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Two Ethical Legal Issues in Two Hours
Friday, April 30, 2021
WEBCAST - REPLAY
Professor Carol C. Knoepfler, Creighton University School of Law
Professor Craig W. Dallon, Creighton University School of LawThis page intentionally left blank.
SPEAKER BIOS Professor Carol C. Knoepfler, Creighton University School of Law Carol Knoepfler is an Assistant Professor of Law at Creighton University School of Law, where she also serves as the Law School’s Director of Legal Research and Writing. In addition to the required legal research and writing curriculum and Advance Legal Writing, an online course she designed, Prof. Knoepfler also teaches Employment Law and Animal Law. As the Director of Legal Research and Writing, she runs the Law School’s Legal Writing Center and oversees the Law School’s intramural moot court competition. Prior to joining the Creighton faculty in 2008, Professor Knoepfler was a career law clerk for the Honorable Lindsey Miller-Lerman, Justice of the Nebraska Supreme Court. Previously she also was a partner with the Omaha law firm of Baird Holm, LLP, working in the Labor and Employment Section of the firm. While attending the University of Iowa, Professor Knoepfler was the Senior Note and Comment Editor of the Iowa Law Review. Professor Craig W. Dallon, Creighton University School of Law Craig W. Dallon is a professor of law at the Creighton University School of Law, where he teaches on a variety of topics such as: copyright law, torts, trademarks, property, and professional responsibility. Mr. Dallon earned his B.A. degree and J.D. degree from Brigham Young University. Following law school, he clerked in Olathe, Kansas, for the Honorable James K. Logan on the United States Court of Appeals for the Tenth Circuit. Mr. Dallon then practiced with the law firm of Van Cott, Bagley, Cornwall & McCarthy in Salt Lake City where he was a member of the firm’s Litigation Section and technology law practice group. He was an assistant professor of law at Appalachian School of Law and a visiting assistant professor of law at Brigham Young University before joining Creighton University. He was Associate Dean of the Creighton University School of Law from 2006 to 2014.
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Two Ethical Legal Issues
in Two Hours
Ethics in Legal Writing
Professor Carol C. Knoepfler
Friday, April 30, 2021
Webcast - ReplayThis page intentionally left blank.
4/22/2021
ETHICS IN LEGAL WRITING
NEBRASKA STATE BAR ASSOCIATION
“2 ETHICAL LEGAL ISSUES IN 2 HOURS”
CAROL KNOEPFLER
THURSDAY, MAY 30, 2019
1
NEB. CT. R. OF PROF. COND. §§ 3-501.1 TO 3-501.18: CLIENT-LAWYER RELATIONSHIP
§ 3-501.2. SCOPE OF REPRESENTATION AND ALLOCATION OF
AUTHORITY BETWEEN CLIENT AND LAWYER.
(f) A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the
legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity,
scope, meaning or application of the law.
2
14/22/2021
§ 3-501.2. SCOPE OF • May a lawyer, at the client’s direction, intentionally
REPRESENTATION
AND ALLOCATION draft a provision in a contract that the lawyer knows is
OF AUTHORITY unenforceable?
BETWEEN CLIENT
AND LAWYER.
3
NEB. CT. R. OF PROF. COND. §§ 3-501.1 TO 3-501.18: CLIENT-LAWYER RELATIONSHIP
§ 3-501.6. CONFIDENTIALITY OF INFORMATION.
A lawyer shall not reveal information relating to the representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized
in order to carry out the representation or the disclosure is permitted by
paragraph (b).
4
24/22/2021
§§ 3-504.1 TO 3-504.4:TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS.
§ 3-504.4. RESPECT FOR RIGHTS OF THIRD PERSONS.
(b) A lawyer who receives a document relating to the representation of the
lawyer's client and knows or reasonably should know that the document was
inadvertently sent shall promptly notify the sender.
5
Concerns about Metadata and Transmission.
• Imagine a contract that you’re working on.You and the client use Word’s
comment feature to make edits/share thoughts as the document goes back
and forth.You finalize the contract to email to the attorney for the other
contracting party, and in so doing, you delete all the comments.
§ 3-501.6. You’re good, right?
CONFIDENTIALITY
OF INFORMATION. 1. You need to “scrub” the metadata from the document.
2. You may need to transmit the document with encryption.
ABA Formal Ethics Op. No. 477R (May 2017)
“A lawyer generally may transmit information relating to the representation of
a client over the internet without violating the Model Rules of Professional
Conduct where the lawyer has undertaken reasonable efforts to prevent
inadvertent or unauthorized access. However, a lawyer may be required to take
special security precautions to protect against the inadvertent or unauthorized
disclosure of client information when required by an agreement with the client
or by law, or when the nature of the information requires a higher degree of
security.”
6
34/22/2021
What about if you’re on the receiving end—is it
ethical to look for metadata? Is it required?
ABA Formal Ethics Op. No. 06-447.
“The Model Rules of Professional Conduct do not contain any
§ 3-504.4. RESPECT
FOR RIGHTS OF specific prohibition against a lawyer’s reviewing and using
THIRD PERSONS. embedded information in electronic documents, whether
received from opposing counsel, an adverse party, or an agent of
an adverse party. “
• Opinion has been criticized by a number of state ethics
opinions, which have concluded that it is unethical for a lawyer
to mine metadata from a document transmitted by a third
party.
7
§§ 3-503.1 TO 3-503.9: ADVOCATE.
§ 3-503.1. MERITORIOUS CLAIMS AND CONTENTIONS.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis in law and fact for doing so that is not frivolous,
which includes a good faith argument for an extension, modification or reversal
of existing law.
8
44/22/2021
FED. R. CIV. P. 11-- SIGNING PLEADINGS, MOTIONS,
AND OTHER PAPERS; REPRESENTATIONS TO THE
COURT; SANCTIONS
(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name--or by a party personally if the party is unrepresented.
The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an
affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or
unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney,
law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner,
associate, or employee.
