Professional Responsibility

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  1. 1.1
    Rule 1.1 Competence

    • A lawyer shall provide competent representation to a client. Competent
    • representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

    Comment 2 - lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question

    • you have to inform client if a matter is going to take more of your time (for billing
    • purposes) because you are not as competent in a particular area of law…
  2. 1.2
    Rule 1.2 Scope of Representation and Allocation ofAuthority Between Lawyer and Client

    • 1.2(c) a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances AND the client gives informed consentRule
    • 1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent."
    • -lawyer must withdraw from representation of the client; in some cases withdrawal alone may not be enough (1.16)
    • ***limiting the scope of representation is NOT the same thing as limiting the scope of liability….to limit liability there are much more stringent rules
  3. 1.3
    Rule 1.3 Diligence

    A lawyer shall act with reasonable diligence and promptness in representing a client.

    comment 1: a lawyer should pursue a matter for a client despite opposition or personal inconvenience and take "whatever measures are required" to vindicate a client's cause. Lawyer must act with "zeal and advocacy upon a client's behalf."

    • most common violation of this is procrastination ….failing to call a client back, etc..
    • lawyers are responsible for paying attention to all matters for which they accept responsibility by making agreements with clients or filing appearances with courts.

    • **in cases they initiate, lawyers are not
    • excused from the duty of diligence if they leave a law firm unless they formally withdraw from representation
  4. 1.4

    1.4(a) (1)-(5)
    Rule 1.4 Communication

    (a)(1) a lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required by these rules;

    (a)(2) a lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished;

    (a)(3) a lawyer shall keep the client reasonably informed about the status of the matter;

    (a)(4) promptly comply with reasonable requests for information; and

    (a)(5) a lawyer shall consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law
  5. 1.4 

    Rule 1.4 Communication

    1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding thier representation

    lawyer should give client enough "to participate intelligently"

    usually not required to describe trial or negotation strategy in detail (comment 5)
  6. Candor in Communication (not counseling)

    Difference between truth and truthfulness: It is not (generally) dishonest to make a false statement that you believe to be true, unless you had some reason to know that you might have been mistaken. If you are diligent and honest to your client about what you do know, you are being truthful even if you make a mistake.

    • Rule 8.4(c)
    • It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation

    • **rule 1.4, the duty to keep client inform implies the duty to give accurate information.
    • -Comment 1 "reasonable communication" = probably does not include lies"

    • Civil Liability for Dishonesty
    • A client injured by a dishonest lawyer may sue the lawyer in tort for fraud or breach of the lawyer's fiduciary duty.

    • A lie might not amount to fraud because the ethics rules limit "fraud" to conduct that is fraudulent under the state's substantive or procedural laws; lawyer still may be liable for breach of fiduciary duty
    • Breach of fiduciary duty, in the context of lawyer-client relationship = lawyer's failure to act consistently with the trust client places in a lawyer b/c the lawyer has a special set of skills and knowledge
    • Regardless of definition of the duty, there is  an aspect of honesty & candor that is expected from the lawyer

    **certain procedural advantages may be gained by adding on a claim for breach of fiduciary duty; long statute of limitations, a shift in the burden of proof, the right to recover legal fee w/o having to prove actual loss, or the right to recover punitive damages (punitive damages are not available for the ordinary tort-based malpractice claim)
  7. Rule 2.1
    Rule 2.1 Advisor (Candor in Counseling!!)

    In representing a client, a lawyer shall exercise "independent professional judgment" and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.

    Legal advice is often unpleasant, a lawyer should NOT be deterred by the prospect that advice will be unpalatable

    Lawyers are seldom disciplined for violations of 2.1

    Lawyer may agree to be held to higher standards by signing a contract (1.5 "reasonable fees" might be made more explicit via a contract or 1.4 keeping a client "reasonably informed" might mean having to send client a weekly update if agreed upon in a contract)

    Under certain conditions, a lawyer may contract to lower the expectations on the lawyer below those that the ethical rules impose in exchange for an agreement the fee charged will be discounted 

    • Rule 1.2(c) allows a lawyer to "limit the
    • scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent."

    • ***this is different than a lawyer limiting his scope of liability for malpractive via a waiver
    • -A lawyer is barred from making "an agreement prospectively limiting the lawyer's liability for malpractice….unless the client is independently represented in making the
    • agreement.

