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EDITORIAL ADVISORS
Rachel E. Barkow
Segal Family Professor of Regulatory Law and Policy
Faculty Director, Center on the Administration of Criminal Law
New York University School of Law

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Tracey L. Meares
Walton Hale Hamilton Professor of Law
Director, The Justice Collaboratory
Yale Law School

Richard K. Neumann, Jr.

Alexander Bickel Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law
Faculty Co-Director, Stanford Criminal Justice Center
Stanford Law School
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Library of Congress Cataloging-in-Publication Data

Names: Wendel, W. Bradley, 1969- author.

Title: Professional responsibility / W. Bradley Wendel, Professor of Law, Cornell
Law School.
Description: A study guide to be used in conjunction with a casebook in the area
of Professional Responsibility. | Frederick, MD: Aspen Publishing, [2020] |
Includes
bibliographical references and index.
Identifiers: LCCN 2019021407 | ISBN 9781543805789
Subjects: LCSH: Legal ethics—United States. | Attorney and client—United States.
| LCGFT: Study guides.
Classification: LCC KF306.W46 2020 | DDC 174/.30973—dc23
LC record available at https://lccn.loc.gov/2019021407
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For Ben and Hannah
ix

Summary of Contents

Contents
Preface
Acknowledgments
Citations and Other Stylistic Practices

Chapter 1 The Many Ways of Regulating Lawyers

PART I. THE ATTORNEY-CLIENT

RELATIONSHIP
Chapter 2 Formation and Termination
Chapter 3 Aspects of an Ongoing Relationship
Chapter 4 Attorneys’ Fees and Transactions with Clients
Chapter 5 Representing Entities and Groups
Chapter 6 Incompetence: Remedies for Malpractice and
Constitutional Ineffectiveness
Chapter 7 Confidentiality and Secrecy
Chapter 8 Attorney-Client Privilege and Work Product Doctrine
Chapter 9 Professional Duty of Confidentiality
PART II. SECRETS AND LIES: PERJURY AND
THE PROBLEM OF CLIENT FRAUD
Chapter 10 Perjury in Civil and Criminal Litigation: The Lawyer’s
“Trilemma”
Chapter 11 Attorney Conduct in Litigation: Forensic Tactics, Fair
and Foul
Chapter 12 The Client Fraud Problem

PART III. CONFLICTS OF INTEREST

Chapter 13 Overview of Conflicts of Interest
Chapter 14 Concurrent Conflicts
Chapter 15 Concurrent Conflicts Issues in Specific Contexts
Chapter 16 Former-Client Conflicts and Migratory Lawyers
Chapter 17 Personal-Interest Conflicts

PART IV. ORGANIZATION AND REGULATION

OF THE LEGAL PROFESSION
Chapter 18 Attracting Clients: Advertising and Solicitation
Chapter 19 Associations of Lawyers
Chapter 20 The Organized Bar

PART V. JUDICIAL ETHICS

Chapter 21 The Judicial Role
Table of Cases
Index
xi

Contents

Preface
Acknowledgments
Citations and Other Stylistic Practices

Chapter 1 The Many Ways of Regulating

Lawyers
Introduction
Who Should Regulate Lawyers?
The Organized Bar: Models and Legally Binding
Rules
Courts and Legislatures
A Bit of Ancient History, and Why It Matters
The ABA Canons
The Model Code
The Modern Law Governing Lawyers
The Model Rules
The Restatement
Discipline Versus Everything Else
A Word About the MPRE

PART I. THE ATTORNEY-CLIENT

RELATIONSHIP
Chapter 2 Formation and Termination
Introduction
Shall We Dance? Formation of the Relationship
Implied-in-Fact, Full-On Professional Relationships
Quasi-Client Relationships
Prospective Clients and “Beauty Contests”
Entity-Constituent Representation
Fifty Ways to Leave Your Client: Termination of the
Professional Relationship
Client Fires the Lawyer
Lawyer Fires the Client
Breaking Up Is Hard to Do: Relationship Erodes
over Time
Duties upon Discharge

xii

Chapter 3 Aspects of an Ongoing

Relationship
Introduction
Division of Labor in the Attorney-Client Relationship
Some Basic Agency Principles
Allocation of Authority Between Attorney and Client
Clients with Diminished Capacity
Duty to Communicate
Interference with the Attorney-Client Relationship
Anti-Contact Rule
Anti-Contact Rule Where an Entity Is the Client
Anti-Contact Rule in Criminal Cases

Chapter 4 Attorneys’ Fees and Transactions

with Clients
 Reasonableness of Fees
Contingent Fees
Taking Stock in Clients
Sharing Fees with Other Lawyers
Holding Client Funds: Trust Accounts

Chapter 5 Representing Entities and Groups

Introduction
Complex Clients: Understanding the Beneficiary of the
Lawyer’s Duties
Publicly Traded Corporations
Structure of Rule 1.13
Corporate Wrongdoing
The Sarbanes-Oxley Act
Corporate Families
Dealing with Agents of the Entity

Chapter 6 Incompetence: Remedies for

Malpractice and Constitutional
Ineffectiveness
Introduction
The Duty of Competence
The Tort of Malpractice
Duty and Standard of Care
Breach of Duty
Causation
Damages
The Sixth Amendment

xiii

The Strickland Two-Part Test

 Recent Elaborations on the Right to Effective
Assistance of Counsel

Chapter 7 Confidentiality and Secrecy

Introduction: Why Lawyers Should Keep Secrets
Voluntary and Involuntary Disclosure

Chapter 8 Attorney-Client Privilege and Work

Product Doctrine
Elements of the Attorney-Client Privilege
Communication
Privileged Persons
In Confidence
Purpose
Facts Not Protected
The Attorney-Client Privilege for Entities
Exceptions to the Privilege and Waiver
Crime-Fraud Exception
Intentional Revelation and “Selective Waiver”
Inadvertent Disclosure
Putting Assistance or Communications in Issue
Waivers of Work Product Protection
No “Borrowed Wits”: The Work Product Doctrine

Chapter 9 Professional Duty of

Confidentiality
Introduction
Our Lips Are Sealed: The Professional Duty of
Confidentiality
Exceptions to the Professional Duty
 Authorized in Order to Carry Out Representation —
Rule 1.6(a)
Informed Consent — ​Rule 1.6(a) Rule 1.6(b)
Exceptions
Disclosure to Prevent Wrongdoing
Physical Injury to Others (and Crimes) — ​Rule
1.6(b)(1)
Financial Harms — ​Rule 1.6(b)(2), (b)(3)
Other Permissive Disclosure Scenarios
Securing Legal Advice — Rule 1.6(b)(4)
Self-Defense — R​ ule 1.6(b)(5)
Compliance with Law — ​Rule 1.6(b)(6)
Conflicts Checking — Rule 1.6(b)(7)

xiv

PART II. SECRETS AND LIES: PERJURY AND

THE PROBLEM OF CLIENT FRAUD

Chapter 10 Perjury in Civil and Criminal

Litigation: The Lawyer’s “Trilemma”
Introduction
Model Rule 3.3 on Perjury
Prospective
Active Participation by the Lawyer
Passive Involvement by the Lawyer
Actual Knowledge of Falsity
Retrospective
Disclosure of Adverse Authority
Criminal Cases: Professional Duties in Tension
Alternative Responses to Perjury in Criminal Cases
“Tell the Court What Happened”: The Narrative
Solution
 Passing the Buck: Withdrawal

Chapter 11 Attorney Conduct in Litigation:

Forensic Tactics, Fair and Foul
Introduction
Ex Parte Contacts with Judges and Jurors
Taking Advantage of Your Opponent’s Mistakes
Lying in Negotiations
Frivolous Pleadings, Motions, and Contentions
Surveillance, Surreptitious Taping, and Other
Sneaky Evidence Gathering
Witness Coaching
First Amendment Issues
Trying a Case in the Press
Criticism of Judges
Prosecutorial Misconduct

Chapter 12 The Client Fraud Problem

Introduction
Lawyer Liability for Participating in Client Wrongdoing
Common Law Fraud
Securities Fraud
Aiding and Abetting Breach of Fiduciary Duty
Legal Malpractice

xv

Discipline for Making False Statements

Confidentiality and Client Fraud: Rule 1.6 and
Sarbanes-Oxley

PART III. CONFLICTS OF INTEREST

Chapter 13 Overview of Conflicts of Interest
Introduction
Loyalty
Independence
Confidentiality
Process Integrity
Client Choice and Availability of Counsel
Economic Liberty of Lawyers
Avoiding Game-Playing with Conflicts Rules
Discipline and Punish: Remedies for Conflicts
Disqualification
Malpractice

Chapter 14 Concurrent Conflicts

Introduction
Analysis of Concurrent Conflicts Problems
Identify Client Relationships
Identify Conflicts
Significance of Direct Adversity and Material
Limitation Language
Actual and Potential Conflicts
Confidentiality-Related Conflicts
Ascertain Consentability
Prohibited by Law
Client Versus Client in the Same Litigation
Objectively Unreasonable
See If There Has Been Effective Consent
Requirement of Written Consent
“What We Cannot Speak of We Must Pass over
in Silence”
Advance Waivers
Imputation
Summing Up
xvi

