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Tables of Contents for Regulation of Lawyers
Chapter/Section Title
Page #
Page Count
Why It Matters: A Preface for Students...And My Casebook ``Philosophy''
xxv
Acknowledgments
xxxi
A Word About Case Editing
xxxv
Where Do ``Ethics'' Rules Come From?
1
18
Part One THE CLIENT-LAWYER RELATIONSHIP
19
208
Defining the Client-Lawyer Relationship
21
86
Is There a Client Here?
22
5
Elements of the Client-Lawyer Relationship
27
58
Competence
27
1
Confidentiality
28
1
Privileged and Ethically Protected Information
28
3
Reasons for Confidentiality Rules
31
1
Legislative History
32
1
State Variations
33
1
The Restatement's Position
33
1
Perez v. Kirk & Carrigan
34
4
``My Client Is HIV Positive''
38
1
``I Know There's a Gun''
38
1
Entity Clients
39
1
Upjohn Co. v. United States
40
3
Samaritan Foundation v. Goodfarb
43
7
The Restatement's Position
50
1
What's the Right Policy?
50
3
``Slip and Fall''
53
1
Is There a Government Attorney-Client Privilege?
53
3
Exceptions to the Privilege or the Ethical Duty
56
13
Agency
69
1
Taylor v. Illinois
69
2
Cotto v. United States
71
1
Binding the Client
72
3
Confidentiality Duties in Agency Law
75
1
Fiduciary
75
3
Loyalty and Diligence
78
1
The Duty to Inform and Advise
79
1
Nichols v. Keller
79
2
Robert S. Caine, A Lawyer's View of Being a Litigant
81
1
The Client's Right to Know
82
2
``In a Box''
84
1
Autonomy of Attorneys and Clients
85
17
The Lawyer's Autonomy
87
1
Jones v. Barnes
87
4
The Scope of the Lawyer's Autonomy
91
2
``Ms. Niceperson''
93
1
The Client's Autonomy
94
1
Olfe v. Gordon
94
1
The Scope of the Client's Autonomy
95
3
The Medical Analogy
98
1
Clients with Diminished Capacity
98
3
``I'd Rather Die''
101
1
``Accept the Offer''
102
1
Terminating the Relationship
102
5
Termination by the Client
103
1
Termination by the Lawyer
104
2
Termination by Drift
106
1
Protecting the Client-Lawyer Relationship Against Outside Interference
107
36
Communicating with Another Lawyer's Clients
108
26
Civil Matters
110
1
Niesig v. Team I
111
4
How Large the Circle of Secrecy?
115
2
When the Government Is the Adversary
117
2
Testers
119
3
``Slip and Fall Redux''
122
1
Criminal Matters
122
2
United States v. Hammad
124
3
Ethics and Crime Fighting in a Federal System
127
7
``The Sting''
134
1
Improper Acquisition of Confidential Information
134
9
The Case of the Misdirected Fax
136
3
A Spy in the Defense Camp
139
1
A New Cause of Action?
140
1
``Something You Should Know''
141
2
Financing Legal Services (and Dividing the Money)
143
84
The Role of the Marketplace
146
8
Brobeck, Phleger & Harrison v. Telex Corp.
146
4
Hourly or Value Billing?
150
4
Unethical Fees
154
19
Matter of Laurence S. Fordham
154
8
``What Are You Worth?''
162
1
Courts May Reduce or Deny Unethical Fees
163
1
Should a Lawyer Be Required to Put Fee Agreements in Writing?
164
1
Inflating Bills
165
1
Nonrefundable Fees
166
1
Matter of Cooperman
167
3
A Lawyer's Inventory
170
3
Contingent Fees and Statutory Limits
173
11
Statutory Fee Ceilings
175
2
Prohibitions on Contingent Fees in Criminal and Matrimonial Cases
177
2
Should Contingent Fees Be Outlawed or Further Regulated?
179
2
Loser Pays
181
1
Michael Napier, For Many, English Rule Impedes Access to Justice
181
3
Minimum Fee Schedules
184
4
Goldfarb v. Virginia State Bar
185
3
Antitrust and Legal Ethics
188
1
Court-Awarded Fees
188
25
Determination of Amount
188
2
City of Burlington v. Dague
190
5
Questions About City of Burlington
195
2
Common Fund Cases
197
1
``Those Fees Are Outrageous''
198
1
Settlement Conditioned on Fee Waiver
198
1
Evans v. Jeff D.
