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

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David Alan SklanskyStanley Morrison Professor of LawFaculty Co-Director, Stanford Criminal Justice CenterStanford Law School4
ASPEN CASEBOOK SERIESTraversing the EthicalMinefield_______________________Problems, Law, and ProfessionalResponsibilityFourth EditionSusan R. MartynDistinguished University ProfessorStoepler Professor of Law and Values EmeritusUniversity of Toledo College of LawLawrence J. FoxPartner, Schoeman Updike Kaufman & GerberGeorge W. and Sadella D. CrawfordVisiting Lecturer in Law, Yale Law School5
Page 2 and 3: Traversing the EthicalMinefield2
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 24 and 25: AcknowledgmentsWe could not have co
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
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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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Lawyers cannot recognize or solve a
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Togstad that he would consult with
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recovered. . . .Practice Pointers:N
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Lawyer WebsitesABA Formal Opinion 1
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visitors. 22 A particular website m
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unbundled limited assistance).10. A
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Chapter 4CompetenceThis chapter exp
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A third version of the disclosure s
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the individuals owning and operatin
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to whom counsel owed a duty. Here,
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but for defendants’ negligence. P
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(b) Should Martyn tell the caller t
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which juries do not need an expert
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lawyer, reasoning that the interest
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Crawford had pledged to it had prev
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indefinite and perhaps excessive li
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immediately because two loans relat
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[P]laintiffs’ second claim for re
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with intent to defraud or injure an
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40. MR 2.3; RLGL § 95.41. McIntosh
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the client constitutes abandonment,
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entered an order denying Maples’
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abandonment by counsel continuing t
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The Clients The Sixth Amendment con
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counsel for the same crime, or when
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B. ControlModel Rules 1.2, 1.4RLGL
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Actual authority includes both expr
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redirect his actions to release the
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impairment that affected “his abi
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communicates with a client to ensur
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thorough investigation and intervie
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efforts” to ensure that the nonla
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responded that he was going to be a
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guidance in assessing the level of
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Here, Blumenfeld was retained to as
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7. In re Gault, 387 U.S. 1 (1966) (
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sufficient authority to embrace the
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The recognition of confidentiality
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was also a friend of AB’s. Unawar
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school bus. The loaded bus was knoc
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their clients, and apparently acted
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took the client as a client. The la
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The fiduciary relationship between
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me involved in it.Q. “Without get
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“The individual called — I can
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client. . . .The Court of Appeals,
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quoted language from Hickman, howev
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context of the drug industry. Howev
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Chief Justice REHNQUIST delivered t
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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
Page 292 and 293:
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
Page 322 and 323:
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
Page 338 and 339:
Officials, including the Planning C
Page 340 and 341:
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
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,
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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
Page 414 and 415:
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
Page 424 and 425:
12. Colo. RPC 1.4.14. . . . [T]he l
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Chapter 14The Bounds of the LawA. I
Page 428 and 429:
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
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
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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
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I. Under what circumstances does Ru
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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
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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
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
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regulations. 12Unlike lawyers, howe
Page 494 and 495:
All of these categories except pers
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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
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persuasive opinion — even if the
Page 506 and 507:
Supreme Court and was serving as it
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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
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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
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commingling of funds, 354-356common
Page 566 and 567:
what to disclose, 115-116who should
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clear and serious violations, 283cl
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overview, 42-43, 93-94Restatement (
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of lawyers, 225, 227malpractice, 78
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disclosure, 184-185fiduciary duty,
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disqualification of lawyers, 323dut
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Judges. See also Judicial ethicscom
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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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