Model Rules Flashcards
5.5: Unauthorized Practice of Law
(1) A lawyer is subject to discipline for practicing in a jurisdiction where she is not admitted to practice, and
(2) A lawyer is subject to discipline for assisting another person in the unlicensed practice of law.
THREE TYPES of Unlicensed Practices:
1. When lawyers practice law in a jurisdiction in which they are not licensed;
- When lay persons practice law or give legal advice, usually by filling out legal forms while not under the direct supervision of a lawyer; or
- When law students give legal advice or complete legal forms for others while not under the direct supervision of an attorney.
If the conduct in question occurred in connection with a proceeding that was pending before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will be applied, unless the tribunal’s rules provide otherwise
PERMISSIBLE TYPES OF TEMPORARY MULTI-JURISDICTIONAL PRACTICE
A lawyer not disbarred or suspended in one state may, in another state:
1. Provide temporary services in association with an admitted lawyer;
2. Be admitted by a court to practice in one case on a pro hac vice basis;
3. Provide temporary services reasonably related to a pending or potential matter if the lawyer reasonably expects or anticipates being authorized to appear in the jurisdiction;
4. Provide temporary services in arbitration, mediation or alternative dispute resolution matters if the matter arises out of the jurisdiction where the lawyer is admitted to practice; and
5. Provide temporary services in a matter not covered by items 2 or 3 above, but are reasonably related to a matter in the jurisdiction where the lawyer is licensed.
PERMISSIBLE TYPES OF PERMANENT MULTI-JURISDICTIONAL PRACTICE:
- Lawyers employed by their own client (e.g., Counsel for Universal can set up an office in a jdx they are not licensed in, but cannot litigate there)
- Legal Services Authorized by Federal or Local Law (e.g., an attorney permitted to prosecute patents in the USPTO can set up a restricted practice anywhere)
8.2: Judicial and Legal Officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
8.3: Reporting Misconduct
A lawyer who knows that ANOTHER LAWYER has violated the Rules of Professional Conduct in such a way that it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must report the violation to the appropriate professional authority.
Similarly, a lawyer who knows that a JUDGE has violated the Code of Judicial Conduct in a way that raises a substantial question as to the judge’s fitness for office must report the violation to the appropriate authority.
NOTES: 8.3
“Knowledge” means actual knowledge, but it may be inferred from the circumstances. It has been held to mean more than mere suspicion. (A lawyer MAY report suspected misconduct, but she MUST report known misconduct.
“Substantial” means “a material matter of clear and weighty importance.”
A lawyer who fails to report this type of misconduct is herself subject to discipline for violating the rule requiring disclosure.
Confidentiality Rules overrule: Disclosure of information not required if it is protected by the confidentiality rules. (e.g., if a lawyer learns about another lawyer’s misconduct while representing the other lawyer or some other client, the lawyer has no duty to report the misconduct.)
- Also not required if lawyer is involved in an approved substance abuse rehab program
(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 [confidentiality Rule] or information gained by a lawyer or judge while participating in an approved lawyers assistance program [program designed to help lawyers with drug/alcohol program].
8.4: Misconduct
It is professional misconduct for a lawyer to:
(1) violate or attempt to violate any of the Rules of Professional Conduct,
(2) knowingly assist or induce another person to violate the Rules, or
(3) use the acts of another person to commit a violation.
A lawyer is subject to discipline for committing a criminal act that reflects
adversely on his honesty, trustworthiness, or fitness as a lawyer in other
respects. (I.e., must be relevant to the practice of law. Other crimes (e.g., solicitation of prostitution, single offense of drunk driving, possession of a marijuana cigarette), while punishable by law, do not necessarily trigger professional discipline.
A lawyer is subject to discipline for engaging in conduct that is prejudicial to
the administration of justice.
A lawyer must never state or imply that he has the ability to improperly influence a government agency or official or to achieve results by means that violate the law or legal ethics rules.
