testimony. I told
him that there was no need for him to lie about what had happened, that he had a good
and valid defense on the facts as he had related them to us, and we felt we could
present a good self-defense case on the facts he had stated to us.
Robinson acknowledged that Whiteside’s claim of self-defense would have been stronger had
the gun been found, but explained that at trial “we tried to create a gun,” through testimony from
people who had seen Love carrying a gun on other occasions, through a stipulation that Love
had been convicted of possession of a weapon, and through suggestions made during crossexamination of the State’s witnesses that the initial police search had been too cursory to
discover the weapon and that Love’s girlfriend had removed it from the apartment prior to a
second, more thorough, search.
The trial court rejected Whiteside’s motion for a new trial, “finding the facts to be as testified to
by Ms. Paulsen and Mr. Robinson.” The Iowa Supreme Court affirmed.
Whiteside then sought federal habeas relief in the United States District Court for the Southern
District of Iowa. The parties agreed to rest on the record made in the state-court proceedings.
Chief Judge Stuart held that the trial judge’s factual finding that Whiteside would have
committed perjury had he testified at trial actually to having seen a gun was fairly supported by
the record and thus entitled to a presumption of correctness. Since Whiteside had no
constitutional right to perjure himself, he had been denied neither a fair trial nor effective
assistance of counsel.
The Court of Appeals for the Eighth Circuit reversed. The court recognized that the issue before
it was not whether Robinson had behaved ethically,98 but rather whether Whiteside had been
98

The court stated:
That question is governed solely by the Iowa Code of Professional Responsibility, as it was in
effect at the time of the trial in this case, and as it has been authoritatively interpreted by the

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deprived of effective assistance of counsel. In the Court of Appeals’ view, Robinson had
breached the obligations of confidentiality and zealous advocacy imposed on defense counsel
by the Sixth Amendment. In addition, the Court of Appeals concluded that Robinson’s actions
impermissibly compromised Whiteside's constitutional right to testify in his own behalf by
conditioning continued representation and confidentiality on Whiteside’s limiting his testimony.
The court recognized that, under Strickland v. Washington, a defendant must normally
demonstrate both that his attorney’s behavior was professionally unreasonable and that he was
prejudiced by his attorney’s unprofessional behavior. But it noted that Strickland v. Washington
had recognized a “limited” presumption of prejudice when counsel is burdened by an actual
conflict of interest that adversely affects his performance. Here, Whiteside had shown that
Robinson’s obligations under the Iowa Code of Professional Responsibility conflicted with his
client’s wishes, and his threat to testify against Whiteside had adversely affected Whiteside by
“undermining the fundamental trust between lawyer and client” necessary for effective
representation.
Petitioner’s motion for rehearing en banc was denied by a vote of 5 to 4. In dissent, Judge John
R. Gibson, joined by Judges Ross, Fagg, and Bowman, argued that Whiteside had failed to
show cognizable prejudice. Cuyler v. Sullivan was inapposite, both because finding a conflict of
interest required making the untenable assumption that Whiteside possessed the right to testify
falsely and because Robinson’s threat had had no adverse effect on the trial since Whiteside
testified fully in his defense. Moreover, the result of the proceeding should not have been
different had Whiteside been permitted to testify as he wished.
A separate dissent by Judge Fagg, joined by Judges Ross, John R. Gibson, and Bowman,
addressed the performance prong of Strickland. Robinson’s admonition to Whiteside to testify
truthfully simply could not be viewed as creating a conflict of interest; Robinson presented a full
and zealous defense at trial; and, although Robinson’s warning to Whiteside may have been
“strident,” he had communicated with his client in a manner the client understood.
II
A
The District Court found that the trial judge’s statement that “I find the facts to be as testified to
by Ms. Paulsen and Mr. Robinson” was a factual finding that Whiteside “would have perjured
himself if he had testified at trial that he actually saw a gun in his victim's hand.” This factual
finding by the state court is entitled to a presumption of correctness, which Whiteside has not
overcome.

Supreme Court of Iowa. The Supreme Court of Iowa is the last word on all questions of state law,
and the Code of Professional Responsibility is a species of state law.
Thus, the court declined to address the question whether Robinson's actions were either compelled or
condoned by Iowa law.

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Respondent has never attempted to rebut the presumption by claiming that the factfinding
procedure employed by Iowa in considering new trial motions in any sense deprived him of a full
and fair hearing or failed to provide a sufficient basis for denying his motion. Although
respondent’s argument to this Court in large part assumes that the precluded testimony would
have been false, he contends, first, that the record does not fairly support the conclusion that he
intended to perjure himself because he claimed in his first written statement that Love had been
pulling a pistol from under a pillow at the time of the stabbing, and, second, that whether
Robinson had sufficient knowledge to conclude he was going to commit perjury was a mixed
question of law and fact to which the presumption of correctness does not apply.
Neither contention overcomes the presumption of correctness due the state court’s finding.
First, the trial judge's implicit decision not to credit the written statement is fairly supported by
Robinson's testimony that the written statement had not been prepared by Whiteside alone and
that, from the time of their initial meeting until the week before trial, Whiteside never again
claimed to have seen a gun. Second, the finding properly accorded a presumption of
correctness by the courts below was that Whiteside’s “proposed testimony would have been
deliberately untruthful.” The lower courts did not purport to presume the correctness of the Iowa
Supreme Court’s holding concerning the mixed question respondent identifies — whether
Robinson’s response to Whiteside’s proposed testimony deprived Whiteside of effective
representation.
B
The Court approaches this case as if the performance-and-prejudice standard requires us in
every case to determine “the perimeters of the range of reasonable professional assistance, but
Strickland v. Washington explicitly contemplates a different course:
Although we have discussed the performance component of an ineffectiveness claim
prior to the prejudice component, there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or even to address both
components of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.
In this case, respondent has failed to show any legally cognizable prejudice. Nor, as is
discussed below, is this a case in which prejudice should be presumed.
The touchstone of a claim of prejudice is an allegation that counsel’s behavior did something “to
deprive the defendant of a fair trial, a trial whose result is reliable.” The only effect Robinson’s
threat had on Whiteside’s trial is that Whiteside did not testify, falsely, that he saw a gun in
Love’s hand. Thus, this Court must ask whether its confidence in the outcome of Whiteside’s

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trial is in any way undermined by the knowledge that he refrained from presenting false
testimony.
This Court long ago noted: “All perjured relevant testimony is at war with justice, since it may
produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the
sole ultimate objective of a trial.” When the Court has been faced with a claim by a defendant
concerning prosecutorial use of such evidence, it has “consistently held that a conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set
aside if there is any reasonable likelihood that the false testimony could have affected the
judgment of the jury.” Similarly, the Court has viewed a defendant’s use of such testimony as so
antithetical to our system of justice that it has permitted the prosecution to introduce otherwise
inadmissible evidence to combat it. The proposition that presenting false evidence could
contribute to (or that withholding such evidence could detract from) the reliability of a criminal
trial is simply untenable.
It is no doubt true that juries sometimes have acquitted defendants who should have been
convicted, and sometimes have based their decisions to acquit on the testimony of defendants
who lied on the witness stand. It is also true that the Double Jeopardy Clause bars the
reprosecution of such acquitted defendants, although on occasion they can be prosecuted for
perjury. But the privilege every criminal defendant has to testify in his own defense “cannot be
construed to include the right to commit perjury.” To the extent that Whiteside’s claim rests on
the assertion that he would have been acquitted had he been able to testify falsely, Whiteside
claims a right the law simply does not recognize. “A defendant has no entitlement to the luck of
a lawless decisionmaker, even if a lawless decision cannot be reviewed.” Since Whiteside was
deprived of neither a fair trial nor any of the specific constitutional rights designed to guarantee
a fair trial, he has suffered no prejudice.
The Court of Appeals erred in concluding that prejudice should have been presumed. Strickland
v. Washington found such a presumption appropriate in a case where an attorney labored under
“an actual conflict of interest that adversely affected his performance.” In this case, however, no
actual conflict existed. I have already discussed why Whiteside had no right to Robinson’s help
in presenting perjured testimony. Moreover, Whiteside has identified no right to insist that
Robinson keep confidential a plan to commit perjury. The prior cases where this Court has
reversed convictions involved conflicts that infringed a defendant’s legitimate interest in vigorous
protection of his constitutional rights. Here, Whiteside had no legitimate interest that conflicted
with Robinson’s obligations not to suborn perjury and to adhere to the Iowa Code of
Professional Responsibility.
In addition, the lawyer’s interest in not presenting perjured testimony was entirely consistent
with Whiteside’s best interest. If Whiteside had lied on the stand, he would have risked a future
perjury prosecution. Moreover, his testimony would have been contradicted by the testimony of
other eyewitnesses and by the fact that no gun was ever found. In light of that impeachment, the
jury might have concluded that Whiteside lied as well about his lack of premeditation and thus
might have convicted him of first-degree murder. And if the judge believed that Whiteside had

