MPRE Flashcards
Fees need to be
Reasonable
(Lodestar test)
Lodestar Test Factors
- Time - explain fee up front, can’t change it.
- Novelty - new to you (lower) or new to everyone (higher)?
- Amount in Controversy - more risk, more fees
- Precluding Employment
Writing for fees
Not required, but must be communicated
Exception: Contingency fees
Must have a calculation model for fees and signed by client
Retainers
Lawyers must keep clients money separate
All unearned legal fees must be placed in an escrow or trust account and unearned fees must be returned.
Interests in client as a fee
Look for conflict of interest
-Terms must be in writing
-Terms must be fair and reasonable
-Lawyer must inform the client, in writing, of the prudence of
hiring independent counsel to review the agreement.
-Client must give informed consent
Fee Sharing With Other Lawyers
The referring attorney may receive a portion of the fee, so long as:
The overall fee is fair to the client
Fee sharing agreement is disclosed
Lawyer provides services or joint representation
Fee Sharing With Non-Lawyers
Legal fees can be shared only among lawyers
Duty of Confidentiality
All information learned relating to the representation must be kept in confidence.
Even if public, no client identity, and no observations. (Unless clients want you to)
Important: DoC is broader than AC Privilege
Attorney-Client Privilege
More limited than the DoC
The privilege shields information from the court
Limited, applies to:
-Testimonial communications
-Information given confidentially
-Information kept confidential
Presence of a third-party may destroy privilege
About words, not objects
Inadvertent disclosure and waiver
No waiver of privilege if:
Attorney took reasonable steps to prevent disclosure
Attorney took reasonable corrective steps after disclosure
Exceptions to attorney-client privilege
- Crime – Attorney cannot participate in an ongoing crime
- Dispute with the attorney (ie malpractice lawsuit)
Work-Product Doctrine
Protects documents prepared for use in connection with a client’s case, (e.g., strategy memo, observations about client, reports on witnesses, etc.).
Work product is not subject to discovery
Exceptions:
-Substantial need for the information
-Undue hardship to gather the information by other means
Court Compulsion
A court cannot order a lawyer to reveal information protected by attorney-client privilege
A court MAY order confidential information to be disclosed
As a lawyer: You must assert every non-frivolous claim you have to prevent disclosure.
Permissive Disclosures of Confidential Information (May)
- Client consents
- Implied by representation
- To prevent death or substantial bodily injury
- Financial injury –
A. To prevent clients future criminal act or fraud.
B. Lawyer believes necessary to prevent substantial financial harm for which the lawyers services are used
C. Or, to prevent, mitigate, or rectify: Substantial financial harm, Caused by a client’s completed criminal act or fraud; - Court ordered
- Conflict (lawsuit)
- Financial injury – (permissive disclosures)
A. To prevent clients future criminal act or fraud.
B. Lawyer believes necessary to prevent substantial financial harm for which the lawyers services are used
C. Or, to prevent, mitigate, or rectify:
(i)Substantial financial harm,
(ii)Caused by a client’s completed criminal act or fraud;
Duration of DoC
Forever
Education (“The Law Professor Exception”)
May disclose for educational purposes, so long as the client’s identity is not revealed, and the listener cannot determine who the client is
Prospective Clients
Entity representation (e.g., corporation)
o The entity is the client, but must communicate with a representative
o Must speak with Control group—representatives (managers, board of directors, etc.)
Communications from prospective clients
o Information must be held in confidence if the lawyer invited communications
o Screening is available
Electronically Stored Information (“The Cloud”)
- A lawyer is obligated to secure information to comply with the Rules
- Factors:
o Sensitivity;
o Cost; and
o Client consent.
Purposes of the Conflicts Rules
- Maintain duty of loyalty and independent professional judgment; and
- Preserve confidentiality.
Enforcement of Conflict Rules
Conflicts of interest may result in both:
o Litigation sanctions (e.g., disqualification from representation); and
o Disciplinary sanctions
Enforced by the trial courts
Basic Types of Conflicts
- Direct Adversity with Current Client (i.e representing both sides of same case)
- Material limitation on the Lawyer’s ability to represent the client
o Can be caused by another client, former client, third party, or the lawyer’s own interests
Waivable Conflicts
Requirements for waiver:
o Client’s informed consent, in writing
o The lawyer must have a reasonable belief that the representation will not adversely affect representation of another client; and
o All affected clients must waive
Former Clients
If a lawyer previously represented a client in a matter, the lawyer cannot represent another person in the same matter or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client,
o unless the former client gives informed consent, confirmed in writing.
