MPRE Flashcards
POWER TO REGULATE THE LEGAL PRO-
FESSION: State’s Highest Court
Adopts ethical rules
* Enforces through disciplinary commission or bar
association
POWER TO REGULATE THE LEGAL PRO-
FESSION: Congress and State Legislatures
Have enacted laws that govern certain aspects of law
practice (e.g., attorney-client privilege).
ADMISSION TO THE LEGAL PROFESSION: Admission Requirements
Must be rationally related to the practice of law, e.g.:
* Graduation from accredited law school
* Oath to uphold the constitution
* Good moral character
ADMISSION TO THE LEGAL PROFESSION: Effect of Criminal Acts and Other Misconduct
To result in rejection, misconduct must involve moral
turpitude:
* Crimes involving intentional dishonesty
* Crimes of violence
* Lying is always moral turpitude even if not crime
ADMISSION TO THE LEGAL PROFESSION: Requirements That Are NOT Rational
- Citizenship
- Residency
DUTY TO COOPERATE WITH
CHARACTER INVESTIGATIONS
- No knowingly false statements of material fact
- Respond to all requests for information
- Correct any misapprehensions
But NOT required to disclose confidential information.
The duty to cooperate with character investigations applies to both you and your character references.
WHAT CONSTITUTES PROFESSIONAL
MISCONDUCT?
Violating Rules of Professional Conduct
* Violating the RPC
* Attempting to violate the RPC
* Helping someone else violate the RPC
* Using someone else to violate the RPC
Committing Certain Crimes
Crimes relevant to honesty, trustworthiness, or fit-
ness.
Committing Certain Acts
Acts of dishonesty, fraud, deceit, or misrepresenta-
tion. You can get in trouble with the bar for committing certain acts like dishonesty, etc., even if those acts didn’t specifically relate to legal practice.
Conduct Prejudicial to Administration of Justice, which includes things like falsifying evidence.
Harassment or Discrimination in Connection
with Law Practice
* No harassment or discrimination based on race,
sex, religion, national origin, ethnicity, age, sexual
orientation, gender identity, marital status, or socio-
economic status
* Does not affect ability to accept, decline, or with-
draw from a case
* Trying to promote diversity is not a violation
DUTY TO REPORT MISCONDUCT OF
OTHERS: Mandatory Reporting of Violation
Violation raises substantial question as to lawyer’s
honesty, trustworthiness, or fitness to practice.
When Reporting Is Not Mandatory
* Question raised was not substantial
* Suspect violation, but don’t know
You MAY report a lawyer for any SUSPECTED violation.
DUTY TO REPORT MISCONDUCT OF
OTHERS: Exceptions to Mandatory Reporting
- Violation of duty of confidentiality to a client
- Learned of violation in lawyer’s assistance pro-
gram
DISCIPLINARY AUTHORITY
- Any state where lawyer is admitted
- Any state where lawyer provided or offered ser-
vices
UNAUTHORIZED PRACTICE OF LAW
Unauthorized practice = practicing without a license.
Subject to discipline for engaging in unauthorized
practice or assisting someone else in unauthorized
practice.
what counts as the practice of law?
- Appearing at judicial proceeding (in court and depositions)
- Drafting documents (employees can work on them, but aren’t ultimately responsible for them)
- Negotiating settlements
- Giving legal advice
What doesn’t count as the practice of law?
- Interviewing people
- Filling in forms
- Preparing tax returns
Appearing pro se is NOT unauthorized practice! A
lawyer can help someone do that.
Methods of Temporary Out-of-State Practice
- Associate with locally licensed attorney
- Admission pro hac vice (“for this matter only.” If you’re not admitted yet, but reasonably expect you will be, you can do some preliminary stuff.)
- Mediation or arbitration
- Matter reasonably related to home state practice (EX: Real estate lawyers with clients buying out of state. )
Types of lawyers that can engage in Permanent Out-of-State Practice
- In-house counsel and government lawyer can en-
gage in non-litigation practice across state lines - Lawyers in certain restricted fields are specifically
authorized by law to practice in other states
EX: Patent prosecution
Duty to Prevent Ethical Violations
- Partners and managers must take reasonable
measures to ensure compliance with RPC - Supervisory lawyers have same duty with respect
to subordinates, even if they aren’t partners/managers
Vicarious Responsibility
- Ordered or ratified misconduct
- Failed to avoid or mitigate consequences of viola-
tion (Learned about it, could’ve mitigated, and didn’t)
Partners, managers, and supervisors have the same
duties as above with respect to nonlawyers working
on client matters (both inside and outside the firm).
RESPONSIBILITIES OF A SUBORDINATE
LAWYER
Acting on orders of another lawyer does not excuse
misconduct unless it was a reasonable resolution of
an arguable question of professional duty.
Borderline cases
PROFESSIONAL INDEPENDENCE
- No partnerships with nonlawyers if any partnership
activities involve practice of law - No nonlawyer control or ownership interest in firm
- No fee splitting with nonlawyers (with limited ex-
ceptions below)
When Fee Splitting with Nonlawyer Permitted
- Death benefits to lawyer’s estate
- Funds to purchase practice from deceased, dis-
abled, or disappeared lawyer - Bonus plans and regular salaries (Still can’t give a non-lawyer a percent of legal fees)
- Court-awarded legal fees to nonprofit that retained
or recommended lawyer
RESTRICTIONS ON RIGHT TO PRACTICE
LAW
- Law firm-related agreements can’t restrict right to
practice when relationship ends, except for retire-
ment benefit agreements - Settlement agreements for clients can’t restrict
right to practice (Can be disciplined as the lawyer agreeing to it. )
SELLING AND PURCHASING A LAW
PRACTICE: Seller’s Duties
Seller’s Duties
* Sell entire practice or practice area (you can’t just sell a few cases)
* Written notice to clients that includes notice of
sale, right to obtain other counsel or take pos-
session of their files, and the fact that consent to
transfer is presumed after 90 days (if you can’t reach your client, need a court order)
* Generally cannot continue private practice in local
area (unless changed circumstances, like losing election)
SELLING AND PURCHASING A LAW
PRACTICE: Buyer’s Duties
Must honor existing fee arrangements.
