Model Rules

Question 1

What does model rule 8.1 discuss? (Q)

Answer 1

Model rule 8.1 states that bar applicants shall not knowingly make a false statement about a material fact in their bar application materials.

Question 2

How is model rule 8.1 unique from the other RPCs? (Q)

Answer 2

Model Rule 8.1 is actually unique from other Rules of Professional Conduct because it applies to non-lawyers seeking admission to a bar, and also applies to licensed lawyers making representations to the bar.

Question 3

What does the term knowingly mean in rule 8.1? (Q)

Answer 3

“Knowingly” means that, at the time of the statement, the applicant knew that it was not true. This intent requirement leaves room for an applicant to make an honest mistake, like a typo misstating an address or graduation date, without facing disciplinary consequences.

Question 4

What does the word statement mean in rule 8.1? (Q)

Answer 4

Courts have held that the word “statement” includes both affirmative representations and omissions of facts. For example, intentionally omitting information about an arrest or termination from a job could be a violation of Model Rule 8.1.

Question 5

What does the word material mean in rule 8.1? (Q)

Answer 5

The word “material” means that the false statement involved a significant fact that makes it difficult for the bar to determine if the applicant is fit to practice. For example, knowingly stating on your application that you “managed” a team of six employees at a job when you really were only a back-up supervisor may be dishonest, but it might not be material; the bar committee could decide that this misrepresentation is not material and does not reflect on your fitness to be a practicing lawyer. However, intentionally failing to disclose a conviction for identity theft would almost certainly rise to the level of materiality because it reflects poorly on an applicant’s honesty and trustworthiness, and failing to disclose a criminal record could make it difficult for the bar committee to know if the applicant is truly fit to be a lawyer.

Question 6

What does model rule 8.1(b) discuss? (Q)

Answer 6

Model Rule 8.1(b) imposes a clear, affirmative duty on both lawyers and applicants to the bar: they must disclose information that will correct any misunderstandings that they are aware of. Failing to make a correction could subject you to disciplinary action. For example, if Susie omits an arrest from her bar application because she thinks it is irrelevant, but then subsequently realizes that she should have disclosed it, she should supplement her bar application in order to comply with 8.1(b). Otherwise, her omission of a material fact becomes intentional, and she would violate Rule 8.1.

Question 7

What is a summary of model rule 8.1? (Q)

Answer 7

Model Rule of Professional Conduct 8.1(a) and (b) embodies what is probably common sense for most lawyers and bar applicants: you should never intentionally make misstatements of material fact when interacting with the bar, either in the context of a bar application for admission or a when making statements to the bar as a part of a disciplinary hearing for yourself or someone else. If you later become aware that you have made a material misstatement of fact to the bar in either context, the Model Rules impose an affirmative obligation on you to correct the misstatement.

Question 8

What does model rule 8.3 discuss? (Q)

Answer 8

Model Rule 8.3 imposes an obligation on lawyers to report other lawyers’ ethical violations.

Don’t tell on me

Question 9

What does the word substantial mean in reference to model rule 8.3? (Q)

Answer 9

The word “substantial” refers to the seriousness of the misconduct, and not to the amount of evidence the reporting attorney must have to support a report of misconduct. For example, an attorney who suspects that a colleague billed a client for fifteen minutes of work he never performed almost certainly has no reporting obligation; the violation here, even if proven, is just not “substantial” enough to rise to the level of reportable misconduct. On the other hand, though, an attorney who has proof that a colleague billed a client for hundreds of hours of work he never performed should almost certainly report; the violation is serious, and reflects directly on the lawyer’s honesty in working with clients.

Question 10

What is a summary of model rule 8.3? (Q)

Answer 10

Lawyers are obligated to report the misconduct of another lawyer or judge when it is substantial, and when it reflects on the individual’s honesty or fitness. Lawyers are not required to report privileged information, but the Model Rules encourage lawyers to get informed consent from clients to disclose privileged information and make a report. Reports should be made to the bar disciplinary committee or other appropriate agency, such as a peer review group.

Question 11

What does model rule 5.5 discuss? (Q)

Answer 11

Model rule 5.5 prohibits lawyers from engaging in the unauthorized practice of law.

Back to 505

Question 12

What does practicing law mean in reference to model rule 5.5? (Q)

Answer 12

The general rule is that “practicing law” means applying the law to a specific set of facts, or exercising professional legal judgment.