What does “substantially related” mean? (former clients)
Objective test:
- What was the scope of the prior representation?
- Could the lawyer have learned information?
- Would that information be useful in the current litigation?
Personal Interest of Lawyer
NO:
- Business dealings or acquisition of an interest in client or client’s property
- Drafting a will or gift in which lawyer is the heir or donee (unless for a family member)
- Related lawyers on the other side
- Acquisition of story rights until the representation of client concludes (relates specifically to the lawyer giving their rights, not the client)
- Proprietary interest in litigation (champerty)
- No sex with clients (unless pre-existing sexual relationship, this is a personal disqualification and not contagious to the firm)
Proprietary interest in litigation (champerty) (personal interests)
Do not loan money to a client, or pay for their case
No advance to client except for court costs
Lawyer can pay court costs for an indigent client
Lawyer can advance court costs to any client; repayment can be contingent on outcome.
Lawyer as Witness
- A lawyer cannot take representation where the lawyer may be a witness.
- Exceptions:
-Uncontested issues
-Service value in the case
Imputed Disqualification
- Contagious conflicts
o If a lawyer is in conflict with representation of a client, no other lawyer in the firm may represent the client. The lawyer is contagious.
Exceptions
o Client consents, informed, and confirmed in writing
o The conflict is based upon the lawyer’s personal interest. (e.g., sex with clients).
- Incoming Lawyer
- Non-lawyers
o Nonprofessional employees (paralegals, secretaries, etc.) can also create conflicts.
o The same rules apply
Incoming Lawyer (Imputed disqualification)
Arises when a new lawyer is contagious with a conflict
a. Application
This rule only applies to the incoming lawyer
The incoming lawyer will not give the law firm a conflict as long as there is instant screening and the incoming lawyer receives no part of the fee
b. Screening
No information is passed between the incoming lawyer and the firm;
The lawyer is apportioned no part of the fee; and
The affected client must be afforded notice, but consent is not required.
Government Lawyers Conflicts
A former government lawyer who becomes associated with a firm
can create a conflict.
Requirements to deal with conflict:
o The lawyer is screened on the matter.
o The affected client must be notified.
Gives the client opportunity to monitor the screening
Job search
Job search Government Lawyers Conflicts
o Government lawyers, agency lawyers, arbitrators, mediators, and third-party neutrals cannot negotiate for employment with a party if that party is involved in a matter in which the lawyer participates
o Exception— law clerks can seek employment with parties before the
court, provided they tell the judge
Prospective Clients Conflict
Information learned from a prospective client can create a conflict. (ie husband tries to retain services and spills information, cant represent wife)
Is it contagious?
Can be avoided immediate screening of the lawyer who dealt with the prospective client
o Conflict exists if the attorney solicits information from a prospective client
o An unsolicited communication from a prospective client does not trigger this conflict.
Third-Party Interference
- The client is the client, and the third-party payor (e.g., insurance agency) is not the client.
- Three forms of impermissible interference with the attorney’s independent representation of a client:
1. Work control
2. Information control (demanding to see what’s going on)
3. Settlement control - A client can consent to these forms of improper influence.
- An agreement to eliminate or limit malpractice is not valid
Client is an organization (conflicts)
“Organization” includes corporations and other entities.
- Who is the client?
o The lawyer represents the organization, not its constituents.
o Joint representation of organization and its constituents is permissible. - Control group
o The principal managers of organization
o May have joint representation of this group - Bad behavior of organization
Bad behavior of organization
If a lawyer knows (actual knowledge) of a violation of law that
may be imputed to the organization and likely to result in substantial injury to the organization, the lawyer should take measures including referring the matter to the highest organizational authority.
Board control—the lawyer may have to go to the board.
o If the organization does not correct the matter, the lawyer may resign.
“Noisy withdrawal” is allowed (confidential material may be disclosed)
Professional Competence
Lawyers must be competent
Malpractice v. ethics violation
o Malpractice requires damage.
o Discipline does not require damage.
Malpractice
Legal liability
Conventional malpractice is coextensive with negligence
- Basic tort test—duty, breach, causation, damage
- The duty arises out of the attorney-client relationship.
