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

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andc. is not inconsistent with generally accepted principles of the law of lawyering.”44
Chapter 2Judicial Regulation of LawyersThis chapter focuses on three ways that the judicial branch of government uses its inherentpower to regulate the practice of law. Courts (1) define “the practice of law,” (2) establishrequirements for admission to practice, and (3) administer professional discipline.Few give a second thought to the special power that a law license provides. Yet onlylawyers can “practice law” by launching lawsuits, issuing subpoenas, demanding documentsand testimony, and appearing in courts on behalf of clients. Lawyers also practice law bydrafting legal opinions and legal documents without which transactions would not beconsummated and the wheels of commerce would not turn smoothly. Just as important,lawyers practice law by giving legal advice and offering moral suasion that promotes privaterespect for the law and its requirements. The fact that lawyers regularly exercise all theseprerogatives — and others — should enhance our appreciation and respect for the fact thata law license grants these powers exclusively to members of our profession.We begin this chapter by examining how the inherent power of the courts allows themto define the practice of law to include those licensed to practice law, as well as to excludeboth nonlawyers and lawyers from engaging in the unauthorized practice of law where notadmitted to a particular jurisdiction.Current U.S. restrictions on the unauthorized practice of law originated about acentury ago. In some states, statutes define the restriction and provide for criminal (usuallymisdemeanor) penalties. 1 The first case in this chapter, Campbell, illustrates the otheroption by which courts enforce the restriction through discipline and injunctive reliefrather than criminal penalty. 2 Campbell also illustrates the practice of all states to rely onjudicial definitions for the exact meaning of the practice and the unauthorized practice oflaw.A. Judicial Regulation of the Practice of LawFederal and state courts have identified certain inherent powers essential to maintaining thejudicial branch of government. 3 Most are positive inherent powers; that is, powers thejudicial branch of government finds necessary to perform its constitutionally requiredfunctions. Since judges find lawyers essential to their function, the admission and disciplineof lawyers has long been recognized as one of these positive inherent powers.In the context of lawyer regulation, most courts also recognize a negative inherentpower that enables them to nullify another branch of government’s exercise of the samepower. Courts exercise a negative inherent power when they declare a legislative enactmentunconstitutional because it infringes on the judicial prerogatives to regulate lawyers and to45
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 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 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
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lawyer, reasoning that the interest
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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
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40. MR 2.3; RLGL § 95.41. McIntosh
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the client constitutes abandonment,
Page 122 and 123:
entered an order denying Maples’
Page 124 and 125:
abandonment by counsel continuing t
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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
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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
Page 164 and 165:
The fiduciary relationship between
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me involved in it.Q. “Without get
Page 168 and 169:
“The individual called — I can
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client. . . .The Court of Appeals,
Page 172 and 173:
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
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
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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
Page 196 and 197:
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
Page 202 and 203:
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
Page 220 and 221:
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
Page 228 and 229:
6. E.g., Thomas H. Lee Equity Fund
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15. MR 2.3, RLGL § 95.16. MR 1.16(
Page 232 and 233:
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
Page 242 and 243:
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
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
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15. E.g., N.Y. Jud. Law § 90(4) (M
Page 260 and 261:
In the last three chapters, we saw
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business information, including Mar
Page 264 and 265:
attorneys who breach their fiduciar
Page 266 and 267:
respect to the divorce. Rule [1.12(
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Third, orders granting or denying d
Page 270 and 271:
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
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
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follows automatically, regardless o
Page 288 and 289:
Jonathan W. FELDMAN, United States
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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 §
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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
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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
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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