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

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AcknowledgmentsWe could not have completed this casebook without the accumulated wisdom of hundredsof lawyers who have taught and refined our understanding of these issues. In particular, wethank our colleagues who served as reporters and advisors to the American Law Institute’sRestatement (Third) of The Law Governing Lawyers and those who served with us on theABA Ethics 2000 Commission. We also are indebted to many at the ABA Center forProfessional Responsibility, who provided us with information about recent developmentsexactly when we needed it.The two of us first met in 1987 in a windowless conference room at the American LawInstitute during a meeting of the advisors to the Restatement of the Law GoverningLawyers. These meetings clearly are an acquired taste. The Reporters to Restatementprojects circulate a draft weeks before each meeting, then sit on a raised dais facing asemicircle of 25 or 30 judges, professors, and lawyers to defend each section, comment, andexample line by line, usually for several days at a time. Only the good will and good humorof the participants can make such a process bearable, and we soon found that we wereproviding large doses of both for each other. From our 13-year sojourn with the ALI, abroad friendship developed that also took us into new adventures, including CLE programsand the ABA’s Ethics 2000 project in which we both served as Commissioners to undertakea stem-to-stern review of the ABA Model Rules of Professional Conduct.For us, nothing has been quite like our work on this volume. After Larry returned froma stay in Ithaca, Susan learned of the problems he had developed for his ProfessionalResponsibility course at Cornell Law School and decided they could form the backbone ofa casebook. Susan selected and edited the cases, organized the materials, and wrote thecontinuing notes in the book while teaching the materials to students at the Toledo,Marquette, and George Washington Law Schools. Larry contributed to the third andfourth editions while teaching at Harvard and Yale Law School. In short, we could not havecompleted this book without each other, and we both feel free to blame the other for theflaws that remain.The faculties and students at eight law schools — Cornell, George Washington,Harvard, Marquette, Mitchell-Hamline, the University of Pennsylvania, the University ofToledo, and Yale — contributed to these materials by consulting, arguing, and correctingmany of our mistakes. Others across the country also commented on and helped usformulate our ideas. Our ideas never would have taken shape without the capable, cheerful,and knowledgeable assistance of Bea Cucinotta and the flawless editing of Karin Kobel andLauren Carpenter.Susan would not have had the time to devote to this project without a sabbatical leavegranted by the University of Toledo and the assistance of the Eugene N. Balk Fund, whichprovided the funds to carry out most of the research in the continuing notes. Larry neverwould have been able to develop the problems if it were not for the invitation from CharlesWolfram to escape practice and teach at the Cornell Law School.24
