whether the subjects of the pictures were the lawyers’ clients.

Photography is forbidden in Family Court. The child welfare agency

filed disciplinary charges against its three lawyers. It demoted two of
them, who were supervisors, pending further investigation. The Legal
Aid Society said that “appropriate action” had been taken. The news
story included the names of each of the four lawyers, which means
that they will come up in internet searches forever.
In a review of social media mishaps, Law360 reported:
[A]n assistant state attorney in Florida was fired after writing on Facebook, just hours
after the Pulse nightclub massacre, about Orlando’s “cesspools of debauchery” and that
the city “should be leveled.”
The state attorney’s office said at the time that the post violated its social media
policy. . . .
In a similar scenario from 2017, an in-house attorney for CBS was fired after posting
on Facebook about the Las Vegas mass shooting of concertgoers, saying she had little
sympathy for country music fans and “Republican gun toters.”

Andrew Strickler, “Calif. Bar Out on a Limb in Charging Atty over BLM
Tweets,” Mar. 8, 2023.
One prosecutor, posing as an ex-girlfriend of an alleged murderer,
used Facebook to contact two women who were the defendant’s alibi
witnesses. He claimed to have had the accused’s child. Both women
then recanted, one saying, according to the prosecutor, “This is bogus,
I’m not going to lie for [the accused].” The prosecutor was fired. James
McCarty, Cleveland Plain Dealer, June 7, 2013. He was also disciplined.
A public defender lost her job over a social media message. The
family of an accused murderer, who was incarcerated, brought him
clothes to wear to court, including a pair of leopard print boxer briefs.
His lawyer snapped a picture of the briefs and posted the picture and a
disparaging caption on her Facebook page, which was visible only to
her friends. Someone told the judge, who declared a mistrial, and the
defense lawyer was fired. Martha Neil, A.B.A. J., Sept. 13, 2012. A
Houston prosecutor resigned after she shared a Facebook post that

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compared demonstrators against police brutality and racial inequality
to Nazis who “banned free speech.” Jack Queen, “Texas Prosecutor
Resigns After Facebook Post About Nazis,” Law360, June 29, 2020.
p. 65

p. 66

Answers to Pop-Up Questions (Page 63)

A. True. The absence of a privilege exception is irrelevant as long
as there is a confidentiality exception. Confidentiality and
privilege operate independently.
B. False. Only judges decide questions of privilege.
C. False. There are situations where the crime-fraud privilege
exception will apply but the confidentiality exception in Rule
1.6(b)(2) or (b)(3) will not. For example, the financial injury to a
third person may not be “substantial” or there may not be any
injury, as Rule 1.6(b)(2) and (b)(3) require. The lawyer’s
services may not actually have been used to further the fraud,
which Rule 1.6(b)(2) and (b)(3) require but the privilege
exception does not.
D. Likely true. Where the Rule 1.6(b)(2) or (b)(3) exception applies
because the client is engaged in a crime or fraud and has
used a lawyer’s services to do so, the exception to the
privilege would likely apply. It is hard to think of a realistic
situation where that would not be true.

3. Lawyers Are Agents

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 Lawyers are their clients’ agents. The law of agency therefore
applies to the client-lawyer relationship. As attorneys at law, lawyers
have certain authority and certain duties within the scope of their
agency (i.e., what they are retained or appointed to do). Agents are also
fiduciaries. Restatement (Third) of Agency §1.01. In the next section,
we discuss duties imposed by agency and fiduciary status. Here we
review the authority agency status confers on attorneys at law.* Not
surprisingly, it is an authority to act and speak on the client’s behalf in
legal matters.
Acting for the client means that the lawyer’s conduct may be
attributed to the client, even if the lawyer is negligent, willfully
misbehaves, or acts contrary to the client’s interests in the many
decisions lawyers are legally and ethically authorized to make. (See
part C on which decisions those are.) Speaking for the client means
that what the lawyer says within the scope of the retainer will be
attributed to the client. In litigation, courts say that a “litigant chooses
counsel at his peril.” Boogaerts v. Bank of Bradley, 961 F.2d 765 (8th Cir.
1992). See also Link v. Wabash R.R. Co., 370 U.S. 626 (1962)
(“Petitioner voluntarily chose this attorney as his representative in the
action, and he cannot now avoid the consequences of the acts or
omissions

p. 66

p. 67

of this freely selected agent.”). A sloppy or inattentive lawyer can really

mess up a client’s life. (Is that disturbing? Isn’t the same true and more
so for doctors?) Whatever else it means, professionalism certainly
requires dedication to the client’s interests. When other interests
conflict, including the lawyer’s own, the lawyer may need to get out or
get informed consent. See chapter 5.

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 The next two cases illustrate just how consequential a lawyer’s
actions can be.

TAYLOR v. ILLINOIS
484 U.S. 400 (1988)

JUSTICE STEVENS. . . .
[The charge against Taylor was attempted murder. His lawyer, in
order to gain “a tactical advantage,” willfully failed to reveal the identity
of a defense witness, Wormley, as Illinois discovery rules required. The
trial court refused to let Wormley testify. Taylor, who was not a party to
his lawyer’s tactic and from all that appears did not know about it,
claimed that the refusal violated his rights under the Sixth
Amendment’s Compulsory Process Clause, which provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have
compulsory process for obtaining witnesses in his favor.”]
It is elementary, of course, that a trial court may not ignore the
fundamental character of the defendant’s right to offer the testimony
of witnesses in his favor. But the mere invocation of that right cannot
automatically and invariably outweigh countervailing public interests.
The integrity of the adversary process, which depends both on the
presentation of reliable evidence and the rejection of unreliable
evidence, the interest in the fair and efficient administration of justice,
and the potential prejudice to the truth-determining function of the trial
process must also weigh in the balance.
A trial judge may certainly insist on an explanation for a party’s
failure to comply with a request to identify his or her witnesses in
advance of trial. If that explanation reveals that the omission was
willful and motivated by a desire to obtain a tactical advantage that
would minimize the effectiveness of cross-examination and the ability
to adduce rebuttal evidence, it would be entirely consistent with the

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purposes of the Compulsory Process Clause simply to exclude the
witness’ testimony. . . .
The argument that the client should not be held responsible for his
lawyer’s misconduct strikes at the heart of the attorney-client
relationship. Although there are basic rights that the attorney cannot
waive without the fully informed and publicly acknowledged consent of
the client,24 the

p. 67

p. 68

lawyer has — and must have — full authority to manage the conduct of
the trial. The adversary process could not function effectively if every
tactical decision required client approval. Moreover, given the
protections afforded by the attorney-client privilege and the fact that
extreme cases may involve unscrupulous conduct by both the client
and the lawyer, it would be highly impracticable to require an
investigation into their relative responsibilities before applying the
sanction of preclusion. In responding to discovery, the client has a duty
to be candid and forthcoming with the lawyer, and when the lawyer
responds, he or she speaks for the client. Putting to one side the
exceptional cases in which counsel is ineffective, the client must
accept the consequences of the lawyer’s decision to forgo cross-
examination, to decide not to put certain witnesses on the stand, or to
decide not to disclose the identity of certain witnesses in advance of
trial. In this case, petitioner has no greater right to disavow his lawyer’s
decision to conceal Wormley’s identity until after the trial had
commenced than he has to disavow the decision to refrain from
adducing testimony from the eyewitnesses who were identified [by the
state]. . . .
Affirmed.

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 JUSTICE BRENNAN [dissenting, joined by Justices Marshall and
Blackmun]. . . .
Although we have sometimes held a defendant bound by tactical
errors his attorney makes that fall short of ineffective assistance of
counsel, we have not previously suggested that a client can be
punished for an attorney’s misconduct. There are fundamental
differences between attorney misconduct and tactical errors. Tactical
errors are products of a legitimate choice among tactical options. Such
tactical decisions must be made within the adversary system, and the
system requires attorneys to make them, operating under the
presumption that the attorney will choose the course most likely to
benefit the defendant. Although some of these decisions may later
appear erroneous, penalizing attorneys for such miscalculations is
generally an exercise in futility because the error is usually visible only
in hindsight — at the time the tactical decision was made there was no
obvious “incorrect” choice, and no prohibited one. . . .
The rationales for binding defendants to attorneys’ routine tactical
errors do not apply to attorney misconduct. An attorney is never faced
with a legitimate choice that includes misconduct as an option.
Although it may be that “[t]he adversary process could not function
effectively if every tactical decision required client approval,” that
concern is irrelevant here because a client has no authority to approve
misconduct. Further, misconduct is not visible only with hindsight, as
are many tactical errors. Consequently, misconduct is amenable to
direct punitive sanctions against attorneys as a

p. 68

p. 69

deterrent that can prevent attorneys from systemically engaging in

misconduct that would disrupt the trial process. There is no need to
take steps that will inflict the punishment on the defendant. . . .

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 The Court’s opinion can seem harsh when looked at through
Taylor’s eyes. Given the seriousness of the charge, he was likely in jail
awaiting trial with an appointed lawyer, not one he chose. He had no
ability to control how his lawyer represented him (as you will see in
Jones v. Barnes in part C below). And he surely did not know the state’s
criminal procedure rules or that his lawyer had willfully violated them.
He did nothing wrong, but the lawyer the state chose to represent him
did. Taylor must now pay the price.
That does seem unfair. Would it be less unfair if Taylor were out on
bail and had hired his own lawyer? Hardly. Defendants who manage to
hire a lawyer — perhaps with financial help from friends and family —
are not less at risk. They will also be unaware of criminal procedure
rules and unable to supervise compliance with them. Rarely will they be
able to change lawyers. They will not get a refund of their retainer, at
least not all of it and not quickly, and they may be unable to raise more
money to hire a new lawyer. Once they choose their lawyer — putting
aside how informed the choice is or isn’t — they are as locked in as was
Taylor.
And yet criminal discovery rules are a good thing. In fact, they
demand more of prosecutors than they do of defendants. They
promote accurate verdicts by reducing surprise. They will be useless
unless violations carry some cost, but what should it be?
Taylor went on to hold that preclusion of a witness’s testimony will
not always be an appropriate remedy. Other sanctions may suffice. But
because Taylor’s defense lawyer acted willfully and tactically,
preclusion was allowed even if prejudice to the prosecution was
avoidable with a less harsh remedy (such as suspending the trial for a
day or two to allow the prosecutor to investigate Wormley).
Justice Brennan says discipline the willfully misbehaving lawyer
instead; don’t punish the client. And he distinguishes cases in which a
lawyer does not willfully violate a rule, but makes a tactical decision

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within her discretion that turns out to be a mistake. Then, unless the
lawyer’s choice (or ignorance of the law) amounts to ineffective
assistance of counsel under the Sixth Amendment, or the lawyer has
abandoned the client thereby ending the agency,* the client is bound.
p. 69

p. 70

Cases have responded to these facts in diverse ways. Michigan v.

Lucas, 500 U.S. 145 (1991), reversed a holding that preclusion of
testimony is never allowed when a defendant in a sexual abuse case,
who did not give the required pretrial notice, offers at trial to prove a
prior sexual relationship with the victim. Noble v. Kelly, 246 F.3d 93 (2d
Cir. 2001), held that absent a finding of defense counsel’s willfulness in
failing to give the required pretrial notice of an alibi witness, preclusion
violated the Sixth Amendment. And in State v. Bradshaw, 950 A.2d 889
(N.J. 2008), the New Jersey Supreme Court ruled that preclusion was
improper under state law where a defense lawyer misread the rule and
failed to identify the defendant as his own alibi witness.
Prosecution witnesses can also be precluded if a prosecutor
violates a disclosure rule, but where the violation is not in “bad faith,”
and instead the product of “inattention,” preclusion was held an abuse
of discretion in United States v. Ivory, 131 F. App’x 628 (10th Cir. 2005).

YESCHICK v. MINETTA
675 F.3d 622 (6th Cir. 2012)

JULIA SMITH GIBBONS, CIRCUIT JUDGE.

[Gary Yeschick sued the Federal Aviation Administration for age
discrimination. Gino Pulito, his counsel, did not receive emails from the
court clerk alerting him that the defendant had moved for summary
judgment. He missed the deadline to respond. Pulito also failed to

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check the docket on PACER. The district court granted the defendant’s
summary judgment motion.]
Yeschick filed a motion for relief from judgment pursuant to Federal
Rule of Civil Procedure 60(b)(1) and a motion for leave to respond to
the FAA’s motion for summary judgment on the grounds that his
counsel failed to receive notice of the filing of the motion until the
district court’s judgment was docketed. . . . Yeschick argued that his
failure to respond to the motion for summary judgment was due to
excusable neglect related to his counsel’s failure to receive notice of
case filings. . . .
Rule 60(b) provides grounds for relief from a final judgment for
enumerated reasons, including “mistake, inadvertence, surprise, or
excusable neglect.” . . .
The district court held that Yeschick’s counsel’s neglect in not
checking the docket was not excusable. We have previously found that
parties have an affirmative duty to monitor the dockets to keep
apprised of the entry of orders that they may wish to appeal. Now that
electronic dockets are widely available, the burden imposed by this
affirmative duty is minimal. Attorneys may monitor the docket from the
comfort of their offices; they simply need to log-on to the CM/ECF
system from a computer. Further, email notification of docket activity is
often available to assist attorneys in monitoring their cases.
Regardless of the method of communication utilized (posted
p. 70

p. 71

mail or email), it is the party, not the court, who bears the burden of
apprising the court of any changes to his or her mailing address. Thus,
after an email address change or migration, just as with a change of
physical address, a party must inform the court of his or her updated
contact information if he wishes to receive notices of electronic filing.

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However, we emphasize that regardless of whether email notifications
are received, parties continue to have a duty to monitor the court’s
docket.
Here, Yeschick’s counsel did not receive notice of the electronic
filings in Yeschick’s case because he failed to update his email address
on file with the district court. Further, he did not check the docket in
Yeschick’s case until more than a month after he learned (via
communications regarding [an unrelated] case) that his email address
was no longer working. Even looking beyond the basic duty to monitor
the docket, the notice provided to Yeschick’s counsel about the
problems with his email address in connection with the unrelated case
should have “g[iven] him at least some indication that action might
have been taken in [Yeschick’s] case.” . . .
Here, the ability to update his contact information on file with the
court was within Pulito’s control, as was the ability to access the
electronic docketing system directly in order to monitor Yeschick’s
case for new filings. Moreover, we have held that gross carelessness or
inadvertent conduct that results in judgment will not give rise to a
successful claim of excusable neglect if the facts demonstrate a lack
of diligence. Given that Yeschick’s counsel: (1) knew that his email
address changed from [Link] to [Link]; (2) was aware that
he was not receiving notice of electronic filings in other cases and that
motions were expected in Yeschick’s case; (3) failed to diligently
update his e-mail address; and (4) failed to monitor the docket in
Yeschick’s case for filings between May 2009 and January 2010, we
also find a lack of the diligence required to make out a successful claim
of excusable neglect.
[Affirmed.]

Yeschick could sue Pulito for malpractice. He would need to prove

Pulito’s negligence and the amount he would have won but for the
negligence. Even then, we don’t know if Pulito is good for the money.

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That may not matter if Pulito has malpractice insurance. Should
lawyers be required to have malpractice insurance? They are in Oregon
and Idaho. If not, should lawyers be required to advise new clients if
they do not have insurance? Some U.S. jurisdictions require that now.
Others do not. Lawyers have strongly opposed a rule that would either
require insurance or require that they inform clients that they have
none.

