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Fall, 1994

LAWYER'S DUTIES TO CLIENT

COMPETENCE (Rule 1.1)

Legal knowledge; Skill; Thoroughness; Preparation.

(Must not take on a matter an attorney knows he is not competent to handle.)

Comment:
[1] Factors include relative complexity and specialized nature, lawyer's general experience in the field, the preparation and study the lawyer is prepared to give, and feasibility of referral to attorney of established competence in the field.
[2] A lawyer can provide competent representation in a wholly novel field through necessary study.
[3] In an emergency a lawyer may give limited advice on a matter in which he does not have the skill ordinarily required.
[5] Adequate preparation.

-The Rules in one area forbid the lawyer form asking the client to agree to incompetent representation. Rule 1.2, Comment 5. However, later the Rules make clear that, if other law permits, the lawyer may make an agreement "prospectively limiting the lawyer's liability to a client for malpractice" if the client "is independently represented in making the agreement..." Rule 1.8(h).

DILIGENCE (RULE 1.3)

Shall act with reasonable diligence and promptness.

Comment: [1] Discretion in determining means by which matter is pursued; Lawyer need not press for every advantage.
[2] No procrastination (i.e., overlook statute if limitations).
[3] Unless relationship terminated (Rule 1.16), lawyer should carry through to conclusion all matters undertaken for a client.

CONFIDENTIALITY (RULE 1.6)

(a) Absent consent of client, must not reveal information pertaining to client, except that impliedly necessary to carry out representation.
(b) May reveal to extent believes reasonably necessary to:
(1) prevent criminal act he believes likely to result in imminent death or substantial bodily harm.
(2) to establish claim or defense for controversy with client; to defend civil claim or criminal charge against lawyer for client-based conduct.

Comment:
[4] Rule encourages full and frank communication; [9] Public is better protected if full and open communication encouraged.
[8] Lawyers in firm, in course of practice may disclose confidences unless client instructs otherwise.
[10] May not assist or counsel in criminal or fraudulent conduct; If services so used, lawyer must withdraw (Rule 1.16(a)(1)).
[13 & 17] Any necessary disclosure no greater than lawyer believes reasonably necessary.
[21] Duty of confidentiality continues after relationship terminated.

-EXCEPTIONS: if client consents, when other provisions in the Rules permit disclosure (see Rule 1.6, comment 20, referring to Rules 2.2, 2.3, 3.3 and 4.1), challenging court orders requiring disclosure, to collect a fee, to respond to a charge of wrongful conduct, when the client intends to commit a crime which in lawyer's opinion will likely result in imminent death or substantial bodily harm.

LAWYER AS ADVISOR (COUNSELOR) (RULE 2.1)

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 tot he client's situation.

Comment: [2] Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

SAFEKEEPING OF PROPERTY (RULE 1.15)

(a) Client's property held separately; funds in separate trust account; Records kept for five years.
(b) Prompt delivery of funds due to client to which client entitled.
(c) Amount in dispute kept separate until dispute resolved.

Comment: [2] If risk client will divert funds lawyer receives from third party from which fee will be paid, lawyer not required to remit portion, but it should be kept separate until dispute resolved.

SALE OF LAW PRACTICE (RULE 1.17)

May sell practice and good will if:
(a) ceases to practice in geographic area or jurisdiction (jurisdiction selects which).
(b) practice sold in entirety
(c) actual written notice to all clients of:
(1) proposed sale;
(2) terms;
(3) client's right to retain other counsel or to possess file;
(4) consent presumed of silence.

If no actual notice possible, court order required. In camera disclosure okay to extent necessary to obtain authorization.

(d) fees shall not increase due to sale, but new lawyer may require client to pay fees not exceeding pre-sale feed for substantially similar services.

Comment:
[1] Practice of law profession; clients are not mere commodities that can be purchased and sold.
[2] return to private practice after unanticipated change in circumstances not a violation.
[4] Some states so large move from tantamount to leaving jurisdiction.
[5] Single purchaser requirement protects clients with less lucrative matters who might find it hard to secure their counsel.

ATTORNEY AS WITNESS (RULE 3.7)

(a) Can't be advocate if likely to be witness, except if:
(1) uncontested issue;
(2) about nature and value of legal services rendered;
(3) disqualification = substantial hardship for client.
(b) Okay to be advocate where another firm lawyer likely to be witness unless precluded by rules 1.7 or 1.9.

Comment: [1] Combining role of advocate and witness can create conflict of interest and prejudice to other party.
[4] disqualification under (a)(3) recognizes balancing interests of client and of opposing party.

ORGANIZATION AS CLIENT (Rule 1.13)

Comment: [3] When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6.
[4] When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful.
[7] If client is government agency, see pages 42-43 for explanation of how balancing works.
[8] If organization's interest may be or becomes adverse to those of one or more of its constituents, the lawyer should advise any constituent, whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Thus, discussions between the lawyer and the individual may not be privileged.

