Professional Responsibility Flashcards
Regulation
Responsibilities to the Profession
The Georgia Supreme Court has the inherent power to regulate the practice of law. The Georgia Rules of Professional Conduct (“RPC”) govern the conduct of Georgia lawyers.
Grounds for Discipline
Responsibilities to the Profession
A lawyer will be subject to discipline if they:
- Violate or attempt to violate the RPC, knowingly assist or induce another to do so, or use the acts of another to commit a violation (the rest of this outline covers the RPC)
- Engage in any professional conduct involving dishonesty, fraud, deceit, or misrepresentation (this is quite broad)
- State or imply an ability to improperly influence a government agency or official by illegal or unethical means, or otherwise achieve results by illegal or unethical means
- Are convicted of (1) any felony, or (2) any misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law (for example, misdemeanors that involve lying or stealing)
- Commit a criminal act that relates to the lawyer’s fitness to practice law or reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer, where the lawyer has admitted the commission of such act in the course of legal proceedings
- Fail to pay any final judgment or rule absolute rendered against the lawyer for money they collected as a lawyer within 10 days after the time appointed in the order or judgment
- Knowingly assist a judge or judicial officer in conduct that violates the rules of judicial conduct
Procedure and Types of Discipline
Responsibilities to the Profession
Complaints about a lawyer’s conduct are investigated by the State Bar through a panel of its disciplinary board. Upon finding probable cause of a violation, the panel may file a formal complaint with the Georgia Supreme Court. Depending on the violation, a lawyer may be subject to:
- formal admonition;
- confidential reprimand;
- state disciplinary board reprimand;
- public reprimand;
- suspension; or
- disbarment.
Some violations do not carry a disciplinary penalty.
Multi-State Practice:
Choice of Law
Responsibilities to the Profession
A lawyer is subject to regulation in each state in which they offer legal services or are admitted to practice (meaning, a lawyer can be disciplined by multiple states for the same conduct).
The choice of law will depend on the circumstances. If the lawyer’s conduct concerns a matter pending before a court, the rules of the state in which the court sits will generally apply.
Otherwise, the disciplinary authority will apply the rules of the jurisdiction in which the predominant effect of the conduct took place. (However, the lawyer will not be subject to discipline if their conduct conformed to the rules of a state in which the lawyer reasonably believed the predominant effect would occur.)
Malpractice vs. Discipline
Responsibilities to the Profession
A malpractice action is a civil case brought by a plaintiff for money damages; a disciplinary action is administrative and brought by the State Bar to protect the public.
A malpractice plaintiff must prove a breach of a duty of due care, and will recover only if they suffered damages as a result of the breach; in contrast, a lawyer can be disciplined for violating an ethical rule even if the client isn’t harmed.
Additionally, keep in mind that a violation of an ethical rule, standing alone, cannot serve as the basis of a malpractice claim.
Both disciplinary and malpractice proceedings generally must be brought within 4 years of the conduct at issue.
Reporting Misconduct by Other Lawyers
Responsibilities to the Profession
A lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects should (but is not required to) inform the appropriate professional authority. A similar rule applies when a lawyer has knowledge that a judge has committed a violation of applicable rules of judicial conduct.
Self-Reporting Requirements
Responsibilities to the Profession
Members of the State Bar of Georgia must, within 60 days, inform the Bar of the following events:
- Being admitted to the practice of law in another jurisdiction, and the dates of admission
- Being convicted of (1) any felony, or (2) any misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law (the same types of convictions for which a lawyer is subject to discipline, as discussed above)
- Being disciplined by another jurisdiction for conduct that would have violated the RPC (in which case the Bar may impose reciprocal discipline)
Agreements Concerning Disciplinary Complaints
Responsibilities to the Profession
A lawyer must not enter into an agreement containing a condition that either
1. prohibits or restricts a person from filing a disciplinary complaint, or
2. requires a person to request dismissal of a pending disciplinary complaint.
What is the Practice of Law?
Responsibilities to the Profession - Unauthorized Practice of Law
By statute, “practice of law” includes:
- Representing litigants and preparing legal pleadings
- Conveyancing
- Preparing legal instruments that secure legal rights (for example, a will or a contract)
- Giving any legal advice
- Taking any legal action on behalf of another
Must Not Engage of Assist in Unauthorized Practice
Responsibilities to the Profession - Unauthorized Practice of Law
A lawyer is prohibited from:
1. engaging in the unauthorized practice of law; or
2. assisting another person in the unauthorized practice of law.
However, it is not unauthorized practice for a layperson to represent themselves, and a lawyer can help an individual layperson (not a corporation) appear pro se.
While a lawyer may delegate tasks to nonlawyer employees, the lawyer must supervise the delegated work carefully and must be ultimately responsible for the results.
Mutli-Jurisidctional Practice
Responsibilities to the Profession - Unauthorized Practice of Law
A lawyer who is not licensed in Georgia must not: (1) open a law office in Georgia; (2) represent that she is admitted to practice in Georgia; or (3) establish a “systematic and continuous presence” in Georgia.
Permitted Temporary Practice by Out-of-State Lawyer
A lawyer who is admitted in another jurisdiction, and who is not disbarred or suspended in any jurisdiction, can practice in Georgia on a temporary basis in any of the following situations:
- The lawyer associates with a local lawyer who actively participates in the matter.
- The lawyer obtains “pro hac vice” admission for a particular litigation matter.
- The temporary practice reasonably relates to the lawyer’s home state practice and pro hac vice admission is not required for such practice.
Permitted Permanent Practice by Out-of-State Lawyer
A lawyer who is admitted in another jurisdiction, and who is not disbarred or suspended in any jurisdiction, can provide legal services through an office or other systematic and continuous presence in Georgia under the following circumstances:
- The lawyer is employed by their only client (for example, as inhouse counsel)—but keep in mind that litigating a matter would require pro hac vice admission.
- The lawyer is authorized by federal or local law to practice a restricted branch of law (for example, patent prosecution).
Foreign Lawyers
A lawyer who is only licensed to practice law in a foreign country may practice law in Georgia under similar circumstances as those described above. If a foreign lawyer practices in the United States on a permanent basis (for example, as in-house counsel for her employer), they must remain in compliance with all United States immigration laws while doing so.
Agreements Restricting Right to Practice
Responsibilities to the Profession
A lawyer must not participate in offering or making the following arrangements that restrict a lawyer’s right to practice law:
- Any partnership or employment agreement restricting a lawyer’s right to practice after termination of the relationship (commonly known as a “noncompete” agreement), except for an agreement concerning retirement benefits
- A settlement agreement between private parties that restricts the right of a lawyer to practice law (for example, settling with the opposing party under the condition that the lawyer will never represent another client against that party again)
This rule does not prohibit restrictions on practice in an agreement for the sale of a law practice, which is discussed next (for example, the seller and buyer might agree that the seller will stop practicing law in the local area for a certain amount of time).
Sale of Law Practice
Responsibilities to the Profession
The sale of a law practice is permitted subject to the following requirements:
- The entire practice must be sold to a single lawyer or law firm.
- Written notice must be given to the seller’s clients regarding the sale, the clients’ right to retain other counsel and to take possession of their files, and the fact that consent to the transfer of the clients’ files will be presumed if a client takes no action within 90 days of receipt of the notice. If notice cannot be given to a client, a court order is required to authorize the transfer of the representation of the client to the purchaser.
- Clients’ fees must not be increased solely because of the sale. The purchaser generally must honor existing fee agreements made by the seller. However, the purchaser can advise the client that they won’t take on the client’s matter unless the client consents to pay the higher fees that the purchaser usually charges for substantially similar services.
Relationalships with Nonlawyers
Responsibilities to the Profession - Professional Independence
The following rules are meant to limit nonlawyers’ involvement in the practice of law and ensure that lawyers maintain their professional independence:
- A lawyer must not form a partnership or other organization with a nonlawyer if any of the organization’s activities consist of the practice of law.
- Law firms must not be set up in such a way that a nonlawyer: (1) owns an interest of the firm, (2) is a corporate officer or director of the firm, or (3) has the right to direct or control a lawyer’s professional judgment.
- A lawyer must not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment.