***
(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
9
Providian Nat’l Bank v. McGowan, 687 N.Y.S.2d 858, 863
(Civ. Ct. 1999) (citations omitted)
“Conduct is considered frivolous if it is completely without merit in law
and cannot be supported by a reasonable argument for the extension,
modification or reversal of existing law. In deciding whether conduct is
§ 3-503.1. frivolous the court must consider the circumstances under which the
MERITORIOUS conduct took place, including the time available for investigating the legal
CLAIMS AND and factual basis of the conduct, and whether or not the conduct was
CONTENTIONS. continued when its lack of legal and factual basis became apparent,
should have become apparent, or was brought to the attention of the
counsel in question.
“In the instant case, as illustrated by the above analysis, defendant's
attorneys attempted to shoehorn laws and legal concepts to a set of
facts where they have no application. The defendant's attorney puts forth
defenses and counterclaims that ignore the simplicity of the plaintiff's
claim, disregard the plain meaning of the statutes on which they are
based, and offer conclusory allegations where a complex analysis of the
facts is required. In short, the arguments are completely without merit in
law. Furthermore, no arguments are made for the extension,
modification, or reversal of any law, and this Court cannot think of any
arguments to make on the counsel's behalf.”
10
54/22/2021
Providian Nat’l Bank v. McGowan, 687 N.Y.S.2d 858, 863
(Civ. Ct. 1999) (citations omitted)
“And now I want to give the Law Offices of Mr. Andrew Capoccia fair
warning in open court and on the record:
§ 3-503.1.
MERITORIOUS “Mr. Capoccia has been submitting these applications and submitting
CLAIMS AND these Verified Answers and I feel they're a sham and frivolous and
CONTENTIONS. have no merit. And in the near future I'm going to consider severe
sanctions and report the matter to the Appellate Division in the Third
Department....
“... Mr. Capoccia's office has the audacity to submit documents ...
which are a sham and frivolous.
“... [A]nd if this continues and persists, I'm going to consider sanctions
in the Court to the Appellate Division.You can communicate that to
Mr. Capoccia and to his office, because I'm sick and tired of it. It's a
sham. It's frivolous. It's delaying a Plaintiff from collecting a legitimate
debt.”
11
Providian Nat’l Bank v. McGowan, 687 N.Y.S.2d 858,
863 (Civ. Ct. 1999) (citations omitted)
• For frivolous defenses to summary judgment motion: attorneys
fees award of $3009, to be paid by defense counsel
§ 3-503.1.
• $20,000 sanctions imposed for frivolous conduct
MERITORIOUS
CLAIMS AND • 2000--attorney disbarred
CONTENTIONS.
12
64/22/2021
§§ 3-503.1 TO 3-503.9: ADVOCATE.
§ 3-503.1. MERITORIOUS CLAIMS AND CONTENTIONS.
Neb. Rev. Stat. 25-824.
Pleadings; use in other actions; frivolous pleading; effect; effect of signature; frivolous actions; award of attorney's fees and
costs.
(1) A pleading shall not be used against a party in any criminal prosecution or action or proceeding for a penalty or forfeiture
as proof of a fact admitted or alleged in such pleading. If a pleading is frivolous or made in bad faith, it may be stricken.The
signature of a party or of an attorney on a pleading constitutes a certificate by him or her that he or she has read the
pleading; that to the best of his or her knowledge, information, and belief there is good ground for the filing of the pleading;
and that it is not interposed for delay.
(2) Except as provided in subsections (5) and (6) of this section, in any civil action commenced or appealed in any court of
record in this state, the court shall award as part of its judgment and in addition to any other costs otherwise assessed
reasonable attorney's fees and court costs against any attorney or party who has brought or defended a civil action that
alleges a claim or defense which a court determines is frivolous or made in bad faith.
13
Peterson v. Don Peterson & Assoc. Ins. Agency, Inc., 452
N.W.2d 517, 522 (Neb. 1990)
“Pursuant to § 25–824(2), attorney fees are allowed against a party
who has defended a civil action by alleging a defense which is
§ 3-503.1. determined to be frivolous.The term ‘frivolous,’ as used in the
MERITORIOUS section, ‘connotes an improper motive or a legal position wholly
CLAIMS AND without merit.’ Lutheran Medical Center v. City of Omaha, 229 Neb.
CONTENTIONS. 802, 811, 429 N.W.2d 347, 353 (1988). The Agency has not
advanced any evidence or theory constituting a defense to
plaintiff's claim for payment. The Agency's defense is frivolous
within the meaning of § 25–824(2). . . . The plaintiff is entitled to
attorney fees because all of the Agency's defenses are wholly
without merit.”
14
74/22/2021
§§ 3-503.1 TO 3-503.9: ADVOCATE.
§ 3-503.3. CANDOR TOWARD THE TRIBUNAL.
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal by
the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of
the client and not disclosed by opposing counsel
15
Sobol v. Capital Management Consultants, Inc., 726 P.2d 335,
337 (Nev. 1986).
“Additionally, some discussion of the brief submitted by respondents is in
order. This court recently warned the bar that ’[w]e expect and require
that all appeals brought in this court ... will be pursued in a manner meeting
§ 3-503.3. high standards of diligence, professionalism, and competence.’ State, Emp. Sec.
Dep't v.Weber, 100 Nev. 121, 123, 676 P.2d 1318, 1319 (1984) (emphasis in
CANDOR
original). In the answering brief, CMC strenuously argues that Sobol
TOWARD THE affirmatively admitted and acknowledged in a statement of stipulated facts
TRIBUNAL. issued prior to the preliminary hearing that the term ‘Physicians Medical
Center’ was ‘not capable of tradename [sic] or copyright registration and is
MISSTATING in the public domain.’ This is a blatant misrepresentation of the stipulated
FACTS facts. The supposed “admission” provides in pertinent part:
18. The sole and only basis upon which Defendants claim a legal right to
the name ‘Physician's Medical Center’ is by virtue of the filing of the
fictitious name certificate in March of 1985, the issuance of a county
business license in May of 1985 and that said name is not capable of
trade name or copyright registration and is in the public domain.”