CLIENT'S RIGHTS

COMMUNICATION: (TO BE INFORMED) (RULE 1.4)
(a) Keep client reasonably informed about status of matter and promptly comply with reasonable requests for information.
(b) Explain matter so that client can make informed decisions.

Comment: [1] Client should be advised even if he delegates authority, and should have enough information to make intelligent decisions.
[2] Adequacy of information depends upon kind of advice and assistance involved--guiding principle is fulfilling reasonable client expectations.
[3] Information provided should be appropriate for comprehending and reasonable adult. But, practical exigency may require lawyer to act without prior consultation.
[4] May withhold information when client likely to act imprudently with immediate communication, but never to satisfy lawyer's own interest and convenience.

SCOPE OF REPRESENTATION (CLIENT'S RIGHTS TO MAKE DECISIONS) (RULE 1.2)

(a) Generally, client decides objectives (implies lawyer decides strategy). Lawyer must accept client's decisions on settlements, pleas, waivers, and whether or not to testify.
(c) Lawyer may limit objectives after consultation.
(d) May not counsel client to engage in, or assist in client's fraudulent or criminal conduct. Should discuss consequences and withdraw if client persists in pursuing action (Rule 1.16).
(e) If client expects impermissible assistance, lawyer should discuss limitations on lawyers conduct.

Comment:
[1] Client decides objectives, lawyer decides tactics and strategy, though law varies among jurisdictions.
[2] if client mentally ill, see Rule 1.14.
[6] Lawyer required to give honest opinion about law. If client uses information for fraud or crime, lawyer not guilty, though lawyer may not knowingly assist in crime or fraud. Distinction here is between analysis and recommended behavior for crime or fraud.
[7] Withdrawal maybe required if client persists with crime or fraud.

CLIENT UNDER DISABILITY (RULE 1.14)

(a) If client unable to make proper decisions because impaired due to minority, mental disability, or other reason, lawyer shall, as much as reasonably possible, maintain a normal relationship.
(b) May seek appointment of guardian or take other appropriate action only if reasonably believes client cannot adequately act in her own interest.

Comment:
[1] A client lacking legal competence often has ability to understand, deliberate upon and reach conclusions about matters affecting her own well-being.
[2] Disability does not diminish need for lawyer to treat client with attention and respect. If no guardian, lawyer must often act as de facto guardian.

WHETHER TO REPRESENT CLIENT (RULES 1.10 "IMPUTED DISQUALIFICATION" & 1.16 "DECLINING OR TERMINATING REPRESENTATION)

RULE 1.10 "IMPUTED DISQUALIFICATION"

(a) Members of firm may not knowingly represent client if other member would be prohibited from so doing by Rules 1.7, 1.8(c), 1.9 or 2.2.
(b) Part (a) does not apply when "prohibited" lawyer has left firm, unless:
(1) Matter is same or substantially same to that in which former lawyer represented client; and
(2) Any lawyer remaining in firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) Disqualification may be waived by client pursuant to Rule 1.7.

RULE 1.16 "DECLINING OR TERMINATING REPRESENTATION"

(a) [Must withdraw or decline:] Except as stated in (c), lawyer shall no represent, or shall withdraw, if:
(1) representation will result in violation of Rules or law.
(2) lawyer's physical/mental condition impairs ability to represent.
(3) lawyer is discharged.
(b) [May withdraw or decline:] Except as stated in (c), lawyer may withdraw if it can be done without adverse effect on interests of client, or if:
(1) Lawyer reasonably believes client persists in using services for crime or fraud;
(2) client has used his services for crime or fraud;
(3) client pursues considers repugnant or imprudent;
(4) client fails substantial obligation to lawyer and lawyer has given fair warning of withdrawal if obligation not performed;
(5) representation present unreasonable financial burden to lawyer, or representation rendered unreasonably difficult by client;
(6) other good cause for withdrawal exists.
(c) Lawyer must represent despite good cause for not doing so when ordered by tribunal.
(d) If lawyer terminates, he shall take reasonable steps to protect client's interests (i.e, giving reasonable notice to client, allowing time to get other counsel, surrendering papers and property to which client entitled, except t o those lawyer entitled to keep by law, and refunding advance money not earned.)

Comment:
[1] Lawyer should not accept representation unless it can be performed competently, promptly, without improper conflict of interest, and to completion.
[3] If lawyer appointed as counsel, withdrawal ordinarily requires approval of appointing authority.
[4] Client may discharge lawyer at any time, for any reason.

-If a matter is before a tribunal, the lawyer must follow that tribunal's rules, which typically require securing the tribunal's permission before withdrawing. If the tribunal does not grant permission, the lawyer must continue in the case even though the lawyer would otherwise have a right, or duty to withdraw. Rule 1.16(c).

-If the client discharges the lawyer and the tribunal does not permit the lawyer to withdraw, the lawyer must comply with the orders of the tribunal. Compare Rule 1.16(a) with Rule 1.16(c).

