Professional Responsibility Outline 2022[46]

Philosophy of institutional values  Norms expressed in an institutional form are likely to be seen as more objective and justified than moral values Professor Simon’s Approach  Lawyer should assess the relative merit of the client’s claims and goals in relation to other clients that the lawyer might serve  Assess the internal merit of their clients claims Model Rule 2.1  Lawyers are not limited to giving legal advice but may also refer to “moral, economic, social and political factors” Problem 1-1 Comparing Philosophies of Lawyering  How would you compare the philosophies of lawyering expressed by these lawyers? o David Boies  You have a duty of loyalty  If you start to value how you are going to look to the media, as opposed to how your client will look, then you should find a new profession  Can choose what clients to represent o Does not have the choice of HOW to represent a client. o Michael Cohen  Felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass  Blind loyalty to Donald Trump  Three years in prison (8 counts involving fraud and campaign finance violations)  Disbarred o Monroe Freedman  Model Rule 1.2 and 2.1  Subject to paragraphs c and d, a lawyer shall abide by a clients decisions concern the objectives of representation and, as required by rule 1.4  Lawyer may generally refuge to represent a client whose character or cause the lawyer finds repugnant o Michael Tigar  Client is entitled to a fair trial where evidence can be tested  The method of judging whether such a charge is true should be above reproach o Freedman (Again)  The amoral lawyer  No moral responsibility whatsoever for representing a particular client  Moral control of the client  Lawyer can impose his moral views on the client by controlling both the goals pursued and the means used during the representation  Choice of client as a moral decision

unreasonable. The client could sue to recover the excessive fee, the attorney could sue to collect the fee, or the court could deal with it if the matter was already in court. 2-4 Can they take either (1) a percentage of any revenues that the defendant might receive for such sources as part of its fee in the case or (2) a security interest in any such revenues to secure payment of fess due the firm Rule 1.5 (a)  A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include multiple factors.  No contingent fee in a criminal case  Prior to conclusion, no literary or media rights shall be given to the attorney  Cannot keep property in possession in connection with a representation separate from the lawyer’s own property. They would have to keep the fee in a separate account until the work is completed. They generally cannot just call the fee nonrefundable until the work has been complete, unless it’s a general retainer. Also, the partner in the firm has already said that they would be able to take the case pro bono, so it seems like any they would charge would be excessive to the client because it’s not necessary for the firm to take the case. Taking a percentage of revenue is very similar to a contingency fee and is against the rules for criminal cases. Also a number of states have enacted statutes to prevent criminal defendants from profiting from commercial exploitation of their crimes. I would advise against the security interest 2-5 (a) Under scope of representation I would note if anything has already been done on this case and what this firm’s first steps would be. For percentages I would do 35% if settled before trial and 45% if settled at trial. (b) Do not add such a provision (c) They could add a clause for quantum merit recovery. This could be deferred until after the conclusion of the case, that way it is not a burden on the client while they are trying to secure new counsel. (d) No (e) She could calculate hours worked and amount of money lost. The court could determine that quantum amount and order the client to pay that out of their recovery. (f) Note that this is the only part of the job you are taking on and are not responsible for the maintenance of the legal forms. (g) Dear Former Client: We have been pleased to represent you in the matter of ________. We are pleased to report that, since judgment has been rendered and all matters have reached a legal conclusion. Our representation of you in this matter has come to an end, with

necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. As framed by our authors, it appears that the defendant is not sufficiently able to consider rationally her defense. I think the cases (note, none in TX) tell you must take up the duties found in (b), “protective action.” If the court finds her competent, she decides whether to plead guilty. As noted regarding Gary Gilmore’s cases, the lawyers may resign (withdraw) if they fundamentally disagree with the client’s decisions. Probably introducing evidence will be considered tactical, although my decision in quite tentative. Appeals are considered decisions of the client, not the lawyer. See the 9 listed decisions at page 128. CHAPTER 3 CONFIDENTIALITY, PRIVILEGE, AND WORK PRODUCT MODEL RULE 1.6 (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

As for (d), nothing in the rules we are looking at allows this disclosure, but arguably there should be such an exception. See exceptions listed at page 140. PROBLEM 3-2 Stuff. If you touch it , you own it. That is, if you possess it, you must turn it over to the authorities. I know there are no TX cases specifically on the topic, but I am confident the TX CCA would agree with the general view. As for (a), Yes, you should ask where it is located. Should you search for it? Probably, but note where this is taking you. Third, once you move something that is part of the crime scene broadly speaking, you are close to constructive” possession even if not actual possession. Four, probably, but now you must turn it over to the authorities in a reasonable time. Five, Good idea to have it looked at, now turn it over. Six, no, Ryder cases. Part (b) yup, look inside, and turn it over eventually (reasonably). I think you have to touch it in these circumstances. Part (c) it’s the Russell case from page 154. Can’t counsel criminal conduct, but can counsel more generally. Part (d) there is a division of authorities on this. II would lean to not turning it over. Client Confidentiality 155-185 PROBLEM 3-3 1. Paul lied in deposition. What do you do? 1) remember Rule 3.3 applies to civil and criminal matters, and in depositions as well as trials. 2) So, “remedial measures” must be taken. And that this destroys Paul’s marriage? Prevent the harm by telling Paul not to answer that question. After the fact, look to tell only the tribunal and let the court decide whether this should be communicated to the opposing party. Three remedial measures: 1) correct the testimony on what is called the depo “errata sheet” (this corrects errors in transcription and substantive errors as well); 2) inform opposing counsel and the court (See Clinton case) not to rely on certain answers (and provide which pages those answer are on); and 3) if at trial, recall witness to stand. 185. b) False testimony in criminal case. This is the subject of all the material to page 185. So, 1. A Miranda-type warning, or the “lecture” from Anatomy of a Murder. Tell Denny about perjury and how no one believes the girlfriend or mom as an alibi witness. She has a belief but no actual

