ii.  Now look at the Problem–the client lost an eye when a stick was thrown out of a lawn trimmer; the client does not remember if warning tag was on the trimmer–but acknowledges that it may have been and seems to recall reading the warning message about wearing goggles; You recommend trying for a settlement of about $100,000, even though loss of an eye would normally bring closer to $250,000;
   (1)  Question (a), in negotiating with the attorney for the manufacturer, can you say;
    (a) It will cost $500,000 to settle;
    (b) This is a blind in one eye case that is worth $500,000;
    (c) My client will testify there was no warning tag;
    (d) The warning tag was not on the product;
    (e) The warning tags were notoriously missing from these models, so it is logical to conclude that there was none here?
    (f) Look at Note 1 following the Alfini article;
     (i) The Rules do not make specific reference to ethics in alternative dispute resolution settings;
     (ii) Rather, the Rules generally refer to litigation matters and “everything else;”
     (iii) Thus, look at Rule 8.4(c)–that Rule generally prohibits dishonesty, fraud, deceit and misrepresentation; the Comments to this Rule do not discuss the obligation;
     (iv) Rule 3.3 applies only to “tribunals,” but Rule 1.0(m) makes it clear that “tribunal” would include “binding” arbitration–it would not therefore include negotiation–or any type of arbitration that is not binding;
     (v) That generally leaves Rule 4.1;
      1) Rule 4.1(b) requires the lawyer to disclose material facts if doing so is needed to avoid assisting the client in a criminal or fraudulent act–unless disclosure is prohibited by Rule 1.6;
       a) Thus, if the lawyer knows the client is committing a fraud–but the lawyer is not being used to assist–the lawyer has no obligation under this Rule;
       b) Similarly, if the only way the lawyer knows the true facts is as a result of information relating to the representation, the lawyer may not reveal this information;
       c) Thus, even if the lawyer was being used to assist the client in criminal or fraudulent activity, the lawyer would be prohibited from revealing if the knowledge of the true facts came from information relating to the representation;
       d) As a result, Rule 4.1(b) is almost useless;
      2) That’s why we focus on Rule 4.1(a), which prohibits the lawyer from making a false statement of “material fact” or law to a third person;
       a) Look at Comment [2]; As Alfini notes in his article, “material statements of fact” DO NOT include estimates of price or value of the subject of a transaction or the intentions of a party as to an acceptable settlement or the fact that the party represents an undisclosed principal, unless failure to reveal the undisclosed principal would amount to fraud;
       b) Look also at Note 2 following the Alfini article on “puffery” in negotiation;
       c) Comment [2] virtually encourages “puffery” when it comes to expectations in the settlement process;
       d) As Alfini indicates, this Comment was not what was originally envisioned in the Rules, but those in favor of puffing won the day;
      3) Before answering this question, let’s look at the Alfini article;
       a) This article criticizes the current state of attorney conduct in mediation;
       b) It specifically mentions the notion of some that you can’t trust anything a lawyer says in mediation;
       c) The article then points out the reason, by looking at the history of the Rules of Professional Conduct;
       d) As originally proposed, there was a rule that was far more specific;
       e) Rule 4.2 of the Discussion Draft of the Model Rules of Professional Conduct (ABA Comm. on Eval. of Professional Standards, 1/30/1980), provided, in part, that the lawyer in negotiation had to “be fair in dealing with other participants;” The Rule then provided that the lawyer could “not make a knowing misrepresentation of fact or law, or fail to disclose a material fact known to the lawyer;”  As drafted, then, there were two different requirements in dealing with facts–NO fact could be misrepresented and MATERIAL facts had to be disclosed;
       f) This is the Rule to which Alfini refers and his article then suggests that the comment to Rule 4.1 needs to be eliminated in favor of the more specific requirements of current Rule 3.3;
       g) What is  interesting is that the same comments were part of the original discussion draft, which first indicated that “a party is not required to apprise another party of background facts” and then indicated no need to disclose “estimates of price of value that a party places on the subject of a transaction, or a party’s intentions as to an acceptable settlement of a claim;” Further, as in the current comment, there was no need to disclose an undisclosed principal, unless nondisclosure amounted to fraud; See Rule 4.2 Comment (Disclosure) of the Discussion Draft of the Model Rules of Professional Conduct (ABA Comm. on Eval. of Professional Standards, 1/30/1980)
     (vi) Now, let’s consider statements in Problem, Question (a) in light of Rule 4.1 and the Alfini article;
      1) It will cost $500,000 to settle–this is not a material statement of fact under Rule 4.1 Comment [2]
      2) This is a blind in one eye case that is worth $500,000–neither is this probably;
      3) My client will testify there was no warning tag–the lawyer cannot offer false testimony under Rule 3.3 and, because of discussions with the client, the lawyer likely knows (or the circumstances certainly suggest) that this statement is false–as a result, this statement would likely violate Rule 4.1
      4) The warning tag was not on the product; This is a false statement of material fact–the client either thinks the tag was there or is not sure.  It is prohibited by Rule 4.1(a);
      5) The warning tags were notoriously missing from these models, so it is logical to conclude that there was none here?  This is the kind of “lying” in negotiation that the Alfini article addresses–there is not a definitive rule banning this language and it is probably permitted;
   (2)  Look at Problem, Question (b); the matter goes to mediation; are you allowed to make the same statements in mediation?