Question 13

What is a summary of model rule 5.5? (Q)

Answer 13

Lawyers who practice in a jurisdiction where they are not properly licensed, or who assist another attorney to do so, are engaging in the unauthorized practice of law and may face disciplinary action or criminal charges.

Back to 505

Question 14

What is a summary of model rule 5.1? (Q)

Answer 14

Lawyers are expected to make reasonable efforts to ensure that their subordinates understand and comply with ethics rules. This may mean providing training, setting up procedures, or some combination of both. Supervising lawyers may face consequences for ordering a subordinate’s misconduct, or for ratifying or failing to mitigate it.

Question 15

What is a summary of model rule 5.2? (Q)

Answer 15

Subordinate lawyers are expected to behave ethically, though, even when a supervisor tells them otherwise. Subordinates may be excused on close ethical calls if they sought advice from a supervisor.

Monkey see monkey do

Question 16

What is a summary of model rule 8.4? (Q)

Answer 16

State bars may discipline attorneys for violating ethics rules, or for conduct showing dishonesty or a lack of fitness to practice. They may also punish lawyers for prejudice or bias that hinders the administration of justice, which is a catch-all often used to deal with a lawyer’s hate speech that is not a part of legitimate advocacy. The purpose of disciplinary actions is not to punish the lawyer, but to protect the public. Bar disciplinary committees may discipline their admitted lawyers for acts that occurred outside of their jurisdiction. And finally, lawyers practicing under conflicting ethics rules may be disciplined under the rules of the tribunal, or the rules where the predominant effect of the conduct is most felt.

Lawyer no more

Question 17

What does model rule 8.4 discuss? (Q)

Answer 17

Rule 8.4 of the Model Rules generally states that a lawyer can be disciplined for either violating a disciplinary rule, or for conduct that reflects poorly on their honesty or fitness to practice law.

Question 18

How does a lawyer violate a rule under model rule 8.4? (Q)

Answer 18

Violating a disciplinary rule includes attempts to violate, and agency in violating – so assisting or inducing another lawyer to violate the rules can also be grounds for disciplinary action as well.

Question 19

What does model rule 1.18 discuss? (Q)

Answer 19

Model Rule of Professional Conduct 1.18 explains a lawyer’s confidentiality duties towards prospective clients.

Aren’t looking clients great?

Question 20

What does model rule 6.1 discuss? (Q)

Answer 20

Model Rule 6.1 encourages at least 50 hours of pro bono representation by lawyers.

Most boners are 6.1 inches

Question 21

What does model rule 1.5(c) discuss? (Q)

Answer 21

Model Rule 1.5(c) says that when a lawyer’s fee is contingent on the outcome of a case, the attorney and client should put the details of that agreement in a signed writing.

1.5 contingent

Question 22

What does model rule 6.2 discuss? (Q)

Answer 22

The Rule states that a lawyer shall not try to avoid court appointed representation except for “good cause.”

It’s not me it’s you

Question 23

What are the three examples of circumstances that rise to the level of good cause in 6.2?

Answer 23

First, the lawyer may decline court-appointed representation if it violates ethical rules or some other law. For example, if the court appoints a lawyer to represent someone that a lawyer’s current client is suing, that representation would violate ethics rules against representing clients with conflicting interests.

Second, the lawyer has good cause to decline a court-appointed representation where it would create an “unreasonable” financial burden for the lawyer. If a lawyer can show that accepting a representation might cause his practice to go into bankruptcy, for example, would have good cause to decline a representation.

Third, a lawyer has good cause to decline a court ordered representation if the client or case is so repugnant that it would actually impair the lawyer’s ability to effectively advocate on their behalf. For example, a lawyer may decline representing an alleged rapist when the victim is a close friend or relative.

Question 24

What are the three ways an attorney-client relationship can be formed? (Q)

Answer 24

The attorney-client relationship may begin intentionally by both parties, unintentionally when a lawyer fails to decline representation in a timely fashion and a client is negatively impacted, and when a court appoints a lawyer to a matter.

Question 25

What is the way intentional attorney-client relationships are formed? (Q)

Answer 25

A prospective client manifests his intent to retain a lawyer, the lawyer agrees, and the relationship is formed.

