①THE DUTY OF CONFIDENTIALITY  to the CLIENT①
General rule: A lawyer shall not reveal information relating to the representation 
of a client unless the client gives informed consent in writing.  Rule.1.6(a)
the disclosure is impliedly authorized in order to carry out the representation.
Scope  The duty of confidentiality applies regardless 
1) whether the client requested it be kept “confidential” or 
2) whether its revelation might harm or embarrass the client.
Timing – Before : Duty can attach before a lawyer-client relationship is formed, 
even if the relationship was never formed.
Rule 1.18 : Duties To Prospective Client
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
≒who consults a lawyer for the purpose of retaining or seeking legal advice 
or services
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned 
information from a prospective client shall not use or reveal that information, 
except as Rule 1.9 (下記例外) would permit.     ensue=結果として起こる
Barton v. US (9th Cir 2005) 
ネットアンケート調査でattorney-client relationshipは生じないに☑しても  prospective clientとして勧誘されていると考えて合理的としてprivilegeを認定
Ca comment 2 弁護士が拒絶してからの説明や弁護士受任の合理的期待のない一
方的情報提供は含まれない.
             After　: Duty apply indefinitely
Source         – Source of information does not matter, it can be from client, agent or third party.
例：パーティーで銀行から聞いた顧客の倒産情報でもrelating to the representationである
限り開示できない ∵ソースは問わない。秘密として開示される必要もない。　　　　　　　　　
	Exceptions. 
1. Consent. If the client consents after consultation, a lawyer may reveal otherwise confidential information.  CA must be in writing. 
※ Lawyers in a firm may, …disclose to each other …unless the client has instructed that particular 
information be confined to specified lawyers. (注釈5)
2. Crimes.  
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
a. to prevent reasonably certain death or substantial bodily harm; 1.6(b) (1)
    comment[16]   Where practicable, the lawyer should first seek to persuade 
the client not to commit the act.
                  ※ “Substantial”, “Imminent” is not required. 
CA shall inform the client…of the lawyer’s…decision to reveal information. 
b. to prevent or mitigate substantial financial loss if the client has used or is 
using lawyer’s services to commit a crime or fraud.               1.6(b) (2) (3)
CA has no exception to confidentiality for financial crimes.
例: 依頼者が誤って上水道に有毒な廃棄物を流出させてしまったことを知った場合aによ
り当局に公表可能 (注釈6)
※ If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this 
information, the lawyer shall not fail to do so. (4.1注釈2) 
   ※ 一般的な義務はない, but may be liable for tots, like Tarasoff. 
3. Defending yourself.
May reveal information necessary to establish claims and defenses, 
when 1) being sued for malpractice, 2) defending a disciplinary action, or
3) a client refuses to pay.
4. If compelled by law, other controlling ethical duties, or final court order.
・開示命令に対して保護のためあらゆる主張を行うべきであるが，再審査を求めるのでない限り
裁判所の命令に従うことは許容される。 (注釈13)
・privilegeと異なりsubpoenaed to testifyされれば拒否はできない。
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized 
disclosure of…information relating to the representation of a client.
Compare to attorney-client privilege 
Source　　　　　– A/C source is narrow and allows a client and his lawyer to refuse to testify 
about confidential communications between them or their agents.  
※ inadvertent disclosureはreasonable stepsを取っていれば特権消滅しないがmajority
Subject – A/C subject is narrow and only pertains to legal services, not subjects like business tactics or political consequences.
Timing – Duty of confidentiality continues indefinitely (continues after death).
CA A/C terminates when the client’s estate is settled. (Evidence Code)
U.S. v. Alexander (9th Cir. 2002) - threats 
　弁護士が法廷で被告人（前依頼者）に脅迫を受けたことがあると証言
COURT: Communications only protected if they were made "in order to obtain legal advice." 
Threats don’t count. 

②THE DUTY OF LOYALTY（Conflict of Interest）to the CLIENT②
A lawyer has a duty of loyalty to his or her client. 
1  Concurrent Conflict of Interest :Rule 1. 7(a)　 CA 2018.10新ルールから同一に
※(1)(2)ともにactual conflictが要件.ハードルはそれなりにある.
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.
(1) Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the 
lawyer represents in some other matter, even when the matters are wholly unrelated.
注釈６ (1)関係　
①: 依頼者を反対尋問する可能性があればdirectly adverse
A directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.  
②: 単なる経済的利害対立は原則conflictなし
On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest.  
売主・買主の双方代理はdirectly adverse
…Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is 
asked to represent the seller of a business in negotiations with a buyer represented by the 
lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.　
注釈６ (2)関係　
ジョイントベンチャーにつき関係者全員受任はrisk of material limitationあり
For example, a lawyer asked to represent several individuals seeking to form a joint venture is 
likely to be materially limited in the lawyer's ability to recommend or advocate all possible 
positions that each might take because of the lawyer's duty of loyalty to the others. 
             結局同意が必要か = significant riskあるは，どの程度の可能性があるのかという問題
The mere possibility of subsequent harm does not itself require disclosure and consent. 
The critical questions are the likelihood
CA Potential conflictsでも一部written disclosureが必要　 Rule 1.7(C)
Even when a significant risk..,is not present, a lawyer shall not represent a client without written disclosure of the relationship to the client and compliance with paragraph (d) where:
(1) the lawyer has, (or knows that another lawyer in the lawyer’s firm has,) a legal, 
business, financial, professional, or personal relationship with or 
responsibility to a party or witness in the same matter; … 以下は親族等問題
  例：ディズニーランドの年間無料パスポートを持っている弁護士がディズニーランドを訴えられるか
significant riskは通常ない　　 → OK
CA financial relationshipはありpotential conflictはある→ written disclosureが必要　
例：反保険会社協会の理事が保険会社を代理できるか　July 2011
Significant risk that the representation is materially limited by the lawyer’s personal 
interestの問題→通常はある
例：注釈10: 相手方の法律事務所への就職検討 
→ personal interest of the lawyerによるsignificant riskはあり得る。　
Exception  Rule 1. 7(b)  ※ directly adverseでもsame litigationでなければＯＫ
Notwithstanding the existence of a concurrent conflict of interest,  
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) each affected client gives informed consent, confirmed in writing; AND
CA informed written consentが必要　×informed consent confirmed in writing
3) the representation does not involve the assertion of a claim by one client against 
another client in the same litigation or other proceeding. 
※ informed consent       = agreement to the representation following written disclosure
※ confirmed in writing. =    当事者の署名は必ずしも必要で無い。
例：document that the lawyer promptly records and transmits to the 
client following an oral consent. (1.7注釈10).
writing includes electronic transmission : Rule 1.0(n).　
例① Representation of opposite sides of the same matter
→Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, 
regardless of the clients' consent. (1.7注釈23)
② Representation of a person opposing present client’s interests.
ABA rules do NOT prohibit, but it is rarely reasonable. 
CA statutory exception 
does NOT extend to representing a policy holder and his insurance company as joint clients, where the insurer's only interest in each matter is as an indemnity provider.
③ Representation of Two clients with inconsistent positions.
OK in general, but if either would be disadvantaged ⇒ the lawyer must withdraw.
④ Representation of Multiple clients in the same matter.
Rule 1.7通り: 基本的にはsignificant riskあり→reasonable beliefとconsent必要Reasonably belief 
→A lawyer may represent clients with potential conflicts, but the representation 
is almost never be proper if the client’s interests are in actual conflict. 
