The Law And Ethics Of Lawyering,9781587782046

The Law And Ethics Of Lawyering

by
Edition: 4th
ISBN13: 9781587782046
ISBN10: 1587782049
Format: Hardcover
Pub. Date: 2004-12-31
Publisher(s): Foundation Pr
List Price: $160.00

Buy New

Usually Ships in 5-7 Business Days
$159.84
Add to Cart

Rent Textbook

Select for Price
Add to Cart
There was a problem. Please try again later.

Used Textbook

We're Sorry
Sold Out

eTextbook

We're Sorry
Not Available

Buy from our Marketplace starting at $44.24

How Marketplace Works:

  • This item is offered by an independent seller and not shipped from our warehouse
  • Item details like edition and cover design may differ from our description; see seller's comments before ordering.
  • Sellers much confirm and ship within two business days; otherwise, the order will be cancelled and refunded.
  • Marketplace purchases cannot be returned to eCampus.com. Contact the seller directly for inquiries; if no response within two days, contact customer service.
  • Additional shipping costs apply to Marketplace purchases. Review shipping costs at checkout.

Summary

Extensively revised and updated, The Law and Ethics of Lawyering provides an overview of the ethics of practicing law and discusses relevant provisions of the American Law Institute?s Restatement of the Law Governing Lawyers. Many segments of the book are substantially enhanced, including the crime-fraud exception to the attorney-client privilege, disclosure of client identity, client fraud on third persons or on a tribunal, regulation of excessive fees, the role of the government lawyer, responsibilities of the lawyer for a class, form-of-practice restrictions, regulation of multi-state and international practice, and choice of law in a multi-state practice.