16
84/22/2021
Sobol v. Capital Management Consultants, Inc., 726 P.2d
335 (Nev. 1986).
§ 3-503.3.
• $5000 sanction imposed
CANDOR
TOWARD THE
TRIBUNAL.
MISSTATING
FACTS
17
N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146
(9th Cir. 1997) (citations omitted)
“We will not spill ink detailing the substantive facts of this case
§ 3-503.3. because we need not discuss its merits. We are passing through a
CANDOR period in the history of this country when the pressures upon
TOWARD THE the courts are extremely high. They are so because of the volume
of work as more and more people seek to have the courts
TRIBUNAL.
resolve their disputes and vindicate their rights. But resources are
limited. In order to give fair consideration to those who call upon
MISSTATING us for justice, we must insist that parties not clog the system by
FACTS presenting us with a slubby mass of words rather than a true
brief. . . . [T]he opening brief is replete with assertions of fact and
assertions about the record, it contains a mere handful of
generalized record citations. The brief leaves it up to the court
to attempt to find the asserted information; alas, much of it is not
there at all.”
18
94/22/2021
N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146
(9th Cir. 1997) (citations omitted)
§ 3-503.3.
• Not only were the facts incorrect, but the standard of review was
CANDOR
missing, the brief exceeded word limits, and there were other
TOWARD THE “lesser(?) matters like rather creative renditions of what actually
TRIBUNAL. occurred at the district court.”
MISSTATING ”We strike the N/S briefs and dismiss the appeal.”
FACTS
19
Precision Specialty Metals, Inc. v. U.S., 315 F.3d 1346,
1355-56 (Fed. Cir. 2003)
§ 3-503.3. “The effect of Walser's editing of this material and ignoring the
CANDOR Supreme Court decision that dealt with the issue—a decision that
TOWARD THE seriously weakened her argument—was to give the Court of
TRIBUNAL. International Trade a misleading impression of the state of the law
on the point. She eliminated material that indicated that her delay in
MISSTATING filing the motion for reconsideration had not met the court's
LAW requirement that she file ‘forthwith,’ and presented the remaining
material in a way that overstated the basis for her claim that a
‘forthwith’ filing requirement meant she could take whatever time
would be reasonable in the circumstances. This distortion of the law
was inconsistent with and violated the standards of Rule 11.”
20
104/22/2021
Precision Specialty Metals, Inc. v. U.S., 315 F.3d 1346,
1355-56 (Fed. Cir. 2003)
§ 3-503.3.
“In the present case, however, Walser was sanctioned not for failure
CANDOR
to discover pertinent precedents or to cite adverse decisions. She
TOWARD THE violated Rule 11 because, in quoting from and citing published
TRIBUNAL. opinions, she distorted what the opinions stated by leaving out
significant portions of the citations or cropping one of them, and
MISSTATING failed to show that she and not the court has supplied the emphasis
LAW in one of them.”
• Formal reprimand in a now published opinion.
21
Hernandez v. New York City Law Dept. Corp. Counsel,
1997 WL 27047, *14 (S.D.N.Y. Jan. 23, 1997)
“The Court cannot say whether defense counsel was extremely
sloppy in her reading of the Supreme Court's Elliott decision, or
§ 3-503.3.
whether her brief on this point is intentionally misleading and may
CANDOR
constitute a violation of Rule 11, Fed.R.Civ.P.11 Suffice it to say for
TOWARD THE
present purposes that the defense's reading of Elliott is dead wrong.”
TRIBUNAL.
MISSTATING
LAW
22
114/22/2021
Hernandez v. New York City Law Dept. Corp. Counsel, 1997
WL 27047, *14 (S.D.N.Y. Jan. 23, 1997)
“11Defense counsel (Assistant Corporation Counsel Andrea Moss) is
to show cause, within 14 days of receipt of this Opinion, by affidavit
§ 3-503.3. and memorandum of law, why Rule 11 sanctions should not be
CANDOR imposed on her for her misleading use of the Elliott decision, and for
TOWARD THE her argument that plaintiff’s . . . claims were barred for failure to file a
TRIBUNAL. Notice of Claim. Ms. Moss also is to bring her supervisor to the next
conference to discuss the overall poor quality of defendants' brief, in
MISSTATING terms of content, organization and the issues not included in the brief
LAW that should have been included (e.g., that there is no Title VII claim
against individual supervisors).”
23
Jorgenson v. Volusia Cty., 846 F.2d 1350, 1352 (11th Cir.
1988)
“[A]ppellants cited a number of cases describing the limits on the
exercise of the general police power. However, they did not advise
the court in any way that Del Percio had been decided. [One of
§ 3-503.3. appellants had even participated in the Del Percio case.]
CANDOR
“The appellants purported to describe the law to the district court
TOWARD THE
in the hope that the description would guide and inform the
TRIBUNAL. court's decision. With apparently studied care, however, they
withheld the fact that the long-awaited decision by the Supreme
DUTY TO CITE Court of Florida had been handed down. This will not do. The
CONTROLLING appellants are not redeemed by the fact that opposing
LAW counsel subsequently cited the controlling precedent. The appellants
had a duty to refrain from affirmatively misleading the court as to
the state of the law. They were not relieved of this duty by the
possibility that opposing counsel might find and cite the controlling
precedent, particularly where, as here, a temporary restraining
order might have been issued ex parte.”
24
124/22/2021
Schutts v. Bentley Nevada Corp., 966 F. Supp. 1549,
1557 (D. Nev. 1997)
§§ 3-503.1 TO 3- “These facts, and controlling federal judicial authority extant prior
503.9: to the initiation of this action, should have made plain to Plaintiff
ADVOCATE. and his lawyer the futility—and impropriety—of filing the
complaint, and of opposing Defendant's meritorious summary
§ 3-503.3. judgment motion. ‘Counsel who are admitted to practice in a
CANDOR federal court take on themselves the obligation to know the
TOWARD THE relevant law.’ In re Disciplinary Action Against Mooney, 841 F.2d 1003,
TRIBUNAL. 1006 (9th Cir.1988). ‘A lawyer must know what the law is in order
to determine whether a colorable claim exists, and if so, what facts
DUTY TO CITE are necessary to state a cause of action.’ Bounds v. Smith, 430 U.S.
