1 PR Rules Outline
1 PR Rules Outline
1 PR Rules Outline
(a) Belief or believes denotes that the person involved actually supposed the fact in question
to be true. A person’s belief may be inferred from circumstances.
(b) Confirmed in writing, when used in reference to the informed consent of a person,
denotes informed consent that is given in writing by the person or a writing that a lawyer
promptly transmits to the person confirming an oral informed consent. If it is not feasible
to obtain or transmit the writing at the time the person gives informed consent, then the
lawyer must obtain or transmit it within a reasonable time thereafter.
(c) Firm or law firm denotes a lawyer or lawyers in a law partnership, professional
corporation, sole partnership or other association authorized to practice law; or lawyers
employed in a legal services organization or the legal department of a corporation or
other organization.
(d) Fraud or fraudulent denotes conduct that is fraudulent under the substantive or procedural
law of the applicable jurisdiction and has a purpose to deceive. For purposes of this rule it
is not necessary that any damages were suffered or relied on the misrepresentation (the
fraudulent act) or if there was failure to inform.
(e) Informed consent denotes the agreement by a person to a proposed course of conduct
after the lawyer has communicated adequate information and explanation about the
material risks of and reasonably available alternatives to the proposed course of conduct.
Many rules require informed consent before accepting or continuing representation or a
course of conduct. (1.2c, 1.6a, and 1.7b) All requiring appropriate communication 1.4
which will vary in each circumstance.
(f) Knowingly, known, or knows, denotes actual knowledge of the fact in question. A
person’s knowledge may be inferred from circumstances.
(h) Reasonable or reasonably when used in reference to a lawyer denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question.
(i) Screened denotes the isolation of a lawyer from any participation in a matter through
timely imposition of procedures within a firm that are reasonably adequate under the
circumstances to protect information that the isolated lawyer is obligated to protect under
these rules and other law. Privileges or confidential information or information that is
likely to lead to a conflict or a conflict or interest exists. This applies to situations where
screening of a personally disqualified lawyer is permitted to remove imputation of
conflict of interest under 1.11, 1.12, or 1.18. Must immediately inform the parties that the
screening will promptly take place and for what reasons.
(j) Substantial when used in reference to degree or extent denotes a material matter clear and
weighty importance.
Week 1introduction
1) Moral character
3) Change in applicant-remorse
Good Moral Character: “the propensity on the part of the person to serve the public in the
licensed area in a fair, honest and open manner.
Lawyers take an oath to protect their selves and remind them of what their purpose in the justice
system really is. Remember the oath and never lose your line in the blizzard.
Within the framework of the rules may difficult issues or professional discretion can arise. Such
issues must be resolved through exercise of sensitive professional and moral judgment guided by
the basic principles underlying these rules. Rules provide a framework for the ethical practice of
law.
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it contains a material misrepresentation of
fact or law, or omits a fact necessary to make the statement considered as a whole not materially
misleading.
This rule governs all communications about a lawyer’s service including permitted advertising.
7.2 Advertising*
(a) Subject to the requirements of 7.1 and 7.3, a lawyer may advertise services through written,
recorded or electronic communication, including public media.
(b) A lawyer shall not give anything of value to a person for recommending the lawyers services
except that a lawyer may
(1) Pay the reasonable costs of advertisements or communications permitted by this rule;
(2) Pay the usual charge of a legal service plan or a not-for profit or qualified lawyer
referral service. A qualified lawyer referral service is a service that has been approved by an
appropriate regulatory authority.
(3) Pay for a law practice in accordance with 1.17 (sale of a law practice); and
(c) Any communication made pursuant to this rule shall include the name and office
address of at least one lawyer or law firm responsible for its content.
(a) A lawyer shall not by in person, live telephone or real time electronic contact solicit
professional employment from a perspective client when a significant motive is pecuniary gain,
unless the person contacted:
(1) is a lawyer; or
(2) has a family,
(3) a close personal, or
(4) has a prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by written,
recorded or electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the
lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(c) every written, recorded or electronic communication from a lawyer soliciting professional
employment from a prospective client known to be in need of legal services in a particular matter
shall include the words “Advertising Material” on the outside envelope, if any and at the
beginning and ending of any recorded or electronic communication, unless the recipient of the
communication is a person who is a lawyer, close relationship to lawyer, prior professional
relationship w the lawyer.
(d) Notwithstanding the prohibition in paragraph (a),a lawyer may participate w/ a prepaid or
group legal service plan operated by an organization not owned or directed by the lawyer that
uses in-person or telephone contact to solicit memberships or subscriptions for the plan from
persons who are not known to need legal services in particular matter covered by the plan.
(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular
fields of law.
(b) A lawyer admitted to engage in patent practice before the Us Patent and Trademark Office
may use the designation “patent attorney: or substantially similar designation.
(c) A lawyer engages in admiralty practice may use the designation “Admiralty,” Proctor in
Admiralty or a substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is certifies as a specialist in a particular filed of
law unless:
(1) The lawyer has been certified as a specialist by an organization that has been
approved by an appropriate state authority or that has been accredited by the ABA; and
(2) The name of the certifying organization is clearly identified in the communication.
(b) A lawyer may NOT state or imply that they are certified as a specialist in a particular
field of law unless;
1. They have been certified as a specialist by an organization approved by an
appropriate state authority; or
2. The lawyer is certified by an organization that is accredited by the ABA; and
3. The certifying organization is clearly identified in communication by the lawyer
Bottom line class notes
A lawyer may advertise their field of practice, however an attorney may not claim to be a
specialist unless they are actually certified by an approved and recognized certifying
organization and the organization is listed in the ad. An attorney may claim to specialize in a
particular field however the claim cannot be false and misleading as defined in 7.1.