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lied, he could have taken Whiteside’s perjury into account in setting the sentence. In the face of
these dangers, an attorney could reasonably conclude that dissuading his client from
committing perjury was in the client’s best interest and comported with standards of professional
responsibility. In short, Whiteside failed to show the kind of conflict that poses a danger to the
values of zealous and loyal representation embodied in the Sixth Amendment. A presumption of
prejudice is therefore unwarranted.
C
In light of respondent’s failure to show any cognizable prejudice, I see no need to “grade
counsel’s performance.” The only federal issue in this case is whether Robinson’s behavior
deprived Whiteside of the effective assistance of counsel; it is not whether Robinson’s behavior
conformed to any particular code of legal ethics.
Whether an attorney’s response to what he sees as a client's plan to commit perjury violates a
defendant's Sixth Amendment rights may depend on many factors: how certain the attorney is
that the proposed testimony is false, the stage of the proceedings at which the attorney
discovers the plan, or the ways in which the attorney may be able to dissuade his client, to
name just three. The complex interaction of factors, which is likely to vary from case to case,
makes inappropriate a blanket rule that defense attorneys must reveal, or threaten to reveal, a
client's anticipated perjury to the court. Except in the rarest of cases, attorneys who adopt “the
role of the judge or jury to determine the facts,” pose a danger of depriving their clients of the
zealous and loyal advocacy required by the Sixth Amendment.
I therefore am troubled by the Court’s implicit adoption of a set of standards of professional
responsibility for attorneys in state criminal proceedings. The States, of course, do have a
compelling interest in the integrity of their criminal trials that can justify regulating the length to
which an attorney may go in seeking his client's acquittal. But the American Bar Association’s
implicit suggestion in its brief amicus curiae that the Court find that the Association's Model
Rules of Professional Conduct should govern an attorney’s responsibilities is addressed to the
wrong audience. It is for the States to decide how attorneys should conduct themselves in state
criminal proceedings, and this Court’s responsibility extends only to ensuring that the
restrictions a State enacts do not infringe a defendant’s federal constitutional rights. Thus, I
would follow the suggestion made in the joint brief amici curiae filed by 37 States at the
certiorari stage that we allow the States to maintain their “differing approaches” to a complex
ethical question. The signal merit of asking first whether a defendant has shown any adverse
prejudicial effect before inquiring into his attorney’s performance is that it avoids unnecessary
federal interference in a State’s regulation of its bar. Because I conclude that the respondent in
this case failed to show such an effect, I join the Court’s judgment that he is not entitled to
federal habeas relief.
JUSTICE STEVENS, concurring in the judgment.

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Justice Holmes taught us that a word is but the skin of a living thought. A “fact” may also have a
life of its own. From the perspective of an appellate judge, after a case has been tried and the
evidence has been sifted by another judge, a particular fact may be as clear and certain as a
piece of crystal or a small diamond. A trial lawyer, however, must often deal with mixtures of
sand and clay. Even a pebble that seems clear enough at first glance may take on a different
hue in a handful of gravel.
As we view this case, it appears perfectly clear that respondent intended to commit perjury, that
his lawyer knew it, and that the lawyer had a duty — both to the court and to his client, for
perjured testimony can ruin an otherwise meritorious case — to take extreme measures to
prevent the perjury from occurring. The lawyer was successful and, from our unanimous and
remote perspective, it is now pellucidly clear that the client suffered no “legally cognizable
prejudice.”
Nevertheless, beneath the surface of this case there are areas of uncertainty that cannot be
resolved today. A lawyer’s certainty that a change in his client’s recollection is a harbinger of
intended perjury — as well as judicial review of such apparent certainty — should be tempered
by the realization that, after reflection, the most honest witness may recall (or sincerely believe
he recalls) details that he previously overlooked. Similarly, the post-trial review of a lawyer’s
pretrial threat to expose perjury that had not yet been committed — and, indeed, may have
been prevented by the threat — is by no means the same as review of the way in which such a
threat may actually have been carried out. Thus, one can be convinced — as I am — that this
lawyer’s actions were a proper way to provide his client with effective representation without
confronting the much more difficult questions of what a lawyer must, should, or may do after his
client has given testimony that the lawyer does not believe. The answer to such questions may
well be colored by the particular circumstances attending the actual event and its aftermath.
Because JUSTICE BLACKMUN has preserved such questions for another day, and because I
do not understand him to imply any adverse criticism of this lawyer’s representation of his client,
I join his opinion concurring in the judgment.
Questions:
1. Why did the majority conclude that Whiteside was planning to commit perjury? Is it
possible that he recollected something new about the incident? Is it appropriate to rely
on the trial court’s finding of fact about what Whiteside saw?
2. Why do the concurring justices disagree with the majority opinion? How do they think
attorneys should evaluate the truthfulness of client testimony?
People v. DePallo, 754 N.E.2d 751 (NY 2001)
Summary: Michael DePallo was charged with the murder of an elderly man. Initially,
DePallo told his attorney that he had participated in the murder, but then insisted on
testifying that he had been at home the entire night. In an ex parte meeting, DePallo’s

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attorney informed the court that his client was planning to commit perjury. The court
permitted DePallo to testify in a narrative form, and his attorney did not use his testimony
in summation. DePallo was convicted and appealed. The Appellate Division and Court of
Appeals affirmed, holding that DePallo had no right to commit perjury, and his attorney’s
disclosure to the court did not violate attorney-client confidentiality.
WESLEY, J.
This case calls upon us to clarify a defense attorney’s responsibilities when confronted with the
dilemma that a client intends to commit perjury.
Defendant and his accomplices executed a calculated attack on a 71-year-old man, ransacking
his home, stabbing him repeatedly with a knife and scissors, and finally bludgeoning him to
death with a shovel. Defendant’s blood was found at the scene and on the victim’s clothing.
Defendant’s fingerprint was also discovered in the home and, upon arrest, he made several
incriminating statements placing him at the scene of the crime. Defendant also insisted on
making a statement during pre-trial proceedings in which he admitted that he had forced one of
his accomplices to participate in the crime under threat of death.
At trial, defense counsel noted at a sidebar that he had advised defendant that he did not have
to testify and should not testify, but if he did, he should do so truthfully. Defendant confirmed
counsel’s statements to the court but insisted on testifying. Defense counsel elicited defendant’s
direct testimony in narrative form. Defendant testified that he was home the entire evening of
the crime, and that his contrary statements to the police were induced by promises that he could
return home. During the prosecutor’s cross-examination, defense counsel made numerous
objections.
After both sides rested, defense counsel addressed the court in Chambers, outside the
presence of defendant and the prosecutor. Counsel stated:
Prior to the defendant’s testimony, I informed the Court that the defendant was going to
take the witness stand, and that he had previously told me he was involved in this
homicide. Although I did not get into details with him, I don’t know exactly what his
involvement was, but he had stated to me that he was there that night, he had gotten at
least that far.
Knowing that, I told the defendant I cannot participate in any kind of perjury, and you
really shouldn’t perjure yourself. But, he, you know, dealing with him is kind of difficult
and he was insistent upon taking the stand. He never told me what he was going to say,
but I knew it was not going to be the truth, at least to the extent of him denying
participation.
The court then noted that counsel had complied with the procedures for such circumstances as
outlined in People v. Salquerro. During summations, defense counsel did not refer to

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defendant’s trial testimony. Defendant was convicted of two counts of second degree murder,
two counts of first degree robbery, two counts of first degree burglary, and one count of second
degree robbery. The Appellate Division affirmed, rejecting defendant’s claims that he was
denied effective assistance of counsel when his attorney disclosed the perjured testimony to the
court and that the ex parte conference was a material stage of trial. A Judge of this Court
granted leave to appeal, and we now affirm.
The ethical dilemma presented by this case is not new. Defense attorneys have confronted the
problem of client perjury since the latter part of the 19th century when the disqualification of
criminal defendants to testify in their own defense was abolished by statute in federal courts and
in most states, including New York in 1869. A lawyer with a perjurious client must contend with
competing considerations—duties of zealous advocacy, confidentiality and loyalty to the client
on the one hand, and a responsibility to the courts and our truth-seeking system of justice on
the other. Courts, bar associations and commentators have struggled to define the most
appropriate role for counsel caught in such situations.
Notwithstanding these ethical concerns, a defendant’s right to testify at trial does not include a
right to commit perjury, and the Sixth Amendment right to the assistance of counsel does not
compel counsel to assist or participate in the presentation of perjured testimony. In light of these
limitations, an attorney’s duty to zealously represent a client is circumscribed by an “equally
solemn duty to comply with the law and standards of professional conduct to prevent and
disclose frauds upon the court.” The United States Supreme Court has noted that counsel must
first attempt to persuade the client not to pursue the unlawful course of conduct. If unsuccessful,
withdrawal from representation may be an appropriate response, but when confronted with the
problem during trial, as here, an “attorney’s revelation of his client's perjury to the court is a
professionally responsible and acceptable response.”
This approach is consistent with the ethical obligations of attorneys under New York’s Code of
Professional Responsibility. DR 7-102 expressly prohibits an attorney, under penalty of
sanctions, from knowingly using perjured testimony or false evidence; knowingly making a false
statement of fact; participating in the creation or preservation of evidence when the attorney
knows, or it is obvious, that the evidence is false; counseling or assisting the client in conduct
the lawyer knows to be illegal or fraudulent; and knowingly engaging in other illegal conduct.
Additionally, DR 7-102(b)(1) mandates that “a lawyer who receives information clearly
establishing that the client has, in the course of the representation, perpetrated a fraud upon a
tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is
unable to do so, the lawyer shall reveal the fraud to the affected tribunal, except when the
information is protected as a confidence or secret.”
In accordance with these responsibilities, defense counsel first sought to dissuade defendant
from testifying falsely, and indeed from testifying at all. Defendant insisted on proceeding to give
the perjured testimony and, thereafter, counsel properly notified the court.