    Such limitations could result in impermissible conflict of interest.
  8. Rule 1.2 

    1.2 Scope of Representation and Allocation of Authority between Client and Lawyer

    • Subject to (c) and (d), a lawyer must abide by client's decisions concerning the objectives of representation (usually with lawyer's advice and guidance)
    • As required by 1.4, lawyer must consult client as to means used to pursue the objectives….lawyer may take such action as is "impliedly authorized" to carry out representation
    • Client decides whether to settle, lawyer must abide
    • In criminal case, client decides (after consultation) whether to plead guilty, waive jury trial, or to testify….lawyer must abide

    • Notes
    • Except for decisions reserved for clients and in the absence of an agreement on these matters, a lawyer may take "any lawful measures within the scope of representation that is reasonably calculated to advance a client's objective."
    • the indigent defendant does NOT have a constitutional right to compel appointed counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points. (there is controversy surrounding this case)
    • 1.2(a) appears to distinguish between the objectives and the means of accomplishing those objectives ….there is debate whether it matters when it comes to who is making
    • the decision...
  9. Rule 1.2 

    1.2 Scope of Representation and Allocation of Authority between Client and Lawyer

    Lawyer's representation of a client DOES NOT constitute an endorsement of the client's views,  goals or activities
  10. Rule 1.2 

    1.2 Scope of Representation and Allocation of Authority between Client and Lawyer

    • a lawyer may limit the scope of representation IF the 
    • -limitation is reasonable under the circumstances; AND
    • -client gives informed consent
  11. Rule 1.2 

    1.2 Scope of Representation and Allocation of Authority between Client and Lawyer

    • a lawyer must not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent
    • -lawyer may discuss the legal consequences of any proposed course of conduct with a client and may assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the new law
  12. Rule 8.3
    8.3 Reporting Professional Misconduct

    • "knows"
    • "substantial question"
    • "more than mere suspicion"
    • "required by 1.6"
  13. Rule 5.1
    5.1 Responsibilities of Superiors & Supervisory Lawyers

    • Partner - "reasonable measures" 
    • -"at least indirect responsibility"

    • Supervisor - "direct supervisory authority" & "reasonable efforts"
    • -"knew or directed it"

    • Responsible for subordinate if...
    • "knows", "at a time", "fails"
  14. Rule 5.2
    5.2 Responsibilities of a Subordinate Lawyer

    bound by same ethics rules

    • safe harbor provision
    • -"reasonable resolution" of "arguable question"
  15. Malpractice
    • owed a duty
    • "competence and diligence" "normally exercised" in "similar situations"
    • breach caused harm to the client

    • **3rd parties can bring claims
    • fiduciary duty is more broad..."but for"
  16. 1.6(b)
    Rule 1.6 Confidentiality

    (b) may reveal "reasonably believes necessary" to

    prevent "reasonably certain death" or "substantial bodily harm"; or

    prevent client from committing crim "reasonably certain" to cause substantial financial or property 

    to prevent, mitigate, or rectify substantial injury that might arise from a client's crime

    to secure legal advice (hypotheticals)

    to defend the lawyer

    to comply with another law or court order

    • **"narrow" & "few people"
  17. 1.6(a)
    "shall not" "relating to representation" "unless"

    • informed consent;
    • impliedly authorized; or
    • 1.6(b)
  18. 4.1
    Rule 4.1 Truthfulness In Statements to Others

    • shall not knowingly
    • (a) "false statement of material fact OR law" OR
    • (b) "fail to disclose material fact"
    • to a third person "when disclosure is necessary to avoid..."
    • "unless disclosure is prohibited by 1.6"

    Substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. IF the lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then under paragraph (b) the lawyer MUST do so, unless the disclosure is prohibited by Rule 1.6.  Rule 1.6 now permits revelation...SO a lawyer MUST disclose in these situations under Rule 4.1 (are required).
  19. List & Describe the Rules that allow/require revelation of criminal or fraudulent conduct?

    (there are 6 of them)
    • 1.2(d) - ??
    • 1.6(b)
    • 4.1(b) - truthfulness in statements to others
    • 8.4(c) - dishonesty
    • 1.13 - duty to 'report up' in organizations
    • 3.3 - Duty to reveal client crimes/frauds to tribunals
  20. Rule 1.8(b)
    Rule 1.8 Conflict of Interest: Current Client: Specific Rules

    • 1.8(b)
    • A lawyer shall not use information
    • relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

    some, but not all uses of information for personal gain are considered improper

    • restatement prohibits the use of confidences if there is a reasonable prospect that (the use) will adversely affect a material interest of a client or if the client has instructed the lawyer not to use or disclose the
    • information.
  21. what is the basic difference between confidentiality and privilege?
    • confidentiality is the duty to protect confidences
    • -Source = imposed by the ethical rules
    • -Scope = broad, with some exceptions
    • -enforcement = possible disciplinary actions

    • privilege rules provide that neither lawyer nor client may be compelled to testify about protected communications
    • -Source = common law evidence rule
    • -Scope = narrow, but pretty absolute
    • -enforcement = none, just won't get info
  22. Elements of Attorney-Client Privilege

    Four Elements with additional notes for each
    • 1. Communication
    • -face-to-face conversation
    • -other communicative acts
    • **privilege only protects against the communication itself, NOT against disclosure of underlying facts

    • 2. Privileged Persons
    • -lawyers, secretaries, paralegals, investigators, interpreter, prospective client