Alternative Business Structures
Some other jurisdictions allow for “alternative business structures,” which are law firms that allow nonlawyers to manage or have ownership interests in the firm. Georgia lawyers cannot create or participate in alternative business structures in Georgia. However, a Georgia lawyer is allowed to work on client matters with attorneys who practice in alternative business structures located outside of Georgia and can share legal fees with those attorneys if otherwise permitted by the RPC (see 3.5.5.b., for a discussion of when lawyers may divide legal fees with outside attorneys).
Providing Law-Related Services
Responsibilities to the Profession - Professional Independence
Law-related services are services that might reasonably be performed in conjunction with legal services. Examples include financial planning, accounting, trust services, real estate counseling, and tax return preparation. Even though law-related services are not legal services, a lawyer who provides law-related services is subject to the RPC with respect to these services (meaning, the lawyer can be disciplined for lack of communication, violating confidentiality, and so on) in 2 situations:
- When the lawyer provides services under circumstances that are not distinct from their provision of legal services to clients
- When the law-related services are provided by an entity controlled by the lawyer (individually or with others), unless the lawyer takes reasonable measures to ensure that the recipient knows that the services provided by the entity are not legal services and that the protections of the lawyer-client relationship (such as the attorney-client privilege) do not apply
The takeaway here is that a lawyer who provides these services should take extra care to provide them separately and in a way that puts clients on notice of the difference between the legal services and the law-related services. Otherwise, the lawyer risks being subject to regulation by the Bar concerning these law-related services.
Duty to Cooperate with Character Investigations
Responsibilities to the Profession
Bar applicants, and lawyers in connection with another person’s bar application or disciplinary matter, must not:
- Knowingly make a false statement of material fact in connection with the application or disciplinary matter
- Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter (unless the information is protected by the duty of confidentiality to a client)
- Knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority (unless the duty of confidentiality to a client prevents them from responding)
Note that a bar applicant who violates this rule will be subject to discipline after they become admitted.
Firm Names
Responsibilities to the Prospective Client - Advertising
A lawyer must not use a firm name, letterhead, or other professional designation that is false or misleading.
Specific rules include:
- While the names of deceased or retired partners can be included in the firm name, it would be misleading to include the name of a disbarred lawyer.
- Lawyers must not state or imply that they practice in a partnership or other organization when that is not the case (for example, if lawyers A and B merely share office space and aren’t partners, they shouldn’t have an office sign that reads “A&B Law”).
- The name of a lawyer holding a public office must not be used in the name of a law firm or in communications on its behalf during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
- A multistate firm may use the same firm name or other professional designation in each jurisdiction. However, when identifying lawyers in a particular office of the firm, the firm must list the jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction where the office is located.
No False or Misleading Statements
Responsibilities to the Prospective Client - Advertising
A lawyer can advertise in any type of media, but such advertising generally must not involve in-person solicitation, and must not contain any false or misleading statements. A communication is false or misleading if it:
- Contains a material misrepresentation of fact or law, or omits an important fact
- Is likely to create an unjustified expectation about results the lawyer can achieve
- States or implies that the lawyer can achieve results by means that violate the RPC or other law (for example, where the communication focuses on the lawyer’s clout or connections)
- Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated
- Fails to include the name of at least one lawyer responsible for its content
Advertising Contingent Fees
Contingent fees are fees that are based on the outcome of the matter (usually, the lawyer collects a percentage of the client’s recovery).
All contingent fee agreements must be in writing and are subject to various requirements. When it comes to advertising, any communication concerning a lawyer’s services that mentions a contingent fee in any form is misleading unless it conspicuously presents the following disclaimer: “Contingent attorneys’ fees refers only to those fees charged by attorneys for their legal services. Such fees are not permitted in all types of cases. Court costs and other additional expenses of legal action usually must be paid by the client.”
Required Disclosures
Responsibilities to the Prospective Client - Advertising
The following requirements apply to any advertisement for legal services directed to potential clients in Georgia, or intended to solicit employment for delivery of any legal services in Georgia.
All required disclosures must be prominent.
- Every advertisement must include the name, physical location, and telephone number of each lawyer or law firm who paid for the advertisement and who takes full personal responsibility for the advertisement.
- If the lawyer or law firm will refer the majority of callers to other attorneys, the advertisement must disclose this fact.
- If an advertisement includes (1) a portrayal of a lawyer by a non-lawyer, (2) a portrayal of a client by a nonclient, (3) a nonlawyer spokesperson, or (4) any paid testimonial or endorsement, it must disclose these facts.
- A lawyer or law firm advertising any fixed fee for specified legal services must, at the time of fee publication, have available to the public a written statement clearly describing the scope of each advertised service, and the statement must be available to the client at the time of retainer for any such service.
- An advertisement that includes any representation that resembles a legal document must include a disclosure that the document is an advertisement rather than a legal document.
Recordkeeping Requirement
Responsibilities to the Prospective Client - Advertising
A copy or recording of an advertisement or communication must be kept for 2 years after its last dissemination along with a record of when and where it was used.
Prohibited Solicitation
Responsibilities to the Prospective Client - Solicitation
A lawyer must not solicit professional employment as a private practitioner (either for themselves or for their partner or associate) through direct personal contact or live telephone contact with a nonlawyer who has not sought the lawyer’s advice.
Targeted Mail
Responsibilities to the Prospective Client - Solicitation
Targeted mail is generally permitted, subject to the following limitations and conditions.
When Prohibited
A lawyer must not communicate with a prospective client to obtain employment in any of the following circumstances:
- The communication concerns an action for personal injury or wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is addressed (or a relative of such person), unless the accident or disaster occurred more than 30 days prior to the mailing of the communication (additionally, under federal law, plane crashes require a 45-day waiting period)
- It has been made known to the lawyer that the person does not want to receive communications from the lawyer
- The communication involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence
- The lawyer knows or should know that the physical, emotional, or mental state of the person would prevent them from exercising reasonable judgment in employing the lawyer
Labeling Requirement
Written communications to a prospective client for the purpose of obtaining employment generally must be marked “Advertisement” on the envelope and the top of each page. However, this labeling requirement does not apply when the target is a friend, relative, or former client.
Must Not Accept Employment in Violation of Rules
Responsibilities to the Prospective Client - Solicitation
If a lawyer violates these solicitation rules and gives unsolicited, in-person advice, they must not accept employment resulting from such advice.
Payments for Recommending the Laywer’s Services
Responsibilities to the Prospective Client - Solicitation
A lawyer must not compensate or give anything of value to a person or organization for recommending or securing the lawyer’s employment of a client, with the following exceptions:
- A lawyer is generally permitted to enter into a reciprocal referral arrangement (whereby the lawyer refers clients to another person in exchange for that person referring clients to the lawyer), so long as such agreements are not exclusive and the client is informed.
- A lawyer may pay the usual and reasonable fees or dues charged by a lawyer referral service if the service acts in accordance with the RPC and makes disclosures to the client regarding its arrangement with the participating lawyers.
- A lawyer may pay the usual and reasonable fees or dues charged by a qualified bar-operated nonprofit lawyer referral service, including a fee that is calculated as a percentage of the legal fees earned by the lawyer to whom the service has referred the matter, provided certain requirements are met (the client must not be charged any more than if the client had not used the service; the lawyer must maintain malpractice insurance, etc.).
- A lawyer may pay the usual and reasonable fees charged by a qualified legal services plan or insurer to promote the lawyer’s services if the communications of the plan are not false or misleading.
- A lawyer is permitted to pay the reasonable costs of permitted advertising.
Use of Agents to Solicit
A lawyer is prohibited from using an agent to do something the lawyer is prohibited from doing. Thus, a lawyer must not use an agent (sometimes called a “runner” or “capper”) to contact prospective clients in a manner that would violate the RPC.
Claims of Specialty and Certification
Responsibilities to the Prospective Client - Claims of Specialty
A lawyer may communicate that they are a specialist in a particular field of law, or that they are certified in a particular field of law, if such a statement is not false or misleading and either:
- The lawyer is certified by a recognized and bona fide professional entity; or
- The lawyer is a specialist by experience, specialized training, or education
Additionally, patent, trademark, and admiralty lawyers have traditionally been permitted to use special titles (for example, “Proctor in Admiralty”).