Table of Contents

Preface v
Note on Editorial Practices vii
Acknowledgements ix
Table of Cases
xxxi
Table of Other Authorities
lv
Relationship of Law, Lawyers and Ethics
1(59)
Introduction
1(2)
Who Among Us Will Do the Right Thing?
3(17)
Adversary Ethics
3(1)
Spaulding v. Zimmerman
3(5)
Questions on Spaulding
8(1)
Disclosure of Adverse Evidence
8(3)
Affirmative Misstatement to an Opposing Party in Contrast to Silence or Omissions
11(1)
What Really Happened in Spaulding?
11(2)
Introduction to Ethical Codes and Other Sources of the Law of Lawyering
13(1)
Canons of Professional Ethics
14(1)
Model Code of Professional Responsibility
14(1)
Model Rules of Professional Conduct
15(2)
ABA Ethics 2000 Commission
17(1)
Corporate Scandals and the Ethics Rules
18(1)
Restatement of the Law Governing Lawyers
19(1)
Other Sources of Ethical Guidance
19(1)
``Other Law'' Governing Lawyers
20(1)
Morality of Lawyer's Role
20(5)
Lawyer as Friend?
20(1)
Perspective of the Bad Man
21(1)
``The Path of the Law''
21(1)
Oliver Wendell Holmes, Jr.
Lawyer as Bad Man
22(1)
Critique of the ``Bad Man'' Perspective
23(2)
Pitfalls for the Unwary
25(21)
Shaping and Using Law and Facts
25(1)
Are Lawyers Immune From Law's Prohibitions?
26(1)
Commonwealth v. Stenhach
27(10)
Did The Lawyers in Stenhach Commit a Crime?
37(1)
Stenhach II
38(1)
Stenhach III
39(1)
Lawyers and Incriminating Evidence
39(1)
Ethics Rules and Criminal Statutes
39(2)
Why Lawyers Are Not Prosecuted for Concealing Physical Evidence of Crime
41(1)
Case Law on a Lawyer's Obligations Concerning Incriminating Physical Evidence
41(3)
Document Retention and Destruction
44(1)
The Dead Bodies Case
44(2)
Two Laws of Lawyering?
46(12)
``The Law Between the Bar and the State''
46(12)
Susan P. Koniak
Divergent Professional Norms
58(1)
A Brief Summary of the Disciplinary Process
58(2)
Conformity to the Law
60(83)
Criminal Law
61(29)
Crimes Affecting the Administration of Justice
61(1)
United States v. Gellene
61(13)
Questions On Gellene
74(2)
Perjury and the Literal Truth (Bronston and Dezarn)
76(1)
Perjury and False Swearing
77(2)
Subornation and Obstruction of Justice
79(4)
Document Destruction and the Andersen Case
83(2)
Financial Crimes: Primary Liability for Fraud
85(2)
Secondary and Derivative Crimes
87(1)
Aiding and Abetting
87(1)
Conspiracy
88(1)
RICO
89(1)
Tort Law
90(25)
Negligent Misrepresentation
90(1)
Greycas, Inc. v. Proud
90(7)
Liability To Non-Clients
97(1)
Relaxation of Privity
97(4)
When Action Is Necessary to Fulfill a Duty to a Third Party
101(1)
When the Third Party's Own Fault Matters
101(1)
When a Third Party Has Its Own Lawyer
102(1)
Intentional Torts
103(3)
Lawyer Opinions and M.R. 2.3
106(2)
Assisting a Client in Tortious or Illegal Conduct
108(1)
``How Far May a Lawyer Go in Assisting a Client in Unlawful Conduct?''
108(6)
Geoffrey C. Hazard, Jr.
When Does a Lawyer Cross the Line Into Illegality?
114(1)
Procedural Law
115(1)
Regulatory Law
116(27)
Introductory Note
116(2)
Tax Law: Lawyer Involvement in Abusive Tax Shelters
118(1)
``The New Market in Corporate Tax Shelters''
118(6)
Joseph Bankman
BLIPS: A Case Study in the Role of Lawyers in Abusive Shelters
124(3)
U.S. Tax Shelter Industry: The Role of Accountants, Lawyers, and Financial Professionals
127(10)
Relying on Smoke and Mirrors
137(1)
The Limits of the Law
138(1)
Tax Opinion Letters
139(1)
Relying in ``Good Faith'' on a Tax Opinion
140(1)
Circular 230
141(2)
Corporate Fraud and Lawyer Action
143(112)
To Do or Not to Do, That Is the Question
143(6)
Acting
143(1)
Reckless Lawyering
144(2)
Model Rule 1.13
146(3)
The Savings & Loan Crisis: Lessons on the Law and on Lawyer Behavior
149(22)
A Case Study: Lincoln Savings and Loan
149(3)
In re American Continental Corp./Lincoln Savings and Loan Securities Litigation (Jones Day)
152(6)
What Did Jones Day Do Wrong?
158(1)
Does The Elimination of Private Actions for Aiding and Abetting Matter?
159(2)
The Kaye Scholer Matter
161(2)
Failing to Protect an Organization From Its Managers
163(1)
Federal Deposit Insurance Corporation v. O'Melveny & Myers
163(7)
What Did O'Melveny Do Wrong?
170(1)
The Bar and the SEC
171(84)
Round One: National Student Marketing
171(1)
SEC v. National Student Marketing Corp
171(13)
A Legal Ethics Landmark
184(1)
Round Two: Rule 102(E)
185(1)
In re Carter and Johnson
186(3)
In re Gutfreund
189(1)
Primary Liability in Lieu of Aiding and Abetting
190(1)
Klein v. Boyd
191(9)
What Did Drinker Do Wrong?
200(1)
Schatz v. Rosenberg
200(2)
The Continuum of Lawyer Involvement in Securities Fraud
202(3)
Lawyer Involvement in Enron
205(2)
In Re Enron [Part One: The Allegations]
207(16)
Enron's Outside Lawyers and the Scienter Requirement