8. When a lawyer learns that the lawyer's services have been improperly utilized in a civil case to place false testimony or other material into evidence, the rule generally recognized is that the lawyer must disclose the existence of the deception to the court or to the other party, if necessary rectify the deception. See paragraph (b) and Rule 1.05(h). See also Rule 1.05(g). Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal by the lawyer but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer would be aiding in the deception of the tribunal or jury, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.02(c). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court. Perjury by a Criminal Defendant 9. Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the client to refrain from suborning or offering perjurious testimony or other false evidence, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. 10. The proper resolution of the lawyer's dilemma in criminal cases is complicated by two considerations. The first is the substantial penalties that a criminal accused will face upon conviction, and the lawyer's resulting reluctance to impair any defenses the accused wishes to offer on his own behalf having any possible basis in fact. The second is the right of a defendant to take the stand should he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the accused either insists on testifying when the lawyer knows that the testimony is perjurious or else surprises the lawyer with such testimony at trial, the lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. 11. Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of perjury. 12. The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client's perjury. A criminal accused

perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court. Preserving Integrity of Adjudicative Process [12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding. 185-228 PROBLEM 3-4 Most important point: The organization is the client, not any employee of the corporation. Fraud committed by employees of the corporation will undoubtedly be held against the entity, though it may use one or more employees as scapegoats. Second, need you issue a Miranda-type warning? See the very long version printed at page 191. You need to explain clearly who you represent. The example aty question 3 is slight, maybe not quite enough. Note the Penn State-Jerry Sanduskky case, in which the entity, Penn State, decided to scapegoat Schultz, the retired VP. Quite shameful. Under Cmt. 11, note the spare language. 4., Lee stonewalls you, now what? Under 1.13(b), “proceed as reasonably necessary.” You lack knowledge, so that limits your duty, but this is too serious not to continue to investigate. Time to start reporting up. If nothing occurs, you are stuck, because you don’t have sufficient knowledge to go any further. 5., “I only did it once, how about a slap on the wrist and let’s move on?” Yeah, it’s still a problem for National, and everyone should assume this information is going to get out to the public sooner or later, so prepare now for that nearly certain event to occur. 6., can you continue? See cmt. 6 to Rule 1.13. If this is a continuation of a bribe that is, a crime, you have to withdraw. If the bribery has ended, maybe not. But if the same VP at Microchip is there, run away as fast as you can. Note that we re back into the permissive exceptions to the duty of confidentiality if Microchip is suffering some financial loss, or will do so. And that’s likely given the existence of the bribe in the first place. 7., makes explicit the “report out” issue.

importance or urgency to the organization, referral to higher authority in the organization may be necessary even if the lawyer has not communicated with the constituent. Any measures taken should, to the extent practicable, minimize the risk of revealing information relating to the representation to persons outside the organization. Even in circumstances where a lawyer is not obligated by Rule 1.13 to proceed, a lawyer may bring to the attention of an organizational client, including its highest authority, matters that the lawyer reasonably believes to be of sufficient importance to warrant doing so in the best interest of the organization. [5] Paragraph (b) also makes clear that when it is reasonably necessary to enable the organization to address the matter in a timely and appropriate manner, the lawyer must refer the matter to higher authority, including, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law. The organization's highest authority to whom a matter may be referred ordinarily will be the board of directors or similar governing body. However, applicable law may prescribe that under certain conditions the highest authority reposes elsewhere, for example, in the independent directors of a corporation. [6] The authority and responsibility provided in this Rule are concurrent with the authority and responsibility provided in other Rules. In particular, this Rule does not limit or expand the lawyer's responsibility under Rules 1.8, 1.16, 3.3 or 4.1. Paragraph (c) of this Rule supplements Rule 1.6(b) by providing an additional basis upon which the lawyer may reveal information relating to the representation, but does not modify, restrict, or limit the provisions of Rule 1.6(b)(1) - (6). Under paragraph (c) the lawyer may reveal such information only when the organization's highest authority insists upon or fails to address threatened or ongoing action that is clearly a violation of law, and then only to the extent the lawyer reasonably believes necessary to prevent reasonably certain substantial injury to the organization. It is not necessary that the lawyer's services be used in furtherance of the violation, but it is required that the matter be related to the lawyer's representation of the organization. If the lawyer's services are being used by an organization to further a crime or fraud by the organization, Rules 1.6(b)(2) and 1.6(b)(3) may permit the lawyer to disclose confidential information. In such circumstances Rule 1.2(d) may also be applicable, in which event, withdrawal from the representation under Rule 1.16(a)(1) may be required. Clarifying the Lawyer's Role [10] There are times when the organization's interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged. [11] Whether such a warning should be given by the lawyer for the organization to any constituent individual may turn on the facts of each case.

MODEL RULE 4.1 CMT. 3 Crime or Fraud by Client [3] Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6. PROBLEM 3-6 A-Not even close to being protected by the A-C privilege. It is a communication made for the purpose of seeking legal advice. This is an engineering/Business decision. And nowhere close to work product, which is the product of a lawyer/law firm made during or in anticipation of litigation. B-Communications between a company and a PR firm are not made for the purpose of seeking legal advice. Conflicts of Interest 229-258 Conflicts:  Former client and prospective client conflicts  Imputation and migrating lawyers  Miscellaneous Conflicts involving current clients o Business transactions with clients o Use of info relating to the representation o Gifts from clients o Literary or media rights o Financial assistance to clients o Payments by third parties  Advocate-witness conflicts 1.7  A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