Chapter 15 Concurrent Conflicts Issues in

Specific Contexts
Criminal Cases
Transactional Matters
Positional (“Issue”) Conflicts
The “Eternal Triangle” for Insurance Defense Lawyers
Client Identification
Conflicts
Reservation of Rights
Settlement
Multiple Parties
Duty to Communicate and Confidentiality

Chapter 16 Former-Client Conflicts and

Migratory Lawyers
Introduction
Side-Switching Former-Client Conflicts
Review: Termination of the Attorney-Client
Relationship
Analysis of Side-Switching Former-Client Conflicts
Problems
Representing a Client
Identify the Matter
The “Substantial Relationship” Test
Material Adversity
Consent
Coming in Second Place in a Beauty Contest
Migratory Lawyers
Analysis of Migratory Lawyer Problems
 Definition of “Representation”: The Silver Chrysler
Rule
Substantial Relationship
The “Typhoid Mary” Problem: Imputed Conflicts and
Screening
Elements of an Effective Screen
Lingering Taints of the Departed Lawyer
Migratory Nonlawyers
The Special Situation of Former Government Lawyers
Side-Switching Judges and Law Clerks

Chapter 17 Personal-Interest Conflicts

Introduction
Business Transactions with Clients — R
​ ule 1.8(a)
Adverse Use of Confidential Information — ​Rule
1.8(b)

xvii

Gifts to Lawyers — ​Rule 1.8(c)

Media Rights — Rule 1.8(d)
Problems of Litigation Funding and Client Support
Keeping the Client Afloat — R ​ ule 1.8(e)
Investing in Litigation — R
​ ule 1.8(i)
Third-Party Fee-Payor Conflicts — R ​ ule 1.8(f)
Aggregate Settlements — Rule 1.8(g)
Prospective Waivers and Settlements — R ​ ule 1.8(h)
Sexual Relationships with Clients — R ​ ule 1.8(j)
Imputation of Lawyer-Client Conflicts
Advocate-Witness Rule

PART IV. ORGANIZATION AND REGULATION

OF THE LEGAL PROFESSION
Chapter 18 Attracting Clients: Advertising and
Solicitation
Introduction
Constitutional Decisions
Advertising Cases
In-Person Solicitation Cases
Disciplinary Rules
General Prohibition on False or Misleading
Communications
Truthful, Non-Deceptive Advertising Is Permitted
Lawyer Referral Services
In-Person Solicitation Is More Tightly Restricted

Chapter 19 Associations of Lawyers

Practicing with Other Lawyers
Responsibilities of Supervising Lawyers
“Just Following Orders”: Responsibilities of
Subordinate Lawyers
Outsourcing
Intra-Firm Fiduciary Duties
Practicing with Nonlawyers: The MDP “Problem”
Fee-Splitting
Partnerships and Corporations with Nonlawyer
Members
Professional Judgment
Attorney-Client Privilege and Confidentiality

xviii

Chapter 20 The Organized Bar

Regulating Entry into the Profession
 Legal Authority to Regulate
Requirements for Admission
Physical Presence Requirements
Character and Fitness Screening
The Organized Bar: Regulating the Practice of Law
Reporting Professional Misconduct
Extra-Professional Crimes
Catch-All Misconduct Rules
#Us Too: Discrimination in the Legal Profession
Whose Law Is It Anyway?
Unauthorized Practice of Law (UPL)
Multijurisdictional Practice
The Birbrower Bombshell
Multijurisdictional Practice Reform
Pro Bono Representation

PART V. JUDICIAL ETHICS

Chapter 21 The Judicial Role

Introduction
How Lawyers and Judges Are Different
General Principles of Judicial Ethics
Who Counts?
Affiliations, Memberships, and Activities
Disqualification and Recusal
Conduct of Litigation
Table of Cases
Index
xix

Preface

No matter what area of law you choose to specialize in, I guarantee

that you will practice the subject of this course. You may never file a
motion for summary judgment, appear at a preliminary hearing or
sentencing, perfect a security interest, prepare a will, or draft
comments on proposed new regulations; but you will, at some time,
think about what you are learning in your Professional Responsibility
course. You may have to decide whether you can represent a new
client in light of your obligations to an existing client. You certainly
will have to keep client confidences, and at some point, you may
need to assert a privilege covering certain confidential
communications to prevent them from being discovered by others.
You may bill clients for your services, in which case you need to
know the rules governing attorneys’ fees, and you may even
advertise for business. One way or the other, you will have to know
the law of professional responsibility.
One of the major themes of this book is that you cannot
understand your duties and responsibilities as a lawyer just by
looking at the disciplinary rules, sometimes called “ethics codes” or
“rules of ethics.” The ABA Model Rules of Professional Conduct, in
whatever version they are adopted in your state, are the basis for
potential professional discipline by state bar authorities, but this
discipline is not the only thing that lawyers must worry about in
practice. Your day-to-day actions also will be influenced by the
possibility of liability for malpractice to your client, sanctions imposed
by a court under its inherent power or rules of procedure, potential
loss of entitlement to fees, disqualification from representing a
client, and waiver of evidentiary privileges. Not to slight the
importance of the disciplinary system, but by the calculations of
some scholars, a lawyer is over a thousand times more likely to pay
out in excess of $10,000 in a malpractice lawsuit, by way of
judgment or settlement, than to be disbarred. Which risk do you
think is more likely to demand one’s attention? Furthermore, many
significant areas of professional responsibility law, such as conflicts
of interest and the attorney-client privilege, are driven almost
entirely by considerations unrelated to professional discipline, such
as disqualification and loss of fees in the case of conflicts, or the
desire to protect client communications from disclosure in court in
the case of the attorney-client privilege. Thus, it is vitally important
to consider the whole field of the law governing lawyers — ​not just
the disciplinary rules.
This does not mean that we will not consider the disciplinary rules
carefully. In fact, the Model Rules are central to much of the book.
In many
xx
cases, however, we will move beyond the state bar disciplinary rules
and discuss the relationship with other sources of law. For example,
the professional duty of confidentiality, stated in Model Rule 1.6, is
often confused with the attorney-client privilege, which is a creature
of the law of evidence. By looking at the evidentiary privilege with
some care, you can see the distinctions and overlap between these
two doctrines. Even if your law school course is limited to study of
the Model Rules, the contrast with the attorney-client privilege can
sharpen your understanding of the precise boundaries of the duty of
confidentiality. It is more likely, however, that your Professional
Responsibility course will touch on other areas of law, such as the
evidence rules governing privileges; the Sixth Amendment doctrines
pertaining to ineffective assistance of counsel; the law of agency,
partnership, and corporations as it pertains to conflicts of interest;
client identification; fiduciary duties; and the tort and regulatory law
of fraud.
Thus, the first goal of this book is to integrate these other sources
of law with specific professional responsibility rules so that you can
get a complete picture of your duties as a lawyer. Unlike some other
textbooks, this book does not draw an artificial distinction between
analysis of the disciplinary rules and other law that applies to
lawyers representing clients. In some places, the result of this
integration may be greater complexity and length of treatment, but I
believe it is warranted by the importance of understanding the
interaction between the bar’s own rules and other legal norms that
lawyers must take into account. The second goal of the book is to
make you aware of the theory and policy reasons underlying the law
governing lawyers. Your law school course may be aimed more at
ethics (in the philosophical sense of reasoning about right and
wrong) than at law. In other words, you may be asked to step back
from the law and understand the role of the lawyer in terms of its
function in our society, the history of the profession, general rational
standards of right and wrong, or the perspective of some other
discipline. Although no textbook of reasonable length can do justice
to these alternative perspectives on the legal profession, I do hope
at least to introduce them and show how they affect the law as it
develops.
xxi

Acknowledgments

The influence of a number of professional responsibility scholars,

several of whom are authors of casebooks and treatises, will be
evident in this book. I owe an additional debt of gratitude to the
lively and diverse community of lawyers and academics who
populate the legalethics listserv, whose informative discussions of
many issues were extremely helpful to me along the way. A number
of those list members generously shared their course materials and
exams with me. Special thanks are due to those who maintain free
online resources, from which I have frequently learned a great deal:
in particular, William Freivogel and Lucian Pera for their electronic
newsletter Ethics and Lawyering Today, William Freivogel for his
online mini-treatise Freivogel on Conflicts, and Tom Spahn for his
periodic bulletin Privilege Points. I also am grateful to my colleagues
in other fields who helped clarify specialized points of law as they
relate to the professional responsibility issues presented here.
Finally, thanks to the many students at Washington and Lee and
Cornell who have challenged me to think more carefully about the
law of lawyering. At many points in the evolution of this book, I can
recall a student pressing a point in class or in an e-mail exchange
afterward, and these discussions are often reflected in the text or
the examples. As convenient as it would be to blame any remaining
errors on my students or the community of professional
responsibility specialists, I of course take sole responsibility for them.
Thanks are due to the editorial staff of Wolters Kluwer (formerly
Aspen Publishers) over the life of this book, who provided countless
suggestions to improve the book in substance and form. It has been
a pleasure to work with this excellent team.
Listserv now seems almost as antiquated as rotary-dial phones,
and the legalethics list has mostly been replaced by the Legal Ethics
Forum (LEF) blog as the place for scholars in this field to hang out
online. Special thanks to John Steele for his indefatigable energy in
keeping the blog running. I am grateful to Andy Perlman (also an
essential LEF blogger) for inviting me to serve as a Reporter to one
of the ABA Ethics 20/20 working groups, from which I learned a
tremendous amount. Bryant Danner at USC has been an enthusiastic
adopter of the book and an invaluable source of suggestions for
improvement — ​keep the comments coming, Bry! Among teachers
who have adopted the book for use in class, Bill Simon, Brent
Landau, and Martha
xxii
Pacold have also given me helpful comments on the book. Finally,
considerable gratitude is owed to Nancy Moore and the rest of the
Multistate Professional Responsibility Examination (MPRE) drafting
committee for knowing more about the law of lawyering than I ever
thought possible and challenging me to keep up.
xxiii

Citations and Other

Stylistic Practices

Other than citations to sources of law, such as disciplinary rules and

the Restatement, I will be sparing with cites. In some cases, you
may wish to refer to a more detailed reference work for additional
guidance, so there are occasional citations to treatises, Restatement
commentary, and the like. I have tried to keep footnotes to a
minimum, except for citations, but occasionally there is some
parenthetical information in a footnote, such as a definition of a
word used in the text or an aside on some point that is interesting
but peripheral to the discussion in the text. Alterations and omissions
to text are indicated by ellipses or brackets, but I have freely
italicized text for emphasis without putting “emphasis added” notices
everywhere. You can assume that italics are mine unless otherwise
indicated.
I will not be a stickler for the Bluebook here. Instead, to save
space, I will use the following abbreviations.