Question 26

What is the unintentional way an attorney-client relationship is formed? (Q)

Answer 26

This occurs when a prospective client manifests intent to retain a lawyer, the lawyer does not decline the representation, and the prospective client then relies on the representation to his detriment.

Question 27

What is the court appointment way an attorney-client relationship is formed? (Q)

Answer 27

This occurs when the court appoints a lawyer as counsel.

Question 28

What does model rule 1.2(a) discuss? (Q)

Answer 28

Under Model Rule of Professional Conduct 1.2(a), the client holds the ultimate authority to set the scope and goals of the representation. Model Rule 1.2(a) also prescribes certain instances when the lawyer must abide by the client’s decisions during the course of their representation: in civil matters, the lawyer must follow the client’s decision about whether to settle; and in criminal matters, the lawyer must follow the client’s decision about what plea to enter, whether to waive a jury trial, and whether the client will testify.

1.2 Authority

Question 29

Under what circumstances in model rule 1.2 does a lawyer have to defer to the client’s decision? (Q)

Answer 29

Model Rule 1.2(a) also prescribes certain instances when the lawyer must abide by the client’s decisions during the course of their representation: in civil matters, the lawyer must follow the client’s decision about whether to settle; and in criminal matters, the lawyer must follow the client’s decision about what plea to enter, whether to waive a jury trial, and whether the client will testify. The Rule states that in these four circumstances the lawyer may consult the client about these significant decisions, but the lawyer must ultimately defer to the client’s decision, even if the lawyer believes the decision does not meet the client’s stated goal.

Question 30

What is a summary of model rule 1.2(a)? (Q)

Answer 30

Model Rule 1.2(a) gives the client the ultimate authority to determine the scope of the attorney-client relationship. Lawyers are expected to “reasonably consult” with their clients throughout the representation to determine if the scope has changed, and to determine the means to reach the client’s goals.

Question 31

What is a summary of model rule 1.2(c)? (Q)

Answer 31

Model Rule 1.2(c) does give the lawyer the ability to limit the scope of the representation, but only when the limitation is reasonable under the circumstances and when the client gives informed consent to the limitation. In the ideal attorney-client relationship, the attorney gives deference to the client’s concerns about how to reach his goals, and the client gives deference to the lawyer’s expertise. However, in the case of disagreement, the Model Rules encourage lawyers to seek guidance in their local ethics rules and to have a consultation with the client. If no agreement can be reached about how to move forward in a matter, the lawyer may be able to withdraw or the client can terminate the lawyer.

Circumstances and scope

Question 32

What does model rule 1.4(a)(2) discuss? (Q)

Answer 32

Model Rule 1.4(a)(2) explicitly requires lawyers to “reasonably consult” with clients about their goals and about how to reach them.

Goals for this semester are 2 As

Question 33

What does model rule 1.14 discuss? (Q)

Answer 33

Model Rule 1.14 addresses what a lawyer should do when a client exhibits diminished capacity to make informed decisions about the legal representation.

Can you hear me george?

Question 34

What does model rule 1.2(d) discuss? (Q)

Answer 34

The lawyer in that situation is forbidden from encouraging or helping the client to pursue criminal or fraudulent acts. Model Rule 1.2(d) expressly states that a lawyer shall not “counsel” or assist” a client in conduct that the lawyer knows is criminal or fraudulent. This rule seems straightforward, but can actually get a little tricky in practice, in part because the Rules do not define “counsel” or “assist.”

Don’t help with bad stuff

Question 35

What does model rule 1.14(a) discuss? (Q)

Answer 35

When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. BE NORMAL

Question 36

What does model rule 1.14(b) discuss? (Q)

Answer 36

Model Rule 1.14(b) explains what to do when the situation is a bit more intense. If it appears the client is likely to face substantial physical, financial, or other harm because of his diminished capacity, and the client is not capable of adequately protecting his interests, then the lawyer may take the necessary action to protect the client. The Rules specifically say the lawyer may want to seek the advice of others who could protect the client, such as family members or close friends, or may seek “the appointment of a guardian ad litem, conservator or guardian.”

Question 37

What does model rule 1.5 discuss? (Q)

Answer 37

Model Rule of Professional Conduct 1.5 requires that a lawyer “shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”

No pay no thrive

Question 38

What are the eight fee factors the model rules take into consideration in 1.5? (Q)

Answer 38

First, Rule 1.5 considers the difficulty of the matter, and analyzes the time, labor, novelty, and skill required to handle it.