198
12
Questions About Evans v. Jeff D.
210
3
Who May Receive Court-Ordered Fees?
213
1
Mandatory Pro Bono Plans
213
6
Deborah L. Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students
215
3
Is Mandatory Pro Bono a ``Price'' for ``Inventory''?
218
1
Who Gets the Money?
219
8
Dividing Money (or Clients) Within a Firm
220
3
Division of Fees Outside Firms
223
2
What Is a Law Firm?
225
2
Part Two CONFLICTS OF INTEREST
227
164
Concurrent Conflicts of Interest
229
110
A Typology of Conflicts
229
6
Client-Lawyer Conflicts
235
25
Business Interests
235
1
Matter of Neville
235
4
A Lawyer's Financial Interests
239
4
Internet Startups
243
2
``May the Lawyer Be Our Client?''
245
1
Media Rights
245
2
Financial Assistance and Proprietary Interests
247
2
Fee-Payor Interests
249
2
Related Lawyers and Significant Others
251
1
Gellman v. Hilal
251
1
Private and Public Lives
252
2
A Lawyer's Legal Exposure
254
2
Gender, Religion, Race
256
1
``Karen Horowitz's Dilemma''
256
2
How Roger Baldwin Picked a Lawyer
258
2
Client-Client Conflicts
260
73
Criminal Cases (Defense Lawyers)
260
1
Cuyler v. Sullivan
261
5
Turning Conflicts into Sixth Amendment Claims After Cuyler and Holloway
266
3
Holloway Error
269
2
Forced Disqualification of Defense Counsel
271
1
Wheat v. United States
271
7
Wheat's Harvest
278
4
Appealability of Criminal Disqualification Orders
282
1
``All or Nothing''
283
1
Criminal Cases (Prosecutors)
284
1
Young v. United States ex rel. Vuitton et Fils S.A.
284
3
Prosecutors avec Deux Chapeaux
287
4
``Contributions to Justice''
291
1
``Conscientious Objectors''
291
1
Civil Cases
291
1
Fiandaca v. Cunningham
292
5
Imputed Conflicts
297
1
Standing to Object
297
4
May a Lawyer Act Adversely to a Client on an Unrelated Matter?
301
5
Confidentiality and Privilege in Multiple Client Representations
306
5
Class Conflicts
311
1
Appealability of Civil Disqualification Orders
311
1
``Will You Represent Us Both?''
312
1
``May We Do Both Cases?''
313
1
Malpractice Based on Conflicts
313
1
Simpson v. James
314
3
What Did Oliver and James Do Wrong?
317
2
Consent and Waiver
319
3
Is There a Client-Lawyer Relationship?
322
3
``What Kind of Consent?''
325
1
The Insurance Triangle
326
1
Public Service Mutual Insurance Co. v. Goldfarb
326
3
The Obligation to Defend
329
3
``The Insurer Would Want to Know''
332
1
The Advocate-Witness Rule
333
6
Policies Behind the Advocate-Witness Rule
334
2
The Advocate-Witness Rule in Criminal Cases
336
3
Successive Conflicts of Interest
339
52
Private Practice
339
23
Analytica, Inc. v. NPD Research, Inc.
339
4
The ``Substantial Relationship'' Test
343
5
The Successive Duty of Loyalty
348
2
The Consequences of Disqualification
350
1
Malpractice Based on Successive Conflicts
351
1
Who Is a Former Client?
352
2
Like a Hot Potato
354
4
Standing and Waiver
358
1
The Appearance of Impropriety
358
1
Conflicts in Class Actions
359
2
``Divorce and Default''
361
1
``Do I Still Owe the Record Store?''
362
1
Imputed Disqualification and Migratory Lawyers
362
16
Cromley v. Board of Education
363
4
Why Didn't the Cromley Court Inquire...?
367
1
Presumptions in Imputed Disqualification
368
4
Removing Conflicts from a Former Firm
372
1
Rebutting the Second Presumption
373
1
Nonlawyer Conflicts
374
2
Reflections on the Term ``Chinese Wall''
376
1
``You Turned on Us''
377
1
``The Verdict Is Unconstitutional''
378
1
Government Service
378
13
Armstrong v. McAlpin
380
4
The Revolving Door in the Model Rules
384
3
What Is the Meaning of ``Matter'' and ``Substantial Responsibility''?