223(2)
The Enron Court on Primary vs. Aiding and Abetting Liability
225(1)
In Re Enron [Part Two: Primary Liability]
226(3)
When Is a Lawyer a Primary Violator?
229(1)
In Re Enron [Part Three: Why V & E Is Subject to Suit But Not Kirkland]
230(2)
Why Was Kirkland Dismissed From the Suit?
232(1)
Round Three: Sarbanes--Oxley, The SEC's New Lawyer Rules and the Bar's Reaction
232(1)
``When The Hurlyburly's Done: The Bar's Struggle With the SEC''
232(17)
Susan P. Koniak
The SEC's Adopted Rule
249(2)
What's a Junior Lawyer to Do?
251(1)
ABA Revisions to the M.R. 1.13 Prompted by Enron and Other Frauds
252(3)
Confidentiality
255(134)
Introductory Note
255(2)
Attorney--Client Privilege
257(85)
Aspects of the Privilege
258(1)
A ``Client'' Seeking ``Legal Advice'' From a ``Lawyer''
258(1)
Privileged Communications
259(1)
Communications From Lawyer to Client
259(1)
A ``Communication'' ``Made in Confidence''
260(1)
Client Identity
261(1)
Client's Physical Characteristics
262(1)
Client Whereabouts
262(1)
Procedures for Invoking the Privilege
262(1)
Joint Clients and Cooperating Parties
263(1)
Exceptions to Attorney--Client Privilege
264(1)
Corporations and the Attorney--Client Privilege
264(1)
Upjohn v. United States
264(9)
Scope of the Corporate Privilege
273(1)
Why a Corporate Privilege?
274(1)
Who May Claim the Privilege on Behalf of a Corporation?
275(1)
Advising Corporate Employees Not to Speak With Opposing Counsel
276(1)
Contrasting The Government's Attorney-Client Privilege With That of Corporations
276(3)
Work-Product Doctrine
279(1)
Lawyer's Mental Impressions and Theories
280(1)
Material ``Prepared in Anticipation of Litigation''
280(2)
Who May Invoke Attorney-Client and Work-Product Protection?
282(1)
Accountants Versus Lawyers
282(2)
Documents, Attorney-Client Privilege and the Bill of Rights
284(1)
Fisher v. United States
284(9)
Documents Given to a Lawyer By a Client
293(2)
The Hubbell Case: Fisher's Caveat Upended
295(4)
Whither Boyd?
299(1)
Subpoenas to Lawyers
300(1)
Law Office Searches
301(1)
The Crime-Fraud Exception
302(1)
In Re Sealed Case (Lewinsky)
302(4)
Lewinsky and the Crime-Fraud Exception
306(1)
Justification for the Crime-Fraud Exception
307(1)
Establishing the Exception: Procedural and Evidentiary Foundations
308(1)
Internal Investigations by Lawyers of Entity Wrongdoing
309(1)
The Client's Motive
310(2)
Lawyer Dissuasion, Lawyer Disclosure and ``Uncompleted'' Crimes
312(3)
Ongoing Crimes
315(1)
Client Identity Revisited: The Hit-and-Run Driver
316(2)
Big Tobacco and Its Lawyers
318(1)
Lawyer Resistance to Reporting Cash Receipts
319(1)
Waiver of Attorney-Client Privilege
320(1)
In Re Columbia/HCA Healthcare Corp. Billing Practices Litigation
320(15)
Does Cooperative Disclosure to a Government Agency Waive the Privilege?
335(1)
The State of Play on Selective Waiver
336(1)
Privileged Disclosures
337(1)
The Scope of the Waiver
338(2)
Waiver by Putting--in--Issue
340(1)
Inadvertent Disclosure
341(1)
Professional Duty of Confidentiality
342(47)
Scope of Duty of Confidentiality
344(1)
Model Rule 1.6
344(1)
Using as Opposed to Revealing Client Information
345(1)
Publicly Available Information as Confidential Information
345(1)
Client Consent and Implied Authority to Reveal
346(1)
Confidentiality Not a Bar to a Lawyer Seeking Legal or Ethics Advice
346(1)
Consequences of Breaching the Duty of Confidentiality
346(1)
Overview of Exceptions to Confidentiality
347(1)
Self-Defense Exception
348(1)
Meyerhofer v. Empire Fire and Marine Ins. Co
349(5)
Whistle-Blowing in Self-Defense
354(1)
Obtaining Confidential Information Improperly
355(1)
Self-Defense Exception to Attorney-Client Privilege
356(1)
Client Fraud
357(1)
Introduction
357(1)
O.P.M.: A Case Study and its Lessons
357(5)
Should Singer Hutner Have Disclosed the O.P.M. Fraud?
362(1)
The Longstanding Tension Within the Ethics Rules and With Other Law
363(5)
Required Disclosure of Client Fraud Under M.R. 4.1
368(1)
Noisy Withdrawal: Its Genesis and the SEC's Flirtation With it
368(2)
Confidentiality When Death or Bodily Harm May Result
370(1)
Introductory Note
370(1)
Professional Rules
371(1)
Balla v. Gambro, Inc.
372(7)
Confidentiality and Retaliatory Discharge Claims
379(2)
Subsequent Cases on Retaliatory Discharge
381(2)
Hawkins: Rejecting a General Duty to Warn About Dangerous Clients
383(1)
Protecting the Judiciary From Dangerous Clients
384(1)
Protecting the Public From Dangerous Whistleblowers
385(4)
Conflicts of Interest
389(127)
Introduction
389(3)
Purposes, Origin and Scope of Conflicts of Interest
389(2)
Professional Rules Governing Conflicts of Interest
391(1)
Concurrent Representation in Litigation