Second, the Rule considers the likelihood that the lawyer’s representation will prevent other clients from using his or her services.

Third, lawyers should consider the customary fee charged in the area for similar legal services.

Fourth, the lawyer should consider the amount involved in the matter and the results obtained. This means that a lawyer who successfully obtains a huge settlement for a client may be able to charge a higher rate than a lawyer who successfully gets a client out of a parking ticket.

Fifth, Rule 1.5 considers the time limitations imposed by either the client or the circumstances, so a lawyer may be justified in charging a higher rate for a tight turnaround on a project.

Sixth, lawyers may factor in the nature and length of their professional relationship with the client to set a reasonable rate. For example, a lawyer who has charged a set rate for a long-term client for many years may be unable to justify a sudden spike in rates, given the history of their relationship.

Seventh, the Rules consider the experience, reputation, and the ability of the lawyer performing the services.

Eighth, the Rules include whether the fee is a fixed fee, not dependent on the outcome, or whether it is contingent.

Question 39

What does model rule 1.5(b) discuss? (Q)

Answer 39

Model Rule 1.5(b) says that fixed fee agreements, or those that charge a sum certain or an hourly rate, should be communicated to the client “preferably in writing.” Contingent fees are a different matter, though, and are required to be reduced to writing.

B is preferably in writing

Question 40

What does model rule 1.5(c) discuss? (Q)

Answer 40

Model Rule 1.5(c) says that contingent fee agreements, which are those agreements where the lawyer’s rate is dependent on the outcome of the matter, must be in a writing that is signed by the client, and that explains how the fee is determined. This includes the percentage that the lawyer is due in the event of settlement, trial, or appeal; whether litigation or other expenses will be deducted from the client’s settlement or recovery; and whether the expenses are deducted before or after the contingent fee is calculated. Then, at the conclusion of a contingent fee matter, lawyers should provide their clients with a written accounting of the fee and how it was calculated.

1.5 contingent

Question 41

What does model rule 1.5(d)(1) discuss? (Q)

Answer 41

Model Rule 1.5(d)(1) states that lawyers may not work on contingency in domestic relations cases where their payment would be dependent on securing a divorce, or on the amount of alimony or support, or the settlement of property.

One D in something not domestic

Question 42

What does model rule 1.5(d)(2) discuss? (Q)

Answer 42

Model Rule 1.5(d)(2) says that lawyers may not work on contingency for defendants in criminal cases.

2 Ds in criminal defendant

Question 43

What does model rule 1.5(e) discuss? (Q)

Answer 43

Model Rule 1.5(e) explains that lawyers in different firms can share fees only when the division of the fee is either in proportion to the services provided, or when each lawyer agrees to share joint responsibility for the representation as a whole.

Split fe(e) soup

Question 44

What is a summary of model rule 1.5? (Q)

Answer 44

Model Rule 1.5 requires a lawyer’s fees to be reasonable in all circumstances. Whether a fee is reasonable may be analyzed using the eight factors listed in the Model Rules – including the difficulty of the matter, the lawyer’s skill and reputation, or a tight turnaround time – but that list is not exhaustive, and other factors may be relevant. Rule 1.5(d) requires that contingent fee agreements be in a detailed writing signed by a client, but contingency agreements are completely prohibited in certain domestic relations matters and when representing criminal defendants. Finally, Model Rule 1.5(e) requires lawyers from different firms who share fees to either share fees in proportion to their work, or agree to joint responsibility for the matter as a whole. All fee sharing between lawyers from different firms must be approved in writing by the client, and the total fee must also be reasonable.

Question 45

What does model rule 1.4 discuss? (Q)

Answer 45

Rule 1.4 provides a general framework for a lawyer’s obligations for communicating with the client and explaining the legal strategy and details of the case.

14 students in MC class?

Question 46

What is a summary of model rule 1.4? (Q)

Answer 46

Other communications with the client are held to a reasonableness standard, and really depend on the nature of the matter and the client’s reasonable expectations. Delaying communication with a client may be appropriate where disclosure would harm the client, but withholding information is never appropriate where it only serves to benefit the lawyer.