A lawyer is subject to discipline for knowingly assisting a judge or judicial officer in conduct that violates the Code of Judicial Conduct or other law.
A lawyer must not, in conduct related to the practice of law (e.g., representing
clients, interacting with witnesses, operating and managing a law practice), engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin,
ethnicity, disability, age, sexual orientation, gender identity, marital status, or
socioeconomic status.
Comments on Rule 8.4
- Repeated misconduct (even if small) breaks 8.4
1.2: Scope of Representation
A lawyer must abide by a client’s decisions concerning the objectives of a
representation, and must consult with the client as to the means by which those objectives are pursued.
A lawyer also may take actions that are impliedly authorized to carry out the representation.
A lawyer may limit the scope of the representation if:
(1) the limitation is reasonable under the circumstances, and
(2) the client gives informed consent.
E.g., a lawyer might agree to counsel her client about a dispute with the client’s landlord, but stipulate that if the dispute has to be arbitrated or litigated, the client will hire another lawyer for that purpose.
Must Not Assist Client in Crime or Fraud
A lawyer must not advise a client to engage in conduct that the lawyer knows is criminal or fraudulent, or assist the client in such conduct.
However, the lawyer may discuss the legal consequences of any proposed course of conduct.
The lawyer may also counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law (e.g., violating a statute to test its validity or scope in an enforcement proceeding).
Telling the Client “No”
When a lawyer discovers that her client expects assistance that violates a
law or legal ethics rule, or if the lawyer intends to act contrary to the client’s instructions, the lawyer must explain why she cannot do what the client expects.
Discussing Proposed Conduct
A lawyer may discuss a proposed course of conduct with a client, and explain
to the client that the conduct would be unlawful.
If the client later uses the lawyer’s advice to carry out a crime or fraud, that does not make the lawyer a party to the illegal conduct.
However, the lawyer must not recommend the illegal conduct or instruct the client on how to break the law and get away with it.
Discovering a Client’s Illegal Conduct
When a lawyer discovers that a client has begun an illegal course of action
and the action is continuing, the lawyer must not assist in the wrongdoing,
e.g., by drafting fraudulent documents or suggesting how the wrongdoing can
be concealed.
Sometimes withdrawal alone is not enough—the lawyer may have to make a
“noisy withdrawal” in which she gives outsiders notice of her withdrawal and
disaffirms any of her prior opinions, documents, affirmations, or the like that the
client is using to carry out the wrongdoing.
Decisions to Be Made by Client
A lawyer must abide by the client’s decision regarding the following matters:
a. Whether to accept a settlement offer;
b. What plea to enter in a criminal case;
c. Whether to waive a jury trial in a criminal case;
d. Whether the client will testify in a criminal case; and
e. Whether to appeal
1.4: Communication
Matters that Require Informed Consent:
The lawyer must promptly inform the client of any decision or circumstance that requires the client’s informed consent.
“Informed consent” means that the client agrees to a proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives
The lawyer must keep the client reasonably informed about the status of the matter and about the means by which the lawyer plans to accomplish the client’s objectives.
If the lawyer must make an immediate decision (such as whether to object to a line of questioning during a trial), the lawyer need not consult with the client before acting
However, in less urgent situations, the lawyer should consult with the client before acting.
Request for Information:
When a client does make a reasonable request for information, the lawyer must respond promptly. If that is impossible, then the lawyer or a member of her staff should acknowledge the client’s request and tell the client when the information will be available
Consultation About Illegal or Unethical Conduct
If the client expects the lawyer to do something that is either illegal or unethical, the lawyer must consult with the client and explain why he cannot do what the client wants.
Special Circumstances
If the client is young or has diminished capacity, the lawyer may have to do more explaining and assisting than if the client is an ordinary adult.
If the client is an organization or group, the lawyer should ordinarily communicate with the appropriate officer.
If the client and the lawyer have an established relationship concerning many routine matters, the two of them may agree on a convenient arrangement for only limited or occasional reporting.