Vicarious Admissions
As with any other agent, a lawyer’s statements may be admitted in
evidence against her client if they are made during and within the
scope of

p. 71

p. 72

the professional relationship.* They are called vicarious admissions.

Fed. R. Evid. 801(d)(2)(C) and (D) (defined as not hearsay).
A lawyer’s vicarious admissions do not ordinarily bind the client.
That means that the client may seek to disprove or discredit them
(probably with a new lawyer). The factfinder will then decide what to
believe. However, some admissions a lawyer makes do bind the client.
The client will not be allowed to disprove or discredit them. Even
though these binding admissions are also vicarious (because they are
made by one person, a lawyer, but used against another person, a
client), we have a special term for them. They are called judicial
admissions. To be a judicial admission, the statement must be made
in the course of a case then on trial — either in open court or in a
pleading or other document that has not been superseded. See Carle v.
Steyh, 353 P.3d 488 (Mont. 2015) (“In order to constitute a judicial
admission, a party’s statement must meet the following criteria: 1)
There must be a statement made to the court. 2) The statement must

159
be made by a party, or the party’s attorney. 3) The statement must be a
statement of fact, and not a statement of opinion or law.”).

4. Lawyers Are Fiduciaries

A fiduciary is a person who is required to act for the benefit of another person on all
matters within the scope of their relationship; one who owes to another the duties of
good faith, trust, confidence, and candor or one who must exercise a high standard of
care in managing another’s money or property.

Fed. Ins. Co. v. IBM Corp., 965 N.E.2d 934 (N.Y. 2012) (cleaned up).
Lawyers must place their clients’ interests above other interests in
the area of the representation. Words like “honor,” “integrity,” and “trust”
appear often in discussions of fiduciary duty. The “essence of a claim
for breach of fiduciary duty involves the ‘integrity and fidelity’ of an
attorney. An attorney breaches his fiduciary duty when he benefits
improperly from the attorney-client relationship by, among other things,
subordinating his client’s interest to his own, retaining the client’s
funds, engaging in self-dealing, improperly using client confidences,
failing to disclose conflicts of interest, or making misrepresentations to
achieve these ends.” K&L Gates LLP v. Quantum Materials Corp., 2020
WL 1313733 (Tex. App. 2020).
Lawyers are in fact super-fiduciaries according to some courts. The
“unique fiduciary reliance, stemming from people hiring attorneys to
exercise professional judgment on a client’s behalf . . . is imbued with
ultimate trust and confidence.” In re Cooperman, 633 N.E.2d 1069 (N.Y.
1994). They occupy a “unique position of trust and confidence.”
Milbank, Tweed,

p. 72

p. 73

Hadley & McCloy v. Boon, 13 F.3d 537 (2d Cir. 1994) (fiduciary duty to
former client).

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 In Parkinson v. Bevis, above, the Idaho Supreme Court said that “[a]
breach of fiduciary claim is an equitable claim for which a defendant
may have to disgorge compensation received during the time the
breach occurred, even if the plaintiff cannot show actual damages.” It
breaches fiduciary duty, the court wrote, “if an attorney violates the
special (elevated) duties of trust and confidence of his client by
disclosure of secrets or confidential information.”
At least four reasons support imposing strict fiduciary obligations
on a lawyer after the professional relationship begins. First, the client
rightly expects it. She will have begun to trust the lawyer’s integrity,
fairness, skill, and judgment, which the lawyer is likely to encourage,
suspending the usual caution when dealing with others on important
matters. Second, clients may lack the knowledge required to monitor a
lawyer’s actions and the time and distance needed to evaluate
decisions objectively. Third, the lawyer may have acquired information
about the client that gives him an unfair advantage in dealings with her.
Last, many clients will not be in a position to change lawyers, but rather
will be financially or psychologically dependent on their lawyer’s
continued representation. In short, during (and possibly even after) a
representation, the client will be vulnerable to overreaching.

5. Loyalty and Diligence

Loyalty and diligence overlap. The duty of loyalty (also part of

fiduciary duty) requires a lawyer to pursue, and to be free to pursue, the
client’s objectives unfettered by conflicting responsibilities or interests.
Loyalty and confidentiality are the basis for conflict-of-interest rules,
discussed in chapters 5 and 6. As we shall see in chapter 6, loyalty (like
the duty of confidentiality) survives the end of the attorney-client
relationship and prevents a lawyer from acting “adversely” to a former
client’s “interests” in matters “substantially related” to the former
representation. Rule 1.9(a).

161
 Diligence requires that a lawyer pursue the client’s interests without
undue delay. Rule 1.3 says that “[a] lawyer shall act with reasonable
diligence and promptness in representing a client.” Divided loyalties
may undermine the lawyer’s diligence as well as threaten the lawyer’s
fiduciary obligations.
An undivided loyalty will not, however, assure diligence. Lawyers are
not immune to procrastination. Among the most frequent complaints
to disciplinary committees is failure to pursue a client’s interests. (This
failure generally goes hand in hand with the related failure, discussed
next, to keep the client informed about the status of a matter.)
Sometimes the failure to act diligently will prejudice a client’s rights, as
in Yeschick, where a lawyer missed a deadline. If so, the client will have
a malpractice claim against the lawyer. Even if not, the lawyer may be
disciplined.
p. 73

p. 74

6. The Duty to Inform and Advise

The next case is both old and very current. Its lesson, which might
not be intuitive and apparently was not intuitive to attorneys Fulfer and
Keller, is as true today as in 1993. Its simplicity makes its lesson easy
to understand. Although the case is about lawyers in one specialized
area of practice, it applies to all law work.

NICHOLS v. KELLER
19 Cal. Rptr. 2d 601 (Ct. App. 1993)

[Nichols was injured on the job. He hired attorneys Fulfer and Keller
to bring a workers’ compensation claim against Nichols’s employer,
which they did successfully. They did not tell Nichols that he might also
have civil tort claims against third parties, which the firm was not going

162
to pursue. Nichols learned of that possibility after the tort statute of
limitations had run. He sued the lawyers for malpractice instead. The
trial court granted summary judgment for the lawyers. The court of
appeal reversed.]
MARTIN, ACTING PRESIDING JUSTICE. . . .
A significant area of exposure for the workers’ compensation
attorney concerns that attorney’s responsibility for counseling
regarding a potential third-party action. One of an attorney’s basic
functions is to advise. Liability can exist because the attorney failed to
provide advice. Not only should an attorney furnish advice when
requested, but he or she should also volunteer opinions when
necessary to further the client’s objectives. The attorney need not
advise and caution of every possible alternative, but only of those that
may result in adverse consequences if not considered. Generally
speaking, a workers’ compensation attorney should be able to limit the
retention to the compensation claim if the client is cautioned (1) there
may be other remedies which the attorney will not investigate, and (2)
other counsel should be consulted on such matters. However, even
when a retention is expressly limited, the attorney may still have a duty
to alert the client to legal problems which are reasonably apparent,
even though they fall outside the scope of the retention. The rationale
is that, as between the lay client and the attorney, the latter is more
qualified to recognize and analyze the client’s legal needs. The attorney
need not represent the client on such matters. Nevertheless, the
attorney should inform the client of the limitations of the attorney’s
representation and of the possible need for other counsel. . . .
In the context of personal injury consultations between lawyer and
layperson, it is reasonably foreseeable the latter will offer a selective or
incomplete recitation of the facts underlying the claim; request legal
assistance by employing such everyday terms as “workers’
compensation,” “disability,” and “unemployment”; and rely upon the
consulting lawyer to describe

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 p. 74

p. 75

the array of legal remedies available, alert the layperson to any

apparent legal problems, and, if appropriate, indicate limitations on the
retention of counsel and the need for other counsel. In the event the
lawyer fails to so advise the layperson, it is also reasonably foreseeable
the layperson will fail to ask relevant questions regarding the existence
of other remedies and be deprived of relief through a combination of
ignorance and lack or failure of understanding. And, if counsel elects to
limit or prescribe his representation of the client, i.e., to a workers’
compensation claim only without reference or regard to any third party
or collateral claims which the client might pursue if adequately
advised, then counsel must make such limitations in representation
very clear to his client. Thus, a lawyer who signs an application for
adjudication of a workers’ compensation claim and a lawyer who
accepts a referral to prosecute the claim owe the claimant a duty of
care to advise on available remedies, including third-party actions.
[Reversed.]

Consider Nichols’s perspective. He wanted his lawyers to get him

the compensation to which he was legally entitled. He was not likely
thinking about legal categories — tort vs. workers’ compensation. On
the other hand, the lawyers were, did exactly what they said they would
do and, when sued, may have wondered why they should be liable for
not doing more. They did not have to do any more, but they did have to
tell Nichols that more was possible.

The Client’s Right to Know

The obligation to inform a client is found in Rule 1.4, the law of
agency and fiduciary duty, and the Sixth Amendment, which means

164
that failure can lead to discipline, civil liability, a monetary sanction, and
reversal of a conviction for ineffectiveness.
Civil Liability. A lawyer representing a plaintiff in a personal injury
action did not relay a $90,000 settlement offer. He considered it too
skimpy. The case went to trial. The jury was more skimpy. It found for
the defendant. The client learned of the offer and sued the lawyer. The
client testified that he would have accepted the offer (of course), and
the jury believed him. On appeal, the court said it “need not
decide . . . whether a lawyer has an obligation to transmit a patently
unreasonable offer to his client” because the jury could reasonably
have decided that competent counsel would have presented the
$90,000 offer. Moores v. Greenberg, 834 F.2d 1105 (1st Cir. 1987). The
lawyer in First National Bank of LaGrange v. Lowrey, 872 N.E.2d 447 (Ill.
App. Ct. 2007), had to pay his client $1 million after he failed to convey
a settlement offer, then lost at trial.
Ineffective Assistance of Counsel. Both Padilla v. Kentucky, 559
U.S. 356 (2010), and Jae Lee v. United States, 582 U.S. 357 (2017),
ruled that defense

p. 75

p. 76

counsel for a lawful immigrant who failed to inform him that a guilty
plea could mean deportation was constitutionally ineffective. The client
was allowed to withdraw his plea. Missouri v. Frye, 566 U.S. 134 (2012),
held that a lawyer was ineffective where he failed to inform Frye of an
offer to plead guilty to a misdemeanor, with a proposed sentence
recommendation of 90 days in jail. After the offer lapsed, rather than
risk a trial, Frye pled guilty to a felony with no recommendation and
received a three-year prison sentence.
Discipline. Discipline for violating Rule 1.4 is unusual but it does
happen. In re Letourneau, 792 N.W.2d 444 (Minn. 2011) (discipline for

165
failure to keep clients informed of “significant events in their litigation”);
In re Shaughnessy, 467 N.W.2d 620 (Minn. 1991) (failures to
communicate are “intensely frustrating to the client, reflect adversely
on the bar, and are destructive of public confidence in the legal
profession”) (30-day suspension despite lack of evidence of prejudice
to client’s claims).
Monetary Sanctions. When a lawyer fails to convey an offer to
settle a pending litigation on terms the client would have accepted, the
litigation will continue unnecessarily. That runs up the costs for the
opposing party. 28 U.S.C. §1927 authorizes federal courts to impose
monetary sanctions on a lawyer who “multiplies the
proceedings . . . unreasonably and vexatiously.” Blowers v. Lerner, 2016
WL 4575315 (E.D. Va. 2016), relied on this provision in holding that a
lawyer who had failed to inform his client of a settlement offer must
pay the opponent’s legal fees of more than $84,000 for subsequent
work. The court later gave the lawyer a chance to challenge the size of
the fees. 2017 WL 10897300 (E.D.N.Y. 2017).
Thank You for Sharing. In the course of a representation, a lawyer
will learn a great deal of information bearing on the client’s matter. How
much of it must she share? The answer cannot be “all” because much
will be technical or trivial. Time is also a factor. Decisions must
sometimes be made quickly. Yet the answer cannot be “none” because
the lawyer is the client’s agent. It is the client who must live with the
result. So where do we draw the line?
Rule 1.2(a) tells us that the client gets to decide the “objectives” of
the representation; the lawyer decides “the means by which they are to
be pursued.” It then offers examples. In civil matters, whether to settle
is the client’s decision, and in criminal matters, the client gets to decide
whether to testify, accept a plea, and waive a jury trial.
The distinction between objectives and means is a useful guide. It
will often yield the right answer. But it is not a formula. For example, in

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a civil case a client may prefer that her lawyer not make a particular
legal argument or pursue a particular line of questions on cross-
examination — two decisions about means — because, whatever their
value in the immediate case, doing so can damage the client’s
business interests or relationships. Or cost too much. For an example
from criminal representation, see McCoy v. Louisiana, below.
p. 76

p. 77

In the inevitable gray area between objectives and means, much is

left to the lawyer’s judgment after considering the nature and
importance of the the decision to the client, time constraints, the legal
complexity, the lawyer’s history with the client, and the client’s
disclosed expectations.
Lawyers must provide clients with the information they need to
intelligently make decisions that belong to clients. Rule 1.4(a). That rule
and Rule 1.2 comment [2] recognize that clients may also have an
interest in participating in questions of strategy, and in any event may
wish to know how the matter is going.
The conflict-of-interest rules also have duties to inform. They
require a client’s “informed consent” (defined in Rule 1.0(e)) before a
lawyer with a conflict can proceed. (Not all conflicts can be avoided
with consent.) The consent must be “confirmed in writing” (defined in
Rule 1.0(b)). Rule 1.8(a) has stricter disclosure and consent
requirements when lawyers engage in financial transactions with
clients.
At times, the duty to inform can run smack into the duty of
confidentiality, leaving a lawyer . . .

In a Box

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 “My name is Martin Chin. I do general corporate work in Seattle.
One of my partners, Cherise Zagott, represents Jennie Marsh, an
independent investor. Jennie is planning a joint venture with a dozen
others, including Endicott Press. Jennie and the others would put up
a total of about $30 million. Jennie’s share would be nearly $2
million. Endicott will manage the venture, which will be in online
publishing. Although Cherise is taking the lead here, I met with
Jennie twice and am helping Cherise with corporate issues. The deal
will be signed next month. Until then, it must remain strictly
confidential for competitive reasons.
“Last week, one of my clients, Font & Blue, a stationery
wholesaler, got a visit from an investigator from the state attorney
general’s office who served a subpoena for documents. The
investigator told Mort Green, the F&B president, that the AG was
investigating a kickback scheme to get state business. Wisely, Mort
refused to talk without counsel. Then he called me. Mort told me that
the investigator’s questions suggested that F&B and Endicott
(among others) are suspects. Jennie Marsh has no interest in F&B.
And F&B has no interest in Jennie Marsh or her joint venture, which it
doesn’t know about.
“What Mort told me is information that Rule 1.4 and our fiduciary
duty would require us to give Jennie if we could. It is highly material
to her investment decision. It might cause her to abandon her plans
because she would not relish the prospect of investing $2 million in
an Endicott-managed venture and then see Endicott indicted. At the
very least, she would share the information with the other investors
and

p. 77

p. 78

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 they might demand an explanation from Endicott. Maybe they would
delay the deal until things got resolved. Or find someone to replace
Endicott. These are options we would explore with Jennie if we
could.
“At the same time, F&B would not want me to tell Jennie that it or
even Endicott is the subject of a criminal investigation for kickbacks,
which may come to nothing. I would not even ask Mort for
permission to do that because it is against his interest.
“Is there a way we can continue to represent Jennie without
violating F&B’s confidentiality? Maybe we can represent Jennie on
the deal but say nothing about Endicott. After all, if we withdraw, her
new lawyer won’t know about Endicott either. Alternatively, can we
resolve this by withdrawing from Font & Blue? Jennie is a more
important client and has been one for many years. Last, if we must
withdraw from representing Jennie, what reason can we give her?
She will rightly insist on an explanation.”

