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76 Cards in this Set

  • Front
  • Back
Rule 1.0 - "belief" or "believes"
Person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.
Rule 1.0 - "confirmed in writing"
Denotes informed consent given in writing by the person or a writing a lawyer promptly transmits to the person confirming an oral informed consent.
Rule 1.0 - "firm" or "law firm"
Lawyer/lawyers in a law partnership, professional corporation, sole proprietorship or other assoc. authorized to practice law.
Rule 1.0 - "informed consent"
Agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available and alternatives to the proposed code of conduct.
Rule 1.0 - "reasonably"
Wrt to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer.
Rule 1.0 - "screened"
Isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect.
Rule 1.0 - "writing"
Tangible or electronic record of communication or representation, including handwriting, tyepwriting, printing, photostating, photography, audio or video recording and e-mail.
Rule 1.0 - "signed writing"
Includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.
Rule 1.2 - Scope of representation and allocation of authority between Attorney and Client.
(a) lawyer shall abide by a client's decisions concerning the objectives and shall consult with the client wrt the means.
Lawyer may limit scope of representation if reasonable AND client gives informed consent.
Rule 1.2 - Continued: When lawyer SHALL abide by client's decisions.
1. Whether to settle;
2. In a criminal trial -- what to plea, whether to waive jury trial, whether client will testify.
Rule 1.2 - Continued - Scope of representation wrt criminal or fraudulent conduct.
Lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent.
Lawyer may discuss legal consequences of any proposed conduct AND may counsel or assist client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Allocation of authority between client and lawyer
Client has ultimate authority to make decisions and decide purpose of legal representation.
Lawyer has authority to determine the tactics.
Rule 1.3 - Diligence
Lawyer shall act with reasonable diligence and promptness in representing client.

Lawyer should pursue a matter despite opposition, obstruction, personal inconvenience.
Rule 1.3 - Diligence and workload
Work load must be controlled so that each matter can be handled competently.
Rule 1.4 - Communication
1. Promptly inform client of any decisions or circumstances;
2. Reasonably consult with clients about the MEANS;
3. Keep client reasonably informed;
4. Promptly comply with reasonable requests for information; and
5. Consult about any relevant limitation on lawyer's conduct when client expects assistance NOT PERMITTED by Rules.
Communicating with Client
Lawyer must get client's consent for decisions about the representation.
Circumstances dictate whether lawyer is required to reasonably consult with client (e.g. during trial - exigency may require lawyer to act prior to consultation).
Explaining matters to clients
Adequacy depends in part on KIND of advice or assistance involved.
Client should have sufficient information to participate intelligently.
Lawyer not expected to explain trial or negotiation strategy in detail.
Withholding information.
Lawyer may be justified in delaying communication of information if client would be likely to act imprudently.
California - Communication
Member shall keep client reasonably informed, promptly comply with reasonable requests for information AND copies of significant docs.
Lawyer shall promptly communicate:
1. T & C of any offer in a criminal matter; and
2. Amounts, terms, conditions of any written offer of settlement.
Rule 1.16 - Mandatory Withdrawal
1. Representation will result in VIOLATION of the RULES of professional conduct or other law;
2. Lawyer's physical / mental condition MATERIALLY IMPAIRS ability to represent client; or
3. Lawyer is DISCHARGED.
Rule 1.16 - Optional Withdrawal
1. Withdrawal can be accomplished W/OUT MATERIAL ADVERSE effect on client;
2. Client persists in course of action involving services lawyer reasonably believes is CRIMINAL/FRAUDULENT;
3. Client has used lawyer to commit a crime or fraud;
4. Clients insists on taking action lawyer considers REPUGNANT;
5. Client fails substantially to fulfill obligation to lawyer re: lawyer's services;
6. Representation will result in UNREASONABLE FINANCIAL BURDEN on lawyer;
7. Other good cause for withdrawal exists.
Rule 1.16 - Steps required after termination of representation.
Take steps reasonably practicable to protect client's interests -- e.g. (a) reasonable notice to the client; (b) allow time for finding another lawyer; (c) surrender papers / property client is entitled.
Mandatory withdrawal
When client demands lawyer engage in illegal conduct or conduct that violates Rules of Pro. Conduct.
Client can discharge lawyer at ANYTIME, with/without reason, subject to liability of payment for lawyer's services.