    (a) Note 4 following the Alfini article answers this question for you;
    (b) Mediators are not part of a “tribunal” under the Rule 1.0(m) definition;
    (c) As a result, Rule 3.3 is not applicable to mediation;
    (d) Rule 4.1 is, however, applicable, so the answers to this question are the same as the answers to question (a);
   (3)  Problem, Question (c)–the court practice is to use the United States Magistrate Judge as a mediator–can you make the statements?
    (a) Note 5 following the Alfini article;
    (b) Court-ordered or court-annexed arbitration and mediation is pretty common–in our problem, there is a mediator;
    (c) As was clear in Note 4, mediation is not binding on the parties;
    (d) Therefore, mediation is not a proceeding before a tribunal, within the definition of Rule 1.0(m);
    (e) Therefore, Rule 3.3 is not likely applicable;
     (i) Here, look at Rule 2.4, Comment [5];
     (ii) That comment makes pretty clear that while lawyers in alternative dispute resolution are bound by the Rules of Professional Conduct;
     (iii) Those lawyers are bound by Rule 3.3 only when appearing before a “tribunal” as Rule 1.0(m0 envisions;
     (iv) Otherwise, as the comment states, these lawyers are governed by Rule 4.1;
    (f) Thus, the technically correct answer to this question is the same as was the case for Questions (a) and (b);
    (g) There is obviously the concern, however, about lying to a federal judge–could there be “contempt” sanctions even if Rule 3.3 is not applicable?
   (4)  Problem, Question (d)–the parties agree on “binding” arbitration;  can you make the statements?
    (a) As Note 3 following the Alfini article and our previous discussion demonstrate, once the proceeding is “binding,” then, under Rule 1.0(m), the proceeding involves a tribunal and Rule 3.3 is applicable;
     (i) Consider Comment [3] to Rule 3.3;
     (ii) An assertion by a lawyer, purporting to state facts can only be made either with knowledge, or based on reasonable inquiry;
    (b) Consider the statements, then, in light of that Rule and Comments;
     (i)  This is a blind in one eye case that is worth $500,000; This statement is true generally, but may not be true in this case depending on how the evidence comes in; As part of an opening, it is probably still o.k., even under the more stringent standard of Rule 3.3;
     (ii) My client will testify there was no warning tag; the lawyer cannot offer false testimony under Rule 3.3(a)(3)–this statement certainly cannot be made;
     (iii) The warning tag was not on the product; The lawyer does not have any independent basis for making this assertion; It is likely prohibited under Rule 3.3's comment;
     (iv) The warning tags were notoriously missing from these models, so it is logical to conclude that there was none here?   Part of this statement is true–the tags were often missing–In this case, however, is the conclusion logical?  Maybe not in light of what the lawyer knows from the client–this statement probably runs afoul of Rule 3.3(a)(1) and the comments;
  iii.  Before we leave the lawyer in Alternative Dispute Resolution, consider the Notes on Mediator and Arbitrator Professional Responsibility;
   (1)  Note 1–there is no longer a rule on the Lawyer as Intermediary;  Those states that have not adopted the 2002 Rules, however, still have the prior Rule 2.2 and this Note describes how difficult it was to comply with that rule, together with the fact that if compliance was not possible after the lawyer started the mediation between clients, the lawyer could no longer represent either of the parties;
   (2)  Notes 2 and 3 mention new Rule 2.4–Lawyer as neutral;
    (a) This rule recognizes the lawyer’s role as arbitrator or mediator when the parties are not clients;
    (b) But then makes clear that the lawyer so serving is required to make sure the parties understand the lawyer is not representing either of them and that the lawyer has an obligation to the parties to assure that the parties understand the lawyer’s role;
   (3)  Notes 4 and 5 then presuppose that the lawyer did serve as a third party neutral and now wants to either represent one of those parties or be part of a firm that represents one of those parties;
    (a) Here, Rule 1.12 is applicable;
    (b) Rule 1.12 applies not only to judges, but to all other third party neutrals;
    (c) If the neutral participated personally and substantially in the matter between the parties; the lawyer cannot represent any of the parties in that matter unless all parties provided written, informed consent;
    (d) Other lawyers in the firm, however, are not disqualified provided there is screening of the former party neutral and the parties are provided written notice;
   (4)  Note 6 discusses other professional codes, most of which are voluntary, that apply to mediators, or arbitrators, or other third party neutrals; they can be read by anyone who is interested;

 k. Section D.–Lawyer as Judge;
  i.  The Lawyer as Candidate for a Judgeship
   (1)  First, look at Note 1 of this section and Rule 8.2(b);
    (a) Under Rule 8.2(b), the lawyer who is a candidate for a judgeship is required to comply with the Code of Judicial Conduct applicable to judge’s political activity;
    (b) Thus, lawyers who are not yet judges, but are candidates, are required to comply with Canon 5 of the Code of Judicial Conduct;
   (2)  So, what are the rules regarding candidates for judge?