C. AUTONOMY OF ATTORNEYS AND CLIENTS

Autonomy is an idea distinct from, although entwined with, the duty to

inform and advise. We can think of autonomy as the right to live one’s
life as one chooses (within the law) even if others find the choices
imprudent or morally questionable. Clients hire lawyers when they
require legal help to pursue their autonomous choices. A lawyer
necessarily cedes some of her own autonomy when she agrees to
represent a client. But how much? That question can arise in at least
two ways.
First, the client will expect her lawyer to choose the strategies that
can help achieve the client’s goals, even if the lawyer finds the
strategies or the goals morally questionable. Short of declining to
represent the client in the first place or withdrawing if permitted, is

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there any “space” here for the lawyer to refuse a client’s instruction or
to reject a tactic because the lawyer finds it personally offensive?
Second, a lawyer and client may disagree about which strategies
are most likely to be effective. Where they do, who calls the shots? The
lawyer is the expert in the law and its processes, so clients are likely to
and usually do defer. But at times they may not. Who wins? The client,
not the lawyer, will have to live with the outcome. Should that fact be
decisive?

1. Criminal Cases

Lesser Included Offenses

Duckrath is a defendant in a homicide prosecution. When both
sides have rested, Cramer, the defense lawyer, tells Duckrath that
while the evidence can support a murder conviction, it can also
support

p. 78

p. 79

convictions for what are sometimes called lesser included offenses.

Here, there are two lesser included offenses — manslaughter one
and manslaughter two, each of which carries a lower maximum
sentence than murder. He explains that the difference depends on
the mental state of the accused at the time of the offense. Murder
requires an intention to cause death. Manslaughter one requires an
act intended to cause serious bodily harm but resulting in death.
Both murder and manslaughter one will be reduced to manslaughter
two if the jury is persuaded that the defendant acted under extreme
emotional disturbance, which is an affirmative defense that the
defendant has the burden of proving by a preponderance of the
evidence.

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 Murder is punishable by 25 years to life in prison. Manslaughter
one carries a sentence of 15 to 25 years. Manslaughter two carries a
sentence of 10 to 15 years. Whatever the judge charges, the jury will
have the option to acquit.
Cramer recommends that Duckrath ask the judge to charge both
lesser included offenses. If he does ask, the judge must do so.
Cramer believes that the jury, faced with the binary choice of murder
or acquittal, will choose murder given the strength of the evidence,
whereas it would likely choose one of the lesser offenses if given the
option. He thinks the prospect of acquittal is quite slim. Duckrath
disagrees. He thinks that if the jury has only the option of convicting
him of murder or acquitting him, it will view a murder conviction as
too harsh and acquit. Duckrath adds, “And I also don’t want you to
offer proof that I was extremely emotional whatever it’s called. It
makes me sound wacko.”
Cramer presents his disagreement with Duckrath to Judge
Nielsen, who says:
“Well, Mr. Cramer, it’s a question of who gets to decide: you or Mr. Duckrath, isn’t it?
If the decision belongs to Mr. Duckrath and I don’t charge the lesser included
offenses, and he’s convicted of murder, he can’t really complain, can he? So maybe I
should listen to him. On the other hand, if the appeals court later decides that the
decision was yours, not his, he can claim he would have been convicted of a lesser
crime if I had listened to you instead of him. So maybe I should listen to you. But if I
do that, and he’s convicted of a lesser offense, it necessarily means that the jury
rejected murder. The appeals court might later rule that the decision belonged to
him and that without the lesser offenses, the jury might have rejected murder and
acquitted, which is what Mr. Duckrath believes will happen.
“On the one hand, Mr. Duckrath has to live with the consequences, so perhaps he
should get to decide. But on the other hand, you’ve tried dozens of homicide cases,
Mr. Cramer, and you certainly have better insight than your client into what this very
jury will do. So perhaps I should listen to you. Whatever I choose, I can be reversed if
your client is convicted and the appeals court later tells me I let the wrong person

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p. 80

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 choose. So I’ll just do what I think is right and if Mr. Duckrath is convicted, the
appeals court eventually will tell me whether I was right.”

What should Judge Nielsen do?

“Long Black Veil”

She walks these hills in a long black veil
She visits my grave when the night winds wail
Nobody knows, nobody sees
Nobody knows but me.

“Long Black Veil” is a 1959 country ballad first recorded by Lefty

Frizzell and later by Johnny Cash, Joan Baez, and others. In 2019,
the Library of Congress selected it for the National Recording
Registry. The person speaking in the ballad was charged with
homicide ten years ago. Eyewitnesses described a man who “looked
a lot like me.” He had an alibi. He was “in the arms of my best friend’s
wife.” He chose not to reveal his alibi in court and was convicted and
executed. He is speaking from the afterlife. The chorus tells us that
his lover visits the cemetery each night and wears a long black veil to
disguise her identity.
Imagine that you were assigned to represent the defendant at
trial. His name is Micah. You ask for his side of the story and he tells
you his alibi, including the name of his lover, Gwen. He asks if you
can tell the judge confidentially, but no one else. You tell him that it is
not possible. To prove the alibi, either he or Gwen — probably both —
would need to testify at a public trial. In that case, Micah says, he
does not want you to use the alibi to defend him and instead simply
to challenge the government’s proof, which unfortunately is strong.
You are considering whether to try to meet with Gwen to learn if
she will confirm your client’s story and, if she does, asking if she
would be willing to testify. Your hope is that if Gwen agrees to testify,

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 Micah might change his mind. You’re near certain he’ll be convicted
otherwise. You suggest this plan to Micah, who rejects it.
Can you approach Gwen with your plan anyway? If she is willing,
can you call her to testify over Micah’s opposition? If you can, would
you?

Rule 1.2(a), as we’ve seen, allocates authority for decisions between

lawyer and client in both civil and criminal matters. The Constitution
does the same in criminal cases. The Supreme Court has explained
when and why lawyers should get the final say:
Numerous choices affecting conduct of the trial, including the objections to make, the
witnesses to call, and the arguments to advance, depend not only upon what is
permissible under the rules of evidence and procedure but also upon tactical
considerations of the moment and the larger strategic plan

p. 80

p. 81

for the trial. These matters can be difficult to explain to a layperson; and to require in all
instances that they be approved by the client could risk compromising the efficiencies
and fairness that the trial process is designed to promote. In exercising professional
judgment, moreover, the attorney draws upon the expertise and experience that
members of the bar should bring to the trial process. In most instances the attorney will
have a better understanding of the procedural choices than the client; or at least the law
should so assume.

Gonzalez v. United States, 553 U.S. 242 (2008).

But, the Court added, some “basic trial choices are so important
that an attorney must seek the client’s consent.” Among these are
decisions whether to plead guilty, waive a jury, testify, and appeal.
Gonzalez held that the decision to let a federal magistrate judge
conduct jury voir dire in a felony case is for counsel, not the defendant.
Counsel is also authorized to waive a defendant’s statutory speedy trial
rights without seeking the client’s express assent. New York v. Hill, 528

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U.S. 110 (2000). More recently, the Court reaffirmed the defendant’s
right to choose to appeal even where, as part of a plea bargain, he had
waived that right. Garza v. Idaho, 586 U.S. ___ (2019) (defense lawyer
ineffective for failing to appeal when defendant stated wish to appeal).
Although the waiver foreclosed the defendant from making some
claims, it did not foreclose all claims, including whether the waiver
itself was constitutionally effective.
In the next case, Justice Brennan’s dissent says that “the values of
individual autonomy and dignity central to many constitutional rights”
should influence who, as between David Barnes, the defendant, and his
appointed lawyer, Michael Melinger, should get to decide which claims
to raise on appeal. Barnes argued that two Supreme Court cases —
Anders v. California and Faretta v. California — when read together
meant that Melinger was required to defer to Barnes and make the
nonfrivolous appellate arguments Barnes identified.

JONES v. BARNES
463 U.S. 745 (1983)

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to consider whether defense counsel
assigned to prosecute an appeal from a criminal conviction has a
constitutional duty to raise every nonfrivolous issue requested by the
defendant.

[Barnes was convicted of assault and robbery in state court.

Melinger was assigned to represent him on appeal. Barnes asked
Melinger to raise certain claims and gave him a brief Barnes had
written. Melinger agreed to raise some of Barnes’s claims but rejected
most of them. Melinger told Barnes the claims he was considering and
invited a response, but Barnes did not

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p. 82

respond. Melinger’s brief eventually focused on three arguments but he

also submitted Barnes’s pro se brief and Barnes himself submitted two
more pro se briefs. At oral argument, Melinger addressed only the three
claims in his brief. The state appeals court affirmed the conviction, but
the Second Circuit, relying on Anders v. California, 386 U.S. 738 (1967),
granted Barnes’s habeas corpus petition.]
In Anders, this Court held that an appointed attorney must
advocate his client’s cause vigorously and may not withdraw from a
nonfrivolous appeal. The Court of Appeals majority held that, since
Anders bars counsel from abandoning a nonfrivolous appeal, it also
bars counsel from abandoning a nonfrivolous issue on appeal. . . .

II

In announcing a new per se rule that appellate counsel must raise

every nonfrivolous issue requested by the client, the Court of Appeals
relied primarily upon Anders v. California, supra. There is, of course, no
constitutional right to an appeal, but in Griffin v. Illinois, 351 U.S. 12
(1956), and Douglas v. California, 372 U.S. 353 (1963), the Court held
that if an appeal is open to those who can pay for it, an appeal must be
provided for an indigent. It is also recognized that the accused has the
ultimate authority to make certain fundamental decisions regarding the
case, as to whether to plead guilty, waive a jury, testify in his or her own
behalf, or take an appeal. In addition, we have held that, with some
limitations, a defendant may elect to act as his or her own advocate,
Faretta v. California, 422 U.S. 806 (1975). Neither Anders nor any other
decision of this Court suggests, however, that the indigent defendant
has a constitutional right to compel appointed counsel to press
nonfrivolous points requested by the client, if counsel, as a matter of
professional judgment, decides not to present those points.

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 This Court, in holding that a State must provide counsel for an
indigent appellant on his first appeal as of right, recognized the
superior ability of trained counsel in the “examination into the record,
research of the law, and marshalling of arguments on [the appellant’s]
behalf.” Yet by promulgating a per se rule that the client, not the
professional advocate, must be allowed to decide what issues are to be
pressed, the Court of Appeals seriously undermines the ability of
counsel to present the client’s case in accord with counsel’s
professional evaluation.
Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on
appeal and focusing on one central issue if possible, or at most on a
few key issues. . . .
This Court’s decision in Anders, far from giving support to the new
per se rule announced by the Court of Appeals, is to the contrary.
Anders recognized that the role of the advocate “requires that he
support his client’s appeal to the best of his ability.” Here the appointed
counsel did just that. For judges to second-guess reasonable
professional judgments and impose on appointed counsel a duty to
raise every “colorable” claim suggested by
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p. 83

a client would disserve the very goal of vigorous and effective

advocacy that underlies Anders. Nothing in the Constitution or our
interpretation of that document requires such a standard. The
judgment of the Court of Appeals is accordingly Reversed.
[Justice Blackmun, concurring in the judgment, thought that “as an
ethical matter, an attorney should argue on appeal all nonfrivolous
claims upon which his client insists.” However, Justice Blackmun did
not believe that his view on the “ideal allocation of decisionmaking

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authority between client and lawyer necessarily assumes
constitutional status.” The client’s “remedy, of course, is a writ of
habeas corpus.”]
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting . . .
I believe the right to “the assistance of counsel” carries with it a
right, personal to the defendant, to [decide which nonfrivolous issues
should be raised on appeal] against the advice of counsel if he
chooses. . . .
It is no secret that indigent clients often mistrust the lawyers
appointed to represent them. There are many reasons for this, some
perhaps unavoidable even under perfect conditions — differences in
education, disposition, and socio-economic class — and some that
should (but may not always) be zealously avoided. A lawyer and his
client do not always have the same interests. Even with paying clients,
a lawyer may have a strong interest in having judges and prosecutors
think well of him, and, if he is working for a flat fee — a common
arrangement for criminal defense attorneys — or if his fees for court
appointments are lower than he would receive for other work, he has
an obvious financial incentive to conclude cases on his criminal docket
swiftly. Good lawyers undoubtedly recognize these temptations and
resist them, and they endeavor to convince their clients that they will. It
would be naive, however, to suggest that they always succeed in either
task. A constitutional rule that encourages lawyers to disregard their
clients’ wishes without compelling need can only exacerbate the
clients’ suspicion of their lawyers. As in Faretta, to force a lawyer’s
decisions on a defendant “can only lead him to believe that the law
contrives against him.” In the end, what the Court hopes to gain in
effectiveness of appellate representation by the rule it imposes today
may well be lost to decreased effectiveness in other areas of
representation. . . .

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 Finally, today’s ruling denigrates the values of individual autonomy
and dignity central to many constitutional rights, especially those Fifth
and Sixth Amendment rights that come into play in the criminal
process. Certainly a person’s life changes when he is charged with a
crime and brought to trial. He must, if he harbors any hope of success,
defend himself on terms — often technical and hard to understand —
that are the State’s, not his own. As a practical matter, the assistance
of counsel is necessary to that defense. Yet, until his conviction
becomes final and he has had an opportunity to appeal, any
restrictions on individual autonomy and dignity should be limited to the
minimum necessary to vindicate the State’s interest in
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p. 84

a speedy, effective prosecution. The role of the defense lawyer should

be above all to function as the instrument and defender of the client’s
autonomy and dignity in all phases of the criminal process. . . .

Since Barnes’s points were not frivolous and he will do the time if
the appeal fails, perhaps Melinger should have deferred, but was he
required to? On one hand, Barnes is an adult. He deserves to be able to
make important decisions that affect him. On the other hand, would we
say the same if Barnes, for whatever reason, instructed Melinger not to
include his strongest argument? True, Barnes could have chosen not to
appeal, but having appealed, did he delegate these strategic decisions
to Melinger?
Barnes apparently did not protest Melinger’s decision to exclude
Barnes’s appeal points from the brief and submit them under Barnes’s
name pro se. The Court could have treated Barnes’s silence as a
waiver, but it may have preferred to make clear its disapproval of the
lower court’s reasoning.

