Marcovitch Outline Flashcards
What is 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.
What is Rule 1.6: Client -Lawyer Relationship (Confidentiality Rule)? A, B, and C criteria.
(a) A lawyer can’t reveal information relating to the rep of a client UNLESS informed consent, the disclosure is impliedly authorized to carry out the rep
(b) A lawyer may reveal information relating to the rep to the extent the lawyer reasonably believes necessary
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
Rule 1.6 - A lawyer may reveal information relating to the rep to the extent the lawyer reasonably believes necessary… what 7 things?
1) substantial bodily harm
2) crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services
3) 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
4) secure legal advice
5) controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer
6) to comply with other law or a court order
7) detect and resolve conflicts of interest; attorney-client privilege or otherwise prejudice
Rule 1.6 TLDR is?
Can’t reveal confidential info. But MAY reveal to prevent:
○ Susbtantial bodily harm or death
○ Harm from clients crime or fraud
○ Seek ethical advice
○ Help yourself if entrenched in legal controversy
○ Detect and solve conflicts of interest
● Also must make reasonable effort to keep things confidential
What is Rule 1.13 - Organization as Client?
a) Lawyer retained by org reps the org itself
b) lawyer shall explain identity of client; when the org interests are adverse to the constituent
What is Rule 1,4 - Communication?
a) Lawyer shall:
1. Promptly inform client when client’s informed consent is required
2. Reasonably consult with client about means lawyer will use to reach clients objectives
3. Keep client reasonably informed about status of the matter
4. Promptly comply with reasonable request for info
5. Talk with client about information regarding lawyer’s conduct when client expects lawyer to act in a way not permitted by rule of professional conduct or other law
b. Shall explain matters to extent reasonably necessary to permit the client to make informed decisions regarding the rep
What is Rule 1.2 - Scope of Rep and Allocaiton of Authority Between Lawyer and Client?
a. Lawyer shall abide by clients decisions concerning objectives and shall consult regarding means. It is clients decision to settle. Crim D decides whether to plea, waive jury trial, and testify
b. Rep of client is not endorsement of their views or activities
c. Lawyer may limit scope if limitation is reasonable under the circumstances AND client gives informed consent
d. Shall not counsel client to commit crime or fraud, but a lawyer may discuss legal consequences of any proposed course of conduct. May also assist client to make a good faith effort to determine the validity, scope, meaning, or application of law
What is the comment to Rule 1.2?
If lawyer and client disagree about means, there is no rule for how to resolve. They should try to mutually resolve disagreement, but if they cannot and there is a
fundamental disagreement then the lawyer may withdraw or the client may discharge the lawyer
○ These are only two ways to resolve dispute that cannot be resolved
● Client may give advance authorization of things that would otherwise have to be communicated to client (think settlement)
What is Rule 1.7 - Current Clients?
Lawyer shall not rep a client if the rep involved a concurrent conflict of interest. A concurrent conflict exists if:
1. The rep of one client will be directly adverse to the rep of another OR 2. Significant risk that the rep of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client, a third person, or personal interest of the lawyer
b. Even with a concurrent conflict, a lawyer may still rep a client if
1. Lawyer reasonably believes they will be able to provide competent and diligent rep to each affected client
2. The rep is not prohibited by law
3. The rep does not involve the assertion of a claim by one client against another client rep’d by the lawyer in the same litigation or other proceeding before a tribunal
4. Each affected client gives informed consent in writing
What are comments to Comments to 1.7?
Four questions you should ask yourself when looking at conflicts & consent/waiver
1. Who clients are
2. Whether conflict exists
3. Whether the conflict is waivable/consentable
4. Whether clients will allow it
● Without consent you can never rep a client in one matter if you rep their opponent in another matter, even if the matters are wholly unrelated
○ But you can NEVER consent to reping opposing clients in same matter
● Direct adversity may arise when a lawyer must cross-examine their own client as a witness in a lawsuit involving another client (as when the testimony will be damaging to the client testifying)
● Simultaneous rep of clients whose interests are only economically adverse (in unrelated litigation) is usually fine
● Directly adverse conflicts can also arise in txnal matters
○ For example, would need consent to rep A in txnal matter unrelated to transaction X, if A is a buyer and and B is a seller in txn X
What are Rule 1.8 - Current Clients: Specific Rules?
Lawyer shall not enter into business txn with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client UNLESS 1. Txn and terms are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client 2. Client is advised in writing of the desirability of seeking independent counsel and is granted reasonable opportunity to seek that outside counsel 3. Client gives informed consent in writing as to the esential terms of txn, lawyers role in txn, including whether the lawyer is reping the client in the action
b. Lawyer shall not use info relating to rep of client to disadvantage of client unless client gives informed consent (except as permitted or required by rules) c. Lawyer shall not solicit substantial gift from client, including testamentary gift, or prepare on behalf of a client an instrument granting the lawyer (or a member of lawyers family) a substantial gift UNLESS the recipient is related to the client. Related persons include spouse, children, grandchildren, parent, or grandparent, or other relative with a close familial relationship
What is Rule 1.9 - Duties to Former Clients?
a. Lawyer who formerly rep’d a client in a matter shall not thereafter rep another person in the same or substantially related matter in which that persons interests are materially adverse to the interests of the former client, UNLESS the former client gives informed consent in writing b. Lawyer shall not knowingly rep a person in the same or substantially related matter in which the firm a lawyer previously was associated with previously rep’d a client
1. Whose interests are materially adverse to that person AND 2. Whom the lawyer had acquired protected info (1.9 and 1.6) that is material to the matter
What is Rule 1.10 - Imputation of Conflicts?