    (a) Under Canon 5(A), judges and candidates generally prohibited from
     (i)  Acting as party leader or officer;
     (ii)  Making speeches or open endorsements of candidates for elected office;
     (iii) Attending political gatherings;
     (iv)  Solicitation or contribution of money;
     (v)   If the judge is already a judge, they have to resign as soon as they become a candidate for a non-judicial elected office;
     (vi) In addition, candidates for judge
      1) Are required to maintain dignity in the campaign and encourage family members to do the same;
      2) Must prohibit others who work for the candidate from doing what the candidate cannot do;
     (vii) In campaigning, a judicial candidate;
      1) Cannot make pledges other than for impartial performance of judicial duties;
      2) Cannot make statements that appear to commit the candidate to certain positions in cases or controversies that might come before the judge;
      3) Cannot “knowingly” misrepresent facts about the qualifications or positions of the candidate or opposing candidate;
       a) “Knowingly” in the Code of Judicial Conduct is the same as in the Rules of Professional Conduct;
       b) It means actual knowledge, which can be inferred from the circumstances;
      4) Can respond to personal attacks, but cannot do so in a way that violates any of the other candidate rules;
    (b) In addition to these rules, there are separate rules for;
     (i) Candidates seeking APPOINTMENT to judicial office–Canon 5(B);
     (ii) Candidates in Public Elections–and public elections includes not only regular elections, but also retention elections–Canon 5(C);
      1) Candidates in elections MAY purchase tickets and attend political gatherings;
      2) Candidates in elections MAY indicate they are members of the party;
      3) Candidates in elections MAY contribute to parties;
      4) Candidates in elections MAY distribute election brochures for themselves and may appear in ads and at gatherings to campaign;
      5) Candidates in elections MAY have their names listed with other candidates of the same party for other political offices;
      6) Candidates in elections MAY endorse other candidates–BUT ONLY for the same judicial office;
      7) Candidates in elections have significant limitations on their ability to raise funds;
       a) The candidate MAY NOT personally solicit funds;
       b) The candidate MAY create a committee to solicit funds;
       c) Such a committee MAY NOT, however solicit funds sooner than one year before the election nor later than 90 days after the election;
       d) No funds received can be used for the candidate’s personal use;
   (3)  With these rules in mind, look at our Problem,–Friends on vacation, all male friends, one of whom is a lawyer.  The others ask the lawyer what he would do in a certain highly public case if he were a judge.  The lawyer says that if he were a judge, the litigant would receive a maximum sentence, as would almost every criminal who appeared in front of this lawyer/judge.
    (a)  Question (a) assumes that the lawyer had announced candidacy for judge the week before this trip;
     (i)  Note 2 following the problem;
      1) If the judicial candidate simply “announces” his position on contested political issues, the Supreme Court has indicated that this is protected speech under the First Amendment;
       a) How would you phrase what Tom Calvin said to make it a protected “announcement?”
       b) “I believe judges should be tough on crime and I pledge to you that if elected, I will generally sentence criminal defendants to the maximum sentence allowed by law;”
      2) If, however, the judicial candidate commits or appears to commit to a position in a certain case, that is prohibited and its First Amendment implications are outweighed by the need for judicial impartiality;
       a) By saying “SHE would get the max,” Tom hear appears to be committing to a particular result in a particular case;
       b) And this is a commitment violation;
     (ii) Note 3 following the problem;
      1) Were there knowing misstatements about Tom’s opponent?
       a) It is not known what is the position of the opponent;
       b) Therefore, we cannot know if this is a misstatement;
      2) What about the Nurture Nature roast?