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The intent to commit a crime is not a protected confidence or secret, Moreover, in this case
defense counsel did not reveal the substance of any client confidence as defendant had already
admitted at a pre-trial hearing that he had forced one of his accomplices to participate in the
crime under threat of death.
Finally, defendant contends that his counsel should have sought to withdraw from the case.
However, substitution of counsel would do little to resolve the problem and might, in fact, have
facilitated any fraud defendant wished to perpetrate upon the court. We agree with Salquerro
that withdrawal of counsel could present other unsatisfactory scenarios which ultimately could
lead to introduction of the perjured testimony in any event or further delay the proceedings.
In this case, defendant was allowed to present his testimony in narrative form to the jury. The
remainder of defense counsel’s representation throughout the trial was more than competent.
The lawyer’s actions properly balanced the duties he owed to his client and to the court and
criminal justice system; “since there has been no breach of any recognized professional duty, it
follows that there can be no deprivation of the right to assistance of counsel.”
We also reject defendant’s contention that his right to be present during a material stage of trial
was violated by his absence from the ex parte communication between the court and his
attorney. Although a defendant has a constitutional and statutory right to be present at all
material stages of a trial, and at ancillary proceedings when he or she may have something
valuable to contribute or when presence would have a substantial effect on a defendant's ability
to defend against the charges, this right does not extend to circumstances involving matters of
law or procedure that have no potential for meaningful input from a defendant.
The purpose of this ancillary proceeding was simply to place on the record matters which had
already occurred regarding defendant’s perjury and his attorney's response. The conference
memorialized counsel’s dilemma for appellate review and possible analysis of counsel’s
professional ethical obligations. Thus, defendant’s presence was not mandated; it had no
bearing on his ability to defend against the charges or on the outcome of this jury trial. The
situation here is akin to People v. Keen. In Keen, we held that the defendant had no right to be
present at two ex parte conferences held at defense counsel's behest which involved
discussions regarding the testimony and anticipated perjury of a key witness—matters which we
characterized as simply procedural.
In sum, because the subject matter of the ex parte communication here was merely procedural,
and there was no hearing or other factual inquiry beyond that which had transpired earlier in the
proceedings, defendant had no right to be present.
Accordingly, the order of the Appellate Division should be affirmed.
Questions:

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1. The New York Times reported on this murder here. Michael DePallo and his two friends
were 15-16 years old and living in a foster-care group home on Staten Island, when they
broke into the home of 71 year old Gus Ferrera and murdered him. How should an
attorney evaluate the truthfulness of a teenager’s testimony?
2. Should DePallo’s attorney have disclosed his belief that DePallo planned to commit
perjury? Would nondisclosure have affected the outcome? Should the attorney have
prevented DePallo from testifying? Could it have improved the outcome?
Knowledge of Falsehood
Oh don’t you lie to me, because it makes me mad, and I’ll get evil as a man can be.99
Attorneys are obligated to prevent or cure client perjury only if they “actually know” that their
client probably will commit perjury or has committed perjury. Under Model Rule 3.3, a
“reasonable belief” of perjury does not constitute actual knowledge. And in general, courts have
adopted very high standards for “actual knowledge” of perjury.
All courts require a knowledge of perjury based on specific, actual facts, rather than a mere
belief. The fact that a client’s account is internally inconsistent, has changed over time, or
conflicts with other evidence is insufficient to create a knowledge of perjury. Defendants may
even present testimony that appears to be manifestly incredible or absurd, so long as it is not
demonstrably perjury.
However, different courts have adopted different interpretations of the “actual knowledge” test.
Some courts require a “firm factual basis that the testimony will be false.” Others require either
“good cause to believe the defendant’s proposed testimony would be deliberately untruthful” or
a good faith determination of falsehood “based on objective circumstances firmly rooted in fact.”
Some courts have even rejected the “actual knowledge” test entirely. Illinois gives attorneys
“great discretion” in determining whether their clients will commit perjury. Some jurisdictions
require that counsel possess proof of perjury beyond a reasonable doubt. And others require
“compelling support” for the expectation of perjury.
I was taught to never tell a lie, to look you in the eye and tell it like it is. Always thought that you
would be the same. It’s such a shame that’s not the way it is.100
State v. Hischke, 639 N.W.2d 6 (Iowa 2002)
Summary: The police found marijuana in Hischke’s jacket pocket and charged him with
possession. Bishop represented Hischke. Initially, Hischke told Bishop the marijuana
was his, but when he learned that a third possession offense would cause an enhanced

99

Hudson “Tampa Red” Whitaker, Don’t You Lie to Me (1940).
Joan Jett and the Blackhearts, Little Liar, Up Your Alley (1988).

100

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sentence, he denied ownership. Bishop informed the court that Hischke planned to
commit perjury, and the court prohibited Hischke from testifying about the ownership of
the marijuana. Hischke was convicted and appealed, claiming ineffective assistance of
counsel. The Iowa Supreme Court affirmed, holding that Hischke had no right to commit
perjury, and Bishop acted reasonably under the circumstances. The concurrence argued
that criminal defense attorneys should never inform the court that their client intends to
commit perjury.
STREIT, Justice.
Mark Hischke made an eleventh-hour decision to deny possession of marijuana after previously
admitting to the police and his lawyer the marijuana belonged to him. Hischke’s trial counsel,
John Bishop, informed the court Hischke intended to commit perjury. After a jury trial, the court
convicted Hischke of possession of marijuana. Hischke appeals contending he was denied
effective assistance of counsel when his trial lawyer alerted the court to his “personal belief”
Hischke planned to present perjured testimony. Because we find Bishop had good cause to
believe Hischke’s proposed testimony would be deliberately untruthful, we affirm.
I. Facts
On December 5, 1999, Waterloo police officers executed an arrest warrant on Eric Twesme at
his apartment. When the officers arrived, Twesme and Mark Hischke were present in the
apartment. Twesme answered the door and permitted the officers to enter. In the apartment, the
officers saw syringes, spoons, and cotton. The officers asked Hischke to wait in the hallway
where he consented to a search of his person. The officer discovered a syringe in Hischke’s
shirt pocket. Before going to the police station, Twesme asked the officers for a jacket. One of
the officers saw a leather jacket in the apartment draped over the back of the chair where
Hischke had been sitting. The officer asked Twesme if the jacket was his and Twesme said it
did not belong to him. Hischke admitted ownership of the jacket but said he was not responsible
for anything in the pockets. During a consent search, the police officer found a small bag of
marijuana in the jacket.
Mark Hischke was charged with possession of marijuana. On the day the trial was scheduled to
begin, Hischke's attorney, John Bishop, moved to withdraw from the case. Bishop stated his
client initially claimed ownership of the marijuana but shortly before the trial Hischke denied
ownership. Bishop explained to the court,
It's my personal belief that Mr. Hischke’s original statements to me that the marijuana
was his was the truth, and if Mr. Hischke requires me to present evidence otherwise I
think I would be presenting perjured testimony, and so I don’t feel I can ethically be
permitted to do that. But Mr. Hischke wishes to present that defense and that’s, I guess,
the dilemma we have here.

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The district court informed Hischke he would not be permitted to testify as to the ownership of
the marijuana. Hischke declined to testify and the jury found him guilty as charged.
On appeal, Hischke contends he was denied effective assistance of counsel when Bishop
informed the court he believed his client was going to present perjured testimony. Hischke
argues it is not sufficient for an attorney to merely “believe” a client intends to commit perjury.
Hischke asks us to adopt a standard that requires an attorney to have “actual knowledge” the
client's testimony will be false. Hischke argues prejudice should be presumed.
The State contends an attorney need only have a “firm factual basis” for believing a client plans
to lie before taking any measures designed to prevent such perjury. The State argues Bishop
satisfied this standard.
III. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Hischke must demonstrate both
ineffective assistance and prejudice. Both elements must be proven by a preponderance of the
evidence. If a claim lacks one of the elements of an ineffective assistance of counsel claim, it is
not necessary for us to address the other element.
Hischke must first prove Bishop’s performance was not within the normal range of competence.
We measure the attorney’s performance by standards of reasonableness consistent with
“prevailing professional norms.” We begin our analysis with the presumption Bishop performed
competently. Claims of ineffective assistance of counsel are more likely to be found where
counsel lacked diligence as opposed to the exercise of judgment.
Bishop believed his client planned on committing perjury. Trial counsel may not knowingly
present perjured testimony. When counsel knows a client has committed perjury or plans on
doing so, counsel may reveal the perjury to the court. On this appeal, we must determine
whether Bishop performed competently and reasonably in deciding to inform the court his client
intended to present perjured testimony.
The central issue before us is what standard of knowledge is required before a lawyer may
inform the court of his or her client's plan to commit perjury. There are several factors to
consider in making this determination: (1) how certain counsel was the proposed testimony was
false; (2) at what stage of the proceedings counsel discovered the plan; and (3) the ways in
which the attorney may be able to dissuade his or her client from committing perjury.
Other jurisdictions have addressed the standard to be applied when a lawyer informs the court
his or her client intends to commit perjury. Some courts require a lawyer to have knowledge
“beyond a reasonable doubt” before disclosing to the court the belief a client is planning on
committing perjury. Other courts have adopted the “firm factual basis” standard. Another court
requires a “good faith determination” by counsel the defendant will commit perjury when he