CONTROLLING 817, 825, 97 S.Ct. 1491, 1497, 52 L.Ed.2d 72 (1977).”
LAW
25
Schutts v. Bentley Nevada Corp., 966 F. Supp. 1549,
1557 (D. Nev. 1997)
§ 3-503.3.
CANDOR “Unfortunately for the parties, the court, and this nation's
TOWARD THE taxpayers, Plaintiff and his lawyer proceeded with this action,
TRIBUNAL. undaunted by (and/or blissfully unaware of) Ninth Circuit
authority vitiating Plaintiff's claim. Collings should have made
DUTY TO CITE clear to Plaintiff and his lawyer that the case was without
CONTROLLING merit. Plaintiff's and his attorney's decision to proceed with
LAW the litigation despite Collings is precisely the type of
irresponsible behavior which merits an award of attorney fees
in favor of Defendants.”
26
134/22/2021
§§ 3-503.1 TO 3-503.9: ADVOCATE.
§ 3-503.5. IMPARTIALITY AND DECORUM OF THE TRIBUNAL.
• (a) A lawyer shall not:
• (4) engage in conduct intended to disrupt a tribunal.
27
In Re 60 East 80th St. Equities, Inc., 218 F.3d 109, 113-15
(2nd Cir. 2000)
“In his opening brief to the District Court, Papapanayotou
§ 3-503.5. disparaged and made unsubstantiated allegations that the
IMPARTIALITY Bankruptcy Court and the Trustee were engaged in civil and
AND criminal misconduct. In particular, Papapanayotou accused the
DECORUM OF Bankruptcy Court of collusion with the Trustee and alleged that the
THE TRIBUNAL. Trustee had the ‘helping hand of an approvingly winking Bankruptcy
Court,’ Trustee's Counter Appendix on Appeal (“App.”), at 477; that
the Bankruptcy Court conducted itself in a manner of
‘impermissible advocacy of a litigant's cause by a Court of Law,’ App.
at 479; that the Bankruptcy Court applied ‘double standards,’ App.
at 486; that its decision was ‘utterly absurd,’ id., and ‘transcends the
bounds of an ordinary error, as evincing [ ] fundamental ignorance,’
App. at 488; and that the sale at issue was a ‘judicially sanctioned
grand larceny,’ App. at 489 (emphasis omitted). ”
28
144/22/2021
In Re 60 East 80th St. Equities, Inc., 218 F.3d 109, 113-15 (2nd
Cir. 2000)
“In his brief to this Court appealing the imposition of sanctions, Papapanayotou
now contends: (1) that the District Court also engaged in ‘a judicial fraud
designed to whitewash the actions of the Trustee and the Bankruptcy Court'
(2) that the 'District Court did not commit inadvertent error but simply
§ 3-503.5. perpetrated a judicial fraud on the Appellants in a disgraceful violation of its
IMPARTIALITY constitutional oath and its pledge to uphold the laws of the United States and
AND act as an impartial arbiter in the adjudication of any controversy before it’; (3)
DECORUM OF that the District Court ‘couldn't care less’ about the Trustee's ‘theft of estate
THE TRIBUNAL. assets’; (4) that the District Court turned a blind eye to the purported theft
because ‘first things first [,] nobody can insult a friendly acquaintance: never
mind the latter's collusive theft of estate assets’; (5) that the ‘findings of fact and
conclusions of law of the District Court are pure inventions’ and ‘fabrication [s]’;
(6) that the District Court engaged in a ‘conscious falsehood’; (7) that the
imposition of sanctions was an ‘ad terrorem tactic designed to exact retribution
for the denouncement of the proteges of the District Court’ (emphasis in
original); and (8) that [the district court judge] is a disgrace’ to the judiciary
because he ‘perpetrat[ed] a judicial fraud on a litigant by inventing grounds to
deny its appeal, testifie[d] as an unsworn witness and abuse[d] counsel for living
up to his ethical obligations to his client.’”
29
In Re 60 East 80th St. Equities, Inc., 218 F.3d 109, 121 (2nd Cir.
2000) (citation omitted)
• Sanctions imposed sua sponte at the district court level.
• On appeal, district court’s imposition of sanctions affirmed AND
sanctions again imposed.
§ 3-503.5.
“We order that double costs in this Court and attorneys' fees in the
IMPARTIALITY amount of $5,000 be awarded against Papapanayotou, to be paid to the
AND Trustee. We further order that the Clerk of this Court shall not accept any
DECORUM OF more papers from Papapanayotou except upon proof of payment of the
THE TRIBUNAL. sanctions imposed by this Court and the District Court.This prohibition
against further filings does not apply to any petition for rehearing, petition
for rehearing in banc, or petition for certiorari in this case.
“We further direct the Clerk of the Court to transmit a copy of the record
and this opinion to the Grievance Committee of the Southern District of
New York and to the Departmental Disciplinary Committee, First Judicial
Department in New York, where Papapanayotou is admitted to practice law,
for investigation and appropriate action. ”
30
154/22/2021
§§ 3-505.1 TO 3-505.7: LAW FIRMS AND ASSOCIATIONS.
§ 3-505.5. UNAUTHORIZED PRACTICE OF LAW;
MULTIJURISDICTIONAL PRACTICE OF LAW.
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation
of the legal profession in that jurisdiction, or assist another in doing so.