RESPONSIBILITIES FOR LAW-RELATED
SERVICES
Lawyers can provide law-related services alongside
legal services (EX: Providing tax returns)
When RPC Apply to Law-Related Services
* When services are not distinct from legal services
* When lawyer owns or controls entity providing
services and does not take reasonable steps to
ensure recipients understand that protections of
attorney-client relationship don’t apply
FORMATION OF attorney-client RELATIONSHIP
Lawyer and client agreement
* Implied assent and reasonable reliance (If client reasonably believes you represent them)
* Court appointment
Types of Fees
- Hourly fee
- Flat fee
- Contingency fee
- Can be in the form of non-monetary property
Fee Formalities
Written fee agreement required for contingent
fees
* Written fee agreement preferred for all other fees
Must communicate fee before or within reasonable time after representation. Includes changes. Exemption for routine representation of a regular client.
All Fees Must Be ____-
Reasonable. Type of fee must be reasonable. Shouldn’t do contingent fee for 2-hour deal.
Many factors considered, including:
* Time and labor
* Complexity
* Nature of relationship
* Fixed or contingent fee
If client pays an advance on fees, it’s not lawyer’s property until EARNED. Unearned fees are returned.
Retainers are more like reservation fees. Belong to lawyer and don’t need to be returned. Lawyer might call something a “retainer” when it is really an advance.
When Contingent Fees Not Allowed
Criminal cases
* Domestic relations cases (but allowed in collec-
tions cases) (Different because you aren’t negotiating the alimony/fee amount.)
Formalities for Contingent Fee Agreements
Must be in writing and signed by the client, and must
disclose:
* Who is paying expenses
* How fee will be calculated
* Which expenses will be deducted and when
Tell them what expenses they must pay even if they lose.
Must also provide written statement at case conclu-
sion.
Fee Splitting with Lawyers Within Firm—Allowed
Lawyer can share fees with current lawyers in their
firm, retired members of their firm, and former firm
members with pending cases.
Fee Splitting with Lawyer from Different Firm—
Requirements
Classic “referral fees” (with no work) aren’t allowed.
* Both lawyers must be involved or responsible
Option 1: Split proportionate to services performed
by each
Option 2: Each assumes joint responsibility and
split the fee any way they like (joint responsibility ethically AND financially)
Client consent to arrangement and shares, con-
firmed in writing
* Total fee must be reasonable
SCOPE OF REPRESENTATION AND
DECISION-MAKING AUTHORITY: Representation
- Client generally decides scope, but lawyer can limit
- Can’t advise or help to do something illegal or
fraudulent, but you can tell them consequences
SCOPE OF REPRESENTATION AND
DECISION-MAKING AUTHORITY: Client’s Decision-Making
- Civil Cases: Whether to settle
- Criminal Cases: What plea to enter, whether to
waive a jury trial, whether client will testify - All Cases: Whether to appeal
SCOPE OF REPRESENTATION AND
DECISION-MAKING AUTHORITY: Lawyer’s Decisions
Lawyer generally makes strategic decisions, but must
consult with client about how the work is done. (must consult especially when costs are involved)
LAWYER’S AUTHORITY TO BIND CLIENT
Lawyer’s actions will bind client when lawyer has actu-
al or apparent authority.
Actual authority: Communicated by client to lawyer
expressly or impliedly.
Apparent authority: Third party believes lawyer has
authority based on client’s actions.
Legally, client will be bound if you had apparent authority. can sue you, but still bound.
You have a duty to inform 3Ps when your authority ends.
VULNERABLE CLIENTS
- Maintain normal relationship to the extent possible
- If client at risk of substantial harm, can take protec-
tive action (substantial financial or physical harm) - When taking protective action, lawyer impliedly
authorized to disclose client’s confidential infor-
mation to the extent necessary to protect client’s
interests (but, general duty of confidentiality still applies.)
COMMUNICATING WITH THE CLIENT: Required Communication with Client
- Case status updates
- Game plan
- Response to reasonable requests for info
- Anything that requires informed consent
If client asks you to do something unethical, must explain why you can’t.
COMMUNICATING WITH THE CLIENT: Settlement and Plea Offers
Must promptly inform client of settlement and plea
bargain offers unless client has expressly authorized
acceptance or rejection of certain offers.
TERMINATION OF REPRESENTATION: Must Decline or Withdraw
- Physical or mental condition materially impairs abil-
ity to represent client - Representation requires violation of RPC (like assisting in crime/fraud)
- Fired by client (can be fired for any reason)
Client merely suggesting something unethical doesn’t mean you have to withdraw. Withdraw only if client demands unethical.
TERMINATION OF REPRESENTATION: Permissive Withdrawal
- Any reason if no material adverse effect (on the client.)
