Rule 1: Client-Lawyer Relationship Flashcards
1
Q
Competence Rule
A
A lawyer shall provide competent representation to a client. (1.1)
2
Q
What does competent representation require?
A
Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Emergency exception: a lawyer can provide assistance or advice without the required skill, limited to what is reasonably necessary under the circumstances
3
Q
Factors of competent representation
A
Complexity of matter (major litigations or complex transactions usually require more extensive treatment)
Lawyer’s general experience
Lawyer’s training and experience in the field in question
Preparation and study (does the lawyer have time to do this, and is it feasible to refer or consult with established practitioner?)
4
Q
Required proficiency of competence
A
Usually the same competence of a general practitioner, but need special expertise for special matters (hardly ever – preparation and study can usually make up for this. If a lawyer can become competent through study and time, they can accept representation).
5
Q
When can a lawyer consult outside of the firm?
A
A lawyer can contract with a lawyer outside of their own firm only after they receive the client’s informed consent, if they reasonably believe the outside lawyer will contribute to the representation.
Lawyers should consult among themselves and with the client about the scope of representation and allocation of responsibilities.
6
Q
How much/often does a lawyer need to update their knowledge?
A
A lawyer should maintain requisite knowledge following trends in the law and its practice, including updated technology and CLE requirements
7
Q
Scope of Representation and Allocation of Authority Rule
A
A lawyer can act as impliedly authorized to represent a client, but must consult with the client and pursue their decisions and objectives of representation. A lawyer must abide by a client’s decision on whether to settle a matter or, in criminal trials, on plea deals, jury trials, and testimony. (1.2a)
A lawyer’s representation of a client is not an endorsement of the client’s beliefs or activities. (1.2b)
A lawyer can limit the scope of representation when reasonable and with informed consent (1.2c)
A lawyer will not counsel a client to engage in criminal or fraudulent activity, but can discuss information and consequences in good faith to determine application of the law (1.2d)
8
Q
Who determines the purpose of the legal representation?
A
The client has ultimate authority to determine the purposes to be served by legal representation, within the limits of the law and the lawyer’s professional obligation.
If there is a fundamental disagreement that cannot be resolved, the lawyer may withdraw from representation under Rule 1.16(b)(4) or the client can discharge the lawyer under 1.16(a)(3).
9
Q
Can a lawyer take specific legal action without consulting the client?
A
Yes, only if a client preauthorizes the lawyer to, as long as there are no material changes in circumstances
10
Q
How much can a lawyer limit the scope of representation?
A
Only to what is reasonable under the circumstances. This can also be stipulated at the beginning of representation, based on cost or limits to specific legal issues.
11
Q
What if a client asks the lawyer about criminal or fraudulent conduct?
A
A lawyer cannot counsel or assist with the conduct, but they can give information, discuss consequences, or try to determine legal application/validity/scope/meaning. The lawyer can give their honest opinion about the actual consequences that may result from a client’s conduct. A client’s use of this advice does not make the lawyer a party to the action.
Critical distinction between analyzing legal aspects of questionable conduct (OK), and recommending the means of committing a crime (not OK)
12
Q
What if a client is already committing fraudulent or criminal conduct when the lawyer hears about it?
A
The lawyer is required to avoid assisting the client. If the lawyer is already representing the client and discovers this conduct, they must withdraw. Under certain circumstances, the lawyer may need to further disaffirm any opinion (4.1) in addition to withdrawing.
This does not preclude providing criminal defenses.
13
Q
Diligence Rule
A
A lawyer shall act with reasonable diligence and promptness in representing a client. (1.3)
14
Q
What does diligence to a client require?
A
The use of any lawful and ethical measure to vindicate a client’s cause (keeping in mind 1.2, discretion on means of representation)
Commitment and dedication to the interests of the client
Controlled workload so each matter can be handled competently
Reasonable promptness (can still seek a non-prejudicial postponement)
NOT: offensive tactics
NOT: failing to treat everyone involved with courtesy and respect
15
Q
How do you determine if a lawyer has continuing responsibility to a client?
A
Unless a lawyer’s representation is terminated under 1.16, they must carry through to conclusion all matters undertaken.
If the client and lawyer have an ongoing relationship, the client can assume they have representation until the lawyer formally withdraws
If the representation is specialized/clearly one-time, representation terminates when the matter is resolved
If there is doubt whether a relationship exists, the lawyer should clarify in writing.
16
Q
What if the lawyer dies during representation?
A
If they are a solo practitioner, they should have a succession plan for cases.