o The representation of one client will be directly adverse to another client or o There is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer(theres no direct adversity, o is there a significant risk that rep of one client will be materially limited by responsibiities to a, another client, b a former client, c a third person, d me (the lawyer) If so, will that sig risk materially limit my responsibilities to any one of the four groups I listed Sub two expands that to include former clients, third person, and me What we are trying to do is make sure we:  Make sure that we represent our clients loyally o Representing loyall also means representing former clients loyally o Duty of confidentiality is a subset of duty of loyalty  Keep confidence by showing that you are loyal to your client  End up having duties as humans to ourselvs and thrid person  Rules are trying to recognize that we have duty to others and ourselves o Model rules of prof conduct…point is that these are the rules that which when they are violated, you can be subject to discipline  Hardly anyone is suspecnded or disbarred for violating conflict of interest  A1 under the model rules  You cannot rep one client against another, even if the thing you represent client 2 has nothing to do with what you're repping the other (unrelated matters)  Sub 2, sig risk that repping one will materially…  Makes it really hard for disciplary committee to say that was materially limiting you  Any way that they can increase the price of litigation and add pressure to settle, conflicts of interest lay in the realm where one side moves to disqualify counsel for the other side  Want to give lawyers more room  Judgment rules create less opportunity for defense to disqualify opposing counsel  If P counsel has nt been loyal to clients, that’s when we should start using legal mal 4-1 A  Can K&M ethically represent General Contractors against Velasquez o First ask yourself if they are a current client o 1.9 (Duties to former clients) o 1.18 (Duties to Prospective Client)  Complete the case, disqualify, withdraw  No longer a client o Lawyer has to say we are no longer representing you

o When theres a question, it'll tilt in favor of the client o At this point our client-lawyer relationship has come to an end  Avoid rule 1.7  Now rule 1.9  The real duty to loyalty is a skinny duty to keep the confidences you've had in repping that client in the past  Trial of lizzy bordon o Duty of loyalty  Much less sig duty than the duty you owe current clients o Party of what you have to figure out is, are you going to routinely send letters of termination  Best thing is to have it on your engagement  And send a letter at the end saying it concluded on blah blah blah and that it terminates the representation TX Rule 1.06. Conflict of Interest: General Rule  Comment 11 o It is not advisable for a lawyer to act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated and even if paragraphs a,b,and d are not applicable  No client consent necessary  REMEMBER THE RULES ARE FLOORS, NOT CIELINGS (B)  1.13 Organization as client  No, would not be representing the doctor  Problem is if you're hurting the people making up the entity, then you're essentially hurting the entity  You can represent an entity but this one is in the making o Say exactly who you represent in the engagement letter ©  Comment 34, o Thus the lawayer for an organizaetion is not barred froma ccepting representation adverse to an affiliate in an o We can represent American computer o Factors listed n the comments (D)  Ordinarily a lawyer may take inconsistent legal positionsin different tribunals at different time on behalf of different clients. The merre fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a ocnflict of interest. A conflict of interest exists, if there is a sig risk that a lawyer's action on behalf of one client will mateirally limit the lawyer's effectiveness in representing o Lawyers represent clients, not causes o If you think it will not materially affect your other clients Either withdraw or get informed consent in writing €  Comment 22, o Consent to future conflicts

o Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extend to which the client reasonably understands the material risks that the waiver entails. The more comprehesive the explanation of the types of future representations that ight arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding….  Type of client  Sophisticated client 4-2  Are you ging to represent everyone  Are you permitted to take a lucrative ownership o Comment 28 o Rule 4.3  In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or limply that the lawyer is disinterested.  Once the entity is created, you can possibly represented people in the entity o If there is a conflict that arises o You may be one of those owners, you have a clear conflcit if an issue arises  Your responsibility as a lawyer conflicts with issues of ownership  Comment 29 o Must make it clear that anything you say to me, has to be reported by me to the other shareholders o 29-33 will tell us when we can represent everyone  Comment 35 o Used to be common for corporate lawyers to members of boards of companies they represented o You can, but the comment cautions with all the reasons why this is problematice  Begin this by talking immediately about who you are going to represent o If just nancy then advise bronowski to get his own atty o If they want you to represent the entity, give them the warning that what they disclose will have to be disclosed to everyone  Do not bring in two clients at the same time o As soon as he mentions her being neg, they need to split  Informed consent 18-22 o Consent to waive future conflict o Start with one client always  Keep talking to them about how serious conflict is 258-292 No attorney client confidentiality  Again, have one person in interview room at a time  Taylor has two claims, neg against company and other driver

Comment 30 - A lawyer for insured person, owes an entire duty of loyalty  Includes the duty of confidentiality Read the tilly case and trevor case In TX we don’t even know if we have a one client model or a two client model  We do know that what a client tells you must be kept confidential If theres a coverage issue, you must inform the insurer that there is a coverage issue 4-5 Technical answer is possibly But really the answer is no  ABA Defense Function o theyve already been indicted  Joint defense agreement Problem 4-6 - Rule 1.9  Not in a substantially related matter…that’s where duty of confidentiality comes in o If you have insider info then that means you have confidential informaiton Applying the substantial relationship test  If I have a continuing duty of loyalty to a former clinet, you would quickly run out of clients 1.9 all we care about is the duty of confidentialy  If no confidentiality problem then 1.9 does not apply  Is this a sub related manner? o Sub  No likelihood of breaching confidentiality  Clients should have autonomy in choose attys  Lawyers should not be unduly permitted from earining a living in the practice of law  Definitional question on 1.9 o A lawyer would be disqualified 1. Prospective 2. Current 3. Former B we are on prospective 4-7 The imputation principle  1.10 TX Rule

 Texas has no screening rule for lawyers that move from firm a to B Limitations on Ethical Representation 307-343 Why do people choose to practice criminal defense? 5-2A  Suing for medical mal  Doctor and hospital  Rule 3.1 o First have to have an admin complaint o “A lawyer shall not bring or defend a proceeding….”  Don’t do anything bc if you won, time is money o Not likely to do anything o Judge would probs just move on o Probs not a complaint filed against someone under 3.1  FRCP 11 o Much more valuable than filing under 3.1 o If you win the motion, you could get $ o Duty regarding misrepresentation will most likely be a rule 11 violation o Avoid rule 11  Avoid rule 11 o It is not being presented for any improper purpose o The claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending o Factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery TRCP 13 Statutory remedy  10.004 Model rule 3.1  A lawyer for the defendant in a criminal proceeding B Permitted but not required to represent Ronald 5-3 Investigation: contacts with employees  Rule 4.2 o No contact rule o Not permissible to try to speak with someone right after you file a suit  What about corporations? o 4.2 Comment 7  Represent only the corporation  Three categories