392(54)
Professional Rules on Concurrent Representation
392(1)
``Directly Adverse'' Representation
393(2)
``Materially Limited'' Representation
395(1)
Consent and Concurrent Representation Conflicts
396(2)
Concurrent Representation in Civil Litigation
398(1)
Westinghouse Elec. Corp. v. Kerr-McGee Corp
398(9)
Understanding Westinghouse
407(1)
Positional Conflicts
408(1)
Who Qualifies as a Current Client for Purposes of the Conflicts Rules?
409(1)
Corporate Family Conflicts
409(1)
Clients on Retainers
410(1)
Advance Waiver of Conflicts
410(2)
Procedures to Discover Conflicts
412(1)
Imputation and Large Firms
413(1)
Fiandaca v. Cunningham
413(8)
Analyzing a Material Limitation Conflict
421(1)
Procedural Issues in Disqualification Motions
422(1)
Standing to Raise a Conflict of Interest
422(1)
Delay Doctrines: Waiver, Laches, and Estoppel
423(1)
Appealability
423(2)
Curing a Simultaneous Conflict: The Hot Potato Doctrine vs. Thrust-Upon Conflicts
425(1)
Personal Interest Conflicts
426(3)
Remedies for Conflicts of Interest
429(1)
Use of a Disqualified Lawyer's Work
430(3)
Concurrent Representation in Criminal Litigation
433(1)
Cuyler v. Sullivan
433(5)
The Cuyler Standard
438(1)
Mickens v. Taylor
439(3)
Disfavoring Multiple Representation in Criminal Cases
442(1)
Waiver and Denial of Defense Counsel of Choice
443(2)
Judicial Inquiry to Determine Whether a Conflict Exists
445(1)
Other Conflicts of Interest in Criminal Cases
446(1)
Joint Representation in Transactions and Civil Litigation
446(14)
Representing Both Parties to a Real Estate Transaction
447(1)
State v. Callahan
447(4)
``Full Disclosure'' as Predicate of Consent
451(1)
Confidentiality and Joint Clients
452(2)
Representing Buyer and Seller
454(1)
Lawyer Serving as Third-Party Neutral
455(1)
Joint Representation in Marital Matters
455(1)
Matrimonial Dissolution
455(2)
Estate Planning
457(1)
Joint Representation in the Formation of Business Ventures
458(1)
Aggregate Settlement Rule
458(2)
Successive Representation
460(12)
Successive Representation of Joint Clients
461(1)
Brennan's Inc. v. Brennan's Restaurants, Inc.
461(5)
Questions on Brennan's
466(1)
Other Successive Representation Issues
466(1)
Primary and Secondary (Accommodation) Clients?
466(2)
``Substantially Related'' Matters
468(1)
Competition as an Adverse Interest
469(1)
Imputation and Lawyers Not in the Same Firm
470(1)
Taint Shopping and Duties to Prospective Clients
471(1)
Imputed Conflicts and the Migratory Lawyer
472(19)
Rules and Problems
472(4)
Imputed Disqualification and Migratory Lawyers
476(1)
Nemours Foundation v. Gilbane
476(11)
Questions on Nemours
487(1)
Screening
487(3)
Conflicts When Law Firms Merge
490(1)
Conflicts Created by Migratory Nonlawyers: Paralegals, Secretaries and Law Students
490(1)
Government Lawyers and the Revolving Door
491(25)
Introduction
491(2)
Sources of Law on Government Lawyers' Conflicts
493(1)
Statutes and Regulations
493(2)
Model Rule 1.11 and Restatement § 133
495(2)
Disqualification of Former Government Lawyers Under Rule 1.11
497(1)
Securities Investor Protection Corp. (SIPC) v. Vigman
497(8)
Questions on SIPC
505(1)
The Matter of ``Matter''
505(1)
``Personal and Substantial Participation''
506(2)
Government Consent and Screening
508(1)
Confidential Government Information
509(1)
Why Limit Screening to Former Government Lawyers?
510(1)
Other Issues of Government Lawyer Conflicts
511(1)
When the Current and Former Client Are Both Government Agencies
511(1)
Moving From Private Practice Into Government Service
512(1)
Can Government Be Disqualified by Imputation?
513(1)
Simultaneously Representing a Private Client and Serving as a Government Official or Lawyer
514(1)
Other Conflicts Rules for Those in Public Service
514(2)
Who Is the Client?
516(116)
Introduction
516(2)
Individual or Enterprise
518(25)
Introductory Note
518(1)
The Organization and its Constituents
519(1)
Meehan v. Hopps
519(5)
Questions on Meehan
524(1)
``Miranda Warning'' to Corporate Constituents
524(1)
Representing An Organization and Its Agents in Derivative Actions
525(1)
Yablonski v. United Mine Workers of America
525(6)
Later Proceedings in Yablonski
531(1)
Representing Corporate Officers in Litigation
532(1)
Who Controls a Corporation's Attorney-Client Privilege?
533(1)
A Privilege for Individual Corporate Officers?
534(1)
Role of Corporate Counsel in Shareholder Derivative Suits
534(4)
Independent Counsel for a Corporation and Directing the Litigation
538(1)
Mediating Among Competing Interests Within an Organization
539(1)
Protections for Corporate Officers and Agents
539(2)
Lawyers Serving on Client's Board of Directors
541(1)
