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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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