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 The Constitution aside, Justice Blackmun believes Melinger acted
unethically. Do you agree? What if he was confident that inclusion of
the client’s nonfrivolous claims would undermine the effectiveness of
the brief? What if he would be professionally embarrassed to assert
them? In the final paragraph of his dissent, Justice Brennan went on to
write that a client’s choices “should be respected unless they would
require lawyers to violate their consciences, the law, or their duties to
the court.” Doesn’t the word “consciences” leave little to Justice
Brennan’s emphasis on the client’s autonomy?
Client autonomy is directly tied to the client’s power in the legal
services market. If a client is a source of ongoing and profitable
business, or the lawyer hopes it will be, the means/ends distinction in
Rule 1.2(a) for allocating authority between lawyer and client would not
likely arise. If the client wishes and time allows, the lawyer will eagerly
consult on all but the most trivial decisions and strive to honor the
client’s preferences. If displeased, an affluent client can change
lawyers, as the lawyer knows.
Barnes had no market power. He was a beggar in the legal
marketplace. He had to accept the strategy choices of his assigned
lawyer. Melinger could be confident that he would not lose a client and
that the court would support him, which it did. Morevover, as Brennan
implies, an appointed lawyer may not wish to jeopardize future
assignments with weak arguments that annoy the appointing
authorities, although there is no suggestion that Melinger did that.
None of this means the court reached the wrong result. Did it?
CASE NOTE: McCOY v. LOUISIANA
The Court again addressed the constitutional allocation of authority
in criminal cases in McCoy v. Louisiana, 584 U.S. ___ (2018). McCoy
was charged with murdering three of his family members. The state
sought the death penalty. McCoy told his assigned lawyer, Larry
English, that “he was

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p. 85

out of State at the time of the killings and that corrupt police killed the
victims when a drug deal went wrong.” No evidence supported this
claim (or McCoy’s further belief that his own lawyer and the trial judge
were part of a plot). English thought that because proof of guilt was
“overwhelming[,] absent a concession at the guilt stage that McCoy
was the killer, a death sentence would be impossible to avoid at the
penalty phase.” So in an effort to avoid a death sentence, English told
McCoy that he would admit that McCoy did kill the victims but lacked
the mental state required for first-degree murder. The problem was that
McCoy denied killing the victims and “vociferously” instructed English
not to concede otherwise. He also protested to the judge. English
asked the judge to let him withdraw, but trial was imminent and the
judge refused. English ignored McCoy’s instruction, conceded the
killings at trial, and argued that the facts proved a lower degree of
homicide because McCoy lacked the required intent. McCoy was
convicted and sentenced to death. On appeal, he argued that he did not
get the effective assistance of counsel because English disobeyed his
instructions.
In an opinion for herself and five others, Justice Ginsburg held that
English was constitutionally ineffective and reversed. She wrote:
Trial management is the lawyer’s province: Counsel provides his or her assistance by
making decisions such as “what arguments to pursue, what evidentiary objections to
raise, and what agreements to conclude regarding the admission of evidence.” Some
decisions, however, are reserved for the client — notably, whether to plead guilty, waive
the right to a jury trial, testify in one’s own behalf, and forgo an appeal. [Citing Jones v.
Barnes.]
Autonomy to decide that the objective of the defense is to assert innocence belongs
in this latter category. Just as a defendant may steadfastly refuse to plead guilty in the
face of overwhelming evidence against her, or reject the assistance of legal counsel
despite the defendant’s own inexperience and lack of professional qualifications, so may
she insist on maintaining her innocence at the guilt phase of a capital trial. These are

180
 not strategic choices about how best to achieve a client’s objectives; they are choices
about what the client’s objectives in fact are.
Counsel may reasonably assess a concession of guilt as best suited to avoiding the
death penalty, as English did in this case. But the client may not share that objective. He
may wish to avoid, above all else, the opprobrium that comes with admitting he killed
family members. Or he may hold life in prison not worth living and prefer to risk death
for any hope, however small, of exoneration. . . .
In this case, the court had determined that McCoy was competent to stand trial, i.e.,
that McCoy had “sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding.” If, after consultations with English concerning the
management of the defense, McCoy disagreed with English’s proposal to concede
McCoy committed three murders, it was not open to English to override McCoy’s
objection. English could not interfere with McCoy’s telling the jury “I was not the
murderer,” although counsel could, if consistent with providing effective assistance,
focus his own collaboration on urging that McCoy’s mental state weighed against
conviction.

p. 85

p. 86

The Court held that McCoy did not have to prove that the result of
the trial would have been different if English had followed his
instructions.
Justice Alito, joined by Justices Thomas and Gorsuch, dissented.
Justice Alito wrote that English had told McCoy “some eight months”
before trial that he could not argue McCoy’s conspiracy claim without
undermining his own credibility and that the only way to try to avoid a
death penalty was to admit the killing. McCoy did not then object.
The weekend before trial, however, petitioner changed his mind. He asked the trial court
to replace English, and English asked for permission to withdraw. Petitioner stated that
he had secured substitute counsel, but he was unable to provide the name of this new
counsel, and no new attorney ever appeared. The court refused these requests and also
denied petitioner’s last-minute request to represent himself. (Petitioner does not
challenge these decisions here.) So petitioner and English were stuck with each other,
and petitioner availed himself of his right to take the stand to tell his wild story. Under
those circumstances, what was English supposed to do?
[T]he result of mounting petitioner’s conspiracy defense almost certainly would have
been disastrous. That approach stood no chance of winning an acquittal and would

181
 have severely damaged English’s credibility in the eyes of the jury, thus undermining his
ability to argue effectively against the imposition of a death sentence at the penalty
phase of the trial. As English observed, taking that path would have only “help[ed] the
District Attorney send [petitioner] to the death chamber.” . . . So, again, what was English
supposed to do?
When pressed at oral argument before this Court, petitioner’s current counsel*
eventually provided an answer: English was not required to take any affirmative steps to
support petitioner’s bizarre defense, but instead of conceding that petitioner shot the
victims, English should have ignored that element entirely. So the fundamental right
supposedly violated in this case comes down to the difference between the two
statements set out below.

Constitutional: “First-degree murder requires proof both that the accused killed the
victim and that he acted with the intent to kill. I submit to you that my client did
not have the intent required for conviction for that offense.”
Unconstitutional: “First-degree murder requires proof both that the accused
killed the victim and that he acted with the intent to kill. I admit that my client shot
and killed the victims, but I submit to you that he did not have the intent required
for conviction for that offense.”

The practical difference between these two statements is negligible. If English had
conspicuously refrained from endorsing petitioner’s story and had based his defense
solely on petitioner’s dubious mental condition, the jury would surely have gotten the
message that English was essentially conceding that petitioner killed the victims. But
according to petitioner’s current attorney, the difference is fundamental. The first
formulation, he admits, is perfectly

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p. 87

fine. The latter, on the other hand, is a violation so egregious that the defendant’s
conviction must be reversed even if there is no chance that the misstep caused any
harm. . . .

What do you think of the Court’s decision to characterize McCoy’s

instruction as an “objective”? English’s strategy can also be viewed as a
“means” toward the “objective” of avoiding a death sentence. This is
where strict categories can get us into trouble. However we
characterize English’s strategy, McCoy himself seemed to view
maintaining his innocence as more important than avoiding execution.

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 Recognize, too, that the Court’s jurisdiction does not include
interpreting Rule 1.2(a), which it cited only once. Rather, the Court
construed the Sixth Amendment’s right to the effective assistance of
counsel where the decision, call it what you will, was McCoy’s to make.
Even if you agree with the majority, does it not trouble you that
McCoy’s next lawyer (when the case is retried) would be obligated to
assist McCoy in a strategy that is near certain to fail? The majority
dismisses the autonomy of the lawyer, who may wonder how it could
possibly be that in the name of client autonomy, professional duty
required him to facilitate his client’s execution. Or maybe it does trouble
you, but you think that a client’s right to make this decision is more
important and overriding his instruction more troubling, even if doing
so increases the risk of a death sentence.
We have two bad options. The Court said the client gets to choose.
Ordinarily, defendants who prove a lawyer’s ineffectiveness must
also prove harm, that is, some likelihood that the result would have
differed if the lawyer had not erred (see chapters 5B1 and 13E). Not
here. The constitutional harm occurred when English disobeyed
McCoy’s instruction. Whether compliance with the instruction would
have made a difference is irrelevant.
There’s an irony here. We now know that McCoy had the right to
keep his lawyer from admitting in court that McCoy killed three family
members. English did that anyway. Ordinarily, the aim of a retrial is to
eliminate errors at the first trial. But here nothing that happens at a
retrial could undo what McCoy wanted to avoid — his lawyer’s public
admission. It has already happened. Justice Alito wonders exactly
what the retrial is meant to accomplish.

2. Civil Cases

“The Other Woman”

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 L.A. Law (1986-1994) was the first television series about
lawyers that, although a comedy, seriously addressed legal ethics
questions. (Current generations of law students seem largely
unaware of the show but happily all 172 remastered episodes are
headed to Hulu.) This problem is based on an L.A. Law episode. (See
chapter 7D4 for more.)
p. 87

p. 88

Arnie Becker, the law firm’s sometimes shallow (but always

skillful) divorce lawyer, meets with Lydia, a woman nearing 40 who
has decided to accept her husband’s settlement offer. Lydia has
come to Arnie because another lawyer thought she was settling for
too little and asked Lydia to get a second opinion from Arnie. Lydia
tells Arnie, “I just don’t want it to get into an ugly, pitched battle with
name calling and recriminations.”
Arnie asks Lydia about the other woman. In his experience, there
usually is another woman. Lydia is offended. “My husband and I are
not statistics,” she declares, “we’re individuals.” Arnie is skeptical. He
offers to review the proposed settlement and report his conclusions
over lunch. Without telling Lydia, Arnie asks a private investigator to
gather information about her husband. The investigator returns with
8 × 10 glossy color photographs of Lydia’s husband and the other
woman in intimate positions. She also finds proof of undeclared
income.
Arnie takes the glossies to his lunch with Lydia. Before he can
disclose the results of the investigation, she says that she has
decided to accept the settlement offer. “In the long run, there are
more important things than money,” she says. Tapping the envelope
with the glossies, Arnie says that he will put the “investigation” of her
“husband’s affairs, financial, otherwise,” on hold. Predictably curious,
Lydia asks if it will obligate her to look in the envelope. “In no way,”

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Arnie assures, then adds that “it may be painful.” Lydia looks at the
pictures and rushes to the ladies’ room. Arnie orders dessert.
In the next scene, a retributive Lydia, in a sit-down with her
husband and his lawyer, can hardly contain her anger. She hurls
insults and her pocketbook at him across the conference table.
Freed to negotiate, Arnie then uses the proof of undeclared income
to get a much better deal for Lydia.
So without his client’s permission, Arnie Becker used an
investigator to discover the affair, which was a legally irrelevant but
personally inflammatory fact. He then used the photographs to
motivate Lydia to fight for a larger settlement.
Did Arnie exceed his authority when he connived to get the
money he truly (and probably correctly) believed Lydia would later
regret not having? Should he have requested Lydia’s approval before
hiring the investigator?
Many lawyers would applaud Arnie for saving Lydia from her
naiveté, but not so fast. The story could have ended differently. In
that alternate ending, Lydia’s husband is not having an affair and is
not hiding income. But he discovers that he’s being investigated and
why. That leads to a rupture in the civility so important to Lydia and a
breakdown in settlement talks. It’s easy to defend Arnie’s conduct
given the story’s ending, but at the time Arnie hired the investigator,
he could not know how it would end.
p. 88

p. 89

Did Arnie act properly? Was he entitled to make the decision he

did without Lydia’s approval?

“You Be My Junkyard Dog”

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 “My name is Cody Lariat. I’m a partner in a large international law
firm. My managing partner suggested I get your advice about a
situation.
“Seecorp, a leading manufacturer of optical products, is a
longtime and valued client. Most of our work for it has to do with
patents, international trade, and contracts, but a year ago, it was
sued by one of its former software engineers, Violet deHoven. It’s a
Title VII case. DeHoven claims sex discrimination and a hostile
workplace. The usual stuff. Seecorp has rarely been sued for any
kind of employment discrimination. It’s uncommon in the industry.
“DeHoven is represented by a small (three-lawyer) labor and
employment firm — Astro, Tinkle, & Spears (ATS). Dara Spears, the
lead lawyer for deHoven, was an associate of ours until five years
ago. I worked with Dara on a few litigations when she was with us. I
like her. Good lawyer. I was sorry when she left.
“We did the usual. Moved to dismiss. But we lost, which is
common. So now we are about to begin discovery, after which we’ll
move for summary judgment.
“It’s no secret that plaintiffs’ lawyers in these Title VII cases
depend on a court-awarded fee if they prevail at trial or in settlement.
DeHoven does not have the money to litigate against us. In addition
to investing its time, ATS is probably paying for discovery.
“Seecorp says deHoven quit for whatever reason of her own. It
denies any discrimination and rejects the hostile workplace claim.
DeHoven says she was forced out.
“As I said, Title VII claims are rare for Seecorp. The last one, which
settled for about $65,000 inclusive of counsel fees, was three years
ago and I can’t remember the one before that. DeHoven’s lawyers are
demanding millions, which is what plaintiffs’ lawyers do. The case
has been inching along for eleven months.

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 “Aryeh Share, Seecorp’s general counsel, told me, ‘You be my
junkyard dog,’ which means he wants a scorched earth defense. He
is worried that if deHoven is at all successful, it will encourage other
discrimination cases so he wants to make sure the experience is as
unpleasant and unprofitable as possible and that the word gets out.
Take the gloves off. Depose everyone. Investigate deHoven’s
financial and personal life. Anything that impugns her credibility.
Depose friends and relatives she spoke to about her claims. Serve
detailed document demands including for social media messages
and emails. Get a court order for a forensic examination of her phone
and laptop. DeHoven claims emotional damage so Seecorp wants us
to depose

p. 89

p. 90

her therapist and seek a court order for our expert to examine her. As
long as there’s a good faith legal and ethical basis for what we do,
Share wants us to do it, especially if it will take a lot of lawyer time
and expense.
“I know many lawyers would say, ‘So where’s the problem? Good
for you.’ There are high stakes corporate battles where I would have
no problem doing such things because there’s another global firm
opposing me and it’s doing the same. Both clients pay the cost. And
you may find helpful information. But in my experience, that strategy
here will be a big waste of time and money for marginal gain if any.
“Share isn’t concerned about the money, although the case could
probably be settled right now for less than a third of what it will cost
to do what he says. But Share fears that a substantial settlement will
only invite more Title VII cases. Even with a confidentiality provision
in the settlement agreement, people talk.

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 “I would like to tell Share we won’t do most of what he’s asking
and that we get to decide, not Seecorp, but only if I’m right about
that. Am I?”

OLFE v. GORDON
286 N.W.2d 573 (Wis. 1980)

CALLOW, JUDGE . . .
[Olfe hired Gordon to handle the sale of her home to Demman. She
told Gordon that she was willing to take back a first mortgage but only
a first mortgage. Taking back a mortgage would make it easier for Olfe
to sell her home because a buyer would not have to seek a loan from a
bank. But it would also mean that Olfe would be accepting an IOU as
part of the purchase price. The IOU would, however, be secured by the
equity in the house. If her buyer defaulted, Olfe could rely on that equity
to recoup her loan. A first mortgage would mean that Olfe would be
preferred over any other lenders in case of default.
Gordon negotiated a contract that provided for a second mortgage.
Olfe claimed that Gordon and his partner encouraged her to believe
that it was a first mortgage. After the buyer defaulted and the first
mortgage was foreclosed, nothing remained for Olfe, who lost more
than $25,000. Olfe sued Gordon alleging negligence. The trial court
dismissed the case because of insufficiency of evidence and “a lack of
expert testimony relating to the standard of care required of attorneys
in similar circumstances.”]
Since Olfe did not present expert testimony to establish the
standard of care and a departure from that standard, we must
determine whether Gordon’s actions fall within the exception to the rule
requiring expert testimony. Olfe’s first two allegations, that Gordon
failed to provide in the offer to purchase that Olfe’s security interest
would be a first mortgage and that he failed to draft or cause to be

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drafted a mortgage that would be senior to any other Demman would
obtain on the premises of sale, are contentions
p. 90

p. 91

that Gordon is liable for damages caused by his negligent disregard of

Olfe’s instructions. The legal theory on which these allegations are
premised is well established:
It has generally been recognized that an attorney may be liable for all losses caused by
his failure to follow with reasonable promptness and care the explicit instructions of his
client. Moreover, an attorney’s honest belief that the instructions were not in the best
interests of his client provides no defense to a suit for malpractice. Note, Attorney
Malpractice, 63 Colum. L. Rev. 1292 (1963).