Question 47

What does model rule 1.4(a)(1) discuss? (Q)

Answer 47

Model Rule 1.4(a)(1) explains the four instances in which lawyers are required to communicate with their clients by pointing back to Model Rule 1.2(a). Thus, a lawyer must communicate with his client, and abide by the client’s decision, in four instances: in civil matters, whether to settle; and in criminal matters, what plea to enter, whether to waive a jury trial, and whether to testify. The Comments to Rule 1.4(a) note that a lawyer should “promptly consult” with the client on these issues and obtain the necessary directives and consent before moving forward.

Question 48

What does model rule 1.4(a)(2) discuss? (Q)

Answer 48

Under Model Rule 1.4(a)(2) a lawyer is expected to “reasonably” consult with a client regarding the client’s goals for the representation.

Question 49

What does model rule 1.4(a)(3) discuss? (Q)

Answer 49

Under Model Rule 1.4(a)(3), a lawyer is expected to keep the client “reasonably informed” about the status of the case, which means providing enough information that the client can effectively participate in the representation.

A person with 3 As is well informed

Question 50

What obligation does a lawyer have to explain the legal arguments and details of a case? (Q)

Answer 50

Comment 5 to Rule 1.4 allows significant flexibility here, and says that it really depends on the complexity of the case and the capability and desire of the client to know the details.

Question 51

What does comment 7 to rule 1.4 say? (Q)

Answer 51

Comment 7 to Rule 1.4, notes that delaying communication with a client may be appropriate where a client is likely to “react imprudently to an immediate communication.” Comment 7 provides an example of this: a lawyer may be justified in withholding a mental diagnosis from a client when the doctor making the diagnosis indicates that disclosure could harm the client. Second, the Comment notes that withholding information is never justified when the only reason is to serve the own lawyer’s interests or convenience. For example, a lawyer may not withhold the fact that he missed a significant filing deadline solely to protect his reputation. Finally, certain court rules or court orders may prohibit a lawyer from revealing information to a client. In these limited instances, withholding information is appropriate.

Question 52

What does model rule 1.16 discuss? (Q)

Answer 52

Model Rule 1.16(a) describes the three instances in which a lawyer is obligated to end the lawyer-client relationship.

End of the road, slick

Question 53

What is a summary of model rule 1.16? (Q)

Answer 53

Model Rule 1.16 provides three instances when a lawyer is required to end a lawyer-client relationship: when the client insists on engaging in illegal or fraudulent behavior; when the lawyer’s physical or mental condition materially impairs the lawyer’s ability; and when the client fires the lawyer. A lawyer has the option of terminating the relationship on various other grounds, including when the termination will not have a materially adverse effect on the client; when the client is engaging in repugnant behavior or behavior that the lawyer fundamentally disagrees with; or when it imposes an unreasonable financial burden on the lawyer. In all cases, the termination must be reasonable and the lawyer must take steps to mitigate any damage that might be caused by the termination. A lawyer would likely want to give a client reasonable notice of the termination, and give the client time to find a new lawyer.

Question 54

What does model rule 3.1 discuss? (Q)

Answer 54

Model Rule of Professional Conduct 3.1 prohibits lawyers from making frivolous claims or assertions in any proceeding.

Amendment 1

Question 55

What is a summary of model rule 3.3(a)? (Q)

Answer 55

Rule 3.3(a) prohibits lawyers from making false statements of fact or law in front of a tribunal, and from submitting false evidence. Rule 3.3(a) requires that the lawyer correct any material misstatements of fact or law, and should take reasonable remedial measures to address any false evidence. The lawyer is also obligated under Rule 3.3(a) to disclose any controlling law that is directly adverse to their position, if the opposing counsel fails to do so. As we discussed, this can put the lawyer in the uncomfortable position of supporting opposing counsel’s arguments, but it is an obligation of the Rules that hopes to aid the tribunal in making an informed, reasoned decision.

Judges hate me

Question 56

What is a summary of model rule 3.3(b)?

Answer 56

Rule 3.3(b) also requires a lawyer to take reasonable remedial measures if he knows that any person in the proceeding, including his own client, is engaging or intends to engage in criminal or fraudulent conduct related to the proceeding. This may include making noisy withdrawal and breaking confidentiality obligations.

