Huge Deck Flashcards
1
Q
You are a law student preparing to apply for admission to the bar. You just read the application. It asks if you have used illegal drugs in the last three years. If so, it wants details. During law school, you have smoked marijuana several times,most recently three weeks ago. You heard that if you tell the bar examiners, they will reject you. What should you do?
What rule applies?
A
Rule 8.1 - “An applicant for admission to the bar . . . shall not:
(a) Knowingly make a false statement of material fact; or
(b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority …”
2
Q
You are members of the law school Honor Board. You have been asked to hold a hearing on the case of Erica Kass, a third year law student. She has been charged with deliberately altering her resume and her law school transcript to improve her credentials.
Now that you have the allegations, we will convene as the honor board. You can interview Erica and then you can decide what to do.
What are your options and what rule applies?
A
Options:
- expel her from law school
- suspend her from law school for a year or two
- require her to take a course in ethics, go to counseling, or make a public apology
- public or private reprimand (to be sent to a bar admissions authorities)
Grounds for Discipline
Rule 8.4
It is professional misconduct for a lawyer to:
(a) Violate or attempt to violate the rules . . . knowingly assist another to do so, or do so through the acts of another;
(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of justice . . . .
3
Q
“I’m not driving” hypo:
You see a fellow law student getting wasted on a regular basis, what should you do?
What rule applies?
A
Only have to report if it raises a “substainal question” of the person’s honesty, trustworthiness, or fitness.
Rule 8.3 - Reporting Professional Misconduct
(a) A lawyer who KNOWS that another lawyer has committed a violation of the Rules of Professional Misconduct that raises a substantial question as to the …blah blah blah
4
Q
What if the information that you feel like you should reveal in order to report professional misconduct under Rule 8.3 is also information classified as confidential under Rule 1.6.
A
Official Comment #2.
A report does not need to be made when revealing the information would violate Rule 1.6.
Remember confidentiality is more important than telling on someone.
Also the comment suggest lawyer’s should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interest
5
Q
“Exculpatory Evidence” Hypo:
An old law school friend tells you after he finds out he’s dying that he suppressed evidence that would have gotten a guy off… ; )
What rule applies?
A
Rule 8.3(a)
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority. . . . [but a lawyer need not report client confidences.]
Official Comment #3 - not every violation has to be reported
6
Q
Do you have to report professional misconduct of lawyer that you happen to be representing because of his professional misconduct?
A
No, normal lawyer-client relationship rules apply.
7
Q
Do supervisory lawyers in a law firm have a responsibility to makes sure subordinate lawyers abide by the PR rules?
A
Yes under Rule 5.1, 5.2, and 5.3
- 5.1(a) - they shall make reasonable efforts to ensure the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the PR rules.
just remember REASONABLE EFFORTS
8
Q
“The Little Hearing” Hypo:
A new attorney gets a job and on the second day her boss makes he show up alone at an immigration hearing in which she is totally unprepared for and he wants her to do two more hearings tomorrow. What should the new attorney do?
What rule(s) apply?
A
The new attorney should probably notify the judge of the situation, and make a “good faith” effort to make sure the client gets competent representation.
Rule 1.1 - Competence
- A lawyer shall provide competent representation to a client.
- Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Also Rule 5.3
9
Q
What rule governs client confidences?
A
Rule 1.6
- don’t reveal anything that could REASONABLY LEAD TO THE DISCOVERY of such confidential information
10
Q
What information MAY a lawyer reveal?
A
Rule 1.6(b)
- a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary
- (1) to prevent reasonably certain death or substantial bodily harm
- (2) & (3) if the client is involved in fraud and using your services to assist the fraud
11
Q
Can a lawyer enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client?
A
Yes, only if the client gives informed consent. Rule 1.8
12
Q
Can a lawyer counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent
A
No under Rule 1.2(d)
13
Q
In the course of representing a client, can a lawyer make false statements of material fact or law to a third person?
A
No under 4.1(a)
- a lawyer shall not knowingly makes false statement of material fat or law to a third person
14
Q
When shall a lawyer withdraw from representing a client?
