Rule 1: Client-Lawyer Relationship

Question 1

Competence Rule

Answer 1

A lawyer shall provide competent representation to a client. (1.1)

Question 2

What does competent representation require?

Answer 2

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

Question 3

Factors of competent representation

Answer 3

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?)

Question 4

Required proficiency of competence

Answer 4

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).

Question 5

When can a lawyer consult outside of the firm?

Answer 5

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.

Question 6

How much/often does a lawyer need to update their knowledge?

Answer 6

A lawyer should maintain requisite knowledge following trends in the law and its practice, including updated technology and CLE requirements

Question 7

Scope of Representation and Allocation of Authority Rule

Answer 7

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)

Question 8

Who determines the purpose of the legal representation?

Answer 8

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).

Question 9

Can a lawyer take specific legal action without consulting the client?

Answer 9

Yes, only if a client preauthorizes the lawyer to, as long as there are no material changes in circumstances

Question 10

How much can a lawyer limit the scope of representation?

Answer 10

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.

Question 11

What if a client asks the lawyer about criminal or fraudulent conduct?

Answer 11

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)

Question 12

What if a client is already committing fraudulent or criminal conduct when the lawyer hears about it?

Answer 12

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.

Question 13

Diligence Rule

Answer 13

A lawyer shall act with reasonable diligence and promptness in representing a client. (1.3)

Question 14

What does diligence to a client require?

Answer 14

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

Question 15

How do you determine if a lawyer has continuing responsibility to a client?

Answer 15

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.

Question 16

What if the lawyer dies during representation?

Answer 16

If they are a solo practitioner, they should have a succession plan for cases.

Question 17

Communication Rule

Answer 17

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)

Question 18

What if the lawyer thinks the client will react badly (and possibly harm their case) after an immediate communication by the lawyer?

Answer 18

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.

Question 19

Fees rule

Answer 19

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)

Question 20

Reasonable fees factors (1.5a)

Answer 20

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.)

Question 21

Can lawyers charge for expenses? How much?

Answer 21

Yes, lawyers can seek reimbursement for in-house services by expensing them or charging a reasonable amount to which the client has agreed.

Question 22

Can a lawyer require advance payment of fees?

Answer 22

Yes, but they must return any unearned portion.

Question 23

Can a lawyer accept property in payment for services?

Answer 23

Yes, limited by 1.8(i)

Question 24

Can a lawyer enter an agreement for services limited by a monetary cap?

Answer 24

Not if more extensive services will probably be required, unless the situation is adequately explained to the client

Question 25

Are contingent fees limited?

Answer 25

They are subject to the reasonableness standard and can be limited by law

Question 26

When can lawyers from different firms divide a fee?

Answer 26

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).

Question 27

Confidentiality of Information Rule (current clients)

Answer 27

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)

Question 28

When may a lawyer reveal (reasonably necessary) information about a case?

Answer 28

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).

Question 29

When and how much information can a lawyer disclose to defend themselves from a client in court?

Answer 29

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)

Question 30

What if confidential information is required to be disclosed by other law?

Answer 30

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)

Question 31

How much information may a lawyer disclose to other lawyers when their employment or firm ownership is changing?

Answer 31

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)

Question 32

Can a lawyer choose not to disclose information surrounding representation in situations they are allowed to disclose?

Answer 32

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)

Question 33

When permitted to disclose information that may be adverse to a client, how much can a lawyer disclose?

Answer 33

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.

Question 34

What if a lawyer makes reasonable efforts to prevent disclosure of info regarding representation, but unauthorized access or disclosure occurs anyway?

Answer 34

If the lawyer made reasonable efforts to prevent the access or disclosure, such access or disclosure is not an ethical violation.

(1.6c)

Question 35

What are the factors of reasonable efforts to prevent disclosure of info regarding representation?

Answer 35

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)

Question 36

May the client agree to more or less security than is required under MPC confidentiality?