Fields of Practice
Responsibilities to the Prospective Client - Claims of Specialty
A lawyer is permitted to communicate the fact that they do or do not practice in particular fields of law.
Accepting Court Appointments
Responsibilities to the Prospective Client
Lawyers are generally free to refuse service to any person for any reason. However, a lawyer must not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
- Representing the client is likely to result in a violation of the RPC or other law (for example, when the lawyer has a conflict of interest)
- The client or the cause is so repugnant to the lawyer as to be likely to impair the lawyer-client relationship or the lawyer’s ability to represent the client
- Representing the client is likely to result in an unreasonable financial burden on the lawyer
Duties Arising from Consultations with Prospective Clients
Responsibilities to the Prospective Client
Some obligations that a lawyer has to a client (which we’ll discuss in the next module) also attach to prospective clients, even if a lawyer-client relationship is never formed. A lawyer’s advice to a prospective client as to the merits of their matter must be competent. Additionally, the duty of confidentiality attaches to information gained during consultations with a prospective client (even if the lawyer isn’t ultimately hired). And, as we’ll discuss with respect to conflicts of interest, this will affect whether a lawyer can represent a new client against that prospective client.
Competence
Responsibilities to the Client
When representing a client, a lawyer must act competently. Acting competently means acting with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. It also includes keeping up with changes in the law and its practice, including the benefits and risks associated with relevant technology.
Usually, with respect to knowledge and skill, the required proficiency is that of a general practitioner. However, expertise in a field of law may be required in some circumstances (for example, if the lawyer claimed to be an expert in the field, or if the field is very specialized).
Addressing Competence Problems
If a lawyer doesn’t know the law, they must decline to take on the representation unless they can
1. learn it through study (without additional expense or undue delay to the client); or
2. associate with a lawyer who is competent in the area.
A lawyer who lacks competence may also act for a client in an emergency situation, but only to the extent reasonably necessary to meet the emergency.
Diligence
Responsibilities to the Client
A lawyer must act with reasonable diligence in representing a client. As such, a lawyer must control their workload so that each matter can be adequately handled. Diligence also includes acting with dedication to the client’s interests and promptly pursuing the matter to completion. However, this doesn’t require the lawyer to be offensive or uncivil to the adversary or other persons.
Limiting Scope of Representation
Responsibilities to the Client
A lawyer may limit the scope of the representation (for example, the lawyer and client may agree that the lawyer will handle only certain aspects of the matter) if
1. the limitation is reasonable under the circumstances, and
2. the client gives informed consent.
What wouldn’t be reasonable? Suppose a client wants the lawyer to research an issue but only wants to pay for one hour of the lawyer’s time, telling the lawyer, “Just do whatever you can in one hour.” If the lawyer knows that they would be unable to provide the client with a helpful answer after just one hour of work, it would not be reasonable to limit the scope.
Allocation of Authority
Responsibilities to the Client
Decision-Making
The client makes the substantive decisions concerning the scope and objectives of the representation. A lawyer must abide by the client’s decisions (after consulting with the client) as to the following:
- Whether to accept a settlement offer
- What plea to enter in a criminal case
- Whether to waive a jury trial in a criminal case
- Whether the client will testify in a criminal case
Generally, the lawyer makes the strategic and procedural decisions
(for example, choosing which court to file the case in and deciding how to conduct discovery).
Assisting Client in Criminal or Fraudulent Conduct
A lawyer must not counsel or assist the client in illegal or fraudulent conduct. If the client expects the lawyer to provide assistance that would violate the RPC or other law, the lawyer must explain why they are prohibited from providing such assistance. If the client insists on pursuing an illegal or unethical course of conduct, the lawyer must withdraw (because assisting in the conduct would be a rule violation).
- Mental State—Knowledge or Willful Blindness: This prohibition applies when a lawyer has knowledge of the nature of the conduct or when the lawyer acts with willful blindness, meaning the lawyer knows there’s a high probability that the client is using their services to commit a crime or fraud and takes deliberate action to avoid acquiring such knowledge.
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Permitted Actions: Although a lawyer must not assist in criminal or fraudulent conduct, a lawyer may:
1. Advise the client of the legal consequences of a proposed course of action
2. Counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law (for example, “testing” a statute by disobeying it)
When Client Has Diminished Capacity
While representing a client who has diminished capacity (due to age, disability, etc.), a lawyer generally must maintain a normal lawyer-client relationship. However, the lawyer is permitted to take protective action (for example, appointing a guardian or consulting with organizations that can help the client) if the client is at risk of substantial harm and cannot adequately act in their own interest. In taking protective action, the lawyer has implied authority to reveal the client’s confidential information, but only to the extent necessary to protect the client.
Lawyer Evaluating Client’s Affairs for Third Party
A lawyer may evaluate a client’s affairs for the use of a third person (for example, evaluating the title of the client’s property for a prospective buyer) if the lawyer reasonably believes that making the evaluation is compatible with the lawyer’s other responsibilities to the client. However, the lawyer must obtain the client’s informed consent before making the evaluation.
Communication
Responsibilities to the Client
A lawyer must:
- Reasonably consult with the client about how the client’s objectives are to be accomplished and explain the matter to the extent necessary to permit the client to make informed decisions
- Keep the client reasonably informed about the status of the matter, and promptly comply with all reasonable requests for information from the client
Plea Bargain and Settlement Offers
In accordance with the general duty to communicate with the client, the lawyer must notify the client of any settlement offer or proffered plea bargain, unless the client has previously indicated that the proposal would be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer.
Scope of Confidentiality
Responsibilities to the Client - Confidentiality
Except as noted below, a lawyer must not reveal information gained in the professional relationship with a client. The duty of confidentiality applies to all information about a client relating to the representation, regardless of its source and including information that the client has requested to be held inviolate or the disclosure of which would be embarrassing or detrimental to the client.
The RPC also prohibit a lawyer from using confidential information to the client’s disadvantage, and we’ll revisit this when we discuss conflicts of interest.
Distinguished from Attorney-Client Privilege
The duty of confidentiality is much broader than the attorney-client privilege. The key differences are as follows:
- The attorney-client privilege is an exclusionary rule of evidence law. It prevents the lawyer or client from being compelled to testify or produce evidence about the privileged communications in an official proceeding. In contrast, the duty of confidentiality is an ethical rule and prevents disclosure outside the courtroom as well.
- The attorney-client privilege only covers confidential communications between the lawyer and client (and their agents). In contrast, the duty of confidentiality covers all types of information relating to the representation, from any source.
Timing
Both the attorney-client privilege and the duty of confidentiality cover information gained from a prospective client who discusses the possibility of forming a client-lawyer relationship with respect to a matter, even if the prospective client doesn’t ultimately hire the lawyer. Additionally, privilege and confidentiality continue to apply even after a lawyer-client relationship has terminated.
Execeptions to Duty of Confidentiality
Responsibilities to the Client
A lawyer may reveal information relating to the representation if:
- Disclosure is necessary to prevent a client or a third party from committing a criminal act that will result in harm or substantial financial loss to another (but first, the lawyer must make a good faith effort to dissuade the client or warn the victim); if the client has already acted, the lawyer may reveal the information only if the harm or loss has not yet occurred
- Disclosure is necessary to prevent death or serious injury not covered by the exception above (but first, the lawyer must make a good faith effort to dissuade the client or warn the victim)
- Disclosure is necessary to (1) establish a claim or defense on behalf of a lawyer in a controversy between the lawyer and client (for example, malpractice claim, action to recover outstanding legal fees), (2) establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved, or (3) respond to allegations in any proceeding concerning the lawyer’s representation of the client
- Disclosure is necessary to obtain legal ethics advice
- Disclosure is necessary to detect and resolve conflicts of interest arising from their change of employment or from changes in a law firm’s composition or ownership (for example, a merger or purchase of a law practice), but only if the disclosure wouldn’t prejudice the client
- The client gives informed consent or if such disclosure is impliedly authorized to carry out the representation
Additionally, a lawyer must disclose confidential information if required to do so by law. Disclosure may be required by statute, court order, or other ethics rules (for example, the duty of candor to the tribunal).