If client has diminished capacity, client may lack legal authority to discharge lawyer.
Rule 1.18 - Duties to prospective client
Lawyer shall not USE or REVEAL information learned in the consultation.
Rule 1.18 - "prospective client"
A person who discusses with a lawyer the possibility of forming a client-lawyer relationship.
Rule 1.18 - Substantially related matter test.
Lawyer shall not represent a client with interests MATERIALLY ADVERSE to those of a prospective client in the SAME or SUBSTANTIALLY RELATED MATTER if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.
Rule 1.18 - When lawyer receives disqualifying information, but REPRESENTATION PERMISSIBLE.
1. BOTH affected client + prospective client give informed consent, confirmed in writing;
2. Lawyer takes reasonable steps to AVOID EXPOSURE to more disqualifying info than reasonably necessary to determine whether to represent;
3. Disqualified lawyer TIMELY SCREENED;
4. Written notice promptly given to prospective client.
Rule 1.1 - Competence
Lawyer shall provide competent representation to a client.

Competence requires LEGAL KNOWLEDGE, SKILL, THOROUGHNESS, and PREPARATION reasonably necessary.
Rule 1.1 - Competence -- Legal Knowledge and Skill -- Relevant Factors
1. relative complexity;
2. specialized nature of the matter;
3. lawyer's general experience;
4. lawyer's training and experience in the field in question;
5. preparation and study of the lawyer;
6. lawyer's established competence in the field in question.
Competence - Emergency Situation
In an emergency, lawyer may give legal advice or assistance in a matter in which he does not have skill but not beyond what is reasonably necessary.
Rule 1.1 - Competence -- Thoroughness and Preparedness
Required preparation determined in part by what is at stake, complexity of case.
Rule 1.6 - Confidentiality of Information
Lawyer shall not reveal information relating to the representation of a client unless:
1. the client gives informed consent;
2. the disclosure is impliedly authorized; or
3. disclosure is permitted by another rule.
Rule 1.6 - When a lawyer MAY REVEAL confidential information
1. to prevent reasonably certain death or substantial bodily harm;
2. to prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to financial interests or property of another;
3. to prevent, mitigate or rectify substantial injury to the financial interests or property of another;
4. to secure legal advice about the lawyer's compliance with Rules;
5. to est. a claim or defense on behalf of lawyer in claim against lawyer;
6. to comply with other law or court order.
Rule 1.8 - Conflict of Interest re: Business Transactions
Lawyer shall not enter into business transaction with a client UNLESS:
1. transaction and terms are fair and reasonable and fully disclosed in writing in a manner reasonably understood by client;
2. client advised in writing of to seek advice of independent counsel; and
3. client gives informed, written consent, signed by client.
Rule 1.8 - Conflict of Interest re: Gifts
Lawyer shall not solicit substantial gift from a client, UNLESS gift is from/to "related person"

Lawyer may accept small gift like a holiday present.
Rule 1.8 Gifts - "related person"
spouse, child, grandchild, parent, grandparent, other relative or individual who is a close, familial relationship.
Rule 1.8 - Financial assistance
Lawyer shall NOT provide financial assistance EXCEPT:
1. may advance court costs and expenses of litigation, repayment contingent on outcome;
2. When representing indigent client may pay court costs/litigation expenses.

Lawyer shall not accept compensation from anyone other than client UNLESS:
1. client gives informed consent;
2. there is no interference with the lawyer's independence of professional judgment.
Rule 1.9 - Duties to former clients
1. shall not represent another person in the same or a substantially related matter in which person's interests are materially adverse to interests of former client;
2. shall not knowingly represent a person in the same or substantially related matter in which a firm lawyer had formerly worked for previously represented client:
(a) whose interests materially adverse; and
(b) who gave information protected by 1.6, 1.9 that is material; UNLESS former client gives informed consent.
3. Lawyer shall not use information to disadvantage of former client, reveal information relating to the representation.
Rule 1.13 - Organization as a Client
1. Lawyer employed / retained by organization represents the organization through its duly authorized constituents.
Rule 1.14 - Client with Diminished Capacity
1. When client's capacity is diminished, lawyer shall maintain a normal client-lawyer relationship with the client.
2. When lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, other harm, lawyer may take reasonably necessary protective action.
3. Client is protected by Rule 1.6 (confidentiality), but lawyer is IMPLIEDLY AUTHORIZED to reveal information reasonably necessary to protect client's interests.
Rule 4.2 - Communication with Person Represented by Counsel
Lawyer shall not communicate about the subject of representation with a person the lawyer knows to be represented by another lawyer in the matter, UNLESS the lawyer has the consent of the other lawyer OR is authorized by law/court.

