[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

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B. ControlModel Rules 1.2, 1.4RLGL §§ 20-23, 26, 271. Authority Between Client and LawyerLike other agents, lawyers have a duty to act on the client’s behalf, subject to the client’sright to control the objectives of the representation. 1 At the same time, most clients defer toand rely on their lawyers’ expertise regarding the means to accomplish client goals. TheModel Rules of Professional Conduct and the law of agency recognize three spheres ofauthority between client and lawyer, summarized in the following chart.In the first sphere (the left column), clients retain sole authority to make decisionsconcerning the outcome of the representation, including whether and when to settle orappeal a matter, and in criminal cases, how to plead, whether to waive a jury trial, andwhether to testify. 2 Clients can authorize their lawyers to make a particular decision withinthis sphere, but the ultimate authority of clients to decide cannot be completely ceded totheir lawyers. 3In the second sphere (the right column), lawyers retain sole authority to refuse toperform, to counsel, or to assist a client’s unlawful act, 4 and in spite of client preferences tothe contrary, lawyers also may take actions in tribunals they reasonably believe to be130
required by the law or court order. 5The third sphere of authority (the middle column) includes all other decisions notreserved solely to clients or lawyers. Here, authority is shared, and lawyers and clients canbargain for broad delegation of authority to a lawyer, close continuing consultation with aclient, or some measure of each. 6All three spheres of authority place affirmative duties of communication on lawyersduring a representation. When a decision reserved to a client arises, the lawyer mustpromptly inform and consult with the client about the decision. 7 When a client insists onillegal conduct, the lawyer must promptly inform the client that the conduct is notpermitted and must explain why. 8 In all other aspects of the representation, the lawyermust consult with the client regarding the means to accomplish the client’s objectives, keepthe client reasonably informed, and promptly respond to client inquiries.2. Authority of Lawyer to Act for ClientThe outcome of this consultation creates terms of the engagement or, in agencyterminology, authority, which obligates lawyers to obey the client’s lawful instructions andempowers lawyers to act on behalf of the client. 9 The law of agency recognizes two basickinds of authority that will bind the client-principal to third parties for acts taken by theclient’s lawyer-agent.131
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Traversing the EthicalMinefield2
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David Alan SklanskyStanley Morrison
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Copyright © 2018 CCH Incorporated.
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For PeterandFor Our GrandchildrenVi
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ContentsPrefaceAcknowledgmentsPART
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Problems3. Authority in Representin
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ProblemsC. Compliance with Law or C
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The Law Governing Lawyers: Loss of
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B. Wrongful Discharge1. Inside Coun
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Chapter 16: Judicial EthicsA. Intro
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when Martyn & Fox has a range of op
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AcknowledgmentsWe could not have co
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Attorneys (2015)26
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Chapter 1Lawyers, Role, and LawA. L
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questions why lawyers should apply
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Lawyers who see themselves as trans
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“entire devotion to the interest
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The truth-based rationale for the a
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fosters, such as individual initiat
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that alimony can be negotiated late
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behavior in a civil or criminal cas
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andc. is not inconsistent with gene
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define the practice of law. 4Campbe
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previously prepared by a lawyer”
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power to provide for the deportatio
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other law students, in which he thr
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adversaries, courts, and others wit
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C. Professional Discipline Model Ru
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adversely on their ability to pract
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AHP. He did not inform them that th
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5.1(c)(1).”The Trial Commissioner
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wrongfulness of the conduct and cha
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Chapter 3Beginning the Client-Lawye
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competence because they fear they l
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PIESTER, Magistrate Judge. . . .In
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the peaceful resolution of private
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barriers that block understanding b
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3-6. Should Martyn & Fox represent
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Limited-term pro bono service, wher
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Page 84 and 85: recovered. . . .Practice Pointers:N
Page 86 and 87: Lawyer WebsitesABA Formal Opinion 1
Page 88 and 89: visitors. 22 A particular website m
Page 90 and 91: unbundled limited assistance).10. A
Page 92 and 93: Chapter 4CompetenceThis chapter exp
Page 94 and 95: A third version of the disclosure s
Page 96 and 97: the individuals owning and operatin
Page 98 and 99: to whom counsel owed a duty. Here,
Page 100 and 101: but for defendants’ negligence. P
Page 102 and 103: (b) Should Martyn tell the caller t
Page 104 and 105: which juries do not need an expert
Page 106 and 107: lawyer, reasoning that the interest
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Page 110 and 111: indefinite and perhaps excessive li
Page 112 and 113: immediately because two loans relat
Page 114 and 115: [P]laintiffs’ second claim for re
Page 116 and 117: with intent to defraud or injure an
Page 118 and 119: 40. MR 2.3; RLGL § 95.41. McIntosh
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Page 124 and 125: abandonment by counsel continuing t
Page 126 and 127: The Clients The Sixth Amendment con
Page 128 and 129: counsel for the same crime, or when
Page 132 and 133: Actual authority includes both expr
Page 134 and 135: redirect his actions to release the
Page 136 and 137: impairment that affected “his abi
Page 138 and 139: communicates with a client to ensur
Page 140 and 141: thorough investigation and intervie
Page 142 and 143: efforts” to ensure that the nonla
Page 144 and 145: responded that he was going to be a
Page 146 and 147: guidance in assessing the level of
Page 148 and 149: Here, Blumenfeld was retained to as
Page 150 and 151: 7. In re Gault, 387 U.S. 1 (1966) (
Page 152 and 153: sufficient authority to embrace the
Page 154 and 155: The recognition of confidentiality
Page 156 and 157: was also a friend of AB’s. Unawar
Page 158 and 159: school bus. The loaded bus was knoc
Page 160 and 161: their clients, and apparently acted
Page 162 and 163: took the client as a client. The la
Page 164 and 165: The fiduciary relationship between
Page 166 and 167: me involved in it.Q. “Without get
Page 168 and 169: “The individual called — I can
Page 170 and 171: client. . . .The Court of Appeals,
Page 172 and 173: quoted language from Hickman, howev
Page 174 and 175: context of the drug industry. Howev
Page 176 and 177: Chief Justice REHNQUIST delivered t
Page 178 and 179: enforcement interest is at stake, t
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disclosure, which “heightened her
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After filing suit against petitione
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The determination that Mowbray fulf
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brakes: the ones for the cab worked
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7. Although we do not adopt a cease
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information regarding his client’
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116 N.W.2d 704 (Minn. 1962)THOMAS G
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questionable remedy he may have aga
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The district attorney announces the
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the matter is remanded for further
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advice not to remove documents from
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Moreover, where a law firm believes
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2013, the United States issued a su
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ESG Capital [also] must plead facts
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as part of the fraudulent Facebook
