ABA MRPC
ABA has no disciplinary authority and membership is voluntary, but states base their RPC on the model rules.
Courts
states highest courts have inherent power to regulate lawyers and adopt ethical rules for lawyers
What is a rational requirement for admission to the bar?
(1) graduation from ABA accredited law school
(2) requiring applications to uphold federal and state constitutions
(3) good moral character: applicant fills out questionnaire and admission committee investigates applicant's past conduct; conduct involving
What is not a rational requirement for admission to the bar?
(1) US citizenship
(2) residency in the state
(3) banning people whom belong to a group. i.e. communists
Regarding character investigations, an applicant or lawyer recommending an applicant must not:
(1) make a false s statement of material fact;
(2) fail to respond to a lawful demand for information (duty to cooperate); or
(3) fail to disclose any fact necessary to correct a misapprehension.
However, this does not require a lawyer to disclose informa
Duty of a lawyer to report professional misconduct:
(a) a lawyer who KNOWS that another lawyer has committed a violation that raises a substantial. question as to the lawyer's honesty, trustworthiness, or ability to practice MUST report the violation, unless duty of confidentiality applies (lawyer learned
Regulation after Admission
(1) lawyer is subject to discipline for committing a crime if the crime is relevant to some aspect of practicing law (most crimes involving dishonesty and serious violence qualify, but solicitation of prosecution or a single DUI probably would not).
(2) a
Jurisdiction to discipline a lawyer
(a) any state in which the lawyer is admitted to practice has power to discipline. the lawyer, regardless of where conduct occurred.
(b) a lawyer not admitted in the state is also subject to the jurisdiction of the state if the lawyer renders or offers to
Choice of law for disciplinary matters
(a) for conduct in connection with litigation pending before a court, the rules of the jurisdiction in which the court sits govern the lawyer's conduct
(b) for any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred (or whe
The following require a license (and constitute the "practice of law"):
(1) appearances in judicial proceeding and depositions
(2) drafting documents that affect substantial legal rights.
(3) negotiating settlements
The following activities do not require a license (these do. NOT constitute the "practice of law"):
(1) interviewing people
(2) filing in forms
(3) writings memos
Permissible temporary multijursidictional practice:
(a) associate with an active local lawyer;
(b) special permission call pro has vice;
(c) mediation or arbitration out of home-state practice; and
(d) anything reasonably related to lawyer's home-state practice
Permissible permanent multijuridictional practice:
lawyer employed by her only client (usually in-house counsel)
Other than by express intent of the parties, a relationship may be formed if:
(a) client manifests intention that lawyer represent him;
(b) lawyer fails to clearly decline; AND
(c) lawyer knows that client is reasonably relying on her to provide the services
Appointments
A lawyer must not seek to avoid appointment by a tribunal to represent a person except for good cause, such as unreasonable financial burden or personal inability to represent client effectively
Scope of representation
a lawyer may reasonably limit the scope of the representation if the client gives informed consent
a lawyer mustn't to counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent (but may discuss legal conseq
Client's decisions [important] v. lawyer's decisions [tactical/strategical]
in a civil case, a lawyer must abide by client's decision whether to settle.
in a criminal case, the lawyer must abide by the client's decision, after consultation with the lawyer, as to: (1) plea; (2) waiver of jury trial to go to bench trial; (3) whethe
Lawyer's Duty of Communication
a lawyer must:
(1) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable request for informat
Fees
the fee arrangement (scope of representation, basis or rate of fee, and expense for which client will be responsible) must be communicated to client before a within a reasonable time after representation starts. As a general rule, a WRITTEN fee agreement
All fees must be reasonable. Factors in determining reasonableness of fee include:
(a) time and labor required (must not double bill for the same period of time)
(b) novelty and difficulty of questions involved;
(c) whether lawyer must turn away other cases, if the client is aware of this;
(d) what other attorneys in the community charg
Contingent Fees
(a) generally permissible, but the agreement must be in writing and signed by the client. The agreement must clearly notify the client of any expenses for which the client will be liable, whether or not the client is the prevailing party.
(b) prohibited:
Required disclosures to client (in the written fee agreement)
(1) how the fee is to be calculated, including the percentages that will accrue to the lawyer in the event of settlement, trial, or appeal;
(2) what expenses are to be deducted from the recovery
(3) whether deductions for expenses will be made before or a
When lawyer is terminated before contingent fee is awarded:
(1) without cause: lawyer is entitled for reasonable amount of services, but not done until contingency happens.