A
Rule 1.16 states a lawyer shall withdraw if the representation will result in violation of the rules of professional conduct or other law
15
Q
According to the ruling in Togstad, when does a client-lawyer relationship begin?
A
When a person seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice.
16
Q
What makes someone a prospective client?
A
Rule 1.18(a)
When the person consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.
17
Q
Can a lawyer reveal learned information from a prospective client even when no client-lawyer relationship ensued?
A
Rule 1.18(b)
- No a lawyer shall not use or reveal that information except as Rule 1.9 would permit with respect to information of a former client
18
Q
When can a lawyer continue employment in a legal matter when he knows he is incompetent?
A
Rule 1.01
When another competent lawyer is also handling the matter
In emergency situations and the lawyer only limits the advice to what is reasonably necessary
19
Q
Must a lawyer promptly inform a client of any decision or circumstances in regards to their representation?
A
Yes under Rule 1.4 - Communication
(a)(1) - lawyer shall promptly inform client…
20
Q
Must a lawyer reasonably consult with the client about the means by which the client’s objectives are to be accomplished?
A
Yes under Rule 1.4(a)(2)
21
Q
Must a lawyer keep the client reasonably informed about the status of the matter?
A
Yes under Rule 1.4(a)(3)
22
Q
Must a lawyer promptly comply with reasonable requests for information?
A
Yes under Rule 1.4(4)
23
Q
Must a lawyer consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the PR rules or other law?
A
Yes under Rule 1.4(5)
24
Q
To what extent does a lawyer have to explain information about a matter to the client?
A
Under 1.4(b)
- to the extent that is reasonably necessary to permit the client to make informed decisions regarding the representation
25
In representing a client, shall a lawyer exercise independent professional judgment and render candor advice?
Yes under Rule 2.1 Advisor
26
In rendering advice, must a lawyer refer only to the law?
No under Rule 2.1
- A lawyer may refer to other considerations such as moral, economic, social, and political factors, that may be relevant to the client's situation
27
When can a lawyer limit the scope of the representation of a client?
Rule 1.2 Scope
(c) when it is reasonable and with the client's informed consent
28
When is a client's capacity diminished?
Rule 1.14(a)
- When the client cannot make adequately considered decisions
29
When can a lawyer take reasonably necessary protective action against a client with diminished capacity?
Rule 1.14(b)
- When the lawyer reasonably believes the client is at risk of substantial physical, financial or other harm
30
When taking reasonably necessary protective action against a client with diminished capacity, can the lawyer reveal information about the client?
Yes, Rule 1.14(c)
- the lawyer is impliedly authorized under rule 1.6(a) to reveal information about the client BUT ONLY to the extent reasonably necessary to protect the client's interest
31
When determining a client's diminished capacity, what should the lawyer consider?
Rule 1.14 Official Comment #6
Should consider factors such as:
- the client ability to articulate reasoning leading to a decision
- variability of state of mind and ability to appreciate consequences of a decision
- the substantive fairness of a decision
- the consistency of a decision with the known long-term commitments and values of the client
32
When determining a client's mental capacity, may a lawyer seek guidance from an appropriate diagnostician?
Yes under Rule 1.14 Official Comment #6
33
When does a concurrent conflict of interest exists?
Rule 1.7(a)(1-2)
- When the representation of one client will be directly adverse to another client
- there is a significant risk that the representation of one or more client will be materially limited by the lawyer's responsibility to another client, a former client or a third person or by a personal interest of the lawyer
34
When may a lawyer represent a client?
Rule 1.7(b)(1-3)
- the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client
- the representation is not prohibited by law
- 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 unless the affected clients give informed consent
35
When can a lawyer provide financial assistance to a client in connection with pending or contemplated litigation?
Rule 1.8(e)(1-2)
- A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter
- a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client
36
When can a lawyer accept compensation for representation from one other than the client?
Rule 1.8(f)(1-3)
- When the client gives informed consent
- When there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship
- When the information relating to representation of a client is protected as required by Rule 1.6
37
When can a lawyer acquire a proprietary interest in the cause of action or subject matter of litigation?
Rule 1.8(i)(1-2)
- acquire a lien authorized by law to secure the lawyer's fee or expenses
- contract with a client for a reasonable contingent fee in a civil case
38
When can a lawyer have sex with a client?