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testifies. Certain other courts require counsel to engage in an independent investigation of the
facts before determining the defendant’s anticipated testimony will constitute perjury.
We have not addressed this particular issue in Iowa since 1978. At that time, we addressed this
issue within the context of a case with factual circumstances very similar to the case before us.
In Whiteside, the lawyer relied on the defendant’s pronouncement shortly before trial that was
inconsistent with his story during the initial phases of the proceedings. In asserting self-defense
the defendant initially claimed he “thought” the victim had a gun but he did not actually see the
gun. Then, before trial, the defendant told counsel he intended to testify he did see a gun
because without such testimony he was “dead.” We concluded a lawyer is required to be
convinced with good cause to believe the defendant's proposed testimony would be deliberately
untruthful. Moreover, the lawyer was not required to conduct an independent investigation of the
facts before determining his client planned to commit perjury. We reaffirm our holding in
Whiteside.
We now turn to the facts before us to determine whether Hischke was denied effective
assistance when Bishop alerted the court to Hischke’s plan to testify falsely. These are the
relevant facts as they occurred before Hischke’s change in story. Immediately before Hischke’s
arrest, he told the police officers he owned the leather jacket but was not responsible for
anything inside the pockets. This statement indicates Hischke was aware the officers would find
something illegal in the jacket. Consistent with Hischke’s declaration of ownership, Twesme told
the police officers the leather jacket did not belong to him. Hischke then wore the leather jacket
to the police station. During his initial contact with Bishop, Hischke stated the jacket belonged to
him.
Shortly before the trial was scheduled to begin, Hischke learned of the enhanced sentence that
would accompany his third conviction on a charge of possession of marijuana. At this time
Hischke changed his testimony and told Bishop the jacket did not belong to him. Hischke claims
he had only been taking “the rap” for his friend Twesme but would no longer do so because of
the enhanced punishment Hischke faced. This statement is questionable because of its
lateness.
In addition to the facts above, other factors contributed to Bishop's objectively reasonable basis
for believing Hischke intended to commit perjury. The police officers found a syringe in
Hischke’s shirt pocket when they patted him down outside of the apartment. Hischke was
visiting a friend who had an outstanding warrant for selling morphine and who lives in an
apartment openly littered with drug paraphernalia. As stated above, this was not Hischke’s first
brush with the law. He has two prior marijuana convictions.
Given these facts, we find Bishop performed competently and reasonably in deciding to inform
the court of Hischke’s recent change in testimony. Bishop’s belief was reasonable under these
circumstances. He did not merely suspect or guess Hischke would commit perjury. The facts do
not support a finding it was simply Bishop’s “gut-level belief” Hischke planned to commit perjury.
Moreover, his decision to act on this personal belief is entirely consistent with “prevailing

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professional norms.” Bishop was “convinced with good cause to believe defendant's proposed
testimony would be deliberately untruthful.” Further, it was not necessary for Bishop to conduct
an independent investigation of the facts.
We decline to adopt the standard of “actual knowledge” suggested by Hischke. Such a standard
would be virtually impossible to satisfy unless the lawyer had a direct confession from his or her
client or personally witnessed the event in question. Consequently, the standard of actual
knowledge would eviscerate the rules of professional responsibility forbidding a lawyer from
presenting perjured testimony.
In finding Bishop’s performance was within the normal range of competence we are not stating
Bishop was required to take the particular course of action he chose to pursue. This has not
been presented to us. We recognize when counsel is faced with the situation of client perjury,
he or she has competing interests at stake. Counsel must contend with duties of zealous
advocacy, confidentiality, and loyalty to the client. On the other hand, these interests are
counter-balanced by duties of accountability to the courts and justice. In order to accommodate
these competing interests, there are various appropriate options a lawyer may choose among to
decide how to handle such a situation.
IV. Conclusion
We conclude Hischke’s trial counsel acted reasonably when he informed the court his client
intended to commit perjury. Hischke satisfied the requisite standard that a lawyer must be
“convinced with good cause to believe the defendant's proposed testimony would be
deliberately untruthful.” Because we find Hischke was not denied effective assistance of
counsel, we do not address whether Hischke has demonstrated prejudice. We affirm.
CARTER, Justice (concurring specially).
I concur in affirming defendant's conviction.
This case vividly illustrates the difficulty in determining whether a lawyer has a sufficiently
convincing reason to believe a client is about to commit perjury. I have no disagreement with the
test, which the opinion of the court employs for making such determinations consistent with the
lawyer's ethical obligation. Nor do I question the conclusion of defendant’s counsel in the
present case in the face of that test. The decision could have gone either way on these facts.
This case does not discuss, because the issue is not raised, whether the action that defendant's
counsel took upon becoming convinced of the impending perjury was proper. I am convinced
that it was not. My disagreement with defense counsel’s action flows from a belief that it is never
proper for counsel to advise the court that counsel believes a client will testify falsely. Such
conduct will inevitably damage the client's case beyond repair.

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Counsel who reach the conclusion that a client is about to testify falsely should first attempt to
dissuade the client from giving the offending testimony. If unsuccessful, counsel should attempt
a quiet withdrawal from the representation. The reasons set forth in the application to withdraw
should only identify the existence of an unspecified attorney-client disagreement that might
compromise the attorney’s ethical responsibilities. At no time should the matter of impending
perjury be disclosed. If the attempt to withdraw fails, then counsel should proceed with the case
and conduct any questioning of the witness so as not to invite the suspected perjury. If the
suspected perjury nonetheless occurs, counsel should make no reference of it in arguing the
case to the trier of fact. I believe that if a lawyer proceeds in this manner, he or she may fully
satisfy the lawyer’s ethical obligation to prevent perjury without the necessity of advising the
court as to the client’s intent to testify falsely.
Questions:
1. Is it possible that Hischke’s proposed testimony was truthful? Did his attorney actually
know it was false?
2. What standard should criminal defense attorneys adopt in determining whether their
client will commit or has committed perjury?
Further Reading:
●

Ellen Henak, When the Interests of Self, Clients, and Colleagues Collide: The Ethics of
Ineffective Assistance of Counsel Claims, 33 Am. J. Trial Adv. 347 (2009)

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6.5: Alternative Dispute Resolution
You never give me your money. You only give me your funny paper. And in the middle of
negotiations, you break down.101
Attorneys have a duty to inform their clients about all of the options available to them.
Accordingly, in relation to potential civil litigation, attorneys must inform their clients about
alternative dispute resolution mechanisms, when available and appropriate under the
circumstances. Among other things, attorneys should advise their clients about the possibility of
negotiating a settlement, entering mediation, or pursuing arbitration.
The overwhelming majority of civil actions never go to trial. While settlement rates depend on
the jurisdiction, about 95% of civil actions end in a settlement. More often than not, settlement
produces a better outcome for all parties. Litigation is expensive, time-consuming, and risky. It
can result in a large award, or it can result in nothing. Settlement allows the parties to arrive at a
compromise that reflects their mutual assessment of the value of the claims and the likelihood of
success.
In addition, settlements can be more flexible than litigation, allowing the parties to negotiate an
outcome that litigation could not produce. Of course, there are limits on negotiation and
settlement. For example, the parties cannot agree on an illegal settlement. And settlement
requires a meeting of the minds, which may not always be possible, especially if the parties
have different assessments of the value of the claims and the likelihood of success.
Mediation is a form of negotiation that involves a neutral third-party mediator, who helps the
parties reach a resolution. Mediators typically do not decide the outcome of the mediation. But
in some cases, they may give the parties their own assessment of the value of the claims and
their likelihood of success. The mediator’s third-party opinion may help the parties reach a
meeting of the minds and settle.
Arbitration resembles mediation, in that it involves a neutral third-party arbitrator. But unlike in
mediation, the arbitrator typically provides a binding decision on the merits. Parties must agree
to arbitration and agree to be bound by the arbitrator’s decision. While judicial review of the
arbitrator’s decision is possible in some circumstances, it is very deferential, in order to preserve
the finality of the arbitration. Typically, judicial review of an arbitrator’s decision is limited to
arbitrator bias and misconduct. Even a manifest error of law is usually not grounds for review.
Notably, parties can agree to arbitration in advance, and it is an increasingly common feature of
many contracts. Many people worry that these arbitration agreements result in people
unwittingly signing away their right to litigate. Some states have resisted enforcing arbitration
agreements, but those state laws are often preempted by the Federal Arbitration Act.
Model Rule 4.1: Comments
Misrepresentation
1. A lawyer is required to be truthful when dealing with others on a client’s behalf, but
generally has no affirmative duty to inform an opposing party of relevant facts. A
misrepresentation can occur if the lawyer incorporates or affirms a statement of another
101

Paul McCartney, You Never Give Me Your Money, Abbey Road (1969).

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person that the lawyer knows is false. Misrepresentations can also occur by partially true
but misleading statements or omissions that are the equivalent of affirmative false
statements. For dishonest conduct that does not amount to a false statement or for
misrepresentations by a lawyer other than in the course of representing a client, see
Rule 8.4.
Statements of Fact
2. This Rule refers to statements of fact. Whether a particular statement should be
regarded as one of fact can depend on the circumstances. Under generally accepted
conventions in negotiation, certain types of statements ordinarily are not taken as
statements of material fact. Estimates of price or value placed on the subject of a
transaction and a party’s intentions as to an acceptable settlement of a claim are
ordinarily in this category, and so is the existence of an undisclosed principal except
where nondisclosure of the principal would constitute fraud. Lawyers should be mindful
of their obligations under applicable law to avoid criminal and tortious misrepresentation.
Kentucky Bar Ass’n v. Geisler, 938 S.W.2d 578 (Ky. 1997)
Summary: Milton McNealy was injured by a car in Louisville, Kentucky. Maria Geisler
represented McNealy in an action against the driver. Defendant’s counsel Kevin Ford
asked to depose McNealy, but Geisler postponed because he was too sick. When
McNealy died, Geisler contacted Ford and told him her client wanted to settle, but didn’t
tell him McNealy was dead. Geisler and Ford agreed on a settlement, which McNealy’s
son signed, and Ford learned McNealy was dead. Ford paid the settlement, but filed a
bar complaint against Geisler for failing to disclose McNealy’s death. The Kentucky
Supreme Court held that attorneys must notify opposing counsel if their client dies and
reprimanded Geisler.
The Board of Governors of the Kentucky Bar Association, as a result of charges instigated
against respondent, Maria T. Geisler of Louisville, found her guilty of violating SCR 3.130-4.1 by
failing to divulge the fact of her client’s death to opposing counsel prior to entering into and
consummating settlement negotiations. Neither the KBA nor the respondent requested review of
this case. However, this Court, on its own motion, elected to review the question of whether the
respondent’s actions were within the scope of SCR 3.130-4.1.
The critical facts in the present case involve respondent’s filing of a civil action on behalf of
Milton F. McNealy for injuries he sustained when he was struck by an automobile while walking
along a street in Louisville, Kentucky on November 26, 1993. Subsequent to the filing of the
initial complaint, defendant’s counsel, P. Kevin Ford, filed a notice to take the deposition of
McNealy. Respondent contacted Ford and told him that McNealy was physically unable to give
a deposition since he was in very poor health. Consequently, the deposition of McNealy was
never taken.
McNealy died on January 26, 1995. Shortly thereafter respondent contacted Ford and stated
that her client wanted to settle the case and asked him to forward an offer of a settlement. After
an exchange of offers and counter-offers, a settlement was reached on February 9, 1995. On
February 23, 1995, McNealy’s son, Joe, was duly appointed as the administrator of his father’s
estate. Ford eventually forwarded the settlement documents along with a settlement check to
respondent on March 13, 1995. On March 22, 1995, Ford received back the settlement
documents which had been executed by Joe. Upon receipt of the signed documents, Ford