7.5 Firms Names and Letterheads:
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates
7.1. A trade name may be used by a lawyer in a private practice if it does not imply a connection
with a government agency or with a public or charitable legal services organization and is not
otherwise in violation of 7.1
(b) A law firm with offices in more than one jurisdiction may use the same name or other
professional designation in each jurisdiction, but identification of the lawyers in an office of the
firm shall indicate the jurisdictional limitations on those not licensed to practice in the
jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, of
in communication on its behalf, during any substantial period in which the lawyer is not actively
and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only
when that is the fact.
**So basically you can call your firm whatever you want as long as it is not misleading or
untruthful.
A departing lawyer may solicit firm clients only on matters the lawyer worked actively and
substantially (on and for) and only after the lawyer has left the firm or after the lawyer has
adequately and timely informed the firm of an intent to contact clients for that purpose.
A departing lawyer may solicit firm clients only on matters the lawyer worked actively and
substantially and only after the lawyer has left the firm or after the lawyer has adequately and
timely informed the firm of an intent to contact clients for that purpose.
8.4 Misconduct
2) the client
1.1 Competence
1) Knowledge
2) Skill
3) Thoroughness and
1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
*A lawyer’s work should be controlled so that each matter can be handled adequately
Type of matter: do you have the time to properly handle this matter.
- A lawyer's work load must be controlled so that each matter can be handled competently
-Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of
the representation the lawyer has agreed to provide to the client
- At the time of attorney’s death, attorney makes sure that a competent colleague will take of
his/her duty.
A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other adverse transaction to the client unless:
1. The transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client and are fully disclosed and transmitted in writing in a manner that
can be reasonably understood by the client:
2. The client is advised in writing if the desirability of seeking and is given a reasonable,
opportunity to seek the advice of independent legal counsel in and on the transaction; and
3. The client gives informed consent, in writing signed by the client, to the essential terms
of the transaction and the lawyer’s role in the transaction, including whether the lawyer is
representing the client in the transaction.
2. Settle a claim or potential claim for such liability with an unrepresented client or
former client unless that person is advised in writing of the desirability of seeking and is
given a reasonable opportunity to seek the advice of independent legal counsel in
connection therewith.
(1) A lawyer may enter into a business transaction with a client if the terms are fair
and reasonable to the client and are fully disclosed to the client in a way that the
client can reasonably understand;
(2) The client is given a reasonable opportunity to seek independent advice about the
transaction;
(h) Limiting Liability. Lawyers are not allowed to make agreements that limit their liability to
their clients in advance of representation. The only way a lawyer can do this is if there is a law
permitting it and the client is advised to make the agreement through independent counsel.
Lawyers are not allowed to settle a claim of limited liability with an unrepresented client or
former client without first advising that person, in writing, that they need to seek independent
counsel on the settlement.
b. When the lawyer reasonably believes that the client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action is taken and cannot adequately act in
the clients own interest the lawyer may take reasonably necessary protective action to protect the
client and in appropriate cases, seeking the appointment of a guardian ad litem, conservator or
guardian.
c. Information relating to the representation of a client with diminished capacity is protected by
1.6. When taking protective action pursuant to paragraph (b) the lawyer is impliedly authorized
under 1.6 (a) to reveal information about the client but only to the extent reasonably necessary to
protect the clients interest.
a. Mandatory Withdrawal. Except as stated in paragraph (c), a lawyer shall not represent a client
or, where representation has commenced shall withdraw from the representation of the client if:
MUST
1. The representation will result in violation of the rules of professional conduct or other
law;
2. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to
represent the client;
OR
3. The lawyer is discharged.
b. except as stated in c, a lawyer may withdraw from representing a client if: MAY
1. Withdrawal can be accomplished w/o material adverse effect on the interests of the
client, or
2. If, the client persists in the course of action involving the lawyer’s services that the
lawyer reasonably believes is criminal and fraudulent.
3. The client has used the lawyer’s services to perpetrate a crime or fraud
4. The client insists upon taking action that the lawyer considers repugnant or w/ which
the lawyer has a fundamental disagreement-conflict of interest.
5. The client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless
the obligation is fulfilled;
6. The representation will result in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client; or
7. Other good cause for withdrawal exists.
d. Duties Upon Termination. Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the
client, allowing time for employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee or expense that has been
earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by
law. Because if the clients need the documents to finish the his case with a different attorney the
lawyer must release the documents.
**An attorney cannot quit representation at will (1.3 Due Diligence), however he can be fired at
any time. This rule ties in great with (1.1 Competence). If the attorney takes a new type of case
and gets in over his head, he should try to withdraw b/c it would result in him violating the
competence rule! A conflict of interest could also arise when this rule is used in a fact pattern.
The court may not let the attorney withdraw, depending on factors like:
1. Civil or criminal trial
2. Proximity to trial
3. Complexity of case
4. Ability of client to obtain new counsel
5. Prejudice to remaining parties
6. Reasons given for withdrawal.
Here is a summary of the important parts of the comment following the rule:
Pro Bono Publico= uncompensated legal services for the public good
States might have a greater hour requirement
Reason for the rule is the critical need for these types of services
Intent at the outset of taking on a free or reduced-rate case must be to provide the services for
free. Uncollected fees which would have been charged do not count for 'free services'.
Mandatory statutory fees do not count for this rule BUT they should be donated upon collection.
A lawyer must take reasonable steps to assure clients that the services provided are not legal
services, no lawyer-client relationship exists. A lawyer may ask are you coming to me for legal
advice to you plan on hiring me to handle this legal matter. Yes okay proceed. If you are not
taking the person as a client and creating a lawyer-client relationship you must inform the person
that you are not acting as an attorney therefore there is no lawyer/client privilege between the
two and you and what he tells you does not have to be kept confidential.
b. The scope of the representation and the basis or rate of the fee and the expenses for which the
client will be responsible shall be communicated to the client, preferably in writing, before or
within a reasonable time after commencing the representation, except when the lawyer will
charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of
the fee or expenses shall be communicated to the client.