387
2
``Investigating Landlords''
389
2
Part Three SPECIAL LAWYER ROLES
391
286
Ethics in Advocacy
393
120
Five Views on Adversary Justice
398
20
Rifking and Frankel: Defender and Critic
398
1
Simon H. Rifkind, The Lawyer's Role and Responsibility in Modern Society
398
6
Marvin E. Frankel, Partisan Justice
404
3
Schwartz and Ball: Two Visions of ``Truth''
407
1
Murray L. Schwartz, The Zeal of the Civil Advocate
407
2
Milner S. Ball, Wrong Experiment, Wrong Result: An Appreciatively Critical Response to Schwartz
409
2
The Advocate as Performance Artist
411
1
Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass
412
5
``Which System Is Better?''
417
1
Are Lawyers Morally Accountable for Their Clients?
418
4
Cravath Represents Credit Suisse
418
1
Ronald Goldfarb, Lawyers Should Be Judged by the Clients They Keep
419
3
Truth and Confidences
422
35
Legislative History of the Code
423
2
Legislative History of the Rules
425
1
ABA Opinion 353
426
3
The Duty to Withdraw
429
1
The Effect of Withdrawal on the Rule 3.3 Duty
429
1
Ethics, Lies, and Rule 26
430
1
Nix v. Whiteside
431
10
ABA Opinion 353 (continued)
441
4
After Nix, What?
445
6
``The Lecture''
451
4
Robert Bennett's Letter to Judge Susan Webber Wright
455
2
Fostering Falsity or Advancing Truth?
457
35
Literal Truth
457
1
The Parable of Billy
457
1
The Romance of Annie and Bill
458
1
The Two Boys and the Butcher
458
1
In the Matter of William Jefferson Clinton
459
3
The Law of Perjury
462
3
The Law of Contempt
465
1
Cross-Examining the Truthful Witness
465
1
Daniel J. Kornstein, A Tragic Fire---A Great Cross-Examination
466
3
Ann Ruben & Emily Ruben, Letter to the Editor
469
1
Appeals to Bias
470
4
The Boundaries of Proper Argument
474
1
Improper Argument
474
1
Arguing for False Inferences
475
1
William H. Fortune, Richard H. Underwood, & Edward J. Imwinkelreid, Modern Litigation and Professional Responsibility Handbook
476
1
The Subin-Mitchell Debate
477
6
Questions
483
1
``The Eyewitness'' (Part I)
484
1
``The Eyewitness'' (Part II)
484
1
Exploiting Error
485
1
Michigan Opinion CI-1164
485
2
Silence
487
1
Southern Trenching, Inc. v. Diago
487
4
``Carl's Deception''
491
1
Frivolous Positions and Abusive Tactics
492
4
Dilatory Tactics
496
3
Washington Monthly
496
2
Legislative History
498
1
Hardball
499
6
Mullaney v. Aude
500
5
Misstating Facts, Precedent, or the Record
505
2
The Obligation to Reveal Adverse Legal Authority
507
6
Matter of Thonert
507
3
Is There an Obligation to Reveal That Your Client Has No Case?
510
3
Real Evidence
513
28
In re Ryder
513
7
Note, Legal Ethics and the Destruction of Evidence
520
3
Legislative History of Model Rule 3.4(a)
523
1
Other Jurisdictions
523
1
Could Nixon Have Destroyed the Tapes? (And Other Intriguing Questions)
524
3
The ABA's Solution
527
1
People v. Meredith
527
7
The Turnover Duty (But How Broad?)
534
2
Moving Pictures
536
1
Does the Source Matter?
537
1
Spoliation of Evidence
537
4
Lawyers for Entities
541
56
Conflicts and Confidentiality in Entity Representation
545
26
Tekni-Plex, Inc. v. Meyner & Landis
545
8
Who Is the Client in Entity Representations?
553
10
Privilege and Conflicts in Shareholder (and Other Fiduciary) Actions
563
3
Closely Held Entities
566
1
Murphy & Demory, Ltd. v. Murphy
567
4
Retaliatory Discharge and Whistleblowing
571
26
General Dynamics Corp. v. Superior Court
573
14
Traditional Doctrine Confronts- Economic Reality
587
5
The Rights of Associates
592
2
The Ethics of Whistleblowing
594
3
Negotiation and Transactional Matters
597
34
Do Lawyers Get Immunity?
600
31
Rubin v. Schottenstein, Zox & Dunn
600
9
May or Must Lawyers Warn Victims of a Client's Fraud?
609
1
Legislative History and State Variations
609
1
What Is ``Fraudulent''?