(2) with cause: lawyer not entitled to payment
Fee splitting with other lawyers
(a) lawyers in the same firm may split in any manner; they may also split fee pursuant to separation or retirement agreements with lawyers who have left the firm
(b) lawyers in different firms may split fees from a matter only if:
[1] the division is in p
Mandatory withdrawal (lawyer must withdrawal)
(1) lawyer's physical or mental disability materially impairs lawyer's ability to represent the client.
(2) if the representation will result in a violation of the RPC or other law (in addition, a lawyer must consult with the client about any relevant lim
Permissible withdrawal (lawyer may withdrawal)
(1) withdrawal can be accomplished without material adverse effect on the client;
(2) client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) client has used the lawyer's ser
Upon withdrawal....
lawyer must take steps to protect a client's interest, such as giving reasonable notice to the client and allowing time for employment of other counsel
a lawyer must surrender papers and property to which the client is entitled and refund any advanced pay
Competence
a lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Three ways to avoid an incompetence problem (take ALE):
(1) A: associate [someone competent in field]
(2) L: learn it [in time]
(3) E: emergency [but only for period of emergency]
Deligence
(1) lawyer must act with reasonable diligence and promptness in representing a client. As part of this duty, the lawyer must control his workload.
(2) the lawyer's duty to act with reasonable diligence does NOT require incivility or the use of offensive t
Malpractice Liability
(1) violation of RPC does NOT necessarily mean there is legal malpractice and vice versa.
(2) however, violation of a model rule is some relevant evidence of legal malpractice
(3) unlike disciplinary violations, malpractice requires money loss and causati
Theories of Malpractice Liability
(a) intentions tort
(b) breach of fiduciary duties
(c) breach of contract
(d) negligence (to clients, prospective clients, and third parties who are intended to benefit from legal services)
[1] standard of care
[[a]] general practitioner: regular "compete
Settlement of existing malpractice claim
a lawyer must not settle a claim or potential claim for legal malpractice with an unrepresented client or former client unless she advises the client in writing to seek the advice of independent legal counsel, and gives the client a reasonable opportunity
Prospective limitation of malpractice liability
a lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless client is independently represented in making the agreement
Duty of confidentiality
a lawyer mustn't to reveal information relating to the presentation of the client
Attorney-Client Privilege
(1) only covers confidential communication between a lawyer and client made for the purpose of legal advice (e.g., a lawyer's conversation with a non client witness is not privileged, but is protected under the duty of confidentiality)
(2) protects a cour
In contrast, the duty of confidentiality
(1) protects all information relating to representation
(2) applies to any type of disclosure by the lawyer (not just within a courtroom)
(3) is held by the lawyer
**continues after the representation ends, and also applies to information learned during d
Exceptions to duty of confidentiality
a lawyer MAY reveal information protected by the duty of confidentiality in the following situations:
(a) the client gives informed consent, OR the disclosure is impliedly authorized in order to carry out the representation
(b) to the extent necessary to
Trust accounts
a lawyer must keep all clients' money in a separate trust account and MUST NOT mix ("commingle") client funds with lawyer funds, except the lawyer may deposit his own funds in a trust account for the SOLE purpose of paying bank service charges. Nor may th
Retainer: two types
(1) Advance on fees: belongs to a client (goes into trust account) and is transferred to lawyer's account as it is earned, and any unearned portion must be returned if lawyer is fired or withdraws
(2) availability: belongs to attorney (goes into lawyer's
Safeguarding
lawyer must safeguard other types of property and keep it separate from lawyer's own property (e.g., securities and valuable jewelry usually should be septs in a safe deposit box)
lawyer must prompt notify client of receipt of property and money (e.g., "I
Disputed claims: lawyer v. client
the lawyer must hold disputed portion in the trust account until the dispute is resolved
Disputed claims: third party v. client
if third party has a lien on funds held by lawyer, lawyer must hold the disputed portion in the trust account until the dispute is resolved (if there is no lien, lawyer must give funds the client if requested).
Rule of Imputed Disqualification
Generally, if one lawyer in a firm has a conflict, it is impute to all other lawyers at the same firm.
EXCEPTION: the conflict is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the re
Conflicts Among Current Clients (Concurrent Conflicts): Direct Adversity
In general, a lawyer may not represent Client 1 if Client 1's interests are directly adverse to Client 2, even if the lawyer represents Client 2 in completely unrelated matters.