 Constituent of the organizaiton who supervises, directs or regularly consults with the organization's lawyer concerning the matter or  has authoirty to obligate the organization with respect to the matter or whose act or omission in connction with the matter  Omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability  Tx rule puts comment 7 in the rule itself o 4.02 C  No contact rule in tx  Managerial responsibility  Those presently employed whose act or omission may make the organization vicariously liable Model rules group 1 and 3 = 3 tx rule 1 & 2 4.2 comment 7  Consent of the organization's lawyer is not required for commuication with a former constituent. o Cant seek confidential info…but if they just give it to you then -\_/ 5-4 Answer in TX  TX is a one party state o As long as one person consents, you can record any convo you have with anyone o Showing someone how to record is fine 343-379 393-440 Rule 3.6  Lawyer who is participating in the investigation or litigation of a matter shall not make an extra judicial statement that the lawyer knows or reasonably should know will be disseminated  This P just told public that dad killed mom in front of the child for money o For purpose of the exam “substantial likelihood of materially prejudicing an adjudicative proceeding in that matter”  Can ask anything that just quotes the rule  Have to find out what your client wants if the news calls for a statement  If you are a lawyer, they’re gonna edit you o Do a press conference  You can type a statement and read it  Much more control o If this is a first degree murder case, then your client is facing life in prison  Getting into the details about your defense could clearly backfire on you when you don’t have to

 If your client wants to deny the allegation then be a good mouthpiece. “We look forward to our day in court and the presumption of innocence that attaches….” o Our rule allows us to say things as long as they don’t violate confidentiality o B 1-7 says what you can talk about  Right to reply section o If you didn’t start it, you’re allowed to respond in this case TX Rule 3.07  Has more clear rules than Model Rules about what you cannot do  Model Rule comment 5 o Things that are a no  Character credibility  Plea of guilty  Info Rule 3.07 Trial Publicity  (a) In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. A lawyer shall not counsel or assist another person to make such a statement.  (b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to: o (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; o (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; o (3) the performance or results of any examination or test or the refusal of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; o (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or

o (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial.  (c) Notwithstanding paragraphs (a) and (b)(1)-(5), a lawyer involved in the investigation or litigation of a matter may state without elaboration: o (1) the general nature of the claim or defense; o (2) the information contained in a public record; o (3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved; o (4) except when prohibited by law, the identity of the persons involved in the matter; o (5) the scheduling or result of any step in litigation; o (6) a request for assistance in obtaining evidence and information necessary thereto; o (7) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and o (8) if a criminal case:  (i) the identity, residence, occupation and family status of the accused;  (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person ;  (iii) the fact, time and place of arrest; and  (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. Comment - Rule 3.07  1. It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessary entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the

exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.  2. Nobody of rules can simultaneously satisfy all interests of fair trial and all those of free expression. The formula embodied in this Rule is intended to incorporate the degree of concern for the first amendment rights of speakers, listeners and the media necessary to pass constitutional muster. Moreover, the obligations imposed upon a lawyer by this Rule are subordinate to those rights. On the other hand, if a particular statement would be inappropriate for a lawyer to make, the lawyer should be as readily subject to discipline for counseling or assisting another person to make it as he or she would be for doing so directly. See paragraph (a).  3. Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.04 (c)(1) and (d) govern a lawyer's duty with respect to such Rules. Frequently, a lawyer's obligations to the client under Rule 1.05 also will prevent the disclosure of confidential information.  4. Although they are not standards of discipline, paragraphs (b) and (c) seek to give some guidance concerning what types of statements are or are not apt to violate paragraph (a). Paragraph (b) sets forth conditions under which statements of the types listed in subparagraphs (b)(1) through (5) would likely violate paragraph (a) in the absence of exceptional extenuating circumstances. Paragraph (c), on the other hand, describes statements that are unlikely to violate paragraph (a) in the absence of exceptional aggravating circumstances. Neither paragraph (b) nor paragraph (c) is an exhaustive listing.  5. Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.04 (c)(1) and (d) govern a lawyer's duty with respect to such Rules. Frequently, a lawyer's obligation to the client under Rule 1.05 also will prevent the disclosure of confidential information. Pg. 395-398  SCOTUS avoids strict scrutiny in this case o Problem is speech about criminal justice system seems awfully like political speech o It is political speech that should be strict scrutiny

 Gentile case doesn’t go very far in protecting the speech of lawyers o Did research and things to prevent damage to case o Barely escaped discipline o No decisions from SCOTUS since Gentile 401  Mid 1970s, if you publicly criticized the court, you were likely to be cited for contempt o No longer the case o Now the court hasn’t explained why we’re much more permissive now than in previous years o Still, probs don’t call out a judge 5-10  Advocacy before tribunals o Frat brothers aren’t allowed to testify to sexual history o Confrontation clause is saying that o Defendant’s rights  The frat brothers isn’t a confrontation right  Confront witness against you, not for you  If we lose, we’re in trouble o When you identify with your client, if we lose, they aren’t in trouble, their client is in trouble o The only way lawyers do a good job is they take everything as a case o They are advocates for clients, they are not clients  Don’t want to lose perspective  Supposed to have the expertise to see around the issue

