Model Rules Flashcards
Attorney Alpha currently represents Builder, a building contractor and the plaintiff in a suit to recover for breach of a contract to build a house. Builder also has pending before the zoning commission a petition to rezone property Builder owns. Builder is represented by Attorney Beta in the zoning matter. Neighbor, who owns property adjoining that of Builder, has asked Alpha to represent Neighbor in opposing Builder’s petition for rezoning. Neighbor knows that Alpha represents Builder in the contract action. Is it proper for Alpha to represent Neighbor in the zoning matter?
A. Yes, if there is no common issue of law or fact between the two matters.
B. Yes, because one matter is a judicial proceeding and the other is an administrative proceeding.
C. No, because Alpha is currently representing Builder in the contract action.
D. No, if there is a possibility that both matters will be appealed to the same court.
C [MR 1.7(a)(1) prohibits representing adverse parties even if they are adverse in different cases and the facts don’t indicate that the requirements for an exception under 1.7(b) have been met]
Rule 1.7
Rule 1.7: Conflict of Interest: Current Clients
A lawyer can’t represent a client if the representation involves a concurrent conflict of interest. 1.7(a)
A concurrent conflict of interest exists if the representation of one client will be materially adverse to another client, or there is a risk that one or more clients will be materially limited by the responsibilities to the other client or third person or by personal interest of the lawyer.
A lawyer can represent a client who presents a conflict if (1) the lawyer believes she will be able to provide competent and diligent representation to both clients, (2) the representation is not prohibited by law, (3) the representation doesn’t involve the assertion of a claim by one client against the other client; (4) and each affected client gives informed consent in writing 1.7(b) exceptions
Rule 1.8
Rule 1.8 Conflicts of Interest: Current Clients
Client loyalty (can’t use client info to client’s disadvantage later)
Can’t solicit gifts from clients (unless client is related)
Can’t negotiate for media rights to the lawyer’s account of the situation
Can’t settle without permission
Can’t accept compensation for representing a client from someone other than client (unless there is informed consent and no interference with the lawyer/client relationship)
NO sexual relations
IMPUTATIONS!!!! 1.8(k)
Rule 1.9
Rule 1.9: Duties to Former Clients
Can’t represent another person in related matter if their interests would be materially adverse to former client 1.9(a)
Can’t knowingly represent a person in the same matter in which a firm the lawyer used to be associated with had previously represented a client whose interests were adverse and the lawyer had acquired protected info material to the matter 1.9(b)(1) and (2)
Can’t use information relating to the representation to the disadvantage of the former client (without disclosure) unless that info has become generally known 1.9(c)
Rule 1.10
Rule 1.10: Imputation of Conflicts of Interest: General Rule
Can’t knowingly represent a client when any one of them practicing alone would be prohibited from doing so by 1.7 or 1.9 unless: (1) the disqualified lawyer is screened off, (2) written notice is given to affected former client; 1.10(a)(2); and the client gets a certification of compliance with the rules.
Can’t represent a client whose interests are materially adverse to a past client of an ex-lawyer if the matter is substantially related, or the other lawyers have private info on the old client.
Rule 1.11
Rule 1.11: Special Conflicts of Interest for Former and Current Government Officers and Employees
A lawyer who has formerly served as a public officer or employee is subject to Rule 1.9(c) and can’t represent a client in connection with a matter they participated in personally and substantially (unless agency gives informed consent confirmed in writing) 1.11(a)
If a lawyer is disqualified because of 1.11(a), no lawyer in a firm with which that lawyer is associated may knowingly continue representation in that matter unless the former gov lawyer is screened off and doesn’t get any part of the fee, and written notice is given to the government. 1.11(b)
A prior government employee can’t use information he received while working for the government in a matter where the materially could be used to the material disadvantage of that person. 1.11(c)
Rule 1.12
Rule 1.12: Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
A lawyer can’t represent anyone in connection with a matter in which they served as a judge or arbitrator, or law clerk to the arbitrator (unless all parties consent in writing) 1.12(a)
A lawyer can’t negotiate for employment with anyone who is involved as a party or lawyer for a party in a matter which the lawyer was participating as an arbitrator, mediator, etc. 1.12(b)
If a lawyer is disqualified because of (a), no lawyer in a firm where the lawyer works may knowingly undertake representation in the matter unless the disqualified lawyer is screened off and doesn’t receive any part of the fee; and written notice is given. 1.12(c)
Rule 1.18
Rule 1.18: Duties to Prospective Client
Even if the client doesn’t hire the lawyer, the lawyer can’t use information they learned about that prospective client except as Rule 1.9 would permit with respect to information of a former client. 1.18(b)
A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). 1.18(c)
Representation is permissible if both affected client and prospective client have given informed consent, confirmation in writing, or the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary, the disqualified lawyer is timely screened off / doesn’t get a fee, and written notice is given to prospective client
Rule 1.1
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.
Rule 1.2
Rule 1.2: Scope of Representation and Allocation of Authority Between Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule 2.3
Rule 2.3: Evaluation for Use by Third Persons
(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client.
(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
Rule 3.8
Rule 3.8: Special Responsibilities of a Prosecutor
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
Rule 4.1
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 to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.2
Rule 4.2: Communications by Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented 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 a court order.
Rule 4.3
Rule 4.3: Dealing with Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