- Reasonable belief client doing something criminal
or fraudulent involving lawyer’s services - Client used lawyer’s services in past crime or fraud
- Client’s actions repugnant (like when you strongly morally disagree with client)
- Client makes representation unreasonably difficult (lies, doesn’t answer, etc.)
- Client hasn’t paid and has been warned
- Unreasonable financial burden
- Other good cause
sometimes you need court permission, like if you’re court appointed.
POST-TERMINATION ISSUES
- Reasonable notice to client
- Refund advance payments if not earned (you’re entitled to reasonable fee for work you did.)
- Return client’s file unless permitted by law to retain (You can keep the files through a lien if law allows it.)
ATTORNEY-CLIENT PRIVILEGE VS. DUTY
OF CONFIDENTIALITY
Attorney-Client Privilege
* Communications only
* Applies only to disclosures in proceedings
Duty of Confidentiality
* All information relating to representation
* Applies to disclosures in any setting
Both apply to initial consultations. Both apply even after the end of representation or client’s death.
SUMMARY OF ATTORNEY-CLIENT
PRIVILEGE: Definitions
Attorney: Any person the client consults to obtain
legal assistance. (Includes anyone the client believes is a lawyer.)
Client: Anyone seeking lawyer’s legal services. (Even if you don’t end up representing them.)
Agents: Includes support staff, someone else brought
in to assist with the matter, and someone who’s there
to help client communicate.
SUMMARY OF ATTORNEY-CLIENT
PRIVILEGE: Communication
Communication: Information passed between lawyer
and client for the purpose of obtaining legal assis-
tance for the client.
* Does NOT cover communications not made for
legal assistance
* Does NOT cover pre-existing documents or re-
cords
Privilege does not cover basic information.
SUMMARY OF ATTORNEY-CLIENT
PRIVILEGE: Confidential
Reasonable belief that outsiders will not
learn the contents of the communication.
Eavesdropper—communication generally remains
privileged
SUMMARY OF ATTORNEY-CLIENT
PRIVILEGE: Who holds privilege
Client holds the privilege and
decides to claim or waive it, but lawyer must claim on
client’s behalf in client’s absence.
SUMMARY OF ATTORNEY-CLIENT
PRIVILEGE: Waiver of privilege
Attorney, agent, or client can
waive privilege by failing to object, or disclosing to
third party.
SUMMARY OF ATTORNEY-CLIENT
PRIVILEGE: Major exceptions to privilege
- Aid in future crime or fraud
- Self-protection
- Litigation between former joint clients
- Competency or intent of deceased client
SUMMARY OF WORK-PRODUCT
DOCTRINE
Anything made in anticipation of litigation generally
isn’t discoverable UNLESS opponent shows substan-
tial need and undue hardship (but even in that case,
mental impressions or opinions don’t need to be dis-
closed).
DUTY OF CONFIDENTIALITY
- Broader than privilege
- Third party’s knowledge does not affect duty (Info remains confidential even if 3Ps know about it. )
- Information need not come from client
- Cannot disclose to anyone
Can ask for advice and keep client secret IF there is no reasonable likelihood that they’ll figure out who the client is.
Informed Consent and Implied Authority: Can disclose with client consent. Authority to disclose may be implied if disclosure is
in client’s interests. Can share info with anyone at your firm.
EXCEPTIONS TO DUTY OF
CONFIDENTIALITY
These exceptions are all permissive, not mandatory.
Can disclose if necessary to:
Prevent death or substantial bodily harm
* Prevent/rectify substantial financial injury to anoth-
er if services used in furtherance
* Defend self in dispute concerning lawyer’s conduct
* Obtain legal ethics advice
* Detect and resolve conflicts of interest due to
change of employment, merger, or sale of practice (Can only disclose (minor stuff) after substantive decisions)
* Comply with court order or law
Note: Duty of candor to tribunal > duty of confidential-
ity.
ACTING COMPETENTLY TO PRESERVE
CONFIDENTIALITY
Must safeguard confidential information by making
reasonable efforts to prevent disclosure or access.
Be careful with the internet.
Conflicts can result in
discipline, disqualification from
the case, and even malpractice liability.
RULE OF IMPUTATION
Conflicts are imputed to everyone at firm, except:
* Conflict uniquely personal to lawyer
* Certain conflicts based on past work of lawyer
screened from case
Conflicts based on Lawyer A’s past work with can be solved by screening Lawyer A from the matter at the current firm.
GENERAL CONFLICTS WITH CURRENT
CLIENTS
Rule
Can’t represent client if:
* Representation will be directly adverse to another
client (Even if the two matters are unrelated), or
* Significant risk that representation will be materi-
ally limited by another interest
Requirements for Waiving General Conflicts
- Reasonable belief can represent each competent-
ly and diligently - Informed consent, confirmed in writing from each
affected client
Note: Being on opposite sides of the same litigation →
unwaivable.
Can waive both “direct adversity” and “material limitation” conflicts, but not when representing two sides of a case.
Confirmed doesn’t need to mean “signed by client.” It can mean a CYA email, but it needs to be sent to the client.
Direct Adversity Examples
Clients on opposite sides of same matter
Representing client’s opponent in another matter (against the first client)
Cross-examining current client in another matter
General Conflicts: Material Limitation
When representation will be materially limited by:
* Lawyer’s responsibilities to different client, former
client, or third person (EX: If one client’s case will establish a precedent that will hurt another.)
* Lawyer’s personal interests
General Conflicts: Material Limitation: Representing Co-Parties in a Case
In criminal cases, the risk of conflict is high and joint
representation isn’t advisable.
