Outline ProfessionalResponsibility

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Professional Responsibility: A lawyer’s responsibilities

A lawyer as a Member of the Legal Profession:


1. Representative of clients
2. Officer of the legal system
3. Public citizen
- Having a special responsibility for the quality of justice

Representative of Clients
a. Advisor - provides a client with an informed understanding of the client’s legal rights and
obligations and explains their practical implications
b. Advocate – zealously asserts the client’s position under the rules of the adversary system
c. Negotiator – seeks results advantageous to the client but consistent with requirements of
honest dealings with others
d. Evaluator – examines client’s affairs and reporting about them

Officer of the Legal System


- Lawyer should use the law’s procedures only for legitimate purposes and not to harass or
intimidate others
- Demonstrate respect for the legal system and for those who serve it including judges, other
lawyers, and public officials
- Uphold legal process

Public Citizen
- Should seek improvement of the law, access to the legal system, administration of justice and
the quality of service rendered by the legal profession;
- Should cultivate knowledge of the law beyond its use for clients, employ knowledge in the
reform of the law and work to strengthen legal education
- Further the public’s understanding of and confidence in the rule of law and the justice system
- The poor, and sometimes persons who are not poor cannot afford adequate legal assistance.
Therefore, ensure equal access to justice system
- Help the bar regulate itself in the public interest

Legal profession as self-governing


- Ultimate authority over the legal profession is vested largely in the courts
- Helps maintain the legal profession’s independence from government domination
- Abuse of legal authority is more readily challenged by a profession whose members are not
dependent on the government for the right to practice
- Responsibility to assure that its regulations are conceived in the public interest and not in
furtherance of parochial or self-interested concerns of the bar
- Every lawyer is responsible for the observance of the Rules of Professional Conduct. A lawyer
should aid in securing their observance by other lawyers.

Ohio v. Jones
- Jones was appointed by the Court to represent Jordan Scott on a charge of misdemeanor
assault. The case was set for trial the following day.
- On the morning of the trial, Jones met with 6 other clients before receiving the Scott file. He
then met with Scott for 20 minutes.

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- When the case was called, Jones voiced concerns that he would not be effective as Scott’s
counsel as he would need more time to talk to the witnesses. The judge replied that the three
witnesses were present and that the trial would proceed after lunch.
- Following the break, the Court proceeded with the Scott case. When asked if he was ready to
proceed to trial, Jones answered no. The judge warned Jones that he would be held in
contempt of court if he did not proceed with the trial.
- Where a trial court denies continuance in a criminal trial and as a consequence, defense counsel
refuses to participate in the trial for fear that the Def would receive ineffective assistance of
counsel and that the counsel would be in violation of RPC, the court may commit error in finding
defense counsel in contempt. Defense counsel should not be compelled to violate his duty to his
client as the price for avoiding punishment for contempt.

Rule 1.1: Competence

- Competent representation to the client. Requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.

 A lawyer need not necessarily have special training or prior experience to handle legal problems
of a type which the lawyer is unfamiliar. A newly-admitted lawyer can be competent as a
practitioner with long experience.

 In an emergency, a lawyer may give advice or assistance in a manner in which the lawyer does
not have the skill ordinarily required where consultation with another lawyer would be
impractical.

 May accept representation where the requisite level of competence can be achieved by
reasonable preparation. Applies as well to counsel appointed for unrepresented person (Rule
6.2)

- For an inexperienced attorney, requisite competence may be obtained in two ways:


1. Through necessary study and preparation
2. Through association with an attorney of established competence

 Clients hire attorneys because they lack the requisite knowledge, skill and ability to protect their
own legal interests and rights. Thus, attorneys who are incompetent violate their first and basic
duty to their clients to protect their client’s interests.

 Attorneys have the duty to act with reasonable diligence and promptness in representing a
client, which requires lawyers to manage their workload and avoid procrastination.

 Alcohol and other substance abuse and mental health problems are particularly prevalent
among lawyers and often lead to incompetence, failure to communicate or act with diligence,
and other disciplinary problems—all of which inure to the detriment of the client.