610
1
What Is ``Assisting''?
611
1
ABA Opinion 366
612
7
Questions About Opinion 366
619
2
``The Case of the Substandard Plumbing Lines''
621
1
``The Case of the Complex Formula''
622
1
Negotiating Settlements in Litigation
623
1
Virzi v. Grand Trunk Warehouse and Cold Storage Co.
623
3
What Does Virzi Stand For?
626
2
Threatening Criminal Prosecution
628
3
Judges
631
46
Conflicts and Disqualification
635
29
What Judicial Conflicts Violate the Due Process Clause?
635
2
Ethical and Statutory Disqualification
637
1
Liljeberg v. Health Services Acquisition Corp.
637
12
What Conflicts Prevent a Judge from Sitting?
649
14
``Conflicts in Bush v. Gore?''
663
1
Expressions of Gender, Racial, and Other Bias
664
13
Judicial and Courtroom Bias
664
1
In re Marriage of Iverson
664
5
Statements Off the Bench
669
3
Matter of Bourisseau
672
1
What the Code Requires
673
2
``The Judge and the Boy Scouts''
675
2
Part Four AVOIDING AND REDRESSING PROFESSIONAL FAILURE
677
264
Control of Quality: Reducing the Likelihood of Professional Failure
679
86
Admission to the Bar
682
25
Geographical Exclusion
682
1
Supreme Court of New Hampshire v. Piper
682
6
The ``New Jersey'' Problem
688
2
Geographical Restriction
690
1
Supreme Court of Virginia v. Friedman
690
5
After Piper and Friedman, What Can a State Do to Discourage Out-of-State Lawyers?
695
1
Education and Examination
696
2
Character Inquiries
698
1
In re Mustafa
699
2
Frequently Cited Grounds for Delaying or Denying Admission to the Bar
701
2
Mental Health
703
2
``The Racist Bar Applicant''
705
1
Procedures Regarding Character Inquiry
705
1
Experimental Requirements
706
1
Admission in a Federal System
706
1
Transient Lawyers and Multijurisdictional Firms: Local Interests Confront a National Bar
707
36
Admissions Pro Hac Vice
711
1
Leis v. Flynt
711
6
What About the Client's Interests?
717
2
Services Other Than Litigation
719
1
Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court
719
12
If Birbrower Is the Problem, What Is the Solution?
731
1
``Practicing Nationally from St. Louis''
732
1
Some Other Decisions
733
2
Some Alternatives
735
1
Lessons from the European Community (An Interview with Laurel Terry)
736
5
Multijurisdictional Firms
741
2
The Ethical Duty of Competence
743
2
Continuing Legal Education
745
1
Supervisory Responsibilities
746
4
``I Don't Want to Pry But...''
749
1
Unauthorized Practice of Law
750
13
Professional Adjusters, Inc. v. Tandon
752
5
The Troubled World of Unauthorized Practice
757
1
Uncontested Divorces
758
1
Will Courts Share Power?
759
1
Should Paralegals Be Licensed?
760
1
Constitutional Limitations
761
1
Quicken Family Lawyer Confronts Texas UPL Statute
762
1
Specialization
763
2
Control of Quality: Remedies for Professional Failure
765
136
Malpractice and Breach of Fiduciary Duty
765
22
Liability to Clients
767
1
Togstad v. Vesely, Otto, Miller & Keefe
768
7
Questions and Comments About Togstad
775
1
What Is the Required Standard of Care?
776
1
Fraud
777
1
Breach of Fiduciary Duties
778
1
Is Sex with Clients a Breach of Fiduciary Duty?
779
1
Tante v. Herring
779
2
``Exit Strategy''
781
1
Third Parties as ``Client-Equivalents''
782
2
Vicarious Liability
784
3
Proving Malpractice
787
26
Use of Ethics Rules and Expert Testimony
787
1
Smith v. Haynsworth, Marion, McKay & Geurard
788
3
Ethical Violations as a Basis for Reduction or Denial of Fees
791
1
Hendry v. Pelland
791
1
Fee Forfeiture and Disgorgement
792
2
Causation and Defenses
794
5
``The Law Changed Twice''
799
1
Causation in Criminal Cases
800
1
Peeler v. Hughes & Luce
801
6
Acquittal, Innocence, or Exoneration?