DUTIES TO OTHERS

THIRD PARTIES
FAIRNESS TO OPPOSING PARTY AND COUNSEL (RULE 3.4)

A lawyer shall not:
(a) Obstruct access to, or counsel another to, alter, destroy, or conceal evidence that has possible evidentiary value;
(b) Falsify evidence or assist witness to testify falsely;
(c) Disobey obligation imposed by rules of a tribunal unless open refusal based on assertion no obligation exists;
(d) Make frivolous discovery requests or fail to comply with discovery requests.
(e) Allude to irrelevant matters or give personal opinion at trial.
(f) Request third party to not give relevant information to another party unless:
(1) person relative, employee or agent of client;
(2) lawyer reasonably believes person's interests will not be affected by refraining from giving such information.

Comment:
[1] This ensures fair competition.
[2] Common law rule in most jurisdictions is that it is improper to pay occurrence witness, or to pay expert witness a contingent fee.

TRUTHFUL STATEMENTS TO OTHERS (RULE 4.1)

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person if necessary to avoid assisting a client's criminal or fraudulent act, unless disclosure prohibited by Rule 1.6.

Comment:
[1] lawyer required to be truthful when dealing on a client's behalf, but no affirmative duty to inform opposing party of relevant facts; Misrepresentation if lawyer incorporates or affirms statement of another that lawyer knows to be false.
[2] Under negotiation conventions, certain statements not material fact--e.g., estimates of price or value and of party's intentions as to an acceptable settlement.

COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL (RULE 4.2)

Must not communicate with another lawyer's client unless other lawyer consents, or law permits.

Comment:
[1] Rule does not prohibit communication with a party concerning matters outside the representation.
[2] Party's to a matter may communicate directly with each other.

-Rule 4.2, Comment 2 makes clear that the requirement of counsel consent "also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question."

-Requirement is inapplicable if OTHER LAW authorizes the lawyer to communicate directly with a person about the subject of the representation. (i.e. speaking with government officials).

-If a corporation or other entity is represented by counsel, then alter egos of that organization are also treated as persons represented by that counsel for purposes of the rule restricting communications to persons represented by counsel.

UNREPRESENTED PERSONS:

In dealing with unrepresented persons, lawyer shall not state or imply that lawyer is disinterested. If lawyer knows or should know unrepresented person misunderstands lawyer's role, lawyer shall make reasonable efforts to correct misunderstanding.

RESPECT FOR RIGHTS OF THIRD PERSONS:

Must not embarrass, delay or burden third party while representing client, or violate the legal rights of someone in obtaining evidence.

RESPONSIBILITIES IN GENERAL TO PROFESSION (Rule 8.4)

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official; or
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Comment: [1] Traditionally, the distinction was drawn in terms of offense involving "moral turpitude". That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. A lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty or breach of trust, or serious interference with the administration of justice are in that category.
[2] A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.

RESPONSIBILITIES OF PARTNERS OR SUPERVISORS (RULE 5.1)

(a) Partners shall make reasonable efforts to ensure measures that all lawyers conform to Rules.
(b) Supervising lawyer shall make reasonable efforts to ensure other lawyers conform to Rules.
(c) Lawyer responsible for other lawyer's violation if:
(1) lawyer orders or with knowledge permits conduct; or
(2) Partner or supervisor fails to take reasonable remedial action if he knows of conduct at time when its consequences can be avoided or mitigated.

RESPONSIBILITES OF SUBORDINATE ATTORNEY (RULE 5.2)

(a) (No "muremberg defense") Lawyer bound by Rules even if action under direction of another.
(b) No violation if subordinate acts under supervisor's reasonable resolution of an arguable question of professional duty.

Comment:[1]Note that acting under a supervisor's behest may demonstrate lack of knowledge.

DUTIES TO COURT/"CANDOR TOWARDS THE TRIBUNAL" (RULE 3.3)

(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law;
(2) fail to disclose material fact necessary to avoid crime or fraud by client;
(3) fail to offer controlling legal authority directly adverse to position of client and not offered byopposing counsel.
(4) Knowingly offer false evidence. If lawyer later discovers evidence to be false, he shall take reasonable remedial measures.
(b) Duties in (a) continue to end of proceeding, and apply even if information otherwise protected by Rule 1.6.
(c) Lawyer may refuse to offer evidence reasonably believed to be false.
(d) Lawyer must introduce all facts, even adverse ones, necessary for a tribunal to reach an informed decision in ex parte proceedings.

Comment: [5] If client offers evidence lawyer knows to be false, recognizing conflicting duty of client confidence and candor towards the tribunal, lawyer must take reasonable remedial measures.
[6] Except for defense of criminally accused, advocate must disclose client's deception to court or other party if necessary to rectify the situation; sense of betrayal by client is subdued by worse evil of lawyer cooperating to deceive the court.
[8 - 10] If criminal defendant insists on committing perjury with lawyer's knowledge, three options for dilemma: (1) allow testimony as narrative, without guidance through lawyer's questioning (but this equals implicit disclosure by lawyer); (2) do nothing--it's the client's perjury even if lawyer knowing instrument of party; (3) reveal client's perjury if necessary to rectify situation.