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Attorney Grievance Commission of Maryland v. Kendrick
- Kendrick was a close personal friend of Kerr and was appointed co-representative of Kerr’s
estate. Kendrick was not experienced in probate matters. She committed numerous missteps
causing the small estate to be open from 1999 to 2007.
- Inexperience does not necessarily amount to violation of the Rule

 So if the lawyer is inexperienced on certain matters, options are:


1. Not to accept
2. Study
3. Collaborate with an experienced lawyer

*But, the lawyer cannot charge the client for the extra time taken to educate himself to become
competent.

Use of Cloud Computing Services:

CA Bar Opinion
- Many attorneys do not possess technological savvy. Although the Committee does not believe
that attorneys must develop a mastery of the security features and deficiencies of each
technology available, the duties of confidentiality and competence that attorneys owe to their
clients do require a basic understanding of the electronic protections afforded by the
technology they use in their practice.
- If the attorney lacks the necessary competence, he must seek additional information or consult
with someone who possesses the necessary knowledge such as as IT consultant.

Rule 1.2: Scope of Representation and Allocation of Authority between the Client and the Lawyer

 Abide by the client’s decision on the objectives of representation


- but lawyer may limit scope of representation if reasonable under the circumstances and client
consents
- lawyer not to counsel a client to engage, or assist a client in conduct that the lawyer knows is
criminal or fraudulent
* but may discuss legal consequences of proposed conduct with a client

 Lawyer’s representation of a client does not constitute an endorsement of the client’s political,
economic, social or moral views or activities

* Legal representation should not be denied to people who are unable to afford legal services or
whose cause is controversial, or the subject of popular disapproval.

* If lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the
representation

* A lawyer may not continue assisting a client in a conduct that the lawyer originally supposed
was legally proper but then discovers is criminal or fraudulent

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West Bend Mutual Insurance v. Schumacher
- West Bend retained RLGZ to provide legal representation on a worker’s comp claim filed by
Marzano against WB. Schumacher was the attorney deployed by the firm to defend against
Marzano’s claim.
- Marzano underwent an independent medical exam with a doctor who provided a written
report. The doctor’s testimony would favor WB. Schumacher did not speak nor depose the
doctor. Instead, he agreed with Marzano’s counsel to put a redacted version of the doctor’s
report in evidence.
- Schumacher possessed all other information that was beneficial to WB’s defense and disclosed
this information to the opposing counsel.
- The cornerstone of the fiduciary relationship is trust. The agent-lawyer owes a fiduciary duty to
the client to be trustworthy including being loyal, competent and protective of client confidences.

Good faith effort to determine the validity, scope, meaning or application of the law – recognizes that
determining the validity or interpretation of a statute or regulation may require a course of action
involving disobedience in a statute or regulation or interpretation placed by governmental authorities.

Spaulding v. Zimmerman
- 20 year old Spaulding was seriously injured as a passenger in a car wreck involving the
Zimmerman and Ledermans. Both families lost a child in the accident. David’s family sued both
owners of the vehicles involved in the accident to obtain compensation from their insurance
policies.
- Spaulding worked for Zimmerman. Z’s attorney hired a medical expert to examine David’s
injuries. The med expert discovered that the wreck caused an aneurysm in David’s aorta which
could rupture at any given moment. The med expert shared the findings to Z’s lawyers, who
also shared the same to L’s lawyers. David’s lawyer failed to obtain a copy of the med expert’s
report. The case was settled
- After 2 years the aneurysm, has grown significantly such that David lost most of his speaking
voice as a direct consequence of the delay in the treatment.
- During the course of the negotiations when the parties were at an adversary relationship
towards each other, no rule required upon Defs to disclose this knowledge. Once the agreement
was reached, the parties’ relationship was no longer adverse. At this point, all the parties were
interested in securing the approval by the Court.
- The seriousness of David’s disability was known by the Def’s counsel but was not disclosed to the
court at the time of the application for approval of the settlement. It was obvious that the
settlement did not contemplate or take into consideration the disability described

Rule 1.3: Diligence

Dahl v. Dahl
- A husband divorced his wife who had been the primary caretaker of their two children and had
not worked outside of the home during their 18 years of marriage.
- Counsel for Ms Dahl made several procedural errors: 1) failed to file proper expert witness
reports as to witnesses testifying in favor of Mrs Dahl, 2) failure to make proper pretrial
disclosures, 3) failed to file the requisite financial declaration to obtain temporary or permanent
alimony
- Full custody of the children was awarded to the husband. And she was not awarded permanent
alimony

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- Any harm suffered by Mrs. Dahl was not a result of error on the part of the Court but instead was
due to her counsel’s failure to present the evidence necessary.
- Understanding and complying with procedural rules and requirements including pretrial
disclosures of evidence are “basic skills that we expect all attorneys possess.”

