ABA Formal Opinion –

95-397 – Duty to Disclose Death of Client

• When a lawyer's client dies in the midst of settlement negotiations of a pending
lawsuit in which the client was the claimant, the lawyer has a duty to inform
opposing counsel and the court in the lawyer's first communication with either
after the lawyer has learned of that fact.

95-396 – Communications with Represented Persons

• Rule 4.2 prohibits a lawyer from knowingly communicating with a represented
person about the subject matter of the representation w/o the consent of that
person’s lawyer

94-383 – Use of Threatened Disciplinary Complaint Against Opposing Counsel

• Such a threat may not be used as a bargaining point when the subject misconduct
raises a substantial question as to opposing counsel’s honesty, trustworthiness or
fitness as a lawyer

94-384 – Withdrawal by Lawyer Against Whom Opposing Counsel has Filed a Disciplinary
Complaint
• Not required

01-421 – Ethical Obligations of a Lawyer Working Under Insurance Company Guidelines

and Other Restrictions
• Lawyer must not permit compliance with “guidelines” of an insurer relating to the
lawyer’s services to impair materially the lawyer’s independent professional
judgment in representing an insured

07-446 – Undisclosed Legal Assistance to Pro Se Litigants

• A lawyer may provide legal assistance to litigants appearing before tribunals “pro
se” and help them prepare written submissions w/o disclosing or ensuring the
disclosure of the nature or extent of such assistance

00-418 – Acquiring Ownership in a Client in Connection with Performing Legal Services

• MRPC do not prohibit a lawyer from acquiring an ownership interest in a client as
long as the lawyer complies with Rule 1.8(a) governing business transactions with
clients and Rule 1.5 requiring that a fee for legal services be reasonable

02-425 – Retainer Agreement Requiring the Arbitration of Fee Disputes and Malpractice
Claims
• Permissible in a retainer agreement to have a provision that requires a binding
arbitration of disputes concerning fees and malpractice claims
• Client must be informed of advantages/disadvantages of arbitration

97-408 – Communication with Government Agency Represented by Counsel

• Rule 4.2 permits a lawyer representing a private party in a controversy with the
govt to communicate about the matter with govt officials
• …if the sole purpose is to address a policy issue, including settling the controversy

92-362 – Contact with Opposing Party Regarding Settlement Offer

 • Lawyer who makes an offer of settlement may not inquire whether the offer has
been communicated to the offeree party under Rule 4.2

Informal Opinion –

1470 - Duty of a Lawyer to Inquire into Fraudulent or Criminal Conduct and Disclose Past
Activities of a Prospective Client
• Lawyer should not undertake representation w/o making further inquiry if the facts
presented by a prospective client suggest that the representation might aid the
client in perpetrating a fraud or crime
Cases –

Alexander v. Jesuits of Missouri –

• P’s counsel served subpoena on nonparty witness
• Conduct of counsel scheduling a deposition at 8am 60 miles away from witness’s
home was for the sole purpose of harassing the witness; imposed undue burden;
violated rules of professional conduct

In re Adoption of Baby Girl T –

• Birth mother moved to revoke her consent to child’s adoption
• Attorney’s dual representation of both birth mother and prospective adoptive
parents did not render birth mother’s consent to adoption invalid

In re Friesen –
• Attorney negotiating and accepting a settlement, w/o authorization and after client
had directed dismissal of her personal injury action, and asking if client would
accept $500 when attorney had negotiated a $2400 settlement warranted
published censure

In re Bryan –
• Attorney impermissibly disclosed confidences of former client
• Public censure was warranted as disciplinary sanction

Holdren v. General Motors –

• GM employee brought age discrimination action against his employer
• Attorney violated rule prohibiting lawyer from violating rules of professional
conduct “through the acts of another” by encouraging employee to obtain
affidavits from coworkers
• Protective order was appropriate remedy for attorney’s violation

Commonwealth v. Mrozek –
• Inculpatory statement D made to his attorney’s secretary was privileged

Kobluk v. U. of Minnesota –
• Professor brought action requiring university to produce 2 drafts of letter in which
university conveyed its decision to deny the professor tenure
• The preliminary draft of letter were protected by Attorney-Client Privilege
Hickman v. Taylor –
• Ds and their attorney guilty of contempt for refusal to answer an interrogatory