31
Neb. Ethics Advisory Op. for Lawyers No. 06-10 (2006)
***
§ 3-505.5. Aiding Another in the Unauthorized Practice of Law
UNAUTHORIZED
“. . . . It appears that the referral lawyer is allowing non-lawyer
PRACTICE OF LAW;
MULTIJURISDICTIONAL representatives to (1) give legal advice to the client regarding
PRACTICE OF LAW. specific legal matters, (2) gather confidential information from the
client before actually meeting with the client, (3) market and
profit from the sale of specific types of estate plans (living trusts)
to the exclusion of wills and the general process of probate, and
(4) counsel the client on what the estate planning needs are, all
before the lawyer meets the client or has a chance to provide
input or consult with the client as to the decisions which have
been made. It appears that by the time the lawyer enters the
process, the unauthorized practice of law has already occurred
and anything the lawyer does thereafter only aids in the
prohibited conduct.”
32
164/22/2021
NEB. CT. R. OF PROF. COND. §§ 3-501.1 TO 3-501.18: CLIENT-LAWYER RELATIONSHIP
§ 3-501.1. COMPETENCE.
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, preparation
and judgment reasonably necessary for the representation.
33
Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140, 184-85 (D.D.C. 2002)
(some citations omitted)
“Having resolved the controversy presented by this remarkable case, this Court would be
remiss not to address what the Court believes are the problematic actions of plaintiffs' counsel
throughout this case. While this Court is not inclined to impose sanctions, the applicability
of Rule 11 . . . warrants some discussion. It is not in spite of, but out of respect and concern for
the class of plaintiffs in this case that this Court feels it necessary to comment on the repeated
§ 3-501.1. ethical failures by class counsel.
COMPETENCE. “Unlike other professions, in the practice of law basic competence and ethical obligations are
enforceable and intertwined. Every time an attorney files a document in federal court, she must
certify to the Court that the legal arguments contained therein [satisfy Fed. R. Civ. P. 11]. In
RESEARCH addition, attorneys practicing in this Court have a corresponding ethical obligation, according to
the Rules of Professional Responsibility, to disclose to the Court any and all adverse controlling
authority. What these requirements mean in practice is that ignorance is no excuse for an
attorney. An attorney can not carry out the practice of law like an ostrich with her head in the
sand, ignoring her duty to research and acknowledge adverse precedent and law. Attorneys are
not free to assert any and all legal arguments they wish on behalf of their clients, without regard
to existing precedent.
“Indeed, this requirement serves not only to protect the Court but also to protect the
attorney's clients. The plaintiffs in this case, like every other case conducted by an attorney
admitted as a member of the Bar of this Court, deserve council who will fulfill their ethical
obligations and argue passionately and persuasively for their client as possible without making
frivolous arguments that lack a basis in law. Such arguments are a waste of the Court's time and
the client's time as well.”
34
174/22/2021
Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140, 184-85
(D.D.C. 2002) (some citations omitted)
“Plaintiffs' counsel in this case repeatedly presented meritless arguments to
this Court, repeatedly failed to substantiate their arguments by reference to
§ 3-501.1. any supporting authority, and repeatedly failed to bring to the Court's
COMPETENCE. attention the existence of controlling authority that conflicted with those
arguments. . . . While such arguments in any case would raise concern, the
RESEARCH Court is particularly concerned given the highly emotional nature of this case
and the emotional toll it may have imposed on plaintiffs. Plaintiffs' counsel
may argue that the United States government has unnecessarily dashed the
hopes of recovery for these plaintiffs, but given the existing law on the
abrogation of international agreements, the Court must ask how high those
hopes were raised in the first place and on whose shoulders that
responsibility should fall.”
35
Gould v. Kemper Nat. Ins. Cos., 1995 WL 573426, *1 (N.D. Ill.
Sept. 7, 1995)
“Specifically at issue is the prima facie test for age discrimination found
in Coston v. Plitt Theaters, Inc., 831 F.2d 1321, 1325 (7th Cir.1987), and cited
§ 3-501.1.
by Shannon's attorneys without mentioning either the Supreme Court's
COMPETENCE.
vacation of the Coston judgment, see 486 U.S. 1020 (1988), nor the explicit
UPDATE overruling of the test employed by the Coston Court in Oxman v.WLS–
RESEARCH TV, 846 F.2d 448, 455–56 (7th Cir.1988).
“[S}hepardizing or insta-citing Coston does immediately reveal that the
Supreme Court vacated the Coston judgment, an occurrence not noted in
the citation to Coston by Shannon's attorneys.”
• Show cause order entered, directing counsel to show cause why Rule 11
sanctions shouldn’t be imposed.
36
184/22/2021
Thornton v. Wahl, 787 F. 2d 1151, 1153 (7th Cir. 1986)
“We publish this opinion to remind counsel that they may not make
assertions of law for which there is no support. . . . The appellate proceedings
in this case are unsupported by any colorable legal argument. . . . The
§ 3-501.1. argument that a motion for a stay automatically stays a judgment pending the
appellate court's decision is preposterous. It would deprive courts of the
COMPETENCE.
power to set enforceable deadlines. . . . In sum, this appeal rests on a serious
misstatement of state law. It is hard to imagine that a lawyer could advise a
UNDERSTAND client to defy an outstanding judgment on the ground that an application for
AUTHORITIES a stay had been filed but had not been granted, or that a lawyer could inform
us—without a shred of authority—that in Illinois an application for a stay has
the effect of a stay itself. We do not want to discourage vigorous advocacy,
but an advocate must represent his client within the existing structure of the
law, and not some imagined version of it. . . . . Rule 11requires counsel to
study the law before representing its contents to a federal court. An empty
head but a pure heart is no defense. The Rule requires counsel to read and
consider before litigating. Counsel who puts the burden of study and
illumination on the defendants or the court must expect to pay attorneys'
fees under the Rule.”
37
Pagan Velez v. Laboy Alvarado, 145 F. Supp. 2d 146, 160-61
(D.P.R. 2001) (citations omitted)
“During our review of the record, including the briefs submitted by the
parties in support of their positions regarding Defendants' summary
§ 3-501.1. judgement motion, we noticed that counsel for Plaintiff, José Ramón
COMPETENCE. Olmo Rodríguez, filed an opposition to the summary judgement motion
which plagiarizes full pages of Ortiz v. Colon. . . . We found not a single
PLAGIARISM citation to Ortiz, but did notice adjustments in the appropriate places
which were commensurate with the facts of Plaintiff's case. In fact, by our
estimation, approximately sixty-six percent of the brief is a verbatim
reproduction of the Judge Casellas' Opinion and Order.This behavior is
reprehensible. . . . We find counsel’s behavior to be intolerable. . . . In the
future, we expect counsel to maintain the highest standards of integrity in
all of his representations with this court.”