[The court held that Olfe did not need an expert witness to prove a
violation of the duty to follow her instructions. REVERSED.]

The Scope of the Client’s Autonomy

Here’s a riddle: Gordon did not follow Olfe’s instructions. Melinger
refused to follow Barnes’s instructions. Barnes lost. Olfe won. Why?
Was it simply because one action depended on the Sixth Amendment,
but state law governed the other? Or is the explanation the nature of
the decision? Both, actually.
Olfe’s employment of Gordon did not authorize him to make the
decision he did in the face of her contrary instruction. In the language
of Rule 1.2(a), the decision concerned “the objectives of
representation” — that is, how much she would receive for the house
and in what form — and belonged to her. Agency law would say the
same. But in Barnes, the objective was reversing the conviction. Under
the Sixth Amendment, the Court held, how to argue the appeal in order
to achieve that objective was a means decision that belonged to
Melinger.

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 If Olfe said only that she was willing to “take back a mortgage,”
could Gordon have accepted a second mortgage without informing
Olfe? No. Because the decision was Olfe’s, Gordon had a duty to explain
to her that she was getting a second mortgage and the risks it carried.
Rule 1.4(b).

D. TERMINATING THE RELATIONSHIP

The Rules describe the circumstances under which lawyers may

withdraw from a representation. Case law describes the client’s
authority to discharge a lawyer.

1. Termination by the Client

Clients, it is said, may fire their lawyers for any reason or no reason.
Harrill & Sutter, PLLC v. Kosin, 378 S.W.3d 135 (Ark. 2011) (“Attorney-
client contracts contain an implied provision that the client may
discharge the attorney

p. 91

p. 92

at any time, either with or without cause.”). On the other hand, laws that
protect employees against discrimination or retaliatory discharge also
protect employed lawyers.
Indigent criminal defendants cannot fire the lawyers appointed to
represent them, although for a good reason the court might assign a
new lawyer. Even a litigant with a retained lawyer may not be able to
change counsel if it will delay the trial. By then, the interests of others
— the courts, witnesses, the opponent — will be given substantial, even
decisive, weight. Courts also suspect that efforts to fire counsel may
be intended to delay the trial.

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 When a professional relationship ends, whether terminated by the
lawyer or the client or simply when the work is done, the client is
“presumptive[ly]” entitled to the lawyer’s “entire file on the represented
matter.” However, “narrow exceptions” will entitle the lawyer to keep
“firm documents intended for internal law office review and use.” Sage
Realty Corp. v. Proskauer Rose Goetz & Mendelsohn LLP, 689 N.E.2d
879 (N.Y. 1997) (presenting this as the majority view, collecting cases,
and acknowledging that a valid lien may supersede the client’s right to
the file). Iowa Supreme Court Attorney Disciplinary Board v. Gottschalk,
729 N.W.2d 812 (Iowa 2007), also holds that the client is presumptively
entitled to the entire file, which it calls the majority view. It describes
the minority view as entitling the client only to the “end product,” which
includes final documents publicly available.

2. Termination by the Lawyer

The lawyer’s ability to terminate a professional relationship is

circumscribed by Rule 1.16, which tells us when a lawyer may or must
withdraw. Leaving a client without a good reason can be characterized
as abandonment, which is disloyal and has consequences. Consider
Augustson v. Linea Aerea Nacional-Chile, 76 F.3d 658 (5th Cir. 1996).
Plaintiff’s law firm requested and received permission to withdraw after
plaintiff rejected a settlement offer against the firm’s advice. The case
arose out of an air crash, and other clients of the law firm had accepted
the offer. With new counsel, the plaintiff got a substantially higher
settlement. The firm then sought a fee for its work. In Texas, whose law
applied, and elsewhere, a lawyer who abandons a client loses the right
to compensation. The firm cited the court’s permission to withdraw as
proof that it had not abandoned the client, but the Fifth Circuit rejected
this argument. The decision whether to settle belonged to the client,
not the law firm. Permission to withdraw merely reflected the court’s
evaluation of what was in the “best interests of the client” at the time,
not a determination that the firm acted correctly. In agreement is

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Lofton v. Fairmont Specialty Insurance Managers, 367 S.W.3d 593 (Ky.
2012).
Courts will allow lawyers to withdraw if a client is seriously
delinquent in paying fees. King v. NAIAD Inflatables of Newport, 11 A.3d
64 (R.I. 2010) (civil case).
p. 92

p. 93

3. Termination by Drift

Some representations end for reasons other than lawyers or clients

explicitly ending them. Many end because the work ends. But does the
end of the work always mean the end of the relationship? No. This can
be important. If the relationship is not truly over, the lawyer may have a
duty to continue to advise the client and protect its legal interests on
the subject of the work. Lama Holding Co. v. Shearman & Sterling, 758
F. Supp. 159 (S.D.N.Y. 1991) (denying motion to dismiss malpractice
claim where following completion of work, firm allegedly failed to
advise client of relevant tax law changes after promising to do so);
Barnes v. Turner, 606 S.E.2d 849 (Ga. 2004) (lawyer had duty to renew
client’s security interest five years after representation ended where
lawyer had not warned client of the need to do so in order to protect
client’s interest). Also, if a client is a current, not a former, client, the
stricter conflict-of-interest rules will govern the lawyer, as we see in
chapters 5 and 6.
Going rather far (perhaps too far) in finding a current client
relationship is Jones v. Rabanco, Ltd., 2006 WL 2237708 (W.D. Wash.
2006). A firm that had not done work for, or even communicated with, a
client for more than three years was deemed still to be its current
counsel because (a) it stored many files from the matter; (b) it had not
marked the matter closed in its own records; and (c) it was listed on
settlement documents to receive a copy of any notice to the client.

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Consequently, it was disqualified when it then appeared against the
client’s parent.

4. Episodic Clients

Lawyers might believe that a client is no longer a client if they are

doing no work for it at the moment and haven’t for a while. This is not
necessarily true. Courts recognize what we might call an episodic
client. A firm may have done a particular kind of work for a client —
trademark registration, for example — two or three times a year for the
past three years, a month each time. That can create a reasonable
client expectation that the professional relationship continues during
intervals when the firm is doing no work and an expectation (but not a
promise) of the firm’s availability the next time the client needs a
trademark registered. If I ask you, “Who’s your dentist?,” you might
answer, “Dr. Goodsmile,” even if you haven’t seen her in eight months,
because she’s the dentist you’ve seen the last three years when your
teeth needed care. She’s your dentist even when you’re not in the chair.
Clients can feel the same way about lawyers and courts will respect
that.
Obviously, this is a question of fact that looks at the frequency with
which the client has called on the firm and over what period of time.
RAK had served as patent counsel to Adobe intermittently between
2006 and February 2012. In July 2012, when RAK was doing no work
for Adobe, it

p. 93

p. 94

sued Adobe, which moved to disqualify RAK on the ground that RAK
was suing a current client. (That’s forbidden without informed consent.
See chapter 5B3.) Was Adobe a current client? The court said yes.

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 It is true that RAK would have been free to reject any Adobe request for further opinion
letters. RAK, however, had never refused work from Adobe in the past, which
strengthens the reasonableness of Adobe’s belief that RAK would take further work and
the relationship was ongoing. Moreover, RAK’s freedom to reject additional work from
Adobe is not dispositive. . . . The fact that [RAK] may freely choose to end the
relationship and refuse further business does not mean it is free to sue its client prior to
making it clear that the relationship is over. It is the law firm’s responsibility to ensure
there are no questions regarding the status of its current client relationships. It would
have been a simple enough task for RAK to notify Adobe that it would no longer be
available as opinion counsel.

Parallel Iron, LLC v. Adobe Sys., 2013 WL 789207 (D. Del. 2013).
Given the consequences, it makes good sense to clarify any
ambiguity. A firm could send a “Dear Former Client” letter saying that
“our representation of you on the X matter is now concluded and you
are now our former client.” (This assumes that the firm is not then
handling any other matter for the client.) When I suggest this liberating
option to lawyers, they don’t like it. They have a reason: “We want the
client to think of itself as our current client and us as its law firm. We
don’t want to antagonize it by appearing to fire it.” OK, but then you
have to choose. Another option is to include at the outset, in the
retainer agreement, a designated time that the relationship will end,
such as when the firm sends a bill marked “Final Statement.”

Self-Assessment Questions*

1. Lem Clarick represents Sheelah Boyd in a personal injury action. The

complaint seeks $3.5 million. Lem’s experience tells him that a jury
will award at least $2.8 million, probably more, but of course no one
can know for sure. Lem is working on a one-third contingency. Six
months before trial, the defendant offers $450,000. He tells Sheelah
and recommends that she reject the offer “because we’ll likely get
more than seven times that at trial. Maybe five times.” Sheelah says
she wants to accept the offer, which would net Lem a fee of

194
 p. 97

III

Protecting the Attorney-Client

Relationship Against Outside
Interference

The theme of this chapter is the legal ethics equivalent of

espionage.
Ethics rules and case law protect the client-lawyer relationship
against spies, at least when the spies are other lawyers. That should
not surprise you given the many ways that the Rules protect clients
from their own lawyers. If we’re going to hammer home the sanctity of
the lawyer-client relationship, we should expect rules that prevent
adversaries from interfering with it. Exhibit One is Rule 4.2. It forbids a
lawyer to communicate with another lawyer’s client under certain
circumstances. This “no-contact” (or “anti-contact”) rule, examined in
part A, applies to lawyers in civil matters (both litigation and
transactional; see part A1) and criminal matters, including to
prosecutors, where an exception may swallow the rule (see part A2).
Prohibited contact with another lawyer’s client is not, however, the only
way in which an outsider may intercept confidential communications
or otherwise undermine a client-lawyer relationship. See part B.

A. COMMUNICATING WITH ANOTHER LAWYER’S CLIENTS

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Rule 4.2 says that “[i]n representing a client, a lawyer shall not
communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is authorized to do so
by law or a court order.”* The rule applies even if the “represented”
person is not the
p. 97

p. 98

opponent of the lawyer’s client, but, for example, a co-defendant or

another party to a transaction who shares most or even all of a client’s
objectives. The rule has quite a few conditions:

The communication must occur while a lawyer is herself

“representing a client” on the matter in which the contacted
person is represented. If she is not representing a client in the
matter, she may talk to the other lawyer’s client about it. This
allows a client to get a second opinion. Iowa Sup. Ct. Bd. of Prof’l
Ethics & Conduct v. Herrera, 626 N.W.2d 107 (Iowa 2001); Rule
4.2 cmt. [4].
Does Rule 4.2 restrain a party who happens to be a lawyer,
whether acting pro se or with counsel? Authorities are divided. In
re Lucas, 789 N.W.2d 73 (N.D. 2010), reviews the cases and
concludes that the rule should apply to a pro se lawyer, and by
implication a lawyer who is a represented party, “to prevent
lawyers from taking advantage of laypersons.” In re Steele, 181
N.E.3d 976 (Ind. 2022), and ABA Opinion 22-502 also say the rule
applies to pro se lawyers. But Restatement §99, comment e,
disagrees.
The communicating lawyer must know that the person with
whom she is communicating is represented on the subject of the
communication. Comment [8] to Rule 4.2 warns that knowledge

200
“may be inferred from the circumstances” and that a “lawyer
cannot evade the requirement . . . by closing eyes to the obvious.”
If a lawyer does not know that the contacted person is
represented, the rule does not impose a duty to find out.
Nevertheless, it makes sense to inquire because a tribunal might
later say that the lawyer did know or consciously avoided
knowledge, which can be the same as knowing.
Members of an uncertified class are not “represented” by counsel
for the named class members, so the lawyers on either side of
the matter may contact them consistent with rules on advertising
and solicitation unless the court orders otherwise. ABA Opinion
07-445.
The communicating lawyer is only forbidden to communicate
with a represented person on the “subject” of the representation.
So far as the rule goes, she may communicate about anything
else, like politics or sports. Rule 4.2 cmt. [4].
The prohibition does not apply if the other lawyer consents to the
communication or if it is “authorized . . . by law or a court order.”
A represented person may not waive the protection of this rule
without counsel’s consent. Iowa Supreme Court Attorney
Disciplinary Board v. Box, 715 N.W.2d 758 (Iowa 2006), collects
cases. And if a person claims

p. 98

p. 99

that his lawyer does consent, it’s best to get confirmation from
the lawyer directly. Highly paternalistic, don’t you think? Or is
there a good reason to require that a client get the advice of his
counsel before he can choose to forgo the rule’s protection?*

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 Forbidden is “communication.” Videotaping employees of a
represented company “going about their activities in what those
employees believe is the normal course” is allowed. Hill v. Shell Oil
Co., 209 F. Supp. 2d 876 (N.D. Ill. 2002) (not a violation to
videotape behavior of gas station attendants to gather evidence
of racial discrimination in their treatment of customers).
A violation can occur if a lawyer engages in forbidden
communication through a third party, like an investigator or
sometimes even the lawyer’s own client (but see the next two
paragraphs). Rule 8.4(a).

Clients are free to talk to each other. Clients may be able to get past
a problem when lawyers cannot. That can be a good thing. But
sometimes it is ill-advised because one client may be a skilled
negotiator or adept at learning the other client’s strategic or
confidential information.
How far can a lawyer go in aiding client-to-client communications?
Rule 4.2 comment [4] says “a lawyer is not prohibited from advising a
client concerning a communication that the client is legally entitled to
make.” “Advising” is not a precise term; nor is “assisting” in
Restatement §99(2) (rule “does not prohibit the lawyer from assisting
the client in otherwise proper communication by the lawyer’s client
with a represented nonclient”). ABA Opinion 11-461 concludes that “a
lawyer may give substantial assistance to a client regarding a
substantive communication with a represented adversary. That advice
could include, for example, the subjects or topics to be addressed,
issues to be raised and strategies to be used. Such advice may be
given regardless of who — the lawyer or the client — conceives of the
idea of having the communication.” The opinion cautions against
“overreaching,” as by “assisting the client in securing from the
represented person an enforceable obligation, disclosure of
confidential information, or admissions . . . without the opportunity to

202
seek the advice of counsel.” But then it allows that very assistance if
the lawyer first
advise[s] her client to encourage the other party to consult with counsel before entering
into obligations, making admissions or disclosing confidential information. If counsel
has drafted a proposed agreement for the client to deliver to her represented adversary
for execution, counsel should include

p. 99

p. 100

in such agreement conspicuous language on the signature page that warns the other
party to consult with his lawyer before signing the agreement.

The Competing Interests. What interests of a represented person

does this rule protect? It prevents a lawyer from

getting a damaging admission from the represented person;

learning a fact or getting a document that may be protected by
the attorney-client privilege or another rule and which she might
not learn or get if counsel were present;
learning the person’s true position in negotiation;
learning his strategy;
weakening the represented person’s resolve by casting doubt on
the strength of his position; and
driving a wedge between the represented person and his lawyer.

Countervailing interests that the rule may impede include the

interests in

informal and inexpensive access to information — interviews

rather than costly, formal discovery. If a deponent is an employee
of an adverse organization, her employer’s lawyer’s presence at
the deposition may be inhibiting;

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 facilitating compliance with rules (like Fed. R. Civ. P. 11) that
obligate lawyers to do factual investigations before filing
complaints or other papers; and
solving, prosecuting, and preventing crimes. Although the rule
does not bind the police or other law enforcement agents, it does
apply to prosecutors who direct their work.