807
3
Assigned Counsel
810
1
Damages or Injury
810
3
Beyond Malpractice: Other Grounds for Attorney Liability to Clients and Third Parties
813
21
Petrillo v. Bachenberg
813
9
The Expanding Universe in Professional Liability
822
12
Discipline
834
47
Purposes of Discipline
834
1
Sanctions
835
2
Disciplinary Systems
837
1
Acts Justifying Discipline
838
1
Dishonest or Unlawful Conduct
839
1
In re Warhaftig
839
3
In re Austern
842
4
Deceit, Dishonesty, Etcetera
846
4
Neglect and Lack of Candor
850
1
Sexual Relations with a Client
851
1
Matter of Tsoutsouris
852
3
Should Lawyers Be Forbidden to Have Sexual Relations with Clients?
855
4
The Lawyer's ``Private'' Life and Conduct Unrelated to Clients
859
2
Racist and Sexist Conduct
861
1
Matter of Jordan Schiff
861
7
Richard F. Duncan, A Speech Code for Lawyers
868
2
Close Questions?
870
2
Failure to Report Another Lawyer's Misconduct
872
2
``Better Late than Never''
874
1
Defenses
875
1
Disciplinary Procedures
876
4
Discipline in a Federal System
880
1
Constitutional Protection in Criminal Cases
881
20
Strickland v. Washington
885
6
Inadequate Time to Prepare
891
1
United States v. Cronic
891
2
Some Reasons for Ineffectiveness Claims
893
3
Morris v. Slappy: Effectiveness Does Not Include Rapport
896
1
The Ineffectiveness Test in a System of Procedural Defaults
897
1
An Ounce of Prevention?
898
3
Control of Quality: Lay Participation in Law Business (And Law Firm Ancillary Services)
901
40
Legislative History
904
2
Nonprofit Entities and Intermediaries
906
17
Public Interest Organizations
906
1
NAACP v. Button
906
8
Maintenance, Barratry, Champerty, and Change
914
3
Labor Unions
917
2
United Transportation Union v. State Bar of Michigan
919
4
For-Profit Enterprises
923
11
ABA Opinion 355
924
4
Should Lawyers Be Permitted to Work for Law Firms Owned or Managed by Nonlawyers?
928
2
Multidisciplinary Practice (MDP)
930
2
MDP Commission's Final Recommendation
932
1
Cooperative Business Arrangements
933
1
Comparing Medicine
934
1
May a Law Firm Own an Ancillary Business?
934
7
The Rise and Fall and Modest Return of Model Rule 5.7
936
2
Meanwhile, In the U.K....
938
1
Comparing Medicine
939
1
``How Can We Get Together?''
940
1
Part Five FIRST AMENDMENT RIGHTS OF LAWYERS
941
100
Free Speech Rights of Lawyers
943
42
Public Comment About Pending Cases
946
26
Gentile v. State Bar of Nevada
948
20
Questions About Gentile
968
1
Defamation Claims
969
2
The Trial of William Kennedy Smith
971
1
Public Comment About Judges and Courts
972
10
Criticizing the Administration of Justice
972
2
Criticizing Particular Judges
974
1
Matter of Holtzman
975
3
Questions About Holtzman
978
1
Other Examples of Lawyers Criticizing Judges and Justice
979
3
Mandatory Bar Membership
982
3
Marketing Legal Services
985
56
Defining the Borders: Bates and Ohralik
986
11
Ohralik v. Ohio State Bar Assn.
990
5
A Prophylactic Rule
995
2
Defining the Center: Zauderer, Shapero, and Peel
997
21
Targeted Advertisements
998
1
Zauderer v. Office of Disciplinary Counsel
998
8
Targeted Mail
1006
1
Shapero v. Kentucky Bar Assn.
1007
7
The Response to Shapero
1014
3
Claims of Special Expertise
1017
1
Defining the Methodology
1018
5
How Does the Court Know Things?
1019
2
Professionalism and Money
1021
2
Defining the Rules
1023
6
Does the First Amendment Protect Legal Advertising on Radio and Television?
1023
2
Internet Advertising
1025
1
May States Require Disclaimers?
1025
2
Other Lawyers' Clients
1027
1
``I'm Back on My Feet''
1028
1
Solicitation by Public Interest and Class Action Lawyers
1029
12
In re Primus
1030
7
Communication with Class Members
1037
3
``I Need to Make Contact''
1040
1
``The Letter Was Dumped''
1040
1
Table of Cases
1041
16
Table of Code, Rules, and Restatement Provisions
1057
4
Index
1061
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