Concurrent Representation of Parent and Subsidiary
542(1)
Almost Clients
543(25)
Representing a Closely Held Corporation or Partnership
543(1)
Fassihi v. Sommers, Schwartz, Silver, Schwartz and Tyler, P.C.
543(4)
Duty Arising From ``Confidential Relationship''
547(1)
Skarbrevik: Counsel for a Close Corporation With No Fiduciary Duties to Shareholders?
548(2)
Co-Client Approach to Shareholders of Closely Held Corporations
550(1)
Partnerships
551(1)
Piercing the Privilege for Almost Clients: The Garner Doctrine
551(2)
Representing a Fiduciary
553(1)
Fickett v. Superior Court of Pima County
553(3)
Duty of a Lawyer for a Fiduciary Toward a Beneficiary
556(1)
Attorney--Client Privilege for a Trustee
556(2)
Triangular Lawyer Relationships
558(1)
``Triangular Lawyer Relationships: An Exploratory Analysis''
558(10)
Geoffrey C. Hazard, Jr.
Insured and Insurer
568(14)
Paradigm Ins. Co. v. The Langerman Law Offices
568(9)
Representing an Insured Upon Designation by Insurer
577(1)
Control of the Defense and Insurer Guidelines
578(1)
Coverage Questions
579(1)
Settling an Insurance Claim
580(1)
Is The Confusion Caused by Starting With the Wrong Question?
581(1)
Lawyers for the Government
582(11)
Introductory Note
582(1)
Identifying a Government Lawyer's Client
582(2)
Government Lawyer As Representing the ``Public Interest''
584(1)
When the Government Switches Sides in Litigation
585(1)
Model Rules and Government Lawyers
585(2)
When Government Officials Use Lawyers to Break the Law
587(1)
Case Study: Government Lawyers and Torture
587(3)
Government Lawyers As Whistleblowers
590(1)
Government Lawyers Representing Individual Government Employees
591(2)
Lawyers for a Class
593(39)
Overview: The Problems and Some Proposed Solutions
594(1)
``The Plaintiffs' Attorney's Role in Class Action and Derivative Litigation''
594(5)
Jonathan R. Macey
Geoffrey P. Miller
Market Approach to Class Action Claims
599(4)
Collusion
603(2)
``Class Wars: The Dilemma of the Mass Tort Class Action''
605(6)
John C. Coffee, Jr.
Case Study: Georgine v. Amchem Products
611(1)
Georgine v. Amchem Products, Inc.
611(13)
Supreme Court Rejection of Georgine in Amchem Products
624(2)
Class Lawyers and Lawyers for Other Entity Clients: Common Problems?
626(1)
``In Hell There Will Be Lawyers Without Clients or Law,'' In Ethics in the Practice of Law (Deborah L. Rhode, Ed.)
626(5)
Susan P. Koniak
George M. Cohen
A Final Question
631(1)
Litigation and Negotiation
632(122)
Client Perjury
632(27)
Perjury in Civil Cases
633(1)
Committee on Professional Ethics and Conduct of the Iowa State Bar Association v. Crary
634(1)
Ethics Rules on Presenting False Evidence
635(2)
The President's Lawyer's Disclosure to the Court
637(1)
Disciplining Lawyers Who Actively or Tacitly Participate in the Presentation of False Evidence
638(1)
False Evidence Offered By the Opposing Party
638(1)
Perjury in Criminal Cases
639(1)
Nix v. Whiteside
639(9)
``Court Truth'' and ``Real Truth''
648(1)
Government Use of Perjured Testimony to Obtain a Conviction
649(1)
What Should a Criminal Defense Lawyer Do?
649(2)
The Narrative Approach
651(1)
May a Defense Lawyer Inform the Trial Judge That the Defendant Has Committed Perjury?
652(1)
The Continuing Debate on Client Perjury in Criminal Trials
652(2)
``Perjury: The Lawyer's Trilemma''
654(2)
Monroe H. Freedman
Freedman's Trilemma
656(3)
Remedies for Abusive Litigation Conduct
659(37)
Frivolity, Harassment and Delay: Professional Rules and Attitudes
660(1)
In re Solerwitz
661(1)
Screening Out Frivolous Claims
662(2)
Dilatory Tactics
664(1)
Rule 11 Sanctions
665(1)
A Brief History of Rule 11
665(2)
The 1993 Rule 11 and Its Interpretation
667(1)
The Affirmative Duty to Investigate
668(2)
The Golden Eagle Debate: Will Vigorous Sanctions Deter Zealous Advocacy?
670(6)
Were Kirkland & Ellis's Legal Arguments Misleading?
676(3)
Who, If Anyone, Pays Sanctions?
679(1)
How Committed Are the Courts to Enforcing Rule 11?
680(1)
Should Certain Types of Claims Be Judged More Leniently?
680(1)
Harsher Treatment of Lawyers and Parties in Securities Cases
681(1)
State Corollaries to Rule 11
682(1)
Other Procedural Sanctions
682(1)
Unreasonably and Vexatiously Multiplying Proceedings
682(1)
Inhernet Judicial Authority to Sanction Bad Faith Conduct
683(1)
Sanctions for Discovery Abuse
683(1)
Sanctions At the Appellate Level
684(1)
The Anders Brief
685(1)
Tort Remedies Against Lawyers for Litigation Conduct
686(1)
Friedman v. Dozorc
686(3)
Civil Liability of a Lawyer for Pursuing a Frivolous Claim
689(1)
Negligence Claim
689(1)
Abuse of Process
690(1)
Malicious Prosecution
691(1)
Other Tort Liability Issues
692(1)
Immunity From Suit for Defamation