Rule 1.8(j)
- When a consensual sexual relationship existed between them when the client-lawyer relationship commenced
lame
39
"Belief"
The person involved actually supposed the fact in question to be true.
A person's belief may be inferred from the circumstances
40
"Confirmed in writing"
Informed consent that is:
- Given in writing by person
OR
- A writing that a lawyer transmits to person confirming an oral informed consent
41
"Fraud"
Conduct that is:
- Fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive
AND
- Has a purpose to deceive
42
"Informed Consent"
Agreement by person to proposed conduct after a lawyer has:
- Communicated adequate information
AND
- Explained material risks and reasonably available alternatives
43
"Knowingly"
- Actual knowledge of fact
| - May be inferred from circumstances
44
"Reasonable"
Conduct of a reasonable prudent & competent lawyer
45
"Reasonable belief"
- A lawyer believes the matter in question
AND
- Circumstances are such that a reasonably prudent & competent lawyer would believe
46
"Screened"
- The isolation of a lawyer from any participate in a matter
- through timely imposition of procedures within a firm
- that are reasonably adequate under the circumstances to protect information that the that the isolated lawyer is obliged to protect.
47
"Substantial"
Of clear and weighty performance
48
"Writing"
Tangible or electronic record of a communication or representation, including:
- Handwriting
- Typewriting
- Printing
- Photograph
- Audio or video
- Email
49
"Signed Writing"
- Electronic sound, symbol, or process
- Attached to or logically associated with a writing
- Executed/adopted by a person
- With intent to sign the writing
50
Rule 1.1 - Competence
A lawyer SHALL provide competent representation to client
51
"Competent representation"
Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
52
Rule 1.2(a) - scope of representation and allocation of authority between Client and Lawyer
- A lawyer SHALL abide by the Client's decisions regarding the object of representation
- A lawyer SHALL consult with the Client as to the means by which they are to be pursued
- A lawyer MAY take action on the Client's behalf as impliedly authorized to carry out representation
53
Rule 1.2(b) - representation and endorsement
A lawyer's representation of a client DOES NOT constitute an endorsement of the client's political, economic, social or moral views or activities.
54
Rule 1.2(c) - a lawyer may limit the scope of representation if:
- Reasonable under circumstances
AND
- The Client gives informed consent
55
Rule 1.2(d) - Client Lawyer relationship; crime/fraud conduct
- A lawyer SHALL not knowingly counsel to engage/assist client in conduct if the Lawyer knows conduct is criminal/fraudulent
- A lawyer MAY discuss legal consequences of any proposed course of conduct
- A lawyer MAY counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law
56
Independence from client's views or activities
Rule 1.2 Comment 5
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. By the same token, representing a client does not constitute approval of the client's views or activities.
57
Rule 1.3 - Diligence
A lawyer SHALL act with reasonable diligence & promptness in representing the client.
58
Rule 1.4 - Communication with client
A Lawyer SHALL:
- inform the client of any situations with respect to which the client's informed consent is required
- consult with the client about the means by which the client's objectives are to be accomplished
- keep the client reasonably informed about the status of the matter
- promptly comply with reasonable requests for information
- consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules or other law.