1. Civil Matters

If the represented client is a biological person, there should be no

difficulty identifying her. See Inorganic Coatings v. Falberg, 926 F. Supp.
517 (E.D. Pa. 1995) (plaintiff’s lawyer disqualified after he accepted a
telephone call from a represented defendant prior to filing a complaint).
That’s not so easy if the represented person is a corporation, the
government, a partnership, or another legal entity. Take corporations.
Recall Upjohn (chapter 2B2). The Court wrote that communications of
Upjohn lawyers with Upjohn employees about matters within the scope
of their employment were within the company’s privilege. It assumed
that the government would be free to speak to the same employees.
The underlying information was not privileged, the Court said. Only the
communications with counsel were privileged.
But what about Rule 4.2? Will it prohibit government lawyers from
contacting Upjohn’s employees without consent of the company’s
lawyers on the ground that the employees are, in effect, “represented
persons” even
p. 100

p. 101

if not another lawyer’s actual client? In other words, if some employees

are deemed clients of the company’s lawyers for purposes of the
attorney-client privilege under Upjohn, are they deemed “represented
persons” for purposes of Rule 4.2 as well? Upjohn was a criminal

204
investigation, where other policy considerations may favor law
enforcement (see part A2). So let’s ask this question for civil matters.
If no company constituents (officers and employees) are
represented persons within the meaning of Rule 4.2, the rule does the
company no good. On the other hand, if all constituents are deemed
represented persons with whom contact is forbidden, we expand
corporate secrecy exponentially. Some companies have tens of
thousands of employees. If in addition we forbid contact with former
as well as current employees, we foreclose almost all informal
opportunities to learn information from those most likely to have it.
CASE NOTE: NIESIG v. TEAM I*
Initially, some courts held that if a constituent’s communication
with a company’s lawyer would be privileged under Upjohn, then the
constituent was also a “represented person” under Rule 4.2. Judge
(later Chief Judge) Judith Kaye of the New York Court of Appeals
explained the fallacy in that approach. The case arose under the Code’s
predecessor to Rule 4.2.
Plaintiff in this personal injury litigation, wishing to have his counsel privately interview a
corporate defendant’s employees who witnessed the accident, puts before us a
question that has generated wide interest: are the employees of a corporate party also
considered “parties” under Disciplinary Rule 7-104(A)(1) of the Code of Professional
Responsibility, which prohibits a lawyer from communicating directly with a “party”#
known to have counsel in the matter? . . .
[The intermediate appellate court] concluded, for theoretical as well as practical
reasons, that current employees of a corporate defendant in litigation [DeTrae here] “are
presumptively within the scope of the representation afforded by the attorneys who
appeared [in the litigation] on behalf of that corporation.” Citing [Upjohn] the court held
that DeTrae’s attorneys have an attorney-client relationship with every DeTrae employee
connected with the subject of the litigation, and that the prohibition is necessitated by
the practical difficulties of distinguishing between a corporation’s control group and its
other employees. . . .
Upjohn, however, addresses an entirely different subject, with policy objectives that
have little relation to the question whether a corporate employee should be considered a
“party” for purposes of the disciplinary rule. First, the privilege applies only to

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confidential communications with counsel; it does not immunize the underlying factual
information — which is in issue

p. 101

p. 102

here — from disclosure to an adversary. Second, the attorney-client privilege serves the
societal objective of encouraging open communication between client and counsel, a
benefit not present in denying informal access to factual information. Thus, a corporate
employee who may be a “client” for purposes of the attorney-client privilege is not
necessarily a “party” for purposes of DR 7-104(A)(1). . . .
Nor, in our view, is it necessary to shield all employees from informal interviews in
order to safeguard the corporation’s interest. Informal encounters between a lawyer and
an employee-witness are not — as a blanket ban assumes — invariably calculated to
elicit unwitting admissions; they serve long-recognized values in the litigation process.
Moreover, the corporate party has significant protection at hand. It has possession of its
own information and unique access to its documents and employees; the corporation’s
lawyer thus has the earliest and best opportunity to gather the facts, to elicit
information from employees, and to counsel and prepare them so that they will not
make the feared improvident disclosures that engendered the rule. . . .
The test that best balances the competing interests, and incorporates the most
desirable elements of the other approaches, is one that defines “party” to include
corporate employees whose acts or omissions in the matter under inquiry are binding
on the corporation (in effect, the corporation’s “alter egos”) or imputed to the corporation
for purposes of its liability, or employees implementing the advice of counsel. All other
employees may be interviewed informally. . . .
In practical application, the test we adopt thus would prohibit direct communication
by adversary counsel “with those officials, but only those, who have the legal power to
bind the corporation in the matter or who are responsible for implementing the advice of
the corporation’s lawyer, or any member of the organization whose own interests are
directly at stake in a representation.” This test would permit direct access to all other
employees, and specifically — as in the present case — it would clearly permit direct
access to employees who were merely witnesses to an event for which the corporate
employer is sued. . . .
Defendants’ assertions that ex parte interviews should not be permitted because of
the dangers of overreaching, moreover, impel us to add the cautionary note that, while
we have not been called upon to consider questions relating to the actual conduct of
such interviews, it is of course assumed that attorneys would make their identity and
interest known to interviewees and comport themselves ethically.

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 Take note of the caution in Judge Kaye’s final paragraph.
After Niesig, the ABA amended comment [7] to Rule 4.2 to identify
the Niesig categories in somewhat different language and to say, as
Niesig also did, that former employees were not within the rule.
[7] In the case of a represented organization, this Rule prohibits communications with a
constituent of the organization who supervises, directs or regularly consults with the
organization’s lawyer concerning the matter or has

p. 102

p. 103

authority to obligate the organization with respect to the matter or whose act or
omission in connection with the matter may be imputed to the organization for
purposes of civil or criminal liability. Consent of the organization’s lawyer is not required
for communication with a former constituent. . . .

Now let us revisit the Slip and Fall problem and use it to interpret Rule
4.2.

Slip and Fall (Part II)

Slip and Fall (Part I) in chapter 2B2 asked you to say whether
memoranda of the interviews that Mike Todd, Tracy’s investigator,
conducted were subject to the attorney-client privilege. Assume
instead that Cora Lundquist, the plaintiff’s lawyer, wants to talk
informally to each person Todd interviewed, and Todd himself,
outside the presence of and without permission from Jeanine Parr,
Tracy’s lawyer. She wants to avoid the expense of depositions. She
also fears that Tracy’s current employees; Rivera (the wax
company’s CEO); and Corcoran, Tracy’s former head of maintenance,
will all be more guarded at a deposition, where Parr is present. And
she may need the interviews to decide if her client has a claim and to
frame a complaint. Can she do what she wants?

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 How Large Is the Circle of Secrecy?
Rule 3.4(f) permits a company’s lawyer to request (but not require)
employees and agents to “refrain from voluntarily giving relevant
information to another party” so long as the “lawyer reasonably
believes that [that] person’s interests will not be adversely affected.”
One tactic is not available. “An organization may not assert a
preemptive and exclusive representation by the organization’s lawyer
of all current (or former) employees as a means to invoke rule 4.2 and
insulate them all from ex parte communication with the lawyers of
potential adversary parties. . . . Any analysis must be employee
specific.” Patriarca v. Center for Living & Working, 778 N.E.2d 877
(Mass. 2002). See also ABA Opinion 95-396.
Niesig assumed that lawyers (or their investigators) will reveal their
“identity and interest” when interviewing unrepresented persons. Rule
4.2 does not say the same. Rule 4.3, however, does require a lawyer to
correct an unrepresented person who misunderstands the lawyer’s
role.
Rule 4.2 and much other authority also allow a lawyer to contact
former employees of a represented organization so long as they do not
have their own counsel. But the lawyer must not seek “to elicit
privileged or confidential information from an opponent’s former
employee.” Muriel Siebert & Co. v. Intuit, Inc., 868 N.E.2d 208 (N.Y.
2007) (collecting cases). Clark v. Beverly Health & Rehabilitation
Services, 797 N.E.2d 905 (Mass. 2003),
p. 103

p. 104

citing an “abundance of authority,” held that “counsel must also be

careful to avoid violating applicable privileges or matters subject to
appropriate confidences or protections.”

208
 Those seem like sensible limits but consider the challenge. While
interviewers can frame questions with care — so they won’t, for
example, ask a current or a former employee about communications
with the organization’s lawyer — an entirely innocent question can elicit
“confidential information.” The interviewer can warn the interviewee not
to disclose “privileged or confidential information,” but the interviewee
may not understand what that means and clam up.
Some companies require employees to sign agreements that make
everything about the company confidential. If everything is confidential,
Niesig’s categories are irrelevant. The Restatement rejects the view
that information is confidential for purposes of Rule 4.2 simply
because of a confidentiality agreement. Confidentiality must come
from law, not a contract. The Restatement says that a lawyer “may not
seek to obtain information that the lawyer reasonably should know the
nonclient may not reveal without violating a duty of confidentiality to
another imposed by law.” Restatement §102 (emphasis added.)
Sometimes a lawyer, unable to get anywhere with the company’s
outside counsel, will want to speak to someone within its general
counsel’s office. May she bypass outside counsel? On one hand, this is
a direct contact with an employee of the opposing client without
permission from the opposing lawyer. On the other hand, the contact is
with a lawyer, who presumably does not need the rule’s protection. Bar
opinions have allowed the contact unless specifically instructed
otherwise. ABA Opinion 06-443; D.C. Opinion 331 (2005).

What If the Government Is the “Represented Person”?

When in a civil case a government body is the “represented person”
— most often as a party — two values clash. The government has the
same interest as any litigant in preventing communications with
constituents in the Niesig categories. On the other hand, there is a First
Amendment right to petition the government. Which interest prevails?
The comment to Rule 4.2 says that “communications by a lawyer on

209
behalf of a client who is exercising a constitutional or other legal right
to communicate with the government” are allowed. Restatement §101
says the rule only applies to the “negotiation or litigation . . . of a
specific claim of a client against a governmental agency or against a
governmental officer in the officer’s official capacity.” Requiring contact
with the government to go through the government’s lawyer more
broadly, it says, would “compromise the public interest in facilitating
direct communication between representatives of citizens and
government officials.” Comment b.
ABA Opinion 97-408 goes even further. It permits contact with
officials “who have authority to take or to recommend action in the
matter, provided
p. 104

p. 105

that the sole purpose of the lawyer’s communication is to address a

policy issue, including settling the controversy.” The lawyer must,
however, “give government counsel reasonable advance notice of his
intent to communicate with such officials, to afford an opportunity for
consultation between government counsel and the officials on the
advisability of their entertaining the communication.” The no-contact
rule continues to apply where the official lacks the described authority
or the lawyer’s goal is to “develop evidence” or learn information that
would be useful in the matter.
The government is the opposing party in criminal prosecutions.
Who may defense counsel not contact? Who is the prosecutor’s client?
The answer is that the client is the United States, or the State, or the
People, not the prosecutor’s witnesses, not the arresting officers, not
the victim. Defense counsel do not need permission to interview any of
them unless they are known to have personal counsel in the matter.
Prosecutors must not interfere with these defense efforts. See

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Stearnes v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989) (trial judge
ordered disqualification of appointed counsel who attempted to
interview the state’s witnesses without prosecutor’s permission;
appellate court held that a writ of mandamus will issue unless the
judge withdraws the order).

Testers: Pretending You’re Someone Else

“We Only Want to Know What Reach Tekkno Is Saying”

“Our client was a highly paid executive at Reach Tekkno. He was
fired a few months after he protested certain business practices that
he claimed, justifiably, were illegal. We’ve sued for retaliatory
discharge but that’s not why I’m talking to you. Our client, I’ll call him
Cooper, has been unable to find new work and he has strong
suspicions that Reach Tekkno is giving him a bad reference. But no
one he applies to will say so. When Cooper left, the HR chief
promised to support his search and of course it’s in Reach’s interest
to do so to mitigate possible damages. But there are officials at
Reach who don’t feel kindly toward Cooper.
“There’s a service, Verify Reference, Ltd., that will pose as our
client’s prospective employer and call for a reference. They use a
person who is knowledgeable about Cooper’s line of work. In this
state, one party to a phone call can record it without telling the other
party, and that’s what Verify will do. If Reach’s reference is good,
there’s no problem. If not, we’ll get the evidence and we may amend
our complaint to allege defamation and business tort theories. Even
if we don’t amend, it will help us in proving actual and punitive
damages.
“One of our young lawyers thinks maybe we can’t do that
because we know Reach has counsel in the matter and because
we’d be asking Verify to misrepresent itself. But we’re not looking for

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 strategic information or secrets. We only want to know what Reach
Tekkno is saying
p. 105

p. 106

to the rest of the world. We know that Cooper can hire Verify himself
and leave us out of it because Rule 4.2 doesn’t bind him, but he
rightly feels that it will go better if we’re there to direct things. And if
we take the lead, it may be easier to protect communications with
Verify from discovery.
“Can we do it? What’s your advice?
Serena Makashay
Abell, Hayes, & Pickney LLP”

You work at a public interest law firm that brings housing

discrimination cases. You’ve settled a dispute with a landlord, but you
get reliable information that it is continuing to discriminate. You want
to send in “testers” to find out. A “tester” is someone who pretends to
be what she is not. Each tester couple will pretend to want an
apartment. One couple will be white and the other will be persons of
color. Their financial and employment status will be the same. You
want to see if they are treated differently. You know that the landlord
has a lawyer on the matter. May you use the testers? Courts say that
you may. In re Curry, 880 N.E.2d 388 (Mass. 2008) (approving the use
of “investigators [who] pose as members of the public interested in
procuring housing or employment, in order to determine whether they
are being treated differently based on their race or sex. Their aim is to
reproduce an existing pattern of illegal conduct”).
Testers are also used in intellectual property cases. Say a lawyer for
a manufacturer believes that Q Co. is “passing off” someone else’s

212
product as her client’s product. The no-contact rule would seem to say
that the lawyer may not use a tester to speak to employees of Q Co., at
least not those employees in the Niesig and comment [7] categories, if
she knows that Q Co. has a lawyer in the matter. On the other hand, the
tester will only pretend to be a member of the public seeking
information that Q Co. offers anyone. So perhaps we should say that
the abuses the no-contact rule is meant to prevent are absent.
That was the conclusion in Gidatex, S.r.L. v. Campaniello Imports,
82 F. Supp. 2d 119 (S.D.N.Y. 1999) (collecting other authority). A law
firm had sent testers to the business establishment of a represented
furniture wholesaler, which the firm believed was guilty of violating its
client’s trademark. Posing as interior decorators, they talked with the
sales clerks and recorded some of the conversations. The court
addressed claims that this tactic violated both the no-contact rule and
the rule forbidding lawyers to engage in misrepresentation, including
through another. The court wrote that
hiring investigators to pose as consumers is an accepted investigative technique, not a
misrepresentation. The policy interests behind forbidding misrepresentations by
attorneys are to protect parties from being tricked into making statements in the
absence of their counsel and to protect clients from

p. 106

p. 107

misrepresentations by their own attorneys. The presence of investigators posing as

interior decorators did not cause the sales clerks to make any statements they
otherwise would not have made. There is no evidence to indicate that the sales clerks
were tricked or duped by the investigators’ simple questions such as “is the quality the
same?” or “so there is no place to get their furniture?”