Finally, our thanks to the following for permission to reproduce all or portions of theirwork:Formal Opinion 93-379 © 1993 by the American Bar Association. Reprinted withpermission. All rights reserved. This information or any portion thereof may not becopied or disseminated in any form or by any means or stored in an electronicdatabase or retrieval system without the express written consent of the American BarAssociation.Formal Opinion 94-389 © 1994 by the American Bar Association. Reprinted withpermission. All rights reserved. This information or any portion thereof may not becopied or disseminated in any form or by any means or stored in an electronicdatabase or retrieval system without the express written consent of the American BarAssociation.Formal Opinion 10-457 © 2010 by the American Bar Association. Reprinted withpermission. All rights reserved. This information or any portion thereof may not becopied or disseminated in any form or by any means or stored in an electronicdatabase or retrieval system without the express written consent of the American BarAssociation.Fox, Lawrence. Legal Tender: A Lawyer’s Guide to Handling Professional Dilemmas ©1995 by the American Bar Association. Reprinted with permission. All rights reserved.This information or any portion thereof may not be copied or disseminated in anyform or by any means or stored in an electronic database or retrieval system withoutthe express written consent of the American Bar Association.Fox, Lawrence. Raise the Bar: Real World Solutions for a Troubled Profession © 2007by the American Bar Association. Reprinted with permission. All rights reserved. Thisinformation or any portion thereof may not be copied or disseminated in any form orby any means or stored in an electronic database or retrieval system without theexpress written consent of the American Bar Association.Colorado Bar Association Ethics Opinions 116 (2007) and 122 (2010). Reprinted bypermission.Kentucky Bar Association, Ethics Opinion E-430 (2010)Leo Cullum/The New Yorker Collection/The Cartoon BankCarolina Academic Press LLC. Reprinted from Understanding Lawyers’ Ethics Fifth Ed.with permission. Copyright 2016. Carolina Academic Press LLC, All Rights Reserved.Oxford University Press, In The Interests of Justice: Reforming the Legal Profession byDeborah L. Rhode (2000). 2,411 words from pp. 49-79. By permission of OxfordUniversity Press, Inc.Professional Ethics Committee for the State Bar of Texas, Opinion 583 (2008)Tom Cheney/The New Yorker Collection/The Cartoon BankWest Virginia Lawyer Disciplinary Board, L.E.O. No. 2015-02 Social Media and25
Page 2 and 3: Traversing the EthicalMinefield2
Page 4 and 5: David Alan SklanskyStanley Morrison
Page 6 and 7: Copyright © 2018 CCH Incorporated.
Page 8 and 9: For PeterandFor Our GrandchildrenVi
Page 10 and 11: ContentsPrefaceAcknowledgmentsPART
Page 12 and 13: Problems3. Authority in Representin
Page 14 and 15: ProblemsC. Compliance with Law or C
Page 16 and 17: The Law Governing Lawyers: Loss of
Page 18 and 19: B. Wrongful Discharge1. Inside Coun
Page 20 and 21: Chapter 16: Judicial EthicsA. Intro
Page 22 and 23: when Martyn & Fox has a range of op
Page 26 and 27: Attorneys (2015)26
Page 28 and 29: Chapter 1Lawyers, Role, and LawA. L
Page 30 and 31: questions why lawyers should apply
Page 32 and 33: Lawyers who see themselves as trans
Page 34 and 35: “entire devotion to the interest
Page 36 and 37: The truth-based rationale for the a
Page 38 and 39: fosters, such as individual initiat
Page 40 and 41: that alimony can be negotiated late
Page 42 and 43: behavior in a civil or criminal cas
Page 44 and 45: andc. is not inconsistent with gene
Page 46 and 47: define the practice of law. 4Campbe
Page 48 and 49: previously prepared by a lawyer”
Page 50 and 51: power to provide for the deportatio
Page 52 and 53: other law students, in which he thr
Page 54 and 55: adversaries, courts, and others wit
Page 56 and 57: C. Professional Discipline Model Ru
Page 58 and 59: adversely on their ability to pract
Page 60 and 61: AHP. He did not inform them that th
Page 62 and 63: 5.1(c)(1).”The Trial Commissioner
Page 64 and 65: wrongfulness of the conduct and cha
Page 66 and 67: Chapter 3Beginning the Client-Lawye
Page 68 and 69: competence because they fear they l