17
Q
Communication Rule
A
A lawyer shall promptly inform the client of any decision or circumstance that requires informed consent, or in an emergency, inform afterwards (1.4a1);
reasonably consult with the client about the means of accomplishing objectives (1.4a2);
keep the client reasonably informed about the status of the matter, including timing and substance (1.4a3);
promptly comply with reasonable requests for information, or if not reasonable, acknowledge the request and give an ETA (1.4a4);
consult with the client about any relevant limitation on the lawyer, if they know the client expects something not ethical or legal (1.4a5)
A lawyer shall explain the matter as reasonably necessary to permit informed decisions by client (1.4b)
18
Q
What if the lawyer thinks the client will react badly (and possibly harm their case) after an immediate communication by the lawyer?
A
The lawyer may be able to delay transmission of information to the client, but can’t delay or withhold information to serve their own interests.
19
Q
Fees rule
A
A lawyer cannot agree to, charge, or collect an unreasonable fee or unreasonable expenses. (1.5a)
Scope of representation and basis or rate of the fee and expenses must be communicated, preferably in writing, before representation or within a reasonable time after starting representation. EXCEPT when client is regular and rate is the same. Changes must be communicated to client. (1.5b)
Contingent fee (reasonable) is ok unless prohibited. Agreement must be in writing, stating method of determining the fee, expenses, etc. Must outline everything client will be liable for. Afterwards, lawyer must itemize fee and expenses. (1.5c)
A lawyer cannot charge contingency fees in a domestic relations matter (contingent on a divorce or the amount of settlement) (1.5d1) or to a criminal defendant (1.5d2)
Division of fees between lawyers from different firms only ok in certain circumstances (1.5e)
20
Q
Reasonable fees factors (1.5a)
A
Time and labor required, novelty and difficulty of questions involved, and skill necessary to perform the service properly
Likelihood that acceptance of the employment will preclude other employment
Fee customarily charged in the area for similar services
Amount involved and results obtained
Time limitations imposed by client or circumstances
Nature and length of professional relationship with client
Experience, reputation, and ability of lawyer
Whether the fee is fixed or contingent
(Factors are not exclusive and not all may be relevant.)
21
Q
Can lawyers charge for expenses? How much?
A
Yes, lawyers can seek reimbursement for in-house services by expensing them or charging a reasonable amount to which the client has agreed.
22
Q
Can a lawyer require advance payment of fees?
A
Yes, but they must return any unearned portion.
23
Q
Can a lawyer accept property in payment for services?
A
Yes, limited by 1.8(i)
24
Q
Can a lawyer enter an agreement for services limited by a monetary cap?
A
Not if more extensive services will probably be required, unless the situation is adequately explained to the client
25
Are contingent fees limited?
They are subject to the reasonableness standard and can be limited by law
26
When can lawyers from different firms divide a fee?
Only when (all of the following):
The division is in proportion to the services performed by each lawyer, or each lawyer assumes joint responsibility for the representation (1.5e1);
The client agrees to the arrangement in writing, including the share for each lawyer (1.5e2); and
The total fee is reasonable (1.5e3).
27
Confidentiality of Information Rule (current clients)
A lawyer shall not reveal information relating to representation unless the client gives informed consent or the disclosure is impliedly authorized or permitted by (b) (1.6a)
A lawyer may reveal information they reasonably believe necessary for certain reasons (1.6b)
A lawyer must make reasonable efforts to prevent inadvertent or unauthorized disclosure of/access to info regarding representation (1.6c)
28
When may a lawyer reveal (reasonably necessary) information about a case?
To prevent reasonably certain death or substantial bodily harm, to the extent that it prevents that harm (certain = immediate, or present and substantial threat of later harm) (1.6b1)
To prevent the client from committing fraud or a crime which is reasonably certain to result in substantial injury to the financial interests or property of another, AND that the client has used the lawyer to further the crime or fraud (BUT the lawyer does not have to reveal the misconduct; still, this is abuse of the relationship by the client and they forfeit protection) (1.6b2)
To prevent, mitigate or rectify substantial injury to financial interests or property by the same standards as above, but where the lawyer does not know of the action until after. Doesn't apply in defense cases where the lawyer is not retained at all until after. (1.6b3)
To secure legal advice about the lawyer's compliance with the MPC (impliedly authorized, and besides authorized by the MPC) (1.6b4)
To establish a claim or defense on behalf of the lawyer where there is a controversy between lawyer and (current or former) client, based on client's conduct or the lawyer's representation of the client. Can disclose confidential info as reasonably necessary to establish a defense. (1.6b5)
To comply with other law or a court order (1.6b6.)
To detect and resolve conflicts of interest arising from changes in lawyer/firm, BUT only if revealed info would not compromise A-C privilege or otherwise prejudice the client (1.6b7).