Conflicts Among Current Clients (Concurrent Conflicts): Lawyer's personal interests and duties to others
A lawyer mustn't to represent a client if there is a significant risk that the representation of that client will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or the lawyer's own personal in
Multiple representations
a lawyer may represent multiple clients in the same matter in certain circumstances (generally civil cases only). However, if the clients may potentially become adverse or have different interests, the lawyer must obtain the clients' informed consent at t
Personal interests
example: a lawyer may not refer clients to an enterprise in which the lawyer has an undisclosed financial interest
Waiver of conflict
all conflicts to be cured if:
(a) lawyer reasonably believes that he can represent the affected client competently and diligently despite the conflict, AND
(b) lawyer fully explains risks and alternatives (informed consent) and client's consent is "confir
Former Client Conflicts
a lawyer may not represent a client with adverse interest to a former client in the same or substantially related matter without the former client's consent.
(1) matters may be considered substantially related if they involve the same transaction, or if c
Former Government Employee in Private Practice
a lawyer who previously worked for the government must not later represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the government agency consents.
(1) Howev
Using Client's Confidential Information
a lawyer mustn't to use information relating to there representation of a client to disadvantage of the client without informed consent.
Acquiring an Interest in Litigation
a lawyer may not acquire a proprietary interest in the cause of action or the subject matter of litigation that the lawyer is conducting for a client, except:
(1) lawyer may acquire a lien authorized by law to secure the lawyer's fee or expenses
(2) lawye
Business Transactions with a Client
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless:
(1) the transaction is reasonable and fair to client;
(2) terms are fully di
Aggregate Settlement Agreements
when settling on behalf of multiple clients for a lump sum, the lawyer must:
(1) assure that all clients agree as to how the sum will be shared;
(2) make extensive disclosures to the clients regarding the terms of the agreement; and
(3) get each client's
Financial Assistance
a lawyer must not provide financial assistance to a client in connection with pending/contemplated litigation except:
(1) a lawyer may advanced court costs and expense of litigation, the repayment of which may be contingent on the outcome of the matter.
(
Gifts from Clients
a lawyer must not solicit any substantial gift from a client, including a testamentary gift.
a lawyer must not prepare an instrument on the client's behalf giving the lawyer or a person related to the lawyer any substantial gift unless lawyer or other rec
Literary or Media Rights
while representing a client, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. However, the lawyer may do so once
Third Party Paying Lawyer's Fee
a lawyer must not accept compensation for representing a client from someone other than the client unless all of the following conditions are met:
(1) client gives informed consent
(2) payor doesn't interfere with client-lawyer relationship; AND
(3) confi
Organization as Client
(1) a lawyer employed or retained by an organization represents the organization NOT individual officers or directors (but dual representation may be permitted subject to conflict of interests rules).
(2) if organization's lawyer learns that an act has be
Lawyer as Advisor
in rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.
Lawyer as Evaluator
at the client's request, a lawyer may provide an evaluation of a matter affecting a client for use by a third party (e.g., lawyer for borrower provides summary of client's financial information to a prospective lender).
(1) if the evaluation is likely to
Lawyer as Negotiator
a lawyer must not make a false statement of material fact when dealing with others on a client's behalf, but generally has no affirmative duty to volunteer harmful facts.
Under generally accepted conventions in negotiations, a lawyer may exaggerate the fo
Lawyer Serving as Third-Party Neutral
(1) a lawyer serving as a third-party neutral (arbitrator, mediator, etc.) must inform unrepresented parties that the lawyer isn't representing them
(2) if litigation arises, the lawyer must not represent any of the parties unless all of the parties give
Lawyer as Advocate: no frivolous claims
a lawyer for the defendant in a criminal proceeding may defend the proceeding so as to required that every element of the case be established. Therefore, even if the lawyer knows the client is guilty of the criminal charge, the lawyer may plead the defend
Lawyer as Advocate: duty of candor to the tribunal
(a) a lawyer must not knowingly make a false statement of law or fact to a tribunal, or fail to correct a previous false statement of material fact or law.
(b) a lawyer must reveal an adverse decision or statute or from controlling jurisdiction (may disti
Fairness to opposing party and counsel
(a) must not obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.
(b) must not make a frivolous discovery request or fail to make a reasonably diligent effort
Impartiality and decorum of the tribunal
(a) must not seek to influence court officials or jurors in a manner prohibited by law.
(b) must not engage in conduct intended to disrupt a tribunal.
(c) no ex parte communication with a court official about the merits of the case unless the lawyer gives
Lawyer as Prosecutor
(1) must not prosecute without probable cause.
(2) must assure the accused is advise of his right to counsel, knows ow to get counsel, and is given a chance to get counsel.