38
194/22/2021
White Budd Van Ness P’ship v. Major-Gladys Drive Joint
Venture, 811 S.W.2d 541, 541 (Tex. 1991) (citations
omitted)
“On January 24, 1991, this Court overruled Petitioner's motion to
§ 3-501.1. permit a brief in excess of the page limit fixed by Rule 131(i) of the
COMPETENCE. Texas Rules of Appellate Procedure. Petitioner then submitted a
revised application; but because the application still did not comply
FOLLOW with the Rules of Appellate Procedure, the Court ordered the
COURT RULES application redrawn. Petitioner has since submitted another
redrawn application. Although the redrawn application technically
achieves compliance with the fifty-page limit, it does so only
through reduction of print size and diminution of margins,
rendering the application difficult to read. This violates the spirit of
[the rule], if not the letter of the rule. Because Petitioners' redrawn
application fails to conform to the requirements of Rule 131(i), Tex.
R. App. P., we strike Petitioners' Application for Writ of Error and
the same is dismissed.”
39
Kano v. Nat’l Consumer Co-op Bank, 22 F.3d 899, 899 (9th
Cir. 1994)
“The opening brief filed on behalf of appellant violated Fed. R. App.
32(a) in that the lines were not double-spaced, but were spaced only
§ 3-501.1. one-and-one half spaces apart. Furthermore, the footnotes were of a
COMPETENCE. typeface much smaller than that permitted by the rule, and contained
approximately eight lines per inch as opposed to six lines per inch in a
FOLLOW normal single-spaced format. We estimate that the opening brief was
COURT RULES the equivalent of at least sixty-five pages in length, far exceeding the
fifty-page limit.
“Counsel for appellant took full responsibility for the form of the brief.
However, it is apparent from the reply brief filed by counsel that he
knows what the spacing requirements are, even though the footnotes
in the reply brief also do not comply with Rule 32. Consequently, we
impose sanctions against counsel for the appellant in the amount of
$1,500.”
40
204/22/2021
U.S. v. Snider, 976 F.2d 1249, 1250 n.1 (9th Cir. 1992)
“We do not (except in the caption) follow the appellant's counsel's
interesting practice of writing the names of the people involved in
CAPITAL LETTERS. Neither do we follow the appellee's counsel's practice
of writing appellant's name in BOLD-FACED CAPITAL LETTERS.
§ 3-501.1. Nor do we intend to write all numbers both as text and numerals, as in
“eleven (11) loose teeth, two (2) of which were shattered[;] [m]oreover,
COMPETENCE.
her jaw was broken in three (3) places.” Appellee's Brief at 7. Finally, we will
also not
WRITING
“set off important text”
CLEARLY
by putting it on
“separate lines”
and enclosing it in
“quotation marks.”
See id. at 10. While we realize counsel had only our welfare in mind in
engaging in these creative practices, we assure them that we would have
paid no less attention to their briefs had they been more conventionally
written.”
41
In re Shepperson, 674 A.2d 1273, 1274 (Vt.1996)
“In June 1991, a justice of this Court not taking part in this decision filed
a complaint with the Board concerning the quality of respondent's legal
submissions. In March 1993, the Board and respondent entered into a
§ 3-501.1. remedial stipulation in which respondent agreed not to engage in the
COMPETENCE. practice of law while he completed a legal writing tutorial. The
stipulation provided that respondent would participate in periodic
WRITING tutoring sessions to develop skills in legal analysis, persuasive writing
CLEARLY techniques, writing organization, and use of legal authority, proper
citation form, and proper formatting for memoranda and briefs. At the
end of the tutorial program, which was to last for a minimum of six
months, respondent was to prepare a ten-page legal writing sample and
a self-written evaluation of his progress. Respondent was given until
September 1, 1993 to report on his progress with the tutor. On
September 15, 1993, respondent wrote bar counsel that he would not
be completing the tutorial, and that he had left the United States for an
indefinite period of time.”
42
214/22/2021
In re Shepperson, 674 A.2d 1273, 1274 (Vt.1996)
“A review of the exhibits in this case supports the [Professional
Conduct] Board's findings that respondent disserved his clients by
§ 3-501.1. preparing inadequate and incomprehensible legal briefs, in violation
COMPETENCE. of [the professional rule requiring competence]. Respondent's brief in
this matter is a further example of the deficiencies noted by the Board.
WRITING In over ninety pages, respondent fails to raise a legitimate legal issue or
CLEARLY cite a single authority in support of his arguments. The gist of
his harangue against the legal system is that the Board and this Court
have violated his freedoms of speech and religion and limited his ability
to think in diverse ways by dictating what is and what is not a proper
legal argument. If we were to accept this argument, it would preclude
any oversight of attorney competence in representing members of the
public. Respondent may represent himself as he pleases, but he cannot
be permitted to represent others in a manner that, under reasonable
and accepted standards, fails to safeguard his clients' interests.”
43
In re Shepperson, 674 A.2d 1273, 1274-75 (Vt.1996)
“[R]espondent's course of conduct in filing several
incomprehensible briefs over a period of seven years and his
§ 3-501.1. failure to follow through with the stipulated tutorial program
COMPETENCE. designed to improve his skills demonstrate his inability or refusal
to understand and apply fundamental legal doctrines and
WRITING procedures.”
CLEARLY • Suspended “until he can prove that he is fit to practice law.”
44
224/22/2021
From Judge Brian Quinn
“[T]he use of legalese or “six-bit” college words may help
convince your client that you are worth the hourly fee being
§ 3-501.1. charged, but it does not help win his case. Indeed, it actually
COMPETENCE. interferes in your communication with the court when the judge
is constantly shifting attention from the brief to either a
WRITING Webster's, Black's Law, or a Latin-to-English dictionary. I know
CLEARLY you received a high dollar education. Instead of trying to impress
me with some high-brow vocabulary, use your education to
figure out how to simplify what you are saying with plain
language. After all, the simpler you make it, the easier it is for me
to understand.”