SOURCES OF LAW

Model Rules ABA Model Rules of Professional Conduct (as

amended by the Ethics 2000 Commission and the
Commission on Ethics 20/20)
Rule XX Model Rule (most current version)
1983 vers. Version of the Model Rules adopted by the ABA House
of Delegates in 1983 and amended through August
2001
Ethics 20/20 ABA Commission on Ethics 20/20, formed in 2009 and
active through 2012. Alternatively, the version of the
Model Rules proposed by the Ethics 20/20
Commission and adopted by the ABA House of
Delegates
Model Code ABA Model Code of Professional Responsibility
(adopted in 1969, as amended through 1981)

xxiv

EC Ethical Consideration
DR Disciplinary Rule
Rest. §XX Restatement (Third) of the Law Governing Lawyers
(2000)
CJC Rule XX ABA Model Code of Judicial Conduct (2010)
cmt. Comment (to Model Rules, Restatement, or CJC
section)

REFERENCE WORKS

H&H Geoffrey C. Hazard, Jr. & W. William Hodes, The Law

of Lawyering (3d ed. 2001)
Wolfram Charles Wolfram, Modern Legal Ethics (1986)
R&D Ronald D. Rotunda & John S. Dzienkowski,
Professional Responsibility: A Student’s Guide (2012–
2013 edition)
 Unless otherwise specified, the examples and explanations in the
book take place in the fictional U.S. State of Perplexity, which has
adopted the ABA Model Rules of Professional Conduct (most current
version) verbatim as its disciplinary rules.
A brief note about pronouns is also in order. The problem is, of
course, that English lacks a third-person singular pronoun that is not
gender-specific. Arguably, the masculine pronoun once carried the
conventional meaning “he or she,” but this usage is increasingly less
acceptable. There really is not a good alternative. I tend to use the
feminine pronoun generically in academic writing, but I am the first
to admit it makes no sense, because “she” has never carried the
conventional meaning “he or she.” My justification for this practice is
based on the observation that people make unconscious use of
images in what purports to be purely logical analysis. Try an
example. A partner at a law firm gets a call. . . . Stop! You’ve
probably already formed a mental picture of the setting. The partner
is a man, probably white, with graying hair, wearing a gray
pinstriped suit and conservative tie, in a corner office with
spectacular views, sitting behind a mahogany desk on which are
piled neat stacks of correspondence and documents. We cannot help
using images like this, but it is troublesome that men figure so
prominently in
xxv
our images of people in power. Using the feminine singular pronoun
is my feeble effort to introduce alternative images of women as
lawyers, judges, and clients. Light a candle or curse the darkness.
Some people find this practice distracting, and others will cry
“politically correct!” Of course, an equal number of people are
distracted or politically provoked by the incessant use of the
masculine pronoun. My solution — ​sure to satisfy no one — ​is to mix
up he and she, pretty much at random, unless it is possible to write
around the pronoun in some fashion.
1

INTRODUCTION
“Every thing is what it is, and not another thing.”
— Isaiah Berlin, “Two Concepts of Liberty,” quoting Joseph Butler

This may be the course in law school in which there is the most
variation in subject matter and emphasis. Torts is torts, evidence is
evidence, but students are often unsure of the scope of a course in
professional responsibility. This identity crisis is revealed in the
variety of course titles used by schools: professional responsibility,
the legal profession, lawyers and clients, legal ethics. There seem to
be at least two distinct subjects wrapped up together under the label
of professional responsibility, one having to do with law, the other
having to do with standards of right and wrong that are independent
of the law. The American Bar Association (ABA) insists that all
accredited law schools require a course in the “history, goals,
structure, duties, values, and responsibilities of the legal profession
and its members.” ABA Standards for Approval of Law Schools,
Standard 302(b). This language is pretty broad, and a wide variety
of courses can be offered that satisfy the ABA’s requirement, as long
as the course includes some instruction about the ABA Model Rules
of Professional Conduct. Owing to the flexibility of the ABA’s
standard, and the fact that law professors have many different
approaches to the study of the legal profession, you could
conceivably study the rules of professional conduct or the law of
malpractice and litigation sanctions, or you could take an
interdisciplinary approach borrowing from literature, films,
2
moral philosophy, sociology, or theology, in a course called
professional responsibility.
Throughout this book, I will talk about both professional
responsibility and legal ethics. The first term is somewhat easier to
define. “Professional responsibility” refers to what may be called the
law of lawyering or the regulation of lawyers. As a practicing lawyer,
you will be subject to legal regulations that are promulgated by
many different government bodies, including state bar associations,
courts before which you appear, legislatures, and administrative
agencies. The highest court in any state has the inherent power to
regulate the conduct of lawyers practicing in that state; in practice,
the court generally delegates considerable power to a state bar
association, which establishes rules of conduct for lawyers and
investigates and punishes violations of those rules. In most states,
these disciplinary rules are patterned after rules drafted by
committees of the ABA. You may be subjected to professional
discipline (reprimand, suspension, disbarment, and other
punishments) for violating these rules. There are plenty of other bad
things that can happen to you, though. You may be sued by a client
for malpractice, held liable for damages to a third party, disqualified
by a court from representing a client, forced to return earned
attorneys’ fees, held constitutionally ineffective in a criminal defense
case, or, in rare cases, even criminally prosecuted.
 In each of these cases, the result is driven primarily by generally
applicable law — ​that is, rules of procedure, tort principles, or
criminal statutes that apply without regard to the state bar
disciplinary rules. Sometimes the generally applicable law makes
reference to the disciplinary rules, as when failure to comply with
the tort-law duty of reasonable care may be proven by the lawyer’s
failure to comply with a bar association rule. In other cases, the
court can either ignore or modify the applicable disciplinary rule. For
example, a court may hold a lawyer liable for aiding and abetting her
client’s fraud on the grounds that the lawyer should have disclosed a
particular fact in a transaction, regardless of whether the lawyer had
a professional obligation to keep the fact secret. Remember that
fundamentally, the bar disciplinary rules are really a matter of
internal governance of the bar association; they are not binding on
courts outside of disciplinary proceedings.
The law is not as much of a mess as you may think after reading
the last paragraph. As a practical matter, courts try not to reach
results that are wildly at odds with the organized bar’s disciplinary
rules. They may be influenced by the bar’s statements about the
obligations of lawyers and may defer to the organized bar as a
matter of respect or comity. However, it is a major theme of this
book that you must not confine your thinking about the law of
professional responsibility to the Model Rules. As we will see again
and again, you cannot fully understand your legal obligations as a
lawyer without knowing something about tort, contract, agency,
procedure, and criminal law. If you are working in a highly
specialized area like securities law or financial-institution regulation,
you have to know a great deal about the
3
underlying substantive law, too, because it may affect your duties in
ways that the disciplinary rules simply do not take into account.
Where does this leave legal ethics? There are basically two ways
to approach legal ethics. One is to look at the cases and rules that
compose the law governing lawyers to see what values, policies, and
ideals are embodied in the law. A rule that requires lawyers to keep
secrets, where disclosing the information would prevent personal
injuries or avert a financial fraud, expresses a strong bias in favor of
loyalty to clients and away from some kind of generalized duty on
the part of lawyers to do justice or look out for the greater social
good. (Of course, one can always respond that justice and social
good are more likely to result in the long run if lawyers are primarily
concerned with representing their clients’ best interests.) You may
find competing policies, however, such as the values underlying the
rules against presenting perjury at trial. It is fascinating to uncover
these policies and see how they affect the outcomes of cases.
Getting clear on these underlying values also helps you to predict
results where the law is unclear and to become more comfortable
with the inevitable “gray areas” in the law in which clear answers are
in short supply. In a sense, then, legal ethics is just a name for a
system of policy arguments that justify official decisions applying the
law of lawyering. To the extent this book addresses legal ethics, it is
primarily in this sense.
The second perspective one can take on legal ethics is to stand
outside the law altogether and ask whether it is right or wrong to
take some action. Suppose the lawyer knows a secret about her
client, and knows that several people will be in jeopardy of death or
personal injury if the secret is not revealed. Should she keep the
secret? Under certain conditions, she would have a legal obligation
not to reveal the information, but that obligation is not necessarily
conclusive of her moral duty. She may have to be a conscientious
objector and put aside her fidelity to the law, in favor of a greater
moral obligation. How is she to determine the nature of that
obligation? That is the subject matter of the academic discipline of
ethics, usually studied as a branch of philosophy, but which may be
encountered in history, literature, political science, theology,
sociology, or other fields of inquiry. In the philosophical tradition,
ethics is the study of concepts such as goodness, right action, duty,
and what ends we ought to choose and pursue as rational beings. It
is quite a complex and specialized subject, and you probably will not
go into much detail in a law school course. Still, you might encounter
concepts borrowed from philosophical ethics, such as values, virtues,
duties, consequences, goods, and principles. Alternatively, you might
approach the same issues using different terminology, or your
instructor might attempt to strip away the jargon altogether and
simply get you to think about ethical questions, perhaps by reading
novels or watching films. You should pay close attention to the
structure of your course, and if your instructor favors
interdisciplinary approaches, plan your preparation and study
accordingly.
4
A careful, rigorous exploration of legal ethics in this sense is beyond
the scope of this book.
I strongly object to the use of the term “legal ethics” to refer to
lawyers’ obligations under the state bar disciplinary rules, or the law
governing lawyers in general. For one thing, using the term in that
way requires invention of an awkward new term, such as “real
ethics” to describe what nonlawyers would simply call ethics.1
Furthermore, some lawyers might be tempted to regard rules of
“ethics” as merely aspirational or theoretical, when in fact the rules
of professional conduct of the states are law, and unpleasant legal
consequences can attach to their violation. On a related note,
because the rules of professional conduct are law, they have
intricacies and subtleties of which even morally reflective people may
not be aware. Complying with the law of lawyering is not just a
matter of “being good,” as understood in commonsense moral terms.
Most important, referring to lawyers’ legal obligations as a matter of
ethics suggests that being a good person is primarily a matter of
following legal rules. But one can be a complete sleazeball from the
standpoint of morality and never violate a single rule in the law
governing lawyers. Because there is much more to the moral life
than complying with the law, I would not want to contribute to this
kind of confusion. In a basically decent society, there will be
substantial overlap between legal and moral requirements, but it is
important to draw an analytical distinction between the two. As we
will see, there are several areas in which the organized bar’s
disciplinary rules may seem to be at odds with ordinary moral
standards.