When lawyers are associated in a firm, none of them shall knowingly rep a client who any one of them practicing alone would be prohibited from reping under 1.7 or 1.9 UNLESS 1. The prohibition based on a personal interest under 1.7(a)(2) does not present a significant risk of materially limiting the rep of the client by the remaining lawyers in the firm OR 2. The prohibition is based on 1.9(a) or (b) [former client or client of former firm] and arises out of the disqualified lawyer’s association with a prior firm and i. The disqualified lawyer is timely screened from any participation in the matter and gets no fees therefrom
What is Rule 1.11 - Conflicts with Government Workers?
a. Except as the law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: 1. Is subject to Rule 1.9(c) [relating to info of former client]; and 2. Shall not otherwise rep a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate gov agency gives its informed consent in writing
b. When lawyer is disqualified from rep under (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue rep in such a matter unless: 1. Disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and 2. Written notice is promptly given to the appropriate gov agency to enable it to ascertain compliance with the provisions of this rule c. Except as the law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential gov information about a person acquired when the lawyer was a public officer or employee, may not rep 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. Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: 1. Is subject to Rules 1.7 and 1.9; and
2. Shall not i. Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employee, unless the appropriate gov agency gives its informed consent in writing; or ii. Negotiate for private employment with any person who is involved as a party of as lawyer for a party in a matter in which the lawyer is participating personally and substantially, expect that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b)
What are comments to Rule 1.11?
Paragraph (a)(1), (a)(2), and (d)(1) restate the obligations of an individual lawyer who has served or is currently serving as an officer or employee of the gov toward a former government or private client. Rule 1.10 is not applicable to the conflicts of interest addressed by this rule. Instead, paragraph (b) sets forth a special imputation rule for former gov lawyers that provides screening and notice. Because of the special problems raised by imputation within a gov agency, paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other
associated government officers or employees, although ordinarily it will be prudent to screen such lawyers ● Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client.
The limitation of disqualification in paragraphs (a)(2) and (d)(2) to matters involving a specific party or parties, rather than extending disqualification to all substantive issues on which the lawyer worked, serves a similar function
What is Rule 4.2 Comms with Person Rep’d by Counsel?
In repping a client, a lawyer shall not communicate about any subject of the rep with a person the lawyer knows to be rep’d by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order
What is Rule 4.4 - Respect for Rights of Third Persons?
a. In reping a client, lawyer shall not use means that have no purpose other than embarrassing, delaying, or burdening a third person, or use methods of obtaining evidence that violate the legal rights of such a person
b. A lawyer who receives a doc or ESI relating to rep of their client and knows or reasonably should know the doc or ESI was inadvertently sent shal promptly notify the sender
What is Rule 8.4 - Misconduct?
It is professional misconduct for a lawyer to:
a. Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through 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
What is Fed. Rule of Evidence 502?
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B). (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred. (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding. (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision. (g) Definitions. In this rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and (2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
What is Rule 1.5 - Fees?
a. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
1. The time and labor required, the novelty and difficulty of the question involved, and the skill required to perform the legal services properly;
2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer,
3. The fee customarily charged in the locality for similar legal services
4. The amount involved and the results obtained
5. The time limitations imposed by the client or by the circumstances
6. The nature and length of the professional relationship with the client
7. The experience, reputation, and ability of the lawyer or lawyers performing the services, and
8. Whether the fee is fixed for contingent b. The scope of the rep and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the rep, except when the lawyer will charge a regularly rep’d client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. c. A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall
provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
d. A lawyer shall not enter into an arrangement for, charge, or collect:
1. Any fee in a domestic relations matter, the payment or amount of which is contingent upon securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
2. A contingent fee for reping a D in a criminal case. e. A division of a fee between lawyers who are not in the same firm may be made only if 1. The division is in proportion to the services performed by each lawyer or each lawyer assumed joint responsibility for the rep 2. The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing AND
3. Total fee is reasonable
What are Comments to 1.5?
● Factors 1-8 are not exclusive. Expenses also must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as printing, telephone charges, etc either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.
● Contingent fees are subject to the reasonableness standard of paragraph (a). Applicable law may impose limitations on contingent fees or may require lawyer to offer clients an alternative basis for the fee. ● An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client’s interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client’s ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures. ● A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm.
What is Rule 3.3 - Candor to Tribunal?
a. A lawyer shall not knowingly: 1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer 2. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 3. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false
b. A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. c. The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Comments to 3.3
- This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.
- the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.
- Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal; must recognize the existence of pertinent legal authorities.
- A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.
- the lawyer should seek to persuade the client; must refuse to offer the false evidence
- A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances
- permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false.
- Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.
- the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.
Rule 4.1 - Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly
a. Make a false statement of material fact or law to a third person; or
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 1.6