In civil cases, the conflict can usually be addressed:
* Must reasonably believe can represent all par-
ties well (Consider whether their interests are aligned.)
* Must explain consequences (like no privilege if they sue each other later)
* Must get informed consent
* Must re-address conflict if potential conflict
becomes real
* Must withdraw if reasonable lawyer would ad-
vise any client against consent
* Must get consent of dropped clients if continu-
ing to represent any co-parties
General Conflicts: Material Limitation: Lawyer’s Personal Interests
Representation may continue with client con-
sent
* Uniquely personal conflict (e.g., family member
is opposing counsel) is not imputed to firm
General Conflicts: Material Limitation: Lawyer’s Duties to Former Clients and Third Parties
Representation may be limited:
* Where lawyer owes a duty of confidentiality to
a former client
* Where lawyer is corporate director
* When lawyer acts as fiduciary
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Misuse of Client’s Confidential Information
Must not use client’s information against them without
informed consent.
Exceptions: (1) Client gives informed consent (doesn’t need to be in writing)
(2) if a confidentiality exception applies
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Business Transactions with Clients
- Transaction must be fair and reasonable to client
- Lawyer must disclose all terms to client in writing,
in a way the client understands - Lawyer must advise client in writing to get inde-
pendent counsel - Client must give informed consent in a signed
writing
Doesn’t apply to normal services offered to the public like a store.
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Acquiring an Interest in the Subject Matter of
Litigation
No proprietary interest in cause of action or subject
matter of litigation, except:
* Contingent fees
* Lien on client’s recovery (if authorized by law)
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Gifts from Clients
A lawyer cannot:
* Solicit substantial gift from client unless relative (Can receive a gift, but can’t solicit.)
* Prepare instrument giving lawyer or relative sub-
stantial gift unless donee related to client
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Literary or Media Rights
Cannot have interest in book, movie, or other por-
trayal during representation (unless the media isn’t really about/related to the matter)
* Lawyer can have interest in media rights when
case is completely over
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Financial Assistance to Client in Litigation
- No financial help to client in connection with pend-
ing or contemplated litigation - Cannot guarantee loan from someone else to
client
Exceptions - May advance court costs and expenses
- May pay court costs and expenses for indigent
client - When representing indigent client pro bono,
may give client modest gifts for basic living
expenses
If they’re gifts, can’t reimburse.
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Aggregate Settlement Agreements
- Fully explain the claims and what everyone’s get-
ting - Get informed consent from each client in a signed
writing
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Third Party Paying for Representation
- Client must give informed consent
- Third party cannot interfere with relationship
- Cannot reveal client’s confidential information
SPECIFIC CONFLICTS WITH CURRENT
CLIENTS: Sexual Relations with Clients
- Preexisting sexual relationship generally OK
- Subject to discipline if sexual relationship follows
attorney-client relationship - Conflict not imputed to the firm
For companies, you can’t date the person you deal with for legal matters. But, another employee is fine.
FORMER CLIENT CONFLICTS: Ongoing Duty of Confidentiality
Can’t reveal confidential information or use it to former
client’s disadvantage without consent, unless informa-
tion has become generally known.
a lawyer who uses the confidential information for her own pecuniary gain other than in the practice of law may be subject to civil liability
FORMER CLIENT CONFLICTS: Opposing Former Clients
Cannot represent new client against former client if
matter is same or substantially related to former cli-
ent’s matter, unless former client consents.
Meaning of “Substantially Related”
* Same transaction/legal dispute, OR
* Substantial risk confidential information would
materially advance new client’s position
FORMER CLIENT CONFLICTS: Former Firm’s Client
Cannot work on opposite side if actually acquired con-
fidential information about the matter while at former
firm.
UNLESS FORMER CLIENT CONSENTS
FORMER CLIENT CONFLICTS: Former Client Conflicts—Disqualification of
Lawyer’s New Firm
If incoming lawyer has conflict, firm can screen the
disqualified lawyer:
* No sharing of fees
* No access to case files
Notice (not consent) to former client with disclosures about pro-
cedures
* Updates to former client
FORMER CLIENT CONFLICTS: Former Client Conflicts—Disqualification of
Lawyer’s Old Firm
When client leaves, firm disqualified from represent-
ing other side in same or substantially related matter
if even one lawyer remaining at firm has confidential
information about the case, unless former client con-
sents.
PROSPECTIVE CLIENT CONFLICTS
Prospective clients are those who had a reasonable expectation of representation
No adverse representation in same or substantial-
ly related matter if confidential information would
be significantly harmful to prospective client (UNLESS PROSPECTIVE CLIENT CONSENTS)
* Conflict imputed to firm but can be cured with
screening
GOVERNMENT CONFLICTS: Government → Private Practice
Cannot represent private client without government
agency’s consent if:
* Same “matter” (must involve specific facts and
parties)
* Lawyer worked personally and substantially on
matter while in government
* Conflict imputed to firm but cured with screening
UNLESS GOVERNMENT AGENCY CONSENTS
GOVERNMENT CONFLICTS: Confidential Government Information
If lawyer acquired confidential government information
about a person during government employment, can’t
represent private client against them later.