- explain to the extent reasonably necessary to permit the client to make informed decisions regarding the representation
59
Rule 1.5 - Fees
A lawyer SHALL NOT make an agreement for/charge/collect unreasonable fee or amount for expenses
60
Rule 1.5 - Fees;
Factors for reasonableness: (8)
1. The time and labor required
2. The opportunity cost - preclusion of other employment
3. Customary fees in locality for similar services
4. The amount involved
5. Times limitations imposed by the client/circumstances
6. the nature and length of professional relationship with client
7. The experience, reputation, and ability of the lawyer
8. Whether the fee was fixed or contingent
61
Rule 1.5(b) - Fees; communication
A lawyer SHALL communicate to the client
- The scope of representation
- basis or rate of the fee and expenses for which the client will be responsible
- Any changes in the basis or rate of the fee or expenses
* preferably in writing, before or within a reasonable time after commencing the representation
62
Rule 1.5 Fees - Contingent fees agreement
- SHALL NOT be prohibited by Model Rules or other law
- SHALL be in writing
- SHALL state method by which the fee is to be determined
- SHALL notify the client of all expenses the client will be liable for regardless of the outcome
63
Rule 1.5 - Contingent fee; method of determination
SHALL include
- percentages that shall accrue to the lawyer in the event of a settlement, trial, or appeal
- expenses to be deducted from recovery
- whether the expenses deducted before/after the fee is calculated
64
Rule1.5 Contingent Fees upon conclusion of the matter
The lawyer shall provide the client with written statement stating
- the outcome of the matter
AND
- if recovery, must show remittance to the client and the method of its determination
65
Rule 1.5 Contingent fees impermissible
A lawyer SHALL NOT enter agreement/collect/charge for
- domestic relations: divorce, alimony
- Defendant in criminal case
66
Rule 1.5(e) Division of fees between lawyers at different firms
A lawyer MAY divide the fee with another lawyer at a different firm only if:
- it is divided proportionate to the services provided
- the client agrees to the arrangement
- confirmed in writing
- total fee is reasonable
67
Rule 1.6 - Confidentiality
A lawyer SHALL NOT reveal information relating to representation of a client UNLESS:
- the client gives informed consent
- disclosure is impliedly authorized in order to carry out the representation
- or permitted by paragraph b
68
Rule 1.6(b) - Confidentiality exceptions
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to:
- to prevent reasonable certain death or substantial bodily harm
- to prevent the client from committing a crime/fraud
- to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client;s commission of a crime or fraud in furtherance of which the client has used the lawyer's services
- to secure legal advice about the lawyer's compliance with these rules
- to establish a claim/defense for lawyer against the client
- to comply with law/court order
69
Rule 1.6 - Confidentiality; crime/fraud exception
A lawyer MAY reveal information if
- reasonably certain to result/has resulted
- in substantial injury to: financial interest/property of another
- client is using/has used the lawyers services in furtherance
70
Rule 1.7 - Concurrent conflicts with current clients
A lawyer SHALL NOT represent a client if:
- representing the client will be directly adverse to another client
OR
- significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client/former client/3rd party/lawyer's personal interest
71
Rule 1.7 - Concurrent conflicts with current client; exception
A lawyer MAY represent a client if:
- reasonable belief able to provide competent & diligent representation to each client
- representation is not prohibited by law
- doesn't involve assertion of claim by client 1 against client 2 in same litigation/other proceeding before a tribunal
AND
- each affected client 1 gives informed consent confirmed in writing
72
Rule 1.7 - Concurrent conflicts with current clients; consent
- must be informed: all relevant circumstances, reasonable alternatives, foreseeable harm
- in writing
- no signature required
- if can't inform without revealing confidential information and client 2 won't consent, can't help client 1
73
Rule 1.7 - Concurrent conflicts with current conflicts; class actions
- Unnamed members in class action are not considered to be clients
- no consent before: suing person in unrelated matter
74
Rule 1.8(a) - Current client conflicts
A lawyer SHALL NOT
- enter into business transaction with client
- knowingly acquire ownership, possessory/security/other pecuniary interest adverse to the client
75
Rule 1.8(a) - Concurrent client conflicts; exceptions
- the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transited in writing in a manner that can be reasonably understood by the client
- the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction
- the client gives informed consent, in a writing signed by the client, stating the essential terms of the transaction and the lawyer's role in the transaction
76
Rule 1.8(b) - Conflicts with current clients; confidentiality
A lawyer SHALL NOT use information relating to the client's representation to client's disadvantage unless:
- the client gives informed consent
- except permitted/required by rules
77
Rule 1.8(c) - Gifts
A lawyer SHALL NOT
- solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf an instrument giving the lawyer or person related to the lawyer any substantial gift unless:
- the lawyer is or other recipient is related to the client
78
Rule 1.8(d) - Literary/media rights
A lawyer SHALL NOT
- make/negotiate an agreement giving the lawyer literary/media rights to a portrayal or account based
- in substantial part on information relating to the representation
- prior to the conclusion of representing the client
79
Rule 1.8(e) - Financial assistance
A lawyer SHALL NOT
- provide financial assistance to the client in connection with/pending/contemplated litigation
80
Rule 1.8(e) - Financial assistance; exceptions
A lawyer MAY
- advance court costs and expenses of litigation, the repayment of which may be contingent on outcome
- pay court costs and litigation expenses for an indigent client
81
Rule 1.8(f) - Compensation from 3rd party
A lawyer SHALL NOT
- accept compensation for representing a client from anyone except the client
82
Rule 1.8(f) - Compensation from 3rd party; exceptions
A lawyer MAY except compensation from a 3rd party if:
- the client gives informed consent
- no interference with the lawyer's independent professional judgment or client-lawyer relationship
- information related to representation is protected
83
Rule 1.8(g) - representing multiple parties; exception
A lawyer MAY participate in aggregate settlement/plea if each client:
- gives informed consent
- consent is written and signed
- disclosure includes: existence and nature of all claims/pleas involve, and the participation of each person involved
84
Rule 1.8(h)(1) - Agreement limiting malpractice liability
A lawyer SHALL NOT
- make an agreement prospectively limiting the lawyer's liability to the client for malpractice
- UNLESS the client is represented independently in making the agreement
85
Rule 1.8(h) - Settling claim for malpractice
A lawyer SHALL NOT
- settle claim/potential claim for malpractice with unrepresented client/former client UNLESS:
- person is advised in writing of desirability of seeking independent legal counsel AND
- Given reasonable opportunity to seek independent legal advice/counsel on matter
86
Rule 1.8(i) - proprietary interests
A lawyer SHALL NOT
- acquire a proprietary interest in cause of action/subject matter of litigation
87
Rule 1.8(i) - proprietary interests; exceptions
A lawyer MAY
- acquire a lien authorized by law to secure a lawyer's fees & expenses
AND
- contract with client for reasonable contingent fee in civil cases
88
Rule 1.8(j) - sex with client
A lawyer SHALL NOT have sex with a client UNLESS a consensual sexual relationship existed prior to client-lawyer relationship
but i thought no meant yes?
89
Rule 1.8(g) - representing multiple parties
A lawyer who is representing two clients SHALL NOT
- participate in making an aggregate settlement of claims of/against (or aggregate plea agreement of guilty/no contest) the client
90
Rule 1.8(k) - imputation of specific rules
While the lawyers are associated in a firm, a prohibition in the foregoing sections a-i that applies to any one of them SHALL apply to all of them
91
Rule 1.9(a) - duties to the lawyer's former client
A lawyer who has formerly represented a client SHALL NOT represent another person in the same/substantially related matter in which that person's interest are materially adverse to interest(s) of the former client
- UNLESS written, informed consent
92
Rule 1.9(b) - Former firm's former client representation
A lawyer SHALL NOT
- knowingly represent a client in the same/substantially related matter in whig a firm that the lawyer formerly associated with previously represented
- whose interests are materially adverse to that person AND
- about whom the lawyer has acquired information protected by these rules that is material to the matter
- unless the former client gives written informed consent
93
Rule 1.9 - "substantially related"
- the involve same transaction or legal dispute
OR
- if there is otherwise a substantial risk that confidential factual information has/would normally have been obtained in the prior representation would materially advance the clients position in the subsequent matter
94
Rule 1.9(c) - present firm that formerly represented a client
A lawyer SHALL NOT
- use information relating to representation to disadvantage of former client
- reveal information relating to representation
95
Rule 1.9(c) - present firm that formerly represented a client; exceptions