Breach of fiduciary relationship (e.g., a conflict)
Breach of contract for failure of performance
- Damages are usually limited to recovering fees
Malpractice Burden of Proof
Malpractice: fiduciary, and contracts: preponderance of the evidence
Ethics violation: clear and convincing evidence
Violations of the MRPC do not set up a cause of action for malpractice
Violation of the MRPC may be evidence of a breach of duty
Duty to decline or withdraw
Arises if the lawyer is not competent or cannot become competent without unreasonable delay
Limits on Recovery for Malpractice
o A lawyer cannot contractually limit recovery.
o Can enter an agreement prospectively limiting the lawyer‘s malpractice liability only if the client is represented by
independent counsel
For settlements of existing or potential claims for malpractice liability with an unrepresented client or former client:
The client need only be
(i) advised in writing of the desirability of seeking independent legal counsel, and
(ii) given a reasonable opportunity to seek such advice.
Settlement with unrepresented clients
o A lawyer must tell the client when the lawyer has made an error.
Duties to Non-Clients
- Third-party beneficiaries owed a duty (ie nephew left out of will by lawyer accidentally)
- Unauthorized acts
Referrals/Outsourcing to Other Lawyers Outside Your Firm
- Must reasonably believe that the other lawyer will contribute
Other Tort Defenses for Attorneys
- Defamation defense—privilege when the publication is related to a proceeding in which the lawyer is counsel
- Malicious prosecution defense—probable cause for the action brought by the attorney
Crimes
Advice about crime is not criminal if the lawyer attempts to dissuade the client
Diligence
Lawyers must be diligent.
* If you cannot be diligent, you must withdraw
* Cannot delay for the sake of delay.
Frivolous claims
A lawyer may not assert or defend a claim that is frivolous absent a good-faith argument to extend the law.
Important—“frivolous” is subject to interpretation.
Reliance on a client’s factual assertion may be permissible under ethical rules.
FRCP 11 and its state cognates require “reasonable investigation” into the client’s facts.
o Development of facts may make an action frivolous later.
Don’t delay!
o Can ask for/consent to a reasonable extension
Candor to the Tribunal
- “Tribunal” includes administrative agencies as well as courts.
- A lawyer may not “knowingly” (actual knowledge):
o Make false statements as to law or fact;
o Fail to disclose controlling authority on the other side; or
o Offer evidence the lawyer “knows” to be false.
Possibly false evidence
A lawyer may refuse to offer evidence the lawyer “reasonably believes” is false.
Except: When the lawyer’s client is a criminal defendant, the MRPC do not permit a lawyer to refuse to offer the client’s testimony unless the lawyer knows the testimony will be false
Remedial Measures
- When a lawyer “knows” evidence submitted was false or, typically, when perjury has been committed or is about to be committed:
o Lawyer must remonstrate with the witness (i.e., attempt to dissuade) to correct the falsity;
o Lawyer may take the matter to the court and seek to withdraw;
o When withdrawal is denied (and it usually will be), the lawyer can present “trial by narrative”
Trial by narrative—the witness testifies without lawyer’s participation (i.e., no questions or objections).
- A lawyer has a duty to correct errors (false testimony, etc.).
o Does it last forever? It ends when the litigation is over.
Tampering
- A lawyer cannot tamper with evidence or witnesses. Must turnover serious evidence to police.
- No payment of witness except for the cost of coming to the proceedings
o Exception—expert witnesses can be paid.
o But—no contingency fees for experts.
“Ex Parte” Communications
- Generally, no “ex parte” communications by the lawyer
o Applies to pending and impending litigation - Persons with whom lawyer cannot communicate ex parte: Judges, jurors, the prospective venire (potential jurors)
o Might be permitted to speak to jurors after the trial (survey)
Regulated by local court rules
Typically requires judicial permission
Cannot talk to the juror about inadmissible evidence
Communications with Represented Persons
o A lawyer (or the lawyer’s agent) may not communicate with represented people.
o A lawyer must have knowledge of representation
o Once a lawyer knows a person is represented, the lawyer must deal with the attorney
Communications with Represented Entities
Presume that members of the control group of an entity are represented by the lawyer for the entity.
o Former employees are no longer represented by the entity’s attorney.
Admissions
o A lawyer cannot talk to a person who could make a statement that would be used as an admission.
Communications with Unrepresented Persons
A lawyer cannot mislead the unrepresented person.
o Special rule—undercover attorneys
Use of an undercover agent is permitted, particularly in criminal cases and in civil litigation, where information cannot be obtained by other means.