Page 70 and 71: PIESTER, Magistrate Judge. . . .In
Page 72 and 73: the peaceful resolution of private
Page 74 and 75:
barriers that block understanding b
Page 76 and 77:
3-6. Should Martyn & Fox represent
Page 78 and 79:
Limited-term pro bono service, wher
Page 80 and 81:
Lawyers cannot recognize or solve a
Page 82 and 83:
Togstad that he would consult with
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
Page 108 and 109:
Crawford had pledged to it had prev
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
Page 120 and 121:
the client constitutes abandonment,
Page 122 and 123:
entered an order denying Maples’
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 130 and 131:
B. ControlModel Rules 1.2, 1.4RLGL
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
Page 180 and 181:
disclosure, which “heightened her
Page 182 and 183:
After filing suit against petitione
Page 184 and 185:
The determination that Mowbray fulf
Page 186 and 187:
brakes: the ones for the cab worked
Page 188 and 189:
7. Although we do not adopt a cease
Page 190 and 191:
information regarding his client’
Page 192 and 193:
116 N.W.2d 704 (Minn. 1962)THOMAS G
Page 194 and 195:
questionable remedy he may have aga
Page 196 and 197:
The district attorney announces the
Page 198 and 199:
the matter is remanded for further
Page 200 and 201:
advice not to remove documents from
Page 202 and 203:
Moreover, where a law firm believes
Page 204 and 205:
2013, the United States issued a su
Page 206 and 207:
ESG Capital [also] must plead facts
Page 208 and 209:
as part of the fraudulent Facebook
Page 210 and 211:
fraud, deceit, and dishonesty, 17 f
Page 212 and 213:
called “noisy withdrawal”: givi
Page 214 and 215:
Nonetheless, twenty years later, wi
Page 216 and 217:
lawyer who knew his client had kill
Page 218 and 219:
for you to do anything other than w
Page 220 and 221:
crimes. The indictment alleged that
Page 222 and 223:
harshly than the law requires. Beca
Page 224 and 225:
illicit activity for the exception
Page 226 and 227:
point, a successor in interest, suc
Page 228 and 229:
6. E.g., Thomas H. Lee Equity Fund
Page 230 and 231:
15. MR 2.3, RLGL § 95.16. MR 1.16(
Page 232 and 233:
stock at $17 a share. He alleges th
Page 234 and 235:
plaintiffs named him as a defendant
Page 236 and 237:
enforcement officials for the commi
Page 238 and 239:
of this court would have been much
Page 240 and 241:
prejudicial to the administration o
Page 242 and 243:
pardoned for the crime. 12 At the s
Page 244 and 245:
accident in which the Fennimores’
Page 246 and 247:
misrepresentation, in violation of
Page 248 and 249:
sanctionable under Rule 38. We dire
Page 250 and 251:
Thus, in December 1991, when Snyder
Page 252 and 253:
The administrative record in this c
Page 254 and 255:
probate judge. Is Fox in trouble?5.
Page 256 and 257:
I might sum it up in this way: Of c
Page 258 and 259:
15. E.g., N.Y. Jud. Law § 90(4) (M
Page 260 and 261:
In the last three chapters, we saw
Page 262 and 263:
business information, including Mar
Page 264 and 265:
attorneys who breach their fiduciar
Page 266 and 267:
respect to the divorce. Rule [1.12(
Page 268 and 269:
Third, orders granting or denying d
Page 270 and 271:
ability to “recommend or advocate
Page 272 and 273:
4. Employer and Employee Model Rule
Page 274 and 275:
officers to keep Sanford in the res
Page 276 and 277:
C. The Legal Principles. . . The [C
Page 278 and 279:
the contract contained a clause mak
Page 280 and 281:
— in other words, it is within at
Page 282 and 283:
A lawyer’s obligation to communic
Page 284 and 285:
property. Recently, Lawyer prepared
Page 286 and 287:
follows automatically, regardless o
Page 288 and 289:
Jonathan W. FELDMAN, United States
Page 290 and 291:
line of the corporate parent,” la
Page 292 and 293:
During the representation, misunder
Page 294 and 295:
2. Identification of the client org
Page 296 and 297:
1. Restatement (Third) of Agency §
Page 298 and 299:
Chapter 10Conflicts of Interest:Spe
Page 300 and 301:
This statement of general principle
Page 302 and 303:
the ladder at their respective plac
Page 304 and 305:
handle each.Financially, Peter coul
Page 306 and 307:
trying to cover his butt. If the ap
Page 308 and 309:
10-2. Great business development id
Page 310 and 311:
ATo determine whether actual damage
Page 312 and 313:
Section [37] sets out consideration
Page 314 and 315:
require proof of other damages and
Page 316 and 317:
choice. The majority pointed out th
Page 318 and 319:
IV. Ethical Violations. . . Monroe
Page 320 and 321:
10-8. Martyn & Fox represents Big B
Page 322 and 323:
remain focused on the interests of
Page 324 and 325:
which means that the insurer must p
Page 326 and 327:
damages only the insurer. . . .Para
Page 328 and 329:
additional coverage from another ca
Page 330 and 331:
10-11. Martyn & Fox is hired by Ins
Page 332 and 333:
be vicariously liable for abuse of
Page 334 and 335:
Chapter 11Conflicts of Interest: Fo
Page 336 and 337:
obtaining informed consent, the for
Page 338 and 339:
Officials, including the Planning C
Page 340 and 341:
mistaken. A comment to that provisi
Page 342 and 343:
conflict with their representation
Page 344 and 345:
The public’s trust in the legal s
Page 346 and 347:
Plaintiff’s characterization of L
Page 348 and 349:
Kevin Costello provided the only ev
Page 350 and 351:
Several minutes later, as the discu
Page 352 and 353:
client matter is opened by the firm
Page 354 and 355:
ensure that the screened lawyer act
Page 356 and 357:
Lawyers and Clients:Representing Go
Page 358 and 359:
the political or cabinet head of th
Page 360 and 361:
rules of professional conduct and o
Page 362 and 363:
that provided, “All personnel of
Page 364 and 365:
employees, their partners, and thei
Page 366 and 367:
but nevertheless face clients who a
Page 368 and 369:
the extent that she rounds up to mi
Page 370 and 371:
say that the lawyer who agreed to h
Page 372 and 373:
represent Timothy. Fordham describe
Page 374 and 375:
to educate himself in the relevant
Page 376 and 377:
but all lawyers, in terms of their
Page 378 and 379:
Problems12-1. Martyn flies to San F
Page 380 and 381:
contingent fees demonstrates, for a
Page 382 and 383:
the respondent to prepare a will an
Page 384 and 385:
without adequate time or staffing t
Page 386 and 387:
arbitrator awarded Perez $2,100.00,
Page 388 and 389:
We also agree with the board’s de
Page 390 and 391:
jurisdictions. 13 Most important ar
Page 392 and 393:
The Superior Court judge determined
Page 394 and 395:
Moore, which settled the suit for $
Page 396 and 397:
are adequately enforced. Section 19
Page 398 and 399:
far as the court’s opinion reveal
Page 400 and 401:
. . . was far superior to what cons
Page 402 and 403:
3. Burlington v. Dague, 505 U.S. 55
Page 404 and 405:
Let me make clear that the above op
Page 406 and 407:
law. We reached that conclusion the
Page 408 and 409:
inventory included several accounts
Page 410 and 411:
value of the estate fraudulently in
Page 412 and 413:
Securities and Exchange Commission
Page 414 and 415:
Wadler was fired for other reasons,
Page 416 and 417:
discharge, holding that the at-will
Page 418 and 419:
Formal Ethics Opinion No. 116 (2007
Page 420 and 421:
inquire whether the call is regardi
Page 422 and 423:
firm, none of them shall knowingly
Page 424 and 425:
12. Colo. RPC 1.4.14. . . . [T]he l
Page 426 and 427:
Chapter 14The Bounds of the LawA. I
Page 428 and 429:
Lawyers as GatekeepersThe applicati
Page 430 and 431:
Christian v. Mattel, Inc.286 F.3d 1
Page 432 and 433:
deter costly meritless maneuvers, .