Answer 36

Yes. Clients can require better security measures, or can give informed consent to forego security measures normally required under 1.6. (1.6c)

Question 37

How secure do communications between lawyer and client need to be?

Answer 37

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

Question 38

How long does the confidentiality regarding a representation last?

Answer 38

Forever. Duty continues after the client-lawyer relationship has terminated.

Question 39

Conflicts of Interest (Current Clients) General Rule

Answer 39

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

Question 40

What does it mean for clients to be directly adverse to each other?

Answer 40

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)

Question 41

What does it mean for a client to be materially limited by the lawyer’s responsibilities to another?

Answer 41

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)

Question 42

How may lawyers allow other related or relevant parties to affect their representation (conflicts of interest)?

Answer 42

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)

Question 43

What if a lawyer’s participation during one representation creates precedent likely to seriously weaken the position of another client?

Answer 43

The lawyer must get informed consent from both clients, or withdraw. (1.7a2)

Question 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?

Answer 44

Representation is still prohibited. The law prohibits clients from consenting to incompetent or undiligent representation. (1.7b1)

Question 45

What if a lawyer’s clients are opposed to each other during a mediation?

Answer 45

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)

Question 46

How can a client give informed consent to a conflict of interest?

Answer 46

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)

Question 47

What are the most important parts of conflicts of interest?

Answer 47

Lawyer’s loyalty and independent judgment for each client

Question 48

How can a lawyer resolve conflicts of interest?

Answer 48

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.

Question 49

What if clients are generally aligned in interest, but there is some difference in interest?

Answer 49

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.

Question 50

May a lawyer accept representation for clients who are already in conflict before representation?

Answer 50

Only with informed consent from each client. Lawyer must adopt reasonable procedures to determine if conflicts exist.

Question 51

May a lawyer continue representation for clients who come into conflict during the representation?

Answer 51

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.

Question 52

May clients consent to future conflicts of interest?

Answer 52

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.

Question 53

May a lawyer ever represent parties opposed in the same litigation?

Answer 53

No, regardless of consent.

Question 54

Conflicts of Interest (Current Clients): Specific Rules

Answer 54

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).

Question 55

May a lawyer ever enter into a business transaction with a client or acquire a pecuniary interest adverse to a client?

Answer 55

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

Question 56

What if a lawyer’s business transaction with/against a client is not closely related to the subject matter of the representation?

Answer 56

The conflict of interest requirements under 1.8a must still be met

Question 57

What if a lawyer accepts nonmonetary property interest as any part of a fee arrangement?

Answer 57

Conflict of interest requirements under 1.8a must still be met.

Does not apply to fee arrangements with only money.

Question 58

Is it a conflict of interest if a lawyer markets goods or services to others in commercial transactions?

Answer 58

No, the requirements need not be met, because the lawyer has no advantage in dealing with the client.

Question 59

What if a lawyer has potentially adverse financial interest to a transaction?

Answer 59

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.

Question 60

May a lawyer ever accept a gift from a client?

Answer 60

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.

Question 61

May a lawyer ever provide financial assistance to a client?

Answer 61

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)

Question 62

May a lawyer ever accept compensation for representing a client from someone other than the client?

Answer 62

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.

Question 63

Can a lawyer require forced arbitration for malpractice liability?

Answer 63

Yes, as long as the client is fully informed of the scope and effect of the agreement.

Question 64

Can a lawyer settle a claim or potential claim for malpractice liability with a client?

Answer 64

Yes, as long as the lawyer gives the client notice of the desirability of seeking independent legal counsel and receives consent.

Question 65

Duties to Former Clients

Answer 65

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)

Question 66

For duties to former clients, what makes a matter substantially related to a prior matter?

Answer 66

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)

Question 67

What are some considerations about a lawyer’s firm’s activity in a related former matter?

Answer 67

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

Question 68

Imputations of Conflicts of Interest: General Rule

Answer 68

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)

Question 69

May a lawyer in a firm EVER knowingly represent a client that another firm lawyer is not permitted to?