 CX strategy o Agree that its not frivolous o If she says “Rising Sun” then most courts will admit that o Either win an acquittal or you’re done Pg. 407 Jurors  Cannot make actual contact with jurors outside of official proceedings  Talking to neighbors looks like harassment o Can do it but its probs overkill o Can get information about race, gender, religion, ethnicity, age, education 410-411 Rule 3.3  A lawyer shall not knowingly (actual knowledge standard)  Overrules 3.6 on confidentiality CX of the truthful witness  Do you know what the truth is?  Do you question that truthful witness?  Especially with criminal defense, you must cx the truthful witness If you are a P, you are not supposed to examine a truthful witness, casting doubt on their credibility 5-11 Disclosure and Plea Bargain  Gang Feud o Under your state’s rules of criminal procedure, the defense is not entitled to any information about your witness interviews.

o Police arrest Reyes, witness identifies them in a lineup  White collar crimes o One person contacts you o Already represented by counsel (maybe)  Not like you’re luring them in  Lawyer cannot speak to everyone  Under rule 4.3 say o Feel free to get counsel, you do not have to speak with me. I am not your lawyer  Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause o Super low standard o He can threaten charges against Mrs. Rollison 64.001 Texas Code of Criminal Procedure  Some counties have post-conviction integrity units created  A prosecutor has the responsibility of a minister of justice and not simply that of an advocate Specialized Practice Areas 497-542 Problem  Couple wanted a no-fault divorce  Who are you going to represent? o Could be conflicts in the future o Generally favor the one-client model  By interviewing both at the same time, if they bring up issues, then you have to withdraw  Texas highly discourages the two-client model o No case that is precedent or anyone who has been disciplined for it Part B  Father paying for daughter’s attorney’s fees o Don’t let the father sit in on the interview

o He’s not the client, just a third party payor o No attorney client privilege with him o Possibility that her mental state may be such that you have to be a little more careful o Make sure that these are her decisions, not controlled by dad o Third party payor agreement  Don’t antagonize him Part C  Abuse and neglect case o Allegations on both sides o Kids want to live with her mother o Atty doesn’t think it’s a great idea for them to be living with either parent o Representation of minors  Rule 1.14  Maintain a normal client/lawyer relationship o Courts really look at what the child wants o As the layer, you want what she wants  Can run you into problems  Your problem is you CANNOT decide that  You have to represent her in the way she wants to be represented as much as possible  As her lawyer, you have to follow what she wants  Guardian ad litem gets to act in her best interest, not necessarily what she wants 6-6  Substantial residential real estate practice  Lawyers do not do closings for real estate anymore o Real estate transaction business is completely commoditized  No judgment to exercise so why pay the fees of a lawyer when you can pay price of in house employee  Rule 5.3 o Responsibilities of paralegals and other nonlawyer assistance o If you’re gonna have a paralegal/inter, you have to supervise them o Make sure terms are reasonable and fair o Advise in writing o Client gives informed consent 6-7 Waiver of confidentiality  If anyone has a surprise then no duty to keep it confidential  You are in a mess if you don’t have a waiver  Is there any way to satisfy both duties o Do waivers ahead of time to cover your ass Legal malpractice in Estates and Trust  Barcelo o Lawyer who drafts the will has a duty only to client, and when client dies, any cause of action in a malpractice  Grandchildren tried to sue lawyer

 Person who held the COA is dead  Belt o SA case o Claim that the lawyer messed up in drafting the will. Harmed the estate o Court says Barcelo is still the rule, but under the common law, property actions survive the death of the victim of the tort  Means that the personal rep stands in place of the person and they can sue for economic loss Delivery of Legal Services 543-573 573-602 MATERIALS FOR ZOOM RECORDED CLASS, MONDAY, JUNE 20, ON LEGAL SERVICES TO THE MIDDLE CLASS AND POOR 1. Texas Government Code § 81.101: “DEFINITION. (a) In this chapter the ‘practice of law’ means the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined. (b) The definition in this section is not exclusive and does not deprive the judicial branch of the power and authority under both this chapter and the adjudicated cases to determine whether other services and acts not enumerated may constitute the practice of law. (c) In this chapter, the "practice of law" does not include the design, creation, publication, distribution, display, or sale, including publication, distribution, display, or sale by means of an Internet web site, of written materials, books, forms, computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney. This subsection does not authorize the use of the products or similar media in violation of Chapter 83 and does not affect the applicability or enforceability of that chapter.” 2. Note in section (a) how narrowly Texas has defined the practice of law. Section (c) was added during a two-year lawsuit between the UPL Committee of the State Bar of Texas and Nolo Press. Nolo won the day. 3. TX Disc. R. Pro. Conduct 5.05: “A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” 4. On April 18, 2022, the President of the Association of Professional Responsibility Lawyers, Brian S. Faughnan, wrote to the ABA urging it to

amend Model Rule 5.5 to permit a lawyer admitted in any United States jurisdiction to practice law “without regard to the geographic location of the lawyer or the client, without regard to the forum where the services are to be provided, and without regard to which jurisdiction’s rules apply at a given moment in time.” Its proposed Model Rule 5.5: “Multijurisdictional Practice of Law (a) A lawyer admitted and authorized to practice law in any United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction, subject to the other provisions of this rule. (b) Only a lawyer who is admitted to practice in this jurisdiction may hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. (c) A lawyer who provides legal services in this jurisdiction shall: (1) Disclose where the lawyer is admitted to practice law; (2) Comply with this jurisdiction’s rules of professional conduct, including but not limited to Rule 1.1 (Competence), and with the admission requirements of courts of this jurisdiction; (3) Be subject to Rule 8.5 regarding the disciplinary authority and choice of law rules of this jurisdiction; and (4) Not assist another person in the unauthorized practice of law in this, or any other, jurisdiction. (d) A lawyer admitted and authorized to practice law in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services in this jurisdiction that: (1) are provided to the lawyer's employer or its organizational affiliates; (2) are not services for which the forum requires pro hac vice admission; and (3) do not arise under the law of any U.S. jurisdiction, unless the services are provided after consultation with a lawyer authorized to practice law in this jurisdiction. 5. I doubt the ABA will adopt this in the next 20 years, but at some point it’s coming. That’s in part because nearly all states now have the same bar exam: the Uniform Bar Examination (UBE). If New York and Texas are using the same exam to determine whether to license an applicant, then a geographic limit on one’s practice makes less and less sense. When Texas had its own bar, and tested its own law, then a plausible argument could be made that all lawyers who want to practice in Texas need to pass the Texas bar exam to demonstrate some knowledge of Texas law. 6. Problem 7-4: Rule 1.2(c) states: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Thus, two key elements: 1) is it “reasonable under the circumstances;” and 2) did the client give “informed consent?” Unbundling makes some sense given the unmet legal needs of the middle class. One problem your authors do not discuss is the cost of drafting a limited engagement letter in such a way as to obtain informed consent. If a substantial goal is to save money, then who is going to pay for the cost of drafting a very specific contract?