Withholding Information from Client
A lawyer may delay the transmission of information to a client if the client would be likely to react imprudently to an immediate communication. The lawyer must not, however, withhold information to serve the lawyer’s or a third person’s interest or convenience
Court Rule or Order:
A court rule or order may forbid a lawyer from sharing certain information with
a client, and the lawyer must comply with such a rule or order.
1.5: Fees
Must Communicate Fee Arrangement to Client:
A lawyer must, before or within a reasonable time after commencing a representation, communicate the basis or rate of the fee and the expenses for which the client will be responsible.
- Writing is preferable, but generally not required (except in contingent fee agreements).
- The lawyer also has an ongoing duty to communicate any changes regarding the fee arrangement.
- Exception: If the lawyer regularly represents the client and will be charging the same basis or rate as in other matters, the lawyer need not communicate the fee arrangement each time.
Discipline for Unreasonable Fee:
A court will not enforce a contract for an unreasonably high attorney’s fee or an
unreasonably high amount for expenses, and the attorney is subject to discipline for trying to exact such a fee or expenses.
The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required,
(2) the novelty and difficulty of the questions involved,
(3) the skill requisite to perform the legal service properly;
(4) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(5) the fee customarily charged in the locality for similar legal services;
(6) the amount involved and the results obtained;
(7) the time limitations imposed by the client or by the circumstances;
(8) the nature and length of the professional relationship with the client;
(9) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(10) whether the fee is fixed or contingent.
Items that May and May Not Be Billed:
- Ordinary overhead expenses associated with staffing, equipping, and running
the attorney’s office
- More than the attorney’s actual cost for services provided by third parties, such as court reporters, travel agents, and expert witnesses.
- Attorney must not “double bill” her time.
Property for Services:
A lawyer may accept property in return for services (e.g., an ownership interest
in a business), provided that this does not involve a proprietary interest in the
cause of action or subject of litigation contrary to ABA Model Rule 1.8(i)
Such an arrangement is also subject to scrutiny as a conflict of interest because it may be a business transaction between the lawyer and the client
Cutting Off Services:
A lawyer must not make a fee agreement that could curtail services in the
middle of the relationship and thus put the client at a bargaining disadvantage.
When Contingent Fee Prohibited:
1) Criminal Cases
2) Domestic Relations Cases (e.g., contingency is based on the securing of a divorce, the amount of alimony or support, or the amount of a property
settlement. )
A contingent fee must be reasonable in amount; moreover, a lawyer must not
use a contingent fee when the facts of the case make it unreasonable to do so.
Writing Requirement for Contingent Fee Agreements:
A contingent fee agreement must be in a writing signed by the client, and the
writing must state:
1) How the fee is to be calculated, including the percentage that the lawyer gets;
2) What litigation and other expenses are to be deducted from the recovery;
3) When deductions for expenses will be made (before or after the contingent fee is calculated); and
4) What expenses the client must pay, whether or not she wins the case.
At the end of a contingent fee case, the lawyer must give the client a written
statement showing the outcome of the case, the remittance to the client, and
how the remittance was calculated.
Fee Splitting with Other Lawyers:
Only if:
1) The total fee is reasonable;
2) The split is in proportion to the services performed by each lawyer, or some different proportion if each lawyer assumes joint responsibility for the matter;
3) The client agrees to the split in a writing that discloses the share each lawyer will receive.
1.16: Declining or Terminating Representation
If a lawyer’s personal feelings about a case are so strong that they would impair his ability to effectively represent the client, he must refuse the case.
A lawyer must decline a case if his mental or physical condition would materially impair his ability to represent the client.
Collecting and Financing Attorneys’ Fees:
A lawyer may require her fee to be paid in advance, but she must refund any
unearned part of the advance if she is fired or withdraws.
Be careful to distinguish a true retainer fee from a payment of a fee in advance. A true retainer fee is money that is paid solely to ensure the availability of the lawyer, and the lawyer who is fired or withdraws generally need not refund the retainer fee.