- Reading, doublechecking procedural rules and staying current on revisions to and


interpretations or procedural rules are all essential to competent practice.

- Should act with reasonable diligence and promptness in representing a client

 Should pursue a matter on behalf of a client despite opposition, obstruction, or personal


inconvenience to the lawyer
 Take whatever lawful and ethical measures required to vindicate a client’s cause or endeavor.
 Workload must be controlled so that each matter can be handled competently
 Unless relationship is terminated under Rule 1.16, a lawyer should carry through to conclusion
all matters undertaken for a client

In Re Disciplinary Action Against Howe


- Howe represented an undocumented immigrants faced with deportation even though they have
lived in the US for over 20 years and had four children who are US citizens. Howe claimed to
have engaged in a dilatory strategy to keep his clients in the US for as long as possible.
- A competent and diligent lawyer would not seek delay by purposely failing to timely file
documents requested by the Judge, and would not refrain from telling clients about hearing
dates in the hopes that the trial will be postponed. Lawyers can never predict how a Judge will
react to such failures.

Rule 1.4: Communication

- Promptly inform client of any decision or circumstance where client’s informed consent is
required; (matters where the client is required to give informed consent);
- Keep client reasonably informed of the status of the matter; (implicit to communicate lawyer’s
mistakes that negatively affects the representation. P.201-202)
- Promptly comply with reasonable requests for information; (acknowledge communication and
advise the client as to when you intend to respond) – “promptly” is a flexible standard if it
requires urgently to divulge information.
- Explain a matter to the extent reasonable necessary to permit the client to make informed
decisions regarding the representation.

* In some circumstances such as during a trial when an immediate decision must be made, the exigency
of the situation may require the lawyer to act without prior consultation

* lawyer should promptly respond to or acknowledge client communications

* In some circumstances, a lawyer may be justified in delaying transmission of information when the
client would act imprudently to an immediate communication.

Ex. Lawyer withholding a psychiatric diagnosis of a client when the psychiatrist indicates that disclosure
would harm the client

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In Re Mays
- The attorney allowed SOL to run and instead of so informing the client, the attorney lied to his
client, told him about a non-existent settlement offer, and then used his own money to pay for
a fake settlement
- Legal malpractice, incompetence, actively defrauding and deceiving the client would likely result
in a suspension, if not disbarment.

Three Basic Core Duties that generally go hand in hand:


1. Rule 1.1 – competence
2. Rule 1.3 – diligence
3. Rule 1.4 – communication

Karen Thomas Disciplinary Matter


- Thomas was hired to finalize an adoption in which the natural mother has agreed to relinquish
parental rights. The client took the baby home from the hospital. Five weeks after the baby’s
birth, Thomas has not arranged for the natural mother to sign the relinquishment papers in
front of a signing judge. The client left numerous messages for Thomas concerning the status of
relinquishment. Thomas failed to keep the client informed of the status and failed to promptly
comply with requests for information.
- The natural mother became frustrated that she demanded the return of her baby. The court
ordered the return of the baby within an hour’s time.

Rule 1.5: Fees

- Lawyer shall not agree to or charge, or collect an unreasonable fee


- Rule 1.2 – scope of representation goes hand in hand with Rule 1.5 with communicating the fee
so that the client understands what she is purchasing when hiring an attorney
- To communicate to client the basis or rate of both the fee and expenses that the client will be
responsible to pay.
- Rule 1.2 allows the attorney to limit the scope of representation so long as the client consents
- Rule does not require that non-contingent fee be in writing, but only requires communication to
the client. But having a writing is preferable

Factors in determining reasonableness: (TECA-TINEF)