29
When and how much information can a lawyer disclose to defend themselves from a client in court?
When a current or former client brings suit against a lawyer, or when a third party brings suit regarding lawyer's representation of the client.
Can disclose confidential information as far as reasonably necessary to establish a defense.
A lawyer can do this to prove services that they were entitled to a fee, in an action to collect the fee.
(1.6b5)
30
What if confidential information is required to be disclosed by other law?
A lawyer must discuss the matter with the client (communication, 1.4)
and should assert all nonfrivolous claims that the order to disclose is not authorized, or that the information sought is protected against disclosure by A-C privilege or other applicable law.
If ruled against and still required to disclose, lawyer must consult with client about possibility of an appeal (1.4).
(1.6b6)
31
How much information may a lawyer disclose to other lawyers when their employment or firm ownership is changing?
Lawyer can include no more information than:
The identity of the people and entities in a matter
Brief summary of general issues involved
Information about whether the matter has terminated.
Only to the extent necessary to detect and resolve potential conflicts of interest.
Disclosure is prohibited if it would compromise the A-C privilege or prejudice the client.
(1.6b7)
32
Can a lawyer choose not to disclose information surrounding representation in situations they are allowed to disclose?
The rule is permissive, so a lawyer's decision not to disclose does NOT violate the rule. But other rules may require disclosure. (1.6)
33
When permitted to disclose information that may be adverse to a client, how much can a lawyer disclose?
Lawyer should not disclose any more adverse info than they believe is necessary to accomplish the purpose.
Lawyer should if possible first seek to persuade the client to take action that obviates the need for disclosure.
34
What if a lawyer makes reasonable efforts to prevent disclosure of info regarding representation, but unauthorized access or disclosure occurs anyway?
If the lawyer made reasonable efforts to prevent the access or disclosure, such access or disclosure is not an ethical violation.
(1.6c)
35
What are the factors of reasonable efforts to prevent disclosure of info regarding representation?
Sensitivity of info
Likelihood of disclosure without additional safeguards
Cost and difficulty of employing additional safeguards
Extent to which safeguards adversely affect lawyer's ability to represent clients
(1.6c)
36
May the client agree to more or less security than is required under MPC confidentiality?
Yes. Clients can require better security measures, or can give informed consent to forego security measures normally required under 1.6. (1.6c)
37
How secure do communications between lawyer and client need to be?
Communications should be secure, but special security is not required if the communication has a reasonable expectation of privacy.
Factors in reasonable expectation of privacy:
Sensitivity of info
Extent to which the privacy of the communication is protected by law or confidentiality agreement
38
How long does the confidentiality regarding a representation last?
Forever. Duty continues after the client-lawyer relationship has terminated.
39
Conflicts of Interest (Current Clients) General Rule
Generally, a lawyer cannot represent a client if there is a conflict of interest (1.7a): if
(1) the representation of one client will be directly adverse to another client, or
(2) there is a significant risk that the representation of a client will be materially limited by the lawyer's responsibilities to another client, former client, third person, or a personal interest.
A lawyer may still represent a client notwithstanding a conflict of interest if (all)(1.7b):
(1) lawyer reasonably believes they will be able to provide competent and diligent representation to each affected client;
(2) representation is not prohibited by law;
(3) representation does not involve assertion of a claim by one client against another client by the same lawyer in the same proceeding;
(4) each affected client gives written informed consent
40
What does it mean for clients to be directly adverse to each other?
A lawyer cannot act as an advocate in one matter against a person they represent in another matter, even unrelated. Also should not represent codefendants in a criminal case
Clients are not directly adverse if their interests are economically (but not otherwise) adverse in separate, unrelated matters. (May not require consent.)
Class action unnamed members are not considered clients
(1.7a1)
41
What does it mean for a client to be materially limited by the lawyer's responsibilities to another?
Material limitations: if the nature of the relationship is such that the lawyer is materially limited in giving advice (like if they represent all parties seeking to form a joint venture)
Relevant: what is the likelihood that a difference in interests will come up? Will it materially interfere with the lawyer's independent professional judgment?
(1.7a2)
42
How may lawyers allow other related or relevant parties to affect their representation (conflicts of interest)?
A lawyer may not allow related business interests to affect representation (can't refer client somewhere the lawyer has undisclosed financial interest)
A lawyer related to another lawyer can't represent a client where the other lawyer is representing another party, without informed consent from each client
Lawyer cannot have sex with a client unless that relationship predates the A-C relationship
If someone else is paying for the client and it is likely to impact lawyer's independent judgment, go to (b) (notwithstanding)
(1.7a2)
43
What if a lawyer's participation during one representation creates precedent likely to seriously weaken the position of another client?