7. Legal Services Plans: Your authors lightly touch on a long and sordid history in the ABA to limit such plans. I discuss this in my forthcoming book, The Lawyer’s Conscience, which will be published in early December. In general, in Problem 7-5(a), 1) lawyers can do this on a for-profit basis, as long as they don’t violate the marketing (that is, solicitation) rules of 7.3, 2) contacting real estate buyers sounds like it does violate 7.3, 3) discounted fees is permissible, 4) Remember, only lawyers can own a law practice (Rule 5.4(a): “A lawyer or law firm shall not share legal fees with a nonlawyer, except [in situations not relevant here].” 8. Problem 7-5(b): 1) contacting other entities is very likely fine because they are not soliciting a person in need of legal services. Instead, it’s like an insurance plan, 2) contacting existing clients is a permissible marketing communication, 3) the referral service plan sounds a lot like fee-sharing, so that’s a problem. 9. Problem 7-6: This is a long-standing problem across the US. Here’s the link to apply for appointments to defend criminal cases: https://www.bexar.org/1241/Documents . 10. Problem 7-7, Mandatory Pro Bono: When the Kutak Commission was appointed by the ABA in early 1978, one of its first efforts was to require lawyers to commit to some number of hours (anywhere between 40-200 annually were floated). When its early version (not even something as formal as a draft) was set for discussion, lawyers were strongly opposed to mandatory pro bono. The Kutak Commission eventually substituted the voluntary pro bono Rule 6.1. As your authors note, there is no constitutional right to the appointment of counsel in civil cases, even when one’s parental rights are at issue. Texas Family Code 107.013 requires appointment of an attorney ad litem for an indigent parent in such a situation. 11. The Legal Services Corporation—I have written about its origins in Michael Ariens, The Last Hurrah: The Kutak Commission and the End of Optimism , 49 Creighton L. Rev. 689, 725-31(2016). GOVERNMENT AND PUBLIC INTEREST PRACTICE 1. 5% of all active lawyers in US are government lawyers; in Texas, that is doubled, with 10% of in-state active licensed lawyers; 2. Problem 6-3—(a) DJJ director wants to slow things down, which lawyer thinks is wrong approach. Advice? Well, is director asking you to engage in stalling tactics contrary to the duty to expedite litigation under Rule 3.2, or is director simply asking you to represent Department vigorously and zealously? If the latter, then do you have some public responsibility that may be contrary to the director’s desires? In both the Model Rules and the Restatement, the answer is No. HOWEVER, lawyer may speak with boss, the Attorney General or the AG’s deputy who is your actual boss. (b) We have “serious improprieties” in the DJJ. Now what? Back to entity representation, so you represent the agency (or the Governor or AG, depending on the law), NOT those engaged in “serious improprieties”; you may have the possibility of whistleblower protections (this is currently part of a lawsuit by seven former Texas deputy AGs against AG Ken Paxton, linked to on TWEN);

(c) Lawyer is leaving government job for one in private practice. One landing spot would be with firm that represents a company “that markets the product that the lawyer’s agency is investigating.” Ethical issues? Key is whether this lawyer was “personally and substantially involved” in this matter at agency (Rule 1.11(a)(2). If so, then needs written, informed consent from agency allowing lawyer to represent company. AND, even with such consent, may not be permissible because duty to keep client confidences under 1.9(c). If not, just use the former client rule 1.9, which is largely focused on keeping client confidences; 3. Note that both TX and Model Rules allow screening of lawyer if lawyer is personally disqualified—that is, not imputed disqualification of law firm in these circumstances; 4. In general, no duty of government lawyer (that is, not a prosecutor) to seek justice. But you may have that option depending on who your client is and whether that client permits lawyers to seek justice when representing government agency; 5. Art. IV, Section 22 of the Texas Constitution states the AG represents the State in the Texas Supreme Court. Its website indicates it also represents agencies, which indicates the agency is the client, not the AG himself; 6. Public interest law—Begins in late 19 th century to assist immigrants with legal needs; by 1910s, idea of legal aid societies is commonplace, and related idea of representing poor in criminal matters pro bono. The ACLU is an early version of a public interest litigation firm. Public interest law firms take off in the 1960s, as largely liberal public interest groups, standing on the shoulders of NAACP Legal Defense and Education Fund, Inc. serve the needs of the poor and civil rights parties. By late 1960s, at least 86 liberal public interest groups exist. From early 1970s for twenty years, conservative public interest entities create public interest law firms, such as the Pacific Legal Foundation and many others; 7. Pro bono and public interest overlap, but are not the same thing. Rule 6.1 urges lawyers to volunteer pro bono hours, to “aspire” to give 50 hours annually. This is not a mandate, as that was cut from the final versions of the 1983 Model Rules; 8. Problem 6-4—(a) Settlement is good for the named plaintiffs but not what the PILF wants or very likely what the class would want once this is made a class action lawsuit. Likely that lawyer may choose to find new class representatives rather than requiring lawyer to withdraw. As for the confidentiality provision, seems like this is problematic. Can’t force lawyer to enter into confidentiality agreement. If not a class action, then you owe a duty of loyalty to client, which means settling when you don’t want to, UNLESS you use a limited engagement agreement that gets you to the result you want. (b) What do you want in there? 1) deal with conflicts regarding goals; and 2) fee agreement to avoid the Evans v. Jeff D. forfeiture of fee award problem.