45
QUESTIONS?
46
234/22/2021
IN ADDITION TO THE CASES AND RULES CITED,
ADDITIONAL AUTHORITIES INCLUDE:
• Brown, “Converting Benchslaps to Backslaps—Instilling Professional Accountability in New Legal Writers
by Teaching and Reinforcing Context,” 11 Legal Comm. & Rhetoric: JALWD 109 (Fall 2014).
• Fisher, “The Role of Ethics in Legal Writing: The Forensic Embroiderer, The Minimalist Wizard, and Other
Stories,” The Scribes Journal of Legal Writing 77 (2003-2004).
• Lebovits, “Legal-Writing Ethics, Parts I and II,” 77-OCT. N.Y. State B.J. 64 and 77-DEC. N.Y. State B.J.
(2005).
• R. Neumann & J. Entrikin, Legal Drafting by Design (Wolters Kluwer 2018).
• Quinn, ”Dispelling Misconception,” 62 Tex. B.J. 890 (1999)
• Schiess, “Ethical Legal Writing,” 21 Rev. Litig. 527 (Summer 2002).
47
24Two Ethical Legal Issues
in Two Hours
Recognizing Conflicts of Interest
Professor Craig W. Dallon
Friday, April 30, 2021
Webcast - ReplayThis page intentionally left blank.
4/22/2021
Recognizing Conflicts of
Interest
Craig W. Dallon
Professor of Law, Creighton University
May 30, 2019
4/22/2021 Nebraska State Bar Association 1
1
Conflicts of Interest
• Conflicts between current clients. Rule 3‐501.7, Rule 3‐501.8.
• Conflicts between current client and a prior client. Rule 3‐501.9.
• Personal conflicts. Rule 3‐501.7, Rule 3‐501.8.
• Imputed conflicts. Rule 3‐501.10.
• Conflicts for government lawyers. Rule 3‐501.11.
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§ 3‐501.7. Conflict of interest; current clients.
(a) Except as provided in paragraphs (b) and (c), a lawyer shall not
represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client;
or
(2) there is a significant risk that the representation of one or more clients will
be materially limited by the lawyer's responsibilities to another client, a former
client or a third person or by a personal interest of the lawyer.
4/22/2021 Nebraska State Bar Association 3
3
(b) Notwithstanding the existence of a concurrent conflict of interest
under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in the same
litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
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4
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Rule 3‐501.7 (c)
• Special exception for lawyer associated in a firm with another lawyer
who is serving as a county attorney. (New 2019 amendment.)
• Other lawyers in firm may:
• Represent client adverse to state before a tribunal in a separate county if:
• Reasonably believes can provide competent representation;
• Not prohibited by law;
• Not involve claim by one client against another client in same matter; and
• Client gives informed consent, confirmed in writing.
• State of Nebraska not required to consent.
• Member of firm who is county attorney is screened and receives no part of fee.
• Lawyer must provide notice to tribunal.
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5
Current clients – same matter
• Representation of clients in the same matter
• Ex Parte Osborn, 888 So. 2d 1236 (Ala. 2004) (disqualifying attorney
for conflict of interest where attorney for husband in divorce
subpoenaed wife’s records from agency represented by attorney’s
partner).
• Vinson v. Vinson, 588 S.E.2d 392 (Va. Ct. App. 2003) (court found
“gross conflict of interest” where attorney retainer indicated that
attorney represented both husband and wife in divorce; affirming
sanctions against attorney).
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6
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Conflicts among current clients
• Representation of clients in the same matter
• Directly adverse
• Co‐defendants
• Representation of clients in unrelated matters
• Representation of client in a matter where another client is a witness
• Representation of clients who are competitors in unrelated matters
(not usually a conflict)
4/22/2021 Nebraska State Bar Association 7
7
Current clients – related matters
• Representing current clients in related matters.
• In re Big Mac Marine, Inc., 326 B.R. 150 (B.A.P. 8th Cir. 2005)
(attorney who represented debtor’s principals in their individual
bankruptcies was disqualified from representing the debtor in
bankruptcy where debtor’s principals were debtor’s largest creditors).
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8
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Current clients – criminal co‐defendants
• “The potential for conflict of interest in representing multiple
defendants in a criminal case is so grave that ordinarily a lawyer
should decline to represent more than one codefendant. On the
other hand, common representation of persons having similar
interests in civil litigation is proper if the requirements of paragraph
(b) are met.” Neb. Ct. Rule 3‐501.7 cmt. 23.
4/22/2021 Nebraska State Bar Association 9
9
Current clients – unrelated matter
• Representing clients in unrelated matters.
• State ex rel. Nebraska State Bar Ass’n v. Frank, 631 N.W.2d 485 (Neb. 2001)
(sanctioning lawyer for representing worker’s compensation plaintiff
against employer’s insurer, while simultaneously representing employer’s
insurer in other matters).
• Southern Visions, LLP v. Red Diamond, Inc., __ F. Supp. 3d __ (N.D. Ala.
2019) (disqualifying plaintiff’s attorney in action against alleged patent
infringer where attorney represented alleged infringer in several unrelated
matters at commencement of patent action).
• Carnegie Cos., Inc. v. Summit Properties, Inc., 918 N.E.2d 1052 (Ohio App.
Ct. 2009) (disqualifying lawyer in litigation where different lawyer in same
firm represented adverse party in unrelated property acquisition).
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10
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Current clients ‐‐ witness
• The rule also prohibits a lawyer representing a client in one matter
from cross examining as a material witness a client from a different
matter. ABA Formal Ethics Op. 92‐367 (1992).