MERITORIOUS CLAIMS AND CONTENTIONS:

Must not bring frivolous claim ("good faith" test); but lawyer defending one with possibility of incarceration may defend so as to require that every element of the case be established.

Comment: [1] Account must be taken of the law's ambiguities and potential for change.

IMPARTIALITY AND DECORUM OF TRIBUNAL (RULE 3.5)

Lawyer shall not:
(a) seek to influence judge, juror, prospective juror or other official;
(b) communicate ex parte with such person except as law permits;
(c) engage in disruptive conduct (no theatrics).

EXPEDITING LITIGATION (RULE 3.2)

A lawyer shall make reasonable efforts to expedite litigation.

Comment: [1] Dilatory practices bring administration of justice into disrepute.

SPECIAL DUTIES OF PROSECUTOR (RULE 3.8)

(a) Must not prosecute unless probable cause;
(b) Must protect accused's right of counsel;
(c) Must not seek waiver of important rights by unrepresented accused;
(d) Must disclose evidence which negates guilt in timely fashion.
(e) Must exercise reasonable care to prevent all assisting with prosecution to prevent extrajudicial statement that the prosecutor would be barred from making;
(f) Not subpoena lawyer in order to present evidence of layer's past or present client, unless:
(1) reasonably believes: (i) information not protected by any applicable privilege; (ii) evidence sought essential to successful completion of investigation or prosecution; (iii) no other feasible alternative to obtain information; and
(2) Prosecutor obtains judicial approval after opportunity for adversarial proceeding.

ACCEPTING APPOINTMENTS BY THE COURT (RULE 6.2)

Must not avoid unless:
(a) representation likely to result in Rules violation;
(b) unreasonable financial burden on lawyer;
(c) client or cause is repugnant to lawyer to point of affecting lawyer's ability to represent client.

TRIAL PUBLICITY (Rule 3.6)

-Must not make out-of-court statement a reasonable person would expect to become public where there is substantial likelihood of materially prejudicing proceedings.

-Permissible out of court statements include:

(a) general nature of claim or defenses;
(b) information in public record;
(c) general scope of investigation;
(d) request for public assistance;
(e) warning of danger if likelihood of harm;
(f) identity of accused, residence, etc.

CONFLICTS OF INTEREST

GENERAL RULE (RULE 1.7)

(a) Shall not represent if it will be directly adverse to another client, unless:
(1) lawyer reasonably believes relationship with other client will not be adversely affected;
(2) each client consents.
(b) Shall not represent if representation will materially limited by responsibilities to another client or third person, or by lawyer's own interests, unless:
(1) lawyer reasonably believes representation will not be affected; and
(2) client consents.

Comment: [2] If conflict arises after representation, lawyer should withdraw.
[5] When disinterested lawyer would conclude client should not agree to representation under circumstances, lawyer cannot properly ask for client's consent.
[13] In estate planning and administration, lawyer should make clear relationship to parties involved.

FORMER CLIENTS (RULE 1.9)

(a) Shall not oppose former client in substantially related matter by representing another unless former client consents after consultation;
(b) Shall not oppose former client of any firm attorney has been associated with in same or substantially related matter if:
(1) interests of new client materially adverse to old client; and
(2) if lawyer acquired information about old client protected by Rules 1.6 and 1.9(c) Unless former client consents after consultation.
(c) Lawyer who himself, or whose firm, formerly represented a client, shall not:
(1) use information to disadvantage of former client.

Comment: [2] The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.

IMPUTED DISQUALIFICATION (RULE 1.10)

(a) Members of firm may not knowingly represent client if other member would be prohibited from so doing by Rules 1.7, 1.8(c), 1.9 or 2.2.
(b) Part (a) does not apply when "prohibited" lawyer has left firm, unless:
(1) Matter is same or substantially same to that in which former lawyer represented client; and
(2) Any lawyer remaining in firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) Disqualification may be waived by client pursuant to Rule 1.7.

INTERMEDIARY (BETWEEN CLIENTS) (RULE 2.2)

(a) May act as intermediary if:
(1) Lawyer communicates to clients implications (advantages and disadvantages, effect on attorney-client privilege, and obtains consent from each client;
(2) if reasonably believes matters can be so resolved compatible with each client's best interests, that each will make informed decision, and little risk of material prejudice if resolution unsuccessful; and
(3) lawyer reasonably believes he can be impartial and will not effect relationship with clients.
(b) Lawyer shall consult with each client so that they can make informed decisions.
(c) Lawyer shall withdraw at client's request or if any previous conditions no longer satisfied. After withdrawal, lawyer shall not represent any of the clients in matter that was the subject of the intermediation.

Comment:
[1] Because of potential for confusion about lawyer's role, she shall make clear the relationship.
[2] Rule does not apply to lawyer acting as arbitrator or mediator.
[4] Lawyer cannot undertake common representation of clients between whom contentious litigation is imminent or who contemplate contentious negotiations.