A lawyer may
- use information relating to the representation to former client's disadvantage:
- as rules require OR when information has become generally known
- reveal information relating to the representation as these rules would require/permit with respect to a client
96
Rule 1.10(a) - imputation while lawyers are associated with a firm
No lawyer presently associated in a firm SHALL
- represente a client when anyone of them practicing alone would be prohibited by 1.7 or 1.9
97
Rule 1.10(a) - imputation while lawyers are associated in a firm; exceptions
- When prohibition is based on person interest of on a personal interest of the disqualified lawyer AND does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm
- The prohibition is based on Rule 1.9(a) or (b), arises out of the disqualified lawyer's association with a prior firm AND
- the disqualified lawyer is screened
- not paid
- with written notice to former client
- certification of compliance with these Rules provided to former client
98
Rule 1.10(a) - imputation while lawyers are associated in a firm; exceptions; written not requirement
SHALL include
- description of screening procedures
- statement of firm's compliance with rules
- statement of disqualified lawyer's compliance with rules
- statement that review may be available by tribunal
- agreement by firm to respond promptly to any written inquiries/objections by former client
99
Rule 1.10(b) - imputation after lawyer leaves firm
A firm MAY represent person
- with interests materially adverse to client represented by formerly associated lawyer
AND
- not currently represented by the firm
100
Rule 1.10(b) - imputation after lawyer leaves firm; exception
A firm SHALL NOT represent a client if:
- matter same/substantially related to the that in which the former lawyer represented the client
AND
- any lawyer remaining in the firm has information protected by 1.6 & 1.9(c) that is material to the matter
101
Rule 1.10(c) - waiver
A disqualification prescribed by this rule may be waived by the affect client under the conditions stated in Rule 1.7
102
Rule 1.11(a) - Lawyer was a former government employee or public officer
A lawyer who has formerly served as a public officer or employee of the govt:
- is subject to Rule 1.9(c)
- SHALL NOT otherwise represent a client in connection with a matter the lawyer participated personally & substantially
103
Rule 1.11(a) - Lawyer was a former government employee or public officer; exception
The appropriate governmental agency gives to representation:
- informed consent
- confirmed in writing
104
Rule 1.11(b) - Lawyer was a former government employee or public officer; imputation
No lawyer in a firm MAY
- knowingly undertake or continue representation in such a matter UNLESS:
- disqualified lawyer is screened
- disqualified lawyer is not paid
- written notice from government agency
105
Rule 1.11(c) - Lawyer's duty to protect confidential government information
A lawyer SHALL 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
106
Rule 1.11(c) - confidential government information; firm duty
A firm associated with the lawyer MAY
- undertake/continue representation only if disqualified lawyer is screen and not paid
107
Rule 1.11(c) - "confidential government information"
- Information obtained under governmental authority
- at time rule applied, government is prohibited by law from disclosing to public or has legal privilege not to disclose
- information not otherwise available to the public
108
Rule 1.11(d) - Lawyer currently government employee or public officer
Subject to 1.7 & 1.9
SHALL NOT
- particpate in matter the lawyer personally and substantially participated in while in private practice
OR
- negotiate for private employment with anyone involved in matter the lawyer is participating personally and substantially
109
Rule 1.11(d) - Lawyer currently government employee or public officer; exceptions
A lawyer MAY
- participate if appropriate government agency gives informed consent confirmed in writing
- negotiate for private employment with party the lawyer was involved with UNLESS the lawyer is serving as law clerk for judge
PR is stupid
110
Rule 1.11(e) - "matter"
- Any judicial or other legal proceeding...(list in book pg. 63)
- any other matter covered by conflict of interest rules of the appropriate government agency
111
Rule 1.2(a) - Former Judge/Arbitrator/Mediator; representation
A lawyer SHALL NOT
- represent anyone in connection with matter the lawyer participated personally & substantially as:
- judge/adjudicative officer
- law clerk to judge
- arbitrator/mediator
UNLESS:
- all parties give informed consent confirmed in writing
112
Rule 1.12(b) - Former Judge/Arbitrator/Mediator; negotiation for employment
A lawyer SHALL NOT
- negotiate for employment with any person involved as party or as a lawyer for a party in a matter which the lawyer is participating personally and substantially as judge...