Inadvertent communication with Unrepresented persons
Lawyer must notify the sender
Permitted to read any inadvertent communication
Media Contact Rule
- Prejudice—lawyers cannot make statements to media that have a substantial likelihood of prejudicing the proceeding.
- Exceptions:
o To protect from other publicity
o General facts of the case and procedure (e.g., how litigation will proceed, scheduling, or warning to public)
NEVER:
Can make bad statements about witnesses
MAY:
Respond to media to protect client from publicity not initiated by the client or lawyer.
Role of a Lawyer: Candid Advisor/Third-Party Evaluation
o Client asks an attorney to evaluate something;
o The attorney’s evaluation will be given to the third party
Basic rule
o An attorney must give candid advice to a third party.
o An attorney must tell the client before communicating unfavorable information.
Role of a Lawyer: Neutrals (Mediator, Arbitrator, etc.)
- Neutral as to third parties, not to clients
Role of a Lawyer: Prosecutors
- Prosecutors are subject to a set of constitutionally mandated rules:
o Must have probable cause to bring a criminal action;
o Cannot take advantage of unrepresented persons;
o Must disclose exculpatory information;
o No subpoena of a lawyer in order to destroy attorney client privilege;
o Like other lawyers, restrictions against talking to the media; and
o Required to seek a remedy if new evidence is clear and convincing.
Role of a Lawyer: Safekeeping Property
- General rule—a lawyer must keep her own property separate from the client’s property.
Advertising
- All forms of communications are considered advertising.
Restrictions on advertising
- May not be false or misleading
- Unverifiable self-promotion (ex. greatest lawyer ever)
- Expertise and fields of practice
- Disclosure of location of offices
- Names of client (Advertisement can include the name of regularly represented client, provided lawyer has the client’s consent)
- Identification of advertiser (Any communication about a lawyer or firm must include the name and contact information of at least one attorney or law firm responsible for its content.)
- No implication of a partnership unless one really exists
Expertise and fields of practice restriction on advertising
Can be a “specialist”, but cannot call themselves a “certified specialist” unless:
(i) certified by an appropriate state authority or ABA-accredited org,
(ii) or name of the certifying organization is clearly identified)
Patent: If a lawyer is admitted to practice before the US Patent and Trademark Office, the lawyer can call herself a “Patent Attorney.”
Admiralty: If a lawyer is engaged in admiralty practice, the lawyer can call herself “Proctor in Admiralty,” or designate her practice “Admiralty”
Firm Names and Letterhead
- Can’t be false or misleading
o Applies to websites and social media as well
o Firm may be designated by names of all or some of its members, including deceased members.
o If a firm uses a trade name that includes a geographic name, the communication must include a statement that it is not a public legal aid organization. - Firm name cannot imply a connection with:
o Government agency;
o A deceased lawyer who was not a former member of the firm;
o A lawyer not associated with the firm;
o A non-lawyer; or
o A public or charitable legal services organization. - Firm cannot use the name of a lawyer holding public office
- Firms with offices in more than one jurisdiction may use the same name in each.
Real-time Direct Contact
Real-time, direct contact to solicit business is prohibited.
This includes in-person, on the telephone, and synchronous
electronic communication.
Does not include chat rooms, text messages, other communications that recipients may easily disregard.
Exceptions:
* Another lawyer
* Family, close personal, or prior business relationship
* Person who routinely uses the lawyer’s type of legal services
The prohibition is on the lawyer seeking pecuniary gain
Mail and non real-time electronic communications
Generally permitted, but:
Cannot involve coercion, duress, or harassment; and
Cannot be to someone who has said they don’t want to be solicited.
Constitutional issues with communications and direct contact
General mail should not be restricted
Note:
Florida Bar v. Went For It
* Florida enacted a 30-day restriction on contact with accident victims.
* The restriction was upheld as a reasonable restriction on advertising rights
BUT: NY ban on pop up ads is unconstitutional
Referrals/Endorsement
- Referral services are permitted.
o Watch for Internet-based client generators: E.g., “divorce.com”, may cross the line
- No payments for percentage of fees, but, ad rates are okay
Pro Bono
- Aspirational rule (i.e., not mandatory)—fifty hours of pro bono service per year
- Conflicts may arise between your pro bono and legal services work and your regular work.
o Special conflicts rules apply:
Conflicts rules do not apply unless the lawyer is aware of the conflict.