1. Time and labor required, novelty and difficulty of the questions involved, skills requisite to
perform the legal services properly;
2. Likelihood that the acceptance by the lawyer will preclude other employment (should be
apparent to the client)
3. Fee customarily charged for similar legal services
4. Amount involved and the results obtained
5. Time limitation imposed by client or the circumstances
6. Nature and length of professional relationship with the client
7. Experience, reputation and ability of the lawyer
8. Whether fee is fixed or contingent

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In Re Fordham
- A $50,000 fee for defending an accused for operating a motor vehicle under the influence of
alcohol was unreasonable where the standard fee in the locality was between $1500 and
$5,000.
- Even if client agreed on the rate.
- The first factor in determining reasonableness is not the time spent by the attorney but the time
and amount of labor required—that is the time that would be taken by a reasonably proficient
attorney.

- Scope of representation and the basis or rate of the fee shall be communicated to client
preferably in writing before or within a reasonable time after commencing the representation

Sallee v. TN Board of Professional Responsibility


- Clients orally agreed to pay Atty. Sallee $250/hour. Because of the looming SOL, Sallee
immediately worked intensively on the case. Sallee then told her clients that she would need
$20,000 retainer. Despite lack of representation agreement, the client wrote a check for
$15,000 for Sallee.
- On demand by the clients, Sallee drafted a representation agreement which included a
contingent fee provision. Because of this contingent fee, the clients refused to sign the
agreement.
- Court applied 8 reasonableness factor test

Wyoming State Bar v. Casper


- Lawyers generally keep track of the time spent using standard increments of time, 6 mins, 10
mins, 15 mins. This approach is essential and should not be objectionable unless the increments
are unreasonably large or used in an abusive manner.

ABA Formal Opinion 93-379


- Padding a bill by adding or increasing time that was not actually spent working is not only
unethical, it is theft.
1. Only charge the client for hours you actually worked on.
2. Do not bill an impossible number of hours.
3. Do not double bill or charge for the same hour of work more than once.
4. Do not churn the bill. Performing unnecessary or duplicative work to drive up the bill.

Contingent Fee:

Allowed except when contingent fee is prohibited by law.


- Should be in writing and signed by the client

When lawyer shall not agree to charge or collect contingent fees:

1. Prohibited by law
2. In domestic relations matter, such as obtaining a divorce, or upon amount of alimony or
support, or property settlement
3. Representing a defendant in a criminal case

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Written Documents Required:
a. Contingent Fee Agreement itself
b. Written statement of the final disposition, remittance to the client of the award

Contents of the Contingent Fee Agreement:


1. Basis of the fee
2. Litigation and other expenses
3. Whether expenses are to be deducted before or after the contingent fee is calculated
4. Statement of any expenses the client must pay whether or not the client prevails

Segregation:
- The presumptive sanction in most jurisdictions for misappropriating client funds is disbarment.
- Lawyer required to keep client’s funds or property separate from the lawyer’s own property
- IOLTA Program (Interest on Lawyer’s Trust Accounts) = states require attorneys to participate in
this program where the interest earned on the pooled client funds escheats to the state to pay
for charitable programs.

Five Basic Fiduciary Duties in Handling Client Funds: (SRNDA)


1. Segregation
2. Record-keeping – Model Rule suggests record preservation minimum of 5 years
3. Notification – lawyer must promptly notify client if he receives funds on behalf of the client
4. Delivery – lawyer must promptly deliver
5. Accounting – promptly render an accounting

In Re Sather
- Sather was to represent a client in a civil suit. He charged the client a non-refundable upfront
fee of $20,000 for the representation. Later on, Sather was suspended from the practice of law
on a separate proceeding. Because of this Sather was fired by his client.
- The client asked for a refund for any unearned fee. Sather agreed that he had not earned
approximately $13,000 of the fee but could not immediately make a refund because he had
spent the entire $20,000
Two Types of Retainers:
1. Engagement Retainers – fee that is earned upon receipt. But the attorney must provide some
benefit to the client in return for that retainer and must explain as much in writing to the client.
- cannot be truly non-refundable despite being the attorney’s property
upon receipt because all fees are subject to refund if found to be
unreasonably excessive or unearned.
2. Advance Fees - standard type used by attorneys. Belongs to the client upon receipt of
the attorney. Thus, the attorney must place the advance fee in a client trust account. The
attorney can only withdraw funds from the advance fee only as when he earns them.