Does not prohibit communication with a represented person, concerning matters outside the representation.
Rule 4.2 - Examples of authorized communication.
1. Communications by a lawyer on behalf of a client with the government.
2. Investigative activities of lawyers representing government entities.
Rule 4.3 - Dealing with Unrepresented Person
Lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such person conflict with interests of the client.
Rule 4.4 - Respect for Rights of Third Person
Lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.

Lawyer who receives documents and knows/has reason to know the doc. was inadvertently sent, shall promptly notify sender.
Rule 5.4 - When a lawyer/law firm can share legal fees with NONLAWYER.
1. per agreement of lawyer's retirement after they lawyer's death to the estate;
2. pay to the estate after purchasing a practice;
3. as a compensation or retirement plant to nonlawyer employees
4. court awarded fees to nonprofit that employed/retained lawyer.
Rule 1.7 - Conflict of Interest: Current Clients
Lawyer shall not represent a client that involves a CONCURRENT CONFLICT of interest.
Rule 1.7 - Conflict of Interest -- "Concurrent Conflict"
1. The representation of one client will be directly adverse to another client; or
2. Significant risk that the representation of one or more clients will be MATERIALLY LIMITED by the lawyer's responsibilities to another client, former client, 3d person.
Rule 1.7 - Conflict of Interest -- When Lawyer MAY Represent Client
1. Lawyer reasonably believes the lawyer will be able to provide competent and diligent representation;
2. representation is not prohibited by law;
3. representation does not include claim by one client against another represented by the same attorney;
4. each affected client gives informed consent.
1.10 - Imputation of Conflicts of Interest -- When Lawyers Associate in a Firm MAY Represent a Client w/Conflict of Interest
1. No present significant risk of materially limiting the representation;
2. Prohibition arises out of disqualified lawyer's association with prior firm, and screening measures have been fulfilled.
1. Receive no fee;
2. Written notice promptly given to affected former client;
3. Certifications of compliance provided to former client.
Requirements in Written Notice re: Screening
1. Description of the screening procedures employed;
2. a statement of the firm's and of the screened lawyer's compliance;
3. statement that review may be available by tribunal;
4. agmt by firm to promptly respond to any written inquiries or objections by former client.
Rule 1.10 - When Lawyer Terminates Association with a Firm
Firm is NOT prohibited from representing a person with interests materially adverse; UNLESS:
2. ANY lawyer remaining in firm is protected by 1.6 and 1.9(c).
Rule 1.11 - Special Conflicts of Interest for Former and Current Govt Officers and Employees
Lawyer who formerly served as public officer/employee of gov't:
1. shall not otherwise represent a client in a matter in which lawyer participated PERSONALLY and SUBSTANTIALLY as public officer/employee, UNLESS:
- Appropriate gov't agency gives informed consent, confirmed in writing.
Rule 8.4 - Misconduct -- What is professional misconduct?
- violate or attempt to violate Rules of Prof. Conduct;
- knowingly assist or induce another;
- commit a criminal act that reflects adversely on honesty, trustworthiness or fitness as a lawyer;
- engage in conduct prejudicial to administration of justice;
- state / imply ability to influence results;
- knowingly assist or judge/judicial official in conduct that violates judicial conduct.
Rule 1.5 - Fees
Lawyer shall not make an agmt for unreasonable fee or unreasonable expense.
Rule 1.5 - -Fees -- Factors to be considered in determining reasonableness of fee
- time and labor required;
- novelty and difficulty of questions involved;
- skill requisite to perform legal service properly;
- attorney's workload;
- fee customarily charged in locality for similar work;
- amount involved and results obtained;
- time limitations imposed by the client or circumstances;
- experience, reputation, and ability of lawyer(s) in performing services; and
- whether fee is fixed or contingent.
Rule 1.5 - Fees -- When fee rate shall be communicated to client
- Preferably in writing, before or within a reasonable time after commencing the representation.
- Exception: when lawyer will charge regularly represented client on same basis/rate.