The lawyer must get informed consent from both clients, or withdraw. (1.7a2)
44
What if a conflict of interest means a lawyer will not be able to provide competent and diligent representation, but the client gives informed consent to the representation anyway?
Representation is still prohibited. The law prohibits clients from consenting to incompetent or undiligent representation. (1.7b1)
45
What if a lawyer's clients are opposed to each other during a mediation?
Not immediately a conflict of interest. They may not be directly against each other in any other proceeding, and cannot be opposed in the same litigation regardless of consent.
(1.7b3)
46
How can a client give informed consent to a conflict of interest?
A client must give informed consent in writing, after being aware of relevant circumstances, and of the (material and reasonably foreseeable) ways the conflict could have adverse effects on their interests.
Must be informed of potential effects on loyalty, confidentiality, A-C privilege, and advantages and risks involved
Disclosure of enough information to obtain consent may be impossible.
Written consent is required, but so is oral communication about the matter.
A client may revoke consent and terminate the lawyer's representation at any time.
(1.7b4)
47
What are the most important parts of conflicts of interest?
Lawyer's loyalty and independent judgment for each client
48
How can a lawyer resolve conflicts of interest?
1. identify clients
2. determine whether there is a conflict of interest
3. decide whether representation may still be undertaken (whether the conflict is consentable)
If the conflict is consentable, must get all parties' informed consent in writing
At the outset of common representation, lawyer should advise each client that info will be shared and that the lawyer will withdraw if one client decides that material matter should be kept from the other.
49
What if clients are generally aligned in interest, but there is some difference in interest?
A lawyer can still represent both clients.
A lawyer cannot represent multiple parties if they are fundamentally antagonistic to each other.
If parties' relationship is already somewhat antagonistic despite shared interests, it is not likely that common representation will serve their interests.
50
May a lawyer accept representation for clients who are already in conflict before representation?
Only with informed consent from each client. Lawyer must adopt reasonable procedures to determine if conflicts exist.
51
May a lawyer continue representation for clients who come into conflict during the representation?
The lawyer must withdraw unless they get informed consent.
Lawyer may be able to continue representing one (or some) of the clients, depending on their ability to comply with duties owed to the former client, and ability to adequately represent the remaining client.
If a lawyer withdraws from representation, they must continue to protect the confidences of the withdrawn client.
52
May clients consent to future conflicts of interest?
A waiver may be signed but is only effective to the extent that the client reasonably understood the material risks. A more precise waiver is more likely to hold.
53
May a lawyer ever represent parties opposed in the same litigation?
No, regardless of consent.
54
Conflicts of Interest (Current Clients): Specific Rules
A lawyer may not usually enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client. (1.8a)
A lawyer shall not use information relating to representation to disadvantage a client unless the client gives informed consent (except as permitted or required by MPC. Does not apply to uses that don't disadvantage the client.) (1.8b)
A lawyer shall not solicit any substantial gift from a client, including testamentary, and may not prepare on behalf of the client an instrument giving the lawyer/someone related any substantial gift UNLESS the lawyer or other recipient is related to the client. (1.8c)
Prior to the conclusion of representation, a lawyer shall not make or negotiate an agreement giving the lawyer literary or social media rights to a portrayal relating to the representation. (Does not include if a lawyer is representing a client related to the literary property and has fee include a share of ownership in the property.) (1.8d)
A lawyer shall not usually provide financial assistance to a client in connection with pending or contemplated litigation. (1.8e)
A lawyer shall not usually accept compensation for representing a client from someone other than the client. (1.8f)
A lawyer representing 2+ clients shall not make an aggregate settlement of the claims or an aggregate agreement of criminal claims, unless the clients give informed consent in writing. (1.8g)
A lawyer shall not prospectively limit their liability for malpractice, and may not settle potential claims for malpractice liability with an unrepresented/former client unless they are advised to and given an opportunity to seek independent legal counsel. (1.8h)
A lawyer shall not acquire a proprietary interest in a CoA or subject matter of litigation, except that they can get a lien for fees/expenses or contract for a reasonable contingent fee. (1.8i)
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship preexisted the A-C relationship. (If the client is an organization, this counts for employees who direct/consult with lawyer about the legal matters.) (1.8j)
While lawyers are associated in a firm, a prohibition from this section to any one of them applies to all of them (imputed conflicts) (1.8k).
55
May a lawyer ever enter into a business transaction with a client or acquire a pecuniary interest adverse to a client?
