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

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practice in controversy”).43. CJC Rule 2.11(A)(6); e.g., Lee v. State, 735 N.E.2d 1169 (Ind. 1999) (judge who gained information from priorproceeding involving accomplice not required to recuse). Cf. Village of Exeter v. Kahler, 606 N.W.2d 862 (Neb. App.2000) (judge who gained information from an earlier proceeding involving the same party disqualified).44. Some courts add that the source of bias must be extrajudicial, that is, personal, rather than originating in thejudicial proceeding itself. E.g., Farmer v. State, 770 So. 2d 953 (Miss. 2000). The Supreme Court prefers to call theextrajudicial source doctrine a “factor” in determining whether bias or partiality was present. Liteky v. United States,510 U.S. 540 (1995) (judge’s opinions did not amount to bias or partiality unless they displayed a deep-seatedfavoritism or antagonism that would make fair judgment impossible).45. Bassett & Perschbacher, supra note 36, at 35-39 (describing various forms of cognitive bias).46. Id. at 40-41.47. See, e.g., Williams v. United States, 48 F. Supp. 2d 52 (D.D.C. 1999) (recusal not required where federal judgeruled on meaning of statute that affected federal judicial salaries).48. CJC Rule 2.11(C). Cf. MR 1.7(b), 1.0(e); e.g., Matter of Platt, 8 P.3d 686 (Kan. 2000) (judge whose waiverprocedure required non-consenting parties to fire counsel or seek statutory disqualification publicly censured forimproper coercive procedures).49. CJC Rule 3.1.50. CJC Rules 3.3-3.11.51. CJC Rules 3.12-3.15.52. CJC Rule 3.13.4. United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), at least involved a judge’s going on vacation — but notwith the named defendant in an official-action suit. The judge had departed for a vacation with the prosecutor ofMurphy’s case, immediately after sentencing Murphy. Obviously, the prosecutor is personally involved in the outcomeof the case in a way that the nominal defendant in an official-action suit is not.1. U.S. Const. Art. II, § 2, cl.2.2. Alexander Hamilton, Federalist Papers No. 78, available athttps://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-78 (last visited July18, 2016).3. CJC Rule 4.1.4. Republican Party of Minn. v. White, 536 U.S. 765 (2002).5. ABA Center for Prof. Responsibility, Model Code of Judicial Conduct 147 (2007 ed.); see also Citizen’s United v.Fed. Election Comm’n, 558 U.S. 310, 910 (2010) (upholding Caperton’s rule that Due Process might require the judgeto be recused, but clarifying that a judicial candidate’s political speech could not be banned).6. CJC Rule 2.11(A)(5).518
Table of CasesPrincipal cases are indicated by italics.AA. v. B., 251, 322Abbott v. Kidder Peabody & Co., 106Abrams, In re, 212ACLU of Ind. v. Individual Members of Ind. State Bd. of Law Exam’rs, 24Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 390Aetna Life Ins. Co. v. Lavoie, 473Aitken, In re, 182Akzo Novel Chem. Ltd. v. European Comm’n, 451Albanese, Estate of v. Lolio, 82Ambase Corp. v. Davis Polk & Wardwell, 79American Cont’l Corp./Lincoln Savs. & Loan Sec. Litig., In re, 171American Home Assurance Co. v. Golomb, 333, 344American Ins. Ass’n v. Kentucky Bar Ass’n, 291Anderson, In re Petition of, 214Anderson v. O’Brien, 247, 395Anderson v. Schoenhorn, 249Anonymous, Matter of, 127, 225Armstrong v. McAlpin, 238Ashton v. Knight Transp., Inc., 402Attorney Grievance Comm’n v. See name of opposing partyAustralian Mining & Smelting Europe, Ltd. v. Commission, 451BBailey v. Tucker, 75Baird v. State Bar of Ariz., 24Baker v. Dorfman, 182Balla v. Gambro, Inc., 378, 383Barner v. Leeds, 104Barton v. United States Dist. Court, 65Bass; People v., 103Bates v. State Bar of Ariz., 432, 439, 440519
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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
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represent Timothy. Fordham describe
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to educate himself in the relevant
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but all lawyers, in terms of their
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Problems12-1. Martyn flies to San F
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contingent fees demonstrates, for a
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the respondent to prepare a will an
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without adequate time or staffing t
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arbitrator awarded Perez $2,100.00,
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We also agree with the board’s de
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jurisdictions. 13 Most important ar
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The Superior Court judge determined
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Moore, which settled the suit for $
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are adequately enforced. Section 19
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far as the court’s opinion reveal
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. . . was far superior to what cons
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3. Burlington v. Dague, 505 U.S. 55
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Let me make clear that the above op
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law. We reached that conclusion the
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inventory included several accounts
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value of the estate fraudulently in
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Securities and Exchange Commission
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Wadler was fired for other reasons,
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discharge, holding that the at-will
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Formal Ethics Opinion No. 116 (2007
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inquire whether the call is regardi
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firm, none of them shall knowingly
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12. Colo. RPC 1.4.14. . . . [T]he l
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Chapter 14The Bounds of the LawA. I
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Lawyers as GatekeepersThe applicati
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Christian v. Mattel, Inc.286 F.3d 1
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deter costly meritless maneuvers, .
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Problem14-4. Martyn & Fox filed a l
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the emails then existing on Mr. Rom
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prejudiced, but not irreparably, fr
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damages for future loss of wages an
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this case, we conclude that the Pan
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and evaluate the appropriateness of
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Networking Website, They may not us
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party’s counsel. . . . Pursuant t
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G. Communication with Unrepresented
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acts or omissions in the matter und
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Martyn & Fox if we will get one of
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Part IVLawyers and Society:The Prof
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I. Under what circumstances does Ru
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applies.IV. Does a lawyer have a du
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ConclusionUnder amended Rule 8.3, a
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[A]s we noted with respect to our a
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to whom the communication is addres
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Page 474 and 475: In Button, the Court overturned a V
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Page 478 and 479: due process guarantees. 27 In crimi
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Page 484 and 485: B. The Present Case. . . As the Cou
Page 486 and 487: casebook. For example, we noted tha
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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
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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 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
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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
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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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