It is important in Gidatex and like cases that the wrongdoing was

ongoing and that the testers elicited the same responses that the sales
clerks would give any interior decorator. To reach the result it did,
however, the court had to ignore the literal language of the no-contact
rule, whose prohibition, it acknowledged, may “technically” have been

213
violated. In the alternative, the court held that suppression was not
required even if there was a violation.
Another case from the same court (but a different judge) reached a
different conclusion where the testers, a lawyer and his investigator,
attended a promotional event for the opposing company and, while
making secret recordings, “asked [its personnel] specific targeted
questions related to the scope of [the defendant’s] operations in New
York and responsive to proving jurisdiction in this forum. This line of
questioning is reminiscent of that in a deposition.” Dareltech, LLC v.
Xiaomi Inc., 2019 WL 10966202 (S.D.N.Y. 2019) (excluding the
evidence but not disqualifying the lawyers).
The question here goes beyond the no-contact rule because
lawyers are also forbidden to engage in “deceit” or “misrepresentation,”
personally or “through the acts of another.” Rules 4.1(a) and 8.4(a) and
(c). That is true whether or not the target is represented by counsel in
the matter. Using testers is one example of what is sometimes called
“pretexting,” creating a false story to get information. Two deceit cases
that would be beyond belief if they weren’t true — and are hard to
believe anyway — are the disbarment opinions in In re Crossen, 880
N.E.2d 352 (Mass. 2008) and In re Curry, above. Two lawyers (one a
former high-ranking assistant U.S. attorney and partner in a large law
firm) employed an elaborate ruse to get a judge’s former law clerk to
disclose information they hoped to use (unsuccessfully as it turned
out) to challenge the judge’s ruling and force her recusal.
Another pretexting case, also hard to believe, is Leysock v. Forest
Laboratories, 2017 WL 1591833 (D. Mass. 2017), where the district
court dismissed a qui tam case because the relator’s law firm used
pretexting to gather information for its complaint.* The law firm’s
deceptions went beyond simple misidentification.
p. 107

p. 108

214
 The investigation [based on “falsehoods, misrepresentations, and deceptive conduct”]
was designed to appear as if it were a medical research study; its only purpose,
however, was to obtain otherwise-confidential information from busy medical
professionals for use in litigation. To accomplish that end, Dr. Godec [working for the law
firm] falsely stated, and repeatedly implied, that the study had a benign research
purpose. Indeed, the survey invitation explicitly said so.
Dr. Godec also falsely stated that the information obtained from the physicians
would be kept confidential.

For years, the ABA has struggled unsuccessfully to write a rule that
would identify when a lawyer may use deception to gather information.
Oregon has such a rule. Oregon Rule 8.4(b) provides that
it shall not be professional misconduct for a lawyer to advise clients or others about or
to supervise lawful covert activity in the investigation of violations of civil or criminal law
or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with
these Rules of Professional Conduct. “Covert activity,” as used in this rule, means an
effort to obtain information on unlawful activity through the use of misrepresentations
or other subterfuge. “Covert activity” may be commenced by a lawyer or involve a lawyer
as an advisor or supervisor only when the lawyer in good faith believes there is a
reasonable possibility that unlawful activity has taken place, is taking place or will take
place in the foreseeable future.

This rule gives private lawyers some of the same investigative

authority that courts give prosecutors, as described in part A2 below.
Virginia Rule 8.4(c) gives private lawyers a limited license to use
testers. The rule forbids deception when it “reflects adversely on the
lawyer’s fitness to practice law.”

Pop-Up Questions (Answers on Page 115)

“The Adverse Client . . .”

(a) The adverse client, whom you know to be represented in
the matter, calls you to discuss settlement or to negotiate a deal
directly. She tells you it’s okay because she has fired her lawyer
or because her lawyer encouraged her to reach out. What do you
do?

215
 (b) The adverse client, whom you know to have counsel in the
matter, is a personal injury plaintiff who claims that your client’s
negligence left him without full use of his left arm. Can you hire
an investigator to join the plaintiff’s gym, without
misrepresenting himself, and then secretly photograph the
adverse client making full use of his left arm?
(c) The adverse client, whom you know to have counsel in the
matter, is in negotiation to sell a company to your client. Its CFO
is

p. 108

p. 109

prominent on social media sites open to the public. Can you ask
your paralegal to frequent those sites and watch for statements
that will assist your client’s negotiation strategy, but without
misrepresenting himself?
(d) The adverse client is Car Care, which owns a chain of auto
repair shops in the state. Your client hired you to sue it for
negligence in repairing the brakes on her Range Rover, resulting
in personal injury and property damage. Before you sue, you
write to the company’s lawyer in an effort to settle. Negotiations
fail. You have a colleague who knows a mechanic at Car Care
who would be willing to talk to you. He gives you her contact
information. Can you call her?
(e) The adverse client is FidelGard, a financial services firm
that your client is suing for breach of fiduciary duty. You get a call
from a lawyer who tells you that he represents Meredith Maxie, a
broker at the firm. The lawyer says that Maxie, who is not a party,
has some information she would like to share with you and asks
for a meeting among you, Maxie, and the lawyer. You know that
Maxie had some responsibility for your client’s account. You had

216
 scheduled her deposition for the following week, which may
explain the call. What can you do?

2. Criminal Matters

The Case of the Cooperating Target

Nelly Werker, the United States Attorney for the Southern District
of New York, is investigating commercial bribery in the local building
trades. Among the “persons of interest” are Letitia Wall and Mort
Blakely, executives at Newtonian Construction, Inc., which is also
under investigation. Wall is believed to be the ringleader. While the
investigation is in progress, Werker receives a request from Blanche
Menendez, a lawyer for Blakely. She asks Werker to meet with her
and Blakely to discuss a resolution. At the meeting, Blakely offers to
cooperate.
Werker says she is prepared to let Blakely plead to a five-year
felony (he was facing a 20-year count) with a promise to recommend
a sentence of not more than 18 months. In exchange, Blakely must
secretly record conversations with Wall. The conversations are
meant to gather information about past bribes and ongoing
concealment efforts. Werker’s office will conduct mock
conversations with Blakely and identify the topics for him to discuss.
Blakely has two days to accept Werker’s offer.
The next morning, coincidentally, Werker receives a letter from
Barry Hu, who says, “Wall has retained me in connection with the
building trades investigation.” The same day, Marta Russo emails
Werker to

p. 109

p. 110

217
 say, “Newtonian has retained me in the building trades investigation.”
That evening, Blakely accepts the deal. May Werker implement her
plan? If so, what advice would you give her about how to go about it?

Rule 4.2 applies in both civil and criminal matters, as its comments
recognize. The Sixth Amendment right to counsel also applies in
criminal matters and prohibits the government from questioning an
accused person outside the presence of his counsel after “judicial
proceedings have been initiated.” Rothgery v. Gillespie Cnty., 554 U.S.
191 (2008) (“[A] criminal defendant’s initial appearance before a judicial
officer, where he learns the charge against him and his liberty is
subject to restriction, marks the start of adversary judicial proceedings
that trigger attachment of the Sixth Amendment right to counsel.”). But
even where the Sixth Amendment right has not yet attached, what
about the no-contact rule? What if a person under investigation but
uncharged is known to be represented by counsel in the matter? This is
Werker’s dilemma. For more than four decades, this simple question
has prompted a debate, not only about Rule 4.2, but also about
federalism and separation of powers.
Construing the predecessor to Rule 4.2 in the Code, United States v.
Hammad, 858 F.2d 834 (2d Cir. 1988), stunned federal prosecutors by
holding that the rule did apply to them even before judicial proceedings
were initiated. Hammad transformed what had been a below-the-radar,
largely inconsequential issue into a crisis for prosecutors.
The government had sent a cooperating informant to speak to
Hammad at a time when the government knew that he had counsel but
before he was charged. To bolster the informant’s credibility, the
government armed him with a fake grand jury subpoena. Hammad
made incriminating statements on tape, which he moved to suppress.
The court found a violation of the no-contact rule. The sham subpoena

218
made the informant the prosecutors’ alter ego. But the court declined
to suppress the tape because the question was novel.
Although the Hammad ruling did not help Hammad himself, it
loomed as a warning to federal prosecutors, especially in the Second
Circuit. But not for long. Almost from the day it was decided, Hammad
has been on life support. The Second Circuit has not overruled
Hammad, but it has largely eliminated its precedential value, which
amounts to the same thing. United States v. Binday, 804 F.3d 558 (2d
Cir. 2015) (abrogated on another point in Ciminelli v. United States, 598
U.S. 306 (2023)). Other circuit courts have refused to follow it. Cases
are collected in United States v. Balter, 91 F.3d 427 (3d Cir. 1996) and
United States v. Carona, excerpted below.
Hammad alarmed the Justice Department, not least of all because
its boundaries were vague. Two successive attorneys general —
Richard Thornburgh and Janet Reno — adopted internal rules to limit
its reach. They argued that so long as a federal prosecutor followed the
Justice Department’s
p. 110

p. 111

own rules, the conduct would be “authorized by law,” an exception to

the no-contact rule. That effort imploded when United States ex rel.
O’Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998), held
that the department did not have “valid statutory authority” to adopt its
rules.
Then, also in 1998, Congress passed what has come to be known
as the “McDade Amendment.” The lesson here is be careful who you
mess with or, as in this story, who you indict. Joseph McDade, a
powerful congressman, was acquitted in 1996 of federal conspiracy
and racketeering charges. Enlightened perhaps by the unhappy
experience of being a federal defendant, and distressed by the

219
prosecutors’ conduct, McDade returned to Congress and sponsored a
bill that added Section 530B to Title 28 of the United States Code. Its
aim was to leave no doubt that court ethics rules that governed other
lawyers also governed federal government lawyers.
The McDade Amendment, as it became known, says that lawyers
for the federal government “shall be subject to State laws and rules,
and local Federal court rules, governing attorneys in each State where
such attorney engages in that attorney’s duties, to the same extent and
in the same manner as other attorneys in that State.” The attorney
general was directed to “make and amend rules . . . to assure
compliance with this section.” Those rules can be found at 28 C.F.R.
Part 77. The key provision (§77.3) states:
In all criminal investigations and prosecutions, in all civil investigations and litigation
(affirmative and defensive), and in all civil law enforcement investigations and
proceedings, attorneys for the government shall conform their conduct and activities to
the state rules and laws, and federal local court rules, governing attorneys in each State
where such attorney engages in that attorney’s duties, to the same extent and in the
same manner as other attorneys in that State, as these terms are defined in §77.2 of
this part.

As befits C.F.R. provisions drafted by lawyers, key phrases and nouns in

this sentence are each then separately defined.
Even though the McDade Amendment now binds Justice
Department lawyers, the question remains: Is contact with a
represented person whose Sixth Amendment right to counsel has not
yet attached “authorized by law” and exempt from Rule 4.2? The
attorney general has no authority to answer this question, but a court
can because, after all, Rule 4.2 is a court’s own rule. The Ninth Circuit,
which had favorably cited but distinguished Hammad in United States
v. Talao, 222 F.3d 1133 (9th Cir. 2000), addressed that question in the
next case.

UNITED STATES v. CARONA

220
 660 F.3d 360 (9th Cir. 2011)

CLIFTON, CIRCUIT JUDGE: . . .

Carona served as Sheriff of Orange County, an elected position,
from January 1999 until early 2008, when he resigned following his
indictment. During his initial campaign for sheriff in 1998, Carona
received financial

p. 111

p. 112

support from Donald Haidl. Haidl testified at trial that Carona “offered
[him] the complete power of the sheriff’s department for raising money
and supporting him.”
After Carona took office, Haidl testified that he continued to make
payments to Carona. He became concerned that Carona was
jeopardizing his position and Haidl’s arrangement by accepting small
amounts from other people. Haidl testified that he offered Carona and
Assistant Sheriff George Jamarillo each a “bribe not to take bribes” in
the amount of $1000 per month, which they accepted. Haidl also
testified that he gave Carona a speedboat in 2001, which they
concealed through a sham transaction.
In 2004, the federal government began an investigation. In early
2007, Haidl admitted his own criminal misconduct and signed a
cooperation plea agreement with the government. Following this plea
agreement, government attorneys instructed Haidl to meet with Carona
and to make surreptitious recordings of their meetings. At this time,
Carona was represented by attorney Dean Stewart, who had notified
the government that he was representing Carona.
Haidl met with Carona on July 7, 2007, and July 15, 2007, but these
meetings did not provide enough evidence to satisfy the prosecutors.
In preparation for a subsequent meeting, the government equipped
Haidl with two fake “subpoena attachments” that identified certain

221
records that Haidl was to tell Carona he had been subpoenaed to
produce. These documents referred to cash payments Haidl provided
to Carona and to the sham transaction they used to conceal the gift of
the speedboat. Haidl and Carona met again on August 13, 2007, and in
their conversation, Carona made statements that suggested both that
he had received payments and gifts from Haidl and that he wanted
Haidl to lie to the grand jury about these transactions. . . .
[Carona was convicted of witness tampering. On appeal he argued
that the prosecution had violated California Rule 2-100, the then-
counterpart to Model Rule 4.2. Rule 2-100 had an exception for contact
“authorized by law.” The district court ruled that the prosecution had
violated Rule 2-100 but it declined to suppress, leaving any sanction to
disciplinary authorities.]
We disagree with the conclusion that the prosecutors violated Rule
2-100. To determine whether “pre-indictment, non-custodial
communications by federal prosecutors and investigators with
represented parties” violated Rule 2-100, we have adopted a “case-by-
case adjudication” approach rather than a bright line rule. [Talao.] We
have recognized the possibility that such conversations could violate
the rule and “declined to announce a categorical rule excusing all such
communications from ethical inquiry.” Nonetheless, our cases have
more often than not held that specific instances of contact between
undercover agents or cooperating witnesses and represented suspects
did not violate Rule 2-100.
The only relevant factual difference between [precedent] and the
current case is that here the prosecutors provided the informant with
fake
p. 112

p. 113

222
subpoena attachments to use in getting Carona to incriminate himself.
In Hammad, the Second Circuit held that issuing a false subpoena to
an informant to “create a pretense that might help the informant elicit
admissions . . . contributed to the informant’s becoming that alter ego
of the prosecutor.” Relying on Hammad, the district court held that the
use of the fake subpoena attachments made Haidl the alter ego of the
prosecutor, causing Haidl’s communication with Carona to violate Rule
2-100. . . .
We have not previously needed to consider the question of whether
providing fake court papers to an informant to use during a
conversation with a represented party is conduct that violates Rule 2-
100. Under the facts presented here, we conclude that it does not.
The use of a false subpoena attachment did not cause the
cooperating witness, Haidl, to be any more an alter ego of the
prosecutor than he already was by agreeing to work with the
prosecutor. Haidl was acting at the direction of the prosecutor in his
interactions with Carona, yet no precedent from our court or from any
other circuit, with the exception of Hammad, has held such indirect
contacts to violate Rule 2-100 or similar rules.
The false documents were props used by government to bolster the
ability of the cooperating witness to elicit incriminating statements
from a suspect. The district court appears to have been concerned that
by allowing such conduct a suspect could be “ ‘tricked’ into giving his
case away by opposing counsel’s artful questions,” but it has long been
established that the government may use deception in its
investigations in order to induce suspects into making incriminating
statements. See, e.g., Sorrells v. United States, 287 U.S. 435 (1932)
(“Artifice and stratagem may be employed to catch those engaged in
criminal enterprises.”). The use of fake documents here was just such a
stratagem. The reasoning of the Third Circuit in United States v.
Martino, 825 F.2d 754 (3d Cir. 1987), rejecting a claim of a prosecutorial

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ethical violation based on a fake subpoena, seems to us particularly
persuasive:
If government officials may pose as non-existent sheiks in an elaborately concocted
scheme, supply a necessary ingredient for a drug operation, and utilize landing strips,
docking facilities, and other accoutrements of an organized smuggling operation, all in
order to catch criminals, then their use of a subpoena in the name of an undercover
agent to enable him to retain his credibility with suspected criminals seems innocuous
by comparison.