Page 434 and 435:
Problem14-4. Martyn & Fox filed a l
Page 436 and 437:
the emails then existing on Mr. Rom
Page 438 and 439:
prejudiced, but not irreparably, fr
Page 440 and 441:
damages for future loss of wages an
Page 442 and 443:
this case, we conclude that the Pan
Page 444 and 445:
and evaluate the appropriateness of
Page 446 and 447:
Networking Website, They may not us
Page 448 and 449:
party’s counsel. . . . Pursuant t
Page 450 and 451:
G. Communication with Unrepresented
Page 452 and 453:
acts or omissions in the matter und
Page 454 and 455:
Martyn & Fox if we will get one of
Page 456 and 457:
Part IVLawyers and Society:The Prof
Page 458 and 459:
I. Under what circumstances does Ru
Page 460 and 461:
applies.IV. Does a lawyer have a du
Page 462 and 463:
ConclusionUnder amended Rule 8.3, a
Page 464 and 465:
[A]s we noted with respect to our a
Page 466 and 467:
to whom the communication is addres
Page 468 and 469:
about those attorneys who use direc
Page 470 and 471:
most critical question by assuming
Page 472 and 473:
11. Attorneys may Advertise on a So
Page 474 and 475:
In Button, the Court overturned a V
Page 476 and 477:
this distinction.Other First Amendm
Page 478 and 479:
due process guarantees. 27 In crimi
Page 480 and 481:
FictitiousLegalReferral.com require
Page 482 and 483:
949 P.2d 1 (Cal. 1998), cert. denie
Page 484 and 485:
B. The Present Case. . . As the Cou
Page 486 and 487:
casebook. For example, we noted tha
Page 488 and 489:
does not always provide more consum
Page 490 and 491:
(2012).4. See The Bounds of the Law
Page 492 and 493:
regulations. 12Unlike lawyers, howe
Page 494 and 495:
All of these categories except pers
Page 496 and 497:
proceeds with eight Justices, raisi
Page 498 and 499:
the Vice President’s guest on Air
Page 500 and 501:
would be proper for me to recuse. T
Page 502 and 503:
Cheney and he never shared a duck b
Page 504 and 505:
persuasive opinion — even if the
Page 506 and 507:
Supreme Court and was serving as it
Page 508 and 509:
unconstitutional risk of bias.As an
Page 510 and 511:
Chief Justice ROBERTS, with whom Ju
Page 512 and 513:
Chief Justice ROBERTS delivered the
Page 514 and 515:
much as a judge’s personal solici
Page 516 and 517:
opportunity to engage in the campai
Page 518 and 519:
practice in controversy”).43. CJC
Page 520 and 521:
Battle v. Thornton, 79Bayview Loan
Page 522 and 523:
Commodity Futures Trading Comm’n
Page 524 and 525:
Forrest, In re, 214, 225Framm; Atto
Page 526 and 527:
Hughes v. Meade, 137, 138, 139, 141
Page 528 and 529:
MMachado v. Statewide Grievance Com
Page 530 and 531:
Palsgraf v. Long Island R.R. Co., 5
Page 532 and 533:
SSabine Pilot Serv. v. Hauck, 382St
Page 534 and 535:
Treinen, In re, 212Tumey v. Ohio, 4
Page 536 and 537:
Table of Model Rules,Restatements,
Page 538 and 539:
1.7 247, 250, 251, 254, 264, 267, 2
Page 540 and 541:
1.12(a) 2361.12(b) 235, 2361.12(c)
Page 542 and 543:
4.1 413, 415, 4754.1 Comment [3] 18
Page 544 and 545:
2-106(B) 341Federal Statutes and Ad
Page 546 and 547:
Colorado Bar Ass’n, Ethics Comm.
Page 548 and 549:
Indiana R. of Prof. Conduct §1.5(a
Page 550 and 551:
§165.042 92§166.715-166.735 92§1
Page 552 and 553:
§31 384§31 Comment 1 97§32 369,
Page 554 and 555:
§95 81, 83, 115§96 54, 110§97 54
Page 556 and 557:
§51 181Restatement (Second) of Tor
Page 558 and 559:
§2.11 Comment 1 457§2.11(A) 458§
Page 560 and 561:
§2.06 213§2.06(3)(a) 213§5.03 21
Page 562 and 563:
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
Page 574 and 575:
disclosure, 184-185fiduciary duty,
Page 576 and 577:
disqualification of lawyers, 323dut
Page 578 and 579:
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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