****c. Contingency fee must be in writing and signed by the client at the beginning of the
representation. Specifying how the fee is calculated based on what events, what % goes to
attorney, whether expenses deducted before or after the fee, you must have a second writing at
the end of the case detailing the fee and how it was calculated, outcome of the matter and award
paid to the client. The agreement must clearly notify the client of any expenses for which the
client will be liable whether or not the client is the prevailing party. Must be in writing and
signed by the client!
****d. No contingency fees for domestic relations matters or divorce, child support, alimony or
criminal matters a lawyer shall not take a personal stake in a criminal matter.(Can charge
contingency for collecting domestic payments in arrears)
e. Fee sharing by attorneys not in the same firm is not allowed UNLESS:
1. It is proportional to the service rendered or each party assumes joint responsibility in;
2. The client agrees to the arrangement, including the share each lawyer will receive, and
the agreement is in writing; and
3. The total fee is reasonable.
*1.5 prohibits an unreasonable fee while 1.6 requires the lawyer, upon termination of the
representation to refund any advance payment of fee. . .that has not been earned
Note that partnership law allows for payment to the estate, if the partner should pass away, of a
dead partner for his share of the partnership or money for a cause he worked on. 5.4 Be very
careful of lawyers who start spending money before it is earned. You can be fired at any time and
found to be not entitled to the money and may only receive quantum meruit for the services
rendered.
• Must be in writing
• Must be signed by the client and
• Must set forth:
o The method for determining the fee, including the percentage of recovery that
will go to the lawyer as the fee; and
o Provisions for the treatment of expenses. Lat the client know that though we
may not prevail in case there are still costs that are incurred and they will be held
accountable for the costs.
Upon completion of the matter, the lawyer must give the client a written statement detailing
the distribution of the money between the client and lawyer and how it was calculated.
You must advise the client of the fact of alternative fee arrangements and you may not
impose a contingency fee on a client who desires another arrangement. You may not allow
your personal interest to interfere with your professional judgment. 1.7 and 1.8 conflict of
interests.
(d) Contingent fees are prohibited in:
• Pre judgment divorce matters (a fee cannot be contingent upon securing a divorce or
on obtaining entitlement to alimony, support, property, or custody.
• Criminal matters
(e) Splitting Fees with Other Lawyers; A lawyer cannot split fees with other lawyers not in the
same firm unless:
(1) Lawyers may pay court costs and other expenses of litigation on behalf of the
client in advance and then make the repayment contingent on the outcome of the case.
(2) Lawyers representing indigent clients may pay court costs and litigation expenses
on behalf of the client.
You may charge interest, 7% max confirmed in writing and 5% agreed orally.
There are 2 types of liens:
1) charging lien-only applies to judgment proceeds the lawyer has done for the client. It is a lien
against any $ that may come into attorney’s hand as a result of a judgment.
2) retaining lien-a lien to retain clients file or property, keeping in mind that you must take steps
to the extent reasonably practicable to protect your clients interest. When it may prejudice the
clients interest you may not retain files or documents, even if you have not been paid.
1) A lawyer or law firm must not share legal fees with a non lawyer, except for an:
a) Agreement by a law firm to pay earned fees to the estate of a deceased member of the
firm.
b) Agreement to purchase a deceased or disabled lawyer’s legal practice, pursuant to rule
1.17.
c) Profit sharing plan with non-lawyer employees, not linked to a specific case:
d) Agreement to pay court awarded fees to any non- profit organization that helped in the
case.
2) A lawyer must not form partnership with a non lawyer if the partnership involves the practice
of law
3) A lawyer must not allow a non lawyer paying the lawyer’s fee to direct or control how the
lawyer handles the client’s matter.
4) A lawyer may not be part of a professional corporation or association authorized to practice
law for profit, if:
a) A non lawyer owns an interest in the organization (except for the administrator of a
deceased attorney’s estate)
b) The non lawyer hold an executive position in the association other than a corporation
c) A non lawyer can control the lawyer’s professional judgment
A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including
good will, if the following conditions are satisfies:
(a) the seller cease to engage in the private practice of law, or in the area of practice that has been
sold, [in the geographic area] in the jurisdiction a jurisdiction may elect either version in which
the practice has been conducted;
(b) the entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
(c) the seller gives written notice to each of the sellers clients regarding;
1) the proposed sale;
2) the clients rights to retain other counsel or to take possession of the file; and
3) the fact that the client’s consent to the transfer of the clients files will be presumed if
the client does not take any action or does not otherwise object w/in 90 days of receipt of the
notice.
If a client cannot be given notice, the representation of that client may be transferred to the
purchaser only upon entry of an order ao authorizing by a court having jurisdiction. The seller
may disclose to the court in camera information relating to the representation only to the extent
reasonably necessary to obtain an order authorizing the transfer of the file.
(d) The fees charged to clients shall not be increased by reason of the sale.
1.4 Communication
a. A lawyer shall:
1. Promptly inform the client of any decision or circumstance w/ respect to which the
client’s informed consent as defined in 1.0e, is required by these rules;
2. Reasonably consult w/ the client about the means by which the client’s objectives are
to be accomplished;
3. Keep the client reasonably informed about the status of the matter;
4. Promptly comply w/ reasonable requests for information; and
5. Consult w/the client about any relevant limitation on the lawyers conduct when the
lawyer knows that the client expects assistance not permitted by the rules of PR conduct or
other law.
b. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
Plain English (1.4) Communication
a) A lawyer must:
1. Tell the client right away about any decision or issues where the client’s informed
consent (which is defined in rule 1.0(e) is required.