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learned for the first time of McNealy’s death. Ford took no further action to bring the court’s
attention to the settlement documents that were signed by the Administrator, but instead, sent
the agreed order of dismissal to the circuit court which was signed and entered by the court. No
appeal was taken.
Thereafter, Ford filed a bar complaint against respondent on May 5, 1995 due to her failure to
advise Ford that her client, McNealy, had passed away during the settlement negotiation period
of January 26, 1995 through February 9, 1995. The chair of the inquiry tribunal of the KBA
charged respondent with violating SCR 3.130-4.1 for failing to divulge the fact of her client’s
death to opposing counsel prior to entering into and consummating settlement negotiations.
After submission to the Board of Governors, the Board determined that respondent was guilty of
the charge and recommended to this Court that it issue a private reprimand and a public opinion
against an unnamed attorney for the benefit of other members of the KBA.
In its recommendation to this Court, the KBA noted that there is no KBA Ethics Opinion on point
with this matter and no Kentucky case law dealing directly with this issue. However, the
American Bar Association Standing Committee on Ethics and Professional Responsibility
hereinafter ABA, squarely addressed this issue when it issued Formal Opinion 95-397 entitled,
“Duty to Disclose Death of Client.”
Deciding that counsel has the duty to disclose the death of her client to opposing counsel and to
the court when the counsel next communicates with either, the ABA specifically stated in its
opinion:
When a lawyer’s client dies in the midst of the settlement negotiations of a pending
lawsuit in which the client was the claimant, the lawyer has a duty to inform opposing
counsel and the Court in the lawyer's first communications with either after the lawyer
has learned of the fact.
The ABA’s opinion further addressed the question of whether an attorney even has authority to
act when her client dies. The opinion determined that prior to death, a lawyer acts on behalf of
an identified client. When the death occurs, however, the lawyer ceases to represent that
identified client. The ABA maintained that any subsequent communication to opposing counsel
with respect to the matter would be the equivalent of a knowing, affirmative misrepresentation
should the lawyer fail to disclose the fact that she no longer represents the previously identified
client.
Basically, the ABA determined that a lawyer must inform her adversary of the death of her client
in her first communication with the adversary after she has learned of that fact. Likewise, the
lawyer must also inform her adversary, in the same communication, that the personal
representative, if one has been appointed, of her former client is accepting the outstanding
settlement offer. Thus, the ABA concluded that a failure to disclose the death of a client is
tantamount to making a false statement of material fact within the meaning of Model Rule
4.1(a).
Respondent argues that the ABA’s opinion should not apply to her as it was issued on
September 18, 1995, many months after the relevant facts in this disciplinary proceeding. She
further maintains that ABA Opinion 95-397 is subject to conflicting conclusions and, thus, should
not be followed.

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Relying on the additional comments to SCR 3.130-4.1, respondent contends that she did have a
duty to disclose “facts” or “evidence.” Respondent asserts, however, that an attorney is typically
not required to affirmatively reveal evidence that is unknown and potentially helpful to the
adverse party. Respondent further maintains that McNealy’s death had no significant bearing on
the ultimate settlement that was achieved, and that Ford did not oppose the settlement even
after it was revealed that McNealy was dead. Finally, respondent contends that Ford knew
McNealy had been in poor health and that McNealy’s death was a matter of public record
reported in the daily newspaper. Respondent argues that she felt she had an ethical duty not to
volunteer information about her client’s passing. Thus, respondent maintains that it was Ford’s
own fault to have mistakenly believed that McNealy was alive at the time the settlement was
negotiated, because if Ford had wanted to know whether McNealy was dead, all he had to do
was ask respondent about it.
Kentucky’s SCR 3.130-4.1 specifically provides: “In the course of representing a client a lawyer
shall not knowingly make a false statement of material fact or law to a third person.” This Court
recently considered the application of that rule in Mitchell v. Kentucky Bar Assoc. That case
involved a public administrator of an estate who admitted that he had lied to two heirs by falsely
stating that an action to determine ownership of some property had been filed, when in fact, no
such action had been taken. The respondent in Mitchell, after offering extensive mitigating
evidence, including the fact that the heirs’ interest had not been impaired, received a public
reprimand.
Moreover, in Virzi v. Grand Trunk Warehouse & Cold Storage Co., the federal district court,
relying on Model Rule 4.1 held that a plaintiff’s attorney had a duty to disclose the death of her
client. The circumstances in that case are strikingly similar to the case at bar in that:
Here, plaintiff’s attorney did not make a false statement regarding the death of the
plaintiff. He was never placed in a position to do so because during the two weeks of
settlement negotiations defendants’ attorney never thought to ask if plaintiff was still
alive. Instead, in hopes of inducing settlement, plaintiff’s attorney chose not to disclose
plaintiff’s death.
Ultimately, the Virzi court came down on the side of disclosure stating:
This Court feels that candor and honesty necessarily require disclosure of such a
significant fact as the death of one's client. Opposing counsel does not have to deal with
his adversary as he would deal in the marketplace. Standards of ethics require greater
honesty, greater candor, and greater disclosure, even though it might not be in the
interest of the client or his estate.
Thus, we hold that the respondent’s failure to disclose her client's death to opposing counsel
amounted to an affirmative misrepresentation in violation of our SCR 3.130-4.1. While the
comments to SCR 3.130-4.1 do indicate that there is no duty to disclose “relevant facts,” those
same comments go on to state that:
A misrepresentation can occur if the lawyer incorporates or affirms a statement of
another person that the lawyer knows is false. Misrepresentations can also occur by
failure to act.
Consequently, respondent cannot reasonably argue that her failure to reveal this critical piece of
information constituted ethical conduct within the framework of SCR 3.130-4.1.

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Furthermore, respondent’s argument that the burden of correcting the mistaken belief that her
client was alive should be placed on Ford, is incorrect. Attorneys in circumstances similar to
those at bar operate under a reasonable assumption that the other attorney’s client, whether a
legal fiction or in actual flesh, actually exists and, consequently, that opposing counsel has
authority to act on their behalf. Here, respondent obtained authority to act on the behalf of Joe,
the administrator, but not McNealy, once he passed away. Basically, when the offer was made
after McNealy's death, respondent had no authority to act on his behalf. Despite this fact,
respondent proceeded to settle the case under the guise that she still had the authority to do so
on behalf of McNealy. Her letters to Ford clearly imply this. Accordingly, this Court cannot go so
far as to say that such conduct was ethical under the circumstances and within SCR 3.130-4.1.
It should be noted, that this Court fails to understand why guidelines are needed for an attorney
to understand that when their client dies, they are under an obligation to tell opposing counsel
such information. This seems to be a matter of common ethics and just plain sense. However,
because attorneys such as respondent cannot discern such matters and require written
guidelines so as to figure out their ethical convictions, this Court adopts the ruling of ABA
Opinion 95-397.
Thus, upon our careful review of the record, we find that the evidence does not support the
recommendation of the KBA and consequently we adopt the following order.
IT IS HEREBY ORDERED:
That respondent, Maria T. Geisler, be, and hereby is, publicly reprimanded for failing to notify
her opposing counsel that her client had died during settlement negotiations. The respondent is
further ordered to pay the costs of this action pursuant to SCR 3.450.
JOHNSTONE, J., dissents and would concur with the recommendation of the Board of
Governors by issuing a private reprimand against an unnamed attorney.
Questions:
1. Why would it be material to Ford and Ford’s client whether McNealy was alive at the
time of the settlement? Is it possible that it could have affected their decision whether to
settle or the amount of the settlement?
2. The court assumes that Geisler should have known that she had a duty to disclose
McNealy’s death. Do you agree? Could she have reasonably believed that she had a
duty to McNealy’s estate not to disclose?
ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 06439, Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation:
Application to Caucused Mediation (April 12, 2006)
Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer
representing a client may not make a false statement of material fact to a third person.
However, statements regarding a party’s negotiating goals or its willingness to compromise, as
well as statements that can fairly be characterized as negotiation “puffing,” ordinarily are not
considered ‘‘false statements of material fact” within the meaning of the Model Rules.