    • 3. Communication in Confidence
    • -crowded elevator = no go

    • 4. Communication for the Purpose of Seeking Legal Assistance
    • -"business advice" = not privileged
    • -only the part of the conversation that is for legal assistance is privileged...conversations can be parced
    • -does NOT cover factual information (those might be protected by a different privilege though)

    • **Attorney-client privilege can be waived, even by accident (submit one, you submit it all); can be waived by the lawyer to as long as he has authority (express, implied, apparent)
    • **privilege remains in effect after the client dies
  23. The Crime-Fraud Exception
    • The attorney-client privilege does NOT cover conversations in which a client asks a lawyer for advice or help in committing a crime or fraud.
    • -if the client is asking about a past criminal act, then it is privileged as long as act is in the past and not on-going
    • -if client asks for advice, and learns that conduct is criminal, and doesn't committ the crime, it is privileged
  24. Work Product Doctrine
    • -protects notes and other material that a lawyer prepares "in anticipation of litigation" from discovery in pretrial proceedings
    • -applies to documents that the lawyer prepares OR collects...
    • -KEY element is that it was prepared by a lawyer ---source does not matter
    • **possession of lawyer-generated information in the lawyer's mind or private files
    • - it is only the lawyers need to use the information in litigation that creates a degree of protection (other documents prepared for other reasons do not qualify)
    • -judge can force disclosure if other side can prove "substantial need" AND that opposing party is "unable undo hardship to obtain the substantial equivalent" of the material by other means (example = witness statement where witness is no longer available)
  25. Corporate Attorney-Client Privilege

    2 approaches
    control group test - limits the privilige to communications from persons in the organization who have authority to mold organizational policy or to take action in accordance with the lawyer's advice

    • Subject Matter Test (Upjohn) - extends the privilege to communications with any [management or] lower-echelon employee or agent so long as the communication relates to the subject matter of the representation.
    • --"scope of employment"
    • --Upjohn applies in Federal, has been endorsed by SC
  26. Rule 1.1
    Rule 1.1 Competence

    • Competent representation requires "legal knowledge, skill, thoroughness and preparation reasonably necessary for the
    • representation"

    -Comment 2 - lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association with a lawyer of established competence in the field in question

    -if lawyer spends unreasonable amount of time researching (or teaching himself) a topic, and bills the client...may be subject to discipline (rule 1.5)

    -you have to inform client if a matter is going to take more of your time (for billing purposes) because you are not as competent in a particular area of law…
  27. Rule 1.2 
    Rule 1.16
    • Rule 1.2 and 1.16 - a lawyer may not agree to
    • represent a client if the assistance sought by the client would involve the lawyer in a violation of law or of the professional ethics rules
  28. Formation of a lawyer-client relationship
    lawyer-client relationship may be formed based upon whether or not lawyer has given advice...

    lawyer may still owe duty to non-clients - prospective clients, party that is paying lawyer (insurance company), beneficiaries...
  29. Apparent Authority
    has to come from client or other principal, cannot be based on statements of lawyer
  30. Ineffective Assistance of Counsel
    *occurs in criminal cases*

    • Must prove 2 things:
    • 1. Counsel's performance was 
    • -errors were "so serious" that counsel was NOT functioning as the "counsel" guaranteed by 6th
    • 2. The deficient performance prejudiced the defendant
    • -D has to show "reasonable probability" "but for" unprofessional errors, result of the proceeding would have been different
    • *reasonable probability=sufficient to undermine confidence in the outcome
    • -in order to reverse conviction... d has to show that errors deprived d of a fair trial (very difficult)
    • -judicial scrutiny  = highly deferential to attorney
    • in immigration cases, 6th Amend. is violated if counsel does not warn D about immigration implications
  31. Rule 1.3
    • Rule 1.3 Diligence
    • "reasonable diligence and promptness"
    • --responsible to pay attention to ALL matters for which they accept responsibility
  32. Rule 1.4(a)
    • Rule 1.4 Communication
    • 1.4(a)
    • Required to inform promptly of any "decision or circumstance" that requires client's consent
    • "reasonably consult" about means used to accomplish client's objectives
    • keep client "reasonably informed" about the status
    • promptly reply to "reasonnable requests" for info
    • consult with client about any "relevant limitation" on lawyer's conduct  when lawyer knows that client expects assistance not permitted by rules
  33. 1.4(b)
    • 1.4 Communication
    • 1.4(b)
    • explain "to extent reasonably necessary" to permit client to "paticipate intelligently" in decisions about objectives and means
    • **don't need to give extra details about strategy
  34. 1.14(a)
    • Rule 1.14 Client With Diminished Capacity
    • (a) when clients ability to make "adequately considered decisions" is diminshed,
    • lawyer shall "as far as reasonably possible"
    • maintain normal client-lawyer relationship
  35. 1.14(b)
    • 1.14 Diminished Capacity
    • (b) "reasonably believes" client has
    • diminished capacity
    • at risk of substantial harm unless action is taken
    • cannot act in own interest...
    • lawyer MAY take "reasonably necessary" protective action
  36. 1.14(c)
    • 1.14 Diminished Capacity
    • (c) when taking action pursuant to (b), lawyer is impliedly authorized under Rule 1.6 to reveal info about the client...only to extent reasonably necessary
  37. Guardian options