2. Talk to the client within a reasonable time about how the client’s goals will be
achieved.
3. Regularly update the client on what’s happening with the client’s issue.
4. Quickly address the client’s request for updates.
5. If the client wants help that is not allowed by law or by the Rules of Professional
Conduct, talk to the client about his professional boundaries.
b) A lawyer must explain issues so that the client understands and is able to make educated
decisions about the issue.
1.0 e Informed Consent:
denotes the agreement by a person to a proposed course of conduct after the lawyer has
communicated adequate information and explanation about the material risks of and
reasonably available alternatives to the proposed course of conduct. Make the client
understand or else the consent is not valid. Don’t use your big lawyer words that is like a
doctor coming out and explaining what is wrong using all medical terminology-no
conprendo.
Bottom line class notes
-must promptly obtain any required informed consents
-reasonably consult with the client about objectives and how to fulfill them
-must keep client reasonably informed
-must promptly comply with reasonable requests
-must promptly consult with client regarding limitations
-explain any matter in English as best as possible
Elements of a Malpractice claim:
1) Attorney/Client relationship (so there was a duty)
2) Negligence (a breach in that duty-compared to ordinary attorneys in that field)
3) Proximate cause (show the case within in case, I would have won but for this I didn’t prove
both)
4) Damages (because of this duty that was breached this harm resulted)
Law firms are vicariously liable for the legal malpractice of partners and associates.
1.15 Safekeeping Property
a. Client Trust Account Rule.
A lawyer shall hold property of client’s or third persons that is in lawyer’s possession in
connection with a representation separate from lawyer’s own property. Funds shall be kept in a
separate account maintained in the state where the lawyer’s office is situated, or elsewhere with
the consent of the client or 3rd person. Other property shall be identified as such and
appropriately safeguarded. Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for a period of 5 yrs after termination or the
representation.
b. Service Charges.
A lawyer must deposit the lawyer’s own funds in a trust account for the sole purpose of paying
back service charges on the account, but only in an amount necessary for that purpose.
c. Deposit Funds.
A lawyer shall deposit in to a client trust account legal fees and expenses that have been paid in
advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
d. Prompt Notification.
Upon receiving funds or other property in which a client or third person has an interest, a lawyer
shall promptly notify the client or third person. Except as state in this rule or otherwise permitted
by law or by an agreement with the client, a lawyer shall promptly deliver to the client or 3rd
party any funds or other property that the client or 3rd party is entitled to receive and, upon
request by the client or 3rd party, shall promptly render a full accounting of such property.
e. Property in Dispute.
When in the course of representation a lawyer is in possession of property in which two or more
persons (one of them who may be the lawyer) claims interests, the property shall be kept separate
by the lawyer until dispute is resolved. The lawyer shall promptly distribute all portions of the
property as to which the interests are not in dispute.
*This section gives rise to tricky questions. Notice you only keep the amount in dispute in a
separate account all other money must be given back to appropriate parties. The amount not in
dispute should be given back.
Several clients funds can be kept in the same account, but the lawyer must keep separate and
current records. Cannot use one client’s funds to satisfy another client’s interest, or lack of funds.
Clients check must be clear before it can be used for ANYTHING. . .otherwise you are using
some other clients funds b/c that clients are not available. Some states require a bank to report
overdrafts on trust accounts. Keep a paper trail! And never keep a zero balance.
Plain English (1.15)
When a lawyer receives client funds in connection with a representation, the lawyer should keep
the client’s funds separate from the lawyer’s funds or operating budget.
The client’s funds should be kept in a trust account (IOLTA) in the same state the lawyer’s office
is located, unless the client consents to it being kept in another state.
Property other than funds should be identified, secured and kept separate from the lawyer’s
property.
All records of client funds and property should be kept for 5 years.
A lawyer can deposit his/her own money into the IOLTA trust account only in the amount
necessary to cover bank service. (Comment: Amounts above what is necessary to cover fees
could be considered commingling of funds. Proper records should be kept of how much the
attorney deposited.)
When a lawyer receives unearned legal fees and expenses, the lawyer should place those fees in
the client trust account (IOLTA) and withdraw them as the fees are earned or as expenses are
paid.
When a lawyer receives property of a client or an interested third party the lawyer must promptly
notify the client or third party. When a client or third person is entitled to receive the property the
lawyer must:
1. promptly deliver the property; and
2. promptly render an accounting regarding the property if requested.
When there are multiple adverse claims to property, including a claim by the lawyer, the lawyer
must:
1. keep the property separate until the dispute is resolved; and
2. promptly distribute all portions of the property that are not in dispute.
Bottom line from class notes:
-Must holds funds separate from your own property.
-must hold funds in a bank in the state in which your office is situated
Unless you have clients consent to hold elsewhere
-Must keep complete records of clients funds and property
-Must maintain these records for 5 yrs after termination of representation
-unearned fees must be kept in a separate account-deposited in trust
-may deposit amounts necessary to cover back service charges.
-Must promptly deliver to a client or third person any funds/property to which that person is
entitled
-upon request, must promptly render an accounting of such funds/property.
-Any funds/property in dispute must remain in trust.
-Any portion not in dispute must be returned promptly
-May take fees and costs as they are earned and incurred
-pre-withdrawal will result in misappropriation/embezzlement
d. A lawyer admitted in another US Jurisdiction, and not disbarred or suspended from practice in
any jurisdiction, may provide legal services in this jurisdiction that:
1. are provided to the lawyer’s employer or its organizational affiliates and are not
services for which the forum requires pro hac vice admission; or
2. are services that the lawyer is authorized to provide by federal law or other law of this
jurisdiction.