GOVERNMENT CONFLICTS: Private Practice → Government
Normal conflict rules, plus:
* Cannot take part in any matter personally and
substantially involved in while in private practice,
unless government agency consents
FORMER JUDGE OR THIRD-PARTY
NEUTRAL
Cannot represent client in matter lawyer was per-
sonally and substantially involved in as a judicial
actor or third-party neutral, or as a law clerk, unless
all parties to the proceeding consent
* Conflict imputed to firm but cured by screening,
notice to all parties, and notice to the affected
tribunal
GOVERNMENT EMPLOYEE, JUDGE, OR
THIRD-PARTY NEUTRAL NEGOTIATING
FOR EMPLOYMENT
Government employee, judge, or third-party neu-
tral cannot negotiate for private employment with
any party in a matter they are personally or sub-
stantially involved with
* Exception for law clerks who give advance notice
to judge
DUTY OF COMPETENCE
Must act with the knowledge, skill, thoroughness, and
preparation necessary to do the work.
Avoiding a Competence Problem
Associate (get help)
* Learn it in time
* Emergency (can help during emergency, even if not competent, but only for a short time)
DUTY OF DILIGENCE
Must act with reasonable diligence and promptness.
Diligence is breached only if your conduct prejudiced (hurt) your client
CIVIL LIABILITY TO CLIENT
Negligence
* Duty of care
* Breach of duty
* Causation
* Damages
Duty of Care
* Competence and diligence exercised by attor-
neys in similar circumstances
* Specialist held to higher standard (if you hold yourself out to your client as a specialist)
Examples of Breach
* Missing deadlines
* Failure to send to specialist
* Bad advice
Note: No breach if judgment was well-informed and
reasonable.
ethical violations are evidence of failing to meet standard of care. But not conclusive.
Causation
* But for malpractice, client would have won
* But for malpractice, client would not have had
to pay a large judgment
CIVIL LIABILITY TO NON-CLIENTS
Duty of care owed to:
* Prospective clients given legal advice
* Those intended to benefit from legal services
* Those invited to rely on opinion or legal services
LAW FIRM’S VICARIOUS LIABILITY
including non-lawyer employees
Firm is vicariously liable for damages caused by some-
one at firm if:
* Action was in ordinary course of business, or
* Person was authorized to act
In a general partnership, all partners are jointly and
severally liable for firm obligations (doesn’t usually apply to LLCs or LLPs)
SETTLING MALPRACTICE CLAIMS
Before settling claim or potential claim with current or
unrepresented former client, lawyer must:
Advise them in writing to obtain independent
counsel
* Give them reasonable opportunity to do so
PROSPECTIVELY LIMITING
MALPRACTICE LIABILITY
Cannot make agreement with client saying:
* They can’t sue the lawyer
* Lawyer has no responsibility for work
* Lawyer is liable only to certain amount
UNLESS client is independently represented.
MERITORIOUS CLAIMS AND
CONTENTIONS
Lawyer cannot:
* Bring frivolous claim
* Assert frivolous defense
* Take frivolous position
Meaning of Frivolous
* No good faith argument under current law, AND
* No good faith argument for changing law
Exception
When representing criminal defendant or one who
could be jailed, can make prosecutor prove every
element.
EXPEDITING LITIGATION
- Must make reasonable efforts to expedite litigation
consistent with client’s legitimate interests - Financial benefit is not legitimate interest to delay litigation
CANDOR TO THE TRIBUNAL:
Honesty when advocating before an official or body
that issues binding legal judgment.
Doesn’t apply to mediation
CANDOR TO THE TRIBUNAL: Candor Regarding Law
Cannot knowingly make false statements of law
Must correct unintentional, material false state-
ments
* Must disclose adverse controlling law if opponent
fails to
CANDOR TO THE TRIBUNAL: Candor Regarding Facts
- Cannot knowingly make false statements of fact
- Must correct unintentional, material false state-
ments - No duty to volunteer facts (except in ex parte pro-
ceedings)
Doesn’t apply to pleadings and other court documents
CANDOR TO THE TRIBUNAL: False Evidence
Cannot offer evidence lawyer knows to be false
* May refuse to offer evidence lawyer reasonably
believes is false (except testimony of a criminal
defendant)
* If false evidence offered, must take reasonable
remedial measures (supersedes confidentiality)
* Duty to rectify continues until proceeding is com-
pletely over, appeals and all
False Testimony by Criminal Defendant Client
* Try to persuade otherwise
* Consider withdrawal
* If all else fails, disclose situation to judge
Note: Some jurisdictions allow narrative testimony, but
that is not the ABA approach.
Narrative testimony: Client testifies on the stand openly, not really guided by their attorney’s questions.
FAIRNESS TO OPPOSING PARTY AND
COUNSEL
Cannot:
- Hide, tamper with, or falsify evidence
- Make frivolous discovery requests
- Advise a person not to talk to the other side, UN-
LESS the person is the client, the client’s relative,
or the client’s agent - Make unlawful payments to witnesses (Reasonable expenses to experts usually OK, not contingency)
- Violate a court rule or order (but can openly refuse
to obey on the basis that it is not valid)
Fairness in Trials
- Cannot allude to anything inadmissible
- Cannot assert personal knowledge
- Cannot state personal opinion about justness of
cause, credibility of witness, or guilt or innocence
of party
IMPARTIALITY AND DECORUM OF THE
TRIBUNAL
Cannot attempt to influence court or jurors in way
prohibited by RPC
* Cannot disrupt proceedings (including depos)
* Cannot speak to judge or court officials without
other side present
* Cannot talk to jurors about ANY subject during
case
Post-discharge interviews of jurors allowed unless
juror does not want to talk, or it involves misrepre-
sentation, coercion, or harassment
TRIAL PUBLICITY
Also applies to colleagues within the same firm
No public statement if lawyer should know it is likely to
cause material prejudice, including:
* Character or credibility
* Results of examinations
* Whether defendant will plead guilty
* Whether defendant confessed
* Anything inadmissible at trial
Can talk about publicly available info
Permitted Statements
* Dry facts of case
* “They started it”—can make statement to protect
client from prejudice caused by another
If OC makes statement first, can respond
ADVOCATE AS WITNESS
Lawyer can’t act as advocate in case where lawyer is
likely to be a necessary witness.