113
Rule 1.12(b) - Former judge/Arbitrator/Mediator; negotiation of employment; exception
A lawyer MAY negotiate for employment if
- service as law clerk to judge/adjudicative officer
AND
- after the lawyer notifies the judge/adjudicative officer
114
Rule 1.12(c) - Former judge; imputation
No lawyer in a firm SHALL knowingly undertake/ continue to represent a client in matter UNLESS
- disqualified lawyer is screened
- disqualified lawyer is not paid
- written notice to parties and any appropriate tribunal
115
Rule 1.13(a) - organization as client
The lawyer employed/retained by organization represents organizations acting through its only authorized constituents
116
Rule 1.13(b) - action harmful to organization
- action/intent to act/refusal to act
- officer/employee/other association with organization
- matter related to representation that:
- is a violation of law/legal obligation to organization
- is reasonably likely to be imputed to organization
- likely to result in substantial injury to organization
117
Rule 1.13(b) - lawyer's duty to organization & harmful action
If a lawyer for an organization KNOWS someone in the organization is doing something that would harm the organization:
A lawyer SHALL
- proceed as reasonably necessary in organization's best interest
AND
- refer matter to higher authority unless the lawyer reasonably believes it is not necessarily in the best interest of the organization
118
Rule 1.13(c) - organization as client; revealing information
A lawyer MAY reveal information if:
- the lawyer acted according to 1.13(b)
- the highest authority insists upon or fails to address matter in timely appropriate manner
- matter is clear violation of law
- the lawyer reasonably believes violation is reasonably certain to result in a substantial injury to organization
- only to the extent the lawyer believes reasonably necessary to prevent injury to the organization
119
Rule 1.13(e) - a lawyer's duty to organization; discharged or withdraws
A lawyer SHALL
- proceed as the lawyer reasonably believes necessary to assure the organization's highest authority is informed of the lawyer's discharge/withdrawal
120
Rule 1.14(a) - client with diminished capacity; general rule
A lawyer SHALL
- as far as reasonably possible, maintain normal lawyer-client relationship
121
Rule 1.14(b) - client with diminished capacity; when protective action
When the lawyer reasonably believes the client
- has diminished capacity
- it is a risk of substantial physical, financial, other harm unless action is taken
- client cannot adequately act in the client's own interest
122
Rule 1.14(b) - client with diminished capacity; lawyer's duty & protective action
A lawyer may
- take reasonably necessary protective action
- includes: consulting with those with ability to take protective action, and seek appointment of guardian at litem, conservator, or guardian
123
Rule 1.14(c) - diminished capacity; implied authority
When taking action pursuant to 1.14(b), the lawyer is impliedly authorized under 1.6(a) to reveal information about the client, BUT only to extent reasonably necessary to protect the client's interests
124
Rule 1.16(a) - declining or terminating representation; mandatory
A lawyer SHALL NOT represent or SHALL withdraw if:
- representation will result in violation of Rules
- the lawyer's physical/mental condition materially impairs the lawyer's ability to represent the client
OR
- the lawyer is discharged
125
Rule 1.16(b) - good cause for declining/terminating representation
A lawyer MAY withdraw/termintate if:
- no material adverse effect
- the client persists action the lawyer reasonably believes crime/fraud
- the client used the lawyer's services to commit crime/fraud
- the lawyer considers the client's action repugnant
- the client is given a warning and fails to fulfill obligations to the lawyer
- unreasonable financial burden
- fundamental disagreement
- other good causes exists
126
Rule 1.16(c) - notice and tribunal terminating/declining representation
- A lawyer MUST comply with applicable law requiring notice to or permission of tribunal
- When ordered by tribunal, a lawyer SHALL continue representation notwithstanding good cause for terminating representation
127
Rule 1.16(d) - terminating/declining representation protecting the client's interests
Upon termination, a lawyer SHALL
- give the client reasonable notice
- allow the client time to find other counsel
- surrender paper & property the client is entitled to
- refund any advance payment of fee/expense not earned/incurred
128
Rule 1.18(a) - "prospective client"
A person who discusses with a lawyer possibility of forming a client-lawyer relationship with respect to a matter
129
Rule 1.18(b) & (c) - duties to prospective client
A lawyer SHALL NOT
- use or reveal information learned