2) There is significant risk that a lawyer representing a client will not be able to adequately
represent another client due to his/her responsibilities to the other clients. A conflict also exists if
the lawyer cannot adequately represent a client because of the lawyer's own interests.
Ex. A lawyer representing multiple clients to form a joint venture will not be able to adequately
represent each client because he/she will not be able to advocate each position of his/her clients.
If the lawyer was a member of the joint venture he/she would be limited also by their own
interests.
The Exceptions:
(b) A lawyer may represent a client despite a conflict of interest only when:
1) The lawyer reasonably believes that he/she is capable of providing loyal representation to
his/her client;
2) The representation is not illegal;
3) The representation does not involve the lawyer representing clients for both sides of the
litigation (or any other proceeding before the court); AND
4) Each client gives informed consent in writing.
(a) An attorney should consider anyone they talk with about possible representation (forming a
client-attorney relationship) a prospective client.
(b) An attorney may not use or reveal any of the information discussed with a prospective client,
even if no client-attorney relationship is formed, unless allowed under Rule 1.9.
(c) If (b) applies, the attorney may not represent a subsequent client in the same or substantially
related matter whose interests conflict with the prospective client’s interests. If the attorney
received information from the prospective client that could be significantly harmful to the
subsequent client, the attorney may not represent the subsequent client in that matter, either. This
is subject to exceptions listed below in (d). If the attorney can’t represent the client for these
reasons, no other attorney in the firm can represent the client for those matters, except.
(d) When the attorney receives disqualifying information in the above situations, they may still
represent the client if:
1. If both the affected client and the prospective client give informed, written consent,
Or:
2. If the attorney took reasonable steps to limit the amount of disqualifying information,
to what was needed to make the decision of whether to represent the prospective client,
and:
i. & ii. The attorney is removed in a timely fashion from any participation or
knowledge of the case, receives none of the fee, and written notice is promptly
given to the prospective client.
Attorney-Client privilege-evidentiary rule. Since an attorney is deemed an agent of the client anything
told to the attorney by the client in confidence is protected by the privilege. Once the attorney begins to
disclose privileged information the privilege is waived.
1) Client must be seeking advice from the attorney
2) And the attorney is acting as a representative of an attorney to the client
3) The communication between the two is a relates to the reason the client sought advice from the
attorney\
4) Communication is made in confidence(agents of the attorney can hear it, meaning the whole firm)
5) This protects the statements made by the client not the attorney.
The attorney must be acting within the scope of his representation of that client.
If the client turns over incriminating evidence the attorney must turn over the evidence but does not have
to reveal how he obtained the evidence.
When an attorney is representing an organization the entire organization is the attorneys client.
You shall not reveal information related to the representation of a client unless:
1) the client gives informed consent in writing
2) the disclosure is impliedly authorized; or
3) the disclosure is permitted by paragraph (b).
Full disclosure requires communication and explanation of the material risks and potential adverse
consequences, to the client of any disclosure of confidential information.
Implied authorization exists when disclosure of confidential information is appropriate to carrying out the
representation.
Exceptions to 1.6 (b)
you may reveal information relating to the representation of a client to the extent reasonably necessary to:
-prevent certain bad acts of a client.
-get ethical advice
-defend an allegation of wrongdoing
-collect a fee; or
-comply with other law.
In some moral cases a lawyer may have to violate his client’s confidentiality if the client fails to do the
right thing. The corn field case with two young drivers we have to tell the boy that he could die nay
minute. The lawyer must communicate with and fully advise the client so that the client can make
informed decisions.
A lawyer may reveal when the lawyer reasonably believes death or substantial bodily harm will occur.
How do we know?
-is substantial bodily harm imminent?
-is death reasonably certain or substantial bodily harm?
You may tell and some state have laws that require you to tell so if you can you should tell. However the
lawyer should first seek to persuade the client to refrain from the harmful act, so as to obviate the need for
disclosure. Disclosure is the last resort.
A lawyer may reveal information relating to the representation of a client:
to the extent reasonably believed necessary to prevent your client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial property interests of another; and in
furtherance of which the client has used or is using your services. Because 1.2 (d) leaves the lawyer to run
the risk that a failure to disclose could be considered assistance in violation of 1.2 (d).
You can speak to someone else regarding your concern if you are complying with the rules.
You may release information to clear your name or collect a fee.
You may not blackmail your client by saying I will disclose your information.
Suspicion alone is not enough, the belief must have some foundation in fact must be reasonably certain.
Disclosure must be limited. The duty survives the termination of the relationship and even death does not
allow disclosure.
1. If both the affected client and the prospective client give informed, written consent,
Or:
2. If the attorney took reasonable steps to limit the amount of disqualifying information,
to what was needed to make the decision of whether to represent the prospective client,
and:
i. & ii. The attorney is removed in a timely fashion from any participation or
knowledge of the case, receives none of the fee, and written notice is promptly
given to the prospective client. Screening the attorney who may cause the conflict
off from the rest of the firm.
A lawyers agent:
employees associated with the lawyer
expert witnesses
trial consultant
Pr agent/specialist
If there is a inadvertent waiver the privilege is waived. Common with electronic information.
Metadata, see more then you were meant to in a attachment.
Informed waiver-a client can consent to waive the privilege. However such cases are rare.
Remember the ethical duty under 1.6 is very broad. It renders confidential all information
obtained in the course of the representation regardless of the source. While the attorney client
privilege during litigation is very narrow. It does not apply to tangible evidence. If the client
gives you the knife he used to murder someone you must surrender the evidence, however you
do not have to disclose where you got the knife from. Once the lawyer has obstructed justice and
potentially affected the state from finding the evidence the lawyer must surrender the evidence to
the proper authorities. If client reveals the location of evidence and the lawyer/agent merely
inspect the evidence w/o disturbing it their knowledge of the location of the evidence and
observations are privileged.