SUCCESSIVE GOVERNMENT EMPLOYMENT AND PRIVATE EMPLOYMENT (RULE 1.11)

(a) No attorney in new firm may represent a client in which lawyer participated personally and substantially in as public employee unless government agency consents. No lawyer on new firm may represent such client unless:
(1) disqualified lawyer screened and receives no portion of the fee; and
(2) written notice given to agency.
(b) Former government lawyer may not represent client when lawyer acquired information about opponent while in government when that information could be used to the material disadvantage of that person, unless new lawyer screened and receives no portion of the fee.
(c) lawyer serving as public employee shall not:
(1) participate in matter that he worked on substantially while in private practice unless applicable law forbids someone to act in the lawyer's stead on the matter; or
(2) negotiate for private employment with person who is involved as party in matter lawyer currently working on unless a law clerk for a judge, as permitted by Rule 1.12(b).
(d) definition of "matter."
(e) definition of "confidential government information."

Comment:
[1] Rule forbids lawyer from exploiting public office for advantage of private client.
[3] Rule should not be so restrictive so as to inhibit transfer of employment to and from government since government has a legitimate need to attract qualified lawyers in addition to maintaining high ethical standards.

PROHIBITED TRANSACTIONS (RULE 1.8)

(a) Lawyer shall not enter into transaction with client or acquire pecuniary interest adverse to client unless:
(1) terms reasonable and fair and fully provided to client in writing in terms client reasonably can understand;
(2) client is given opportunity to seek advice of independent counsel; and
(3) client consents in writing.
(b) Lawyer shall not use information to disadvantage of client unless client consents or unless client suing attorney (Rule 1.6), or plans on lying to tribunal (Rule 3.3).
(c) Must not prepare instrument giving gift to attorney.
(d) Must not negotiate for literary or media rights prior to conclusion of representation.
(e) Must not provide financial assistance, unless:
(1) advancing court costs or litigation expenses when repayment contingent on outcome;
(2) advancing court costs or litigation expenses for indigent client;
(f) lawyer shall not accept compensation from third party, unless:
(1) client consents after consultation;
(2) no interference with independence, professional judgement, or client-lawyer relationship; and
(3) information relating to representation protected as required by Rule 1.6.
(g) Lawyer who represents more than one client shall not make aggregate settlement unless each client consents and lawyer discloses participation of each person in the settlement.
(h) enter agreement to limit malpractice unless client independently represented for agreement or advises person that independent agreement is appropriate.
(i) Related lawyers shall not represent adverse clients unless informed consent of clients.
(j) Must not acquire proprietary interest in case of action, except lawyer may:
(1) get lien to secure fee or expenses; and
(2) contract for reasonable contingent fee in civil cases.

Comment:
[1] Lawyer may not exploit information relating to representation to client's disadvantage. Also, paragraph (a) does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others.
[2] A lawyer may accept gift from client if transaction meets general standards of fairness.

PRACTICAL MATTERS OF LAWYERING

FEES (RULE 1.5)

(a) Lawyer's fee shall be reasonable. Factors to consider:
(1) time and labor required, novelty and difficulty of questions involved, and skill needed to perform the legal service properly;
(2) likelihood, if apparent to client, that accepting employment will preclude other employment by lawyer;
(3) fee customary in locality for similar legal services;
(4) amount involved and results obtained;
(5) time limitations imposed by client or circumstances;
(6) nature and length of relationship with client;
(7) experience, reputation and ability of lawyer;
(8) whether fee fixed or contingent.
(b) If new client, basis of fee communicated, ideally in writing, before or soon after commencing representation.
(c) Contingent fee allowed unless prohibited by (d) or law. It shall be in writing and shall state how fee determined including percentage of recovery based on different outcomes and if expenses deducted from recovery. After conclusion lawyer shall provide written statement stating outcome and how recovery determined.
(d) lawyer shall not arrange, charge, or collect:
(1) contingency fee in domestic relations matter;
(2) contingency fee in criminal trial.
(e) Division of lawyers not in same firm okay if:
(1) division in proportion to services performed by each lawyer or, by written agreement with client, each lawyer assumes joint responsibility for representation;
(2) client is advised and does not object to participation of all lawyers involved; and
(3) total fee is reasonable.

Comment:
[1] If previous representation, understanding ordinarily exists concerning basis of fee. In new relationship, basis for fee should be established promptly. Furnishing simple memo to client is sufficient if basis for rate of fee set forth.
[2] Lawyer may require monetary advance, but must return unused portion. However, fee paid in property subject to special scrutiny.

OTHER FEE ISSUES (RULE 5.4)

(a) Lawyer shall not share legal fees with non lawyer except that:
(1) agreement which provides payment after lawyer's death to estate or another person
(2) lawyer who purchases practice of deceased
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services to another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
2) a nonlawyer is a corporate director or officer thereof; or
3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

PRO BONO WORK (RULE 6.1)

Aspire to 50 hours of service per year.