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fraud, deceit, and dishonesty, 17 f
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called “noisy withdrawal”: givi
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Nonetheless, twenty years later, wi
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lawyer who knew his client had kill
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for you to do anything other than w
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crimes. The indictment alleged that
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harshly than the law requires. Beca
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illicit activity for the exception
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point, a successor in interest, suc
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6. E.g., Thomas H. Lee Equity Fund
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15. MR 2.3, RLGL § 95.16. MR 1.16(
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stock at $17 a share. He alleges th
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plaintiffs named him as a defendant
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enforcement officials for the commi
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of this court would have been much
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prejudicial to the administration o
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pardoned for the crime. 12 At the s
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accident in which the Fennimores’
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misrepresentation, in violation of
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sanctionable under Rule 38. We dire
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Thus, in December 1991, when Snyder
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The administrative record in this c
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probate judge. Is Fox in trouble?5.
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I might sum it up in this way: Of c
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15. E.g., N.Y. Jud. Law § 90(4) (M
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In the last three chapters, we saw
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business information, including Mar
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attorneys who breach their fiduciar
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respect to the divorce. Rule [1.12(
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Third, orders granting or denying d
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ability to “recommend or advocate
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4. Employer and Employee Model Rule
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officers to keep Sanford in the res
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C. The Legal Principles. . . The [C
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the contract contained a clause mak
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— in other words, it is within at
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A lawyer’s obligation to communic
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property. Recently, Lawyer prepared
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follows automatically, regardless o
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Jonathan W. FELDMAN, United States
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line of the corporate parent,” la
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During the representation, misunder
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2. Identification of the client org
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1. Restatement (Third) of Agency §
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Chapter 10Conflicts of Interest:Spe
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This statement of general principle
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the ladder at their respective plac
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handle each.Financially, Peter coul
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trying to cover his butt. If the ap
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10-2. Great business development id
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ATo determine whether actual damage
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Section [37] sets out consideration
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require proof of other damages and
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choice. The majority pointed out th
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IV. Ethical Violations. . . Monroe
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10-8. Martyn & Fox represents Big B
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remain focused on the interests of
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which means that the insurer must p
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damages only the insurer. . . .Para
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additional coverage from another ca
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10-11. Martyn & Fox is hired by Ins
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be vicariously liable for abuse of
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Chapter 11Conflicts of Interest: Fo
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obtaining informed consent, the for
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Officials, including the Planning C
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mistaken. A comment to that provisi
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conflict with their representation
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The public’s trust in the legal s
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Plaintiff’s characterization of L
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Kevin Costello provided the only ev
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Several minutes later, as the discu
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client matter is opened by the firm
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ensure that the screened lawyer act
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Lawyers and Clients:Representing Go
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the political or cabinet head of th
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rules of professional conduct and o
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that provided, “All personnel of
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employees, their partners, and thei
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but nevertheless face clients who a
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the extent that she rounds up to mi
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say that the lawyer who agreed to h
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represent Timothy. Fordham describe
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to educate himself in the relevant
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but all lawyers, in terms of their
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Problems12-1. Martyn flies to San F
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contingent fees demonstrates, for a
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the respondent to prepare a will an
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without adequate time or staffing t
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arbitrator awarded Perez $2,100.00,
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We also agree with the board’s de
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jurisdictions. 13 Most important ar
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The Superior Court judge determined
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Moore, which settled the suit for $
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are adequately enforced. Section 19
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far as the court’s opinion reveal
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. . . was far superior to what cons
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3. Burlington v. Dague, 505 U.S. 55
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Let me make clear that the above op
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law. We reached that conclusion the
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inventory included several accounts
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value of the estate fraudulently in
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Securities and Exchange Commission
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Wadler was fired for other reasons,
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discharge, holding that the at-will
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Formal Ethics Opinion No. 116 (2007
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inquire whether the call is regardi
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firm, none of them shall knowingly
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12. Colo. RPC 1.4.14. . . . [T]he l
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Chapter 14The Bounds of the LawA. I
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Lawyers as GatekeepersThe applicati
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Christian v. Mattel, Inc.286 F.3d 1
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deter costly meritless maneuvers, .