If a client insists on illegal or unethical assistance, the lawyer must withdraw from representation.
When an attorney seeks to withdraw from a case, the court may deny the necessary permission; in that event, the attorney must continue the representation, even if there is good cause for withdrawal.
Mandatory Withdrawal:
1) An attorney must withdraw if the attorney’s mental or physical condition materially impairs the attorney’s ability to continue representing the client.
2) If to continue with the representation will require the attorney to violate a law or a disciplinary rule, the attorney must withdraw.
Permissive Withdrawal:
An attorney may withdraw from representing a client for any reason if it can be done without material adverse effect on the client’s interests or if the client consents.
The attorney may withdraw despite an adverse impact on the client’s interests in the situations listed below, provided the circumstances are severe enough to justify harming the client’s interests.
a. Client Persists in Criminal or Fraudulent Conduct
A lawyer may withdraw from representing a client if the client persists in a
course of action that involves the lawyer’s services and that the lawyer reasonably believes is criminal or fraudulent
Note that if the client’s criminal or fraudulent conduct involves some assistance by the lawyer, then the lawyer must withdraw.
1.18: Duties to Prospective Client
3.1: Meritorious Claims and Contentions
Unsupportable Factual or Legal Position:
A lawyer who is serving as an advocate in a legal proceeding must not take
a position that is either factually or legally frivolous
- A position is not frivolous if the lawyer can make a good faith argument that the facts are as claimed or that the present law should be changed.
- A position also is not frivolous merely because the lawyer does not have all the facts at hand at the outset, but expects to develop them during discovery.
In a criminal case, the defense lawyer may defend his client to the extent allowed by constitutional law even if the defense would otherwise violate this rule.
1.1: Competence
A lawyer must reject a case if he is too busy or too inexperienced to handle the
matter competently
1.3: Diligence
1.8: Conflicts
5.3: Responsibilities Regarding Non-Lawyer Assistants
Duty to Educate and Guide in Ethics Matters:
Lawyers who work with non-lawyer employees must instruct them concerning the ethics of the profession and should be ultimately responsible for their work
Duty of Partners Respecting Nonlawyer Employees:
Partners/ Managing Attorneys must make reasonable efforts to assure that the conduct of the nonlawyers is compatible with the obligations of the profession.
Duties of Direct Supervisor Respecting Nonlawyer Employees:
A lawyer who directly supervises the work of a nonlawyer employee must make reasonable efforts to assure that the conduct of the nonlawyer is compatible with the obligations of the profession.
Ethical Responsibility for Nonlawyer’s Misconduct:
The lawyer is subject to discipline if:
a. The lawyer ordered the conduct or knew about it and ratified it; or
b. The lawyer is a partner or manager or has direct supervisory responsibility over the nonlawyer, and the lawyer knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action
5.4: Professional Independence of a Lawyer
Fee Splitting with Nonlawyers and Temporary Lawyers:
- A lawyer must not share her legal fee with a nonlawyer. (Is said to help “protect the lawyer’s professional independence of judgment.”)
- This does not mean the salary of nonlawyer employees (which may come from the legal fees earned by attorneys)
Partnership with Nonlawyer to Practice Law Prohibited
- A lawyer must not form a partnership with a nonlawyer if any part of the partnership activities will constitute the practice of law.
Nonlawyer Involvement in Incorporated Firm or Other Association
- A lawyer must not practice in an incorporated law firm or association authorized to practice law for profit if:
a. A nonlawyer owns any interest in the firm or association (but, when a lawyer
dies, her estate may hold an interest during the administration of the estate);
b. A nonlawyer is a corporate director or officer or the equivalent thereof; or
c. A nonlawyer has the right to direct or control the professional judgment of a lawyer.
Interference with Lawyer’s Professional Judgment
- A lawyer must not allow a person who recommends, employs, or pays her for serving a client to direct or regulate the lawyer’s professional judgment.