(a) substantial majority of hours without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in matters designed primarily for people of limited means; and
(b) provide additional service through:
(1) no fee or substantially reduced fee to groups seeking to protect civil rights, liberties or public rights, or to charitable, religious, civic, community, governmental and educational organizations where paying standard fees would significantly deplete their resources or where otherwise inappropriate;
(2) delivery of service at substantially reduced fees to persons of limited means; or
(3) participation in activities for improving law, legal system, or legal profession.

In addition lawyer should provide financial support to organizations that provide legal support to persons of limited means.

Comment:
Some years lawyer may render greater or fewer hours, but average should be 50. If lawyer cannot offer time, monetary support to organizations offering legal assistance to persons of limited means okay if roughly equivalent to value of hours or services that would otherwise have been provided.
These responsibilities not intended to be enforced through the disciplinary process.

BAR ADMISSION AND DISCIPLINE

APPLICANT TO BAR (RULE 8.1)

Applicant or lawyer in connection with bar admission application shall not:

(a) knowingly make false statement of material fact; or
(b) fail to disclose fact necessary to correct misapprehension, or knowingly fail to respond to lawful demand for information from disciplinary authority, unless protected by Rule 1.6.

Comment: [1] Applies to applicants as well as to lawyers. Person relying on 5th Amendment should do so openly.

DUTY TO REPORT MISCONDUCT OF ANOTHER ATTORNEY OR JUDGE (RULE 8.3)

(a) If knowledge of another lawyer's violation of Rules that raises substantial questions as to lawyer's honesty, trustworthiness or fitness as a lawyer, one should report.
(b) if knowledge judge violated Rules that raises substantial question as to fitness for office, one shall inform.
(c) Rule does not require disclosure of information protected by Rule 1.6

Comment: [1] Self-regulation of legal profession requires this rule.
[3] Rule limits reporting to those offenses that a self- regulating profession must vigorously endeavor to prevent.

-Substantial means "a material matter of clear and weighty importance" Model Rules Terminology, 10. Thus, substantial refers not to the amount of evidence of which the lawyer is aware, but to the "seriousness of the possible offense." Rule 8.3, Comment 3.

ADVERTISING & SOLICITATION

COMMUNICATIONS CONCERNING SERVICES (RULE 7.1)

Lawyer shall not make false or misleading communication about service. False or misleading if:

(a) Has material misrepresentation of fact or law, or has omission that makes communication misleading.
(b) Likely to create unjustified expectati
on about results, or implies results that violate Rules. (c) Compares services with other lawyers unless comparison factually substantiated.

REQUIREMENTS FOR ADS (RULE 7.2)

(a) Basically, lawyer may use all media to advertise.
(b) Copy of all advertising should be kept for 2 years along with record of when and where used.
(c) lawyer shall not compensate for referral unless:
(1) to pay reasonable costs of advertising;
(2) pay usual charges for non-for-profit lawyer referral service; and
(3) pay for law practice in accordance with Rule 1.7.
(d) Any communication shall include name of at least one lawyer responsible for content.

Comment: [1] Interest in expanding public information about legal services ought to prevail over considerations of tradition.

SOLICITATION/ DIRECT CONTACT (RULE 7.3)

(a) No in-person or live contact to solicit (if not family or prior professional relationship) if primary interest is pecuniary gain.
(b) No solicitation by written or recorded communication, or by in-person or live contact even if (a) not violated, so long as:
(1) prospective client made known desire not to be solicited.
(2) solicitation involves coercion, duress or harassment.
(c) All solicitation not of family or of one with whom lawyer has prior professional relationship shall state "advertising material" on envelope and at beginning and end of any recorded communication.
(d) Despite (a), lawyer may be part of prepaid legal service plan operated by organization not owned or directed by lawyer.

Comment: [1] Solicitation fraught with possibility of undue influence, intimidation, and overreaching.

COMMUNICATING FIELDS OF PRACTICE (RULE 7.4)

Lawyer may not state or imply recognized or certified in a particular field of law, except:

(a) Patent attorney;
(b) Admiralty attorney;
(c) Where regulatory authority grants certification, but only if:
(1) certification granted by such regulatory authority; or
(2) certification granted by organization not yet approved by appropriate regulatory authority, then reasons for absence or denial clearly stated in the communication.
(d) Where certification by group without procedure for certification, or in jurisdiction without regulatory body to approve of such organizations, fact that no procedures for certification exist must be clearly stated in communication.

FIRM NAMES AND LETTERHEADS (RULE 7.5)

(a) Lawyer shall not use letterhead that violates Rule 7.1. Trade name may be used if it does not imply connection with government or charitable legal service organization.
(b) Firm with offices in more than one jurisdiction may use all its lawyers in letterhead, provided jurisdictional limitations for those not licensed to practice in jurisdiction where office located identified.
(c) Name of lawyer holding public office may not be used during any period when lawyer not actively and regularly practicing with the firm.
(d) Lawyers may imply practice in a partnership or other organization only when that is the fact.

