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

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Lawyer WebsitesABA Formal Opinion 10-457American Bar Association Standing Committee on Ethics and Professional ResponsibilityI. IntroductionMany lawyers and law firms have established websites as a means of communicating withthe public. A lawyer website can provide to anyone with Internet access a wide array ofinformation about the law, legal institutions, and the value of legal services. Websites alsooffer lawyers a twenty-four hour marketing tool by calling attention to the particularqualifications of a lawyer or a law firm, explaining the scope of the legal services theyprovide and describing their clientele, and adding an electronic link to contact anindividual lawyer.The obvious benefit of this information can diminish or disappear if the website visitormisunderstands or is misled by website information and features. A website visitor mightrely on general legal information to answer a personal legal question. Another might assumethat a website’s provision of direct electronic contact to a lawyer implies that the lawyeragrees to preserve the confidentiality of information disclosed by website visitors.For lawyers, website marketing can give rise to the problem of unanticipated reliance orunexpected inquiries or information from website visitors seeking legal advice. This opinionaddresses some of the ethical obligations that lawyers should address in considering thecontent and features of their websites.II. Website Content . . .B. Information about the LawLawyers have long offered legal information to the public in a variety of ways, such as bywriting books or articles, giving talks to groups, or staffing legal hotlines. Lawyer websitesalso can assist the public in understanding the law and in identifying when and how toobtain legal services. . . .Legal information, like information about a lawyer or the lawyer’s services, must meetthe requirements of Rules 7.1, 8.4(c), and 4.1(a). Lawyers may offer accurate legalinformation that does not materially mislead reasonable readers. . . . Although no exact linecan be drawn between legal information and legal advice, both the context and content ofthe information offered are helpful in distinguishing between the two.With respect to context, lawyers who speak to groups generally have been characterizedas offering only general legal information. With respect to content, lawyers who answerfact-specific legal questions may be characterized as offering personal legal advice, especiallyif the lawyer is responding to a question that can reasonably be understood to refer to thequestioner’s individual circumstances. However, a lawyer who poses and answers ahypothetical question usually will not be characterized as offering legal advice. To avoid86
misunderstanding, our previous opinions have recommended that lawyers who providegeneral legal information include statements that characterize the information as general innature and caution that it should not be understood as a substitute for personal legal advice.Such a warning is especially useful for website visitors who may be inexperienced inusing legal services, and may believe that they can rely on general legal information to solvetheir specific problem. It would be prudent to avoid any misunderstanding by warningvisitors that the legal information provided is general and should not be relied on as legaladvice, and by explaining that legal advice cannot be given without full consideration of allrelevant information relating to the visitor’s individual situation.C. Website Visitor InquiriesInquiries from a website visitor about legal advice or representation may raise an issueconcerning the application of Rule 1.18 (Duties to Prospective Clients). Rule 1.18 protectsthe confidentiality of prospective client communications. It also recognizes several waysthat lawyers may limit subsequent disqualification based on these prospective clientdisclosures when they decide not to undertake a matter.Rule 1.18(a) addresses whether the inquirer has become a “prospective client,” definedas “a person who discusses with a lawyer the possibility of forming a client-lawyerrelationship.” To “discuss,” meaning to talk about, generally contemplates a two-waycommunication, which necessarily must begin with an initial communication. Rule 1.18implicitly recognizes that this initial communication can come either from a lawyer or aperson who wishes to become a prospective client.Rule 1.18, Comment [2] also recognizes that not all initial communications frompersons who wish to be prospective clients necessarily result in a “discussion” within themeaning of the rule: “a person who communicates information unilaterally to a lawyer,without any reasonable expectation that the lawyer is willing to discuss the possibility offorming a client-lawyer relationship, is not a prospective client.”For example, if a lawyer website specifically requests or invites submission ofinformation concerning the possibility of forming a client-lawyer relationship with respectto a matter, a discussion, as that term is used in Rule 1.18, will result when a website visitorsubmits the requested information. If a website visitor submits information to a site thatdoes not specifically request or invite this, the lawyer’s response to that submission willdetermine whether a discussion under Rule 1.18 has occurred.A telephone, mail or e-mail exchange between an individual seeking legal services and alawyer is analogous. In these contexts, the lawyer takes part in a bilateral discussion aboutthe possibility of forming a client-lawyer relationship and has the opportunity to limit orencourage the flow of information. For example, the lawyer may ask for additional detailsor may caution against providing any personal or sensitive information until a conflictscheck can be completed.Lawyers have a similar ability on their websites to control features and content so as toinvite, encourage, limit, or discourage the flow of information to and from website87
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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
Page 36 and 37: The truth-based rationale for the a
Page 38 and 39: fosters, such as individual initiat
Page 40 and 41: that alimony can be negotiated late
Page 42 and 43: behavior in a civil or criminal cas
Page 44 and 45: andc. is not inconsistent with gene
Page 46 and 47: define the practice of law. 4Campbe
Page 48 and 49: previously prepared by a lawyer”
Page 50 and 51: power to provide for the deportatio
Page 52 and 53: other law students, in which he thr
Page 54 and 55: adversaries, courts, and others wit
Page 56 and 57: C. Professional Discipline Model Ru
Page 58 and 59: adversely on their ability to pract
Page 60 and 61: AHP. He did not inform them that th
Page 62 and 63: 5.1(c)(1).”The Trial Commissioner
Page 64 and 65: wrongfulness of the conduct and cha
Page 66 and 67: Chapter 3Beginning the Client-Lawye
Page 68 and 69: competence because they fear they l
Page 70 and 71: PIESTER, Magistrate Judge. . . .In
Page 72 and 73: the peaceful resolution of private
Page 74 and 75: barriers that block understanding b
Page 76 and 77: 3-6. Should Martyn & Fox represent
Page 78 and 79: Limited-term pro bono service, wher
Page 80 and 81: Lawyers cannot recognize or solve a
Page 82 and 83: Togstad that he would consult with
Page 84 and 85: recovered. . . .Practice Pointers:N
Page 88 and 89: visitors. 22 A particular website m
Page 90 and 91: unbundled limited assistance).10. A
Page 92 and 93: Chapter 4CompetenceThis chapter exp
Page 94 and 95: A third version of the disclosure s
Page 96 and 97: the individuals owning and operatin
Page 98 and 99: to whom counsel owed a duty. Here,
Page 100 and 101: but for defendants’ negligence. P
Page 102 and 103: (b) Should Martyn tell the caller t
Page 104 and 105: which juries do not need an expert
Page 106 and 107: lawyer, reasoning that the interest
Page 108 and 109: Crawford had pledged to it had prev
Page 110 and 111: indefinite and perhaps excessive li
Page 112 and 113: immediately because two loans relat
Page 114 and 115: [P]laintiffs’ second claim for re
Page 116 and 117: with intent to defraud or injure an
Page 118 and 119: 40. MR 2.3; RLGL § 95.41. McIntosh
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Page 122 and 123: entered an order denying Maples’
Page 124 and 125: abandonment by counsel continuing t
Page 126 and 127: The Clients The Sixth Amendment con
Page 128 and 129: counsel for the same crime, or when
Page 130 and 131: B. ControlModel Rules 1.2, 1.4RLGL
Page 132 and 133: Actual authority includes both expr
Page 134 and 135: redirect his actions to release the
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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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about those attorneys who use direc
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most critical question by assuming
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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
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
Page 518 and 519:
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
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
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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
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
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disclosure, 184-185fiduciary duty,
Page 576 and 577:
disqualification of lawyers, 323dut
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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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