    Communicating with clients who have diminished capacity
    Guardian ad litem = duty to determine and advocate for the best interests of the ward...which may not correspond to express wishes of the ward

    Conservator = power to manage financial affairs

    Guardian = most comprehensive, assuming complete control and care of client

    Lawyer's ought to be permitted greater latitude to use persuasive dialogue with a confused client than with a more coherent one…

    Persuasion cannot be used with clients who cannot comprehend the dialogue AND whom, therefore, cannot give consent. 

    Balance between persuasion and coercion…

    • Example
    • You will lose your home if you do not ask the judge for help, and you have always said you don't want to lose your home = OK
    • You really should file the lawsuit = NOT ok (persuasive threat = not ok)
  38. Rule 1.16


    and 3 reasons
    Rule 1.16 Termination of a lawyer-client relationship

    • (a) must not represent, or must withdraw... if 
    • - representation will result in violation of rules
    • - lawyer is "materially impaired" 
    • - lawyer is discharged (court appointed attorney needs consent)
  39. 1.16


    and 5 reasons
    1.16 Termination of Lawyer-Client Relationship

    • (b) lawyer may withdraw if...
    • - no "material adverse effect" on client
    • -client has in the past or persists in illegal action involving lawyer's services that lawyer "reasonably believes" are illegal
    • -client is "unreasonably difficult"
    • -doesn't pay fee or causes an "unreasonable financial burden"
    • -other good cause...
  40. Rule 1.16

    Rule 1.16 Termination of lawyer-client...

    (c) must comply with laws requiring notice or permission of tribunal when terminating
  41. 1.16

    1.16 Termination of lawyer-client relationship

    (d) must return "any papers or property,"  unless substantial grounds exist to refuse, promptly after representation ends

    • -"internal use" = OK; 
    • -lawyer's notes = probably OK -- may still have to discuss content
    • -if lawyer "reasonably believes" client will committ a crime
    • -for payment, unless retention would unreasonably hurt client
  42. 1.7

    Rule 1.7 Conflicts of Interest: Current Clients

    • (a) except as in (b), lawyer must not represent client if there is a concurrent conflict of interest
    • (a)(1)
    • "directly adverse" = representing current clients on both sides of the V
    • (a)(2)
    • "materially limited" by responsibilities to another client, former client, third person, or by personal interest...
  43. Rule 1.7


    (4 requirements & details)
    (b) exceptions to paragraph (a)

    • -lawyer "reasonably believes" "competent and diligent representation
    • -not prohibited by law
    • -doesnt involve 2 clients in the same litigation or proceeding...(non-consentable)
    • -informed consent (must be express and memorialized in writing)
    • --> must explain to each affected client "ways that the conflict could adversely affect the interests of the client"
    • **sometimes that requires disclosure of another client's confidences...which requires that client's consent
  44. "material limitation"
    If a client would receive less vigorous representation from a lawyer because of the lawyer's other responsibilities, there might be a "material" limitation conflict.

    **a "mere possibility" of harm is insufficient to present a conflict

    • 2 questions:
    • 1. How likely is it that a difference in interests will eventuate?

    2. If there likely is such a divergence, would it materially interfere with the lawyer's advice to or representation of a client?

    "material limitation" might arise in situations where….

    • 1. Obligations to another present client tie your hands on some issues
    • 2. Someone else to whom the awyer owes a duty (fiduciary obligations b/c lawyer is a trustee)
    • 3. Someone other than the client is paying the lawyer's fees…
    • 4. The lawyer's own personal/ financial/ employment interests

    (6 notes)
    • Possible Conflicts of Co-Plaintiffs
    • Conflicting testimony
    • Conflicting settlement positions
    • Attorney-client privilege - will not apply if the clients later become adverse to each other...unless prior agreement 
    • Withdrawal in event of conflict
    • Confidentiality - attorney's normal confidentiality obligation does not apply as between jointly represented clients, and that information imparted by one will be shared with the other if it is necessary for their representation
    • Must evaluate on an on-going basis whether future developments in the case create issues that require additional disclosures and consent to the multiple representations
  46. Positional Conflicts 

    (how to address)
    • If there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of another client….there is a conflict of interest

    Whether a positional conflict presents a serious problem depends on the likelihood that one client would be materially harmed if a lawyer made an argument in another case that was contrary to the client's interest.