Tangible evidence includes: weapons, murder checklists, ransom notes, maps, and must be
treated like physical evidence and turned over to the proper authorities. Records are usually
treated as general information however if that is the only copy you must treat it as physical
evidence.
Upjohn case teaches that the attorney client privilege extends to the whole corporation. The
privilege and the duty withstand death of the client. So you are still not ‘suppose’ to disclose
even after your client has passed. However morally in some cases you should.
(a) A lawyer, who is investigating or litigating a matter cannot make public statements to the
media if the lawyer knows or should have known that his/her statements will materially influence
the court proceeding.
(b) Regardless of paragraph (a), a lawyer may state to media;
(1) The claim, offense or defense involved. Also, the identity of the persons involved unless
prohibited by law;
(2) Information contained in a public record;
(3) That an investigation of a matter is in progress;
(4) The scheduling or result of any step in litigation;
(5) A request for assistance obtaining evidence and information necessary thereto;
A lawyer may make statements to the media if he/she reasonably believes it necessary to protect
the client from recent harmful publicity that may harm his client, as long as the publicity was not
started be either him or his client. The protective statement must be limited to what is necessary
to mitigate the recent adverse publicity.
A lawyer cannot have another lawyer in the firm or government agency make a statement to the
press that the lawyer would not be allowed to make.
Comments 3.6 Trial Publicity
A lawyer is prohibited from making statements about the lawsuit if he knows (or could know)
that it’s his statements are likely to impact the lawsuit. This includes other lawyers in the firm
where he/she works.
However, he may make statements, if he believes it necessary, to protect his client from recent
publicity that may harm his client, as long as this injuring publicity was not starter be either him
or his client. The protective statement must be limited to what is necessary to mitigate the recent
adverse publicity.
a) While following paragraphs, (c) & (d), a lawyer must follow his client’s decisions about
the goals of his representation and must discuss with the client how the goals will be
achieved. A lawyer must follow his client’s decision to accept or decline a settlement
offer in a civil case. In a criminal case, after the client has talked to his lawyer, the
lawyer must follow his client’s decisions on which plea to enter, whether to waive a jury
trial, and whether or not the client will testify.
b) Just because a lawyer represents a client, even by appointment, does not mean that the
lawyer supports the client’s political, economic, social or moral ideas or goals.
c) If a client agrees after talking to his lawyer, the lawyer can limit the services involved in
the representation.
d) A lawyer must not give advice to or help a client to commit crime or fraud. A lawyer can
explain the potential legal outcome of acts of crime or fraud, and may help a client
innocently understand the relevance and range of a law.
The general rule of conflict of interest: 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of interest
exists if:
1) the representation of one client will be directly adverse to another client; or
2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyers responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
c.iii.1.f.i.1. the lawyer reasonably believes that the lawyer will be able
to provide competent and diligent representation to each affected
client;
c.iii.1.f.i.2. the representation is not prohibited by law;
c.iii.1.f.i.3. the representation does not involve the assertion of a claim
by one client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal; and
c.iii.1.f.i.4. each affected client gives informed consent, confirmed in
writing.
g. A lawyer who represents two or more clients shall not participate in making aggregate
settlement of the claims of or against the clients, or in a criminal case aggregate agreement as to
guilty or nolo contendere pleas, unless each client gives the lawyer informed consent, in a
writing signed by the client. The lawyer’s disclosure of information shall include the existence
and nature of all claims or pleas involved and of the participation of each person in the
settlement.
h. a lawyer shall not:
1.make an agreement prospectively limiting the lawyer’s liability to a client for
malpractice unless the client is independently represented in making the agreement; or
2.settle a claim or potential claim for such liability with an unrepresented client of former
client unless that person is advised in writing of the desirability of seeking and is given a
reasonable opportunity to seek the advice of independent legal counsel in connection
therewith
i. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except the lawyer may:
1.acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
2.contract with a client for a reasonable contingent fee in a civil case.
j. A lawyer shall not have sexual relations with a client unless a consensual relationship existed
between them when the client-lawyer relationship commenced. (Doing em’ then, you can do em’
now!)
k. While lawyers are associated in a firm, a prohibition in the foregoing paragraphs that applies
to any one of them shall apply to all of them.
Plain English (1.8) Conflict of Interest: Current Client.
(e) Transactions. The general rule is that an attorney cannot enter into a business transaction
with a client or knowingly acquire an ownership, possessory, security or other pecuniary
interest adverse to a client.
The exception to this rule is:
(7) A lawyer may enter into a business transaction with a client if the terms are fair
and reasonable to the client and are fully disclosed to the client in a way that the
client can reasonably understand;
(8) The client is given a reasonable opportunity to seek independent advice about the
transaction;
(9) And the client consents to the transaction in writing.
(f) Using Client Information. Lawyers cannot use information about a client’s case to the
client’s disadvantage unless the client consents after consultation.
(g) Gift Documents. Lawyers are not allowed to create documents that convey substantial
gifts from the client to the lawyer. Likewise, lawyers cannot prepare documents
conveying substantial gifts from the client to close relatives of the lawyer such as parents,
children siblings, or spouses.
The exception to this rule is if the client is related to the donee, then the lawyer may
create documents to this effect.
(h) Media. Lawyers are not allowed to use the client’s case to get a contract for literary or
media rights before the conclusion of the representation.
(i) Giving Money to Clients. The general rule is that lawyers cannot provide financial
assistance to a client in connection with or during the course of litigation.