“Special Material Benefit Disclosure” rule—this is the situation where a decision in the pro bono matter will benefit one of lawyer’s other clients.
- A lawyer must disclose the existence of a conflict, but…
- The duty of confidentiality prevents disclosure of the client’s identity.
Limited Legal Services
- Potential tension between providing public with legal services and the lawyer’s possible liability for such services
- These services are nevertheless allowed.
Politics: Campaign contributions
o Solicitation of campaign contributions and participation in political work is permitted.
o No bribery, because of course not
o Cannot make contributions in exchange for an appointment or for favor in a lawsuit
o Applies to all political offices, not just judicial offices
Politics: Comments on candidate’s qualifications
o Not permitted to lie about candidate’s fitness for office
o NY Times v. Sullivan—the First Amendment protects speech against public figures.
Not defamation unless the speaker made the comment with “Actual Malice”—knowing falsity or reckless disregard for truth
Politics: Running for judge
o Permitted, subject to legal ethics as well as judicial ethics
JUDICIAL ETHICS
Interplay with Lawyer’s Ethics
* A lawyer may not induce a judge in the violation of judicial ethics.
Model Code of Judicial Conduct (CJC)
- Structure
o Canons = General principles
o Rules = specific rules
o Comments = suggestions
Judicial Integrity for Judges
- Judges must comply with the law.
o Unlike a lawyer, a judge must avoid the appearance of impropriety. - No abuse of office for gain
Impartiality and Diligence for Judges
- Judges must be diligent and impartial (i.e., no favoritism).
- Justice must be blind
Ex Parte Communications for Judges
- Generally prohibited
o The prohibition applies to judges as well as lawyers.
o Staff control—the judge is responsible for controlling her staff, particularly in the area of ex parte communications - Permitted ex parte contacts: scheduling, consultation with experts, communication with staff, settlement discussions (only with parties’ consent), etc.
- Judge as detective—a judge may not conduct an independent factual
finding of any matter before the court
Public Comment for Judges
- Judges should not make public comments on pending or impending cases.
- Applies to cases before any court if it might affect the outcome or fairness
Recusal Voluntary for a Judge
Judge: “I will not hear this case.”
o Arises when the judge’s impartiality is questioned
o Look for:
Money—some interest in the outcome
Relatives
Anger
Bias
o Exception—rule of necessity
If no judge can hear the case, someone has to do it.
Mandatory recusal for Judges
o Personal bias toward a party or lawyer;
o Personal knowledge of facts in the case;
o Judge and spouse’s relationship;
o Money involved for the judge or the judge’s family;
o Political contributions by one party generally are not grounds for recusal;
Exception—contribution in excess of what is legal
o Judicial conflict—judge has previously served as a:
A lawyer in the matter;
as a prior official; or
Prior judge in the matter before the court
Disclosure for Judges
o Must disclose to the litigants all information that is useful to judge whether recusal is appropriate
Waiver for Judges
o Recusal may be waived by the parties, even in cases of mandatory recusal.
o Exceptions—recusal based on personal bias and personal knowledge may not be waived.
Squealing by Judges
- Judges are obligated to report known violations of the rules by another lawyer that implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
- Impairment—if the judge has a reasonable belief that a lawyer is impaired, the judge must take appropriate action.
Note: The Rules treat knowledge and reasonable belief the same. A judge must disclose.
Extra-Judicial Activities for Judges
- Overall theme
o Judges cannot engage in activities that undermine the integrity of the judge or of the court. - Character witness
o A judge cannot be a voluntary character witness.
o A judge can be a character witness if summoned to testify. - Fiduciary
o No fiduciary appointments (e.g., trustee, executor)
o Exception—family matters - Practice of law
o A judge may not practice law.
o Exception—pro se practice - Outside business
o No outside business
o Exception—family business, so long as it does not interfere with
judicial work.
Gifts to Judges
- Non-reportable gifts
o Gifts to judges are permitted without reporting, if in the ordinary course. - Reportable gifts
o Large gifts are subject to reporting rules.
o Conventions—reimbursement for judge’s attendance at a convention
Recreation—the judge must report.
Education—the judge need not report. (thin line)
Politics for Judges
o A judge must stay out of politics—including endorsement of political candidates, even family members
Politics: Impartiality for judges
no pledges, promises, or commitments
o No commitments
o Candidate for judicial office (issues v. parties)
General comments about issues—allowed
Specific comments about parties—not allowed
Keep in mind! Judge comments might be the basis for recusal.