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In this opinion, we discuss the obligation of a lawyer to be truthful when making statements on
behalf of clients in negotiations, including the specialized form of negotiation known as
caucused mediation.
It is not unusual in a negotiation for a party, directly or through counsel, to make a statement in
the course of communicating its position that is less than entirely forthcoming. For example,
parties to a settlement negotiation often understate their willingness to make concessions to
resolve the dispute. A plaintiff might insist that it will not agree to resolve a dispute for less than
$200, when, in reality, it is willing to accept as little as $150 to put an end to the matter.
Similarly, a defendant manufacturer in patent infringement litigation might repeatedly reject the
plaintiffs demand that a license be part of any settlement agreement, when in reality, the
manufacturer has no genuine interest in the patented product and, once a new patent is issued,
intends to introduce a new product that will render the old one obsolete. In the criminal law
context, a prosecutor might not reveal an ultimate willingness to grant immunity as part of a
cooperation agreement in order to retain influence over the witness.
A party in a negotiation also might exaggerate or emphasize the strengths, and minimize or
deemphasize the weaknesses, of its factual or legal position. A buyer of products or services,
for example, might overstate its confidence in the availability of alternate sources of supply to
reduce the appearance of dependence upon the supplier with which it is negotiating. Such
remarks, often characterized as “posturing” or “puffing,” are statements upon which parties to a
negotiation ordinarily would not be expected justifiably to rely, and must be distinguished from
false statements of material fact. An example of a false statement of material fact would be a
lawyer representing an employer in labor negotiations stating to union lawyers that adding a
particular employee benefit will cost the company an additional $100 per employee, when the
lawyer knows that it actually will cost only $20 per employee. Similarly, it cannot be considered
“posturing” for a lawyer representing a defendant to declare that documentary evidence will be
submitted at trial in support of a defense when the lawyer knows that such documents do not
exist or will be inadmissible. In the same vein, neither a prosecutor nor a criminal defense
lawyer can tell the other party during a plea negotiation that they are aware of an eyewitness to
the alleged crime when that is not the case.
Applicable Provision of the Model Rules
The issues addressed herein are governed by Rule 4.1(a). That rule prohibits a lawyer, “In the
course of representing a client,” from knowingly making “a false statement of material fact or law
to a third person.” As to what constitutes a “statement of fact,” Comment [2] to Rule 4.1 provides
additional explanation:
This Rule refers to statements of fact. Whether a particular statement should be
regarded as one of fact can depend on the circumstances. Under generally accepted
conventions in negotiation, certain types of statements ordinarily are not taken as
statements of material fact. Estimates of price or value placed on the subject of a
transaction and a party’s intentions as to an acceptable settlement of a claim are
ordinarily in this category, and so is the existence of an undisclosed principal except
where nondisclosure of the principal would constitute bud. Lawyers should be mindful of
their obligations under applicable law to avoid criminal and tortious misrepresentation.
Truthfulness in Negotiation

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It has been suggested by some commentators that lawyers must act honestly and in good faith
and should not accept results that are unconscionably unfair, even when they would be to the
advantage of the lawyer’s own client. Others have embraced the position that deception is
inherent in the negotiation process and that a zealous advocate should take advantage of every
opportunity to advance the cause of the client through such tactics within the bounds of the law.
Still others have suggested that lawyers should strive to balance the apparent need to be less
than wholly forthcoming in negotiation against the desirability of adhering to personal ethical and
moral standards. Rule 4.1(a) applies only to statements of material fact that the lawyer knows to
be false, and thus does not cover false statements that are made unknowingly, that concern
immaterial matters, or that relate to neither fact nor law. Various proposals also have been
advanced to change the applicable ethics rules, either by amending Rule 4.1 and its Comments,
or by extending Rule 3.3 to negotiation, or by creating a parallel set of ethics rules for
negotiating lawyers.
Although this Committee has not addressed the precise question posed herein, we previously
have opined on issues relating to lawyer candor in negotiations. For example, we stated in
Formal Opinion 93-370 that, although a lawyer may in some circumstances ethically decline to
answer a judge’s questions concerning the limits of the lawyer’s settlement authority in a civil
matter; the lawyer is not justified in lying or engaging in misrepresentations in response to such
an inquiry. We observed that:
While a certain amount of posturing or puffery in settlement negotiations may be an
acceptable convention between opposing counsel, a party’s actual bottom line or the
settlement authority given to a lawyer is a material fact. A deliberate misrepresentation
or lie to a judge in pretrial negotiations would be improper under Rule 4.1. Model Rule
8.4(c) also prohibits a lawyer from engaging in conduct involving dishonesty fraud,
deceit, or misrepresentation, and Rule 3.3 provides that a lawyer shall not knowingly
make a false statement of material fact or law to a tribunal. The proper response by a
lawyer to improper questions from a judge is to decline to answer, not to lie or
misrepresent.
Similarly, in Formal Opinion 94-387, we expressed the view that a lawyer representing a
claimant in a negotiation has no obligation to inform the other party that the statute of limitations
has run on the client's claim, but cannot make any affirmative misrepresentations about the
facts. In contrast, we stated in Formal Opinion 95-397 that a lawyer engaged in settlement
negotiations of a pending personal injury lawsuit in which the client was the plaintiff cannot
conceal the client’s death, and must promptly notify opposing counsel and the court of that fact.
Underlying this conclusion was the concept that the death of the client was a material fact, and
that any continued communication with opposing counsel or the court would constitute an
implicit misrepresentation that the client still was alive. Such a misrepresentation would be
prohibited under Rule 4.1 and, with respect to the court, Rule 3.3. Opinions of the few state and
local ethics committees that have addressed these issues are to the same effect.
False statements of material fact by lawyers in negotiation, as well as implicit
misrepresentations created by a lawyer's failure to make truthful statements, have in some
cases also led to professional discipline. For example, in reliance on Formal Opinion 95-397, a
Kentucky lawyer was disciplined under Rule 4.1 for settling a personal injury case without
disclosing that her client had died. Similarly, in a situation raising issues like those presented in
Formal Opinion 93-370, a New York lawyer was disciplined for stating to opposing counsel that,
to the best of his knowledge, his client’s insurance coverage was limited to $200,000, when
documents in his files showed that the client had $1,000,000 in coverage. Affirmative

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misrepresentations by lawyers in negotiation also have been the basis for the imposition of
litigation sanctions, and the setting aside of settlement agreements, as well as civil lawsuits
against the lawyers themselves.
In contrast, statements regarding negotiating goals or willingness to compromise, whether in the
civil or criminal context, ordinarily are not considered statements of material fact within the
meaning of the Rules. Thus, a lawyer may downplay a client’s willingness to compromise, or
present a client’s bargaining position without disclosing the client’s “bottom line” position, in an
effort to reach a more favorable resolution. Of the same nature are overstatements or
understatements of the strengths or weaknesses of a client’s position in litigation or otherwise,
or expressions of opinion as to the value or worth of the subject matter of the negotiation. Such
statements generally are not considered material facts subject to Rule 4.1
Application of the Governing Principles to Caucused Mediation
Having delineated the requisite standard of truthfulness for a lawyer engaged in the negotiation
process, we proceed to consider whether a different standard should apply to a lawyer
representing a client in a caucused mediation.
Mediation is a consensual process in which a neutral third party, without any power to impose a
resolution, works with the disputants to help them reach agreement as to some or all of the
issues in controversy. Mediators assist the parties by attempting to fashion creative and
integrative solutions to their problems. In the most basic form of mediation, a neutral individual
meets with all of the parties simultaneously and attempts to moderate and direct their
discussions and negotiations. Whatever is communicated to the mediator by a party or its
counsel is heard by all other participants in the mediation. In contrast, the mediator in a
caucused mediation meets privately with the parties, either individually or in aligned groups.
These caucuses are confidential, and the flow of information among the parties and their
counsel is controlled by the mediator subject to the agreement of the respective parties.
It has been argued that lawyers involved in caucused mediation should be held to a more
exacting standard of truthfulness because a neutral is involved. The theory underlying this
position is that, as in a game of “telephone,” the accuracy of communication deteriorates on
successive transmissions between individuals, and those distortions tend to become magnified
on continued retransmission. Mediators, in turn, may from time to time reframe information as
part of their efforts to achieve a resolution of the dispute. To address this phenomenon, which
has been called “deception synergy,” proponents of this view suggest that greater accuracy is
required in statements made by the parties and their counsel in a caucused mediation than is
required in face-to-face negotiations.
It has also been asserted that, to the contrary, less attention need be paid to the accuracy of
information being communicated in a mediation - particularly in a caucused mediation precisely because consensual deception is intrinsic to the process. Information is imparted in
confidence to the mediator, who controls the flow of information between the parties in terms of
the content of the communications as well as how and when in the process it is conveyed.
Supporters of this view argue that this dynamic creates a constant and agreed upon
environment of imperfect information that ultimately helps the mediator assist the parties in
resolving their disputes.
Whatever the validity may be of these competing viewpoints, the ethical principles governing
lawyer truthfulness do not permit a distinction to be drawn between the caucused mediation