Rule 1.5 - Fees - Contingent Fees
- Shall be in writing signed by the client;
- Shall state the method by which the fee is to be determined, including %s.
- Clearly notify client of any expenses
- Upon conclusion, statement with outcome, breakdown of payments
Rule 1.5 - Fees -- What a lawyer shall NOT charge for.
- In domestic relations case, fee contingent upon securing a divorce, certain alimony, or property settlement.
- contingent fee for representing a D in a criminal case.
Rule 1.5 - Fees -- When lawyers who AREN'T in the same firm can split a fee.
- Division is in proportion to services performed;
- client agrees to the arrangement, the share each lawyer will get, confirmed in writing;
- total fee is reasonable.
Rule 1.15 -- Safekeeping Property
- Funds shall be kept in a separate account.
- Complete records of funds shall be kept by lawyer and preserved for 5 years after termination of representation.
- Lawyer may deposit own funds in a client trust for sole purpose of paying bank service charges on that account, only in the amount necessary.
Rule 1.15 - Safekeeping Property -- Trusts
Lawyer shall deposit legal fees and expenses into client trust paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses are incurred.
Rule 1.15 -- Safekeeping Property -- What to do upon receiving funds
Lawyer shall promptly notify client upon receiving funds, deliver any funds/other property client is entitled to receive, and render full accounting promptly when requested.
Disputed Funds
When funds are disputed, lawyer cannot hold them until client accepts lawyer's contention. Lawyer must put them in a separate account until the dispute is resolved, for example, by arbitration.
Rule 3.1 - Meritorious Claim and Contentions
Lawyer can't bring a claim unless there is a basis of law and fact for doing so that is not frivolous.
Rule 3.1 - Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
When failure to expedite NOT okay
- When done to frustrate other side;
- For the convenience of the advocates.
Rule 3.1 -- Expediting Litigation -- Standard for determining whether lawyer is stalling.
Would a competent lawyer acting in good faith regard the course of action as having some substantial purpose other than delay.
Rule 3.3 - Candor toward the Tribunal -- A lawyer shall not knowingly:
1) Make a false statement of fact or law or fail to correct a false statement of material fact/law;
2) fail to disclose legal authority known to the lawyer to be directly adverse to his position AND not disclosed by opposing counsel;
3) offer evidence the lawyer knows is false.
- If false evidence is offered, lawyer shall take reasonable remedial measures.
Rule 3.4 -- Fairness to Opposing Party and Counsel - Lawyer shall not:
- unlawfully obstruct another party's access to evidence or alter, destroy, conceal a document/other material OR assist someone else to do that;
- falsify evidence, help a witness testify falsely;
- knowingly disobey an obligation under court rules;
- make frivolous discovery requests or fail to comply with a request;
- in trial, allude to irrelevant matter, assert personal knowledge while not testifying, state personal opinion wrt credibility of witness, justness of cause, culpability.
Rule 3.5 -- Impartiality in Trial -- Lawyer shall not:
1) seek to influence judge, juror, prospective juror or other official by means prohibited by law;
2) communicate ex parte with a person during the proceeding unless authorized to do so by law or court order;
3) communicate with a juror or prospective juror after discharge of the jury if:
- prohibited; or
- lawyer knows juror does not desire communication; or
- communication involves misrepresentation, coercion.
Rule 4.1 - Truthfulness in Statements to Other -- Lawyer shall not:
a) make a false statement of material fact or law to a 3d person; or
b) fail to disclose a material fact to a 3rd person when disclosure is necessary to avoid assisting a crime or fraud by client, unless disclosure prohibited by Rule 1.6
If the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.

Making partially true but misleading statements or omissions the equivalent of affirmative false statements.
Rule 4.2 -- Communication with Person Represented by Counsel
Lawyer shall not communicate about the subject of representation with a person lawyer KNOWS to be represented by ANOTHER lawyer in the matter, UNLESS lawyer has consent.
Authorized Communications
Investigative activities of lawyers representing government agencies.