Answer 69

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)

Question 70

When may someone in a firm be prohibited from a matter but the firm may still participate?

Answer 70

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)

Question 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?

Answer 71

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)

Question 72

Special Conflicts of Interest for Former and Current Government Officers and Employees

Answer 72

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).

Question 73

What matters are covered for conflicts with governmental employees or officials?

Answer 73

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.

Question 74

Are gov employees or public officials disqualified from all matters the agency handled?

Answer 74

No, just matters they participated in personally and substantially.

Question 75

Former judge, arbitrator, mediator, or other third-party neutrals rule

Answer 75

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)

Question 76

Organization as Client Rule

Answer 76

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)

Question 77

How are communications with people related to a client organization protected?

Answer 77

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)

Question 78

If someone involved with a client organization might act in a way that could harm the organization, how should a lawyer proceed?

Answer 78

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)

Question 79

Client with Diminished Capacity Rule

Answer 79

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)

Question 80

Can a lawyer look to relatives or others to make decisions on behalf of a client with diminished capacity?

Answer 80

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)

Question 81

What are the factors a lawyer must consider when taking protective action on behalf of a client with diminished capacity?

Answer 81

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)

Question 82

What are the factors a lawyer must consider in determining the extent of a client’s diminished capacity?

Answer 82

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)

Question 83

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?

Answer 83

No. (1.14c)

Question 84

Safekeeping Property Rule

Answer 84

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)

Question 85

What if the lawyer and client are in dispute over fees owed?

Answer 85

Disputed portion of the funds must be kept in a trust account, and the lawyer should suggest prompt resolution like arbitration (1.15e)

Question 86

What if a third party makes a claim to client funds or other property that the lawyer has possession of?

Answer 86

If the claim is non-frivolous, the lawyer must refuse to surrender the property to the client until claims are resolved (1.15e)

Question 87

What standard is the lawyer held to regarding clients’ or others’ property?

Answer 87

Care of a professional fiduciary

Question 88

Declining or Terminating Representation Rule

Answer 88

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)

Question 89

Must a lawyer withdraw from representation if a client suggests a course of conduct that violates MPC or other law?

Answer 89

No, the lawyer does not need to withdraw unless the actions become certain.

Question 90

When can a client discharge their lawyer?

Answer 90

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.

Question 91

May a lawyer who has been appointed to a client withdraw from representation?

Answer 91

Yes, only if the appointing authority approves. (1.16a, c)

Question 92

How should the lawyer explain withdrawal if it’s because of a client’s prior crime or fraud that used their services?

Answer 92

The lawyer doesn’t have to disclose why they are withdrawing, just that there are professional considerations. (1.16b3)

Question 93

What continuing obligations does a lawyer have to a client they have withdrawn from, other than the duties to former clients?

Answer 93

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)

Question 94

Sale of Law Practice Rule

Answer 94

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).

Question 95

May the seller of a law practice continue to practice law in the area?

Answer 95

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)

Question 96

Do the purchasers of a law practice need to take all the clients from the former practice?

Answer 96

Yes, provided that the clients consent and there is no non-consentable conflict of interest.

(1.17b)

Question 97

How does the seller of a law practice need to inform their clients?

Answer 97

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)

Question 98

What if a seller of a law practice cannot reach a client to give notice of the sale?

Answer 98

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)

Question 99

May a purchaser of a law practice increase fees for existing or future clients?

Answer 99

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)

Question 100

Duties to Prospective Clients Rule

Answer 100

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)

Question 101

When might someone communicating information to a lawyer not be considered a prospective client?

Answer 101

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)

Question 102

Can a prospective client waive the duties to them under 1.18?

Answer 102

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)

Question 103

What if a lawyer wants to represent a client with interests adverse to a prospective client in a related matter?

Answer 103

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)

Question 104

How should lawyers limit discussions with prospective clients?

Answer 104

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)

Question 105

What if lawyers leave a firm? Do they take their own clients, or leave them?

Answer 105

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.