       a) The judicial candidate is required to maintain dignity;
       b) The entire tenor of this dinner appears to run afoul of that standard;
       c) Certainly, off color comments about women runs afoul of that;
     (iii) Note 5 following the problem deals with the solicitation of campaign contributions;
      1) If Tom had already announced his candidacy, and IF it was less than a year before the election, then the formation of the committee by his friends was not a problem;
      2) If, however, it was more than a year before the election, there is a violation;
      3) The problem here is that Tom appears to know who is writing the checks;
      4) As the Note indicates, Comment [1] to Canon 5(C)(2) raises the possibility of disqualification when a judge knows that lawyers who come before the judge are making contributions; This may seriously affect judicial impartiality;
      5) What about the gift of the fishing equipment;
       a) This looks like a violation of Canon 5(C)(2);
       b) Political contributions are being used to benefit the judicial candidate personally;
    (b) Now look quickly at Question (d)–suppose Tom’s friends are all lawyers–how does that change any answers?
     (i) This is partially answered by Note 6 following the problem;  As lawyers, they are subject to the provisions of Rule 8.2, which prohibits knowing or recklessly false statements about the qualifications of a judge or judicial candidate;
     (ii) In this problem, while the lawyers wrote letters, because we do not know how weak the opponent would be on crime, we cannot determine whether there is a Rule 8.2 violation;
    (c) Now look at Question (c)–Suppose Tom were already a judge and was running for reelection;
     (i) First, all of the considerations that were part of Question (a) are applicable;
     (ii) More than that, because we have a sitting judge, there are also considerations applicable under Canon 2;
      1) Under Canon 2(C), the judge may not be a member of any social organization that discriminates on the basis of race, sex, religion or national origin;
      2) Comment [1] to Canon 2(C) tells you that such membership gives credence to the lack of impartiality;
      3) Consider in light of this problem;
       a) Here, the judge belongs to an all-men’s social organization–even if it is just a bunch of fishing buddies;
       b) That then combines with the judge telling sexually inappropriate jokes at a political gathering;
       c) Certainly leading one to conclude that this judge has either a bias against women or is unwilling to treat women with the degree of equality that we expect of any judge;
      4) Also look at Canon 3(B)(5) which requires the judge to conduct all judicial duties without bias;
       a) It is unlikely that appearing at the Nurture Nature Roast is a “judicial duty;”
       b) But appearance at other events could trigger this rule;
    (d) Now look at Question (b)–suppose Tom was seeking an appointed judgeship?
     (i) Note 7 following the Problem;
      1) These candidates cannot raise funds at all;
      2) They are subject to the no commitment rules;
      3) They may not engage in most political activity other than communicating with those who make the political appointments;
     (ii) Thus, in our problem, virtually all of the activity of Tom would violate the Code of Judicial Conduct if he were a candidate for an appointed position;
  ii.  Lawyer’s Judicial Conduct;
   (1)  In re Schapiro is a pretty typical judicial discipline case in that contains a tremendous amount of impermissible activity; Most judicial discipline cases contain more than one violation of the Code of Judicial Conduct;
   (2)  Facts:
    (a) The judge demeaned lawyers in the courtroom by telling the lawyer he had to treat him like a child, by yelling at lawyers, by refusing reasonable requests for continuances, including a request by a pregnant prosecutor who had to check herself out of a hospital to avoid a contempt charge;  by berating and embarrassing attorneys, by swearing at attorneys, by berating guests in the court, like the mother of a deceased child who wished to speak at the bail hearing of the motorcyclist who allegedly ran down the woman’s child, by rudely and needlessly interjecting himself into counsel’s questioning and arguments, and by using a sound like a flushing toilet to show disapproval of attorney arguments, all in violation of Canon 1, Canon 2A, and Canon 3(B)(4);
    (b) Also in violation of these Canons and Canon 3(B)(5), took a female lawyer into a back room and told her she needed to act more like male attorneys and not become so emotional;
   (3)  You can see the court’s concern in disciplining this judge;
    (a) The overriding concern of virtually all of the Code of Judicial Conduct is the integrity of the judicial system;
    (b) When the judge undermines public confidence in the judiciary, the judge “strikes at the very root of an effective judiciary;”
   (4)  But note what the court did to the judge;
    (a) Public reprimand;
    (b) Treatment program;
    (c) Write apology letters;
    (d) Here, recall the two lawyer cases in this Chapter, Giangrasso and In re Vincenti; Both those lawyers engaged in a similar pattern of disrespect for the judicial process and were, in Giangrasso fined $100,000 and enjoined from filing lawsuits against the school district and, in Vincenti, disbarred; Why does the judge here get a reprimand and some public service only?