WHO SHOULD REGULATE LAWYERS?

The Organized Bar: Models and Legally Binding

Rules
It is one of the primary characteristics of professions that they are
self-regulating. One of the distinctions between a profession, such as
law or medicine, and a “mere” business such as plumbing or
advertising is that professions carefully control entry and training
(through licensing and examination requirements) and continued
membership (through disciplinary mechanisms). A plumber who
botches a job may be sued by the client, but she is unlikely to be
dragged before the Plumber’s Disciplinary Board, if there is such a
thing, and publicly reprimanded. Lawyers, on the other hand, face
internal disciplinary procedures for conduct that violates
5
professional standards. In this book, I will refer to these internal
regulatory standards as the disciplinary rules of a state and talk in
terms of whether a lawyer would be subject to discipline for doing
such-and-such.2 Again you should be aware, though, that others
may use the term “ethics rules” or “legal ethics” to refer to the same
thing, and may ask whether certain conduct is “unethical.” Whatever
you call them, the idea behind the disciplinary rules is that the legal
profession should be self-policing. If the organized bar acts to get rid
of the bad apples, the argument goes, the result will be increased
public respect for the bar, the enhanced legitimacy of the profession,
and less pressure for external regulation of the practice of law.
The disciplinary rules in effect in the vast majority of U.S.
jurisdictions are versions of the Model Rules of Professional Conduct,
prepared by the ABA. Legally speaking, the ABA is just a trade
association, no different from the Piano Tuners Guild or the
American Academy of Otolaryngology. It is not empowered to make
binding laws any more than these other organizations. The Model
Rules are not called “model” for nothing. State courts do, however,
have the power to establish legally enforceable disciplinary rules as
part of the inherent power of the judiciary. Wolfram §2.2.1. Pursuant
to what I refer to as “Track One” inherent authority, the highest
court in a jurisdiction can promulgate rules governing the admission,
regulation, and discipline of lawyers in that state.3 When exercising
their inherent authority to formulate disciplinary rules, rather than
reinvent the wheel, state courts generally have looked to the ABA’s
models for guidance.
To make your life more complicated, most state courts have not
simply adopted the ABA’s Model Rules verbatim, but have tinkered
around with the ABA versions. As a general rule, the more
controversial the ABA rule, the more you can expect the individual
states to have fiddled with it. For example, very few states have
adopted the model form of Rule 1.6 on confidential client
information, which was the flashpoint for a tremendous amount of
debate over the initial draft of the Model Rules. These are not
cosmetic differences in language, either. In many cases, the
fundamental nature of the lawyer’s duty varies substantially from the
ABA’s rule. Although an attorney may be forbidden to disclose
something under the Model Rules, the lawyer may be required to
disclose it under the version of the rules adopted in a given state.

Throughout the book, I will refer to the state disciplinary

authority, without regard to the particulars of how it is organized. By
that term I mean the official committee, agency, or state bar
association that is empowered to draft and promulgate rules of
professional conduct, to regulate admission to practice law in a
state, and to mete out punishment for lawyers who violate the
disciplinary rules.4
The situation is even more variable in the federal courts. Federal
courts have their own inherent authority to regulate the practice of
lawyers who appear in them and are not bound to apply the rules of
the forum state in which they are located. There are three general
approaches that federal district courts follow: (1) adopt the ABA
version of the Model Rules; (2) adopt the forum state’s version of
the Model Rules; or (3) adopt idiosyncratic rules that are not
necessarily the same as the ABA or state version of the disciplinary
rules. If you practice in federal court, you’ll have to pay attention to
the approach adopted by a particular court. Often the court will set
out in its local rules the rules it intends to follow for the regulation of
attorneys practicing in that court.
From time to time, state bar associations and the ABA publish
opinions explaining how, in their view, a given situation would be
treated under the disciplinary rules. In general, those opinions are
useful guides to interpreting the disciplinary rules but are not binding
on a court in a malpractice, disqualification, or similar proceeding.
State opinions may be binding in disciplinary proceedings, depending
on the law of that state. We will look at a couple of ABA opinions in
some detail, and I frequently will cite ABA opinions where they help
interpret a provision of the Model Rules, but state opinions are just
too voluminous and diverse to deal with here.

Courts and Legislatures

Despite the rhetoric from the organized bar about how the legal
profession should be self-governing, courts get into the act of
regulating lawyers all the time.5 When a judge permits a malpractice
action to go to the jury, she is deciding that under a particular set of
facts, a lawyer may be liable to pay
7
damages to an aggrieved client or third party. That’s as good as a
disciplinary rule in getting the attention of lawyers. From then on,
lawyers in that state will modify their behavior in order not to run
afoul of this new rule of tort law. Similarly, when a court sanctions a
lawyer for abusing the litigation process — ​or disqualifies a lawyer
from representing a client in a matter — ​ the court is announcing a
rule of law that shapes the conduct of lawyers in that jurisdiction.
This is regulation of the practice of law, even if it is not set forth in
Rule X of the state’s disciplinary rules.
Where the regulation of lawyers by a federal statute or
administrative regulation is involved, don’t forget about issues of
federal preemption. This has been a running theme throughout the
development of the law governing lawyers, and you may see
references to the controversy between the Justice Department and
state bar authorities over the application to federal prosecutors of
the anti-contact rule, Rule 4.2. (See Chapter 3 for more discussion.)
A high-profile iteration of this debate arose when the Washington
State Bar Association announced that lawyers admitted in
Washington would be required to keep information learned in the
course of representing clients confidential, even where disclosure
would be required by the Securities and Exchange Commission
(SEC) regulations promulgated under the Sarbanes-Oxley Act. The
SEC’s General Counsel responded with a fairly sharply worded letter
reminding the Washington bar authorities of a little thing in the U.S.
Constitution called the Supremacy Clause. Although the Washington
bar refused to back down, the view among most observers who
know this area was that the SEC’s position is correct as a matter of
constitutional law. (The Washington State courts later changed the
rule to permit disclosure of confidential information under these
circumstances.) The North Carolina bar’s ethics committee agreed
and issued an opinion stating that an attorney may reveal
confidential information where required by the Sarbanes-Oxley
regulations, even if the disciplinary rules prohibit disclosure. North
Carolina State Bar Ethics Comm., Formal Op. 2005-9.
Although the source of regulatory authority is somewhat different,
judicial decisions and disciplinary rules may actually adhere to the
same standards. Courts are often willing to borrow from their state’s
disciplinary rules when deciding whether a lawyer should be
punished in some way. A good example is disqualification for
conflicts of interest. Trial courts have the authority — ​what I call
Track Two inherent power — ​to regulate the activities of lawyers
who practice before them, and that includes the power to regulate
multiple representation. In theory, a court could come up with a set
of standards for disqualification that have no relationship whatsoever
to the disciplinary rules governing conflicts of interest. But it would
be silly to create these rules in a vacuum. The disciplinary rules are
well thought out and reflect a lot of study, at both the ABA and the
local levels. Their existence also gives lawyers some notice as to
what conduct is prohibited. For these reasons, judges often will
apply the standards of, say, Model Rule 1.7 on
8
current-client conflicts when deciding whether to disqualify a lawyer.
In this way, a body of judicial decisions can grow up around the
disciplinary rules, even where lawyers aren’t being hauled before a
state bar grievance committee for punishment.
I will use the term generally applicable law to refer to sources of
legal authority, such as cases, statutes, and administrative
regulations that apply regardless of whether someone is a lawyer.
For example, securities laws prohibit making a false statement of
material fact in connection with the purchase or sale of securities.
This rule applies to both nonlawyers (for example, securities
brokers) and lawyers. Although there are some complications
relating to the precise definition of who may be sued for complicity
in securities fraud, in general a lawyer may be liable to defrauded
investors for making a false statement in connection with the
purchase or sale of securities. This is true regardless of anything the
state bar disciplinary rules might provide. Some of the ugliest
situations a lawyer can confront involve conflicts between the duties
prescribed by the organized bar and the duties set out by other legal
rules. Maybe the rules say that a lawyer must remain silent if the
client instructs her not to disclose some fact that would make the
client’s statement not misleading. If the lawyer had any part in
preparing the client’s statement, however, the lawyer is looking at
some serious financial liability for securities fraud if she doesn’t
speak up.
Keeping in mind the importance of generally applicable law, we
can briefly review the development of the organized bar’s
disciplinary rules.