[1.7注釈29] a lawyer cannot undertake common representation of clients where contentious 
litigation or negotiations between them are imminent or contemplated(予期される).
Informed consent  秘密保持特権がないこと，対立が生じたら辞任することの説明必須
→The clients must be informed that if litigation arises between them regarding the matter, 
a) neither of them can claim the attorney-client privilege for their communications with that lawyer. 
Therefore, the lawyer should ordinarily make clear to all clients at the outset that whatever one client discloses will be shared with all of the other clients. 
b) 下記辞任条項
→If the potential conflict eventually ripens into a present direct conflict,
the lawyer must advice & withdraw. 
Hot potato Rule: The lawyer may continue to represent one consenting client, but only if the client who is dropped provides informed consent, confirmed in writing.
Common examples
- Insured and insurance company
- A corporation and any of its directors, officers, employees, or shareholders 
- Both spouses in a divorce or will
※ Representation of Multiple clients in the same Criminal Litigation
The Sixth Amendment guarantees every criminal defendant the right to 
    effective assistance of counsel. 

Because the interests of criminal co-defendants are very likely to diverge, ordinarily such representation impedes 6th Amendment guarantee of effective assistance of counsel.  
Lettley v. State, 746 A.2d 392 (Md. 2000)
二人の依頼者の一人が殺人事件の被告人で他方の依頼者が真犯人と自白すれば辞任しかない。∵機密保持義務に違反しなければ十分な同意が得られないのであれば代理を受けることはできない。
Imputed disqualification (1.10 Imputation Of Conflicts Of Interest) ※同僚を忘れるな
While lawyers are associated in a firm, none of them shall knowingly represent a client 
when any one of them…would be prohibited from doing so by conflict of interest, 
※ including any group of lawyers that work closely or share responsibilities
(private firms, government agency offices, corporate law departments.) 
・同一事件を受任し，機密情報を交換してれば“firm”に当たる。
unless the conflict 
1) arises from a purely personal relationship and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers, or
         2) arises out of the disqualified lawyer’s association with a prior firm and
a) the disqualified lawyer i) is timely and effectively screened (=“ethical wall”), and
ii) receives no part of the fee, AND
b) written notice is promptly given to any affected former client. 
※1.7注釈13:　　Where one lawyer in a firm could not effectively represent a given client because of 
strong political beliefs → 普通は他のメンバーは欠格とされない
※1.7注釈10: personal interest conflicts ordinarily are not imputed to other lawyers in a law firm.
しかし，影響の強いシニアパートナーのpersonal interestであれば及び得る
※1.6注釈11:　密接な家族関係から生じる欠格は個人的なものであり他の構成員に及ばない
CA follows these rules for disqualification, but does not subject a lawyer to discipline for 
imputed conflicts under its ethical rules.　改正された？
事後的事情  
If conflicts emerge only after representation begins, disclose potential and actual conflicts as they arise, get further consent, and withdraw if consent is not reasonable.
Remedies: (depends on the posture of the case, but consider): 
①Refuse to take the case ②advise multiple clients to get separate counsels; and/or ③withdraw 
2 Former Clients (New clients in matters related to former clients’ matters.)
If confidential information from another client might be relevant to work on a new client’s matter, a lawyer may be violating one’s duty of confidentiality as well as one’s duty of loyalty to one’s former client. 
Rule 1.9 - Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent 
another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, 
unless the former client gives informed consent, confirmed in writing. CA written consent
※過去の依頼者と利益相反する場合，現依頼者・過去依頼者双方の義務違反が問題となるので別個に検討する必要がある。
コメ　Matters are "substantially related" for purposes of this Rule … if there otherwise is a substantial risk that confidential factual information …would materially advance the client's position in the subsequent matter.
(b) Imputed Disqualification :1-9(b)
A lawyer shall not knowingly represent a person in the same or a substantially related 
matter in which a firm, with which the lawyer formerly was associated, had previously 
represented a client  
a) whose interests are materially adverse to that person; and
b) about whom the lawyer had acquired confidential material information. 
　　　　　　注釈５：弁護士の移動を保護する必要性。
disqualify the lawyer only when the lawyer involved has actual knowledge.
Nissan Motor Corp. v. Orozco, (Fla. Dist. Ct. App. 1992)
The Schlesinger law firm in Nissan Motor Corporation v Orozco had hired Paul 
Buechele. His prior firm had represented the defendant in the same case,
同弁護士がconfidential material informationを受領していれば，他の弁護士も代理不可
(c) A lawyer cannot use or reveal confidential information against a former client.  
※ 改正により依頼者の利益を害さなければ自己の利益に用いることは明文の禁止事項でなくなった。
Former government lawyer now in private practice
ABA Rule 1-11(a)
If the government lawyer worked “personally and substantially” on a “matter”, 
→then it would be a conflict to work on the same “matter” later in private practice.
unless the government gives its informed consent, confirmed in writing.
Note: “Matter” is narrowly defined. 
i.e., a specific dispute between specific people over specific issues. 
             Essay Tip: Matter要件とpersonally and substantially要件を別に論じる。
具体的紛争なければMatterなし. Matterあっても個人的関わり少なければＯＫ
※ 別にduty of confidentialityも別に論じる!　　　　　　　　　
例：湿地保護立法に関わった弁護士が同立法に基づく規制の無効を訴える訴訟を提起できる？
　　　　           Researching and drafting legislation does not constitute a “matter” →その点ではＯＫ
But, a lawyer can’t use information relating a representation→有意義情報を有していれば代理不可
                例：assistant prosecutor時代にいた事務所で取調べが行われていた被疑者の弁護できるか
　　　　　　　　　　→personally and substantiallyでないのでＯＫ.exploiting knowledgeの恐れが最大の考慮要素
Exception: An arbitrator selected as a partisan of a party in a multimember arbitration panel 
is not prohibited from subsequently representing that party.
Imputed disqualification 1-11(b) (1-10とほぼ同じ)
Other firm's lawyers may represent client if:
1) the disqualified lawyer is timely and effectively screened, and
2) receives no part of the fee, AND
3) written notice is promptly given to the appropriate government agency.
※ Same rule applies to Judicial officers other than attorneys.
1-11(d) 政府で勤務したlawyerは当事者として関係した者に雇用を求めてはいけない。
1-12   　裁判官なども同様A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. 
3 Conflicts between lawyer and client.
1. Interest in the subject of litigation. 
A lawyer shall not acquire a proprietary interest in the subject matter of litigation.
Exceptions: (a) acquire a lien to secure the lawyer’s fee, 
(b) work on a contingent fee basis.                   1.8(I)
2. Business transactions or adverse interests. 1.8(a) 覚え方：first discuss over coffee
A lawyer shall not enter into business with a client or obtain an interest adverse to a client
unless: (1)  (a) the …terms are fair… to the client, and 
(b) are fully disclosed …in understandable writing,
(2) the client ..is given a reasonable opportunity to consult an outside lawyer, 
and (3) the client gives informed consent, in a writing signed by the client.  
1.8注釈: The Rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others, for example, banking or, medical services,
※ There is no automatic bar to serving on a Board of Directors of a corporate client, 
but it is strongly discouraged, as it is likely to compromise duties of confidentiality 
and loyalty.