Exceptions to Disqualification
* Testimony concerns uncontested matters or for-
mality
* Testimony concerns the nature and value of legal
services in the case
* Withdrawal would cause substantial hardship to
client
If disqualified under this rule, disqualification not
imputed to firm but generally need client consent,
confirmed in writing, if another lawyer at the firm takes
over.
TRUTHFULNESS IN STATEMENTS TO
OTHERS
Includes misleading things— not just straight lies. But, you can flex in negotiations.
Must not knowingly make false statement of mate-
rial fact or law to third person
* Must disclose material fact necessary to avoid
helping client commit crime or fraud (BUT must
stay within confidentiality rules) (Need a confidentiality exception, or else withdraw.)
COMMUNICATIONS WITH REPRESENTED
PERSONS
Only applies if you KNOW they are represented.
When representing a client in a matter, must get
counsel’s consent before talking to represented
person about the matter
* Parties can communicate directly with each other (You can advise your client on this.)
Communications with represented organizations
Need permission from organization’s counsel to talk
to: (For all other categories, don’t need OC’s permission.For all other categories, don’t need OC’s permission.)
* Anyone with authority to obligate organization
* Anyone whose conduct can be imputed to organi-
zation (Includes the person at the center of the case.)
* Anyone who supervises or regularly consults with
organization’s lawyer
If employee is personally represented, only need consent from their counsel.
Don’t need consent for former employees unless they have their own lawyer.
COMMUNICATIONS WITH
UNREPRESENTED PERSONS
Can communicate with unrepresented person, but
must not act disinterested
* Must not give unrepresented person legal advice if
reasonably possible their interests will conflict with
client’s
HEAVY-HANDED TACTICS
Cannot do something with no substantial purpose
other than to embarrass, delay, or burden someone.
RECEIVING DOCUMENTS SENT
INADVERTENTLY
Must promptly notify sender so sender can take pro-
tective measures.
LAWYER AS ADVISOR
Must be candid, and can give client moral, economic,
social, or political advice in addition to legal advice.
EVALUATING CLIENT’S AFFAIRS FOR
THIRD PARTY
Must be honest
Can evaluate client’s affairs if doing so is compatible
with other responsibilities to client.
* No significant risk to client → impliedly authorized
to disclose to third party
* Materially harmful to client → client’s informed
consent required before disclosure
LAWYER AS NEGOTIATOR
No false statements of material fact in negotiations,
but can “puff” (e.g., on estimates of price or value, or
acceptable settlement limits).
LAWYER AS THIRD-PARTY NEUTRAL
When lawyer acts as mediator, arbitrator, etc., must
make sure unrepresented parties understand that law-
yer is not representing them.
LAWYER AS PROSECUTOR
Prosecutors must:
* Have probable cause
* Ensure accused advised of right to counsel, how to
get counsel
* Ensure accused given opportunity to get counsel
* Not attempt to get accused to waive important
pretrial rights
* Brady Rule: Disclose evidence favorable to defendant
* Promptly disclose any new, credible, and material
evidence of wrongful conviction (even in another jurisdiction)
* Try to remedy conviction if clear and convincing
evidence of innocence, and conviction in own juris-
diction
* Not subpoena other lawyers to give evidence
about clients unless evidence is essential, not privi-
leged, and cannot be obtained in another way
Can’t make public statements that heighten public condemnation of the accused, unless legitimate law enforcement purpose. Must also take reasonable care to prevent others from making such statements.
LAWYER APPEARING IN NON-
ADJUDICATIVE PROCEEDING
Must disclose if appearing on behalf of client (but
need not identify client).
EX: Lawyer testifying in political/admin proceeding must say they are acting for a client.
LAWYER REPRESENTING ORGANIZATION
Relationship with Constituents
* Duty of loyalty to organization, not people
* Representing both organization and person in
organization requires both to waive with informed
consent
* If interests conflict, lawyer must tell person work-
ing for organization they don’t represent them and
communications aren’t covered by privilege
Violations
If counsel learns that someone in organization violated
duty or law that may cause substantial harm to organi-
zation:
* Counsel normally has duty to report inside organi-
zation
* If no action taken, counsel MAY report to outside
authority even if confidentiality applies (Can only do it if you reasonably believe reporting is necessary to prevent substantial harm to the organization.)
No authority to report outside if hired to investigate violation.
COMMINGLING AND TRUST ACCOUNTS
Safeguarding Property of Others
* No commingling with own property
* Held to standard of fiduciary
Trust Accounts
* Firm’s money in office account
* Client money in trust account, including advance
payments (firm can put own money in client trust
account for bank services charges only)
Keep records
Client trust account must be located in the state where the lawyer practices, unless client consents otherwise.
RECORDKEEPING, NOTIFICATION, AND
DELIVERY
Lawyer must:
* Keep complete records of all money and property
* Preserve records for five years after representation
* Comply if client requests accounting
* Promptly notify client or third party upon receipt of
property in which they have interest
* Promptly deliver property
DISPUTED PROPERTY
Dispute Between Lawyer and Client
Must keep disputed portion in client trust account until
dispute resolved.