    • Rule 1.7, Comment 24:
    • the mere fact that advocating a position might create precedent adverse to a client's interest does not create a conflict of interest
  47. Rule 1.18

    Rule 1.18(a) - (c)
    • Duties to Prospective Clients
    • 1.18(a)-(c)
    • even when no lawyer-client relationship ensues
    • -- shall not "use or reveal" info, except as permitted by 1.9
    • --shall not represent client w/ interests "materially adverse" to those of a prospective client in "the same, or substantially related matter" if the lawyer recieved info from prospective client that could be "significantly harmful", except as provided in paragraph (d). if lawyer is disqualified, firm may not knowingly continue or undertake representation of prospective client...except as provided in (d)
  48. Rule 1.18


    (2 options)
    Rule 1.18 Duties to Perspective Clients

    • 1.18(d)
    • Lawyer can, despite (c) still represent if:
    • -both parties give their consent in a signed writing; OR
    • -lawyer who received info took reasonable measures to avoid exposure to more disqualifying info than was reasonably necessary to determine whether or not they could represent, AND
    • -disqualified lawyer is timely screened and does not get any fee, AND
    • -written notice is promptly given to that client
  49. Rule 1.13

    Rule 1.13 Organizations

    (a) the "client" = the organization itself, no individual people
  50. Rule 1.13


    (5 steps)
    Rule 1.13 Organization as Client (p.429-431)

    (b) lawyer must "report up" if;

    • 1. KNOWS that an agent of the company is 
    • A. engaged in action; or 
    • B. refuses to act
    • 2. matter that is related to representation 
    • 3. and is a violation of 
    • A. Legal obligation; or
    • B. Violation of law that may reasonably be imputed to org.
    • 4. likely to result in substantial injury to organization 
    • 5. reasonably believes that it is necessary in the best interest of the organization to do so

    • Factors
    • The seriousness of the violation and its consequences
    • The responsibility in the organization and the apparent motivation of the person involved
  51. Rule 1.13(c) & (d)
    Rule 1.13 Organization as Client

    (c) Except as in (d)...

    if best efforts described in (b) fail to result in a timely and appropriate response...

    • (d) lawyer may reveal information, even if 1.6 prohibits....only to the extent necessary to prevent substantial injury
    • if the organization hired lawyer to investigate or defend misconduct, not authorized to reveal...
  52. 1.13(e)
    1.13 Organizations as a Client

    (e) if lawyer is discharged or withdraws as result of (b) or (c), lawyer must proceed as they reasonably believe necessary to assure that organization's highest authority is informed
  53. 1.13(f)
    1.13 Organization as a Client

    • (f) when the lawyer knows or reasonably
    • should know that the organization's
    • interest are adverse to the employee's, the lawyer...
    • Has to advise the employee that your responsibility to the organization may require you to disclose the employee's information to the organization if there is a conflict… IF the lawyer fails to give such a warning, a lawyer-client relationship
    • might inadvertently be created...
  54. is a related entity a client?
    • More likely to be a client if…
    • a. Lawyer received confidential information from or provided advice to the subsidiary
    • b. The entity was controlled and
    • supervised by the parent organization
    • c. The original client could be materially
    • harmed by the
    • suit against the subsidiary

    • Less likely to be a client if…
    • a. Lawyer no longer represents the initial corporate client
    • b. The two entities became linked after the lawyer began representation of the corporation
  55. Situations in which the rules permit screening (6 of them)
    • Situations in which the Model Rules permit screening:
    • Where a lawyer has moved from one firm to another (Rule 1.10(a)(2))-MOST IMPORTANT 
    • Where one lawyer in a firm has a conflict that is based on a personal interest (family, political, financial) that does not present a significant risk of materially implicating the other lawyer's representation of the client (Rule 1.10(a)(1))
    • Where a former nonlawyer employee has become a lawyer (Rule 1.0, comment 4)
    • Where a former government lawyer entered a law firm (Rule 1.11)
    • Where a lawyer received confidential information from a perspective client who did not become an actual client (Rule 1.18)
    • Where a lawyer is disqualified from working on a matter because the lawyer previously worked on the matter as a judge, a law clerk, an arbitrator, a mediator, or in
    • some similar role (Rule 1.12)
  56. Rule 1.9(a)
    Rule 1.9 Duties to Former Clients

    • (a) if you formerly represented a client, shall not represent another person in "the same or substantially related" matter where person's interests are "materially adverse" to former client's UNLESS informed written consent
  57. 1.9(a) --- "substantially related" matter
    "substantially related" for 1.9(a)

    • Involve the same transaction or legal dispute
    • Where there is a substantial risk that confidential factual information (of former client) would materially advance the client's position in a subsequent matter.
    • ***NOT based on what the lawyer actually learned, but based on what the lawyer ordinarily would have learned

    • If a former client moves to disqualify a lawyer…
    • Does not have to reveal the relevant confidences, only has to give general description of the lawyer's previous services
    • General knowledge of the client's policies and procedures ordinarily will not preclude a subsequent representation
  58. Rule 1.9(b)
    • Rule 1.9 Duties to Former Clients
    • (b) shall not knowingly represent a person in the same or a substantially related matter, where the lawyer's former firm had previously represented a client
    • -whose interests are materially adverse
    • -about whom the lawyer had acquired info protected by 1.6 & 1.9(c) that is material to the matter
  59. 1.9(b) --- "substantially related"
    1.9(b) --"substantially related"