※ Be particularly cautious if the investment is by individual firm members, as that might 
distort the firm’s advice to the company 例えば株価が下がるアドバイスを弁護士ができなくなる
3. Publication rights contracts. 1.8(d)
       ・Under ABA rule, the lawyer may not contract for his publication right prior to the conclusion of representation.
Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
・CA case law discourages contracts before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents. 
(CA is Hollywood,so more liberal rule!) 新規則で変更無し
4. Loans and advances to your client.  1.8(e)　 1.8注釈10: 保証人になることも禁止
A lawyer shall not provide financial assistance to a client in connection with 
pending or contemplated litigation,
except that: 
1) a lawyer may advance court costs and expenses of litigation, the repayment of 
which may be contingent on the outcome of the matter (成功報酬ケース)  
2) a lawyer representing an indigent client may pay court costs and expenses of 
litigation on behalf of the client.　
　　　　CA 1.8.5 exception 上記1)2)に追加して
A lawyer may 
3) pay or agree to pay such expenses to third persons, from funds collected or to be 
collected for the client as a result of the representation, with the consent of the client;
　         4) after the lawyer is retained by the client, agree to lend money to the client based on the 
client’s written promise to repay the loan, provided the lawyer complies with rules 
1.7(b), 1.7(c), and 1.8.1(business transaction) before making the loan or agreeing to do so; 
5. Limiting liability.  1.8(h)
A lawyer shall not: 
1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice 
unless the client is independently represented in making the agreement; 
2) settle a claim for such liability with an unrepresented client or former client 
unless that person is advised in writing to consult an independent lawyer first.
※ A lawyer shall not limit his client’s right to report the lawyer for ethical or other 
professional violations. 
          例：弁護士の仕事へのクレームは10日以内にしないといけないという条項は実質的な責任制限と
して６か月のsuspension (Iowa 2007)
※ 社内弁護士がいる会社はrepresentedなので，同社相手に責任制限特約を結べる。
6. Use of information. 
1.8(b) A lawyer shall not use information relating to representation of a client to the 
disadvantage of the client unless the client gives informed consent.
→it violates the duties of both loyalty and confidentiality. 
1.8注釈5: The Rule does not prohibit uses that do not disadvantage the client. For example, a 
lawyer who learns a government agency's interpretation of trade legislation during the 
representation of one client may properly use that information to benefit other clients.
7. Gifts to the lawyer or lawyer’s family. 
A lawyer shall not 1) solicit any substantial gift from a client,…or
2) prepare … an instrument giving the lawyer or a person related to the 
lawyer any substantial gift.
　　　　　 unless the lawyer or other recipient of the gift is related to the client. 
1.8注釈8:自己を遺言執行者に指名させようとすることを禁じてはいない。但し一般的利益相反恐れはある
CA only prohibits inducing the gift, not drafting the instrument.　　
8. Close relationships with the lawyer for the other side. 
A lawyer can’t oppose a party represented by a close relative without informed client 
consent. (明文規制無し, conflict of interest一般で規制)
※“Close relative” include: immediate family, i.e. the spouse, parent, child or sibling.
           1.7 comment11 When lawyers representing different clients in the same matter or in     
              substantially related matters are closely related by blood or marriage, there may be   
              a significant risk that client confidences will be revealed and that the lawyer's family 
              relationship will interfere with both loyalty and independent professional judgment.
CA  Rule 1.7(C) (2)
 Even when a significant risk..,is not present, a lawyer shall not represent a client 
 without written disclosure of the relationship to the client and compliance with 
 paragraph (d) where:
 the lawyer knows or reasonably should know that another party’s lawyer 
a) is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, 
b) is a client of the lawyer or another lawyer in the lawyer’s firm, or 
c) has an intimate personal relationship with the lawyer.
Extends the rule to any intimate relationship, e.g., the lawyer is your client, two lawyers live together, two lawyers have an intimate relationships. ボーインフレンド，ガールフレンド
9. Trial counsel as a necessary witness.  3.7 Lawyer As Witness ※通常利益相反も同時に問題
The general rule is a lawyer cannot serve as counsel and witness in the same trial. 
Lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness
unless:
(1) the testimony relates to a) an uncontested issue or, b) the nature and value of legal services
(2) disqualification of the lawyer will cause substantial hardship to the client.
例：ある遺言の証人になった弁護士は，争いが相続人間で遺言作成前の詐欺行為だけであれば同遺言の執行者にな
れる。∵予想される証言は争いのないexecution of willに関してだけだから 
       CA 3.7 (1)or the lawyer has obtained informed written consent from the client. (2)例外なし
    →もっともmisleadingなどを理由に裁判所は自由に証人請求を却下できる。
４ Conflicts due to Third Party interference. 
General rule: The lawyer’s sole duty is to his or her client, not to any 3rd party.
Compensation 1.8(f)
A lawyer shall not accept compensation for representing a client from one other than the client, 
unless: 1) the client gives informed consent;  CA must be in writing 1.8.6(b)
2) there is no interference with the lawyer's independence of professional judgement 
or with the client-lawyer relationship; and
3) the arrangement does not compromise the client’s confidential information.
例：実質利害対立がある原告３人からの受任で一人からお金もらうのは3)違反の可能性大
「私がお金出すからＡの代理をして!」→本項問題とともに，conflict of interestsが通常問題になる
Organizational clients. 
A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.
The Sarbanes-Oxley Act of 2002 
If an Attorney discovers violations of securities laws he: 
① First, MUST report the matter to the CEO or Chief Legal Counsel.  
② If they do NOT respond, MUST go to the Board or highest authority in the company
③ If lawyer reasonably believes necessary to prevent fraud or substantial injury to the organization or investors, or if his services were used, 
→he may disclose confidential information to the SEC without client consent.
ABA – mandates "reporting up" and permits limited "reporting out"
Rule 1.13　
 (b) If a lawyer for an organization knows that an officer, employee or other person … is 
engaged in action…that is a violation of a legal obligation to the organization,… and that is likely to result in substantial injury to the organization, …the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority…
(c) (1) despite the lawyer's efforts …the highest authority …insists upon or fails to 
address in a timely and appropriate manner an action, or a refusal to act, that is 
clearly a violation of law, and (2) the lawyer reasonably believes that the violation is 
reasonably certain to result in substantial injury to the organization, then the lawyer 
may reveal information relating to the representation… 
　例：消費者に不利益な条項を発見した弁護士は消費者庁に訴えられるか
ABA : reasonably believe reporting is necessary to prevent substantially injury が要件
　　　　　　　　　　　　　　　 →そこまでの必要性ないからdisclose 禁止
　　CA  – permits "reporting up"(not compulsory) and prohibits "reporting out"; 
New Rule 1.13 mandates reporting up, and permits “reporting out” 
　　　
③ FINANCIAL DUTIES TO YOUR CLIENT  to the CLIENT③
Attorney fees
Fee agreements should be reached early and clearly.
In non-contingent fee cases, agreements should include:  1.5(8)(b)
1) The scope of the representation 
2) the basis or rate of the fee 3) expenses for which the client will be responsible
→shall be communicated to the client, preferably in writing, before or within a reasonable time 
after commencing the representation,  ※仕事始めてから合意でも多少の遅れはOK
except when the lawyer will charge a regularly represented client on the same basis or rate. 
CA agreements must be in writing  (ABA=should) 
unless i) the fee is under $1000,                       ii) it is with a corporate client, 
iii) it is for routine services for a regular client, iv) it is an emergency or impractical.