There are two exceptions to this rule.
(3) Lawyers may pay court costs and other expenses of litigation on behalf of the
client in advance and then make the repayment contingent on the outcome of the case.
(4) Lawyers representing indigent clients may pay court costs and litigation expenses
on behalf of the client.
(j) Accepting Money From Clients. The general rule is that lawyers cannot accept
compensation for representation from anyone other than the client.
There are three exceptions to this rule.
(1) Compensation is allowed when the client consents to it after consultation.
(2) Compensation is allowed when there is no interference with the lawyer’s
independence of professional judgment or the client-lawyer relationship.
(3) Information relating to representation of a client is protected as required by Rule
1.6
(k) Aggregation. When a lawyer represents two or more clients, the lawyer cannot aggregate
settlement of the claims for or against the clients, or in a criminal case, aggregate
agreements to guilty or nolo contendere pleas unless the clients agree after consultation.
Consent must include informing the clients about the existence and nature of all the
claims or pleas and how each person participated in the settlement.
(l) Limiting Liability. Lawyers are not allowed to make agreements that limit their liability
to their clients in advance of representation. The only way a lawyer can do this is if there
is a law permitting it and the client is advised to make the agreement through independent
counsel.
Lawyers are not allowed to settle a claim of limited liability with an unrepresented client
or former client without first advising that person, in writing, that they need to seek
independent counsel on the settlement.
(m)Property Interests. Lawyers are not allowed to acquire a proprietary interest in the cause
of action or subject matter of litigation that the lawyer is conducting for a client. But
lawyers may (1) acquire a lien granted by law to secure their fees or expenses and (2)
contract with clients for a reasonable contingent fee in a civil case.
(n) Sexual Relations With Clients. A lawyer cannot have sexual relations with a client,
unless a physical relationship existed at the time the lawyer-client relationship began.
(o) Imputation. Any conflict a lawyer has under paragraphs a-I is imputed to all the
attorneys in the firm.
(b) If a lawyer in his/her prior law firm represented a client in a matter and now the lawyer's
current firm seeks to represent a client in the same or a similar matter in which the new firm's
client would be adverse to the former firm's client, the new firm cannot representt the new firm's
client. It is presumed thelawyer learned confidential information from his/her prior
representation. The former client can waive the conflict by giving informed consent in writing.
(c) A lawyer who represented someone in the past or who’s previous or present law firm
represented someone in the past cannot use information gained from that representation against
the client. Lawyer needs to follow the rules.
1.11 Special Conflicts of Interest for Former and Current Government Officers and
Employees
(a) Except as law may otherwise expressly permit, lawyer who has formerly served as a public
officer or employee of the government:
1) Is subject to rule 1.9(c); and
2) shall not otherwise represent a client in a connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, UNLESS the
appropriate government agency gives informed consent, confirmed in writing to the
representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm
with which that lawyer is associated may knowingly undertake or continue representation in such
a matter UNLESS:
1) The disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
2) Written notice is promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.
(c) Definition of confidential information: except as law may otherwise expressly permit, a
lawyer having information that the lawyer knows is confidential government information about a
person acquired when the lawyer was a public officer or employee, may not represent a private
client whose interests are adverse to that person in a matter in which the information could be
used to the material disadvantage of that person.
As used by this rule, the term confidential government information, means information that has
been obtained under governmental authority and which at the time this rule applied, the
government is being prohibited by law from disclosing to the public or has a legal privilege not
to disclose and which is not otherwise available to the public.
A firm with which a lawyer is associated may undertake or continue representation in the matter
only if the disqualified lawyer is timely screened form any participation in the matter and
apportioned no part of the fee therefrom.
(d) except as law may otherwise expressly permit, a lawyer currently serving as a public officer
or employee;
1) is subject to the rules 1.7 and 1.9
2) shall not:
i) participate in a matter in which the lawyer participated personally and substantially
while in private practice or non-governmental employment UNLESS the appropriate government
agency gives its informed consent, confirmed in writing; or
ii) Negotiate for private employment with any person who is involved as a party of as a
lawyer for a party in a matter in which the lawyer is participating personally and substantially,
except that a lawyer serving as a law clerk to a judge or otherwise adjudicative officer or
arbitrator may negotiate for private employment as permitted by 1.12(b) and subject to the
conditions stated in 1.12(b).
(e) As used in this rule, the term “matter” included:
1) any judicial or other proceeding, application, request for a ruling or other determination,
contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter
involving a specific party or parties, and
2) any other matter covered by the conflict of interest rules of the appropriate governmental
agency.
Plain English 1.11
(a) if the law does not expressly permit, a lawyer who is a former public officer or employee of
the government:
(1) if subject to Rule 1.9c; and
(2) may not represent a client in a matter in which the lawyer participated personally and
substantially as a public officer or employee. That lawyer may represent such client if the
appropriate government agency gives its informed consent in writing to the representation
(b) when a lawyer is disqualified under paragraph (a), no other lawyer in the lawyer’s firm may
represent the client unless:
(1) the disqualified lawyer is timely screened from participating in the matter and is
apportioned no part of the fee; and
(2) written notice is promptly given to the appropriate government agency to make sure
everyone has complied with the provisions of this rule.
(c) If a lawyer has information about a person which was acquired when the lawyer was a public
officer or employee, it is confidential government information. Unless the law expressly permits,
the lawyer may not represent a private client with adverse interests to the person involved in the
former governmental matter where the information could be used to the material disadvantage of
that person.
The term “confidential government information” means information that has been obtained
under governmental authority. Also, confidential government information means that when this
rule applied, the government is prohibited by law from disclosing to the public or has a legal
privilege not to disclose and which is not otherwise available to public.