692(1)
Perjury As a Tort
693(1)
Tortious Spoliation of Evidence
693(1)
Is Court Rule Better Than Tort Rule?
694(1)
High Stakes Litigation as a ``Prisoner's Dilemma''
694(2)
How Far for a Client?
696(23)
Witness Preparation (Coaching)
696(5)
Fostering Falsity
701(1)
Views of Commentators
701(1)
Michigan Opinion CI-1164
702(1)
Dirty Tricks in Court
703(1)
Deliberate Injection of Impermissible Matter
703(2)
Asserting Personal Knowledge, Belief or Opinion
705(1)
Intimidation and Harassment
706(1)
Blaming the Victim
706(2)
Trickery
708(1)
The Special Responsibilities of Prosecutors
708(1)
The Prosecutor's Role
708(1)
Disclosure of Material Exculpatory Evidence (The Brady Rule)
709(2)
Prosecutorial Misconduct and Its Control
711(1)
``Break Rules, Be Promoted''
711(5)
Ken Armstrong
Maurice Possley
Has Anything Changed?
716(1)
Using Improper Means in Gathering Evidence
717(2)
Lawyer's Relationship With Non-Clients
719(18)
Communicating With Another Lawyer's Client (No-Contact Rule)
719(2)
Communicating With Constituents of an Organizational Client
721(1)
Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College
721(6)
Who Is a Represented Person or Party for Purposes of No-Contact Rule?
727(1)
When Opposing Party Is a Class
728(1)
When the Represented Person Is a Government Agency
729(1)
Application of the No-Contact Rule to Prosecutors
730(4)
Fairness to Persons Not Represented By Counsel
734(2)
The Advocate--Witness Rule
736(1)
The Law and Ethics of Negotiation
737(17)
The Lawyer As Negotiator
737(2)
Truthfulness in Bargaining
739(1)
How Truthful Are Lawyers in Negotiations?
739(1)
Relevant Ethics Rules
740(1)
Conduct Assisting or Involving Illegal Conduct
741(2)
Judicial Decisions
743(2)
Negotiating Strategies and the Temptation to Deceive
745(1)
``A Causerie on Lawyers' Ethics in Negotiation''
745(3)
Alvin B. Rubin
Rubin and Today's World of Lawyering
748(1)
The ABA Rejects Judge Rubin's Proposal
748(1)
Can Lawyers' Negotiating Tactics Be Regulated?
749(1)
The Case for Cooperative Negotiating Strategies
750(4)
Lawyer-Client Relationship
754(94)
Introductory Note
754(6)
Fees
760(38)
Introductory Note
760(1)
Amount of the Fee
761(1)
In The Matter of Fordham
762(5)
Brobeck, Phleger & Harrison v. Telex Corp
767(1)
Bushman v. State Bar of California
768(1)
White v. McBride
768(1)
Excessive Fees
769(1)
Judicial Control of Fees
770(2)
Non-Refundable Retainer Fees
772(2)
Minimum Fees
774(1)
Illegal Fees
774(1)
Fraudulent Billing and Fee Padding
775(2)
Statutory Fee Limits
777(1)
Fee Disputes
778(1)
Fee Arbitration
778(1)
Client Confidentiality in Fee Disputes
779(1)
Contingent Fees
779(2)
Professional Rules on Contingent Fees
781(1)
Cases on Excessive Contingent Fees
782(1)
Committee on Legal Ethics of West Virginia State Bar v. Gallaher
783(1)
Gagnon v. Shoblom
784(1)
Contemporary Criticisms of Contingent Fees
785(3)
Reforming The Contingency Fee: Manhattan Institute Proposal and ABA Response
788(2)
Prohibitions on Use of Contingent Fees
790(1)
Divorce Cases
790(1)
Criminal Defense Work
791(1)
Public Litigation
792(1)
Contingent Fees in Transactions
793(1)
Quantum Meruit Recoveries by Contingent Fee Lawyers Who Withdraw or Are Discharged
793(2)
Flat Fees Paid to Insurance Defense Lawyers
795(1)
Liens
796(2)
Lawyer-Client Transactions
798(19)
Transactions With Clients
798(1)
Business Transactions
799(1)
Committee on Professional Ethics and Conduct of Iowa State Bar Association v. Mershon
800(4)
Business Dealings With Clients
804(2)
Lawyer Equity Investments in Clients
806(3)
Contracting With a Client for Rights to Client's Story
809(1)
Gifts From Clients
810(2)
Sexual Relationship With Client
812(1)
Handling Property of Clients and Others
813(1)
Commingling Funds
814(1)
Record Keeping
815(1)
Client Protection Funds and Other Regulatory Safeguards
816(1)
Keeping Money of Multiple Clients in One Account
816(1)
Scope of Lawyer's Authority
817(18)
Introductory Note
817(2)
Allocation of Decision-Making Authority in Civil Litigation
819(2)
Authority to Settle Civil Matters
821(1)
International Telemeter Corp. v. Teleprompter Corp.
821(1)
Actual and Apparent Authority
822(2)
Authority to Settle on Behalf of Government
824(1)
Settlement Practices and Adversary Premises
824(2)
Allocation of Decision--Making in Criminal Cases
826(1)
Decisions a Client Has a Right to Make
826(1)
Decisions a Criminal Defense Lawyer May Make
827(1)
Jones v. Barnes
828(2)
Violation of Client Instructions As Ineffective Assistance
830(2)
Accepting or Rejecting a Plea Bargain Offer
832(1)
Autonomy to Opt for Death
832(1)
Disabled Clients
833(2)
Ending the Relationship
835(13)
Lawyer Withdrawal
835(1)
