ABA MODEL RULES Flashcards
RULE 1.0: Terminology
(f): “Knowingly,” “known,” or “knows = actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances
(i): “Reasonably belief” or “reasonably believes” = Where a lawyer believe the matter in question and circumstances are such that the belief is reasonable.
(k): “Screened” = Where a lawyer is timely and adequately isolated through procedures to protect information that they and the firm would be obligated to protect under the Rules or other laws.
RULE 1.1: Competence
Requires a lawyer to represent a client with the legal knowledge, skill, thoroughness, and preparation necessary for the representation.
RULE 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer
Describes the scope of representation and how much authority the lawyer and client has respectively in the relationship.
The Client decides:
–> Objectives of the representation and how to pursue them
–> Whether to settle
–> In criminal cases, pleas, jury waivers, and whether to testify
The Attorney can:
–> Take actions that are impliedly authorized for representation
–> Make legal strategic decisions
–> Give candid advice
–> Limit representation if it’s reasonable under the circumstances and the client gives informed consent
–> Not participate in illegal activity
RULE 1.3: Diligence
DO NOT PROCRASTINATE!
A lawyer must act with reasonable diligence and promptness in representing a client.
RULE 1.4: Communication
The lawyer has a duty to inform the client promptly about developments relevant to the case, including any proposed change in fee.
RULE 1.5: Fees
Fee must be reasonable
–> Customarily charged for similar work within your area
–> Time and labor required
–> The novelty of the legal issue
–> Time being of the essence
–> Client acceptance does not necessarily mean that the fee is reasonable
May be hourly (fixed) or contingent
Contingent fees:
–> Must be in writing
–>You can charge for costs but not additional fees IF it’s in the initial agreement
–>Must include how the fee with be calculated
–> CANNOT be used in criminal cases
–> CANNOT be used for divorces
You cannot have a nonrefundable payment
You can increase a fee or step up a contingency fee during litigation if you have previously discussed it with your client
You can give discounts (rule 6.1)
RULE 1.6: Confidentiality of Information
(a): A lawyer cannot reveal information relating to the representation of the client without the client’s informed consent, unless the disclosure impliedly authorized in order to carry out the representation or permitted by paragraph (b)
(b): A lawyer can reveal information relating to representation if they reasonably believe it’s necessary to
–> prevent death/substantial bodily harm
–> prevent a client from committing a crime or fraud and/or using the lawyer’s services to do so
–> prevent, mitigate or rectify substantial injury to the financial interests/property of another that is reasonably certain or has resulted from the client’s commission of a crime/fraud
–> to secure legal advice about the lawyer’s compliance with the Rules
–> to establish a claim/defense on behalf of the lawyer in a controversy between them and the client, a defense to a criminal/civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding converning the lawyer’s representation of the client
–> comply with other law or court order
–> detect and resolve conflicts of interest arising from the lawyer’s change of employment or change in ownership/composition of the firm, just so long as it doesn’t compromise the attorney-client privilege or otherwise prejudice the client.
(c): A lawyer must make reasonable efforts to prevent the inadvertent/unauthorized disclosure or access to information relating to the representation of the client.
RULE 1.7: Conflicts of Interest: Current Clients
(a): An attorney will not represent a client if concurrent conflict of interest exists.
There are conflicts where:
–> Representation of one client is directly adverse to another
–> There is significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to another client or former client.
(b): A lawyer may represent a client if:
–> The lawyer believes that the lawyer will be able to provide competent representation to each client
–> The representation is not prohibited by law
–> The representation doesn’t involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation
–> Each client gives INFORMED CONSENT
Conflicts are imputed on the firm but a conflicting attorney CAN be screened.
RULE 1.8: Conflict of Interest: Current Clients: Specific Rules (Transactional Conflicts)
Governs a business arrangement with a client, which “ordinarily” will apply when the revised fee arrangement concerns more than cash,
Treats fees paid in the form of stock as business transactions with a client (Rule 1.5 deals with monetary fees).
Lawyers can’t write anything (book or article) until after the litigation is over AND you have consent of the client
Lawyers can purchase from clients if it is in the normal course of their business.