A BIT OF ANCIENT HISTORY, AND WHY IT

MATTERS

The ABA Canons

The ABA has long been in the business of drafting standards of
conduct for lawyers. Its first crack at this task was in 1908 when it
issued a series of Canons of Professional Ethics, drawn largely from
a series of lectures given in the nineteenth century by an early
scholar of legal ethics, George Sharswood. (By the way, please don’t
write “cannons” — ​we’re not talking about artillery here.) As the
name “canons” with all its religious resonance implies, these
statements were not black-letter legal rules intended for
enforcement by courts or bar associations. Rather, they set out a
“general guide” for lawyers. The ABA realized that most lawyers
could not comply with all of the Canons all of the time; the Canons
were avowedly aspirational or idealistic in nature. Consider, for
example, Canon 17: “Clients, not lawyers, are the litigants. Whatever
may be the ill-feeling existing between
9
clients, it should not be allowed to influence counsel in their conduct
and demeanor toward each other or toward suitors in the case.” This
standard is plainly not supposed to be the basis for disciplining
obnoxious lawyers, but is rather intended to inspire lawyers to try
harder not to get too involved emotionally in their clients’ cases. In
other words, the ABA did not see itself as being in the business of
regulating the practice of law. Rather, the drafters of the Canons
believed they were simply restating in a formal way the norms and
customs of the profession as they were observed by practicing
lawyers.
Despite the obviously nonmandatory character of the document,
lawyers sometimes got in trouble for violating one of the Canons.
Judges have long enjoyed inherent authority to regulate the
behavior of lawyers who appear before them. Rather than come up
with standards from scratch, courts have frequently looked to the
organized bar for guidance on the question of what is appropriate
professional conduct for lawyers. Thus, the ABA’s Canons started to
seep into judicial opinions, in cases where the court was called upon
to determine whether one of the lawyers did something wrong. The
common law being what it is, some of these earlier opinions got
cited over and over, and pretty soon a parallel set of rules had
emerged, based on the ABA Canons, but with some wrinkles of their
own. In general, these court-made rules were more precisely drawn
than the Canons, which made sense in light of their function — ​not
to inspire lawyers to reach new heights of professional excellence,
but to set a floor below which professional conduct should not fall.

The Model Code

The ABA took notice of this development and decided to produce a
much more detailed set of professional standards, one that would
reflect the distinction between ideals and minimum standards. The
resulting Model Code of Professional Responsibility (first
promulgated in 1970) was divided into canons, ethical
considerations, and disciplinary rules, which are grouped by subject
matter. The nine canons in the Model Code had the flavor of the old
ABA Canons; they were highly general and idealistic in nature. “A
lawyer should represent a client zealously within the bounds of the
law,” said Canon 7, for instance. Ethical considerations, known
colloquially as “ECs,” were much more specific, but still idealistic in
nature. They were not intended to be the basis for professional
discipline or civil liability against a lawyer. Rather, they were
statements of “best practices” or aspirational guidelines for lawyers
seeking to be as responsible as possible. So, for example, under
Canon 7 on zealous advocacy within the bounds of the law, EC 7-3
gives some guidance on what a lawyer should do where the law is
unclear:

10

Where the bounds of law are uncertain, the action of a lawyer may depend on
whether he is serving as advocate or adviser. . . . In asserting a position on
behalf of his client, an advocate for the most part deals with past conduct and
must take the facts as he finds them. By contrast, a lawyer serving as adviser
primarily assists his client in determining the course of future conduct and
relationships. While serving as advocate, a lawyer should resolve in favor of his
client doubts as to the bounds of the law. In serving a client as adviser, a
lawyer in appropriate circumstances should give his professional opinion as to
what the ultimate decisions of the courts would likely be as to the applicable
law.

You get the picture. Obviously, something like EC 7-3 could never be
turned into a “black letter” rule and enforced through legal
processes.
The only legally enforceable rules in the Model Code are the
disciplinary rules, or “DRs,” which prohibit specifically described
conduct. On the same theme of advocacy within the bounds of the
law, here is a rule on disclosing client fraud:
A lawyer who receives information clearly establishing that [h]is client has, in
the course of the representation, perpetrated a fraud upon a person or tribunal
shall promptly call upon his client to rectify the same, and if his client refuses
or is unable to do so, he shall reveal the fraud to the affected person or
tribunal, except when the information is protected as a privileged
communication.