1.5. comment5→Business and Professions Code 6147.6148 
In contingent fee cases: 1.5(8)(c)
A contingent fee agreement shall be in a writing signed by the client and contain:
(the method of calculating the fee)
		1) the percentages that shall accrue to the lawyer	
2) expenses are to be deducted from the recovery; AND
		3) whether such expenses are to be deducted before or after the contingent fee is calculated
Types of actions allowing contingent fees.
ABA contingent fees may not be used in criminal or domestic relations cases. 1.6(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is 
contingent upon the securing of a divorce or upon the amount of alimony or 
support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
comment [4] 
a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) 
because such fees often have the essential qualities of a business transaction with the client.
comment [6]
This provision does not preclude a contract for a contingent fee for legal representation in 
connection with the recovery of post-judgment balances due under support, alimony.
CA 同様の規定に改正：1.5(c)
Termination before judgment is awarded.
Quasi Contract –the attorney can recover reasonable fees in proportion to the 
work performed (Unjust Enrichment= quantum meruit)
CA  allows charging liens to guarantee collection from an award to be written 
into contingency agreements, but not in hourly fee agreements.
When are fees too high?  rule1.5
ABA Rule: Fees must be reasonable, taking into account the totality of circumstances.
①labor ②novelty＆difficulty ③skill ④timing required ⑤result obtained 
⑥the experience of and other demands on the attorney, etc. 
CA Rule          : Fees must not be unconscionable.  1.5(a)
          →上記事情だけでなく,disclosure of material fact, the relative sophistication等
が条文上考慮要素
 ※Arbitration ABA   encourage
CA  　　　　requires a lawyer to agree to submit to arbitration if the client wants.
Fee splitting. Focus on the party/entity with whom the lawyers are sharing fees:
Fee splitting with lawyers 
Inside    It is generally OK to split fees with other lawyers in your law firm.
Outside1.5(e)  A division of a fee between lawyers who are not in the same firm may be 
made only if:
(1) the division is a) in proportion to the work performed by each lawyer or 
b) each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will 
receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
CA does not require proportionality. Pure referral fee is OK  Written, Written, Total Fee
　　1.5.1 1) a written agreement to divide the fee.    
2) the client consented in writing. (ID of lawyers and terms of division)
3) the total fee is not increased solely by reason of the agreement to divide fees.
     Unlike the old rule, the client must consent in writing when the lawyers reach 
their fee sharing agreement, “or as soon thereafter as reasonably practicable.”    
※外部弁護士に協力してもらう場合には,そもそもsplit of feeの問題なくてもinformed consent　　が必要1.1注釈6：Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.  
1.5 (d) “Non-refundable” = OK if it is true retainer and agreement is in writing.           　　　
Fee splitting with non-lawyers is generally not allowed. 
A lawyer or law firm shall not share legal fees with a nonlawyer, except that: 
1) Death benefits paid to a deceased lawyer's firm or heirs for his work                                                                     5.4(a)(1)
2) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, 
even though the plan is based in whole or in part on a profit-sharing arrangement  5.4(a) (3)
3) A lawyer may also share court-awarded legal fees with a non-profit organization 
that employed, or recommended the lawyer in the matter.                    5.4(a) (4)
(2)の通説的解釈：事務職員にa bonus based on the firm’s profitsはＯＫ,a bonus 
based on fees the firm receives from a specific caseはダメ。事件ごと特別賞与は禁止
収入に応じた賞与はＯＫ:年末大きな売上があったので賞与を弾むのはＯＫ
In re Poff (2011): 300＄の報酬を得るたびに５＄を支払うという合意は違反
       Referral fees are not allowed under the ABA Rules.  広告規制の中にある規定
A lawyer may enter a reciprocal referral arrangement with a non-lawyer professional or another lawyer, provided it is not exclusive and you explain the arrangement to the client at the time of the referral
             ↓多くのoutline(4)以外は省略 Ca new rule is the same
7.2(b): A lawyer shall not give anything of value to a person for recommending the 
lawyer's services except that a lawyer may
(1) pay the reasonable costs of advertisements …permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or 
qualified lawyer referral service.注釈(6):弁護士紹介広告媒体に通常の費用払うのはOK
(3) pay for a law practice in accordance with Rule 1.17(sales of law practice); and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an 
agreement not otherwise prohibited under these Rules that provides for the 
other person to refer clients or customers to the lawyer, if
(i)  the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
  ※a reciprocal referral arrangement 
Except as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or 
nonlawyer professional must not pay anything solely for the referral, 注釈8
・Lawyerの紹介に基づく報酬分配はrule1.5(e)の連帯責任等の３要件満たせばそもそもＯＫ。
7.2(b)は1.5(e)との関係に言及なし
※A legal service plan is a prepaid or group legal service plan or a similar delivery 
system that assists people who seek to secure legal representation. 注釈6
Sale of a law practice: 
A law practice may be sold if 
(a) The seller ceases to engage in the private practice of law, or in the area of practice 
that has been sold, [in the geographic area] [in the jurisdiction]…
(b) The entire practice, or the entire area of practice, is sold to one or more lawyers or 
law firms;
(c) The seller gives written notice to each of the seller's clients …
Partnership with non-lawyers in providing legal services. 
5-4(b): A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. 
Nonlawyers cannot be partners, shareholders, officers of a corporation or association to 
practice law for a profit, or control or direct a lawyer’s professional judgment.
※：弁護士に指示・命令をしなくても所長弁護士の妻をvice-presidentにはできない
5.7: A lawyer shall be subject to the Rules of Professional Conduct with respect to the 
provision of law-related services if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's 
provision of legal services to clients; or
(2) … by an entity controlled by the lawyer …if the lawyer fails to take reasonable 
measures to assure that a person obtaining the law-related services knows 
that the services are not legal services and that the protections of the 
client-lawyer relationship do not exist.
※“law related services”= that might reasonably be performed in conjunction with the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a nonlawyer. Examples of law-related services include financial planning, accounting, trust services, real estate counseling, and tax return preparation.
Client trust accounts.
1 . A lawyer has a duty to safeguard his client’s property by labeling and storing 
it in a safe place. (such as an office safe or bank safe deposit box.)
2 . Money held for the client must be placed in a client trust account. 
A lawyer shall deposit into a client trust account legal fees and expenses that have 
been paid in advance, to be withdrawn by the lawyer only as fees are earned or 
expenses incurred.  1-15(c)
・No borrowing or commingling of funds with your personal money. 
  Once the funds were identified as belonging to the lawyer (i.e., the funds were earned), 
they should have been removed from the client account. 
(月額タイムチャージ決まったら，入れっぱなしにせず，口座移動が必要)
・Interest belongs to the client in an interest bearing trust account.
New rule 1.15 requires that “all funds received or held by a lawyer or law firm for the benefit 
of a client” be deposited into a client trust account in CA.
Under the old rule, advances for fees (as opposed to costs) don’t have to be in the trust account. 
The new rule has a limited exception for flat fees paid in advance: if the client consents after 
disclosure, that fee may be deposited into the lawyer’s operating account.
3 . Smaller funds held for a short period of time for several clients can be deposited 
into a "pooled client trust account."  ※ Must be a checking account
※Interest:①first→the bank service charges, ②the remainder→the State Bar to fund legal services
4. Disputed claim for fees or lawful claim over the client's funds or property in custody, 
the lawyer must withhold the disputed portion in the client trust account until resolution.