33b Sherlock prevents fraud

Question 57

What is a summary of model rule 3.3(c)? (Q)

Answer 57

Rule 3.3(c) imposes these obligations of candor on the lawyer until the end of the proceeding, which is defined as either when the time for review has passed, or when the final judgment has been affirmed on appeal.

Closing candor

Question 58

What is a summary of model rule 3.5(a)? (Q)

Answer 58

A lawyer may never seek to improperly influence judges, jurors, or prospective jurors under Model Rule 3.5(a). Note that virtually every jurisdiction also has laws prohibiting this behavior, so the Model Rule simply imposes another layer of disciplinary consequences on lawyers for this behavior.

Always bribe the hive

Question 59

What is a summary of model rule 3.5(b)? (Q)

Answer 59

Ex parte communications, or communications made with a decision-maker without opposing counsel present, are generally prohibited under Model Rule 3.5(b), but may be allowed in narrow circumstances when a court or law permits them.

35bex party

Question 60

What is a summary of model rule 3.5(c)? (Q)

Answer 60

Model Rule 3.5(c) forbids lawyers from communicating with jurors after the conclusion of a proceeding when a court has prohibited it; when the juror has said they don’t want to communicate; or when the communication involves misrepresentation, coercion, duress, or harassment.

Can’t talk to Stacy’s mom until her dad is gone

Question 61

What is a summary of model rule 3.5(d)? (Q)

Answer 61

Under Model Rule 3.5(d) lawyers are forbidden from engaging in behavior that is intentionally disruptive to the tribunal.

Disruptive to the hive

Question 62

What is a summary of model rule 3.4? (Q)

Answer 62

Model Rule 3.4 requires lawyers to help keep an even playing field for opposing counsel. To achieve this, Model Rule 3.4(a) and (b) prohibits lawyers from obstructing access to evidence, and from destroying, altering, concealing, or falsifying evidence. And Model Rule 3.4(c) requires both sides in an adversarial proceeding to follow the rules of the tribunal, unless they are making an open challenge to the rule that they are disobeying.

Model Rule 3.4(d) prohibits lawyers from making frivolous discovery requests, and requires a reasonably diligent response to a proper discovery request. During trial, Model Rule 3.4(e) prohibits lawyers from alluding to irrelevant facts, and from making personal assertions or opinions about the case. And finally, Model Rule 3.4(f) prohibits lawyers from asking other people not to disclose relevant information unless the person is an employee, relative, or agent of the client and there will be no adverse effects to that person from failing to disclose the information.

Playing with more

Question 63

What is a summary of model rule 3.7? (Q)

Answer 63

A lawyer advocating for a client and then testifying on behalf of the client at the same trial can be confusing for the fact finder. Model Rule 3.7(a) recognizes this, and requires a lawyer who may be called as a necessary witness to withdraw from the case unless the testimony he will give is uncontested; the testimony is about legal services; or withdrawal from the case will cause substantial harm to the client. It is permissible for another lawyer from the lawyer’s same firm to testify as a witness as long as the testimony does not create any other prohibited conflicts of interest; Model Rule 3.7(b) does not impute the lawyer’s conflict of interest to his entire firm.

Lucky number slevin (Kansas city shuffle)

Question 64

What is a summary of model rule 1.7? (Q)

Answer 64

Model Rule 1.7(a) prohibits lawyers from representing more than one client where the clients have directly adverse interests, or where there is a significant risk that the representation will be materially limited because of the lawyer’s obligations to another or because of his personal interest. However, Rule 1.7(b) provides four criteria for lawyers to obtain a waiver of the conflict from clients and move ahead with the mutual representation. The lawyer must reasonably believe he can provide competent, diligent legal advice to all parties; the representation must not be prohibited by law; the clients must not be on opposite sides of the “V”; and the clients must all give their informed consent in writing.

17 is opposite of 71

Question 65

What is a summary of model rule 1.9? (Q)

Answer 65

Model Rule 1.9(a) explains that a lawyer should not take on a new representation with a client whose interests are materially adverse to a former client in the same or a substantially related matter, unless the lawyer gets written informed consent from the former client. Model Rule 1.9(b) states that a lawyer’s duties to a client travel with him; this is another way of saying that a lawyer at a new firm cannot pursue a case that is materially adverse to a client from his former firm, and where he will need to rely on confidential information from the former client. The lawyer can only move ahead with the representation after obtaining written informed consent from the former client.