DR 7-102(b)(1). Note the mandatory language (“shall”), explicit

triggers of duty (receiving information “clearly establishing” fraud),
and rule-like structure (a general rule with an exception for revealing
privileged information), which distinguish DRs from the hortatory
canons and ECs. For the most part, when talking about the Model
Code, I will refer only to DRs, because you are probably primarily
concerned with understanding what a lawyer must do. If you are
interested in the more aspirational side of the organized bar’s
approach to professional regulation, you should read through the
ECs as well.
The ABA first promulgated the Model Code in 1970 and tinkered
around with it until 1981, when the last amended version was
issued. States rushed to adopt it and the legal regulation of lawyers,
which had been a low-key affair, suddenly took off. Courts began to
apply the rules in disqualification proceedings, expert witnesses
testified to the standard of care in legal malpractice cases with
reference to the rules, and lawyers figured out how to use certain
provisions of the rules (such as the prohibition on serving as both an
advocate and a witness) as weapons to gain a tactical advantage
over their opponents. One result of this explosion in judicial
decisions applying the DRs was that weaknesses in the Model Code
quickly became apparent and were sharply criticized. The two-tiered
structure, with ECs and DRs, was a persistent source of interpretive
difficulties. Theoretically, the ECs were not supposed to vary legal
duties as stated in the DRs, but
11
some courts (not unreasonably) used the ECs to clarify ambiguities
in the language of the black-letter rules. It became quite difficult for
lawyers to predict whether they would be subject to professional
discipline, because the profusion of sometimes inconsistent ECs
made it impossible to settle on a bottom-line rule. In addition, the
Model Code failed to cover a number of recurring situations, such as
the representation of a new client whose interests were adverse to a
former client, and the representation of entity clients. The Model
Code also focused principally on litigation and provided little
Another random document with
no related content on Scribd:
The day would come when Rosie Graham, and what Rosie Graham
thought, whether true or otherwise, would matter not at all to Lydia
Raymond.
 XII
Nevertheless, Rosie Graham’s anecdote of the girl who had gone
to Port Said, and her vehement advice to have nothing to do with the
Greek, continued to haunt Lydia’s mind.
Neither had she forgotten Miss Nettleship’s warning, and the sense
that the manageress was watching her with melancholy anxiety
caused her to surmise that Mr. Margoliouth had not yet made good
his assurance of payment.
She refused an invitation to go to the play with him, but was too
anxious that the boarders should continue to look upon her as the
heroine of an exciting love-affair to discourage him altogether,
although she had really made up her mind that she should not care
to be engaged to Margoliouth.
If the first man who had made her acquaintance since she left school
showed so much tendency to make love to her, Lydia shrewdly told
herself, there would certainly be others. She could well afford to wait,
in the certainty of eventually finding a man who would possess such
attractions and advantages as the Greek could not boast.
Meanwhile, Margoliouth made life interesting, and Lydia a subject of
universal observation and discussion.
She was feeling agreeably conscious of this on the Saturday
following her conversation with the manageress, as she came into
the boarding-house in time for the midday meal.
Miss Nettleship was hovering at the foot of the stairs and failed to
return Lydia’s smile.
“He’ll have to go,” she said without preliminary. “I got his cheque,
and the Bank has returned it. You see how it is, dear—a terrible
business. I don’t know whether I shan’t have to call the police in
even now before I get my money. He’s leaving on Monday, and if I’ve
not had the cash down from him, I don’t know what’ll happen, I’m
sure.”
“Oh, Miss Nettleship, how dreadful! I am sorry for you,” said Lydia,
giving expression to the surface emotion of her mind only, from habit
and instinct alike.
“Don’t you have anything more to do with him, dear,” said Miss
Nettleship distractedly. “That Agnes is letting something burn
downstairs. I can smell it as plain as anything. I’ll have to go. Poor
old Agnes! she means well but you quite understand how it is——”
The manageress hastened down the stairs to the basement.
Lydia could not help glancing at her neighbour in the dining-room
with a good deal of anxiety. He seemed quite imperturbable, and
said nothing about his departure.
Lydia, whose opinion of Miss Nettleship’s mentality was not an
exalted one, began to think that Mr. Margoliouth knew quite well that
he could pay his bills before Monday, and had no intention of going
away at all.
Otherwise, why was he not more uneasy? Far from uneasy,
Margoliouth seemed to be livelier than usual, paid Lydia one or two
small compliments with his usual half-condescending, half-sardonic
expression, and asked her if she would come out to tea with him that
afternoon.
Miss Nettleship was on one of her periodical excursions to the
kitchen, and Miss Forster, Mrs. Clarence, and Mrs. Bulteel were
listening with all their ears, and with as detached an expression as
each could contrive to assume.
“Thank you very much, I should like to,” said Lydia demurely.
They went to a newly-opened corner shop in Piccadilly, where a
small orchestra was playing, and little shaded pink lights stood upon
all the tables. The contrast with the foggy December dusk outside
struck pleasantly upon Lydia’s imagination, and she enjoyed herself,
and was talkative and animated.
Margoliouth stared at her with his unwinking black gaze, and when
they had finished tea he left his chair, and came to sit beside her on
the low plush sofa, that had its back to the wall.
“A girl like you shouldn’t go about London alone,” he suddenly
remarked, with a sort of unctuousness. “At least, not until she knows
something about life.”
“Oh, I can take care of myself,” said Lydia hastily.
“But you don’t know the dangers that a young girl of your attraction is
exposed to,” he persisted. “You don’t know what sort of brutes men
can be, do you?”
“No girl need ever be annoyed—unless she wants to be,” quoted
Lydia primly from Aunt Beryl’s wisdom.
“You think so, do you? Now, I wonder if you’ll still say that in three
years’ time. Do you know that you are the sort of woman to make
either a very good saint or a very good sinner?”
The world-old lure was too potent for Lydia’s youth and her vanity.
“Am I?” she said eagerly. “Sometimes I’ve thought that, too.”
The Greek put his hand upon her, slipping his arm through hers in
his favourite manner.
“Tell me about your little self, won’t you?” he said ingratiatingly.
“Always let the other people talk about themselves.”
Oh, inconvenient and ill-timed recollection of Grandpapa’s high,
decisive old voice! So vividly was it forced upon the ear of Lydia’s
unwilling memory that she could almost have believed herself at
Regency Terrace once more. The illusion checked her eager,
irrepressible grasp at the opportunity held out by the foreigner. The
game was spoilt.
“There’s nothing to tell,” she said abruptly, suddenly grown weary.
Grandpapa had said that long stories about oneself always bored
other people, whether or no they politely affected an appearance of
interest.
No doubt it was true.
Lydia knew that she herself was not apt to take any very real
interest, for instance, in Nathalie Palmer’s long letters about her
home, and the parish, and the new experiment of keeping hens at
the vicarage, nor in the many stories, all of them personal, told by
the girls at Elena’s, nor even in the monotonous recital of Miss
Nettleship’s difficulties with her servants.
Why should the Greek be interested in hearing Lydia’s opinion of
Lydia?
She cynically determined that it would not be worth while to put him
to the test.
“Let’s go home,” she said.
Margoliouth raised his eyebrows.
“I suppose that all women are capricious.”
His use of the word “women,” as applied to her nineteen-year-old
self, always insensibly flattered Lydia.
She let him take her back to the Bloomsbury boarding-house in a
hansom, and remained passive, although unresponsive, when he put
his arm round her, and pressed her against him in the narrow
confinement of the cab.
“Dear little girl!” sighed Margoliouth sentimentally, as he reluctantly
released her from his clasp when the cab stopped.
Lydia ran up the steps, agreeably surprised at the instant opening of
the door, and anxious to exchange the raw and foggy atmosphere
outside for the comparative warmth and light of the hall.
The dining-room door also stood open, and as Lydia came in Miss
Forster rushed out upon her.
“I’ve been waiting for you!” she cried effusively. “Come in here, my
dear, won’t you?”
“Into the dining-room?” said Lydia, amazed. “Why, there’s no fire
there! I’m going upstairs.”
“No, no,” said Miss Forster still more urgently, and laying a tightly-
gloved white-kid hand on Lydia’s arm. “There’s someone up there.”
She pointed mysteriously to the ceiling.
Lydia looked up, bewildered, but only saw Miss Nettleship, the gas-
light shining full on her pale, troubled face, hastening down the
stairs. She passed Lydia and Miss Forster unperceiving, and went
straight up to the Greek, who had just closed the street door behind
him.
“Mr. Margoliouth!” she said, in her usual breathless fashion. “You see
how it is—it’s quite all right, I’m sure ... but your wife has come.
She’s in the drawing-room.”
Margoliouth uttered a stifled exclamation, and then went upstairs
without another word.
Miss Forster almost dragged Lydia into the dining-room.
“There! Of course you didn’t know he was married, did you? Neither
did any of us, and I must say I think he’s behaved abominably.”
“But who is she? When did she come?” asked Lydia, still wholly
bewildered at the suddenness of the revelation.
“Sit down, and I’ll tell you all about it.”
Miss Forster settled her ample person in a chair, with a general
expression of undeniable satisfaction.
“Just about half an hour after you’d left the house, I was just
wondering if I should find dear Lady Honoret at home if I ran round—
you know my great friends, Sir Rupert and Lady Honoret. I’m sure
I’ve often mentioned them; they’re quite well-known people—but I
thought, of course, there wouldn’t be a chance of finding them
disengaged—she’s always somewhere—so Mrs. Bulteel and I were
settling down to a nice, cosy time over the fire. Irene had actually
made up quite a good fire, for once. And then the door opened”—
Miss Forster flung open an invisible portal with characteristic energy
—“and in comes Miss Nettleship—and I remember thinking to myself
at the time, in a sort of flash, you know: Miss Nettleship looks pale—
a sort of startled look—it just flashed through my mind. And this
woman was just behind her.”
“What is she like?”
Lydia was conscious of disappointment and humiliation, but she was
principally aware of extreme curiosity.
“Just what you’d expect,” said Miss Forster, with a decisiveness that
somehow mitigated the extremely cryptic nature of the description.
“The moment I saw her and realized who she was—and I’m bound to
say Miss Nettleship spoke her name at once—that moment I said to
myself that she was just what I should have expected her to be.”