    • 1.9(b) pertains to information that the
    • lawyer actually acquired

    1.9(a) pertains to information that the lawyer could have acquired. (had access to)

    In a successive conflict, you only have to getconsent from a former client…
  60. Rule 1.9(c)
    Rule 1.9 Duties to former clients

    • (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
    • Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
    • Reveal information relating to the representation except as these Rules would permit or require with respect to a client
    • **if the information has since become generally must still keep it confidential but is not barred from using it adversely to the client
  61. Six Factors that might make screen of lateral lawyer effective
    • 1. Isolation; physical, geographical, departmental
    • 2. Prohibitions against discussion
    • 3. Rules & procedures to prevent access to confidential info
    • 4. rule to prevent sharing profits with DQd lawyer
    • 5. DQd lawyer has no supervisory authority with current lawyers
    • 6. notice to former client
  62. firm will be deemed to have been screened if...
    • -all material info which personally disqualified laweyer (PDL) lawyer has is isolated from firm
    • -PDL has been isolated from all contact with client & any witnesses
    • -PDL has been precluded from discussing matter with firm
    • -former client (or firm) receives notice of conflict and description of active screening process that says PDL will (i) not participate, (ii) not transmit any info, and (iii) everyone involved will be advised that PDL is not too participate
    • 5. PDL and firm reasonably believe that steps taken are sufficient
  63. Imputation of Conflicts

    What rules apply when...

    (3 different situations)
    To analyze conflicts the lawyer carries with him into Firm B, based on confidences learned at Firm A:  1.9(b)

    To analyze conflicts that other lawyers at firm B may have because of the lawyer's work at Firm A:  1.10(a)

    To analyze conflicts remaining at Firm A a result of work the lawyer did while there:  1.10(b)
  64. Rule 1.5(a)

    & 8 factors...
    Rule 1.5 Reasonable Fees

    Shall not make agreement for, charge, or collect unreasonable fee or unreasonable expenses

    • Factors
    • 1. time required/difficulty of questions/skill required
    • 2. likelihood that accepting client will preclude accepting other employment
    • 3. other fees charged in the geographic area
    • 4. amount involved and results obtained
    • 5. time limitations imposed by client
    • 6. nature & length of relationship w/ client 
    • 7. experience/reputation/ability of lawyers
    • 8. whether fee is fixed or contingent
  65. Examples of unreasonable fees
    lawyer charges higher than normal rate bc he is unfamilar with law

    fee charges is disproportionate to service

    lawyer fabricates or inflates time spent

    lawyer bills client for providing little/no service
  66. 1.5(b)
    Rule 1.5(b) Fees

    • (i) scope of representation; and
    • (ii) basis or rate of fee

    shall be communicated to client (preferably in writing) before or within a reasonable time after commencing the representation (unless client is a regular)

    any changes must be communicated too
  67. Basic Rules of Billing (4)
    no billing a second client for recycled work

    no double billing your time

    no profit on costs (& cannot bill for overhead)

    no billing for time when it could have been handled by secretary
  68. 1.8(a)
    1.8(a) Lawyer cannot do business w/ client unless... (3 writings)

    1. terms are fair & reasonable and in writing

    2. inform client, in writing, of the desirability of seeking advice from independent council (and give opportunity for them to do so)

    3. client gives informed consent, in writing, to essential terms of transaction, lawyers role in transaction, including whether or not lawyer is representing client
  69. 1.8(c)
    1.8(c) = gifts from clients
  70. 1.8(k)
    financial interests conflicts of one lawyer are imputed to lawyer in a firm cannot contract with another lawyer in the firm's client without complying with 1.8(a)...three writings
  71. 1.11(a)
    1.11 Former Gov. Officers & Employees

    • (a) Except as otherwise permitted by law, lawyer who has formerly served government:
    •  (1) subject to Rule 1.9(c); AND
    •  (2) shall not otherwise represent a client in a matter which the lawyer "personally and substantially" participated in as a public officer, unless agency gives its informed consent, in writing.

    **only disqualifies lawyer from work on the actual "matters" involving a specific party, does not extend to all substantive issues on which the lawyer worked
  72. 1.11(e)
    1.11 Former gov. employee

    • (e) definition of "matter" as used in 1.11(a)...
    • means anything covered by the conflict of interest rules of the appropriate government agency
  73. 1.11's "personally and substantially"
    personally = to have directly participated, includes the participation of a subordinate when actually directed by the former employee

    substantially = employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of significance

    -requires more than official responsibility, knowledge, or involvement on an administrative or peripheral issue
  74. 1.11(b)
    1.11 Former Gov. Lawyer

    • (b) when a lawyer is DQ'd under (a), no lawyer in that firm which former gov is associated may knowingly undertake or continue representation unless...
    • (1) DQd lawyer is timely screened & receives no portion of the fee
    • (2) written notice is promptly given to appropriate gov agency to enable it to ascertain compliance...
  75. 1.11(c)
    1.11 Former Gov. Employee

    (c) lawyer has info that they know is confidential gov. info, and it was acquired while working for gov... 