Lawyers can’t purchase property to the detriment of the client.
Lawyers can’t solicit a substantial gift or prepare an instrument for a gift from a client (doesn’t apply to spouses or close family).
1.8 conflicts are imputed to a firm
Sexual relationships between lawyer and client are prohibited if the attorney-client relationship preceded the sexual relationship.
To the consternation of insurance companies, a lawyer may not accept compensation for representing a client from one other than the client unless:
–> the client gives informed consent
–> there is not interference with the lawyer’s independent professional judgement or the client-lawyer relationship
–> information relating to the representation of the client is protected as required by Rule 1.6
RULE 1.9: Duties to Former Clients
Applies to litigation AND transactions.
There are some situation where you can bring a claim on behalf of a current client against a past client
Key Question: Are the matters of the current and former client the same or substantially related?
Dual inquiry:
–> On it’s surface, do these matters look they are the same transaction?
–> Is there information that an attorney handling the past case would have learned that would assist them in the current litigation?
The lawyer may represent the current client if they receive informed consent from the former client, confirmed in writing.
RULE 1.10: Imputations of Conflicts of Interest: General Rule
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them would be prohibited from doing so by Rules 1.7 and 1.9 UNLESS that information about the client was while at the firm.
Applies screening in the case of a 1.9 conflict arising from moving from a different firm to a new firm.
RULE 1.11: Special Conflicts of Interest for Former and Current Government Officers and Employees
Applies to a government lawyer moving into private practice.
Key Question: Did the lawyer work in “substantial manner” in regards to this particular litigation within the agency.
Government lawyers CAN be screened. (Conflict imputes)
RULE 1.12: Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
Similar to 1.11, regarding adjudicative officers.
Key Question: Did the lawyer work in “substantial manner” in regards to this particular litigation as an adjudicative officer?
Can still be screened into a law firm.
RULE 1.13: Organization as a Client
Applies where an attorney takes orders from any individual designated or appointed by the organization.
When there is a rule violation or legal issue that the attorney’s handler violates, the attorney has a duty to report a higher authority in the organization.
If you report UP all the way and nothing is done you have the possibility to report out but is not mandatory.
RULE 1.14: Client with Diminished Capacity
Fundamentally, the lawyer should attempt to have normal relationship with the client regardless of their diminished capacity. However, the lawyer can have certain third-parties that they can disclose information to.
Having additional parties in the room does not necessarily destroy attorney-client privilege.
The attorney is impliedly authorized to make necessary disclosures, even when the client directs the lawyers to the contrary.
If no one steps up to the plate, a lawyer can take legal action on behalf of a diminished client in an emergency without establishing the attorney-client relationship or speaking with the client.
RULE 1.15: Safekeeping Property
Keep items under lock and key
Client money must be in a separate trust from lawyer money. Lawyer may put money into client trust ONLY to pay expenses to maintain trust (no comingling)
An attorney must return whatever a client gives them if the client requests.
For money, if the client demands theirs and SOME of the money left is in dispute, the money must be left in the client’s trust until after litigation or the issue is resolved. The attorney must pay whatever is owed though.
RULE 1.16: Declining or Terminating Representation
Mandatory Withdrawal:
–> Where the client who wants to take the witness stand is going to perjure themselves.
–> When the lawyer’s physical or mental ability is such that they cannot represent the client.
Permissive Withdrawal:
–> Cannot have a materially adverse impact on the client.
If there is pending litigation, the lawyer must get court approval.
Obligations After Withdrawal:
–> Must return the file to the client (the information the lawyer gathered and produced)
–> If the lawyer collected and advance fee, they must return any unearned fees.
RULE 1.18: Duties to Prospective Clients
Even if it isn’t official, the lawyer still has a duty to protect that individual’s confidential information.
The lawyer can’t enter into a relationship in conflict with that prospective client without consent.
In a law firm, a different lawyer in the firm may represent the conflicted party.
RULE 2.1: Advisor
A lawyer must exercise independent professional judgment and render candid advice.
In giving that advice, a lawyer can refer not only to law, but other considerations such moral, economic, social, and political factors, that may be relevant to the client’s situation.