• United States v. Earley (S.D. W. Va. Aug. 15, 2018) (criminal defense
counsel disqualified where counsel represented doctor in criminal
“pill mill” case, while simultaneously representing other doctors (from
same clinic) in malpractice action who prosecution designated as
witnesses; held nonconsentable conflict; lawyers would have to
attempt to impeach witnesses).
4/22/2021 Nebraska State Bar Association 11
11
Current clients – transactional matters
• Representing different clients in a transactional matter may pose
conflict.
• Neb. Ct. Rule 3‐501.7, cmt. 7
• Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Wagner, 599
N.W.2d 721 (Iowa 1999) (suspending lawyer for, among other things,
representing both buyer and seller in real estate sales transaction).
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12
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Current client conflicts – estate planning
• Particular challenges in the estate planning area including:
• disclosures to multiple clients,
• representation of joint clients, and
• representation of a client at the request of another client to prepare a will or
trust.
• Lawyers frequently represent multiple members of the same family to
do estate planning. This may become a problem when a certain family
member has private information they want to keep from other family
members. This implicates the lawyer’s duty to keep client
confidences.
4/22/2021 Nebraska State Bar Association 13
13
A. v. B., 726 A.2d 924 (N.J. 1999)
• A husband and wife hired a firm to do their estate planning.
• After accepting the representation, the firm mistakenly accepted representation of a
woman in a paternity action against the husband.
• After discovering the mistake, the firm withdrew from representing the woman in the
paternity action. However, the firm knew that the husband in fact was the father of an
illegitimate child that the wife was unaware of.
• The husband did not want the firm to disclose the information to the wife.
• The lawyers felt they had a duty to the wife, as their client, to disclose the information,
which could impact the estate planning for the couple and in order to correct deception
by the husband to the wife in the estate planning process.
• The court held that the lawyer could inform the wife of the existence of the child, but not
the identity of the child.
• But see D.C. Bar Legal Ethics Op. 296 (2000) (lawyer may not reveal secret of joint client
to another joint client but must withdraw from representing both clients).
4/22/2021 Nebraska State Bar Association 14
14
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Presumptive beneficiary & testator
• In the case of a presumptive beneficiary who is a client of the lawyer in a
different matter, and the lawyer’s representation of the testator who
chooses to disinherit the beneficiary, the representation may be permitted.
See ABA Formal Op. 04‐434 (finding no conflict absent other facts).
• However, if the testator asks for the lawyer’s advice on whether to
disinherit the beneficiary, a conflict may arise. Id.
• One authority concludes, “Lawyers should probably avoid representing
both the testator and the beneficiary when the testator seeks to disinherit
the beneficiary.” See Ronald D. Rotunda & John S. Dzienkowski, Legal
Ethics: The Lawyer’s Deskbook on Professional Responsibility § 1.7‐6, at 411
(2017‐18).
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15
Estate & Beneficiaries
• A lawyer may have a conflict representing multiple clients such as the
estate (or fiduciary) and the beneficiaries. Cf. Baker Manock & Jensen
v. Superior Court, 96 Cal. Rptr. 3d 785 (2009) (no conflict where
attorney who drafted will represented both executor and beneficiary
against another beneficiary; plaintiffs’ interests were aligned, and
other beneficiary was not client).
• “Conflicts may also arise when a lawyer accepts a position as a
personal representative or trustee named in a will or trust the lawyer
prepared for the client.” Id.; see also ABA Formal Op. 02‐426.
4/22/2021 Nebraska State Bar Association 16
16
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Duties to former client
• Lawyer may represent a client against a former client if the matter is
not the same or substantially related to the matter in which the
lawyer represented the former client. Neb. Ct. Rule 3‐501.9 (a).
4/22/2021 Nebraska State Bar Association 17
17
Conflicts based on duty to former client
• Neb. Ct. Rule 3‐501.9
• If adverse, cannot represent a client in:
• same, or
• substantial related matter
• Unless consent
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18
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Substantially related
• “Matters are ‘substantially related’ for purposes of this Rule if they
involve the same transaction or legal dispute or if there otherwise is a
substantial risk that confidential factual information as would
normally have been obtained in the prior representation would
materially advance the client’s position in the subsequent matter.”
Neb. Ct. Rule 3‐501.9, cmt. 3.
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19
Waiver of conflicts
• Many conflicts may be waived by the clients but require informed
consent, in writing. Neb. Ct. Rule 3‐501.7 (b)(4).
• “Ordinarily, clients may consent to representation notwithstanding a
conflict.” , Neb. Ct. Rule 3‐501.7, cmt 14.
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20
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consent
• Some conflicts are nonconsentable.
• Lawyer can’t provide competent and diligent representation to clients
• Prohibited by law
• Assertion of a claim by one client against another in the same
litigation/tribunal
• Can’t get informed consent due to duty of confidentiality
4/22/2021 Nebraska State Bar Association 21
21
Personal conflicts
• Lawyer’s own conduct in transaction at issue
• Lawyer’s own related business interests
• Lawyers related by blood or marriage to each other
• “Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or
spouse, ordinarily may not represent a client in a matter where that lawyer is
representing another party, unless each client gives informed consent.” Neb.
Ct. Rule 3‐501.7, cmt. 11.
• Lawyer’s relationship to party or witness
• Lawyer’s professional relationship to another lawyer
• Lawyer’s duty to a nonclient
4/22/2021 Nebraska State Bar Association 22
22
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Knutsen v. Foster (Cal. Ct. App. Aug. 8, 2018)
• Reinstating $600,000 jury verdict for plaintiff in legal malpractice
action against lawyer.
• Plaintiff decided to swim professionally, hired lawyer who was well‐
connected to aquatics industry and had personal ties.
• Lawyer did not tell plaintiff of his conflicts.
• During negotiations he told opposing party that he didn’t want to get
involved in litigation against them because he had “too many friends”
there.
• Lawyer shared client confidential info.
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Personal conflicts – financial interests
• Lawyer shall not enter into a business transaction with a client unless
certain (strict) requirements are met. Neb. Ct. Rule 1.8(a).
• Exception for standard commercial transactions on the same terms as
offered to the public. Cmt. 1.
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