Mandatory Withdrawal
835(1)
Permissive Withdrawal
836(3)
Protecting a Client Upon Withdrawal
839(1)
Client Access to Lawyer's File
839(1)
Discharge and Its Consequences
840(2)
Ending the Relationship Before It Starts?
842(1)
Togstad v. Vesely, Otto, Miller & Keefe
842(4)
Obligations to a Prospective Client
846(2)
Competence
848(53)
How Widespread Is Incompetence?
848(1)
Checks on Incompetence
849(4)
Ethics Rules on Competence
850(1)
Continuing Legal Education
851(1)
Peer Review
852(1)
Reputation and the Market
852(1)
Malpractice
853(19)
Introductory Note
853(2)
Overview of Tort of Malpractice
855(1)
Lucas v. Hamm
856(2)
Questions on Lucas
858(1)
Causation and Standard of Care
859(1)
Smith v. Lewis
859(6)
Causation of Harm
865(1)
Standard of Care
866(1)
Duty When Negotiating a Settlement
866(1)
Professional Custom Sets the Standard
866(1)
Expert Testimony
867(1)
National or Local Standard
868(1)
Other Issues
869(1)
Violation of Ethical Rules as a Basis for Malpractice
869(1)
Limiting Malpractice Liability by Agreement
870(1)
Malpractice Insurance
871(1)
Role of Malpractice Insurers in Loss Prevention
872(1)
Effective Assistance of Counsel Under the Sixth Amendment
872(29)
Introductory Note
872(2)
Ineffective Assistance: The Constitutional Standard
874(1)
Strickland v. Washington
874(14)
Questions on Strickland
888(2)
Required Showing of Prejudice
890(1)
Effect of Strickland
890(1)
An Example of ``Adequate'' Representation
891(2)
Defense Counsel's Duty to Investigate
893(1)
Constitutional Role of Defense Counsel
894(2)
When Prejudice Is Presumed
896(1)
Effective Assistance of Counsel Under State Constitutions
897(1)
A Preventive Approach?
898(1)
Malpractice Claims Against Criminal Defense Lawyers
898(3)
Law, Lawyers and Justice
901(114)
Introduction
901(1)
Religious and Constitutional Traditions
901(2)
Political and Professional Realities
903(2)
Justice and Ordinary Lawyering
905(63)
Access to Justice for Ordinary Americans: An Overview
905(1)
What Is the Problem?
905(2)
Use of Legal Services by Moderate Income Americans
907(1)
Alternative Prescriptions
908(1)
Access to Justice Through Nonlawyers: The Unauthorized Practice of Law
909(2)
Legal Remedies Against Unauthorized Law Practice
911(1)
What Constitutes ``The Practice of Law''?
911(1)
Unauthorized Practice of Law Committee v. Parsons Technology, Inc.
911(8)
Nonlawyer Participation in Documenting Real Estate Transactions
919(1)
Unauthorized Practice of Law in The Information Age
920(2)
Getting Individualized Help With Legal Forms From Lay Persons
922(2)
Nonlawyer Representation in Adjudicatory Proceedings
924(1)
Defining the Professional Monopoly
925(1)
Restrictions on Law Practice by Corporations
926(1)
Turf Wars in Real Estate and Other Fields
927(1)
Advertising and Solicitation
928(1)
Advertising as a Means of Enhancing Access
928(1)
Traditional Ban on Lawyer Advertising
929(2)
Model Rules on Lawyer Advertising
931(1)
First Amendment Protection of Lawyer Advertising
931(1)
In-Person Solicitation: Ohralik and Primus
932(1)
Ohralik v. Ohio State Bar Association
932(1)
In re Primus
933(1)
Written Solicitation of Particular Matters
934(1)
Shapero v. Kentucky Bar Association
934(8)
Targeted Mail After Shapero
942(1)
Targeted Mail to Accident Victims and Their Relatives: The Went for It Case
942(1)
Florida Bar v. Went For It, Inc.
942(2)
Effect of Advertising on Public's Perception of Lawyers
944(1)
The Internet and Other Unresolved Questions
945(2)
Group Legal Services
947(2)
Financing Litigation
949(1)
The American Rule and Its Alternatives
949(3)
Court Awarded Attorney's Fees
952(1)
Model Rule 1.8(e)
952(1)
Justice in the Law Office: Drafting Contracts
953(1)
Lawyer's Role in Drafting Contracts
953(1)
Paul D. Carrington, Unconscionable Lawyers
954(12)
Unconscionable Adhesion Contracts
966(2)
Lawyers Serving Poor People and ``The Public Interest''
968(28)
A Constitutional Right to Civil Legal Assistance?
968(2)
``The Stench of Room 202''
970(3)
Steven Brill
Professional Obligation to Represent Poor People
973(1)
Mandatory Pro Bono
974(3)
The Mallard Case
977(1)
Publicly Financed Civil Legal Assistance
978(1)
Background
978(1)
Development of Federal Legal Services Program
979(1)
Legislative and Regulatory Restrictions
980(1)
David Luban, Taking Out the Adversary: The Assault on Progressive Public--Interest Lawyers
981(9)
Silencing, Rationing and Fee Awards in Legal Services
990(2)
Recurring Policy Issues
992(1)
Staff-Attorney System or Judicare System?
992(1)
Who Should Be Served?
993(1)
What Should Be the Standard of Service?
993(2)
Social Advocacy vs. Individual Client Service
995(1)
Shaking the World: Lawyers for and as Revolutionaries