Lydia, less eager for details of Miss Forster’s remarkable prescience
than for further information, still looked at her inquiringly.
“Dark, you know,” said Miss Forster. “Very dark—and stout.”
She described a circle of immense and improbable width. “Older
than he is, I should say—without a doubt. And wearing a white veil,
and one of those foreign-looking black hats tilted right over her eyes
—you know the sort of thing. And boots—buttoned boots. With a
check costume—exactly like a foreigner.”
“I suppose she is a foreigner.”
“I spoke in French at once,” said Miss Forster. “It was most awkward,
of course—and I could see that Mrs. Bulteel was completely taken
aback. Not much savoir faire there, between ourselves, is there?
But, of course, as a woman of the world, I spoke up at once, the
moment Miss Nettleship performed the introduction. ‘Comment vous
trouvez-vous, M’dahme?’ I said. Of course, not shaking hands—
simply bowing.”
“What did she say?” Lydia asked breathlessly, as Miss Forster
straightened herself with a little gasp, after a stiff but profound
inclination of her person from the waist downwards.
“She answered in English. She has an accent, of course—doesn’t
speak nearly as well as he does. Something about us knowing her
husband. ‘Do you mean Mr. Margoliouth?’ I said. Naughty of me,
though, wasn’t it?”
“Yes, very,” said Lydia hastily. “But what did she say?”
“Took it quite seriously,” crowed Miss Forster, suddenly convulsed.
“Really, some people have no sense of the ludicrous. I said it for a bit
of mischief, you know. ‘Do you mean Mr. Margoliouth?’ I said—and
she answered me quite solemnly, ‘Yes, of course.’”
Then it really was Margoliouth’s wife. Lydia began to realize the fact
that until now had carried no sort of conviction to her mind.
Margoliouth, a married man, had been making a fool of her before all
these people. Such was the aspect of her case that flashed across
her with sudden, furious indignation.
She perceived that Miss Forster was looking at her with curiosity.
“I didn’t know that he was married at all,” said Lydia calmly.
“No one could have guessed it for a moment, and he never gave us
a hint,” said Miss Forster indignantly. “You won’t mind me saying,
dear, that I wanted to get you in here and tell you quietly before you
went up and found her there, sitting on the sofa as calm as you
please.”
“Thank you,” said Lydia. “But really, you know, it doesn’t matter to me
if Mr. Margoliouth is married. Only I think he ought to have told Miss
Nettleship, and—and all of us.”
“The cad!” cried Miss Forster energetically, and striking the rather
tight lap of her silk dress with a violence that threatened to split the
white-kid glove. “What we women have to put up with, I always say!
Only a man could behave like that, and what can we do to defend
ourselves? Nothing at all. I was telling Sir Rupert Honoret the other
day—those friends of mine who live in Lexham Gardens, you know
—I was telling him what I thought of the whole sex. Oh, I’ve the
courage of my opinions, I know. Men are brutes—there’s no doubt
about it.”
“I suppose he didn’t expect her here?” said Lydia dreamily, still
referring to the Margoliouth ménage.
Miss Forster understood.
“Not he! You saw what a fool he looked when the manageress told
him she was here. She’s come to fetch him away, that’s what it is.
She as good as said so. But they’ll be here till Monday morning, I’m
afraid—the pair of them. Ugh!——” Miss Forster gave a most
realistic shudder. “I don’t know how I shall sit at table with them. Miss
Nettleship has no business to take in people of that sort—she ought
to have made inquiries about the man in the first place, and I shall
tell her so.”
“Oh, no,” said Lydia gently. “Please don’t. She’ll be so upset at the
whole thing already.”
“Very generous!” Miss Forster declared, her hand pressed heavily on
Lydia’s shoulder. “Of course, it’s you one can’t help thinking of—a
young girl like you. Oh, the cad! If I were a man, I’d horsewhip a
fellow like that.”
She indulged in a vigorous illustrative pantomime.
“I shall be all right,” Lydia said quickly—insensibly adopting the most
dignified attitude at her command.
She moved to the door.
“Have some supper sent up to your room, do,” urged Miss Forster.
“I’m sure Irene would get a tray ready, and I’ll bring it up to you
myself. Then you won’t have to come down to the dining-room.”
“Thank you very much, but I’d rather come down.”
Lydia was speaking literal truth, as, with her usual clear-sightedness,
she soon began to realize.
Not only was her curiosity undeniably strong, both to behold the
recent arrival, and to observe Margoliouth’s behaviour in these new
and undoubtedly disconcerting circumstances—but it was slowly
borne in upon her that she could not afford to relinquish the
opportunity of standing in the lime-light with the attention of her
entire audience undeviatingly fixed upon herself.
Her humiliation could be turned into a triumph.
Lydia set her teeth.
She had been very angry with Margoliouth, and was so still—less
because he had deceived her than because the discovery of his
deceit must destroy all her prestige as the youthful recipient of
exclusive attentions. But after all, she could still be the heroine of this
boarding-house drama.
Lydia reflected grimly that there were more ways than one of being a
heroine.
She looked at herself in the glass. Anger and excitement had given
her a colour, and she did not feel at all inclined to cry. She was, in
fact, perfectly aware that she was really not in the least unhappy. But
the people downstairs would think that she was proudly concealing a
broken heart.
Lydia dressed her thick mass of hair very carefully, thrust the high,
carved comb into one side of the great black twist at just the right
angle, and put on a blouse of soft, dark-red silk that suited her
particularly well.
There was a knock at her door.
Lydia went to open it, and saw Miss Nettleship on the threshold.
“Oh, my dear, I am so sorry, and if you want a tray upstairs for this
once, it’ll be quite all right, and I’ll give the girl the order myself. You
aren’t thinking of coming down to-night, are you?”
“Yes, I am,” said Lydia steadily. “It’s very kind of you, but I’d rather
come down just as usual.”
“It’s as you like, of course,” said the manageress in unhappy
accents. “Miss Forster came to me about you—you know what she
is. But I’m so vexed you should have heard all in a minute like, only
you understand how it was, dear, don’t you? And his wife has paid
up the bills, all in cash, and wants to stay over Sunday.”
“There’s the bell,” said Lydia.
“Then I must go, dear—you know how it is. That old Miss Lillicrap is
such a terror with the vegetables. I do feel so vexed about it all—and
your auntie will be upset, won’t she? Are you ready, dear?”
Lydia saw that the kind woman was waiting to accompany her
downstairs to the dining-room, but she had every intention of making
her entrance unescorted.
“I’m not quite ready,” she said coolly. “Please don’t wait—I know you
want to be downstairs.”
The manageress looked bewildered, and as though she felt herself
to have been rebuffed, but she spoke in her usual rather incoherently
good-natured fashion as she hastened down the stairs.
“Just whatever you like, and it’ll be quite all right. I quite understand.
I wish I could wait, dear, but really I daren’t....”
Lydia was very glad that Miss Nettleship dared not wait.
She herself remained upstairs for another full five minutes, although
her remaining preparations were easily completed in one.
At the end of the five minutes she felt sure that all the boarders must
be assembled. Hardly anyone was ever late for a meal, since meals
for most of the women, at any rate, contributed the principal variety
in the day’s occupation.
Nevertheless, Lydia went downstairs very slowly, until the sound of
clattering plates and dishes, broken by occasional outbreaks of
conversation, told her that dinner was in progress.
Then she quickly opened the dining-room door.
They were all there, and they all looked up as she came in.
Her accustomed seat at the far end of the table, next to the Greek,
was empty, but on Margoliouth’s other side sat a strange woman,
whom Lydia was at no pains to identify, even had Miss Forster’s
description not at once returned to her mind. “Very dark—and stout
—and dressed like a foreigner.”
Mrs. Margoliouth was all that.
Lydia saw the room and everyone in it, in a flash, as she closed the
door behind her.
Miss Lillicrap, clutching her knife and fork, almost as though she
were afraid that her food might be snatched from her plate while she
peered across the room with eager, malevolent curiosity—Miss
Nettleship, suddenly silent in the midst of some babbled triviality, and
evidently undecided whether to get up or to remain seated—Mrs.
Bulteel, her sharp gaze fixed upon Lydia and her pinched mouth half
open—Miss Forster, also staring undisguisedly—Mrs. Clarence, with
her foolish, red-rimmed eyes almost starting from her head—the
youth, Hector Bulteel, his mouth still half-full and a tumbler arrested
in mid-career in his hand—his father’s sallow face turned towards
the door, wrinkled with an evident discomfiture.
Mrs. Margoliouth herself had raised a pair of black, hostile-looking
eyes, set in a heavy, pasty face, to fix them upon Lydia.
Irene had stopped her shuffling progress round the table, and turned
her head over her shoulder.
Only Margoliouth remained with his head bent over his plate,
apparently absorbed in the food that he was sedulously cutting up
into small pieces.
In the momentary silence Lydia advanced. Her heart was beating
very quickly, but she was conscious of distinct exhilaration, and she
remembered to tilt her chin a little upward and to walk slowly.
There was the sudden scraping of a chair, and pale, ugly Mr. Bulteel
had sprung forward, and come down the room to meet her.
The unexpected little act of chivalry, which obviously came as a
surprise to himself as to everybody else, nearly startled Lydia out of
her predetermined composure.
She looked up at him and smiled rather tremulously, and he pulled
out her chair for her, and waited until she was seated before
returning to his own place again.
The meal went on, and the atmosphere was electric. Contrary to her
custom, Miss Nettleship made no attempt at introducing the new-
comer, and Margoliouth did not seek to rectify the omission.
He ate silently, his eyes on his plate. Twice Lydia addressed small,
commonplace remarks to him, each time in the midst of a silence,
wherein her voice sounded very clear and steady. He answered
politely but briefly, and the other women at the table exchanged
glances, and one or two of them looked admiringly at Lydia.
It was this consciousness that kept her outwardly composed, for she
found the position far more of an ordeal than she had expected it to
be. She was even aware that, under the table, a certain nervous
trembling that she could not repress was causing her knees to knock
together.
She felt very glad when the meal was over and old Miss Lillicrap—
who always gave the signal for dispersal—had pushed her chair
back, and said venomously:
“Well, I can’t say, ‘Thank you for my good dinner.’ The fowl was
tough, and I didn’t get my fair share of sauce with the pudding.”
“Are we having a rubber to-night?” Miss Forster inquired loudly of no
one in particular, with the evident intention of silencing Miss Lillicrap.
Lydia saw Mrs. Bulteel frown and shake her head, as though in
warning.