Confidentiality vs. Candor to the Tribunal
Under a lawyer’s duty of candor to the tribunal (discussed further at 4.3.2), a lawyer is prohibited from offering false evidence, and must take reasonable remedial measures if false evidence was already offered. This duty of candor to the tribunal supersedes the duty of confidentiality, but expires at the end of the proceeding.
Must Continue Representation on Court Order
Responsibilities to the Client - Declining or Withdrawing Representation
Withdrawal must be done in accordance with all applicable laws and rules. When ordered to do so by a tribunal, a lawyer must continue representation even if there is good cause for terminating the representation.
Mandatory Rejection of Withdrawal
Responsibilities to the Client - Declining or Withdrawing Representation
A lawyer must decline to take on a representation, or must withdraw from representation, in any of the following circumstances:
- The representation would result in a violation of the RPC or other law (for example, there is a conflict of interest or a competence problem)
- The lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client
- The lawyer is discharged by the client
Permissive Withdrawal
Responsibilities to the Client - Declining or Withdrawing Representation
A lawyer is permitted to withdraw if it can be accomplished without material adverse effect on the client’s interests, or where there is good cause to do so. Examples of good cause include:
- The client persists in a criminal or fraudulent course of action involving the lawyer’s services
- The client has already used the lawyer’s services to perpetrate a crime or fraud
- The client insists on taking action that the lawyer considers repugnant or imprudent
- The client fails substantially to fulfill an obligation to the lawyer (for example, paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation isn’t fulfilled
- The representation will result in an unreasonable financial burden on the lawyer
- The representation has been rendered unreasonably difficult by the client
Conflicts of Interest
Responsibilities to the Client
A lawyer owes a duty of loyalty to their client, and must avoid or properly address any conflicts of interest. Conflicts are generally “imputed” from a lawyer to others in their firm. In other words, when a lawyer can’t take on a matter because of a conflict of interest, the other lawyers in the firm are also barred from taking on that matter. (For purposes of this rule, a “firm” means any group of lawyers who practice closely together, such as in a corporate law department, legal aid office, or prosecutors’ or public defenders’ office.)
Conflicts with Former Clients
Responsibilities to the Client
As a general rule, a lawyer can represent a client adverse to a former client. However, there is a conflict issue in the following situations:
Client Adverse to Former Client in Same or Substantially Related Matter
A lawyer who formerly represented a client in a matter must not represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing.
- Meaning of “Substantially Related Matter”: Two matters are “substantially related” if (1) they involve the same transaction or legal dispute, or (2) there is a substantial risk that confidential factual information that would have normally been obtained in the prior representation would materially advance the client’s position in the subsequent matter.
Using or Revealing Information
Recall that a lawyer owes a duty of confidentiality to former clients. A lawyer who has formerly represented a client in a matter—or whose present or former firm has done so—must not reveal information relating to the representation or use such information to the former client’s disadvantage, unless:
- The former client consents;
- An exception to the duty of confidentiality applies;
- Disclosure is required by the duty of candor to the tribunal; or
- The information has become generally known
Opposing Client of Former Firm
Suppose a lawyer leaves a firm to work at a different firm. Their duties may extend not only to the clients they represented personally, but also to other clients of their former firm. If the lawyer’s former firm represented a client in a matter and the lawyer actually acquired confidential information that is material to the matter while working at the former firm, the lawyer (and, because of imputation, their new firm) must not subsequently represent another person in the same or a substantially related matter adverse to the former firm’s client, unless the former firm’s client gives informed consent, confirmed in writing.
Firm Opposing Client of Departed Lawyer
Lawyers often leave a firm and take their clients with them. If a lawyer represented a client in a matter and then left the firm, and the firm no longer represents that client, the firm is generally not prohibited from representing a client adverse to that former client, unless:
- The matter is the same or substantially related to that in which the formerly associated lawyer represented the former client; and
- At least one remaining lawyer in the firm has confidential information that is material to the matter
General Current-Client Conflicts
Responsibilities to the Client
A lawyer must not represent a client (or continue to represent a client) if there is a significant risk that the representation of that client will be materially and adversely affected by the lawyer’s responsibilities to another client, a former client, or to a third person, or by the lawyer’s own interests, unless all affected clients provide informed consent, confirmed in writing. While there are more specific conflict rules that we’ll go over in this section, this is the general “catch-all” conflict rule for current clients. Look for any situation where the lawyer’s competing responsibilities or interests might affect the representation.
Resolving Conflicts
For consent to be effective, the client must have received reasonable and adequate information in writing about the material risks of the representation, and must have been given the opportunity to consult with independent counsel.
- Consent to Future Conflicts: Whether a client may effectively consent to conflicts that may arise in the future depends on whether the client truly is able to understand the risks involved. Such a waiver is more likely to be valid if it is comprehensive and specific—for example, if the client agrees to consent to a particular type of conflict with which the client is already familiar. Open-ended, general waivers usually are not valid.
Conflicts that Can’t Be Waived
A lawyer cannot proceed in any of the following circumstances, even if the affected clients are willing to waive the conflict:
- Where the representation is prohibited by law or the RPC
- Where it is reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients
- Being on both sides of the same or substantially related litigation or other proceeding pending before a tribunal
- Criminal and Civil Representation of Multiple Clients: Because the interests of criminal co-defendants are very likely to diverge, ordinarily a lawyer should not try to defend multiple people in a criminal case. A lawyer may, however, represent two or more clients with similar interests in a civil matter if the lawyer concludes they can effectively represent both clients and obtains the clients’ consent. The lawyer must explain the implications of the common representation, such as the fact that the attorney-client privilege will not apply in any subsequent lawsuit between the clients. If the clients’ positions are likely to become antagonistic, or if one client wants to hide information from another, the lawyer should not take on the representation.
Part-Time Prosecutors
Although otherwise subject to the conflict of interest rules, a part-time prosecutor who engages in the private practice of law may represent a private client adverse to the state or other political subdivision, as long as the part-time prosecutor has never had prosecutorial authority or responsibility with regard to the matter.
Situations that Don’t Pose a Conflict
There is usually no conflict where a lawyer takes inconsistent legal positions in different cases, unless representation of either client would be affected (for example, where one case will soon set a controlling precedent for the other). Additionally, a conflict does not arise when a lawyer represents economic competitors in unrelated matters. Conflicts are about legal adversity, not economic adversity.
Drafting Wills and Other Instruments
Responsibilities to the Client
A lawyer must not prepare an instrument for a client (for example, a will) giving the lawyer or the lawyer’s close relative (parent, child, sibling, or spouse) any substantial gift from a client, including a testamentary gift, except where the client is related to the recipient of the gift.
Financial Assistance to Clients
Responsibilities to the Client
A lawyer must not provide financial assistance to a client in connection with pending or contemplated litigation, with the following exceptions for court costs and litigation expenses:
- The lawyer may advance court costs and litigation expenses, and the repayment may be contingent on the outcome of the case (meaning, the lawyer and client can properly agree that the client only needs to pay the lawyer back if the client wins).
- If the client is indigent, the lawyer may pay the court costs and litigation expenses outright.
Third Party Paying Client’s Fees
Responsibilities to the Client
A lawyer must not accept compensation for representing a client from someone other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship; and (3) confidential information relating to the representation of the client is protected.
Legal Malpractice
Responsibilities to the Client
Limiting Malpractice Exposure
A lawyer must not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless this is permitted by law and the client is independently represented in making the agreement.
Arbitration Agreements
A lawyer may enter into an agreement with a client or prospective client to arbitrate malpractice disputes if the client or prospective client gives informed consent confirmed in writing.
Settling Malpractice Claim
A lawyer must not settle a claim for malpractice liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.
Aggregate Settlements and Plea Agreements
Responsibilities to the Client
An “aggregate” agreement is one made on behalf of multiple clients at the same time. A lawyer must not participate in the making of an aggregate settlement agreement, or an aggregated agreement as to guilty or nolo contendere pleas, unless:
1. the lawyer discloses to each client the existence and nature of all the claims or pleas involved and the participation of each person in the settlement; and
2. each client gives informed consent to the agreement in a writing signed by the client.
Transparency is key here.
Improper Use of Information Adverse of Client
Responsibilities to the Client
A lawyer must not use information relating to representation of a client to the disadvantage of the client without the client’s informed consent, except as permitted or required by the RPC (for example, where an exception to the duty of confidentiality applies, or disclosure is required by the duty of candor to the tribunal).