Judge running for judicial post in an election
o A judge can have a campaign committee.
o A judge can endorse candidates for the same office.
Judge running for elective office other than judgeship (e.g., legislature)
o A judge must quit the judgeship
Judge seeking appointment to non-elective office (e.g., federal court judge)
o A judge need not have to quit job.
Two primary forms of discipline of an attorney
Censure: Getting scolded
Privately—by the disciplinary authority
Publicly—by the Supreme Court
o Disbarment: loss of license to practice law
Long-term suspension (more common)
Non-disciplinary sanctions
Disqualification
Civil liability
Criminal liability
Tribunal
usually a court, but not always
Binding legal judgment
Writings (also informed consent/confirmed in writing)
Writing can be electronic.
o Informed consent; requires:
Adequate disclosure (i.e., communication), and
Consent
Confirmed in writing
* Consent may sometimes be oral.
Mental states—knowledge/belief/reason to know
o “Knowingly” (or “known,” or “knows”): Actual subjective knowledge
o “Belief” (or “believes”): Actual subjective belief
o “Reasonable” (or “reasonably”): What a reasonably prudent and competent lawyer would know/believe/do; an objective standard
Who Regulates Attorneys?
- State supreme courts
- Federal district courts
Regulation before Admission
- Education—graduation from ABA-accredited law school
- Character and fitness test (mostly concerned with criminal history; crimes of honesty and truth telling can be disqualifying)
- Residency—no residency requirement for admission (a constitutional issue)
- Truthfulness—no lying on the application for bar admission or law school admission
- Exam
Admissions issues will present in one of two ways:
o Permission to sit cases arise when an issue is discovered before the exam.
o Permission to enter cases arise after the exam.
Penalty: usually suspension
Various ways in which an admitted attorney can be subject to discipline:
- Violation of the rules
- Criminal act that touches on attorney’s honesty or fitness to practice
- Fraud or deceit even if not criminal
Fraud upon the court (“procedural fraud”)
lying to the court
Common law fraud (“conventional fraud”)—elements:
Making a statement;
Knowing it is false;
Intending to deceive;
Causing reasonable reliance; and
Resulting in damage.
For disciplinary purposes under the MRPC, it is not necessary that anyone relied upon or suffered damages from the misrepresentation.
Vicarious Liability of Partners within firms
a. Partners must make reasonable efforts to ensure that the
lawyers and non-professional employees comply with the Rules.
b. Compliance
Must have a system in place to ensure compliance
c. Non-professional employees
Applies to any non-lawyer who works with the law firm (employee, independent contractor, IT staff, etc.)
Vicarious Liability of Supervisory attorneys
Supervisory attorneys are liable for Rules violations of supervised attorneys and non-professionals if they:
1) Order,
2) Ratify, or
3) After learning of a violation, fail to take remedial action
o Responsibility for the conduct of non-professional employees is exactly the same as it is for lawyers
No Nuremburg defense
o A subordinate lawyer or staff person cannot defend by saying, “I was only following orders.”
o Only a reasonable order by a supervisor is a defense.
Out-of-State Conduct
- Out-of-state conduct can expose you to discipline at home.
Conflict of Laws—which law applies (other than the home state)?
Lawyer’s belief—the conduct must conform to the rules of the jurisdiction in which the lawyer reasonably believes his conduct will have a predominant effect.
“Snitch” Rule
A lawyer is required to report violations to disciplinary authorities.
o The reporting lawyer has actual knowledge of a substantial violation.
o The violation goes to lawyer’s substantial honesty, trustworthiness, and fitness to practice law
- Same obligation for bad judicial conduct
Out-of-State Lawyers
An out-of-state lawyer may practice in a jurisdiction on a temporary basis.
- Pro hac vice admission
o There must be a “vice” (dispute).
Note: Also applies to mediation and arbitration - Association with local counsel
o Local counsel must actually participate; she can’t be a mere silent partner - Working for a client from home jurisdiction
o The attorney must have home-state qualification.