Special Ethical Problems of Law Firms 607-633 Supervisory Principles of the Model Rules  Differentiate Model Rule and Texas Rule  Model Rule o Partner makes reasonable effort to ensure that the firm has in place measure giving reasonable assurance that the conduct of other lawyers and nonlawyers employed or retained by the firm conforms to the rules of professional conduct o Vicarious liability  Texas Rule 5.01 o Confirms that a lawyer is not vicariously subjected to discipline for the misconduct of another person Sale of a practice  TX has no rule on the sale of a law practice  CL Rules was that you cannot sell a law practice o Can’t sell clients- They are not property  Clients get to choose their lawyers  1.17 allows for the sale of a law practices o Good Will  Brand awareness or brand value Model Rule 1.8 (Easily Testable)  Texas does allow lawyers to contract with clients that any legal malpractice claims will be subject to arbitration rather than a trial  You can create a subsidiary entity o Alternative business structures o Multi- disciplinary law firms o Arizona has a rule that authorizes practice of law Advertising LAWYER ADVERTISING Lawyers in the early and mid-19 th century regularly advertised. Abraham Lincoln, for example, advertised his services in a number of Illinois newspapers in the 1840s and 1850s. The distaste for advertising changed in the late 19 th century, when the legal profession exploded in size, and personal injury cases became a major area of litigation. From 1870 to 1890, the number of law schools doubled from about 30 to 60, and from 1890 to 1910, the number of law schools again doubled, to 120. The number of lawyers more than doubled between 1870 and 1890 (41,800 to 89,400) and increased to 114,000 in 1910, another 27% increase. The increase in the number of lawyers (the written bar examination was used by a small number of states, and rarely restricted admission to practice-law) included many who were immigrants or first generation Americans (meaning born in the United States as the children of immigrants). This change in the demographic composition of the legal

profession, combined with a sense that the role of the lawyer was changing as the United States (everywhere but the southern United States) entered the Industrial Revolution, led to renewed calls for lawyer professionalism. This call led to the adoption by the American Bar Association in 1908 of the Canons of Ethics. Canon 27 of the Canons declared unprofessional advertising by lawyers. This was initially honored in the breach rather than the observance. Many lawyers, in particular collection lawyers (i.e., debt collectors), continued to advertise, and few courts regulated advertisements if the lawyer was not engaged in other misconduct. Several amendments to the Canons in the 1930s focused on aspects of advertising one’s position as a lawyer, including Canon 40, which concerned the propriety of a lawyer writing articles on law for a newspaper, Canon 43, which concerned the appropriateness of publishing one’s name on a law list, and Canon 46, which discussed the permissibility of sending other lawyers a notice of the lawyer’s ability to serve other lawyers in their tasks. The Model Code of Professional Responsibility, adopted in 1969, continued the complete ban on advertising. In the early 1970s, the Supreme Court began to limit its earlier holdings that commercial speech was not protected by the Free Speech Clause of the First Amendment. See Valentine v. Chrestensen , 316 U.S. 52 (1942) (excluding commercial speech from protection of the First Amedment). In Pittsburgh Press Co. v. Pittsburgh Human Relations Comm’n , 413 U.S. 376 (1973) , the Court upheld a ban on employment advertisements if listed in columns separated by gender, although it did not do so by citing to earlier cases permitting states to regulate commercial speech as they wished. Instead, the Court held that the advertisements concerned hiring that discriminated on the basis of gender, which was a violation of law. In Bigelow v. Virginia , 421 U.S. 809 (1975) , the Court struck down a law criminally proscribing advertisements to perform abortions, on the ground that the ad “contained factual material of clear ‘public interest.’” The next year, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976) , the Court held that commercial speech was no longer a First Amendment orphan, but protected by that clause of the Constitution. By 1980, the Court had arrived at a four-part test concerning the constitutionality of government regulation of commercial speech: 1) the speech must concern lawful activity, and not be misleading; 2) if the speech met those requirements, a court was required to assess whether the government interest in regulating the speech is substantial; 3) if the government’s interest is substantial, then a court must determine whether the regulation directly advances the governmental interest asserted; and 4) was the regulation is more extensive than necessary to serve that interest. See generally Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n , 447 U.S. 557 (1980) . In 1977, in Bates v. State Bar of Arizona , 433 U.S. 350 , the Supreme Court held unconstitutional, as a violation of the Free Speech Clause of the First Amendment, the state’s absolute prohibition on lawyer advertising. The Court’s