     (i) Certainly, we have a right to expect scrupulous conduct from our judges;
     (ii) When they fail, shouldn’t we punish them;
     (iii) If we don’t punish the judge who acts like this judge, won’t respect for judges and for our system decrease?
     (iv) Yet, at the end of the day, we do not have a good answer to this question;
   (5)  The Notes following the case describe some of the other areas of concern in dealing with judicial conduct;
    (a) Note 1 indicates that the judge is required to act in a way that promotes respect for the judiciary and for judicial impartiality;
     (i)Like a lawyer, a judge is a judge, both on and off the bench
     (ii)Thus, can commit acts which bring disrespect on the judiciary generally; Acts like;
      1)Sexual harassment
      2)Use of judicial position to advance self--as by using judicial stationary for personal business.
      3)Receipt of gifts, directly or indirectly from persons either parties or likely to become parties before the judge
      4) For example, Bank makes favorable loans
      5) For example, Law Firm lets judge use home at the lake
      6)Violation of law generally
      7)Criticism of other judges--makes entire instititon of judging look bad
     (iii) The same rule holds true for family members residing in the judge's household.
    (b) Note 2 again points out the requirement that a judge avoid prejudice and bias, such as treating women with disrespect, as was the case in Schapiro
     (i) This includes membership, or public approval of an organization discriminates on the basis of race, sex, religion or national origin;
     (ii) This includes “using” such an organization;
     (iii) As in does not belong to the organization but lunches in such a club frequently
    (c) Note 3 deals with Public Comments;
     (i) This includes making sure that others in the judge’s employment do the same;
     (ii) Note that the judge cannot comment on a case,
     (iii) But can advise of the procedures that will take place in a case;
     (iv) Judge cannot compliment or criticize a jury for their verdict, but can thank jury for their service;
    (d) Note 4 deals with courtroom conduct;
     (i)Conduct which is inappropriate to the courtroom again suggests either that the judge is not impartial or which brings disrespect for the court or judges generally;
      1)Profanity and other injudicious language
      2)Disparaging Remarks about one firm of attorneys or one class of attorneys, such as prosecutors generally
      3)Intemperate judicial criticism
     (ii) Other cases involve denial of rights--constitutional, federal, state, local.
     (iii) Abuse of Power
      1) Like contempt
      2) Forcing litigants to do certain things either to get a hearing or to get a particular result
      3) Using judicial power to get persons hired, fired or otherwise taken care of.
     (iv).Showing Favoritism; for example, special rules for certain lawyers, firms or against pro se litigant
    (e) Note 5 indicates that a judge is under a requirement to decide matters promptly;
    (f) Note 6 talks about limitations on other activities by the judge;
     (i) Judge can be involved in business but, cannot be an officer, director, manager, general partner, advisor or employee of that business unless it is owned by the judge’s family or manages investments for the judge;
     (ii)any business interest must not reflect adversely on judicial impartiality, nor involve frequent transactions with lawyers or litigants likely to come before the judge.
     (iii)It is permissible for judge to speak, teach, or write on avocational topics and to earn money therefrom.
     (iv) A judge can be an officer of the bar association
     (v)A full time judge cannot practice law
     (vi)In all cases where judge earns income outside of judging, the judge is required to file with the clerk a report, once a year, detailing that income.
     (vii) A judge is severely limited as to their interaction with executive or legislative bodies as this Note indicates;
     (viii) Judge can be an officer and can generally work on behalf of a fraternal organization; BUT, be careful of those organizations that discriminate against members by race, sex or national origin;
    (g) Note 7 reviews the judge’s duty to report lawyers and allows the judge to take “appropriate action” when the conduct is wrong but does not rise to the level of truly reportable misconduct;
    (h) Finally, look at Note 10;
     (i) Why does it take so long to discipline the lawyers in Giangrasso and Vincenti and the judge in Schapiro?
     (ii) The Note suggests several possibilities;
      1) Trial activity is inherent competitive and, as a result, we may allow both lawyers and judges to get a little more “worked up” before imposing discipline;
      2) We want to respect both the strategy decisions by lawyers and the judicial decisions by the courts;
      3) It is simply difficult to turn in both trial lawyers and judges;
     (iii) But these three cases all demonstrate the same thing;
      1) At the end of the day, what our practice is about is respect;
      2) When respect is lost by lawyers representing clients;
      3) When respect is lost by judges in dealing with lawyers and litigants;
      4) Our entire system breaks down;
      5) And that, we will not tolerate.