Margoliouth, however, had at last looked up.
“I’m not playing to-night,” he said sullenly.
“Doesn’t your wife play Bridge?” Miss Forster inquired rather
maliciously.
“No.”
“You’re tired with your journey perhaps,” piped Mrs. Clarence,
looking inquisitively at the stranger.
Mrs. Margoliouth stared back at her with lack-lustre and rather
contemptuous-looking black eyes.
“What journey?” she said in a thick voice. “I’ve only come up from
Clapham, where we go back on Monday. Our house is at Clapham.
The children are there.”
“The children?” repeated Mrs. Clarence foolishly.
“We have five children,” said Mrs. Margoliouth impassively, but she
cast a fierce glance at her husband as she spoke.
Miss Forster suddenly thrust herself forward, and demonstratively
put her arm round Lydia’s waist.
“I suppose you’re going upstairs to your scribbling, as usual, you
naughty girl?” she inquired affectionately.
“I ought to,” Lydia said, smiling faintly. “It isn’t cold in my room now
that I’ve got a little oil-stove. I got the idea from a girl I went to supper
with the other night, who lives in rooms.”
“How splendid!” said Miss Forster, with loud conviction, her tone and
manner leaving no room for doubt that she was paying a tribute to
something other than the inspiration of the oil-stove.
Lydia smiled again, and went upstairs.
The other boarders were going upstairs too, and as Lydia turned the
corner of the higher flights that led to her own room, she could hear
them on the landing below.
“I do think that girl’s behaving most splendidly!”
Miss Forster’s emphatic superlatives were unmistakable.
“She looks like a sort of queen to-night,” said an awed voice, that
Lydia recognized with surprise as belonging to the usually
inarticulate Hector Bulteel.
She had not missed her effect, then.
Lydia did not write that evening. She went to bed almost at once,
glad of the darkness, and feeling strangely tired. After she was in
bed she even found, to her own surprise, that she was shedding
tears that she could not altogether check at will.
Then, after all, she minded?
Lydia could not analyze her own emotion, and as the strain of the
day relaxed, she quietly cried herself to sleep like a child.
But the eventual analysis of the whole episode, made by Lydia with
characteristic detachment, brought home to her various certainties.
Margoliouth’s defection had hurt her vanity slightly—her heart not at
all.
She could calmly look back upon her brief relations with him as
experience, and therefore to be valued.
But perhaps the conviction that penetrated her mind most strongly,
was that one which she faced with her most unflinching cynicism,
although it would have vexed her to put it into words for any other
human being. No grief or bereavement that her youth was yet able to
conceive of could hurt her sufficiently to discount the lasting and
fundamental satisfaction of the beau rôle that it would bestow upon
her in the view of the onlookers.
 XIII
“Broken heart? Nonsense. People with broken hearts don’t eat
chestnut-pudding like that,” quoth Grandpapa.
Lydia would have preferred to make her own explanations at
Regency Terrace, but Miss Nettleship had already written a long
letter to Aunt Beryl, as Lydia discovered when she reached home on
Christmas Eve.
Aunt Beryl took the affair very seriously, and made Lydia feel slightly
ridiculous.
“Trifling like that with a young girl, and him a married man the whole
of the time!” said Aunt Beryl indignantly.
“It’s all right, auntie,” Lydia made rather impatient answer. “I didn’t
take it seriously, you know.”
“How did he know you weren’t going to? Many a girl has had her
heart broken for less.”
It was then that Grandpapa uttered his unkind allusion to Lydia’s
undoubted appreciation of her favourite chestnut-pudding, made in
honour of her arrival by Aunt Beryl herself.
Lydia knew very well that Grandpapa would have been still more
disagreeable if she had pretended a complete loss of appetite, and
she felt rather indignant that this very absence of affectation should
thus come in for criticism.
Although she had only been away four months, the house seemed
smaller, and the conversation of Aunt Beryl and Uncle George more
restricted. She was not disappointed when her aunt told her that their
Christmas dinner was to be eaten at midday, and that there would be
guests.
“Who do you think is here, actually staying at the ‘Osborne’?” Miss
Raymond inquired.
Lydia was unable to guess.
“Your Aunt Evelyn, with Olive. They’ve been worried about Olive for
quite a time now—she can’t throw off a cold she caught in the
autumn, and, of course, there have been lungs in the Senthoven
family, so they’re a bit uneasy. Aunt Evelyn brought her down here
for a change, and Bob’s coming down for Christmas Day. They keep
him very busy at the office now. Don’t you ever run across him in
town, Lydia?”
“No, never,” said Lydia, with great decision.
She had no wish to meet Bob Senthoven in London, although she
was rather curious to see both her cousins again.
She caught sight of him in church on Christmas morning, where she
decorously sat between Aunt Beryl and Uncle George, in the seats
that had been theirs ever since Lydia could remember.
Bob, who was on the outside, did not look as though he had altered
very much. He was still short and stocky, with hair combed straight
back and plastered close to his head.
Olive, much taller than her brother, was dressed in thick tweed, with
a shirt and tie, and the only concession to her invalidhood that Lydia
could see, was a large and rather mangy-looking yellow fur
incongruously draped across her shoulders.
Mrs. Senthoven’s smaller, slighter figure was completely hidden from
view by her offspring.
As they all met outside the church door, Lydia, in thought, was
instantly carried back to Wimbledon again, and her sixteenth year.
“Hullo, ole gurl!” from Olive.
“Same to you and many of ’em,” briefly from Bob, in reply to
anticipated Christmas greetings.
“We’ll all walk back to the Terrace together, shall we?” suggested
Aunt Beryl, on whose mind Lydia knew that elaborate preparations
for dinner were weighing. “Grandpapa will want to wish you all a
Merry Christmas, I’m sure.”
Aunt Evelyn, not without reason, looked nervous, nor did
Grandpapa’s greeting serve to reassure her.
“Why does little Shamrock bark at you so, my dear?” he inquired of
Olive, with a pointed look at her short skirts. “I’m afraid he doesn’t
like those great boots of yours.”
It was quite evident that Grandpapa’s opinion of the Senthoven
family had undergone no modification.
They sat round the fire lit in the drawing-room in honour of the
occasion, and Aunt Beryl hurried in and out, her face flushed from
the kitchen fire, and hoped that they’d “all brought good appetites.”
“There’s the bell, Lydia! I wonder if you’d go down, dear? I can’t
spare the girl just now, and it’s only Mr. Almond.”
Lydia willingly opened the door to her old friend, and received his
usual, rather precise greeting, together with an old-fashioned
compliment on the roses that London had not succeeded in fading.
She took him up to the drawing-room.
“Greetings of the season, ladies and gentlemen all,” said Mr.
Monteagle Almond, bowing in the doorway.
“Rum old buffer,” said Bob to Lydia, aside.
She smiled rather coldly.
She felt sure that although the Bulteels and Miss Forster—who, after
all, was the friend of Sir Rupert and Lady Honoret—might have
accepted Mr. Almond and his out-of-date gentility, they would never
have approved of Bob and Olive, with their witless, incessant slang.
“Now, then!” said Aunt Beryl, appearing in the doorway divested of
her apron, and with freshly washed hands. “Dinner’s quite ready, if
the company is. George, will you lead the way with Evelyn?—Olive
and Mr. Almond—that’s right—now, Bob, you haven’t forgotten the
way to the dining-room—or, if you have, Lydia will show you—and I’ll
give Grandpapa an arm.”
Aunt Beryl, for once, was excited and loquacious. Giving Grandpapa
an arm, however, was a lengthy process, so that she missed the
appreciative exclamations with which each couple duly honoured the
festive appearance of the dining-room.
“How bright it looks!” cried Aunt Evelyn. “Now, doesn’t it look bright?”
“Most seasonable, I declare,” said Mr. Almond, rubbing his hands
together.
“Oh, golly! crackers!”
“My eye, look at the mistletoe!” said Bob, and nudged Lydia with his
elbow. Lydia immediately affected to ignore the huge bunches of
mistletoe pendant in the window and over the table, and admired
instead the holly decorating each place.
“A very curious old institution, mistletoe,” said Uncle George, and
seemed disappointed that nobody pursued the subject with a request
for further information.
When they were all seated, and Grandpapa had leant heavily upon
his corner of the table, and found a piece of holly beneath his hand,
and vigorously flung it into the enormous fire blazing just behind his
chair, Uncle George said again:
“Probably you all know the old song of the ‘Mistletoe Bough,’ but I
wonder whether anyone can tell me the origin——”
“We’ll come to the songs later on, my boy,” said Grandpapa briskly.
“Get on with the carving. Have you good appetites, young ladies?”
Olive only giggled, but Lydia smiled and nodded, and said, “Yes,
Grandpapa, very good.”
“You needn’t nod your head like a mandarin at me. I can hear what
you say very well,” said Grandpapa, and Lydia became aware that
she had instinctively been pandering to the Senthoven view that
Grandpapa was a very old man indeed, with all the infirmities proper
to his age.
The Christmas dinner was very well cooked, and very long and very
hot, and conformed in every way to tradition.
“Don’t forget the seasoning in the turkey, George,” said Aunt Beryl
agitatedly. “There’s plenty more where that comes from. Give Lydia a
little more seasoning—she likes chestnut. Sausage, Evelyn?
Sausage, Mr. Almond? Bob, pass the sauce-boat to your sister, and
don’t forget to help yourself on the way. There’s gravy and
vegetables on the side.”
Everyone ate a great deal, and the room grew hotter and hotter, so
that the high colour on Olive Senthoven’s face assumed a glazed
aspect, and the fumes from the enormous dish in front of Uncle
George rose visibly into the air.
Presently Gertrude brought the plum-pudding, blazing in a blue
flame, and with a twig of holly sticking from the top, and much
amusement was occasioned by the discovery that several of the
slices contained a small silver emblem. Mr. Monteagle Almond
solemnly disinterred a thimble, and Bob, with a scarlet face, a
wedding-ring.
Under cover of Olive’s screams on the discovery of a three-penny bit
on her own plate, he pushed the ring over to Lydia.
“I shall give it to you,” he muttered gruffly.
After the plum-pudding, they ate mince-pies, and a little spirit was
poured over each and a lighted match applied by Uncle George, Mr.
Almond or Bob, Aunt Beryl and Aunt Evelyn, in accordance with the
usage of their day, each uttering a small scream as the flame shot
up. When the mince-pies were all finished, the dessert dishes were
pulled out from under the piled-up heaps of crackers and holly
surmounting them.
The dessert was also traditional—oranges, nuts, apples, raisins,
almonds. Everybody avoided direct mention of these last from a
sense of delicacy, until Mr. Monteagle Almond himself remarked
humorously:
“I think I will favour my namesake, if the ladies will pardon an act of
cannibalism.”
Upon which everybody laughed a great deal and jokes were made,
and Bob and Olive began to ask riddles.