Additionally, the concern that a suspect might be tricked by

counsel’s artful examination is inapplicable here, since Carona was not
subject to any interrogation, let alone one by the prosecutor. Rather he
was engaging in a conversation with an individual he believed to be his
ally against the prosecution.
It would be antithetical to the administration of justice to allow a
wrongdoer to immunize himself against such undercover operations
simply by letting it be known that he has retained counsel. Particularly
here, where the undercover investigation revealed Carona encouraging
Haidl to lie, to hold
p. 113

p. 114

otherwise would be contrary to our observation in Talao that “it would

be a perversion of the rule against ex parte contacts to extend it to
protect [individuals] who would suborn perjury by [others].”
There were no direct communications here between the
prosecutors and Carona. The indirect communications did not
resemble an interrogation. Nor did the use of fake subpoena
attachments make the informant the alter ego of the prosecutor. On
the facts presented in this case, we conclude that there was no
violation of Rule 2-100. For this reason, we affirm the district court’s
decision not to suppress evidence obtained through the use of the fake
subpoena attachments. . . .

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 AFFIRMED.

Carona not only permits prosecutors to use an intermediary, armed

with a fake subpoena, to contact a represented defendant, it explicitly
allows prosecutors to supervise deception by persons in law
enforcement, citing Sorrells v. United States.
If supervising deception is allowed, may a prosecutor choose to just
skip the intermediary and do the same thing herself? Logic might tell
us she could, but case law tells us maybe not. In Disciplinary Counsel v.
Brockler, 48 N.E.3d 557 (Ohio 2016), the prosecutor believed two of the
defendant’s alibi witnesses would lie at trial. One was the defendant’s
girlfriend. In an effort to cause her to recant, he created an elaborate
scheme involving a fake Facebook page. It implied that the defendant
was unfaithful. This conduct violated Rule 8.4(c) and (d). The sanction
was a stayed 12-month suspension. And in In re Pautler, 47 P.3d 1175
(Colo. 2002), a case that has been much debated, defended, and
criticized, the court sanctioned a prosecutor who pretended to be a
public defender after a dangerous murder suspect, holed up in an
apartment, demanded to talk to a lawyer before surrendering. The
suspect’s previous lawyer could not be found and no attempt was
made to contact the public defender’s office. The court imposed a
stayed three-month suspension and ordered Pautler to retake a legal
ethics class and exam. It cited Rule 8.4(c) among other rules.
To create a level playing field, should criminal defense lawyers be,
like prosecutors, “authorized by law” to use investigators who will
misrepresent themselves? The lawyer in In re McCormick, 819 N.W.2d
442 (Minn. 2012), argued that his conduct in sending an investigator to
talk to a represented co-defendant was authorized by law within the
meaning of Rule 4.2. The court disagreed and suspended him for 60
days. The authorized by law exception applied to “law enforcement
agencies, not defense attorneys.” McCormick could have asked

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permission from the co-defendant’s lawyer. He could also “have sought
authorization from the court.”
In The Case of the Cooperating Target, how should U.S. Attorney
Werker proceed? Remember, she’s in the Second Circuit. How should
Barry Hu and Marta Russo instruct their clients?
p. 114

p. 115

Answers to Pop-Up Questions (Page 108)

(a) If what the adverse client says is true, you can talk to her. But
the safe course would be to check with the opposing lawyer
first.
(b) You can do this consistent with Rule 4.2 because observation
in a place in which you have a right to be is not a
communication.
(c) You can do this for the same reason. Your paralegal is not
communicating.
(d) You know that Car Care has a lawyer in the matter because
you wrote to her about it. Whether you can communicate
with the mechanic depends on whether she is within the
categories in comment [7]. If she is not the mechanic who
worked on your client’s car and not implementing the advice
of counsel, each of which you should confirm at the start of
the interview, she would not be a “represented person.” She is
not in management.
(e) Comment [7] allows you to communicate with Maxie with her
lawyer’s permission. “If a constituent of the organization is
represented in the matter by his or her own counsel, the

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 consent by that counsel to a communication will be
sufficient for purposes of this Rule.”

B. IMPROPER OR ACCIDENTAL ACQUISITION OF CONFIDENTIAL

INFORMATION

“It’s the Discovery Wellmost Suppressed”

“I got a surprise visit at my office yesterday from a woman who
didn’t reveal her name. She told the receptionist it was about
Wellmost, a big pharma company I am suing on behalf of a class of
patients who claim that a Wellmost drug had undisclosed side
effects. So I met with her and she told me she was formerly a
paralegal at the law firm defending Wellmost. I remembered enough
from my legal ethics class to say ‘You have to leave. Right away.
Please don’t say anything about the case.’ ‘I won’t,’ she said. Then
she put a large envelope a half-inch thick on my desk and turned to
leave. ‘What are you giving me?’ I asked, then said, ‘No, don’t tell me. I
don’t want it, whatever it is. Please take it with you.’
“ ‘It’s the discovery Wellmost suppressed,’ she said, and walked
out.
“So now I have this envelope and I don’t know what to do with it.
Read the contents? Shred it unopened? Mail it to the opposing law
firm anonymously? What if it is suppressed discovery? There were
gaps in Wellmost’s document production or so it seemed to me.
“Maybe I shouldn’t have met with her, but for all I knew she had
information beneficial to my client and which I’d be free to use.
p. 115

p. 116

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 Anyway, even if I had refused to meet, she could have left the
envelope with the receptionist or put it in the mail and I’d be in a
worse position because I would not know what the envelope
contained until I opened it. Or would that have put me in a better
position?
“What should I do? On one hand, the envelope’s contents may
help my client’s case. I have a duty to the client. On the other hand, I
don’t want to violate any rules that could get me booted from the
case or sanctioned. Rule 4.4(a) forbids the ‘use [of] methods of
obtaining evidence that violate the legal rights of [a third] person.’
Does that apply? I didn’t use a ‘method,’ did I? Rule 8.4(d) forbids
conduct prejudicial to the administration of justice.’ Would opening
the package do that?”

Courts have dismissed claims where a client or lawyer (or both)

have invaded an opponent’s confidential relationship other than
through a Rule 4.2 violation. Mayorga v. Ronaldo, 2023 WL
8047781(9th Cir. 2023)(case dismissed where plaintiff’s lawyer relied
on privileged documents revealed in hack by others). Joan Lipin
brought a sexual harassment claim against her former employer and
supervisor. During a pretrial proceeding in court, she surreptitiously
read a confidential memorandum of the opposing party’s law firm.
Mayorga v. Ronaldo, “At a break, [she] slipped the documents into a
Redweld file ‘for [her] own protection.’ ” When she told her lawyer what
she had done, he first declined to look at the papers but then, after
concluding “that any claim of privilege as to the documents had been
lost as a result of [his opponent’s] careless handling of them . . . he read
through them.” After the trial judge granted protective orders, with
which the plaintiff only partly complied, the case was dismissed. The
New York Court of Appeals affirmed the dismissal. Lipin v. Bender, 644
N.E.2d 1300 (N.Y. 1994):

228
 The trial court, and the Appellate Division, could hardly have been clearer in their
conclusions, characterizing plaintiff’s conduct — as well as that of her attorney — as
“heinous” and “egregious,” a threat to the attorney-client privilege, to the concept of
civilized, orderly conduct among attorneys, and even to the rule of law. . . .
While the Appellate Division made plain that it would reach the same result whether
or not the documents were actually privileged, in fact both courts agreed as to the
protected nature of the documents. . . . Similarly lacking any basis in the record . . . is
plaintiff’s claim that defendants waived the privilege by leaving the documents on the
hearing room table during argument.

Lipin’s lawyer was later suspended from practice for two years for
this and other conduct. In re Wisehart, 721 N.Y.S.2d 356 (App. Div.
2001).
In a divorce case, “Husband improperly accessed Wife’s personal
email account and obtained the list of direct examination questions
[Wife’s lawyer planned to ask and Wife’s] payroll information.” He gave
these items to Eisenstein, his lawyer, who knew the source but used
them anyway. Eisenstein was suspended indefinitely. In re Eisenstein,
485 S.W.3d 759 (Mo. 2016).
p. 116

p. 117

I have a file called “What Were They Thinking?,” a question that

makes a factual assumption — thinking. One case in my file is In re
Winkler, 834 N.E.2d 85 (Ind. 2005). Two prosecutors, Goode and
Winkler, attended a deposition in connection with a criminal case.
Apparently, depositions are allowed in criminal cases in Indiana. The
court describes what happened after the defendant and his lawyer left
the room:
Goode seized notes the defendant had written and shared with his attorney. Goode tore
the notes from a legal pad that had been turned face down on a table before the
defendant and his counsel left the room to confer. Goode gave the notes to Winkler who
concealed them by placing the notes among a stack of files she had before her on the
table. Respondents wanted to use the notes as a handwriting exemplar to compare with
other evidence in the case. When defendant and his counsel returned to the room
neither respondent advised them that they had seized the notes. When counsel and the

229
 defendant began looking for the notes, Winkler went so far as to shuffle through her files
as if looking for the notes. Only when defendant saw the edge of a yellow piece of paper
protruding from Winkler’s files, did she acknowledge having the notes and return them
to defendant.

Both prosecutors were suspended.

After a deposition at their offices, plaintiffs’ counsel “somehow”
found themselves in possession of the defense lawyers’ notes. It is
unclear how that happened. For a time, plaintiffs’ lawyers were alone in
a conference room with defense counsel’s case file, which had
contained the notes. The benign explanation is that defense counsel
mistakenly left the notes behind when the deposition ended. A less
charitable explanation is also available. Either way, without alerting
their opponents, plaintiffs’ counsel made strategic use of the notes,
including by sharing them with their experts. When defense counsel
realized what had happened, they moved for return of the notes and to
disqualify plaintiffs’ counsel and their experts. The court agreed:
When a lawyer who receives materials that obviously appear to be subject to an
attorney-client privilege or otherwise clearly appear to be confidential and privileged and
where it is reasonably apparent that the materials were provided or made available
through inadvertence, the lawyer receiving such materials should refrain from
examining the materials any more than is essential to ascertain if the materials are
privileged, and shall immediately notify the sender that he or she possesses material
that appears to be privileged. The parties may then proceed to resolve the situation by
agreement or may resort to the court for guidance with the benefit of protective orders
and other judicial intervention as may be justified.

Rico v. Mitsubishi Motors Corp., 171 P.3d 1092 (Cal. 2007).

Inadvertent Disclosure and Metadata

It has become increasingly possible that even careful lawyers will
slip up and disclose privileged or other protected information. Click
“Reply All”
p. 117

p. 118

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on a screen. Include a privileged document among thousands delivered
(or electronically transmitted) in discovery. It can happen to anyone.
And because it can, we have a rule to avoid inadvertent waiver.
Rule 4.4(b) requires a lawyer to give prompt notice to an opponent
when the lawyer “knows or reasonably should know that [a] document
or electronically stored information was inadvertently sent.” The rule
then leaves to substantive law whether the lawyer must comply with
the opponent’s instructions to return it. The Arizona Supreme Court has
held that delivering the inadvertently disclosed documents to the court
is appropriate. The lawyers can then work out whether the documents
must be returned. If they can’t agree, the judge can decide. Lund v.
Myers, 305 P.3d 374 (Ariz. 2013).
A 2008 amendment to the Federal Rules of Evidence adds Rule
502, which provides in part: “When made in a federal proceeding or to a
federal office or agency, the disclosure does not operate as a waiver in
a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the
holder of the privilege or [work-product] protection took reasonable
steps to prevent disclosure; and (3) the holder promptly took
reasonable steps to rectify the error, including (if applicable) following
[Fed. R. Civ. P.] 26(b)(5)(B).” Rule 26(b)(5)(B) provides:
If information produced in discovery is subject to a claim of privilege or of protection as
trial-preparation material, the party making the claim may notify any party that received
the information of the claim and the basis for it. After being notified, a party must
promptly return, sequester, or destroy the specified information and any copies it has;
must not use or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it before being
notified; and may promptly present the information to the court under seal for a
determination of the claim. The producing party must preserve the information until the
claim is resolved.

“Inadvertent” is the critical adjective here. The rule is not available to

a lawyer who intentionally produces a document erroneously believing
that he was required to do so. The production wasn’t inadvertent. It
was a result of legal error.

231
 Metadata. Metadata is information in an electronic document that
is not visible on the screen, but can be restored, often with a few
keystrokes. A lawyer may unintentionally include metadata in
documents she produces. Bar ethics opinions diverge in describing a
recipient lawyer’s responsibility when a document that was
intentionally produced contains metadata of which the sender may be
unaware. ABA Opinion 06-442 concluded that the recipient lawyer
“generally” may review and use the metadata. It took no position on
whether the sending lawyer must be notified. However, a 2012
amendment to comment [2] to Rule 4.4 identifies metadata as within
the scope of Rule 4.4(b)’s notice requirements. A lawyer who knows or
reasonably should know that metadata was inadvertently sent must
“promptly notify the sender.”
p. 118

p. 119

New York Opinion 749 (2001) begs to differ. It says that even
searching for a document’s metadata is dishonest and prejudicial to
the administration of justice. D.C. Opinion 341 (2007) splits the
difference. It says that reviewing metadata in a document is unethical
only if the lawyer “knows” that the metadata was inadvertently sent.
The D.C. opinion makes the important point that different rules apply
when the metadata is contained in documents produced in discovery
or via subpoena as part of the history of the case. Then, the receiving
lawyer may have a right to it, and obstruction of justice statutes may
forbid the sending lawyer from stripping documents of metadata.
When a document becomes the subject of discovery or relevant to a
foreseeable litigation, it cannot be altered.

Self-Assessment Questions

232
1. Prosecutors believe that an investment advisory company with an
international presence is assisting some of the company’s wealthy
clients to launder money. The company gets wind of the
investigation as a result of a story in the financial press. It hires a
lawyer who notifies the prosecutors that he has been retained to
represent the company. The prosecutors want to proceed with
planned undercover work, in which two current clients of the
company will ask about money laundering (although in a subtle
way). In a jurisdiction that has adopted the Model Rules and its
comments, how should the prosecutors proceed with the
investigation of the company?
2. You work for a criminal law reform public interest law firm. It has
concluded after study that the quality of indigent legal services in
state X is too low to ensure compliance with Gideon v. Wainwright.
The state provides legal services through a statewide office of
defender services that oversees the work of five regional offices.
Your office sues state X, which will be defended by the attorney
general of the state. Some officials in the statewide office and some
lawyers who are not officials of that office or of the regional offices,
but who defend clients in court, call your office and offer to provide it
with more leads to prove its case. How do you respond?
3. This is a variation on a self-assessment question in chapter 2. Edie
Santos is planning to sue her former employer, Morkett Sales, for
discrimination based on ethnic identity and sex. Clyde Snoot is her
lawyer. Snoot has not yet filed a complaint but he has sent the
general counsel of Morkett a draft complaint as a way to prompt
settlement talks. And Snoot has discussed the claim with Morkett’s
outside counsel, Luis Caspone. Santos has given Snoot the names of
eight current and former co-workers who can substantiate her
claims. Can Snoot attempt to interview them?

* State v. Miller, 600 N.W.2d 457 (Minn. 1999):

233