    -triggered by possession of confidential info

    may not represent a client whose interests are (i) adverse to that person (the person who former gov. employee has confidential info about) (ii) in a matter which info could be used to the material disadvantage of that person
  76. 1.11's use of "confidential government information"
    1.11 Former Gov. Employee

    "confidential government information" = information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibitied by law from disclosing to the public or has a legal privilege not to disclose and which is otherwise not available to the public....
  77. 1.11(d)
    1.11 Former Gov. Employee

    (d) = about former private practice lawyer holding a government position

    • lawyer is subject to 1.7 and 1.9
    • shall not participate in a matter that lawyer participated in "personally and substantially" while in private practice, unless the appropriate gov. agency gives its infomed consent (probably have to get consent of both former clients AND government because employee is subject to 1.7, 1.9 and 1.11(d))
    • ***rule does not say if you can screen or not
  78. Judical Conduct (4 canons)
    4 canons of judicial conduct:

    1. judge shall uphold and promote independence, integrity and impartiality of judiciary and shall avoid impropriety and appearance of impropriety

    2. judge shall perform duties of office impartially, cometently and diligently

    3. judge shall conduct personal and extrajudicial activities to minimize risk of conflict with obligations of judicial office

    4. judge or judicial candidate shall not engage in political or campaign activity that is inconsistent with office...
  79. 1.12(a)
    1.12 Former Judge, Arbitrator, Mediator or other Third-Party Neutral 

    (a) shall not represent anyone in connection with a matter.... unless all parties to the proceeding give informed written consent
  80. 1.12(b)
    1.12 Former Judge, Arbitrator, Mediator or other Third-Party Neutral 

    • (b) lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally or substantially as a judge 
    • -lawyer serving as law clerk to a judge may negotiate for employment in the same situation but only after notifying judge...
  81. Rule 3.1
    Rule 3.1 Meritorious Claims and Contentions

    • A lawyer shall not bring or defend a proceeding, or assert or controvert an issue
    • therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. 
    • -good faith argument = most important... lawyer has a duty to investigate client's claims...circumstances may arise that require less diligence but always should be good-faith effort
    • -claims need not be "fully substantiated" before suit is filed...lawyers may need to use discovery to "develop vital evidence" BUT lawyers MUST "inform themselves about the facts of client's case..."
  82. Penalties that are applied for bringing unsubstantiated claims...
    FRCP 11

    Attorneys fees

    Liability for Malicious Prosecution
  83. Rule 3.3(a)(1), (2), & (3)
    Rule 3.3 Candor Toward the Tribunal

    • (a) Lawyer shall not 
    • knowingly 

    • (1) make a false statement of material fact OR law OR fail to correct false statement previously made (8.4(c) also applies!!)
    • (2) fail to disclose legal authority in the controlling jurisdiction known to the laweyer to be directly adverse to client's case
    • (3) offer evidence that lawyer knows to be false...if lawyer learns about falsity later...must take remedial measures
    • **(a)(3) lawyer MUST not allow his client to lie, or must call on client to fix the lie or must disclose the lie...if lawyer knows it is a lie...if lawyer "reasonably believes" --he may disclose the lie
  84. Rule 3.3(b)
    Rule 3.3 Candor Toward the Tribunal

    (b) lawyer who represents client in a proceeding and who knows that person intends to engage in criminal or fraudulent conduct related to proceeding shall take remedial measures...including disclosure to tribunal if necessary
  85. Rule 3.3(c)
    Rule 3.3 Candor Toward the Tribunal

    (c) duties stated in (a) & (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure otherwise protected by 1.6 (over rides duty of confidentiality)
  86. 3.3(d)
    Rule 3.3 Candor Toward the Tribunal

    • (d) in an ex parte proceeding, lawyer shall inform tribunal of all material facts known to the lawyer that will enable tribunal to make an informed decision whether or not the facts are adverse
    • *applies in proceeding where only one side makes a presentation
  87. Rule 3.4(a) & (b)
    Rule 3.4 Fairness to Opposing Party & Counsel

    • (a) shall not unlawfully obstruct other party's access to evidence or unlawfully alter, destroy or conceal...Lawyer shall not counsel or assist another in any such act..
    • (b) shall not falsify or assist in falsifying evidence
  88. 3.4(c)
    Rule 3.4 Fairness to Opposing Party & Counsel

    (c) knowingly disobey an obligation under the Rules of a tribunal, except for an open refusal based on assertion that no valid obligation exists
  89. 3.4(d)
    Rule 3.4 Fairness to Opposing Party & Counsel