Dispute Between Client and Third Party
If third party has a valid claim (e.g., creditor with lien),
must keep disputed portion of recovery in client trust
account until dispute resolved.
COMMUNICATIONS MUST NOT BE FALSE
OR MISLEADING
Must not make false or misleading statements.
Omitted facts: Misleading if leaves out fact necessary
to make communication as a whole not materially
misleading.
Unfounded conclusions: Misleading if substantial
likelihood reasonable person will formulate specific
conclusion without reasonable factual foundation.
Unjustified expectation based on past results: Mis-
leading if reasonable person could think that lawyer
could do as well in a similar case, without regard to
facts and law in that case. (Even if it’s true, it sounds like a future guarantee. Can cure with a disclaimer (no guarantees))
Unsubstantiated comparisons: Misleading if reason-
able person would think comparison can be substanti-
ated.
REQUIRED INFORMATION
All communications about lawyer or legal services
must include:
Name of at least one lawyer or firm responsible
for content
* Contact information (can be phone number, physi-
cal office location, email address, or website ad-
dress)
FIRM NAMES, LETTERHEADS, OR OTHER
DESIGNATIONS
Can’t include non-lawyer in firm name.
* Generally can include names of deceased or re-
tired partners
* If named partner is in public office, cannot use
name during any substantial period when lawyer is
not regularly and actively practicing with firm
* Trade name misleading if it implies that lawyers
are practicing in a firm when they are not (e.g.,
solo practitioner includes “and Associates” in firm
name)
* Trade name misleading if it implies a connection
with a government agency or charity; geographi-
cal names may require a disclaimer
FIELDS OF PRACTICE AND
SPECIALIZATION
Lawyer can state that they practice in certain fields, or
“specialize in” or “concentrate in” or are a “specialist”
in certain fields if statement is based on their expe-
rience, specialized training, or education, and is not
false or misleading.
Certified Specialist
If lawyer states or implies that they are a certified
specialist:
* Must be certified by organization accredited by
ABA or approved by state authority
* Must clearly identify certifying organization
Recommendations
Generally cannot give or promise anything of value in
return for recommendation.
RECOMMENDATIONS: Nominal Gifts
Permitted if token of appreciation, but not if lawyer
already promised it in exchange for the recommen-
dation or if there is an expectation of more gifts in the
future.
RECOMMENDATIONS: Paying for Advertising and Other Services
Paying for Advertising and Other Services
Lawyer can pay:
* Reasonable costs of advertising
* Usual charges of legal service plan
* Cost of participating in nonprofit referral service
RECOMMENDATIONS: Reciprocal Referral Agreements
Lawyer may agree with lawyer or nonlawyer profes-
sional to send clients to each other, but:
* Must not be exclusive
* Shouldn’t be of indefinite duration
* Referred client must be told of agreement
SOLICITATION:
Definition: Communication initiated by or on behalf
of lawyer and directed to a specific person known to
need legal services in a particular matter.
Public communications =/= solicitation.
Not solicitation if client initiates.
SOLICITATION: Ban on live person to person contacts
Must not solicit employment by live person-to-person
contact when significant motive is money:
* No in-person contact
* No live telephone contact
* No real-time audio or video
Ban applies ONLY when solicitation is motivated by
pecuniary gain.
Texts, emails, letters, and recorded messages are
all generally permitted because there is no live per-
son-to-person contact.
Potential Clients Not Covered by Ban
Can use live person-to-person contacts when solicit-
ing:
* Relatives
* Close friends
* Persons with prior business relationships
* Persons with prior professional relationships
* Other lawyers
* Routine business users of services
SOLICITATION: When all solicitation is prohibited, even if family
Regardless of method or identity of potential client, all
solicitation is banned in the following circumstances:
* Person has made known to lawyer that they do not
want the solicitation
* Solicitation amounts to coercion, duress, or harass-
ment
* Specific legal restrictions (civil or criminal penalties)
GROUP AND PREPAID SERVICE PLANS
- Lawyer can reach out to organizations about
adopting plan - Lawyer cannot reach out to potential members
- Plan can reach out to potential members if not
known to need particular legal services - Lawyer who owns or directs plan cannot provide
legal services through the plan
PRO BONO SERVICES
ABA suggests 50 hours per year, but non-complying
lawyer will not be subject to discipline.
ACCEPTING APPOINTMENTS
Must accept unless good cause not to, such as:
* Appointment would cause violation of law or RPC
* Appointment would be unreasonable financial
burden
* Personally unable to represent client effectively
Lack of necessary legal knowledge
QUICK-ADVICE PROGRAMS
RPC apply to limited legal service programs (e.g.,
quick advice hotline), except the conflicts rules are
relaxed because there is no time to run a conflicts
check. Lawyer only subject to discipline if there was a
known conflict problem.
MEMBERSHIP IN LEGAL SERVICES
ORGANIZATIONS
When serving as a member, director, or officer, lawyer
does not have attorney-client relationship with per-
sons served by organization, but must not participate
in actions that would harm lawyer’s regular clients or
persons served by the organization.
LAW REFORM ACTIVITIES
- Permitted even if reform will harm interests of cli-
ent - Must disclose to organization if client may benefit
from reform
STATEMENTS ABOUT JUDGES AND
PUBLIC LEGAL OFFICIALS
Cannot make statements about the qualifications or
integrity of judges or public legal officials, or candi-
dates for these positions, if such statements are false
or made with reckless disregard as to truth or falsity.