Rule 1.15(e) When a lawyer is in possession of property in which two or more persons 
(one of whom may be the lawyer) claim interests, the property shall be 
kept separate …until the dispute is resolved. 
注釈4: Paragraph (e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer's custody, such as a client's creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty to protect such third-party claims against wrongful interference by the client. In such cases…the lawyer must refuse to surrender the property to the client until the claims are resolved. 
    ※財産に対するlawful claimが必要「借金を返さないから，依頼者に渡すな」ではダメ
5. A lawyer has a duty 1) to keep good records for the lawyer’s client,
2) to render accountings, notify him of moneys received on his behalf, 
and pay promptly money due to him. 
CA requires a lawyer to keep records of client property for 5 years after final distribution and to make records available to the State Bar for audits.
例：和解金受領後依頼者が競馬に使わないよう一週間伝えなかった。依頼者が感謝しても懲戒対象
④ COMPETENCE & OTHER Common sense duties　to the CLIENT④
A. Duty of competence.
1. A lawyer shall provide competent representation to a client.   Rule.1.1
     CA 1.1 An attorney shall not intentionally, recklessly, with gross negligence or repeatedly fail to perform legal services with competence. 
　Definition  Competent representation requires 
1) the legal knowledge, 2) skill, 3) thoroughness, and 
4) preparation reasonably for the representation.
Liability   If you don’t, you are subject to: 
(i) discipline by the Bar, (ii) disqualification as counsel in a litigated matter, 
and (iii) civil malpractice liability.
    Unfamiliar    If the lawyer is unfamiliar with the relevant law, he cannot take on the matter 
unless: 
  1) the lawyer can put in the time to learn it without undue expense or delay to the  
  client, or 2) the lawyer can associate with a lawyer competent in the area.
※	Distinguish from Malpractice 
– An ethical violation may be relevant evidence of malpractice, however, it does not 
create a presumption of it. 
In negligence cases, the P must show a breach of the duty of care (skill, care, and 
judgment that a reasonably prudent lawyer in the region would have used in the circumstances.) , and
causation.
B. Duty of Diligence 勤勉義務
A lawyer shall act with reasonable diligence and promptness in representing a client.
注釈6: a lawyer should carry through to conclusion all matters.
注釈4: 弁護士費用不払でも業務中止等は辞任が許可されるまではできない。
A lawyer shall not intentionally, repeatedly, recklessly, with gross negligence fail to act with 
reasonable diligence.
C. Duty to Communicate  前段1-4(a)(3)
A lawyer shall keep the client reasonably informed about the case, including 
settlement offers.  
A settlement offer to joint clients must be conveyed to ALL and make sure they agree on the division of the settlement before accepting.
　　  Hayes v. Eagle-Picher Industries(10th Cir 1975)
   　　・多数決で和解をするという事前合意があってもclientは自由に和解を拒否できる。
・同合意違反の紛争に弁護士は関与できない。  ※ABA公式見解は議決権信託を認めない..
 (a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent;
(2) reasonably consult with the client about the means by which the client's objectives 
are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
comment 7: A lawyer may be justified in delaying transmission of information when the client 
would be likely to react imprudently to an immediate communication. A lawyer may 
not withhold information to serve the lawyer's own interest or convenience or the 
interests or convenience of another person.
 (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
[5]  The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.
       ※ 依頼者の質問に丁寧に対応しなければ(a)(2)違反
D. Scope of Representation  1.2
Client must make decisions about her substantive rights.
A lawyer shall abide by a client's decision whether to settle a matter.  abide by =遵守する
In a criminal case, the lawyer shall abide by the client's decision, after consultation with 
the lawyer, as to a plea to be entered, whether to waive jury trial and whether the 
client will testify.  ・case law : appealするかは依頼者, appeal内容はlawyer
Lawyer decides procedure and legal strategy. (i.e. Choice of motions or Discovery decisions)
※ If a lawyer disagrees, he can limit the scope of representation, with client’s consent.
※ (c) A lawyer may limit the scope of the representation if the limitation is reasonable 
under the circumstances and the client gives informed consent.
※ The scope of representation does not include counseling or assisting a client in conduct 
a lawyer knows is criminal. 
(d) A lawyer shall not “counsel 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 determine the validity, scope, 
meaning or application of the law.
E. Accepting Representation
General Rule: Free to accept or reject any case
例外　Should accept as part of the duty to the public and profession
1)  A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for 
good cause, such as:  Rule 6.2
(a) the representation will violate an ethical rule or other law,
 　(b) representing the client is likely to result in an unreasonable financial burden, 
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the 
client-lawyer relationship or the lawyer's ability to represent the client.
2)  A lawyer should: provide a substantial majority of the (50) hours of legal services 
without fee or expectation of fee = pro bono work.  Rule 6.1
F. Duty of Withdrawal and Refusal  Rule 1.16
Mandatory Withdrawal 
A lawyer shall not represent a client or, shall withdraw from the representation of a client if: 
1) the representation will violate an ethical rule or other law,
2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or 
3) the lawyer is discharged. (=fired)  
CA1.16 ＋the lawyer knows or reasonably should know that the client is bringing action
…without probable cause
※A client has a right to discharge a lawyer at any time
　　　　　夫,妻,弁護士で別の弁護士を雇わない契約を結んでも夫は自由に別の弁護士に依頼可
Permissive Withdrawal  Rule 1.16(b)
If there is "good cause". 
A lawyer may withdraw from representing a client if:
1)　　　　withdrawal can be accomplished without material adverse effect on the interests of the client
2)    　the client persists in …action …that the lawyer reasonably believes is criminal or 
fraudulent; 違法行為をするといって譲らない場合
3) the client has used the lawyer's services to perpetrate a crime or fraud;　犯す
4) the client insists upon repugnant action (= taking action that the lawyer considers 
repugnant or with which the lawyer has a fundamental disagreement;)
5) Failure of client to pay (催促必要) : the client fails substantially to fulfill an obligation to the 
lawyer regarding the lawyer's services and has been given reasonable warning that 
the lawyer will withdraw unless the obligation is fulfilled;
6) the representation will result in an unreasonable financial burden on the lawyer or has 
been rendered unreasonably difficult by the client; or
× financial burden is substantially greater than the parties anticipated.
7) other good cause for withdrawal exists. : CATCH ALL clause
①依頼者を害さなければ常に辞任ＯＫ(1)
②害する場合でも，
(2)将来犯罪等，(3)犯罪等利用，(4)repugnantに固執　　　　…考え方の不一致
(5)報酬不払, (6)想定外費用，(7)他正当理由　　　  　　…金銭的問題
があれば辞任ＯＫ (下線はＣＡには規定なし)　　　　
CA1.16　
After a lawsuit has been filed, an attorney cannot withdraw from representing a client 
without attaining the judge's permission to do so.
a) the client insists on presenting a claim…that ..cannot be supported by good faith argument
b) the client...renders it unreasonably difficult for the lawyer to represent him
c) the lawyer is unable to work with co-counsel
d) the client knowingly and freely assents to termination of the representation
※ a)Frivolous claim，d)assentなど明示，ABAでもother good causeであろう。
※ financial burden ＆ use of your services to commit a past crime is not grounds for 
permissive withdrawal (it can be a breach of a contract to pay expenses or fees.)