996(19)
Politics and the Courtroom
996(1)
Disorder in the Court: The Chicago Conspiracy Trial
997(1)
The Contempt Power
998(1)
Securing Courtroom Decorum
999(3)
Revolutionary Lawyers in Corporate Law Firms?
1002(2)
Free Speech Rights of Lawyers
1004(1)
Public Comment About Pending Cases
1004(1)
Gentile v. State Bar of Nevada
1004(7)
Gentile and Trial Publicity
1011(1)
Extrajudicial Criticism Of Administration Of Justice
1011(2)
Criticism of Particular Judges
1013(2)
The Structure of Legal Practice
1015(150)
Introduction
1015(1)
Legal Education
1016(14)
Criticism of Legal Education
1017(5)
Perspectives on Legal Education
1022(1)
Duncan Kennedy, Legal Education and the Reproduction of Hierarchy
1022(4)
Critiques of Legal Education and Its Relationship to Law Practice
1026(3)
Legal Profession's Messages About Legal Ethics
1029(1)
Admission to Practice
1030(24)
Modern Admission Standards
1030(1)
Accredited Law Schools
1031(2)
Bar Examination
1033(2)
Character and Fitness
1035(2)
In Re Hale
1037(9)
Subsequent Developments Concerning Hale
1046(1)
Political Beliefs and Good Character
1047(4)
Racist and Sexist Conduct
1051(1)
Fitness of Applicants With Disabilities
1052(2)
Discrimination Within the Bar
1054(46)
African--Americans
1054(1)
History of African--Americans in Law
1054(1)
Geraldine R. Segal, Blacks in the Law
1054(1)
African--Americans and Legal Education
1055(2)
Grutter v. Bollinger
1057(24)
Questions on Grutter
1081(3)
African--Americans in Law Schools
1084(1)
African--Americans in Practice
1085(3)
Women
1088(2)
``Perspectives on Professional Women''
1090(1)
Deborah L. Rhode
Women in Law Schools
1091(3)
Gender Discrimination in Partnership Decisions
1094(1)
Hishon v. King & Spalding
1094(4)
Gender Bias in the Courts
1098(1)
Other Minorities
1099(1)
Law Firms and Other Multilawyer Relationships
1100(16)
Responsibilities of Junior and Senior Lawyers
1101(1)
``When a Lawyer Lies''
1101(3)
Steven Brill
Aftermath of the Berkey-Kodak Incident
1104(2)
Murphy & Demory, Ltd. v. Murphy
1106(1)
Supervisory and Subordinate Lawyers
1107(1)
Fee Splitting (Referral Fees)
1108(3)
Declining Loyalty: Grabbing and Leaving
1111(1)
Rosenfeld, Meyer & Susman v. Cohen
1111(1)
Non-Compete Clauses and Forfeiture Provisions
1112(2)
Discipline for Law Firms
1114(1)
Vicarious Liability and LLPs
1115(1)
Multidisciplinary Practice
1116(6)
Form-of-Practice Restrictions of Model Rule 5.4
1116(2)
Ancillary Business Activities
1118(1)
``The MDPs Are Coming!''
1119(3)
Multijurisdictional Practice
1122(14)
Exclusion of Noncitizens and Nonresidents
1123(2)
Admission Pro Hac Vice
1125(1)
Multijurisdictional Practice
1126(1)
Denial of Fees to Out-of-State Attorneys
1126(3)
Amended Model Rule 5.5 and Restatement § 3(3)
1129(1)
All Licenses Are Local
1130(2)
What State's Law Governs a Lawyer's Conduct?
1132(2)
Transnational Practice
1134(1)
Foreign Legal Consultants
1135(1)
SEC Rules Governing Foreign Attorneys
1135(1)
Model Rule 8.5 and Transnational Practice
1136(1)
The Bar and ``Self-Regulation'' of Its Members
1136(29)
Bar Associations
1136(1)
``Modern Legal Ethics''
1137(3)
Charles W. Wolfram
Compulsory Membership in the Bar
1140(2)
Discipline
1142(2)
Disciplinary Procedure
1144(1)
Discipline and the Fifth Amendment
1145(1)
Discipline and Lawyer Crimes
1146(2)
Disciplinary Sanctions
1148(1)
Conduct Prejudicial to the Administration of Justice
1149(1)
In re Masters
1149(1)
What Conduct Prejudices the Administration of Justice?
1150(2)
The Effectiveness of the Disciplinary System
1152(2)
Obligation to Report Professional Misconduct of Other Lawyers
1154(1)
In Re Himmel
1155(3)
Scope of Duty to Report
1158(1)
Should the Duty Be Mandatory?
1159(1)
Extortion as Prohibited Assistance
1160(1)
``Professionalism'' and Civility
1161(1)
Civility Codes
1161(1)
Future of Self-Regulation
1162(3)
Index 1165

An electronic version of this book is available through VitalSource.

This book is viewable on PC, Mac, iPhone, iPad, iPod Touch, and most smartphones.

By purchasing, you will be able to view this book online, as well as download it, for the chosen number of days.

Digital License

You are licensing a digital product for a set duration. Durations are set forth in the product description, with "Lifetime" typically meaning five (5) years of online access and permanent download to a supported device. All licenses are non-transferable.

More details can be found here.

A downloadable version of this book is available through the eCampus Reader or compatible Adobe readers.

Applications are available on iOS, Android, PC, Mac, and Windows Mobile platforms.

Please view the compatibility matrix prior to purchase.