Final Flashcards
Where can you be disciplined?
8.4(a)
- Any state you are practicing in can discipline you, regardless of if you are licensed. Plus all the states where you are licensed, regardless of where the conduct occurred.
- If disbarred in one state, must report to the other states he is licensed in.
- You can be disciplined by more than one state for the same act.
Which state’s rules apply?
8.5(b)
- Litigation - the rules of where you are litigating.
- Federal courts usually apply state’s rules.
- For all other conduct (transactional law) - the rules of where the conduct occurred.
Unless the predominant effect of the conduct is in a different jx (then that jx would apply).
-Safe Harbor (b)(2): If the rules are conflicting, the lawyer will not be subject to discipline if he chooses to follow the rules of a jx where he reasonably believes the predominant effect of his conduct will occur.
It is professional misconduct for a lawyer to: (8.4)
- Violate or attempt to violate the Rules of Professional Conduct (yourself, through another, or knowingly assist or induce another to do so.).
- Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer
- Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
- Engage in conduct that is prejudicial to the administration of justice
- State or imply an ability to influence improperly a government agency or official
- Knowingly assist a judge in conduct that is a violation of the rules of judicial conduct or other law.
- Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, etc. in conduct related to the practice of law.
Your friend who is a prosecutor confessed to you that some years ago on a capital murder case he suppressed exculpatory evidence. Do you have to report?
Step 1: Did your friend violate RPC?
- Yes, suppressed blood evidence, violation of 3.8(d).
- Step 2: Do you have an obligation to report him?
- Are you his lawyer? → 1.6 (probably yes, close to certain death)
- Are you his friend? → 8.3 (Almost certainly yes)
If you are impaired because of substance abuse or mental health problems and you don’t withdraw from representation…
You are in violation of R.1.16(a)(2), which constitutes professional misconduct under R.8.4(a).
Do you have to KNOW that another person violated RPC to report?
Lawyers can report if they know or only suspect, and reporting provides civil immunity as long as the report is made in good faith.
A lawyer is responsible for another lawyer’s misconduct if: (5.1(c))
- He orders or knowingly ratifies the misconduct
- He is a partner or has managerial authority in the firm or
direct supervisory authority over the other lawyer, and
▪ He knows of the conduct and fails to take
reasonable remedial action
Rule 5.2 Responsibilities of a Subordinate Lawyer
(a) A lawyer is bound by the RPC notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the RPC if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Generally, no obligation to take on a client, except:
▪ Rule 6.1: encourages lawyers to take on indigent clients
▪ Rule 6.2: the lawyer must take on court appointments except for good cause, meaning
* It would cause a violation of the RPC
* It would create an unreasonable financial burden on the lawyer
* Client/cause is so repugnant to the lawyer that it is likely to affect representation
Entering A/C Relationship standard:
Preamble Comment 17: The substantive law external to the rules determines whether an A/C relationship exists.
(General?) Standard: An AC relationship is created whenever an individual seeks and receives legal advice from an attorney under circumstances in which a reasonable person would rely on their advice.
▪ Depends on the context and expectations of the lawyer and the “client”
▪ Very easy to fall into an attorney-client relationship!
- Once it becomes a bilateral discussion, they’re a prospective client and you owe them a duty of confidentiality
1.18 and comment 2 for more
Competence safe-harbor (1.1 comment 4):
You don’t need to be competent at the time of taking the case, as long as the required knowledge can be acquired with “reasonable preparation.”
You must have the time to prepare and study if this is an area of law you don’t know well.
Or you can associate with a competent lawyer in the matter.
(This is similar to the public defender situation. P.D are probably guilty of violating 1.1, but that is just how the system is set up.)
Rule 1.18 Duties to Prospective Clients
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship exists, a lawyer who has learned information from a prospective client shall not use or reveal information, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in his firm may knowingly undertake or continue representation either.
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(i) Both the affected client and the prospective client have given informed consent, confirmed in writing, or;
(ii) The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information that was reasonably necessary to determine whether to represent the prospective client; and
(1) The disqualified lawyer is timely screened from any participation in the matter and is appointed no part of the fee therefrom; and
(2) Written notice is promptly given to the prospective client.
Restatement 21:
Cannot continue representation if you refuse to follow instructions.
Rule 2.1
Lawyer as advisor: You have a duty of obedience, but also a duty to render balanced, candid advice.
Rule 1.3 - Duty of Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
Same duty whether it’s a paying client or a non-paying client.
Comment 1: a lawyer is not bound to press for every advantage for his client; no scorched earth litigation.
1.2(c) (Scope)
You can get your client’s informed consent to limit the scope of the representation.
CANNOT limit the requirement to give disinterested advice.