Acquiring Literary or Media Rights Concerning Client’s Case
Responsibilities to the Client
A lawyer must not acquire literary or media rights to a story based in substantial part on information relating to the lawyer’s current representation of a client. However, the lawyer may acquire such rights after the client’s legal matter is entirely completed, appeals and all.
Proproetary Interest in the Cause of Action
Responsibilities to the Client
A lawyer must not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
1. acquire a lien granted by law to secure the lawyer’s fee or expenses (provided that the exercise of the lien is not prejudicial to the client with respect to the subject of the litigation), or
2. contract with a client for a reasonable contingent fee in a civil case.
This rule is limited to litigation matters. For example, a patent lawyer can represent a client in a patent application and accept an ownership interest in the patent as payment for the legal services. However, if the lawyer were representing the client in a lawsuit involving the patent, the lawyer would not be able to accept the ownership interest.
The rationale for this rule is that we don’t want the lawyer to have too much of a stake in the outcome because this could affect their professional judgment.
Lawyer Handling Wrongful Death Case
Responsibilities to the Client
A lawyer handling a wrongful death case owes a fiduciary duty to the statutory beneficiaries to ensure that their interests are protected, even if they are not clients of the lawyer.
Representing Organizational Client
Responsibilities to the Client
Explaining Identity of Client
The lawyer represents and owes a duty to the organization, not to the people associated with the organization. The lawyer must explain this whenever the organization’s interests are adverse to those of the person at the organization with whom the lawyer is dealing.
- Multiple Representation Permissible: A lawyer representing an organization can also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the general conflict of interest rules (meaning, the lawyer could undertake such representation if they can adequately represent each party and each party provides informed consent, confirmed in writing, to the multiple representation).
Protecting Organization’s Interests
If the lawyer learns that a person associated with the organization has acted, or is about to act, in a way that violates a duty to the organization or law in a way that might be imputed to the organization, the lawyer must proceed as reasonably necessary to protect the organization’s interests. This ordinarily involves reporting the matter to a higher authority in the organization.
- Outside Reporting: If the highest authority in the organization fails to act, the lawyer may (but is not required to) report the information to appropriate persons outside of the organization to the extent that reporting is necessary to prevent substantial injury to the organization. A lawyer is allowed to make the report even if the information is protected by the lawyer’s duty of confidentiality!
Conflicts with Prospective Client
Responsibilities to the Client
Who Is a Prospective Client?
A prospective client is a person who consults with a lawyer in good faith about the possibility of forming a lawyer-client relationship with respect to a matter. Note, however, that a person does not receive the protections of a prospective client if they unilaterally communicate information to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of representation.
Duty of Confidentiality Applies
As we’ve discussed, the lawyer owes a duty of confidentiality to prospective clients. Similar to the rule for former clients discussed at 3.4.1.b., above, a lawyer must not reveal or use information gained from the prospective client unless:
1. the prospective client consents;
2. an exception to the duty of confidentiality applies;
3. disclosure is required by the duty of candor to the tribunal; or
4. the information has become generally known.
Opposing Prospective Client in Substantially Related Matter
A lawyer who obtains confidential information during a consultation with a prospective client must not later represent a client adverse to the prospective client in the same or substantially related matter if the information could be significantly harmful to the prospective client, unless both the current client and prospective client provide informed consent, confirmed in writing.
Avoiding a Conflict
Despite the general prohibitions above, a lawyer may condition a consultation with a prospective client on the prospective client’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. The prospective client also may consent to the lawyer’s subsequent use of information received from the prospective client; however, for the agreement to be effective, it must expressly provide that the lawyer can use such information.
Imputation of Clients
Responsibilities to the Client
The conflicts we’ve talked about are generally imputed to others at the firm. In other words, if the disqualified lawyer has a conflict, all other lawyers at the firm are also disqualified unless the client waives the imputed disqualification.
Screening Usually Doesn’t Work
When a conflict exists, sometimes a firm will take the case anyway and impose “screening” (meaning, the disqualified lawyer is blocked from the case files and information). As a general rule, for bar exam purposes, screening will not cure an imputed conflict. (However, as you’ll see below, there are exceptions for certain conflicts relating to a lawyer’s work as a government employee or a third-party neutral.)
Exception to Imputation—Lawyer’s Family Relationship with Opposing Counsel
Where 2 lawyers are related to one another as parent, child, sibling, or spouse, they must not represent clients whose interests are directly adverse without first getting the informed consent of the respective clients. Because this type of conflict is uniquely personal to the disqualified lawyer, it is not imputed to other lawyers in their law firm.
Revolving Door Conflicts
Responsibilities to the Client
Conflicts may arise when a lawyer moves to and from government work or has acted as a third-party neutral in a matter.
Government Work to Private Sector
- Private Work Following Government Work on Same Matter: Unless expressly permitted by law, a lawyer who leaves government service and enters private practice must not represent a private client in a matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed consent, confirmed in writing.
For purposes of government-related conflicts, “matter” means a specific set of facts involving a specific party or parties (for example, drafting legislation that applies to the public wouldn’t qualify). Examples of a “matter” include a proceeding, application, contract, claim, controversy, investigation, charge, accusation, or arrest.
—Imputation and Screening: Imputation to others at the firm will be cured if: (1) the disqualified lawyer is screened from the matter and does not share in the fee, and (2) written notice is given to the government agency to ensure compliance.
- Conflict Based on Information Gained During Government Service: Even if the rule above isn’t implicated, a different rule might apply. If a lawyer received confidential government information about a person while in government service, the lawyer must not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person. “Confidential government information” means information gained under government authority that the government is prohibited from revealing and that is not available to the public. Remember that this rule applies only to information that the lawyer actually received.
—Imputation and Screening: Imputation to others at the firm will be cured if the disqualified lawyer is screened from the matter and does not share in the fee.
Private Sector to Government Work
A current government employee must not participate in a “matter” (same definition as above) in which they participated personally and substantially while in private practice or nongovernmental employment, unless, under applicable law, no one else can act in the lawyer’s place in the matter.
Prior Involvement as Judge, Arbitrator, or Law Clerk
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or arbitrator, or as a law clerk to such person, unless all parties to the proceedings give informed consent, confirmed in writing.
- Imputation and Screening: Imputation to others at the firm will be cured if: (1) the disqualified lawyer is screened from the matter and does not share in the fee, and (2) written notice is given to the appropriate tribunal.
Government Employee or Third-Party Neutral Negotiating for Private Employment
A lawyer who is a government employee or acting as a third-party neutral must not negotiate for private employment with any party or lawyer in a matter in which the lawyer is participating personally and substantially.
However, there is an exception for law clerks to judges and arbitrators, because they are often newly admitted lawyers for whom a clerkship is only a temporary first step in a legal career. Law clerks may negotiate for private employment after notifying the judge or arbitrator. If the law clerk accepts such employment, they must promptly provide written notice of this fact to all counsel of record in all such matters in which the law clerk’s new employer is involved.
Fee Agreements in General
Responsibilities to the Client
A lawyer must, before or within a reasonable time after commencing a representation, communicate the basis or rate of the fee and the expenses for which the client will be responsible. Although a writing is preferable, it is generally not required (except in contingent fee agreements, as discussed in 3.5.3). The lawyer also has an ongoing duty to communicate any changes regarding the fee arrangement.
Exception to Communication Requirement—Regularly Represented Client
If the lawyer regularly represents the client and will be charging the same basis or rate as in other matters, the lawyer need not communicate the fee arrangement each time.
Arbitration Agreements
A lawyer may enter into an agreement with a client or prospective client to arbitrate disputes over fees or expenses if the client or prospective client gives informed consent confirmed in writing.
Fee Amount
Responsibilities to the Client
A lawyer must not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. In other words, all fees must be reasonable.
Various factors are considered in determining whether a fee is reasonable, and include: time and labor; novelty and difficulty of the questions involved; skill required; customary fee within the locality; experience, ability, and reputation of the attorney; whether the representation will prevent the lawyer from taking other employment; time constraints; whether the fee is fixed or contingent (contingent fees can be higher because they are more of a risk for the lawyer); and so on.