(3) must make timely disclosure to the defense of all known evidence or informatio
Lawyer as Witness
a lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. This prohibition cannot be waived by the client.
Exceptions:
(1) testimony relates to uncontested matters or mere of formality
(2) where testimony per
Lawyer in Nonadjudicative Proceeding
a lawyer representing a client before a legislative body or administrative agency in a nonadjudictive proceeding must disclose that she is appearing in a representative capacity (and not on her own behalf).
Truthfulness in Statements to Third Persons
in the course of representing a client a lawyer must not knowingly:
(1) make a false statement of material fact or law to a third person; or
(2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal
Communications with Represented Persons: general rule
no direct communication with a person who is represented by a lawyer in connection with a matter, unless it meets one of the following requirements:
(a) the communication is authorized by law;
(b) the parties' lawyer consents; OR
(c) the communication doe
Communications with Represented Persons: organizations
if the adverse party is an organization (e.g., corporation), the lawyer must obtain permission from the organization's counsel to communicate with the following employees/other constituents:
(a) person who has authority to obligation the organization;
(b)
Communication with Unrepresented Persons
(1) may negotiate a transaction or settle a client's dispute with an unrepresented person
(2) must not appear disinterested when that is not the case
(3) must not give legal advice other than advising the person to obtain counsel
Respect for rights of third person
(1) in representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate a person's legal rights.
(2) a lawyer who receives docum
Responsibilities of Partners, Managers, and Supervisory Lawyers
(1) partners and managing lawyers must reasonably ensure that a firm has measures in place so that lawyers will follow the RPC.
(2) supervising lawyers must make reasonable efforts to ensure that subordinate lawyers conform to the RPC.
(3) vicarious respo
Responsibilities of Subordinate Lawyer
(1) generally, a layer is bound by the RPC even though he acted at the direction fo another lawyer
(2) however, a subordinate lawyer is NOT subject to discipline if: (a) his supervising lawyer told him to do it; AND (b) it was a reasonable resolution of a
Professional Independence of a Lawyer
(1) a lawyer must no form a partnership with a non-lawyer (e.g., an accountant or broker) if ANY of the activities of the partnership consist of ht practice of law.
(2) fee splitting with non lawyers is prohibited.
EXCEPTIONS:
(a) firm may pay death benef
Restrictions on Right to Practice
(1) employment and partnership agreements that restrict a lawyer's right to practice after termination are prohibited, except retirement benefit agreements.
(2) a later may not offer or make an agreements in which a restriction on the lawyer's right to pr
Voluntary Pro Bono Service
the ABA recommends 50 hours of pro bono work per year, but. a lawyer who fails to meet this aspirational goal is NOT subject to discipline
Serving in Legal Services Organizations
a lawyer is permitted to serve as a director, officer, or member of a legal services organization (apart from her regular employment), but must not knowingly participate in decisions or actions of the organization that would cause a conflict with one of h
Law Reform Activities
(1) a lawyer may serve as a director, officer, or member of an organization involved in reform of the law or its administration, even if the reform may affect the interests of a client of the lawyer.
(2) when the lawyer knows that the interest of a client
Political Contributions to Obtain Government Employment
pay to play" contributions by a lawyer or law firm are prohibited (i.e., where a lawyer would not have made the contribution "but for"" the desire for the employment or appointment).
Advertising and Other Communications About a Lawyer's Services
attorneys have a first amendment right to advertise, but states may impose restrictions (subject to intermediate scrutiny)
examples: yellow page ads, office signs, business cards, announcements, letterhead, brochures, letters sent by mail, recorded phone
Identification of advertiser
any communication concerning a lawyer's services must include the name and contact information of at least one lawyer or law firm responsible for its content.
Basic rule of all communications -- must not be false or misleading
omitting a material fact
unjustified expectation
unsubstantiated comparisons
Subjects that are specifically permitted in advertisements
foreign language ability
educational background
memberships in bar associations
names of regular clients, provided they. give consent
Communicating fields of practice
(a) a lawyer may state that she does (or does not) practice in particular fields of law.
(b) a lawyer must not state or imply that she is certified as a specialist in a particular field of law, unless she is certified by an organization approved by the st
Firm names and letterheads
(a) may include names of current, retired, and deceased partners
(1) but must not use name of partner who is currently holding public office and how will not be practicing with firm for a substantial period
(b) trade names are permitted if not misleading
recommendations and referral arrangements
(a) with a few limited exceptions (e.g., nominal tokens of appreciation not intended as compensation), a lawyer must not give anything of value to a person in return for a recommendation
(b) a lawyer MAY also enter into a reciprocal referral agreement wit
Solicitation
communication that is initiated by the lawyer and directed to a specific person known to need legal services in a particular matter and that offers to provide legal services for that matter.