How much communication between lawyers and clients in this situation is an object of contention.
Ineffective assistance of counsel and competence violations
Ineffective assistance of counsel is NOT equal to a competence violation. One is Professional Discipline. Another is a constitutional point about then giving the defendant a new trial. Not every time we say that there is ineffective assistance would we say a lawyer is not competent. There might be a technical reason for ineffective assistance that does not make the lawyer competent (however, they usually do amount to competence violations). However, a criminal defense lawyer may be disciplined under Rule 1.1 even if their representation does not reach the standard of overturning conviction.
Objective of Representation (Rules that speak to this)
Rule 1.2(a) → Lawyer must abide by client’s decisions concerning representation and consult with client (1.4). Shall abide by the client’s decision to settle a matter. In a criminal case, shall abide by the client’s decision as to a plea, waiver of jury trial, and whether the client will testify.
Rule 1.4(2) → shall consult with clients as to the means that will be pursued to accomplish clients objectives.
1.4(a)(1-2) → you inform the client when informed consent is required. You consult about the important things!
What if lawyer and client cannot agree on a course of action?
Rules do not resolve this question.
A lawyer may withdraw, or the client can fire the lawyer.
1.2 Comment 4 - If a client is suffering diminished capacity, move to 1.14.
Restatement 21- A lawyer cannot continue representation if they do not follow the client’s wishes. It is the client who gets the ultimate say.
1.14 - Duty to Clients with Diminished Capacity
When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
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 client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is implicitly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
Take the least protective action possible (comment 1 and 2)
In case of financial or physical emergency, disclose your status to the court that you are taking emergency legal action as a de facto guardian (comment 9). (for example, if the client lacks the capacity to even engage you as a lawyer, but you see they are in a bad situation and can help. Usually I would not take a fee for this.)
According to Rue 1.14(b), these duties do not attach until the person is a client and does not apply to prospective clients.
Restatement 24, comment d
A lawyer who acts reasonably and in good faith in a tough call situation should not be subject to discipline and liability.
Restatement on confidentiality
You can say things that are generally known.
5.3 and confidentiality
responsible for 3rd party vendors. (Email server, Icloud, ect…not other law firms).
1.2(d)
a lawyer shall not counsel a client to engage in behavior that the lawyer KNOWS is fraudulent, but can make a good faith effort to test the validity of the law (
1.4(a)(5)
We have a duty to tell clients that we cannot help them engage in fraud.
(2.1 → We should also render candid advice)
4.1(b) and McCowen’s interpretation, and Texas Rule
In the course of representation, a lawyer shall not knowingly…(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”
McCown’s interpretation of 4.1(b): If you may disclose under 1.6, then you must disclose under 4.1 if it would be necessary to avoid assisting in a crime/fraud (does not matter if your services were used)
The lawyer may disclose to prevent future crime or fraud. Lawyer must disclose if it is clearly established that the client will commit crime or fraud resulting in death or serious bodily injury.
Guidance on noisy withdrawal
R 1.2, C10; R 4.1, C3
Use of Confidential Information, Model Rules and Restatement
Model Rule 1.8(b): Shall not use confidential information that would disadvantage the client unless given informed consent.
Restatement: prohibits use of a client’s confidential information unless you have consent under 60(1). If you do not get consent, you have to give the client any profits you make from using their information.
You must fulfill your duty to communicate under Rule 1.4, and it prevents you from making a misjudgment on whether something is going to be a client’s disadvantage or not.
When does an A/C relationship end?
Natural end
Withdrawal (If a transaction, or non-litigation matter, send a letter to the client. In litigation, you need a court order after your motion.
Discharged (With or without cause)
Important to know the status of the relationship, so you know what duties you owe to the client.
1.6 comment 5
Unless instructed otherwise, you may disclose information required to carry out the representation. Lawyers in a firm may also disclose to each other, unless client or firm instructs otherwise.
What does an A/C relationship end?
- Natural end
- Withdrawal (If a transaction, or non-litigation matter, send a letter to the client. In litigation, you need a court order after your motion.
- Discharged (With or without cause)
Mandatory withdrawal
(a)(1): would violate rules of professional conduct or other law
(a)(2): physical or mental impairment
(a)(3): if the client fires you
Procedures you must follow if you withdrawal/are fired:
Must tell the client about consequences before firing you. (comment 5)
If in litigation, you are still required to move to withdrawal. The court can tell the client they won’t let the lawyer go (example, we are going to trial tomorrow!)
Even if discharged, must send a closing letter.
If the client has diminished capacity, 1.16 comment 6: Refers us to 1.14. Might need to take protective action, and cannot just walk away.