Contingent Fees
Responsibilities to the Client
A contingent fee is a fee that is dependent on the successful resolution of the client’s case. Usually, such fees take the form of a set percentage of the recovery, the fee being zero if there is no recovery.
Writing and Disclosure Requirements
All contingent fee agreements must be in writing, and must disclose:
- How the fee will be calculated (including the percentage or percentages that accrue to the lawyer in the event of settlement, trial, or appeal)
- What expenses will be deducted from the recovery
- Whether expenses will be deducted before or after the contingent fee is calculated
Additionally, at the end of the case, the lawyer must give the client a written statement showing the outcome, the remittance to the client, and how the remittance was calculated.
When Contingent Fees Are Prohibited
A lawyer must not enter into a contingent fee agreement in either of the following circumstances:
- Defending a client in a criminal case
- Representing a client in a domestic relations case where the fee is contingent on the securing of a divorce, the amount of an alimony or support award, or the amount of a property settlement
Must Be Reasonable
Like all fees, a contingent fee must be reasonable. Additionally, a lawyer must not use a contingent fee when the facts of the case make it unreasonable to do so (for example, when the lawyer knows that the case will be settled for a huge amount after a few hours of work).
Discharge of Lawyer on Contingency
A client is free to discharge a lawyer hired on a contingency basis at any stage of the proceedings. Usually, the discharged lawyer will be entitled to the reasonable value of their services performed up to
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the time of the discharge. However, the lawyer’s claim does not arise until the contingency comes to pass (in other words, the lawyer isn’t entitled to get paid unless and until the client recovers).
Other Special Fee Arrangements
Responsibilities to the Client
Lawyers can charge various types of fees, including an hourly fee, a flat fee (meaning, a fixed amount that constitutes complete payment regardless of the amount of work ultimately involved), and can even accept non-monetary property in return for services. There are additional requirements and considerations with respect to certain types of fees and payments.
Advance Payments
A lawyer may require a fee (including a flat fee) to be paid in advance, but the lawyer must refund the unearned portion of the fee if the client fires the lawyer or the lawyer does not perform the services.
However, a lawyer is not required to refund a true retainer fee (meaning, a fee that is paid solely to ensure the lawyer’s availability). Such payments are not meant to be compensation for legal services.
Accepting Property for Services
A lawyer may accept property (for example, an ownership interest in a business) in return for services. However, such an arrangement is subject to scrutiny as a conflict of interest because it may constitute a business transaction or pecuniary interest adverse to a client, or a prohibited proprietary interest in the subject of litigation. (See 3.4.8 and 3.4.12 for discussion of these specific conflicts of interest scenarios.)
Dividing Fees
Responsibilities to the Client
With Nonlawyers
A lawyer or law firm must not share legal fees with a nonlawyer, subject to the following limited exceptions:
- Including nonlawyer employees in a compensation or retirement plan, even if the plan is funded by legal fees
- Paying a death benefit to a dead lawyer’s estate or other designated persons
- Purchasing a law practice of a dead, disabled, or disappeared lawyer and paying the purchase price to the estate or nonlawyer representatives
- Compensating the estate of a dead lawyer for the dead lawyer’s unfinished work that the lawyer completed
- Sharing court-awarded legal fees with a nonprofit organization that employed or recommended the lawyer in the matter
- Paying a referral fee to a bar-operated nonprofit lawyer referral service, where such fee is calculated as a percentage of legal fees earned in the matter
With Outside Lawyers
Partners and associates within a law firm can generally pool and split legal fees however they’d like. Additionally, a law firm can make payments to a former partner or associate under a separation or retirement agreement. However, a lawyer must not share legal fees with a lawyer at a different firm unless the following conditions are met:
* Either: (a) the split is in proportion to the services performed by each lawyer, or (b) the split is in some other proportion if, by written agreement with the client, each lawyer assumes joint responsibility for the matter;
* The client is advised of the share that lawyer will receive and does not object to the participation of all lawyers involved; and
* The total fee is reasonable
Safeguarding Client Property
Responsibilities to the Client
Separation of Funds and Client Trust Accounts
Every Georgia lawyer must have one or more trust accounts (for client money) that are separate from the lawyer’s operating account(s) (which contain the lawyer’s money). When a lawyer is holding funds on behalf of a client or in a fiduciary capacity, such funds must be held in the trust account. The trust account must be maintained in Georgia, in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. The lawyer must never place their own money or their firm’s money into the client trust account, except for the sole purpose of paying bank service charges.
- Placement of Advance Payments: An advance payment from a client must be put into the client trust account, to be withdrawn by the lawyer only as fees are earned or expenses incurred. This is because an advance payment belongs to the client until it is earned by the lawyer. A lawyer must refund to the client any unearned advance payments at the end of the representation.
Non-Monetary Property
Other non-monetary property must be identified and appropriately safeguarded.
Maintaining Records
Complete records of client account funds and other property must be kept by the lawyer and must be preserved for 6 years after termination of the representation.
Lawyer’s Duty to Keep Client Informed
Upon receiving funds or other property in which a client or third person has an interest, a lawyer must promptly notify the client or third person.
Notification and Delivery of Property
A lawyer must promptly notify a client or third person when the lawyer receives funds or property in which the client or third person has an interest. Additionally, except as stated below, or where otherwise permitted by law or by agreement with the client, a lawyer must promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, must promptly render a full accounting regarding such property.
- Third Person’s Interest in Property Held by Lawyer: Sometimes a third person (for example, a client’s creditor) has an interest in the client’s funds or other property. A common scenario is when a third person has a lien on the client’s recovery in the case. Sometimes, the client and third person disagree on where the property should go (for example, where the client orders the lawyer to give them all of the settlement proceeds in spite of the third person’s lien).
If a lawyer is in possession of funds or other property and knows that a third person has an interest in such property, the lawyer must not disregard that interest if it is based on any of the following:
- A final judgment addressing disposition of the property
- A written agreement by the client guaranteeing payment out of the property
- A statutory lien
In other words, the lawyer generally can’t deliver the property directly to the client if the lawyer knows that a third person has a valid interest in the funds. However, the lawyer may disregard the third person’s claimed interest if the lawyer reasonably concludes that there is a valid defense to such judgment, agreement, or lien.
Disputed Property
When a lawyer possesses property in which at least 2 persons (one of whom may be the lawyer) claim interests, the lawyer must keep the disputed portion separate (meaning, any funds should be kept in the client trust account) until resolution of the dispute. However, the lawyer must promptly distribute all portions of the property that are not in dispute. The lawyer should suggest means for prompt resolution of the dispute.
IOLTA Accounts
If the client’s funds are too small in amount or held too briefly to earn interest for the client, the lawyer generally must place the client’s funds into a pooled client trust account (known as an “IOLTA account”). The interest goes to the Georgia Bar to fund nonprofit legal service organizations.
Termination of the Relationship
Responsibilities to the Client
When terminating the representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any unearned advance payments. The lawyer should also make it clear to the client that the relationship has ended.
Responsibilities of Subordinate Lawyer
Responsibilities to Others
**A subordinate lawyer will be responsible for clearly unethical misconduct even if they were just following orders. **
However, a subordinate lawyer will not be subject to discipline for acting in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty (in other words, the subordinate is not ethically responsible for following their supervisor’s orders when it’s a close call).
Supervisor’s/Partner’s Duty to Train and Guide in Ethics Matters
Responsibilities to Others
A lawyer with direct supervisory authority over particular lawyers must make reasonable efforts to ensure that those lawyers conform to the RPC. A partner or other managing lawyer in a firm must make reasonable efforts to ensure that the firm has measures in effect giving reasonable assurance that all lawyers at the firm confirm to the RPC.
Supervisors and partners have the same duties as above with respect to nonlawyers (whether directly employed by the firm or acting as outside contractors). The lawyer must make reasonable efforts to assure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.
