Model Rules Flashcards
Rule 8.1: Bar Admission and Disciplinary Matters
An applicant for bar admission, or a lawyer with bar admission application or disciplinary matter, shall not:
(a) Knowingly make a false statement of material fact; or
(b) Fail to disclose a fact necessary to correct a misapprehension; or
(c) Fail to respond to an admission or disciplinary body’s demand for information.
Rule 8.4 Misconduct
(a) It is professional misconduct for a lawyer to:
(1) Violate or attempt to violate the Rule of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.
(2) Commit a criminal act that reflects adversely on the lawyers’ honest, trustworthiness, or fitness as a lawyer in other respects.
(3) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(4) Engage in conduct that is prejudicial to the administration of justice.
Rule 8.3: Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of 8.4(b) or (c) shall inform the appropriate professional authority.
(c) The rule does not require disclosure of information: (1) protected by the attorney-client privilege; or (2) information gained by a lawyer or judge while participating in an approved lawyers’ assistance program.
Rule 8.5: Disciplinary Authority; Choice of Law
(b) In a disciplinary matter in Illinois, the rules of professional conduct to be applied should be as follows:
(1) For conduct in connection with a matter pending before a tribunal, the rules of the state where the tribunal sits…; and
(2) For any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.
Rule 1.8(h): Conflict of Interest - Malpractice
(h) A lawyer shall not:
(1) Make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) Settle a claim for malpractice with an unrepresented client or former client unless that person is advised in writing of the desirability of seeing and is given a reasonable opportunity to seek the advice of independent legal counsel.
Rule 1.2(c): Scope of Representation and Allocation
A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
Rule 1.2; Comment 6 in regards to scope of services that a lawyer has control of:
“The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client… A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.”
Rule 1.2; Comment 7 about limitations of services:
“Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances… Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Rule 1.2: General Rule about what lawyer and client have control over.
The clients make decisions regarding the objectives of the representation while the lawyer decides the means to accomplish the objectives.
Rule 1.5(1) & (2): Fees- General rule and factors that contribute to reasonableness of fees
(1) A lawyer shall not charge an unreasonable amount for fees or expenses.
(2) Factors considered in determining the reasonableness of a fee include:
a) Time and labor required, novelty and difficulty of the question, and the skill required to perform the service properly;
b) Likelihood accepting the employment will preclude other employment;
c) Fee customarily charged for similar services and location;
d) Amount involved and results obtained;
e) Time limitations imposed by client or circumstances;
f) Nature and length of the relationship with the client;
g) Experience, reputation, and ability of the lawyer;
h) Whether the fee is fixed or contingent.
Rule 1.5(c): Contingent fees (General rule and what is required of a contingent fee)
(1) A fee may be contingent on the outcome of the matter except in a matter in which a contingent fee is prohibited (divorce and criminal).
(2) A contingent fee agreement shall be:
a) In a writing signed by the client;
b) State the method by which the fee is to be determined, including the percentage or percentages going to the lawyer;
c) Identify litigation and other expenses to be deducted;
d) If the client will be responsible for expenses, win or lose;
e) Whether such expenses are to be deducted before or after the contingent fee is calculated.
(3) At the conclusion of the case, the lawyer shall provide the client a written statement stating the outcome of the case and, if there is a recovery, the amount to the client and the method of its determination.
Rule 1.15: Rules for Lawyers with their Clients Accounts
(1) Lawyer is responsible for the property and money of their client and it cannot co-mingle with the property or money of the attorney.
(a) A lawyer will handle more than one account:
(b) An account for the money to run the business;
(i) The client’s trust accounts and label it as such.
(ii) Do not need a separate account for each individual client, just must have a separate account from their own person account.
(3) Duty to notify the client as soon as possible whenever money or property comes in..
(4) Duty to disperse the money as soon as possible.
Rule 1.16: Discretionary Withdraw
(1) Lawyer may withdraw if accomplished without material adverse effect on the client.
(2) Lawyer may withdraw even if a material adverse effect results where:
(a) The client persists in a criminal or fraudulent course of action;
(b) The lawyers services were used in the past to perpetrate a fraud or crime;
(c) The client insists on taking action that the lawyer considers repugnant or has a fundamental disagreement;
(d) Client fails to fulfill his obligations after a warning (failure to pay fees);
(e) The representation will cause the lawyer unreasonable financial burden (Smith v. R.J. Reynolds; P.94)
Rule 1.16: Mandatory Withdrawal
(1) Violating a Rule of Professional Conduct or another law; or
(2) Lawyer’s physical or mental condition materially impairs the lawyers ability to represent the client; or
(3) The lawyer is discharged.
Rule 1.6(a) : Confidentiality of Information - When lawyer CANNOT reveal information:
(a) Lawyer cannot reveal information relating to a client’s representation unless:
(1) Informed Consent
(2) Disclosure impliedly authorized, or
(3) Disclosure permitted by (b) or required by (c) below.
Rule 1.6(b): When a lawyer MAY reveal confidential information :
(b) A lawyer may reveal information to:
(1) Prevent client from committing a crime;
(2) (Don’t focus here)Prevent client from committing a fraud reasonably certain to result in substantial injury to another’s finances or property in which the client used or is using the lawyer’s services;
(4) Obtain legal advice about compliance with the Rules;
(5) Establish a claim or defense for the lawyer in a controversy with the client, (e.g. collect fees, ARDC complaint).