Permissive withdrawal
Category 1 (no adverse effect):
(b)(1) If withdrawal can be accomplished without material adverse effect on the client.
Category 2 (must justify material adverse effect):
(b)(2): Persist in a course of action you believe is fraudulent. (What do you tell the judge? Duty of confidentiality? Say “for professional reasons.” Signal of what is going on. But what if the court refuses? You’re stuck. You must proceed as best you can. Protected by the court’s order from any discipline.)
(b)(3): Client used a lawyer’s services to perpetrate crime or fraud. (Wait, why isn’t this mandatory??)
(b)(4): insists on action that is repugnant.
(b)(5): client has not paid his bill.
(b)(6): Rep will result in unreasonable financial burden to lawyer or rep is unreasonably difficult.
(b)(7): another good cause for withdrawal.
Rule 1.16(d)
Upon termination, must take steps reasonably practicable to protect the client’s interests.
No matter how the termination happened, your duties are the same. Let them know of dates and important tasks. Even if they have discharged you unfairly!
Lawyer may retain papers to the extent permitted by other laws.
Must look to substantive law to figure out what you are allowed to keep.
(Majority says you get the entire file; at the end of the representation, lawyers should give back to client files they would reasonably want, unless substantial grounds not to.
Minority (ABA): the only thing you have to give to the client is the “end product” of representation.)
Document Retention
Every lawyer needs a document retention policy. Clients must know what the policy is. Put it in an engagement letter, specify who bears the cost.. Regardless of policy, you should not destroy records you or your client might need. Also need to consult local law.
Rule 1.15 → Document talking about money or property, should be kept for 5 years.
What do you owe a client that has not paid you?
1.16(d) still applies, Comment 9: May retain papers only to the extent permitted by law. (This is generally discouraged.)
Restatement 43: If it was created or paid for by the lawyer (a will or expert opinion), then do not get it unless it would unreasonably harm the client.
May have a lien on proceeds from representation, or other property.
A/C privilege elements
Communication, Between privileged persons, Made in confidence, For the purpose of obtaining or providing legal assistance.
R 1.7, comment 30
Communications are only privileged against those people outside of the circle, but not against P1 and P2 as joint plaintiffs. In an action between P1 and P2, P1 can use anything she learned about P2 against her! Would need to put this in informed consent.
Advance Waiver - Rule 1.7, Comment 22
A lawyer may properly request a client to waive conflicts that might arise in the future. Subject to test in 1.7(b). Cannot consent to something that does not pass this test!
what is 1.7 comment 21 about?
Revoking informed consent
Home Depot and Lowes are competitors - can you represent each?
1.7 comment 6 → Yes. Bottom of comment - economic conflicts are not legal ones.
Positional conflicts
1.2: Lawyer’s representation is not an endorsement of the client’s political, social, or moral views.
6.3: Lawyers can serve as a member of a legal services organization, apart from the law firm they work at, even though the organization serves persons having interest adverse to a lawyer’s clients.
6.4: Lawyer can serve as a member of an organization involved in the reform of law, even though the reform may affect the interests of a client of the lawyer.
(in real life, doing too much of this stuff just hurts your credibility).
Anytime you have a 1.9 question….
you also have a 1.7(a)(2) question!
Must report up per 1.13(b) IF:
Violation of legal obligation to org (ex: embezzlement) or violation of law that reasonably might be imputed to the org.
AND
Knowledge - actual or inferred from circumstances
Substantial injury to the organization is likely.
THEN
Report up the corporate ladder (higher, then higher).
UNLESS
Not in the best interest of the organization to do so.
(Broader than 1.6(b)(2)-(3) crime/fraud exception because no requirement that the lawyer’s services be used in furthering the wrongdoing.)
Hot Potato Conflicts (Restatement 122, Comment d)
o You cannot drop a client like a hot potato just to be able to represent a new client in an action against your first client
▪ Violation of agency, disloyal, breach of fiduciary relationship o You can take on new clients against Client 1 if Rule 1.9 permits:
▪ If Client 1 fires you without good cause
▪ If you withdraw with good cause under 1.16 because Client 1 is not paying their bills
Thrust Upon Conflicts (Restatement 132, Comment j)
o You represent Client 1 and Client 2 in totally unrelated matters
o Then Client 1 purchases the defendant in Client 2’s lawsuit—can you continue to represent Client 2?
o Yes but you have to withdraw from representing Client 1 and treat them as a former client under Rule 1.9
Is a Government agency an organization client?
Yes. Rule 1.13 comment 9
Preamble 18
Government lawyer may have different authority than a private lawyer
Can government lawyers argue on opposite sides of a case or transaction?
Yes (scope 18)