Lawyer’s Responsibility for Another’s Misconduct
Responsibilities to Others
A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer—or for an act of a nonlawyer that, if done by a lawyer, would violate a disciplinary rule—when either of the following apply:
- The lawyer ordered the second lawyer’s (or nonlawyer’s) misconduct, or knew about it and ratified it; or
- The lawyer was a partner or manager or had direct supervisory responsibility over the second lawyer (or nonlawyer), and they knew about the misconduct at a time when its consequences could be avoided or mitigated and failed to take reasonable remedial action
Communicating with Represented Person
Responsibilities to Others - Fairness to Opposing Counsel
In the course of representing a client, a lawyer must not communicate about the subject of the representation with a person they know to be represented by counsel in relation to the matter (regardless of whether the person is a party to the matter), unless:
- The person’s counsel has granted permission; or
- The lawyer is otherwise authorized by law or court order to make the direct communication
Actual knowledge of representation is required, but knowledge can be inferred from the circumstances.
Note that this rule does not prohibit:
1. conversations on topics unrelated to the matter; or
2. direct communications between the parties.
Application of Rule to Represented Organizations
The rule above also applies to represented organizations. A lawyer must get the consent of the organization’s counsel before communicating with a current employee or other constituent of the organization who falls within any of the following categories:
- The person supervises, directs, or regularly consults with the organization’s lawyer concerning the matter;
- The person has authority to obligate the organization with respect to the matter; or
- The person’s act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability
Note, however, that if the person has their own counsel in the matter, then consent from the person’s counsel is sufficient.
- Former Constituents of Organization: A lawyer need not obtain the organization’s consent before talking with a former employee. However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization’s legal rights, such as the attorney-client privilege (meaning, the lawyer shouldn’t ask the former employee about any privileged conversations they had with the organization’s attorney). Additionally, before proceeding with the interview, the lawyer must disclose the identity of their client and obtain consent from the former employee.
Access to Evidence
Responsibilities to Others - Fairness to Opposing Counsel
Concealing or Falsifying
A lawyer must not falsify evidence or counsel or assist a witness to testify falsely. Additionally, a lawyer must not unlawfully obstruct another party’s access to evidence, or unlawfully alter, destroy, or conceal a document or other item having potential evidentiary value. Nor may a lawyer counsel anyone else to do these acts.
Advising Person Not to Give Information
A lawyer may advise a person to refrain from voluntarily giving information to an opponent or other party, but only if the person is a client or the client’s relative, employee, or agent, and the lawyer reasonably believes that the person’s interests won’t be harmed by not volunteering the information.
Paying Witnesses
The following payments to witnesses are generally allowed:
- Reasonable expenses incurred by the witness in preparing, attending, or testifying (for example, travel expenses)
- Compensation for loss of time in attending and testifying
- Reasonable fees to expert witnesses
However, such payments must never be contingent on the content of the testimony or the outcome of the case.
Using Threats to Gain Advantage in Civil Matter
Responsibilities to Others - Fairness to Opposing Counsel
While representing a client in a civil matter, a lawyer must not present, participate in presenting, or threaten to present criminal charges solely to gain an advantage for the client.
Ex Parte Communications and Other Improper Contact
Responsibilities to Others - Candor, Duties to the Tribunal
During a proceeding, a lawyer must not communicate ex parte
(outside of the official proceedings) with a judge, juror, prospective juror, or other official except as permitted by law. Nor may a lawyer seek to influence such persons by unlawful means or engage in any conduct intended to disrupt a tribunal.
Communicating with Jury After Discharge
A lawyer may generally interview jurors and prospective jurors after the jury has been discharged, unless:
1. the communication is prohibited by law or court order;
2. the juror has made known a desire not to communicate; or
3. the communication involves misrepresentation, coercion, duress, or harassment.
Disclosing Law and Facts
Responsibilities to Others - Candor, Duties to the Tribunal
A lawyer must not knowingly make a false statement of fact or law to the tribunal. Additionally, a lawyer has the following affirmative duties that continue until the end of the proceeding (which includes appeals).
Disclosing Adverse Legal Authority
A lawyer must disclose to the tribunal legal authority in the controlling jurisdiction that is directly adverse to the client’s position and that has not been disclosed by opposing counsel.
Disclosing Facts in Ex Parte Proceedings
While a lawyer must disclose controlling law, a lawyer generally has no duty to volunteer facts that are harmful to their client’s case. However, in an ex parte proceeding, other than a grand jury proceeding, the lawyer must inform the tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision.
Client Perjury and Other False Evidence
- Knowledge of Falsity—Must Not Offer: In a matter pending before a tribunal, the lawyer must refuse to offer evidence (including client testimony) that they know is false. When a client wants to testify falsely or wants the lawyer to introduce false evidence, the lawyer should try to persuade them otherwise. If the persuasion is ineffective, the lawyer must refuse to offer the evidence or seek to withdraw.
- Reasonable Belief in Falsity—Usually May Refuse to Offer: If a lawyer doesn’t know, but reasonably believes that testimony or other evidence will be false, the rule becomes permissive. A lawyer may refuse to offer evidence that they reasonably believe is false, except for a criminal defendant’s testimony on their own behalf.
- Client Committed Perjury or Other False Evidence Offered—Reasonable Remedial Measures:If a lawyer has offered evidence and later discovers that it’s false, they must take the following reasonable remedial measures:
- Step 1: Urge the client to cooperate in withdrawing or correcting it
- Step 2: If unsuccessful, seek to withdraw if necessary, and/or take other measures to strike the evidence (often, withdrawal won’t work because the next attorney would have to deal with the same problem)
- Step 3: If all else fails, disclose the situation to the judge, even if that means disclosing information that would be protected by the duty of confidentiality
Trial Lawyer as Witness
Responsibilities to Others - Candor, Duties to the Tribunal
As a general rule, a lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. In such a situation, the lawyer should refuse employment or should withdraw from the case if they have already been retained. However, this dual role is permitted in any of the following situations:
- The trial lawyer’s testimony will relate solely to an uncontested issue;
- The trial lawyer’s testimony will relate solely to the nature and value of legal services they have rendered in the case; or
- Withdrawal would cause substantial hardship to the client
Note, however, that the lawyer may generally proceed as trial counsel if other attorneys at their firm are likely to be witnesses (there is no imputed disqualification). However, any conflicts of interest must be addressed (for example, if the lawyer’s testimony will be harmful to the client’s case, the client may need to provide informed consent to the firm representing them).
Acting as Advocate in Non-Adjudicative Proceeding
Responsibilities to Others - Candor, Duties to the Tribunal
Lawyers sometimes appear before legislatures, city councils, executive agencies, regulatory boards, and other legislative or administrative tribunals that are acting in a rule-making or policy-making capacity. If a lawyer is representing a client in connection with such a proceeding at which the lawyer or client is presenting evidence or argument, the lawyer must disclose that the appearance is in a representative capacity (but need not disclose the client’s identity).
Additionally, the lawyer must generally act as if they were in front of a court (for example, they must not offer false evidence, make false statements, attempt to improperly influence the decision-makers, obstruct access to evidence, and so forth).
Respecting Others’ Time
Responsibilities to Others - Third Parties
Harassment
A lawyer must not take any action on behalf of a client (for example, filing suit, conducting a defense, or delaying a trial) when such action would serve merely to harass or maliciously injure another.
Frivolous Claims
A lawyer must not knowingly advance a claim or defense that is unwarranted under existing law, unless there is a good faith argument for the extension, modification, or reversal of existing law.
Expediting Litigation
A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.
Honesty When Dealing with Third Persons
Responsibilities to Others - Third Parties
A lawyer must not make a false statement of material fact to a third person in the course of representing a client. However, “puffery” is allowed and is not considered a statement of material fact. Puffery includes
1. estimates of price or value and
2. statements of a party’s intentions as to settlement.
Disclosing Material Facts to Address Client’s Crime or Fraud
A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud—unless the lawyer is forbidden to do so by the ethical duty of confidentiality (which will generally be the case unless an exception to confidentiality applies). Where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued representation would require the lawyer to assist in the client’s crime or fraud, the lawyer must withdraw.
Respect for Rights of Third Persons
Responsibilities to Others - Third Parties
In representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. Additionally, a lawyer must not use methods of obtaining evidence that violate a third person’s legal rights (for example, a lawyer should not try to convince a person to give them privileged information).
Documents Sent Inadvertently
Responsibilities to Others - Third Parties
When a lawyer obtains such a document or electronically stored information relating to the representation of the lawyer’s client, and when they know or reasonably should know that it was sent by mistake, they must promptly notify the sender so that the sender can take protective measures.
