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

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firm, none of them shall knowingly represent a client when any one of them practicingalone would be prohibited from doing so by Colo. RPC 1.7, 1.8(c), [or] 1.9. . . . 35 The ruleof imputed disqualification flows from the premise that a firm of lawyers is essentially onelawyer for purposes of the rules governing loyalty to the client. Thus, when the departinglawyer brings clients to his or her new firm, they become the new firm’s clients. Likewise,the new firm’s clients become the departing lawyer’s clients.Because of the rules concerning imputed disqualification, the departing lawyer and thenew firm must perform a thorough conflicts check. This conflicts check should be designedto determine whether the departing lawyer’s association with the new firm may involveconflicts of interest based on consideration of the departing lawyer’s current and formerclients. The process of checking for conflicts of interest may, in some circumstances, beundertaken prior to the departing lawyer’s affiliation with the new firm. 38G. Restrictions on the Right to PracticeColo. RPC 5.6(a) provides that a lawyer shall not participate in offering or making a“partnership or employment agreement that restricts the right of a lawyer to practice aftertermination of the relationship, except an agreement concerning benefits upon retirementor as permitted by Rule 1.17 [regarding the sale of a law practice].” The comment to Rule5.6 provides that such an agreement “not only limits the lawyer’s professional autonomybut also limits the freedom of clients to choose a lawyer.”In Colorado, an agreement prohibiting a departing lawyer from soliciting clients afterdeparture from a firm impermissibly impairs the client’s right to discharge and choosecounsel, and may lead to discipline for the offending attorney. Courts in many otherjurisdictions have refused to enforce agreements between lawyers and law firms that theyviewed as anti-competitive. While a departing lawyer must be mindful of the lawyer’sfiduciary obligations to the firm and of the existing contractual relations between the firmand affected clients, the lawyer may not agree to, and the firm must not impose, conditionsthat might inhibit a client’s right to choose counsel.H. Duty of CandorRegardless of the nature of the departure, a departing lawyer and firm each have a dutyto act with candor toward the other. . . . The duty of candor, as well as Rule 8.4(c), may bebreached by a lawyer who misrepresents the lawyer’s status or intentions to others at thefirm, and vice versa.While a discussion of the legal, as opposed to ethical, duties of lawyers is beyond thescope of this opinion, lawyers and firms contemplating a dissolution or departure shouldgive careful consideration to their respective legal duties, including potential obligationsbased on their contractual, agency, or fiduciary relationships. A departing lawyer shouldconsider the consequences that may arise from contacting clients and attempting to obtainconsent to transfer matters to the departing lawyer in advance of notifying the firm, or in422
denying to the firm the lawyer’s intention to depart. Firms likewise should consider theconsequences of similar actions prior to the contemplated departure of a lawyer who is notyet aware of impending change. 42 Such actions by a departing lawyer or a firm may reflect alack of candor.Problem13-5. Star Associate at Martyn & Fox is fed up and quits. Outstanding work. Loved byclients. Unappreciated. One day, she darkens Fox’s door. “Smith & Wolfman opens onMonday. I have letters from 55 clients asking for their files to be sent to my new firm. Youshould have given me that raise!” Can Martyn & Fox do anything?1. See, e.g., Pane v. Goffs, 2009 WL 1119480 (Mass. App. unpublished); Kelly v. Hunton & Williams,1999 WL408416 (E.D.N.Y.); Wieder v. Skala, 609 N.E. 2d 105 (N.Y. 1992).2. E. Norman Veasey & Christine T. DiGuglielmo, Indispensable Counsel: The Chief Legal Officer in the New Reality27-34 (Oxford U. Press 2010).3. Mark A. Rothstein et al., Employment Law § 9.1 (5th ed., West 2015).4. Petermann v. Teamsters Local 396, 344 P.2d 25 (Cal. App. 1959).5. See Restatement of the Law (Third) Employment Law, Chapter 5 (2017).6. See Rothstein, supra note 3, at §§ 9.2-9.6; see Lionel J. Postic, Wrongful Termination: A State-by-State Survey (BNA1994).7. See Daniel P. Westman & Nancy M. Modesitt, Whistleblowing: The Law of Retaliatory Discharge (BNA 2d ed.,2004).8. See, e.g., Sabine Pilot Service v. Hauck, 687 S.W.2d 733 (Tex. 1985).9. See, e.g., Delaney v. Taco Time Int’l. Inc., 681 P.2d 114 (Or. 1984) (potential defamation).10. See, e.g., Minn. Stat. § 181.932 (2017); N.Y. Lab. Law § 740 (2017); Tenn. Code § 50-1-304 (2017).11. Rothstein, supra note 3, at §§ 8.10-8.11.12. See Theresa Ludwig Kruk, Recovery for Discharge from Employment in Retaliation for Filing Workers’ CompensationClaim, 32 A.L.R. 4th 1221 (1984).13. Rothstein, supra note 3, at § 8.13.14. See, e.g., Heckman v. Zurich Holding Co. of America, 242 F. R. D. 606 (D. Kan. 2007) (citing cases).15. Burkhart v. Semitool, Inc., 5 P.3d 1031 (Mont. 2000) (refusing to prepare fraudulent patent applications); Kellyv. Hunton & Williams, 1999 U.S. Dist. Lexis 9139 (E.D.N.Y.) (associate fired in retaliation for reporting partner’sfraud to the firm; “Billing for hours not worked is fraud.”).16. Wieder v. Skala, 609 N.E. 2d 105 (N.Y. 1992).17. See, e.g., Crews v. Buckman Laboratories Int’l Inc., 78 S.W.3d 852 (Tenn. 2002) (inside counsel whose employerconfiscated her computer, placed her on temporary leave, and gave her a notice of termination fairly raised allegation ofconstructive discharge, as she did not leave voluntarily and a reasonable person would have felt compelled to resign).But see GTE Prod. Corp. v. Stewart, 653 N.E.2d 161 (Mass. 1995) (inside counsel quit after one distressing interviewwith a supervisor).18. 584 N.E.2d 104 (Ill. 1991).19. See, e.g., EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir. 2006), cert. denied, 549 U.S. 815 (federal and statewhistleblower statutes provide protection mainly for public sector employees who disclose illegal acts of theirgovernment employers).4. Robert W. Hillman, Hillman on Lawyer Mobility, (“Hillman”), Chapter 2, § 2.3.1 (2000 Supplement).7. Colo. RPC 1.16(a)(1).8. Colo. RPC 1.16(a)(2).423
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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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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
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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
Page 372 and 373: represent Timothy. Fordham describe
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Page 376 and 377: but all lawyers, in terms of their
Page 378 and 379: Problems12-1. Martyn flies to San F
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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
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Page 398 and 399: far as the court’s opinion reveal
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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
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Page 418 and 419: Formal Ethics Opinion No. 116 (2007
Page 420 and 421: inquire whether the call is regardi
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
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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
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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 (
Page 572 and 573:
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
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organizational clients, 261-264over
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Pretrial publicity, First Amendment
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as gatekeepers, 395-396as instrumen
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United Kingdommultidisciplinary pra
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