Yes, only if (all):
1) transaction and terms are fair and reasonable to the client, and are fully disclosed and transmitted in writing as can be reasonably understood by the client
2) the client is advised in writing of the desirability of seeking independent counsel, and is given a reasonable opportunity to do so; AND
3) client gives informed consent in writing on the essential terms of the transaction, and the lawyer's role in the transaction. Lawyer should discuss all material risks and the existence of reasonable alternatives
56
What if a lawyer's business transaction with/against a client is not closely related to the subject matter of the representation?
The conflict of interest requirements under 1.8a must still be met
57
What if a lawyer accepts nonmonetary property interest as any part of a fee arrangement?
Conflict of interest requirements under 1.8a must still be met.
Does not apply to fee arrangements with only money.
58
Is it a conflict of interest if a lawyer markets goods or services to others in commercial transactions?
No, the requirements need not be met, because the lawyer has no advantage in dealing with the client.
59
What if a lawyer has potentially adverse financial interest to a transaction?
Lawyer must comply with 1.7 (personal interests), including disclosing risks associated with their dual role, and the risk that they may give advice that favors their own interests. Must also get informed consent.
60
May a lawyer ever accept a gift from a client?
Yes, if the transaction meets general standards of fairness.
If a gift is so substantial that it requires a legal instrument, the client should have detached advice from another lawyer unless the client is a relative of the recipient.
A lawyer can still seek to be or have someone named executor of a client's estate, though limited by 1.7 (personal interest) so will require informed consent.
61
May a lawyer ever provide financial assistance to a client?
A lawyer may advance court costs and expenses of litigation, repayment of which can be contingent on outcome. (1.8e1)
A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client regardless of whether they will be repaid. (1.8e2)
62
May a lawyer ever accept compensation for representing a client from someone other than the client?
Yes, if (all):
1) the client gives informed consent
2) there is no interference with the lawyer's independence of professional judgment or with A-C relationship
3) information relating to the representation of a client is protected under 1.6 confidentiality.
Notes: third parties often have interests different from the client (e.g. insurers); see 1.7 for potential conflicts of interest.
63
Can a lawyer require forced arbitration for malpractice liability?
Yes, as long as the client is fully informed of the scope and effect of the agreement.
64
Can a lawyer settle a claim or potential claim for malpractice liability with a client?
Yes, as long as the lawyer gives the client notice of the desirability of seeking independent legal counsel and receives consent.
65
Duties to Former Clients
A lawyer who has formerly represented a client shall not represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client gives informed written consent. (1.9a)
A lawyer shall not knowingly represent a person in the same or a substantially similar related matter in which a firm with which the lawyer was formerly associated previously represented an adverse client, or where the lawyer acquired protected information related to the matter, unless the client gives informed written consent. (1.9b)
A lawyer who has formerly represented a client in a matter, or whose firm did, shall not (1) later use info from that representation to disadvantage the former client, except as otherwise permitted or required, or (2) reveal info relating to the representation except where otherwise permitted or required. (1.9c)
66
For duties to former clients, what makes a matter substantially related to a prior matter?
Matters are substantially related if they involve the same transaction or legal dispute, OR if there is otherwise a substantial risk that confidential factual info normally obtained in a representation would materially advance the client's position in the later matter.
Info that has already been disclosed to the public or to adverse parties is not disqualifying.
Info acquired in a prior representation may become obsolete through time.
Info on organization's general policies is not disqualifying, but specific facts are.
A former client is not required to reveal the confidential info learned by the lawyer in order to establish the risk that the lawyer has confidential info for use in subsequent matter. This can instead be deduced through nature of the services the lawyer provided, and info that would usually be learned.
(1.9a)
67
What are some considerations about a lawyer's firm's activity in a related former matter?
Client who was represented by the firm in the prior matter must be reasonably assured the principle of loyalty to them is not compromised
Rule should not be so broadly cast as to prevent others from having a reasonable choice of legal counsel
Rule should not unreasonably prevent lawyers from new associations and clients after leaving a firm
68
Imputations of Conflicts of Interest: General Rule
While lawyers are in a firm, USUALLY none of them shall knowingly represent a client when any one of them would be prohibited from doing so (1.10a)
When a lawyer ends association with a firm, the firm is USUALLY NOT prohibited from later representing someone adverse to that lawyer's former client (as long as the adverse party is not currently represented) (1.10b)
A disqualification under this rule can be waived with informed written consent (1.10c)
The disqualification of lawyers associated in a firm with former or current government lawyers is governed by the special conflicts of interest, 1.11 (1.10d)
69
May a lawyer in a firm EVER knowingly represent a client that another firm lawyer is not permitted to?