Comment: [1] Firm may used name of deceased members where there has been a continuing succession in the firms identity, so long as not misleading. If private firm uses name such as "ABC Legal Clinic," you need disclaimer that it is not government or charitable.

CONDUCT OF JUDGES

CANON 1 -- UPHOLD INTEGRITY AND INDEPENDENCE OF JUDICIARY

A) PARTICIPATE IN MAINTAINING HIGH STANDARDS
B) DUTY TO OBSERVE AND REPORT VIOLATIONS OF OTHER JUDGES

CANON 2 -- AVOID IMPROPRIETY

A) IMPROPER INFLUENCE
1) Shall now allow relationships to influence judicial conduct or judgment.
2) Shall not use office to advance private interests.
3) Shall not let others imply they have influence with judge.
4) Shall not testify voluntarily as character witness.

B) FORBIDDEN MEMBERSHIPS
1) Organization which discriminates.

CANON 3 -- PERFORM DUTIES IMPARTIALLY AND DILIGENTLY

A) DUTIES TAKE PRECEDENCE OVER OTHER ACTIVITIES.
B) ADJUDICATIVE RESPONSIBILITIES

1) Hear and decide assigned matters (unless disqualified).
2) Be faithful to the law and not be swayed by outside interests.
3) Require order and decorum in court.
4) Be patient, dignified and courteous.
5) Perform duties without bias or prejudice.
6) No ex parte communications, except:
a) Scheduling, administrative purposes or emergencies.
i) no one will gain advantage.
ii) Give prompt notice to all parties with opportunity to respond.
7) Dispose of matters promptly, efficiently, and fairly.
8) Shall not make public comment which may affect outcome while proceeding is pending.
9) Shall not disclose or use nonpublic information for nonjudicial purposes.

C) ADMINISTRATIVE ACTIVITIES

1) Avoid nepotism and favoritism.

D) DISQUALIFICATIONS -- DISCLOSE REASONS AND OBTAIN WAIVER
1) Personal bias.
2) Personal knowledge of disputed fact.
3) Served as attorney in matter.
4) Former partner was attorney in matter.
5) Judge as witness.
6) Knows of personal economic interest in matter.
7) Relative is party, attorney, or likely to be witness.

E) KEEP INFORMED OF PERSONAL AND FAMILY ECONOMIC INTERESTS

CANON 4 -- MINIMIZE RISK OF CONFLICT IN EXTRA-JUDICIAL ACTIVITIES

A) ACTIVITIES DO NOT INTERFERE WITH PERFORMANCE OR CASE REASONABLE DOUBT ON IMPARTIALITY.

B) MAY SPEAK OR WRITE ABOUT LAW AND NON-LEGAL SUBJECTS.
C) GOVERNMENT, CIVIC, OR CHARITABLE ACTIVITIES.

1) Cannot appear at public hearings except on matters concerning law.
2) Cannot accept appointment to government position concerning anything other then improvement of law.
3) Can serve in organization to improve law or educational, religious, charitable, fraternal or civic nonprofit group with limitations:
a) Likely to come before judge.
b) Assist in planning fundraising and management of funds.
c) Can solicit funds from other judges (unless superior)
d) Cannot solicit funds from others
i) Can attend fundraiser, but cannot be speaker of honor.
e) Cannot participate in membership solicitation
i) Can sign membership mailing.

D) FINANCIAL ACTIVITIES

1) No dealings which may be perceived as exploiting position or involved with people likely to come before judge's court.
2) Investments can be personally held and managed.
3) Cannot serve in business except for closely-held family business.
4) Shall not accept and urge household not to accept gifts,
a) incident to public testimonial
b) invitation to law-related function
c) Related to activity of member of household (without appearance of impropriety)
d) ordinary social hospitality
e) Wedding, anniversary, and birthday gifts.
f) Bank loans and scholarships on same terms with everyone else.
g) Gift where donor not likely to come before judge.
5) Gift in excess of $150 must be reported in same manner as compensation.

E) FIDUCIARY ACTIVITIES

1) Serve as trustee, etc. for family members only where not likely to come before judge's court.

F) PRACTICE OF LAW
1) Limited to pro se or free advice to family.

G) COMPENSATION FOR EXTRA-JUDICIAL ACTIVITIES AS LONG AS NO APPEARANCE OF IMPROPRIETY

1) Must not exceed reasonable amount
2) Expenses limited to actual cost
3) Must provide public report.

CANON 5 -- REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

A) EXCEPT WHEN CAMPAIGNING FOR ELECTION, SHALL NOT ENGAGE IN ANY POLITICAL ACTIVITY OTHER THAN IMPROVEMENT OF LEGAL SYSTEM.

B) CANDIDATES FOR PUBLIC ELECTION

1) Buy tickets and attend political gathering
2) Speak to gathering in support of candidacy
3) Identify as member of political party.
4) Contribute to political party.
5) Appear in advertisements.