Procedure for withdrawal Rule 1.16(d)
1) giving reasonable notice to the client, allowing time for employment of other counsel, 
2) surrendering papers and property to which the client is entitled and 
3) refunding any advance payment of fee or expense that has not been earned or incurred. (The lawyer may retain papers relating to the client to the extent permitted by other law.)
CA – forbids withholding materials for money
G. Other Duties Rule 1.8(j)  CA: 同様 (ルール改正)
Sexual Relations with Client - Lawyers must be SENSIBLE AND REASONABLE
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship 
existed between them when the client-lawyer relationship commenced. 

⑤ DUTIES of CANDOR to the PUBLIC & DIGNITY OF the PROFESSION:　
～ADVERTISING & SOLICITATION to the OTHERES①
Commercial Speech – State can regulate attorney advertising and solicitation subject to the First Amendment Commercial Speech doctrine:
1) The government asserts a substantial interest 
(e.g., dignity of the legal profession, invasion of citizen privacy); and
2) The regulation directly advances that interest; and 
3) It is narrowly tailored.
Advertising  Rule 7.1 
A lawyer shall not make a false or misleading communication about the lawyer or 
the lawyer's services. 
A communication is false or misleading if 
1) it contains a material misrepresentation of fact or law, or 
2) it omits a material information.
注釈3: to form an unjustified expectations or make unverifiable comparison is misleading
CA 7.1 comment 4 
1) a lawyer’s achievements on behalf of clients or former clients, or 
2) a testimonial about or endorsement of the lawyer, 
may be misleading if presented so as to lead a reasonable person to form an unjustified
expectation that the same results could be obtained for other clients in similar matters  
without reference to the specific factual and legal circumstances of each client’s case.
3) an unsubstantiated comparison of the lawyer’s services or fees with the services 
or fees of other lawyers 
may be misleading if presented with such specificity as would lead a reasonable person 
to conclude that the comparison can be substantiated. 
An appropriate disclaimer or qualifying language often avoids creating unjustified 
expectations.
Claims of Legal Specialties  Rule 7-4
Field – Can state the attorney’s fields of practice.
Specialty – May not advertise specialization unless he is a "certified specialist".
1) Certification by approved organizations and 
2) require the certifying organization be identified in communications
CA – 1)’ a current certificate as a specialist issued by Board of Legal Specialization or any other entity accredited by the State Bar＋2)が必要　7.4
例：「open a solo practice specializing personal injury」と言い回ってもらうは× ∵専門性謳っている
Harassment 
Advertising must not harass or solicit someone who has indicated they want to be left alone ※ Targeted direct mail is OK, but must be labeled as "Advertising Material"
Label　  – Every solicitation must be labeled as advertising  Rule 7.3(C)
a) It must identify at least one lawyer responsible for its contents.Rule 7-2(C)
b) Must keep records of the content and placement of any ad for 2 years.
Solicitation = Individualized contact with layperson
7.3(a)  A lawyer shall not by in‑person, live telephone or real-time electronic contact 
solicit professional employment for pecuniary gain unless the person contacted:
(1)  is a lawyer; or
(2)  has a family, close personal, or prior professional relationship with the lawyer.
※ ターゲットメールはOK ∵ real timeではない。※ 過去の依頼者を勧誘するのもＯＫ
※ Agents cannot do anything that a lawyer cannot do. (代理人も同じ広告規制に服する)

⑥ DUTY OF CANDOR誠実 to the COURT & FAIRNESS to your ADVERSARY 
to the OTHERES② (one duty almost always involves the other duty here)
Basic idea:           A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.  Rule 8.4(c)
Even within our adversarial system,these duties generally create an ethical obligation that can override conflicting duties of loyalty to a client and preservation of his confidences.
1. 一般原則: Candor Toward the Tribunal　Rule 3.3
A lawyer shall not knowingly:
1) a) make a false statement of fact or law to a tribunal or 
b) fail to correct a false statement of material fact or law previously made to the 
tribunal by the lawyer;
2) offer evidence that the lawyer knows to be false.
No “chicanery”= Trickery =（言葉を巧みに使った）ごまかし 
① referring to inadmissible material, 
② alluding to matters unsupported by the evidence, 
③ asserting personal knowledge of facts at issue.
3.4(e) : A lawyer shall not: in trial, 
1) allude to any matter that the lawyer does not reasonably believe is relevant or that will 
not be supported by admissible evidence, 
2) assert personal knowledge of facts in issue except when testifying as a witness, or
3) state a personal opinion as to the justness of a cause, the credibility of a witness, the 
culpability of a civil litigant or the guilt or innocence of an accused; 
※ 不利な事実を申し出る義務は原則ない (時効期間経過など)，非対審手続では義務有り
Ex Parte Proceedings: In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. 
A lawyer shall not communicate orally about the merits of a case without adequate notice to the opposing party (a written communication is OK so long as the other side receives notice).
3) If a lawyer, his client, or a witness called by the lawyer, has offered material 
evidence and the lawyer comes to know of its falsity, the lawyer shall take 
reasonable remedial measures, including, if necessary, disclosure to the tribunal.
2. 証拠①:Duty to prevent client perjury   Rule 3.3の応用問題
A lawyer must not knowingly facilitate client perjury.
・If the matter is a civil case, 
A lawyer must refuse to call the client as a witness if the lawyer knows he intends to 
perjure himself.
∵A lawyer shall not knowingly offer evidence that the lawyer knows to be false.
・   A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal 
matter, that the lawyer reasonably believes is false.　　Rule 3.3(3)
・If the matter is a criminal case, because of 5th Amendment right to testify and 6th 
Amendment right to effective counsel, the lawyer MUST call to stand; 上記下線
However, the Attorney MUST:
1) persuade the defendant to testify truthfully or NOT take the stand,
2) then if that fails, try to withdraw from the case.
CA        – Seeking withdrawal is permissive, not mandatory.
3) If that fails, tell the judge. = if necessary, disclosure to the tribunal 
CA        – Allow the D to testify in narrative fashion, 
but do NOT further the deception (no questions, do not use in argument).
※ Right to counsel and duty of confidentiality do not protect perjury.
After Trial – If client tells you after the proceedings that he lied, you must take reasonable 
remedial measures, but your duties end with the proceedings. 
Witnesses – Must not counsel or assist a witness to testify falsely or to become "unavailable".
Payment – Unless prohibited by local law, a lawyer may pay basic expenses of a witness or 
reasonable fees for expert, 
so long as the payment is NOT contingent on the content of the testimony.
3. 証拠②: Duty to Produce Evidence
Rule 3.4 Fairness To Opposing Party And Counsel
  原則 A lawyer shall not suppress any evidence that he or his client has a legal 
obligation to reveal or produce, regardless of the duty of loyalty.
・Must not obstruct access to or tamper with fruits or instrumentalities of a crime.
                  3.4(a) A lawyer shall not unlawfully obstruct another party' s access to evidence or unlawfully 
alter, destroy or conceal a document or other material having potential evidentiary 
value. A lawyer shall not counsel or assist another person to do any such act;
3.4(d) A lawyer shall not make a frivolous discovery request or fail to make reasonably diligent 
effort to comply with a legally proper discovery request… 
※ Distinguish between the Duty to produce physical evidence and confidential 
communications.