- represent a client with interests materially adverse to prospective client if the lawyer received information from prospective client that could be significantly harmful to the client in a matter
130
Rule 1.18(b) & (c) - duties to prospective client; exceptions
A lawyer MAY
- use or reveal information learned from prospective client as 1.9 would permit
- representation of client with materially adverse interests to prospective client as provided in 1.18(d)
131
Rule 1.18(d) - when a lawyer receives disqualifying information from prospective client; permissibility of representation
A lawyer MAY represent if:
- both affected & prospective client gives written informed consent
OR
- the lawyer who receives information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent prospective client AND
- screened, not paid, written notice to prospective client
132
Rule 2.1 - Advisor
- in representing a client, a lawyer SHALL exercise independent professional judgment & render candid advice
- rendering advice, a lawyer MAY refer to
- law, moral factors, political factors, economic facts, social factors
133
Rule 3.3(a) - candor toward tribunal
A lawyer SHALL not knowingly
- make false statement of law/fact
- fail to correct false statement of material law/fact previously made to tribunal
- fail to disclose legal authority in controlling jurisdiction known to be directly adverse to client & not disclosed by opposition
- offer evidence the lawyer knows to be false (if the lawyer discovers falsity the lawyer SHALL take reasonable remedial measures)
134
Rule 3.3(a) - candor towards tribunal; exception
A lawyer MAY refuse to offer evidence a lawyer reasonably believes is false if not defendant's testimony in criminal matter
135
Rule 3.3(b) - candor toward tribunal; a lawyer's client intends/is/has crime or fraudulent conduct related to proceeding
A lawyer SHALL take reasonable remedial measures &, if necessary, disclose to tribunal
136
Rule 3.3(c) - candor towards tribunal; scope
- Duties in (a) & (b) continue to conclusion of the proceeding
AND
- apply even if compliance requires disclosure of information otherwise protected by 1.6
137
Rule 4.1 - Truthfulness
A lawyer SHALL NOT knowingly
- make false statement of material fact/law to 3rd party
- fail to disclose material fact when disclosure is necessary to avoid assisting the client in criminal/fraudulent act (unless prohibited by 1.6)
138
Rule 5.1(a) - partner responsibility
Who: lawyer who individually or together with other lawyers possesses comparable managerial authority in firm and firm partner
What: SHALL make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm confirm the rules
139
Rule 5.1(b) - responsibility of lawyer with direct supervisory authority
A lawyer SHALL make reasonable efforts to ensure other lawyers conform to the rules
140
Rule 5.1(c) - responsibility for other lawyers' violations
A lawyer SHALL be responsible if:
- the lawyer orders or with knowledge of the specific conduct ratifies conduct
OR
- the lawyer knows of conduct at time when consequences can be avoided/mitigated and
- the lawyer is a partner/managerial authority/direct supervisor
- the lawyer fails to take reasonable remedial action
141
Rule 5.2(a) - subordinate lawyer's personal responsibility
A lawyer is bound by the rules notwithstanding that the lawyer acted at direction of another person
142
Rule 5.2(b) - acting in accordance with supervising lawyer
A subordinate lawyer does not violate the rules if the lawyer acts in accordance with their supervising lawyer's reasonable resolution of an arguable question of professional duty
143
Rule 5.3(a) - partner's responsibility to non-lawyer assistance
A lawyer shall make reasonable efforts to ensure that firm has in effect measures giving reasonable assurance that non-lawyer's conduct is compatible with the professional obligations of the lawyer
144
Rule 5.3(b) - direct supervisor responsibility for non-lawyer assistance
A lawyer shall make reasonable efforts to ensure that firm has in effect measures giving reasonable assurance that non-lawyer's conduct is compatible with the professional obligations of the lawyer
145
Rule 5.4 - lawyer's professional independence
A lawyer SHALL NOT
- share legal fees with non-lawyer
- form partnership with non-lawyer when activities equal "practice"
- permit 3rd party to direct/regulate the lawyer's professional judgment in rendering legal services
146
Rule 5.4(a) - sharing legal fees with non-lawyer; exceptions
A lawyer/firm MAY
- provide money to deceased lawyer's estate/designate person for reasonable time after lawyer's death
- purchase practice of dead/disabled/ missing lawyer & pay to that lawyer's estate/designated person
- pay non-lawyer employees and offer retirement plans
- share court-awarded fees with nonprofit that retained/recommended lawyer in the matter
147
Rule 5.4(d) - Lawyer's authorized to practice law for profit with coporations and associations
i don't know I'm over it