A firm with which that lawyer is associated may support or continue representation in the matter
only if the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee.
(d) Unless there is an exception in another law or rule, a lawyer currently working as a public
officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) they can not:
(i) take part in a matter that the lawyer worked on personally and substantially while in
private practice or nongovernmental employment, unless the appropriate
government agency gives the lawyer their informed consent that is in writing; or
(ii) negotiate for private employment with anyone that is a party or a lawyer for a party involved in a
matter that the lawyer is currently involved in personally and substantially; The
exception to this is when the lawyer working for the government is serving as a
law clerk for a judge, or as an arbitrator or other adjudicative officer; If the lawyer
is any of the named positions, then they may negotiate for private employment,
but this exception is conditionally based on Rule 1.12(b).
(e) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for ruling or other
determination, contract, claim, controversy, investigation, charge, accusation, arrest or significant
matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the proper government
agency.
Comments: Basically, this law is designed to allow a lawyer to move freely between private
practice and governmental employment while observing the ABA Rules based on conflicts of
interest (1.7 & 1.9). This law does not prohibit the shift between the two fields, but it does limit
the lawyer’s options for a “matter” based on how involved the lawyer was with the government
and the private client. It also prohibits a lawyer from using knowledge gained from one
governmental job for the benefit of a new governmental job or a private client. This rule and its
subsections are designed to protect not only the lawyer’s ethics, but the ethics of government
agencies and their pursuit of qualified lawyers.
c2) the lawyer believes the violation is likely to cause a substantial injury to the
organization then the lawyer may disclose information, whether or not permitted by Rule 1.6, to
prevent substantial injury to the corporation.
e) A lawyer can proceed as they believe necessary to assure that the organization highest
authority is notified of the lawyer’s discharge or withdrawal if he/she has been discharged
because of the lawyer’s actions taken pursuant paragraphs (b) or (c), OR who withdraws under
circumstances that require or allow the lawyer to take action under either paragraphs.
f) The lawyer should explain the he/she represents the corporation when dealing with a corporate
constituent, whose interests conflict with the corporations.
g) A lawyer may represent constituents of the entity if there is no conflict OR if there is informed
consent (where required). The consent shall be given by an appropriate official of an
organization other than the person who is being represented, or by the shareholders.
In order for a lawyer to sell his practice or part of his practice, including the good will
associated with it, the following restrictions must be followed:
The seller must stop practicing privately in the geographic or the jurisdictional area
where the practice was located. (The jurisdiction is free to apply either restriction)
The entire business must be sold. The buyers can be a group of lawyers or firms, or a
single lawyer or firm.
The selling lawyer must notify all of his clients that (a) there is a proposed sale, (b) the
client can seek legal services somewhere else or come and get the file, and (c) if the client
does not indicate objection to the sale within 90 days, their consent to the sale will be
assumed.
If it is not possible to notify the client, the lawyer buying the firm may seek a court order
transferring the representation of the client from the selling lawyer to the purchasing
lawyer. If this happens, the seller may give to the court, confidentially, only the
information necessary to obtain the order. When the practice is sold,
2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render
candid advice.
In rendering advice, a lawyer may refer not only to law but to other considerations such as moral,
economic, social and political factors that may be relevant to the client’s situation.
Plain English 2.1 Advisor
When representing a client, a lawyer should give skillful and honest advice. A lawyer should also
consider any other relevant factors such as; social, moral, economical factors, etc.
2.3 Intermediary
a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other
than the client if the lawyer reasonably believes that making the evaluation is compatible with
other aspects of the lawyer’s relationship with the client;
b) When the lawyer knows or reasonable should know that the evaluation is likely to affect the
clients interest materially and adversely, the lawyer shall not provide the evaluation unless the
client gives informed consent.
c) Except as disclosure is authorized in connection with report of an evaluation, information
relating to the evaluation is otherwise protected by rule 1.6(confidentiality).
Note: An attorney may be liable to a 3rd party for something they prepared that someone else
relied on if it was foreseeable, reasonably foreseeable by the attorney.
Plain English 2.3 Evaluation for Use by Third Party
When a client hires a lawyer to make an evaluation for a third party, the lawyer may disclose
privileged information about the client if the client authorizes and as long as it would not violate
a rule of professional conduct.. If the information substantially affects the client in a negative
way the lawyer can only disclose the information if the client consents after a full explanation of
the risks.
(b) when a lawyer has direct supervisory authority over another lawyer he has a duty to make
sure that lawyer is conforming with the RPC.
*when supervising L should have measures in place to ensure compliance w/ the rules.
(c) A supervising lawyer is responsible for the supervised lawyer’s violation of the RPC if:
1. supervising lawyer orders, or w/ knowledge of specific conduct ratifies the
actions of another lawyer.
2. the supervising lawyer knows of the conduct at a time when taking action
could avoid/mitigate the consequences of the action, but the supervising
lawyer fails to take reasonable remedial action.
*if you order anyone to engage in a violation of a rule, or you know of a violation but take no
remedial action you are subject to discipline.
a) A lawyer is bound by the rules notwithstanding that the lawyer acted at the direction of
another person.
b) A subordinate lawyer does not violate the rules in that lawyer acts in accordance with a
supervisory lawyers reasonable resolution of an arguable question of professional duty.
How about a non-attorneys, like the secretary, receptionist, clerk etc? These people can do legal
work as long as it is not unauthorized practice of law. Which is usually if legal advice is being
given or asked of the client or by the non-lawyer. Facts can be discussed with the client by a non-
lawyer.
5.3 Responsibilities Regarding Non-lawyer Assistants
****Overall a lawyer should not make a statement that is ever false, misleading or reckless in
regard to any matter; to the court, client, opposing party or even a 3rd party.