例D comes to your office with cocaine. He says that he's been selling drugs and needs help. 
→ Must deliver drugs to authorities but may NOT disclose communications.
Wemark v. Iowa (Iowa 1999)
If lawyer physically had evidence, must hand it over. But if he only has 
information about evidence, no legal obligation to disclose
Rule3.4(b) A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely 
Rule3.4(f) A lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party unless 
 1) the person is a relative or an employee or other agent of a client; and
 2) the lawyer reasonably believes that the person's interests will not be 
 adversely affected by refraining from giving such information.
× 証人に修正5条による申立をするよう説得
Interference with Evidence – Duty not to interfere with evidence
Look at Evidence – If D tells you where he hid gun, you may look at the evidence but you may not interfere with (move or alter) the evidence.
If the investigator retrieves the evidence and examine it retrieve①取り戻す②情報を検索する
                    – You must produce it and testify where it was found.
Can’t reveal source of information about the location if confidential.
※Prepare Case– May retain evidence for a reasonable time to prepare your client’s case, so long as they will NOT alter or destroy the evidence
  In re Ryder (4th Cir 1967) ショットガンと盗んだ現金を貸金庫に入れていた弁護士に有罪判決
　In Morrel v. State(Alaska 1978)     被告人の友人が被告人の誘拐計画書を弁護士に交付。書面も物と同様に
提出義務があるかは争い有り。同最高裁は同義務肯定。
弁護士が同友人を警察に連れていくのはOK
∵被告は弁護士が第三者から入手した証拠入手方法につきprivilegeなし
(duty of confidentialityの対象でもprivilegeなければ裁判所命令優先)
Prosecutor’s Duty to Disclose 
– Prosecutors have a special duty to timely disclose evidence favorable to the defense.
       Mistaken Receipt
 – If attorney knows document was inadvertently sent, he must promptly notify opposing counsel.
4.4(b) A lawyer who receives a document or electronically stored information relating to the representation of 
the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. 
※返送は各自の判断(注釈3),metadataの扱いも同様(注釈2)，多く弁護人依頼人特権放棄が問題
             →CA4.4 the lawyer shall refrain from examining the writing any more than is necessary to determine 
that it is privileged.  注釈1: should return the writing to the sender 
4. 法律①:Duty to State the Law Truthfully 
Knowingly making a false statement of law to the court is subject to discipline.
・ Obligation to be candid about the law including a duty to cite adverse authority, if it's from a controlling jurisdiction and directly on point.
・ Presenting frivolous claims or defenses is unethical and subject to discipline.
A lawyer may only bring a claim if there is a basis in law (or extension or modification 
or reversal of the law) and fact and the claim is not.
※ やり込める目的でも，勝てるのであればfrivolous (無意味)ではない
5. 法律②:Duty to Uphold the Law 
– A lawyer shall not “counsel or assist” a client, in conduct that the lawyer knows is 
criminal or fraudulent,  1.2 
– In …representing a client, a lawyer shall not knowingly:(b) fail to disclose a 
material fact to a third person when disclosure is necessary to avoid assisting a 
criminal or fraudulent act by a client unless disclosure is prohibited Rule 1.6 
   (duty of confidentiality).  4.1
結局: A lawyer owes duty to prevent his client from committing a crime reasonably 
likely to result in death or serious bodily injury: or substantial financial loss 
used by his legal service.
If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this 
information, the lawyer shall not fail to do so. (4.1注釈2) 
Continued Representation 
– If continued representation would require you to commit or assist in committing a 
crime, you MUST withdraw.
– If the client persists in actions that you reasonably believe are criminal or fraudulent, 
but you are NOT assisting in a crime, you MAY withdraw.

　　　　依頼者の犯罪行為まとめ
　　　　 　 1. してもよい      May or Permissive
            開示: 合理的に確実な死又は重大な身体損傷を防ぐのに必要な場合　　　　　　　　　　　　　　　1.6(b)(1)
弁護士のサービスを使った犯罪又は詐欺による重大な財産損失を防ぐのに必要な場合　    1.6(b)(2)　
依頼者が組織である場合，組織が上層部が対応しない場合の外部への報告
             辞任: 依頼者が犯罪又は詐欺と合理的に考える行為をすることに固執する場合　　　　　　　　　　　　　　　　　　　　　　　　1.16(b)(2)
依頼者が弁護士のサービスを使った犯罪又は詐欺をしたとき(ABAのみ)             　     　　　　1.16(b)(3)　 
2. してはならない　Shall Not
依頼者の犯罪又は詐欺行為の相談・援助                                                  1.2 
3. しないとだめ　　   Shall　
a) 継続が犯罪への援助になる場合の辞任　
∵ 弁護士倫理違反する場合は辞任must 1.6(a)→犯罪の援助は弁護士倫理違反1.2 
b) 重大な身体損傷, 弁護士サービス利用し犯罪・詐欺を不正に必要な開示                  
∵ 秘密保持義務に違反しない限りが依頼者の詐欺・犯罪の援助をさけるための開示must  4.1
c) 依頼者が組織で重大な財産損害を避けるための上層部への報告

⑦ Additional DUTIES OF FAIRNESS　to the OTHERES③
The general rule. The lawyer has a duty to behave honestly at all times in all dealings, whether or not engaged in the practice of law.
The lawyer must not lie to people or mislead them as to your interests. 
㋐ Dealing fairly with others.
4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to 
avoid assisting a criminal or fraudulent act by a client.
※ estimates of price placed on the subject of transaction and party’s intentions as to an 
acceptable settlement are ordinarily not material fact.（注釈2）
4.4 Respect for Rights of Third Persons
In representing a client, a lawyer shall not 
1) use means that have no substantial purpose other than to embarrass, delay, or 
burden a third person, or 
2) use methods of obtaining evidence that violate the legal rights of such a person.
※ 多くの州で秘密録音は許容
   Rule3.10 Threatening Criminal, Administrative, or Disciplinary Charges
     　    A lawyer shall not threaten to present criminal, administrative, or disciplinary    
          charges to obtain an advantage in a civil dispute. 
Not specially addressed in ABA rule. 公式見解も一定せず。
・ethically required to report such misconduct.である以上，それに違反すればだめなことは明白。
・程度が過ぎれば
8.4(b), “commit a criminal act that reflects adversely on the lawyer’s honesty, 
trustworthiness or fitness as a lawyer”:
3.1 Meritorious Claims And Contentions, prohibits assertion of frivolous claims; 
4.1 Truthfulness In Statements To Others, 
4.4 Respect For Rights Of Third Persons等の問題   no substantial puropse
㋑ Communication with a party represented by counsel   Rule4.2
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
without consent of his lawyer or authorization by law or a court order. 
※ 本人から話しかけてきても対応してはだめ(注釈3)，相手弁護士に許容されればＯＫ
※ 過失で知らなくてもOK, 相手から代理人いないと言われればknowでないのでＯＫ
※ 相手方組織の辞めた構成員なら接触ＯＫ(注釈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 authority to obligate the organization with respect to the matter
※ 当事者同士は直接接触ＯＫ,その際の助言も可能(注釈4)
※ ABA extends this to ALL "persons" represented by counsel.
CA 4.2  In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with: 
(1) A current officer, director, partner, or managing agent of the organization; or 
(2) A current employee, member, agent, or other constituent of the organization, if 
the subject of the communication is any act or omission of such an person in 
connection with the matter which may be binding upon or imputed to the 
organization for purposes of civil or criminal liability. 