Unauthorized Practice of Law
Practicing law: Any activity which develops facts or law
What is the result?
o Non-lawyers—injunction (e.g., “Stop doing that.”)
o Lawyers—Lose fees (e.g., the lawyer is not qualified or licensed)
Aiding and abetting
o A lawyer is prohibited from aiding and abetting the unauthorized practice of law by failing to supervise non-professionals
To avoid this, the lawyer:
Must have client contact; and
Must supervise and take responsibility for the work of the non-professional
Pro se litigants:
o Ghostwriting—a lawyer can give limited aid and assistance.
o Pro se litigants cannot be entities.
Fee-Division with Non-Lawyers
A lawyer CANNOT divide legal fees with non-lawyers
o Exceptions: Estates of decedent lawyer, retirement plans, etc.
o Legal fees are for legal work.
Real firms may split fees—the entity must be a professional corporation.
No non-lawyer can be in control of a lawyer’s judgment.
o No control by a third-party payor
Lawyer-owned related services (e.g., document retention or delivery services):
o Clients must know they are not dealing with a lawyer
Sale of Practice
The sale of a practice to other lawyers is permitted.
o The Lawyer:
Must stop the practice;
Give notice to the client; and
Sell the practice to a lawyer.
o May sell the whole practice or only one area
o Cannot increase the fees associated with the sale
Can the lawyer return to practice after sale? Yes, if:
o In-house counsel;
o Pro bono
o Different area of law;
o Change in circumstances (e.g., illness, financial difficulty).
Restrictions on Practice
- No covenants not to compete with other lawyers
- Exception—sale of practice
No Duty to Represent Clients
- Generally, a lawyer has no duty to represent a client.
o Exception—court appointments; however, they may be declined for cause.
o Sufficient causes—not being paid, violation of rule of professional responsibility, commission of a crime
Duty to Reject a Client
Duty is coextensive with the Rules for mandatory withdrawal.
Attorney-Client Relationship
Triggering event—the formation of an attorney-client relationship triggers civil and ethical responsibilities.
Requirements—no need for fee or agreement to create the relationship
Test for Attorney-Client Relationship
o The test is not contractual.
o The test is like a tort test
o Would a reasonable person determine that an attorney-client relationship has been formed?
Prevention of attorney-client relationship
o Just say, “No.”
o Make clear to the prospective client that you are not in an attorney-client relationship.
Limitation on scope of representation
o Lawyers and clients may limit the scope of representation.
The scope cannot be so limited as to create ineffective representation.
Communication with client
The lawyer must tell the client everything the client needs to know to make an informed decision about the case.
o Settlement offers must be communicated to the client.
o Exception—a prior agreement with client concerning a limitation (ie no settlements below a set amount)
Criminal prosecution and client decisions
Only the client can make the following decisions:
o Whether to testify;
o Whether to exercise the right to trial by jury; and
o Plea deals must be communicated to the client.
Client under a disability
example: Minority (underage), medical disability (mental disability, drug addiction)
Lawyer Duties:
Maintain an ordinary relationship;
Seek appointment of a guardian, if necessary; and
Permitted to reveal information as necessary to protect the client.
- You are allowed to take protective action.
Counseling on crime and fraud
Yes to legal consequences
No as how to commit crime
Mandatory withdrawal
coextensive with the attorney-client relationship
a. Violation of Rules of Professional Conduct
b. Attorney impairment
c. Discharge of attorney
Discharge of attorney (i.e., you get fired)
A client has an absolute right to fire an attorney.
* Cannot be modified by contract
* Cannot have a penalty provision such as liquidated damages or elevated fees
Client still owes fees due to the discharged attorney (unless discharged for cause
Withdrawal after court processes begun
Must get leave of court to withdraw; even if the withdraw is mandatory
Permissive Withdrawal
a. Harmless withdrawal (no harm to client even if they object)
Permissive Harmful withdrawal (may)
“Reasonable belief” the client is pursuing crime or fraud and the lawyer’s services were used in the client’s crime or fraud
Client’s action is repugnant to the attorney
Unreasonable financial burden
* Usually arises in the case of a court appointment
* Caution: A bad deal is not enough.
Client fails an obligation to the lawyer
* What Obligation? Not paying fees.
Good cause (e.g., illness or family emergency)
REMEMBER: When in the court process, an attorney must always
obtain court permission to withdraw.
After withdrawal or termination
Return the client’s property and unearned fees.
o If the client still owes a fee, the lawyer can have a retaining lien on the client’s property.
Should not harm the client
Passive lien—cannot sell the property; operates like collateral
Disbursement of funds (third-party dispute)
An attorney must hold disputed funds until the third party’s dispute is resolved.