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context and other negotiation settings. The Model Rules do not require a higher standard of
truthfulness in any particular negotiation contexts. Except for Rule 3.3, which is applicable only
to statements before a “tribunal,” the ethical prohibitions against lawyer misrepresentations
apply equally in all environments. Nor is a lower standard of truthfulness warranted because of
the consensual nature of mediation. Parties otherwise protected against lawyer
misrepresentation by Rule 4.1 are not permitted to waive that protection, whether explicitly
through informed consent, or implicitly by agreeing to engage in a process in which it is
somehow “understood that false statements will be made. Thus, the same standards that apply
to lawyers engaged in negotiations must apply to them in the context of caucused mediation.
We emphasize that, whether in a direct negotiation or in a caucused mediation, care must be
taken by the lawyer to ensure that communications regarding the client’s position, which
otherwise would not be considered statements “of fact,” are not conveyed in language that
converts them, even inadvertently, into false factual representations. For example, even though
a client’s Board of Directors has authorized a higher settlement figure, a lawyer may state in a
negotiation that the client does not wish to settle for more than $50. However, it would not be
permissible for the lawyer to state that the Board of Directors had formally disapproved any
settlement in excess of $50, when authority had in fact been granted to settle for a higher sum.
Conclusion
Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer
representing a party may not make a false statement of material fact to a third person. However,
statements regarding a party’s negotiating goals or its willingness to compromise, as well as
statements that can fairly be characterized as negotiation “puffing,” are ordinarily not considered
“false statements of material fact” within the meaning of the Model Rules.
In re Fee, 898 P.2d 975 (Ariz. 1995)
ZLAKET, Justice.
Respondents’ client gave birth to a severely brain-damaged boy. In 1987, after unsuccessfully
seeking representation from three other attorneys, she retained respondents on a 40%
contingent fee. They filed a medical malpractice suit against the State of Arizona and Pima
County on behalf of both mother and son. The child’s claim was dismissed, as was a pending
conservatorship, after the trial court determined that Pizano ex rel. Walker v. Mart precluded all
but the mother’s action for losses and expenses relating to the boy’s condition.
The medical negligence claim was admittedly weak. Respondents’ success in developing a
colorable racketeering theory, however, prompted negotiations. After an unproductive initial
settlement conference, a second was scheduled for January 21, 1991, the day before trial. On
Friday the 18th, the defense offered a structured settlement consisting of a cash lump sum
followed by periodic payments. This proposal designated a separate amount for attorneys’ fees.
After consulting an annuities expert, respondents and their client decided that her needs would
likely be greater than those contemplated by the offer.
The following Monday at 3:30 P.M., the parties, attorneys, and annuities experts met with the
settlement judge. In a private conference with respondents’ group, the judge brought up the
latest proposal. This prompted a discussion about the “common defense tactic” of making
separate offers of attorneys’ fees. Respondents and the judge agreed that such a move
frequently had the effect of “driving a wedge” between a plaintiff’s lawyer and his or her client by

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causing fees to become a source of discomfort, disagreement, and potential conflict.102 Despite
his recognition of this strategy, however, and respondents’ argument that the reasonableness of
their fee was an issue for the trial court at the conclusion of the case, the settlement judge
indicated that, in his opinion, the contingent fee being charged here was excessive. Testimony
before the disciplinary hearing committee shows that the relationship between the court and
respondents deteriorated from that point and became progressively antagonistic over this issue.
The judge allegedly raised his voice and cursed at respondents. He threatened that if the case
did not settle, he would advise the trial judge the failure was because of respondents’ greed. All
of these statements were made in the presence of the client.
Respondents asserted at the disciplinary hearing that during these negotiations they spoke with
their client about the insufficiency of the attorneys’ fees being offered by the defense. They
claimed that she authorized them to demand more money for the care of her son, thereby
possibly securing an increase in fees as well. Although he was not technically a party to these
proceedings, the record shows that the son’s interests were important to all participants,
particularly the court. Consequently, following respondents’ pleas, the judge agreed to seek
more money from the defendants.
Late in the day, the settlement judge called both sides into the courtroom to discuss a new offer,
consisting of $175,000 in cash, annuities for both mother and son, $400,000 in attorneys’ fees,
and $55,000 in costs. According to the judge, this offer was higher than the previous one
because of respondents’ representations that the client needed, among other things, better
housing and “specially equipped transportation” for her son, as well as additional funds for his
possible future surgeries.
After conferring briefly, respondents met privately with the client and proposed that she pay
them an additional $85,000 in attorney’s fees from her share of the cash proceeds.103 During
this discussion, the judge approached the trio and asked if they needed his help. Respondent
Fee testified that he felt pressured by the judge’s presence and told him, “I don’t want you here.”
Fee also told the client that she should not allow herself to feel coerced by her attorneys or the
judge and that she could refuse the offer or take additional time to consider it.
After repeatedly advising the client of her right to seek independent advice and obtaining
numerous assurances from her that she was satisfied with the arrangement, Fee prepared a
handwritten agreement concerning the additional fees. This document included a “confidentiality
provision,” which the committee found was for the client’s protection and “to maintain the
confidential nature of the settlement conference.”
The three then returned to the courtroom where respondents informed their annuities expert
about the new agreement. They asked the expert to review the proposed settlement with the
client one final time to ensure that the available funds would be sufficient to meet her needs and
that the overall agreement was fair. After meeting for approximately ten minutes outside
respondents’ presence, the expert became satisfied that the client understood and agreed to the
102

Indeed, the defense here has since acknowledged that this was its purpose in making a separate offer
of fees.
103
Respondents testified that according to their calculations at the time, receipt of these additional funds
would have left them with a total fee amounting to only 34% of the structured package’s present value.
We have calculated that the final fee percentage was higher than that, but still slightly less than the 40%
originally agreed upon by the client. In any event, neither the committee nor the commission found that
the fee charged was excessive.

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terms. The client then signed the additional fee agreement and returned to the judge's
chambers with her attorneys.
Respondent Fee announced that they agreed “in principle” to the settlement. However, when
the judge repeated the terms previously discussed, nobody disclosed the existence of the
newly-enacted fee agreement. Both the committee and the commission found that respondents,
not wanting to upset the settlement and believing it was not this judge’s role to determine
reasonableness of fees, planned to reveal the separate agreement to the trial judge in
connection with the formal approval of attorneys’ fees required by Rule 3, Uniform Medical
Malpractice Rules.104 The lawyers never got the chance to do so.
Ten days after the conference, the client telephoned the settlement judge, informed him of the
separate agreement, and asked whether she was required to comply with it. The judge obtained
a copy of the agreement, held a hearing during which he removed respondents from the case,
appointed pro bono counsel to complete the settlement, and provided for the proceeds to be
relayed through the clerk of the court for “proper” distribution. He then initiated these disciplinary
proceedings.
The hearing committee found that respondents violated ER 3.3(a)(1) (candor toward a tribunal)
and ER 8.4(c) (conduct involving a knowing misrepresentation and causing an adverse or
potentially adverse effect on a legal proceeding). It recommended 30-day suspensions. A
majority of the disciplinary commission found an additional violation of ER 8.4(d) (conduct
prejudicial to the administration of justice) and recommended 60-day suspensions. The state
bar asks this court to disregard both recommendations and impose six-month suspensions.
We agree that respondents breached ER 3.3(a)(1), which states: “A lawyer shall not knowingly
make a false statement of material fact or law to a tribunal.” The comments to ER 3.3 state that
“there are circumstances where failure to make a disclosure is the equivalent of an affirmative
misrepresentation.” Respondents knowingly failed to disclose the separate agreement to the
settlement judge in violation of this rule. At the same time, they engaged in “conduct involving
dishonesty, fraud, deceit or misrepresentation” in violation of ER 8.4(c).
There are remarkably few cases applying the rules of professional conduct in a settlement
context and none that we find directly on point. The bulk of ethical rules seem to have been
designed with litigation scenarios in mind. Nevertheless, the scope of their applicability to
settlement discussions has been the subject of frequent scholarly debate.
A few commentators have even gone so far as to question the wisdom of demanding
truthfulness in settlement conferences, suggesting that a certain amount of gamesmanship is
considered acceptable. As one author notes, “the operational necessities of the bargaining
process yield an ethical ‘functionalism’ that results in the minimal truthfulness and fairness
necessary for an agreement.” Although this court is by no means naive to the realities of the
marketplace, we are unwilling to accept or endorse such a flimsy ethical standard. It is not
unreasonable to expect more from members of the bar, and we do.
Early drafts of the Model Rules of Professional Conduct contained a separate section devoted
to settlement negotiations. It was, however, deleted from the final version. There also appear to
104

The record also shows that, within hours of the conference, respondents discussed what they had
done with other practitioners and retired judges, all of whom reportedly agreed that their conduct had
been proper.

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be few formal guidelines for judicial officers acting as mediators, which may serve to explain
their occasional use of inappropriate techniques. “Because of a ‘judicial zeal for settlement,’ the
increased opportunity for abuse may lead to judges punishing parties and lawyers who fail to
cooperate in settlement.”
Thus, misguided strategies believed to be endemic to the bargaining process and the lack of
clearly-defined roles for settlement judges may, regrettably, combine to create an environment
ripe for occurrences such as this.105 The commission found that ambiguities in these areas
played a significant role in the misconduct at issue. Also contributing were circumstances
peculiar to this case. The hour was late, and trial was scheduled to begin the following morning.
The judge, although deservedly recognized as a seasoned and fair mediator, became
somewhat adversarial on this particular day. He not only allowed defense counsel to “drive a
wedge” but may unwittingly have assisted them in doing so. Respondents did not want to lose a
favorable settlement for their client. At the same time, they neither wished to permit the defense
to dictate the amount of their fees, nor felt comfortable with pressure from the judge to reduce
them. Moreover, respondents clearly attempted to ensure that their client fully understood and
concurred in the separate agreement. Both the committee and commission specifically found
that the modification was fair and that the client understood it. The uncontradicted evidence also
suggests that respondents thought they were not obligated to disclose the arrangement to the
settlement judge.
Nevertheless, we cannot condone their conduct. In our judgment, respondents should have
either disclosed the complete arrangement or politely declined any discussion of fees. Fear that
this might have jeopardized the settlement, while understandable, does not excuse their lack of
candor with the tribunal. The system cannot function as intended if attorneys, sworn officers of
the court, can lie to or mislead judges in the guise of serving their clients. “Zealous advocacy”
has limits. It clearly does not justify ethical breaches.
We note that neither the committee nor the commission found any aggravating factors. Both,
however, cited numerous mitigating circumstances, including the absence of prior disciplinary
records, lack of dishonest or selfish motives, full and free disclosures to the disciplinary
authorities, and cooperative attitudes throughout these proceedings. The committee also found
that respondents “demonstrated a high level of competence in their representation” of this
plaintiff.
Although we adopt the factual findings of both the committee and the commission, we are
compelled to agree with the dissenting commissioners that the recommended sanction
“exceeds the misconduct.”106 The goal of discipline is to protect the public, not to punish
lawyers. Nothing in the record suggests that respondents pose any threat to the public.
Moreover, they already have suffered a considerable penalty by virtue of the extensive negative
publicity surrounding this case.