Yes, if the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation (1.10a1)
Yes, if the prohibition is based on the disqualified lawyer's association with a prior firm, PROVIDED THAT
(i) the disqualified lawyer is timely screened from participation and does not receive part of the fee;
(ii) written notice is promptly given to any former client so they may inquire or object; AND
(iii) certifications of compliance with the MPC are provided to the former client at reasonable intervals upon written request, and upon termination of the screening. (1.10a2)
70
When may someone in a firm be prohibited from a matter but the firm may still participate?
Representation is not prohibited where neither questions of loyalty nor confidential information are raised
Not a problem where the person prohibited from involvement is not a lawyer
Not a problem if the person prohibited from involvement is a lawyer, but it happened before they became a lawyer; but they must still be screened from participation.
(1.10a)
71
When is a firm still prohibited from representing an adverse party to a client of a lawyer who isn't with the firm anymore?
Not allowed when:
Client is still represented by the firm
The matter is the same or substantially related to the one where the formerly associated lawyer represented the client (1.10b1), AND any lawyer still in the firm has protected info that is material to the matter (1.10b2)
72
Special Conflicts of Interest for Former and Current Government Officers and Employees
Except as otherwise expressly permitted, a lawyer who used to be a public officer or government employee is subject to 1.9 (duties to former clients) (1.11a1); and may not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer/employee, UNLESS the appropriate government agency gives its informed written consent (whether or not the lawyer is adverse to former client) (1.11a2)
When a lawyer is disqualified from representation, conflicts are imputed to the firm unless the lawyer is timely screened from participation, given no part of the fee, and written notice is promptly given to the appropriate gov agency (1.11b)
Except as expressly permitted, a lawyer having info they know is confidential government info about someone that they got as a public servant, may not represent a private client whose interests are adverse to that person, where the info could be used to material disadvantage. Imputation unless timely screening applies. (1.11c)
Except as expressly permitted, a lawyer currently serving as a public officer/employee is subject to 1.7 conflicts of interest and 1.9 duties to former clients, and shall not participate in a matter in which they were a lawyer or other nongovernmental employee, UNLESS informed consent from agency (1.11d2i) AND cannot negotiate for private employment with someone involved in a matter, EXCEPT law clerks (1.11d2ii).
73
What matters are covered for conflicts with governmental employees or officials?
Matters include judicial or other proceedings, applications, requests for rulings, contracts, claims, controversies, charges, accusations, arrests, AND anything else covered by the conflict of interest rules of the government agency at issue.
Consider extent to which the matters involve the same basic facts, the related parties, and time elapsed.
74
Are gov employees or public officials disqualified from all matters the agency handled?
No, just matters they participated in personally and substantially.
75
Former judge, arbitrator, mediator, or other third-party neutrals rule
A lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or neutral (or clerk/officer of a judge), UNLESS informed written consent (1.12a)
A lawyer shall not negotiate for employment with anyone who is involved as a party or lawyer for a party in a matter of the same nature as above. Except that law clerks can, but only after they notify the judge they worked for (1.12b)
If a lawyer is disqualified by (a), conflict is imputed unless timely screening/no fee and written notice as soon as practicable (1.12c)
An arbitrator selected as a partisan of a party in a multimember arbitration is not prohibited from later representing that party (1.12d)
76
Organization as Client Rule
A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents (1.13a)
If a lawyer knows someone associated with the org may act in violation of a legal obligation or that might be imputed to the org and substantially harm it, the lawyer shall act as reasonably necessary in the best interest of the org (e.g. referring to higher authority in the org) (1.13b)
Generally, if a lawyer brings a 1.13b matter which is clearly a violation of law to higher authorities, but the authorities refuse or fail to act, AND the lawyer reasonably believes the violation is reasonably certain to result in substantial injury to the org, THEN the lawyer can reveal representational info regardless of confidentiality (to the extent the lawyer reasonably believes necessary to prevent substantial injury to org). (1.13c)
The above does not apply to a lawyer's representation to investigate an alleged violation of law, or to defend the organization or an officer/constituent. (1.13d)
A lawyer who reasonably believes they've been discharged because of actions relating to the above paragraphs, or who is required to and does withdraw pursuant to them, shall proceed as they reasonably believe necessary to inform the highest authority of discharge/withdrawal. (1.13e)
In dealing with people related to an org, lawyer shall explain the identity of the client when the lawyer knows the org's interests are adverse to the constituents the lawyer is dealing with. (Lawyer can't provide representation for the adverse constituent, and communications may not be privileged. (1.13f)
A lawyer representing an org can also represent any of its constituents subject to 1.7 conflicts of interest. (1.13g)
77
How are communications with people related to a client organization protected?