Can give honest opinion.
ABILITY TO INFLUENCE GOVERNMENT
OFFICIALS
Cannot state or imply ability to influence government
agency or official, or to achieve results in an illegal or
unethical way.
POLITICAL CONTRIBUTIONS
Cannot make a “pay to play” contribution to obtain a
government position (rule does not apply to unpaid
positions). Whether there is a violation depends on the
purpose of the contribution.
WHAT GOVERNS JUDICIAL CONDUCT
CJC applies to all who perform judicial functions at
state level.
Judges: MAINTAINING INDEPENDENCE AND
IMPARTIALITY
Must uphold and promote judiciary’s independence,
integrity, and impartiality.
* Must avoid impropriety or even the appearance
of impropriety: conduct that creates reasonable
perception that judge has violated CJC, or conduct
that reflects poorly on judge’s honesty, impartiality,
temperament, or fitness
* Letters of recommendation may be on official let-
terhead if reference is personal, and not perceived
as attempting to exert pressure; otherwise, must
not use judicial letterhead for personal business
* Must not abuse prestige of office to advance per-
sonal interests, or permit others to abuse it
Judges: PERFORMING DUTIES IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY
- Must hear and decide all matters assigned, unless
disqualification is required - Must not let outside interests influence conduct or
judgment - Must not allow impression that judge can be influ-
enced - No bias, prejudice, or harassment
- May encourage settlement, but must not coerce
Judges: EX PARTE COMMUNICATIONS
Definition: Communication between judge and repre-
sentative from one side when no representative from
other side is present. Usually prohibited.
When Allowed
* Expressly authorized by law or court order
* In mediation or settlement, with consent of parties
* Emergencies (when non-substantive and won’t
give one side an advantage)
Inadvertent Receipt of Ex Parte Communication
Judge must promptly notify parties and give opportu-
nity to respond.
Judges: COMMUNICATIONS ABOUT PENDING
CASES
Court Personnel and Other Judges
Can discuss cases with court personnel and other
judges, but must not discuss facts not on the record.
Legal Experts
* Advice must be in writing
* Expert must be disinterested
* Must notify parties in advance
Interfering with Case
Judge must not make comments about any case, in
any court, that might affect case’s outcome or inter-
fere with fair trial.
Can’t make comments about future cases either.
Jurors
No commending or admonishing jurors for the sub-
stance of their verdict.
Judges: INDEPENDENT INVESTIGATION
Must not independently investigate the facts in a
case
* Must consider only the evidence presented
Judges: Disqualification
Judge must disqualify self when impartiality might rea-
sonably be questioned.
Grounds for Disqualification
* Bias or personal knowledge
* Prior involvement in the case
* Judge or family member has economic interest
* Family member is involved in proceeding (Covers everything closer than cousins.)
* Excessive contributions to judge’s election cam-
paign
* Judge publicly committed to a position or result
Remitting Disqualification
Parties can remit (waive) disqualification for all
grounds, EXCEPT personal bias against a party or
party’s lawyer
Judge must disclose conflict, and parties must be able to meet without the judge to discuss.
Judges: Teaching, Speaking, Writing, Etc.
Judge may be reasonably compensated unless it
would reasonably appear to undermine indepen-
dence, integrity, or impartiality.
Judges: Reporting Requirements
Judge must publicly report amount or value of:
* Extrajudicial compensation
* Reimbursement
* Certain gifts, loans, bequests, and other things of
value
Judges: Participating in Organizations
Judge may take part in activities sponsored by:
* Organizations concerned with law or administra-
tion of justice
* Educational, religious, charitable, fraternal, or civic
nonprofits
Only if they don’t interfere with their judicial duties.
Judges: Prohibited Activities
- Cannot participate in activities that would lead to
frequent disqualification - Cannot accept appointment to governmental po-
sition or voluntarily testify at a government hear-
ing unless it relates to law or the administration of
justice - Cannot serve as officer, director, manager, general
partner, advisor, or employee of a business (excep-
tion for personal/family investments and business-
es) - Cannot testify as character witness, except when
duly summoned - Cannot be affiliated with organization that practic-
es invidious discrimination (OK if religious/cultural, but not if discriminatory.) - Cannot serve as executor, administrator, guardian,
or other fiduciary (except for family members)
Judges: Practicing Law
Full-time judge must not practice law, unless:
* Appearing pro se
* Giving legal advice to family
* Drafting legal documents for family
Part time judges can practice law.
Judges: Third party neutral
Full-time judge must not act as arbitrator, mediator, or
private judge unless expressly authorized by law.
Judges: POLITICAL AND CAMPAIGN ACTIVITIES
- Can speak on behalf of own candidacy, but must
keep independent from political organizations - Cannot make pledges or promises inconsistent
with impartial performance of duties - Cannot personally solicit (or accept) campaign contributions
- Cannot publicly endorse or oppose other candi-
dates - Can make factually accurate public response to
false or misleading statements - Judge who becomes candidate for nonjudicial
elective office must resign from judicial office
Judges: DISCIPLINARY ISSUES
Misconduct by Lawyers or Other Judges
* Judge knows -> Must report
* Judge receives information but isn’t certain ->
Must take appropriate action
Disability or Impairment of Lawyers or Other
Judges
Must take appropriate action if judge reasonably
believes that lawyer’s or other judge’s performance is
impaired by drugs, alcohol, or their mental, physical, or
emotional condition.