 Rule 1.15 state that the property shall be kept separate by the lawyer until the dispute is
resolved.
 The lawyer shall promptly distribute the portion of the funds that are not in dispute

Division Fee between lawyers who are not in the same firm:

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1. Division in proportion to the services performed
2. Client agrees to the arrangement confirmed in writing
3. Total fee is reasonable

Reasonableness of Fee and Expenses

- Factors specified under the rules are not exclusive.

Basis or Rate of Fee

- Written statement concerning the terms of the engagement reduces the possibility of
misunderstanding

Terms of Payment

- Lawyer may require advance payment of a fee but is obliged to return the unearned portion
- May accept property in payment for services provided this does not involve proprietary interest
in the cause of action or subject matter of the litigation subject to Rule 1.8
- Should not exploit a fee arrangement based primarily on hourly charges by using wasteful
procedures

Prohibited Contingent Fees

- Does not prevent contingent fee in connection with recovery of post-judgment balances due
under support, alimony or other financial orders because such contracts do not implicate the
same policy concerns

Hourly Fees – just need to be communicated to client but not required to be in writing.

Fraudulent fee is per se unreasonable under Rule 1.5

Types of Contingent Fees


Straight – specified percentage of the client’s recovery if any
Modified – pays an hourly fee plus contingent fee on success (SUCCESS FEE)

Rule 1.16: Declining or Terminating Representation


(MANDATORY WITHDRAWAL)
- Lawyer shall not represent OR terminate representation already commenced if:
1. Representation will result in violation of RPC or other law
2. Physical or mental condition materially impairs the lawyer’s ability to represent the client
3. Lawyer is discharged

Basic Types of Withdrawal


1. Mandatory
2. Permissive

(PERMISSIVE WITHDRAWAL)
Withdrawal from Representing Client

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- A lawyer may withdraw representation:
1. When no material adverse effect on the interests of the client;
2. Client persists in a course of action involving the lawyer’s services that the lawyer reasonably
believes is criminal or fraudulent;
3. Client has used the lawyer’s services to perpetrate a crime or fraud;
4. Client insists upon taking action which the lawyer considers repugnant or which the lawyer has a
fundamental disagreement;
5. Client fails to fulfill a substantial obligation to the lawyer regarding the lawyer’s services and has
been given a reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
6. Representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult for the client
7. Any other good cause for withdrawal exists

Notice to or Permission of a Tribunal


- Lawyer must comply with applicable law when terminating representation. Requires court
approval when the client’s matter is pending with the Court both under mandatory and
permissive withdrawal
- Lawyer to continue representation even with good cause to terminate, when ordered by the
tribunal to continue representation.

Upon Termination of Representation


- Lawyer to take steps to the extent reasonably practicable to protect client’s interests
a. Reasonable notice to client;
b. Allowing time for employment of other counsel;
c. Surrendering papers and property to which the client is entitled to;
d. Refunding any advance payment of fee or expense that has not been earned or incurred;
 Lawyer may retain papers relating to the client to the extent permitted by other law

When representation is completed:


- When the agreed-upon assistance has been concluded

*The lawyer is not obliged to decline or withdraw simply because the client suggests a course of conduct
that is illegal or violates RPC.

When a court approval is required for withdrawal:


1. Lawyer appointed by the Court to represent a client;
2. Pending litigation

*Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in
unprofessional conduct. The court may request for explanation for the withdrawal, while the lawyer may
be bound to keep confidential the facts that would constitute such an explanation.
- A lawyer’s statement that professional considerations require termination of the representation should
be sufficient.