Rule 1.6(c): When a lawyer SHALL reveal information:
(c) A lawyer shall reveal information relating to the representation to extent reasonably necessary to prevent reasonably certain death or substantial bodily harm
Rule 1.0(e): Informed Consent
“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
Rule 1.7(a): Concurrent Conflicts of Interest
(a) Lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict exists where:
(1) representation of one client will be directly adverse to another client; or
(2) There’s a significant risk that the representation of one client will be materially limited by the lawyer’s duty to another client, a former client or the lawyers personal interest…
Rule 1.7(b): When an attorney can still represent two adverse concurrent clients:
(b) Notwithstanding, a lawyer may represent a client if:
(1) Lawyer believes she can provide competent representation to each client;
(2) representation is not prohibited by law;
(3) Representation does not involve a claim by one client against another client in the same litigation; and
(Note: Professor View - Divorce is one claim against another claim. So it would violate this portion.
(4) Each client gives informed consent.
Rule 1.7; Comment 30: Common Representation privilege between two parties:
With regard to attorney-client privilege in common representation, the prevailing rule is that, as between them, the privilege generally does not attach. Hence, if litigation ensues, the privilege will not protect any such communications.
Rule 1.7: Comment 31; Duty of loyalty to two concurrent, adverse clients.
As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that information to the clients benefit.
Rule 1.7; Comment 6: Duty of loyalty to adverse client of current client.
“Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.”
Rule 1.8: Conflicts of Interest with a business transaction with a client
(a) A lawyer shall not enter into a business transaction with a client unless:
(1) The transaction is fair and reasonable;
(2) Terms are disclosed in writing and understandable language;
(3) Client informed in writing that he may seek advice of independent counsel… and given a reasonable opportunity to do so; and
(4) Client gives written, signed, informed consent to the transaction and whether the lawyer is representing the client in the transaction.
(c) A lawyer shall not:
(1) Solicit any substantial gift from a client
(i) Who is not a relative;
(ii) That includes a bequest in a will;
(2) Prepare an instrument giving the lawyer or lawyer’s relative a substantial gift unless lawyer or other donee is related to client.
Rule 1.8(b): Using information from a client.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
Rule 1.8(j): Sexual relations with a client
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.
Rule 1.8; Comment 19: Sexual relations with a member of an organization whom is a client
When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.
Rule 1.9: Duties to Former Clients
(a) A lawyer who formerly represented a client in a matter shall not later represent another person in the same or a substantially related matter in which the present client’s interests are materially adverse to those of the former client unless the former client gives informed consent.
(c) A lawyer who had formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) Use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally know; or
(2) Reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Rule 1.9; Comment 3: When are matters substantially related?
Matters are “substantially related” if they involve the same dispute or transaction or if there’s a substantial risk that confidential factual information as usually would be obtained in the prior representation would materially advance the subsequent client’s position.
Rule 1.7; Comment 6: Representation directly adverse to a current client
Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.
What is the general rule about imputed disqualification?
One lawyer in the firm has a conflict and is disqualified, then all lawyers in the firm are disqualified.
Rule 1.10: Imputed Conflicts of Interest of a lawyer within a firm:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when anyone of them practicing alone would be prohibited from doing so… unless the disqualification is based on personal interest and no significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
Rule 1.10(b): Imputed Conflicts of Interest of a lawyer who has left a firm:
(b) When a lawyer leaves a firm, the firm may represent a person with interests materially adverse to those of a client represented by the lawyer who left and not currently represented by the firm, unless:
(1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client, and
(2) Any lawyer remaining in the firm has information protected by the Rules that is material to the matter.
Rule 1.10(e); When one lawyer creates a conflict by joining the firm:
When Lawyer A joins a new firm, no lawyer in the new firm shall represent a person in a case in which Lawyer A is disqualified by Rule 1.9 unless Lawyer A is screened from the case and gets none of the fee.
Note: As long as the lawyer is properly screened, then no consent is necessary from the client.
Rule 1.0; Comment 9: Screening process suggestions:
- Timely screen;
- Written undertaking by screened lawyer to avoid communication;
- Written notice to firm employees forbidding communications;
- Denial of access to files and other materials about the case;
- Periodic reminders to everyone;
- No part of fee from case to lawyer.
Rule 1.8(f): Lawyer being paid by a third-party:
(f) Lawyer shall not accept compensation for representing a client from a third party unless:
(1) Client gives informed consent;
(2) No interference with the lawyer’s independence of professional judgment; and
(3) Information relating to the representation is protected as required by Rule 1.6.
Rule 1.11(a) & (b); Conflict of Interest for Government lawyers going from government work to private work:
(a)… A lawyer who has formerly served as a public officer or employee of the government:
(1) Is subject to Rule 1.9(c); and
(A) Rule 1.9(c): Cannot use any information learned in their practice unless the information is generally known.
(2) Can’t represent a client in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the government agency gives informed consent.
(b) When a lawyer is disqualified under (a), no lawyer in that firm may undertake or continue representation in such a matter unless:
(1) The disqualified lawyer is screened and gets no part of the fee; and
(2) Written notice is promptly given to the government agency.
Rule 1.11(d); Private practice attorneys going private to government Conflicts of Interests:
(d) A lawyer going from private practice to work for the government:
(1) Is subject to rules 1.7 and 1.9; and
(2) Shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or non-government employment, unless the government agency gives its consent.
Note: Screening not required, but is suggested.