Communications with constituents of organization, in that person's capacity relating to the organization, are protected under 1.6 confidentiality; including governmental organizations
(1.13a)
78
If someone involved with a client organization might act in a way that could harm the organization, how should a lawyer proceed?
Lawyer cannot ignore the obvious, and can infer knowledge from circumstances.
Lawyer should consider the seriousness of the violation and its consequences; the person's responsibility in the organization; their apparent motivation; relevant org policies, and any other relevant considerations.
Measures taken should minimize the risk of revealing representational info
Generally this means referring issues to higher authority, but discretion -- lawyer can ask person to reconsider, but not if urgent
Action has to risk substantive injury or violation imputed to the org, not just a policy choice.
(1.13b)
79
Client with Diminished Capacity Rule
When a client's capacity to make adequately considered decisions is diminished, the lawyer shall as reasonably possible maintain a normal A-C relationship with them. (1.14a)
When the lawyer reasonably believes the client has diminished capacity, and is at risk of substantial harm unless action is taken, and can't act in their own interest, the lawyer may take reasonably necessary action including consulting with those who could take action, or seeking a guardian ad litem, conservator, or guardian. (1.14b)
Info relating to representation of a client with diminished capacity is still protected by 1.6 confidentiality. When taking protective action, lawyer is impliedly authorized under 1.6a to reveal info only to the extent reasonably necessary to protect the client's interests. The lawyer should consider whether anyone they're telling may act adversely to the client. (1.14c)
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Can a lawyer look to relatives or others to make decisions on behalf of a client with diminished capacity?
No. The lawyer must look to the client and not family members to make decisions, and must keep the client's interests the priority. This is only subject to (b) where the client is at risk of substantial harm and cannot advocate for themselves.
(1.14a)
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What are the factors a lawyer must consider when taking protective action on behalf of a client with diminished capacity?
The wishes and values of the client to the extent known
The client's best interests
The goal of intruding as little as possible into the client's decision-making autonomy
(1.14b)
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What are the factors a lawyer must consider in determining the extent of a client's diminished capacity?
Client's ability to articulate reasoning leading to a decision
Variability of state of mind
Ability to appreciate consequences
Substantive fairness of decision
Long-term commitments and values of client
(1.14b)
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If the lawyer tells confidential information to people who are there to assist a client with diminished capacity in understanding a matter, is 1.6 confidentiality broken?
No. (1.14c)
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Safekeeping Property Rule
A lawyer shall hold property in connection with a representation separate from a lawyer's own property. Funds must be in a separate account, or elsewhere with consent. Other property shall be identified and safeguarded. Records must be kept and preserved for 5 years after representation ends (1.15a)
A lawyer may deposit their own funds in a client trust account for the purpose of paying bank service charges on that account, only in an amount necessary for that (and keep records on what amount is the lawyer's) (1.15b)
A lawyer shall deposit advance legal fees and expenses into the client trust account, which can be withdrawn by lawyer as fees are earned or incurred (1.15c)
Upon receiving funds or property from another, lawyer shall promptly notify that person. Lawyer shall promptly deliver to the other any funds or property they are entitled to receive, and upon request shall render a full accounting of the property (1.15d)
When a lawyer is in possession of property that two people claim interest in, lawyer shall keep the property separate until dispute is resolved. They shall promptly distribute all parts of the property not in dispute. This includes when lawyer and client are in dispute over property. (1.15e)
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What if the lawyer and client are in dispute over fees owed?
Disputed portion of the funds must be kept in a trust account, and the lawyer should suggest prompt resolution like arbitration (1.15e)
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What if a third party makes a claim to client funds or other property that the lawyer has possession of?
If the claim is non-frivolous, the lawyer must refuse to surrender the property to the client until claims are resolved (1.15e)
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What standard is the lawyer held to regarding clients' or others' property?
Care of a professional fiduciary
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Declining or Terminating Representation Rule
Generally, a lawyer shall not represent a client (or shall withdraw) if:
1) representation will result in violation of MPC or law,
2) lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client, OR
3) the lawyer is discharged. (1.16a)
Generally, a lawyer may withdraw from representing a client if:
1) withdrawal can be accomplished without material adverse effect on client interests;
2) client persists in a course of action involving lawyer's services that lawyer reasonably believes is criminal or fraudulent;
3) client has used lawyer's services to perpetuate a crime or fraud;
4) client insists on taking action the lawyer considers repugnant or has a fundamental disagreement;
5) client fails substantially to fulfill an obligation to the lawyer regarding lawyer services, and has been given a reasonable warning that the lawyer will withdraw;
6) representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;
7) other good cause for withdrawal exists. (1.16b)
A lawyer must comply with law requiring notice to or permission of a tribunal when withdrawing. When ordered, lawyer shall continue representation. (1.16c)
On termination of representation, lawyer shall take steps as reasonably practicable to protect client's interests (1.16d)
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Must a lawyer withdraw from representation if a client suggests a course of conduct that violates MPC or other law?