Discharge of a lawyer by the client:


- Client has a right to discharge a lawyer at any time with or without cause subject to payment for
liability for the lawyer’s services

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- The client should be given full explanation of the consequences which may include a decision by
the Court that appointment of a successor counsel is unjustified, thus requiring self-
representation by the client.
- If client has severely diminished capacity – the discharge may be seriously adverse to client’s
interests. The lawyer should make special effort to help the client consider the consequences

Optional Withdrawal by Lawyer:


1. Without material adverse effect to the client
2. Client persists on action that the lawyer reasonably believes is criminal or fraudulent
3. Lawyer’s services were misused in the past even if that would materially prejudice the client
4. Client refuses to abide by the terms of the agreement relating to the representation such as
concerning fees, court costs, or an agreement limiting the terms of the representation

*Even if the lawyer has been unfairly discharged by the client, the lawyer must take all reasonable steps
to mitigate the consequences to the client.
*The lawyer may retain papers as security for a fee only to the extent permitted by law (Rule 1.15)

Rule 8.1: Bar Admission and Disciplinary Matters


1. Applicant for admission
2. Lawyer in connection with a bar admission
3. Lawyer in connection with a disciplinary matter; SHALL NOT
a. Knowingly make a false statement of material fact;
b. Fail to disclose a fact necessary to correct a misapprehension
c. Knowingly fail to respond to a lawful demand for information from admissions or disciplinary
authority

*This Rule does not require disclosure of information otherwise protected under Rule 1.6

*This Rule is subject to the provisions of the 5th Amendment. A person relying on such provision in
response to a question should do so openly, and not to use the right of non-disclosure as a justification
for failure to comply with this Rule.

Admission to the Bar:

SC of New Hampshire v. Piper


- A NH Court rule limiting bar admission to only state residents violated the privileges and
immunities clause of the Constitution
- No evidence to support the belief that non-resident lawyers will not keep abreast of rules and
procedures, behave ethically, and attempt to perform pro bono work.
- The state could protect its interest with less restrictive means by requiring the distant, non-
resident lawyer to retain a local lawyer to be available for unscheduled meetings.

In Re Mckinney
- Before conducting Mckinney’s character and fitness interview, the local bar admissions
contacted the employer and learned of Mckinney’s scheme to defraud the landlord. He created
fictitious letter under the company letterhead informing the landlord that he will be transferred
to another work location in order to terminate the lease without lease liability. Mckinney was a
law student while he undertook this scheme.

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- An applicant’s deceitful conduct generally prompts serious concerns about his character and
fitness to practice law.

In Re Garcia
- The CA SC admitted an undocumented immigrant to the CA bar. An undocumented immigrant’s
unlawful presence in the US does not itself demonstrate unfitness to be admitted to the bar.

In Re Anonymous
- An applicant’s financial situation is also a relevant factor in the character and fitness review.
Applicant has $430,000 in delinquent student loans covering a 20-year period without making
substantial payments.
- Recalcitrance in dealing with lenders was incompatible with a lawyer’s duties and
responsibilities.

Rule 8.3: Reporting Professional Misconduct

a. Lawyer who knows that another lawyer has committed a violation of RPC that raises a
substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer, shall
inform the professional authority;
b. Lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct
that raises a substantial question as to the judge’s fitness for office, shall inform the appropriate
authority;

Exceptions:
1. Information protected under Rule 1.6;
2. Information gained while participating in an approved lawyer’s assistance program

Self-Regulation of the Profession


- Members of the profession initiate a disciplinary investigation when they know of a violation of
RPC.
- Lawyers have similar obligation with respect to judicial misconduct

ABA Formal Opinion 94-383


- Prohibits a lawyer from threatening to file a disciplinary complaint against another lawyer under
Rule 8.3 in order to gain advantage in a matter such as civil litigation.
- The rule requires a lawyer to report and not merely threaten to report

In re Riehlman
- The lawyer must promptly report misconduct to facilitate a timely investigation and to protect
the public and the profession for future misconduct.

In Re Himmel
- Represents the uncommon case in which a lawyer is sanctioned for the sole violation of not
reporting another lawyer’s misconduct. Often, the lawyer who fails to report is involved in
additional misconduct.

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Rule 8.4: Misconduct

1. Violate or attempt to violate the RPC, knowingly assist or induce another to do so, or do so
through the acts of another;
2. Commit a criminal act that reflects adversely on the lawyer’s honestly, trustworthiness or fitness
as a lawyer in other respects;
3. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
4. Engage in conduct prejudicial to the administration of justice
5. State or imply an ability to influence improperly a government agency or official to achieve
results by means that violate the RPC
6. Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of
judicial conduct or other law

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