C) CANDIDATE FOR APPOINTMENT

1) May not do any of the above

D) CONDUCT DURING JUDICIAL CAMPAIGN

1) No pledge or promise of conduct in office
2) No statement that commits candidate to position on cases likely to come before her.
3) No solicitation of funds (must be done by committee).

MISCELLANEOUS

-The Model Rules reject the "appearance of impropriety" test. The drafters thought that it was too close and vague; it gave no fair warning and it allowed, if not encouraged, instinctive judgments. The Rules, at times, impose a bright line prohibition in order to avoid an "appearance of impropriety", but that is not by itself any test.

-A lawyer may be disciplined for wrongful conduct even though that person was not acting in his or her capacity as a lawyer when engaging in the wrong, IF the conduct functionally relates to his or her capacity to practice law. Rule 8.4(b), (c).

-Not all illegal conduct is disciplinable. The Code, for example, only prohibits crimes involving "moral turpitude." DR 1-102(A)(3). The Rules adopt more precise language because "a lawyer should be professionally answerable only for offenses that indicate a lack of those characteristics relevant to law practice." Rule 8.4, Comment 1. Rule 8.4(b) limits disciplinable crimes to those that reflect "adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Discipline is inappropriate for violation of "personal morality" such as adultery. Rule 8.4, Comment 1.

-Conduct that involves dishonesty, fraud, deceit, or misrepresentation, whether or not a crime, is disciplinable. Rule 8.4(c).

-A state disciplinary authority has, in general, the power to discipline a person admitted to the bar in that jurisdiction even though the acts complained of occurred outside the jurisdiction.

-Neither the Code nor the Rules incorporate any statutes of limitations for disciplinary actions.

OTHER RULES NOT COVERED IN OUTLINE

1.12 FORMER JUDGE OR ARBITRATOR
2.3 EVALUATIONS FOR USE BY THIRD PERSONS
3.9 ADVOCATE IN NON-ADJUDICATIVE PROCEEDINGS
5.3 RESPONSIBILITIES REGARDING NON-LAWYER ASSISTANCE
5.4 PROFESSIONAL INDEPENDENCE OF LAWYER
5.5 UNAUTHORIZED PRACTICE OF LAW
5.6 RESTRICTIONS ON RIGHT TO PRACTICE
6.3 MEMBERSHIP IN LEGAL SERVICES ORGANIZATIONS
6.4 LAW REFORM ACTIVITIES AFFECTING CLIENT INTEREST
8.2 JUDICIAL AND LEGAL OFFICIALS
8.5 DISCIPLINARY AUTHORITY--CHOICE OF LAW

CONFIDENTIALITY
Initial Inquiry:
Threshold Question: Is there an attorney client relationship?

Answer is dependant on purpose of relationship/why your asking.

Factors:
Does person seeking client status have a reasonable expectation of such status?
Does the person want the relationship recognized beacause they are seeking the protection of confidentiality?
If yes, then likely client status.
NOTE: Context where threshhold question arises can vary.
NOTE: Lawyers bear the burdon of ambigiouity. If lawyer wants it to be clear that no attorney-client relationship exists, the burdon is on them, not "client" to clearify.

CONFIDENTIALITY
If attorney - client relationship exists, then lawyer owes a duty of confidentiality to client.
Significance- sets legal profession apart from other professions.

TWO TYPES/SOURCES OF COMFIDENTIALITY:

EVIDENTIARY PRIVILEDGE (Must meet all factors):
"Seeks legal advice": can be informal
Example: Conversation at a gym

Example of factor not met: When lawyer knows person is clearly represented by someone else; or lawyer dosclaims advise.

"Acting on behalf": Not met if it was clear that lawyer was not person's lawyer.

"Indefinate Time"/"may vs must invoke"
Confidentiality persists long after actual representation is over - duty to client is indefinate.
Invoking priviledge is client's option, but thier lawyer must invoke unless concent or waivor given by client.

HYPO: Lawyer called to testify against client: Must invoke and must compley with court only when highest appeal is exhausted.

"Client's communication to lawyer"

NOTE: Privledge also protects what lawyer told client if telling what he told/advised would implicitly reveal compromising info about client
. If already disclosed, may be unble to invoke priviledge

"agent":
Employees, associates of lawyer, accoutants collecting info on behalf of client to submit to lawyer.

ETHICALLY PROTECTED
Protected not as a rule of court, but rather as a matter of professional ethics.

Not good standard
attorney must anticipate what would be detrimental to client;

What is info gained in relationship;
burdon on client to know enough about legal consequences when deciding to invoke.
Client doesnt have to request/no burdon;
Lawyer dosent have to guess at what is potentially damaging to client;

Exceptions:
consent;
required by law or court;
can reveal if they relate to clients intention to commit crime
belief must be byond reasonable dobrt
to collect fees, defend in mal. prac.

Extent lawyer reasonably believes it is neccessary to:
prevent client from commiting a crime that would result in death or harm
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by: Ross E. Kimbarovsky

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