No, the lawyer does not need to withdraw unless the actions become certain.
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When can a client discharge their lawyer?
Anytime, subject to liability for payment of services.
If a client wants to discharge an attorney who has been appointed to them, they must be aware of the consequences.
If the client has diminished capacity, they may not be able to discharge the lawyer under 1.14.
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May a lawyer who has been appointed to a client withdraw from representation?
Yes, only if the appointing authority approves. (1.16a, c)
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How should the lawyer explain withdrawal if it's because of a client's prior crime or fraud that used their services?
The lawyer doesn't have to disclose why they are withdrawing, just that there are professional considerations. (1.16b3)
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What continuing obligations does a lawyer have to a client they have withdrawn from, other than the duties to former clients?
Lawyer must reasonably protect client's interest, like giving reasonable notice, allowing time for them to get other counsel, surrendering papers and other property which belong to the client, and refunding any advance payment that has not yet been earned or incurred. (1.16d)
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Sale of Law Practice Rule
A lawyer or firm may sell or buy a law practice (or part of it), including good will, if:
The seller ceases to engage in the private practice of law in the area or jurisdiction of the practice (1.17a);
The entire practice, or area of practice, is sold to one or more lawyers or law firms (1.17b);
The seller gives written notice to each of the seller's clients (1.17c); AND
The fees charged to clients shall not be increased because of the sale (1.17d).
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May the seller of a law practice continue to practice law in the area?
Generally, no. But:
they may return to private practice later;
they may become staff of a public agency that provides legal services or in-house counsel;
depends on the geographic area.
If the seller stays in the geographical area, they must refrain from practicing in the area of law of the practice they sold.
(1.17a)
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Do the purchasers of a law practice need to take all the clients from the former practice?
Yes, provided that the clients consent and there is no non-consentable conflict of interest.
(1.17b)
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How does the seller of a law practice need to inform their clients?
In writing, including the purchaser's identity, and regarding:
1) the proposed sale,
2) the client's right to retain other counsel or take their file, AND
3) the fact that the client's consent to the transfer of files will be presumed if the client does not act or object within 90 days of receiving the notice.
(1.17c)
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What if a seller of a law practice cannot reach a client to give notice of the sale?
The representation may be transferred to the purchaser, but only after a court properly enters an order to that effect. The seller may disclose confidential info in camera to the extent necessary to get an order.
(1.17c)
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May a purchaser of a law practice increase fees for existing or future clients?
No, not because of the sale. The sale cannot be financed through fee increases, and the purchaser must honor existing fee arrangements with clients.
(1.17d)
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Duties to Prospective Clients Rule
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (1.18a)
Even when no A-C relationship ensues, a lawyer who has learned info from a prospective client shall not use or reveal that info, except as 1.9 duty to former clients would allow. (1.18b)
A lawyer subject to (b) shall generally not represent a client with interests materially adverse to those of a former prospective client on a similar related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Conflicts will be imputed. (1.18c)
When a lawyer has received disqualifying info, representation is still permissible if:
1) client and prospective client have both given informed written consent, OR
2) the lawyer who received the info took reasonable measures to avoid exposure to more disqualifying info than was reasonably necessary to determine whether to represent the prospective client, and they are screened, and written notice is given to the prospective client. (1.18d)
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When might someone communicating information to a lawyer not be considered a prospective client?
If information is communicated unilaterally, without reasonable expectation that the lawyer is willing to discuss forming a A-C relationship
If a person communicates with a lawyer for the purpose of disqualifying them (e.g. someone in a divorce case talking to every lawyer in town so their spouse can't get a lawyer)
(1.18a)
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Can a prospective client waive the duties to them under 1.18?
Yes, given informed consent that no info given during the consultation will prohibit the lawyer from representing a different client in the matter.
(1.18b)
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What if a lawyer wants to represent a client with interests adverse to a prospective client in a related matter?
A lawyer is only prohibited from doing this if they have received info from the prospective client that could be significantly harmful if used in the matter.
(1.18c)
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How should lawyers limit discussions with prospective clients?
A lawyer should limit the consultation to only the info that reasonably appears necessary for the purpose of considering whether to take that client.
(1.18)
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What if lawyers leave a firm? Do they take their own clients, or leave them?
While you're still at the firm, you can send a neutral, nonderogatory letter that you're leaving and asking who they want to continue representing them.
You can solicit former clients in person or in writing after leaving because of 7.4.