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Problem14-4. Martyn & Fox filed a l
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the emails then existing on Mr. Rom
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prejudiced, but not irreparably, fr
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damages for future loss of wages an
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this case, we conclude that the Pan
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and evaluate the appropriateness of
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Networking Website, They may not us
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party’s counsel. . . . Pursuant t
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G. Communication with Unrepresented
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acts or omissions in the matter und
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Martyn & Fox if we will get one of
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Part IVLawyers and Society:The Prof
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I. Under what circumstances does Ru
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applies.IV. Does a lawyer have a du
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ConclusionUnder amended Rule 8.3, a
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[A]s we noted with respect to our a
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to whom the communication is addres
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about those attorneys who use direc
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most critical question by assuming
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11. Attorneys may Advertise on a So
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In Button, the Court overturned a V
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this distinction.Other First Amendm
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due process guarantees. 27 In crimi
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FictitiousLegalReferral.com require
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949 P.2d 1 (Cal. 1998), cert. denie
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B. The Present Case. . . As the Cou
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casebook. For example, we noted tha
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does not always provide more consum
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(2012).4. See The Bounds of the Law
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regulations. 12Unlike lawyers, howe
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All of these categories except pers
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proceeds with eight Justices, raisi
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the Vice President’s guest on Air
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would be proper for me to recuse. T
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Cheney and he never shared a duck b
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persuasive opinion — even if the
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Supreme Court and was serving as it
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unconstitutional risk of bias.As an
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Chief Justice ROBERTS, with whom Ju
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Chief Justice ROBERTS delivered the
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much as a judge’s personal solici
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opportunity to engage in the campai
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practice in controversy”).43. CJC
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Battle v. Thornton, 79Bayview Loan
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Commodity Futures Trading Comm’n
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Forrest, In re, 214, 225Framm; Atto
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Hughes v. Meade, 137, 138, 139, 141
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MMachado v. Statewide Grievance Com
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Palsgraf v. Long Island R.R. Co., 5
Page 532 and 533:
SSabine Pilot Serv. v. Hauck, 382St
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Treinen, In re, 212Tumey v. Ohio, 4
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Table of Model Rules,Restatements,
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1.7 247, 250, 251, 254, 264, 267, 2
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1.12(a) 2361.12(b) 235, 2361.12(c)
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4.1 413, 415, 4754.1 Comment [3] 18
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2-106(B) 341Federal Statutes and Ad
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Colorado Bar Ass’n, Ethics Comm.
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Indiana R. of Prof. Conduct §1.5(a
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§165.042 92§166.715-166.735 92§1
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§31 384§31 Comment 1 97§32 369,
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§95 81, 83, 115§96 54, 110§97 54
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§51 181Restatement (Second) of Tor
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§2.11 Comment 1 457§2.11(A) 458§
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§2.06 213§2.06(3)(a) 213§5.03 21
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Agency law, duty of control, 106-10
Page 564 and 565:
commingling of funds, 354-356common
Page 566 and 567:
what to disclose, 115-116who should
Page 568 and 569:
clear and serious violations, 283cl
Page 570 and 571:
overview, 42-43, 93-94Restatement (
Page 572 and 573:
of lawyers, 225, 227malpractice, 78
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disclosure, 184-185fiduciary duty,
Page 576 and 577:
disqualification of lawyers, 323dut
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Judges. See also Judicial ethicscom
Page 580 and 581:
criminal defense representation, 10
Page 582 and 583:
organizational clients, 261-264over
Page 584 and 585:
Pretrial publicity, First Amendment
Page 586 and 587:
as gatekeepers, 395-396as instrumen
Page 588 and 589:
United Kingdommultidisciplinary pra
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