= The prohibition extends to ANY current employee whose communication 
might bind or be imputed to the organization or constitute an admission.
※ ABAも明文ないが注釈７はほぼ同様　
Rule 4.3 Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested….
「俺の弁護士に聞いてくれ」と売主が言うので買主が弁護士に質問→ it’s clear that the buyer should understand the attorney is interested→弁護士から買主に特別な説明は不要
・The lawyer shall not give legal advice to an unrepresented person, other than the advice to 
secure counsel, if the lawyer knows or reasonably should know that the interests of such a 
person are or have a reasonable possibility of being in conflict with the interests of the client.  
㋒ Dealing with the press.　 Rule 3.6
The defendant’s right to a fair trial is balanced against the press and public’s right to know. 
Rule:   A lawyer… shall not make an extrajudicial (out-of-court) statement that the lawyer 
…reasonably should know …will have a substantial likelihood of materially 
prejudicing an adjudicative proceeding in the matter. 重大な予断を与える実質的可能性
※予断を与える事実例: ①被疑者の性格②自白の有無③検査結果④排除された証拠内容
Exceptions are for (3.6の抜粋)
1) information contained in a public record
2) a) warning of the danger to the public 
b) a request for assistance in obtaining evidence and information 
3) that an investigation of a matter is in progress, the scheduling or result of any step in litigation
4)     statements required to protect a client from substantial undue prejudice from
recent publicity not self-initiated. 
Prosecutors
－In addition, prosecutors must not make comments that have a substantial likelihood of heightening public condemnation of the accused.
㋓ Other Special duties of prosecutors.  3.8
The basic duty of a prosecutor is to seek justice, not just to win cases. Prosecutors have higher ethical obligations than criminal defense or civil attorneys. 
Among other duties, they must:
1) Have probable cause
2) Protect the accused’s right to counsel, including not subpoenaing a lawyer to 
present evidence about a client unless it is essential and unprivileged
 			3) Timely disclose evidence favorable to the defense.

⑧ PRESERVING the DIGNITY OF the COURT 
A. Duty to preserve the impartiality and decorum of the tribunal.
Rule 3.5 Impartiality And Decorum of the Tribunal
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) 1) communicate ex parte with such a person during the proceeding  
※ 陪審候補者の素性を知るため代理を通じてインタビューもできない。
2) communicate with a juror or prospective juror after discharge of the jury if:
i) the juror has made known to the lawyer a desire not to communicate
ii) the communication involves misrepresentation, coercion, duress or harassment
(c) engage in conduct intended to disrupt a tribunal.
  　 注釈4. Refraining from abusive or obstreperous conduct ※ obstreperousうるさくて手に負えない
“A lawyer may stand firm against abuse by a judge but should avoid reciprocation”　
B. Duty to expedite cases.　Rule 3.2
1. A lawyer has an affirmative duty to expedite cases. 
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
2. A lawyer has a duty to follow valid procedural rules or court orders, unless you are making a 
good faith challenge to their validity. 
    3.4(c)  A lawyer shall not: knowingly disobey an obligation under the rules of a tribunal … 
C. Additional duties to the profession and public.
Duty not to engage in the Unauthorized Practice of Law 
– A lawyer must not engage in the unauthorized practice of law to safeguard the 
public from incompetence. ※ 業務停止中の弁護士をパラリーガルにもできない（majority）
Multi-Jurisdictional Practice  Rule 5.5(C) 
A lawyer May not practice in another state, 
　　　　　but may provide legal services on a temporary basis = “pro hac vice”
1) if she associates with a local lawyer who actively participates in the matter.
or 2) if the practice is reasonably related to the lawyer’s home state practice.
(participate in a mediation or arbitration arising out of home state practice)
or 3) obtain special permission to practice.
CA more narrow rules of court governing out-of-state lawyers 
1) Registered legal services attorneys (practicing under supervision of a CA attorney for no more than three years)
           2) Registered in-house counsel for an institution (but no individual representation or court appearances)
3) Litigating and non-litigating attorneys practicing temporarily in the state.
These rules generally require the lawyer 
a) register with the CA Bar, b) pay dues,
c) satisfy continuing legal education requirements, d) be subject to CA ethics rules. 
D. Reporting Misconduct  Rule 8.3
ABA rules require a lawyer to report any other lawyer's violation of the rules in a legal or non-legal context, if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer or judge. C):認可法律家支援プログラムには不適用
※ duty of confidentialityあればreport不可
※ 裁判官も同様の報告義務有り
  　　　    In re Himmel (1998)
    　　　　     　横領した弁護士に対して懲戒手続をしないことを含めて和解 → 規則違反
　Warren（Me 2011
　　　　　　   　  パートナーが横領，その後に返却。他のパートナーが報告しなかったとして懲戒
CA does not require this, but instead require self-reporting of lawyers being 
1) charged with a felony or certain crimes, 
2) found civilly liable for fraud or breach of fiduciary duty,
3) disciplined in another jurisdiction, 
or 4) under certain conditions, sued for malpractice or sanctioned　 Business & Professions Code
E. Duties of Subordinate Lawyers Same on new rule
1.	Subordinates  under the control or supervision of another attorney  Rule 5.2
Clear violation       – subordinate is subject to discipline for taking action, even if 
a senior partner orders or ratifies.
Debatable violation – partner is solely responsible
If a subordinate lawyer acts in accordance with a supervisory 
lawyer's reasonable resolution of an arguable question of duty.
2.	Managing Partners   Rule 5.1, 5.3  
Duty            – Must make reasonable efforts to ensure that all employees 
conform to the professional obligations of a lawyer   
including non-lawyer assistants.  
Ratification       – If the managing partner knew of the conduct and failed to take 
action, it is a violation.
              ※ 監督義務違反を怠れば，秘密漏えい等がなくてもviolation, 実害は不要
その他のルール
Rule 5.6: 辞める弁護士への競業制限禁止
A lawyer shall not participate in offering or making:
 (a) a partnership…employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship…
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.　※相手からの弁護士業辞めたら依頼者に１億出すという提案に応じられない
Rule 7.5 : Firm Names & Letterhead
A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1 (false or misleadingの禁止).
(a)　　　　A trade name that imply a connection with a government agency or with a public or charitable　 
legal services organization .　: 公務の名前の利用制限　　
 ・「内灘町リーガルクリニック」のように地名を含む場合は公的な機関でないことの断り書き必要　注釈1
(d) Lawyers may state or imply that they practice in a partnership or other organization only when 
that is the fact. 　　　　　　　   : 組織でないのに組織のように表示不可
 ※ 以前いた弁護士名であれば死亡した弁護士名の利用はＯＫ　注釈1
 ・ lawyers sharing office facilities, but who are not in fact associated with each other in a law 
firm, may not denominate themselves as, for example, "Smith and Jones," for that title 
suggests that they are practicing law together in a firm. 注釈2
Rule 8.4: Misconduct  Maintaining the integrity of the profession
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce 
another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
注釈２:酒場で暴力は基本OK　
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud …However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude."… that have specific connection to fitness for the practice of law. …A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to 
achieve results by means that violate the Rules of Professional Conduct or other law;
                                                                                                                 Matter of Sears (N.J. 1976)  SECに大きな影響を与えられる旨の手紙は×