General ban on person contacts
a lawyer must not solicit professional employment by live person-to-person contact when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain (money).
examples: knocking on doors, calling on the telephone, etc.
exceptions: (1) offe
Targeted direct mail
letters, text messages, email, and other written communications are different from live person-to-person contact because they can be easily disregarded.
(a) generally permitted if truthful
(2) jurisdiction may restrict (e.g., federal law prohibits solicit
When all types of solicitation are prohibited
regardless of who the targeted person is, a lawyer must not solicit by any method if:
(a) the person has made known to the lawyer a desire not to be solicited by the lawyer; or
(b) the communication involves cohesion, duress, or harassment.
Judicial ethics: general obligations
(1) judges are judges 24 hours a day; must avoid impropriety and even the appearance of impropriety (remember that lawyers have no "appearance of impropriety" prohibition under the current ABA rules, but judges do!)
[a] appearance of impropriety exists wh
Judicial ethics: competence and diligence
maintain knowledge; promptly dispose of court business and be punctual in attendant court; and devote adequate time to duties
Judicial: ex parte comunication
must not initiate, permit, or consider ex party communications (i.e., from one side only where no representative from the opposing side is present). If a judge inadvertently receives a substantive ex parte communication, she must notify the absent party a
Judicial ethics: bias
must avoid bias, prejudice and harassment (and make sure subordinates do the same).
this includes that which is based on race, sex, gender, religion, national origin, disability, age, socioeconomic status, sexual orientation, marital status, and political
Judicial ethics: fair and impartial
no external influences
(1) cannot independently investigate the facts of a case
(2) consulting with other judges or court personnel is permitted, but the judge must avoid receiving factual information and must ultimately decide the matter independently
(3
Disqualification
a judge must disqualify in a proceeding in which the judge's impartiality might reasonably (and objectively; not based on party's whim) be questioned.
the judge should also disclose on the record any information the parties or their lawyers might consider
Grounds for. Disqualification
(1) bias or personal knowledge concerning a party, a party's lawyer, or relevant facts
(2) prior involvement, where the judge: (a) served as a material witness in the matter; (b) served as a lawyer or public official in the mater, or as a judge in the mat
Extrajudicial Activities
judges are encouraged to participate in personal and extrajudicial activities, but must not participate in activities that will lead to frequent disqualification interfere with the judge's official duties, or otherwise appear to undermine the judge's inte
Law-related organization
a judge may serve as an officer, director, trustee, or nonlegal advisor of a government agency or private organization devoted to the improvement of the law
Education, charitable, religious, or civil activities
(a) a judge may assist in planing for fundraising, but must not personally solicit contributions, except from family members or from other judges over whom the judge has no supervisory power
(b) a judge may serve as an officer, director, trustee, et.c., u
Fiduciary activities
a judge is generally prohibited from serving as an executor, administrator, trustee, guardian, or other fiduciary.
exception: a judge may serve in such a capacity for a member of the judge's family, unless: (a) it interferes with the judge's official duti
Participation in business
generally prohibited; a judge must not be a business's officer ,director, partner, manager, advisor, etc.
exception: a judge may hold and manager her own or her family members' investments and may participate in a personal or family business, unless it: (
Extrajudicial activities continued...
teaching and writing articles is permitted
a judge MUST NOT testify as a character witness EXCEPT through subpoena
Membership in discriminatory organization
a judge must NOT belong to an organization that practices "invidious discrimination" one one of these grounds: race, sex, gender, religion, national origin, ethnicity, or sexual orientation.
(a) even if not a member, a judge must not use the benefits or f
Gifts
judges must not accept gifts, loans, bequests or other things of value where prohibited by law or where acceptance may appear to undermine impartiality. Permitted gifts are subject to reporting requirements.
(a) duty to report
gifts incident to a public t
Practice of law
a full-time judge must not practice law, except:
pro-se
legal advice and drafting documents for family (but may not act in a forum)
Reporting misconduct
(a) if a judge personally KNOWS of substantial misconduct by another judge or a lawyer, the judge must report it.
(b) if the judge receives information indicating there is a "substantial likelihood" of misconduct by another judge or a lawyer, the judge mu
Judges and Politices
if a judge is running for office, the judge/candidate must comply with the following requirements:
(1) may speak on behalf of his own candidacy, but must not make speeches on behalf of a political organization or hold office in a political organization.
(