    (d) pretrial procedure, lawyer may not make frivolous discovery request or fail to make reasonably diligent effort to comply with requests
  90. 3.4(e)

    (3 things)
    Rule 3.4 Fairness to Opposing Party & Counsel

    • (e) in trial, shall not
    • -allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, 
    • -assert personal knowledge (unless witness)
    • -assert personal opinion
  91. Rule 3.5

    (a) - (d)
    Rule 3.5 Impartiality and Decorum of the Tribunal

    • (a) seek to influence judge/juror by illegal means
    • (b) communicate ex parte with such a person during the proceeding unless authorized
    • (c) communicate with juror after discharge of jury if...
    • (d) engage in conduct intended to disrupt tribunal
  92. Rule 3.6 (a)
    Rule 3.6 Trial Publicity

    (a) a lawyer shall not make an extrajudicial statement that lawyer knows or reasonably should know will be public and will have a substantial likelihood of materially prejudicing an adjudicative proceeding

    **no information about scientific tests, or anything like that...
  93. Rule 3.6(b)

    (7 types)
    Rule 3.6 Trial Publicity

    (b) lawyer may state (not exhaustive list)

    • (1) claim, offense/defense involved, and  (except when prohibited) identity of person
    • (2) information contained on public record 
    • (3) that investigation is in progress
    • (4) scheduling or result of any step in litigation
    • (5) request for assistance in obtaining evidence and info necessary thereto
    • (6) Warning of danger when there exists the likelihood of substantial harm to individual or public interst
    • (7) in a criminal case... (4 categories of information about defendant and/or case)
  94. Rule 3.7(a)
    • Rule 3.7 Lawyers as Witness
    • (generally applicable in any proceeding)
    • (a) Lawyer shall not act as advocate at a trial in which lawyer is likely to be a witness unless
    • (1) testimony relates to unconstested issue;
    • (2) testimony relates to the nature and value of legal services rendered in the case; or
    • (3) disqualification of lawyer would work substantial hardship on the client.
  95. Rule 3.7(b)
    Rule 3.7 Lawyer as Witness

    (b) lawyer may act as advocate in a trial which another lawyer in firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or 1.9
  96. Rule 4.1
    Rule 4.1 Truthfulness in Statements to Others

    • In the course of representing a client a lawyer shall not knowingly:
    • (a) make a false statement of material fact OR law to a third person; or
    • (b) fail to disclose a material fact to a 3rd person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client
    • **what is a "material fact" depends... duty of honesty in negotiation is sometime lax
  97. Rule 4.2
    Rule 4.2 Communication with Person Represented by Counsel

    lawyer shall not communicate about the subject of representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer OR is authorized to do so by law or court order

    • -major purpose is to prevent lawyers from making "end run" and trying to influence other party behind their lawyer's back...
    • -may not get around this rule by having anyone else contact the individual
    • -2 people who are represented by lawyers may talk to each other without lawyer's permission...
  98. Rule 4.2 and Corporations
    Rule 4.2 and Corporations

    • Comment 7 - who can lawyer interview without corporations lawyer's permission...
    • adverse lawyer may NOT interview employee who:
    • supervises, directs, or regularly consults with organization's lawyer
    • has authority to obligate the organization with respect to the matter, or
    • is one whose "act or omission" in connection with the matter may be imputed to the organization for liability purposes
  99. Rule 4.3
    Rule 4.3 Dealing with Unrepresented Persons

    In the process of representing a client, a lawyer shall not state or imply that the lawyer is disinterested (should not mislead people into thinking that they do not represent their client) AND should not state that they are looking out for interest of client and unrepresented person...

    when lawyer knows or should know that unrepresented person misunderstands their shall make reasonable efforts to correct

    lawyer shall not give legal advice to an unrepresented person, other than advice to secure counsel, IF the lawyer knows or RSK that interests of person have a reasonable possibility of being in conflict with client's interests.
  100. Rule 4.4
    Rule 4.4 Respect for Rights of Third Persons

    • (a) lawyer shall not use means that have no substantial purpose other than to embarass, delay or burden a third person...or violate rights of such person in order to obtain evidence
    • (b) lawyer who receives document or electronically stored information relating to representation and knows or RSK that it was inadvertently sent, shall promptly notify sender.
  101. Rule 3.8
    Rule 3.8 Special Responsibilities of Prosecutor

    • prosecutor in a criminal case shall...
    • (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.
    • (b) assure that accused is aware of rights to counsel and has opportunity to do so
    • (c) not seek to obtain any sort of waiver from unrepresented person
    • (d) make timely disclosures to the defense...
    • (e) 
    • (f) refrain from making extrajudicial statements that heighten public scrutiny of defendant
    • (g) act promptly on new evidence that they reasonably believe will vindicate..
    • (h) shall seek to remedy conviction that prosecutor knows of clear an convincing evidence that would vindicate...
Card Set:
Professional Responsibility
2013-10-31 15:04:23
law school

breakdown of the ABA Model Rules of Professional Conduct
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