opinion, however, did not claim to answer questions concerning the following issues: (1) to what extent can the state regulate false or deceptive advertising; (2) to what extent can lawyers make claims as to the quality of their services; (3) what is the authority of the state to regulate in-person solicitation of business; (4) can a state require lawyers to include a notice warning listeners or viewers about the possibility of misleading ads (this is known as compelled speech, because the government is requiring you to say something); (5) the constitutionality of time, place and manner restrictions on lawyer advertising speech; and (6) whether electronic media posed different issues than newspapers or related media. Since Bates , the Court has developed slightly the doctrine concerning regulation of lawyer advertising. In companion cases concerning in-person solicitation of prospective clients, the Court suggested different limits depending on the type of work the lawyer was soliciting. In Ohralik v. State Bar , 436 U.S. 447 (1978) , the Court held that the state was constitutionally permitted to reprimand a lawyer who solicited “two young accident victims at a time when they were especially incapable of making informed judgments of or assessing and protecting their own interests.” In In re Primus , 436 U.S. 412 (1978) , the Court permitted the in-person solicitation of a prospective client by the ACLU. The Court focused on the fact that the solicitation was not made for the private gain of the attorney, and because no fraud or overreaching existed, such solicitation was constitutionally protected. Is the difference between these two cases based on some notion of consent? (The Court noted that in Ohralik , one prospective client was in the hospital). Is it that the clients were young? That Ohralik was engaged in ambulance chasing of the worst sort? Or is it that solicitation is conduct as well as speech? (But note that the Court has held that some expressive conduct is protected by the First Amendment—See Cohen v. California , 403 U.S. 15 (1971) (wearing a jacket that says “Fuck the draft” is protected speech), Tinker v. Des Moines Indep. Comm. Sch. Dist. , 393 U.S. 503 (1969) (holding impermissible decision banning student from wearing armband with peace symbol), and Texas v. Johnson , 491 U.S. 397 (1989) (holding flag burning is expressive conduct)). In Edenfield v. Fane , 507 U.S. 761 (1993) , the Court held unconstitutional a Florida ban on in-person solicitation by CPAs. The Court noted that attorneys, unlike accountants, are trained in the art of persuasion. That made in-person solicitation of prospective clients by lawyers more dangerous to those persons because there existed a significant possibility of overreaching by the persuasive lawyer. Further, the Court noted that the solicited clients in Edenfield were more sophisticated than the “young accident victims” in Ohralik . In In re R.M.J. , 455 U.S. 191 (1982) , the Court held that a truthful, nondeceptive advertisement could not subject the lawyer to a disciplinary reprimand merely because it used language (“real estate” rather than “property”) contrary to state bar advertising rules. In Shapero v. Kentucky Bar Ass’n , 486 U.S. 466 (1988) , the Court held unconstitutional a prohibition on targeted direct mail advertising that was truthful and nondeceptive. In 1995, the Court, in a 5-4 decision, held that a state was permitted to prohibit the sending of targeted mail

advertisements for 30 days from the date of the accident or injury. Florida Bar v. Went-for-It, Inc. , 515 U.S. 618 (1995) . Although the Florida regulation barred contact with victims of accidents by plaintiff’s lawyers, but not by defense lawyers, the Court held that the temporary prohibition met the Central Hudson test. Justice O’Connor, writing for the majority, noted that the 30-day prohibition was necessary to prevent “the erosion of confidence in the profession that such repeated invasions [of privacy] have engendered.” Thus, the state’s interest in protecting the privacy of the victims and their loved ones, as well its interest in protecting the flagging reputation of lawyers in Florida, justified this prophylactic rule. The Court noted two differences between Shapero and Went-for-It : the former involved a flat ban on direct-mail ads, not a temporary prohibition, and the Florida bar, unlike the Kentucky bar, possessed some statistical information (which, when looked at critically, was very poor empirical data) indicating that direct mail solicitations were viewed by some recipients (27%) as causing them to lower their esteem of the legal profession. The Supreme Court has not considered the issue of lawyer communications to prospective clients and the First Amendment since its 1995 Went-for-It decision. What should count as deceptive advertising? Should TV commercials in which a “spokesman” is narrating the firm’s (or lawyer’s) expertise be permitted? (It is under Texas law; commercials used to run with Robert Vaughn of The Man from U.N.C.L.E. , a TV show from the 1960s). Is it deceptive to talk about a “track record,” or about the likelihood of success of any particular mass tort injury (Dalkon Shield cases, cigarette cases, etc.)? Apparently so, although the constitutional basis for that assertion is shaky at best, and the Supreme Court has not laid out the constitutional contours of that speech limitation. An issue related to “track record” claims is a general claim concerning the quality of the lawyer’s work. Can such claims be justified, or are they claims of quality that may be regulated as “deceptive”? In 1990, a badly divided Court held that the state of Illinois could not discipline a lawyer for holding himself out as a specialist when the bar prohibited such claims. See Peel v. Attorney Registration and Disciplinary Comm’n of Illinois , 496 U.S. 91 (1990) . See also Ibanez v. Florida Dep’t of Business and Prof’l Regulation, Bd. of Accountancy , 512 U.S. 136 (1994) (holding Florida Board of Accountancy violated First Amendment in prohibiting truthful claim of attorney that she was certified as a CPA and Certified Financial Planner). So, the tripartite division of cases is: 1) general advertising by lawyers ( Bates , R.M.J. , Zauderer ) may be prohibited only as allowed by the Central

Hudson standard (The schema of regulation is 1) false or inherently misleading advertising may be prohibited, 2) potentially misleading advertising may be regulated but not prohibited, and 3) truthful advertising may be regulated if the state has a substantial interest in the regulation, and the regulation serves that interest.); 2) in-person solicitation ( Ohralik and Primus ) may be prohibited if the reason for the solicitation is pecuniary gain, but not if the solicitation is made for “political” reasons; and 3) targeted mailings ( Shapero , Went-For-It ) may be prohibited for 30 days after the accident, but may not be altogether barred. The Model Rules regarding lawyer communications were amended in 2018, and are now structured as follows: Rule 7.1 states the general rule: a lawyer may not “make a false or misleading communication.” Rule 7.2 creates “specific rules” regarding such communications, applicable to every media used to communicate. Rule 7.2(c) discusses specialization, which was formerly noted in Rule 7.4, which is now deleted. Rule 7.3 is focused on solicitation. Rule 7.3(b) is modeled after Ohralik , so it prohibits in-person solicitation when the motive is for pecuniary gain. Rule 7.3(e) permits solicitation to group prepaid legal plans. Texas amended its lawyer communications ethics rules in 2020. It largely follows the Model Rules, though a number of comments in the Model Rules are found in the text of the Disciplinary Rules of Professional Conduct. Quality of Professional Life Statistics  21% - 36% of lawyers qualify as “problem drinkers”  28% suffer from depression  23% from stress  19% from anxiety  Suicide is a leading cause of death of lawyers  11% have had suicidal thoughts at some point in their careers