Trial Publicity
Responsibilities to Others - Third Parties
A lawyer who is connected with an investigation or litigation of a matter (or any associated lawyer in their firm or agency) must not make any extrajudicial statement that the lawyer reasonably should know:
1. will be publicly disseminated and
2. will have a substantial likelihood of materially prejudicing the case.
However, certain dry facts about the case, such as the identity of the accused and the fact of the arrest, are permitted.
Right of Reply
The lawyer is permitted to make a public statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. For example, if the other side gave a press conference and said something prejudicial about the client, the lawyer can respond with a clarification. Any statement made pursuant to this rule must be limited to information that is necessary to mitigate the recent adverse publicity.
Special Duties of Prosecutors
Responsibilities to Others - Third Parties
A prosecutor in a criminal case must:
- 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 mitigate the offense
- Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause
- Refrain from making any effort to prevent the accused from exercising a reasonable effort to obtain counsel
- Refrain from communicating with a person represented by counsel in certain circumstances
- Exercise reasonable care to prevent persons under their direct supervision from making an extrajudicial statement that the prosecutor would be prohibited from making under the trial publicity rules
- In addition to following the trial publicity rules, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused (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)
- Not subpoena a lawyer in a criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information is not privileged; (2) the evidence is essential; and (3) there is no feasible alternative
- Promptly disclose new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense to an appropriate court or authority. If the conviction was obtained in the prosecutor’s jurisdiction, the prosecutor must promptly disclose the evidence to the defendant unless a court authorizes delay and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was wrongfully convicted
- Seek to remedy a conviction obtained in the prosecutor’s jurisdiction when the prosecutor knows of clear and convincing evidence that a defendant did not commit the offense
Communicating with an Unrepresented Person
Responsibilities to Others - Third Parties
Previously, we discussed how a lawyer who is representing a client in a matter is generally prohibited from contacting a represented person about the matter without their attorney’s consent. In contrast, when a person is not represented by counsel (or if the person is represented but the lawyer has no reason to know that), a lawyer who is representing a client in a matter is allowed to communicate with the person directly about the matter. However, such communications are subject to the following restrictions:
- The lawyer must not state or imply that they are disinterested.
- If the unrepresented person misunderstands the lawyer’s role, the lawyer must make reasonable efforts to correct the misunderstanding.
- If the person’s interests conflict or may possibly conflict with the client’s interests, the lawyer must not give any legal advice (except that the lawyer may advise the person to obtain counsel).
Pro Bono Service
Responsibilities to Others - Public Service
A lawyer should aspire to render a specified minimum number of hours of pro bono legal services per year. The RPC suggest 50 hours. A substantial majority of time should be devoted without fee to persons of limited means or to organizations in matters that are designed to help persons of limited means. A lawyer should also contribute financially to organizations that provide legal services to persons of limited means. Keep in mind that a lawyer is not subject to discipline for failing to meet this aspirational goal.
Membership in Legal Services Organization
Responsibilities to Others - Public Service
A lawyer may serve as a director, officer, or member of a legal services organization (apart from the lawyer’s regular employment) even though the organization serves persons whose interests are adverse to the lawyer’s regular clients. However, the lawyer must not knowingly participate in a decision or action of the organization if doing so:
- Would be incompatible with the lawyer’s obligations to a client under the general conflict of interest rules, or
- Would adversely affect the representation of one of the organization’s clients whose interests are adverse to those of a client of the lawyer
Law Reform Activities
Responsibilities to Others - Public Service
When a lawyer is working on a law reform project and is asked to participate in a decision that could materially benefit one of the lawyer’s clients, the lawyer must disclose that fact (but need not identify the client).
Quick-Advice Programs
Responsibilities to Others - Public Service
A lawyer may participate in a quick-advice program (also known as a “limited legal services program”). The RPC (including the duties of competence, confidentiality, and so on) generally apply to the lawyer-client relationship. However, when the program is sponsored by a court or nonprofit organization, the conflicts of interest rules are relaxed. Because a lawyer in this situation has no time to run a standard conflicts check, the conflicts rules relating to current and former clients do not apply unless the lawyer actually knows that giving the quick advice would create a conflict of interest. However, the conflict rules will kick back in if the lawyer decides to represent the client on an ongoing basis.
Acting as Third-Party Neutral
Responsibilities to Others - Public Service
A lawyer who serves as a third-party neutral (for example, an arbitrator or mediator) is not acting as a lawyer in the matter and must inform unrepresented parties that the lawyer is not representing them. Where the lawyer reasonably should know that a party does not understand the lawyer’s role, the lawyer must explain the difference between a lawyer’s role as third-party neutral and a lawyer’s role as one who represents a client (for example, lack of attorney-client privilege when a lawyer is acting as a third-party neutral).
When Party to Mediation is Also Current or Former Client
Responsibilities to Others - Public Service
When a lawyer is serving as a third-party neutral in a mediation, and any party to the mediation is a current or former client of the lawyer or the lawyer’s firm, the lawyer may serve as a third-party neutral only if:
- The matter in which the lawyer serves as a third-party neutral is not the same matter in which the lawyer or their firm represents or represented the party; and
- All parties to the mediation give informed consent, confirmed in writing
Regulation of Judges
Judicial Responsibilities
Judges are subject to the Georgia Code of Judicial Conduct, and are regulated by the Judicial Qualification Commission, under the authority of the Georgia Supreme Court. Most judges in Georgia are elected on a non-partisan basis. Judicial vacancies are filled by appointment.
Practice of Law
Judicial Responsibilities
A judge generally must not engage in the practice of law. However, a judge may act pro se. A judge may also, without compensation, draft documents for or give legal advice to family members (however, they can’t represent a family member or anyone else in court).
Avoiding Impropriety
Judicial Responsibilities
Judges are subject to discipline for conduct on and off the bench. They must avoid impropriety and even the appearance of impropriety. Specifically, a judge must not:
- Voluntarily appear as a character witness (but may comply with a subpoena)
- Be a member of an organization that practices invidious discrimination
- Engage in relationships that create an appearance of impropriety
- Misuse their judicial prestige
Ex Parte Communications
Judicial Responsibilities
A judge must not initiate, permit, or consider an ex parte communication unless the communication:
1. is authorized by law;
2. concerns settlement or mediation and the parties consent; or
3. concerns an emergency or scheduling matter and no party will gain an advantage.
When an ex parte communication happens, the judge must notify the other side of the essence of the communication and give them an opportunity to respond.
Commenting on Evidence
Judicial Responsibilities
It is reversible error for a judge to comment on the evidence or express an opinion about the merits of the case to the jury.
Disqualification
Judicial Responsibilities
A judge must disqualify themselves in the following circumstances:
- Personal knowledge of relevant facts
- Prior involvement in the case
- Economic interest in the case
- Relative’s involvement in the case
- Personal bias or prejudice
Extrajudicial Activites
- A judge generally must not publicly endorse political candidates.
- A judge may speak, write, lecture, teach, and participate in other activities concerning the law, legal system, and the administration of justice, and they may generally receive a fee for such activities.
- A judge is generally not permitted to assist in fundraising, unless it is on behalf of a law-related or non-profit organization (but even in this situation, the judge should not personally solicit the funds).
Business Transactions with Client
Responsibilities to the Client
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client, unless all of the following conditions are satisfied:
- The terms are fair and reasonable to the client;
- The terms are fully disclosed to the client in a writing that the client can reasonably understand;
- The client is advised in writing that they should get independent advice from an outside lawyer before entering into the arrangement, and is given a reasonable opportunity to do so; and
- The client gives informed consent, in a writing signed by the client, to the terms of the transaction and the lawyer’s role in the transaction (including whether the lawyer will be representing the client in the transaction)
Standard Commercial Transactions
Note that this rule does not apply to standard commercial transactions between the lawyer and client for products or services that the client generally markets to others (for example, if the client is a bank, the lawyer can open a checking account at that bank).
Conflicts Between Client and Lawyer
Responsibilities to the Client
A lawyer may sometimes have a conflict based on their own personal interest (for example, where the lawyer has a financial interest in an adverse party’s business). These conflicts can generally be waived by obtaining informed consent from the client after consulting with them and letting them know about the material risks and giving them the advice and opportunity to consult with independent counsel.