105

Although the conduct of defense counsel is not at issue here, respondents point out that they also
were not forthcoming about their ultimate settlement authority when questioned by the judge.
106
A majority of the commission concluded that suspension was necessary because the additional
hearing and the judge’s removal of respondents from this case caused “an adverse or potentially adverse
effect on the legal proceeding.” Both actions, however, were initiated by the offended settlement judge,
who believed that respondents had engaged in severe professional, and possibly criminal, misconduct.
We also note the absence of any finding that respondents’ actions caused “injury or potential injury to a
party to the legal proceeding.” Thus, under these specific facts, we disagree that suspension is required.

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We wish to discourage the previously-described tactic of “driving a wedge” between lawyer and
client in negotiations. Although nothing in our ethical rules expressly prohibits separate offers of
attorneys’ fees, we agree with the New York City Bar ethics committee that they frequently pose
a serious dilemma for lawyers. Quite simply, such offers are often intended to place attorneys in
the uncomfortable position where they may be caught between their own need to be
compensated for legal services and what might otherwise be in their clients’ best interests. We
therefore urge judges to carefully scrutinize attempts to employ this practice.
Moreover, although it is certainly not forbidden for a judge to raise the topic of attorneys’ fees
during settlement discussions, we believe it unwise and unfair to focus on the fees of one party
without corresponding inquiry into those of the other. With such a selective approach, the judge
may easily overstep his or her bounds. An attorney on the receiving end of this type of treatment
should be entitled to some measure of self-protection. We have indicated that a more
appropriate reply here was for respondents to have politely but firmly declined to discuss their
fees. We concede that, considering the level of tension evident in this conference, such a
response may have destroyed any chance of settlement. Nevertheless, a good end does not
justify deceitful means.
The dissent deserves a brief response. First, it reaches factual conclusions that are
diametrically opposed to those of the committee, the commission, and the majority of this court.
Second, in positing “4 things that might have happened” if respondents had later “disclosed their
side fee agreement to the trial judge and opposing counsel,” the dissent completely ignores the
possibility that the trial judge might have approved the fees after reviewing the matter in detail
and applying the factors set out in ER 1.5(a). Neither the committee nor the commission
concluded that the fees were unfair. Moreover, because the issue has not properly been
presented to us and there are no findings made by a trial court, which is where the inquiry
properly belongs in the first instance, see Rule 3, Uniform Medical Malpractice Rules, the record
contains little information from which we can independently determine the overall
reasonableness of the fees.
Additionally, the dissent’s criticism of the “terms of respondents’ fee agreement” simply has
nothing to do with the issues presently before us. We also note that it fails to even mention the
fact that, according to both the committee and the commission, the client knowingly and
voluntarily entered into the contract.
In conclusion, we hold that respondents violated their duties of candor and truthfulness pursuant
to ER 3.3(a)(1) and ER 8.4(c) and censure them for their conduct. We emphasize that a judge
acting as mediator is still a judge to whom the ethical duty of candor is owed.
Each respondent is assessed costs in the amount of $1,922.91.
CORCORAN, Justice, dissenting:
I respectfully dissent.
I view the facts in this case differently from the majority. The respondents Fee and Montijo lied
to the settlement judge so that they would get more money and their client would get less
money. It is especially egregious for a lawyer to lie to a judge for the purpose of increasing his
own fees at the direct expense of his client. I cannot agree with the committee, the commission,
and the majority that respondents lacked dishonest or selfish motives. Res ipsa loquitur. Such
conduct warrants at least a suspension and not a mere censure.

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Respondents allege that they intended to reveal their side fee agreement to the trial judge.
However, this assertion does not ring true. If respondents had disclosed their side fee
agreement to the trial judge and opposing counsel, which would have required admitting that
they had lied to the settlement judge, 4 things might have happened: (1) the trial judge could
have refused to honor the side agreement; (2) the trial judge could have referred the matter
back to the settlement judge who possessed the most information about the case; (3)
defendants’ attorneys could have sought to enforce the settlement agreement as communicated
to the settlement judge; or (4) defendants’ attorneys could have sought to withdraw their
settlement offer. Any one of these events would have ruined respondents’ scheme to collect
attorneys’ fees in excess of those communicated to the settlement judge. In addition, all parties
who became aware of the secret fee agreement would have been required to report
respondents’ misconduct to the state bar. In fact, when the settlement judge learned of
respondents’ misconduct, he filed a complaint with the state bar.
I agree with the majority that: (1) “the bulk of ethical rules seem to have been designed with
litigation scenarios in mind,” and (2) there are “few formal guidelines for judicial officers acting
as mediators.” That, however, does not excuse the misconduct here. For lawyers dealing with
judges, whether they be trial or settlement judges, the guiding rule is never lie to or mislead a
judge. Respondents claim that they were lying in order to secure the best settlement agreement
for their client. Nonetheless, it is often the case that lawyers who lie for the client will also lie to
the client.
I also emphasize that the terms of respondents’ fee agreement in conjunction with the secret
side agreement would have resulted in respondents receiving an overwhelmingly
disproportionate share of the client’s up-front cash payment. The client signed three fee
agreements dated October 29, 1986, January 29, 1987, and December 19, 1989. Only the last
fee agreement addressed the possibility of a structured settlement. It provided that “in the event
this case is settled by way of a structured settlement the attorney’s fees will be computed on the
basis of a percentage of the present value of the settlement. The attorney’s fees will be paid out
of the initial cash payment(s).” If respondents had successfully recovered $485,000 in attorneys’
fees payable from the initial cash payment, as contemplated by the side fee agreement, they
would have received 84% of the client’s up-front cash recovery (excluding the $55,000
designated as costs). Furthermore, by collecting their fees from the up-front cash payment,
respondents left the client to bear all the risk that the annuity provider would become insolvent.
A less onerous fee agreement is one in which the plaintiff’s attorney collects his fees only if, as,
and when the plaintiff receives the funds. Under an “if, as, and when received” fee arrangement,
respondents would only have been entitled to 40% of the client’s up-front cash recovery, or
$230,000.
For the above reasons, I agree with the hearing committee, the disciplinary commission, and
state bar counsel that respondents Fee and Montijo should be suspended.
Questions:
1. The parties agreed to a settlement. After the settlement conference, the plaintiff’s
attorneys privately convinced their client to pay them an additional $85,000 from her
cash settlement, and did not disclose that additional fee agreement to the judge. The
majority suggests that the arrangement was ultimately fair to the client, but the dissent
disagrees. What do you think?

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2. Did the client provide informed consent to the additional attorney’s fees? Is the problem
that the respondents convinced their client to pay them an additional $85,000 or that
they didn’t disclose it to the judge?
3. Do you think the punishment was adequate under the circumstances?
Further Readings:
●
●
●
●
●
●

Thomas F. Guernsey, Truthfulness in Negotiation, 17 U. Rich. L. Rev. 99 (1982)
Geoffrey C. Hazard Jr., The Lawyer's Obligation to be Trustworthy When Dealing with
Opposing Parties, 33 S.C. L. Rev. 181 (1981)
Charles B. Craver, Negotiation Ethics: How to Be Deceptive without Being
Dishonest/How to Be Assertive without Being Offensive, 38 S. Tex. L. Rev. 713 (1997)
Geoffrey M. Peters, The Use of Lies in Negotiation, 48 Ohio St. L.J. 1 (1987)
Eleanor H. Norton, Bargaining and the Ethic of Process, 64 N.Y.U. L. Rev. 493 (1989)
Daisy H. Floyd, Can the Judge Do That? — The Need for a Clearer Judicial Role in
Settlement, 26 Ariz. St. L.J. 45 (1994)

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Section 7: The Regulation of the Legal Profession
7.1: Bar Admission
It's nice to be liked, but it's better by far to get paid. I know that most of the friends that I have
don't really see it that way. But if you can give 'em each one wish, how much do you want to bet
they'd wish success for themselves and their friends, and that would include lots of money.107
In the United States, admission to the bar and the regulation of attorneys is governed primarily
by state law. Specifically, the highest court of each state establishes the standards for
admission to the state’s bar and the rules of professional responsibility regulating the conduct of
the members of the state’s bar. Courts uniformly delegate those responsibilities to
administrative organizations. Typically, courts delegate admission to the bar to a board of bar
examiners and delegate the regulation of the bar to a disciplinary board. But the court always
retains the ultimate authority over both admission to the bar and regulation of the bar.
Historically, the practice of law was primarily local. The overwhelming majority of attorneys and
law firms practiced law only in one state and were members of only one state bar. But as the
practice of law has become increasingly national and international and law firms open offices in
multiple states and even foreign countries, the localized regulation of the bar has come into
tension with the non-local practice of law. Members of the state bar may have an incentive to
discourage non-members from joining their bar or practicing in their state. While the desire to
reduce competition is understandable, i
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