Finally, Model Rule 1.9(c) forbids lawyers from using a former client’s confidential information to his advantage unless the information is already generally known, or ethics rules either require or permit disclosure. And more generally, lawyers should not disclose any of a former client’s information at all unless required or permitted to do so by the relevant ethics laws.

19 Jackie and Kristi

Question 66

What is a summary of model rule 1.8? (Q)

Answer 66

Lawyers must move cautiously when entering a business transaction with, or obtaining pecuniary interest against, a client. Model Rule 1.8(a) generally prohibits business transactions with clients on the grounds that the lawyer has the upper hand and could exploit the loyalty and trust built up during the representation by using it to his or her financial gain. However, Model Rule 1.8(a) provides three criteria for business transactions: the transaction must be on fair and reasonable terms disclosed to the client; the client must be advised to, and given the opportunity to, seek outside counsel for the matter; and the lawyer must obtain written informed consent to the basic terms of the deal and the lawyer’s role in it.

Question 67

What is a summary of the work product doctrine? (Q)

Answer 67

The work product doctrine protects evidence of a lawyer’s thought processes and preparation for trial from being disclosed to an opponent in litigation. If documents or other evidence, either tangible or intangible, are prepared by or for a lawyer in anticipation of litigation, then they may be exempt from disclosure.

A party may overcome the work product doctrine by showing that the evidence sought can only be obtained through discovery, and that it is indispensable for substantiating or refuting a claim in the litigation. Federal Rule of Civil Procedure 26(b)(3) contains work product protection for parties involved in federal litigation.

Question 68

What is a summary of model rule 1.6(a)? (Q)

Answer 68

Model Rule 1.6(a) requires a lawyer to keep all information related to a client’s representation confidential. This includes information that could reasonably lead to the disclosure of confidential information. A lawyer must get a client’s informed consent before disclosing confidential information, which means a lawyer must explain the scope of the disclosure and the risks and alternatives before the client can properly agree. Finally, the general rule of confidentiality is broader than attorney-client privilege and work product doctrine: it applies to the entire representation of a client, and not just those circumstances where a lawyer may have to provide evidence or testimony.

Question 69

What is a summary of model rule 1.6(b)? (Q)

Answer 69

A lawyer may choose (but is not obligated) to disclose confidential information when he or she reasonably believes that the disclosure is necessary to prevent death or substantial bodily injury; to prevent a crime or fraud that is reasonably certain to cause substantial injury, when it involves the lawyer’s services; and to lessen the substantial injury caused by a client’s crime, when the crime involved the lawyer’s services. A lawyer may also disclose confidential information about a client to inquire about compliance with ethics rules, when involved in a dispute with a client, or to comply with a court order. The lawyer must have a reasonable belief that disclosure is necessary under Rule 1.6(b).

Question 70

What does model rule 1.6(c) say? (Q)

Answer 70

MR 1.6(c) states that 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.

Question 71

What is a summary of model rule 3.1? (Q)

Answer 71

Rule 3.1 says that in any proceeding, a lawyer must have a nonfrivolous basis for bringing the proceeding, defending the proceeding, and asserting or disputing any issue. For simplicity, we’ll refer to these activities collectively as assertions. To rephrase the rule, then, a lawyer may not make frivolous assertions in any proceeding. An assertion is frivolous if the lawyer can’t make a good-faith argument on the merits under existing law, or if the lawyer can’t make a good-faith argument for changing existing law. A good-faith argument is an argument based on an understanding of the facts and the applicable law.

Question 72

What does model rule 1.13(f) state? (Q)

Answer 72

In this vein, Rule 1.13(f) provides as follows: if the organization’s lawyer knows, or reasonably should know, that the organization’s interests are adverse to those of a constituent with whom the lawyer is dealing, the lawyer must make clear to the constituent that the organization, not the constituent, is her client. Provided that the organization’s lawyer does so, Rule 1.13(g) allows the lawyer to represent the constituent, as long as this does not create a conflict of interest between the organization and constituent.

Question 73

What does model rule 1.13(a) state? (Q)

Answer 73

Rule 1.13(a) states that “a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” The Rules do not define “organization,” but Comment 1 to Rule 1.13 makes clear that the term covers all incorporated and unincorporated legal entities and associations, including corporations.