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283 Cards in this Set

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Violation of the Rules of Professional Conduct
It is professional misconduct for a lawyer to:
Criminal Acts
A lawyer is subject to discipline for committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects. To constitute professional misconduct, the crime must involve some characteristic that is relevant to the practice of law. For example, crimes involving dishonesty, breach of trust, substantial interference with the administration of justice, and most crimes involving violence reflect on the lawyer's fitness to practice law. Other crimes (e.g., solicitation of prostitution, single offense of drunk driving, possession of a marijuana cigarette), while punishable by law, do not necessarily trigger professional discipline.
Dishonesty, Fraud, Deceit, or Misrepresentation
Any conduct involving any of these constitutes professional misconduct. Examples of this type of misconduct, which need not rise to the level of a crime, include cheating on a bar exam, plagiarism, and defrauding one's own law firm by misusing expense accounts.
Conduct Prejudicial to the Administration of Justice
This rule is rarely invoked because nearly all of the offenses that would arise under it (e.g., falsifying evidence, improper delaying tactics, frivolous claims) are dealt with more specifically in the rules relating to litigation. One situation, however, in which this rule may be invoked is where a lawyer, during representation of a client, knowingly manifests bias based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and such action is prejudicial to the administration of justice.
Stating or Implying Ability to Improperly Influence Officials
A lawyer must never state or imply that he has the ability to improperly influence a government agency or official or to achieve results by means that violate the law or legal ethics rules.
Assisting a Judge in Violation of Judicial Code
A lawyer is subject to discipline for knowingly assisting a judge or judicial officer in conduct that violates the Code of Judicial Conduct or other law.
Duty to Report Professional Misconduct
A lawyer who KNOWS that another lawyer has violated the Rules of Professional Conduct in such a way that it raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer must report the violation to the appropriate professional authority. Similarly, a lawyer who knows that a judge has violated the Code of Judicial Conduct in a way that raises a substantial question as to the judge's fitness for office must report the violation to the appropriate authority.
ACTUAL knowledge, but may be inferred from the circumstances. It has been held to mean more than mere suspicion. Thus, while a lawyer may report suspected misconduct, she MUST report KNOWN misconduct.
"A matter of clear and weighty importance." ABA Model Rules Terminology
Exception for Confidential Knowledge
The requirement to report known instances of misconduct does not require disclosure of information protected by the confidentiality rules. Thus, if a lawyer learns about another lawyer's misconduct through a privileged communication with the other lawyer or one of his clients, the lawyer has no duty to report the misconduct. Indeed, the lawyer would be subject to discipline for violating the confidentiality rules if he did report it. Moreover, there is no duty to disclose information gained by a lawyer or judge while serving as a member of an approved lawyers' assistance program that helps lawyers and judges with substance abuse problems.
Disciplinary Process - Complaint
Disciplinary proceedings against a lawyer begin when a complaint is made to the state disciplinary authority (usually the state bar). Complaints are often brought by aggrieved clients, but may also be brought by anyone with knowledge of the misconduct. Filing a complaint against a lawyer is considered privileged, and thus cannot be the basis of an action (e.g., defamation) by the lawyer against the complainant.
Disciplinary Process - Screening
If the complaint is without merit, it might be dismissed by the grievance committee without ever involving the lawyer. If the complaint appears to have merit, the lawyer will be asked to respond to the charges. After further investigation, the committee will either dismiss the complaint or schedule a hearing. If the committee dismisses the complaint, the complainant does not have any right to appeal; the decision is final.
Disciplinary Process - Hearing
If there is a hearing on the complaint, the accused lawyer is entitled to procedural due process, which means she has the right to counsel, to proper notice, to be heard and introduce evidence, and to cross-examine adverse witnesses. In addition, the hearing must be limited to the charges made in the complaint.
Disciplinary Process - Decision and Review
After the hearing, the grievance committee will either dismiss the charges or recommend sanctions. If sanctions are recommended or disciplinary action is actually taken, the lawyer is entitled to review of the decision by the state's highest court. The burden is then on the lawyer to show that the committee's action or recommendation is not supported by the record or is otherwise unlawful.
Disciplinary Process - Sanctions
The most common sanctions imposed on a lawyer found to have committed professional misconduct are:
Choice of Law in Disciplinary Proceedings
If the conduct in question occurred in connection with a proceeding that is pending before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will be applied, unless the tribunal's rules provide otherwise. For any other conduct, the rules of the jurisdiction in which the conduct occurred will apply, but if the predominant effect of the conduct is in some other jurisdiction, that jurisdiction's rules will apply. A lawyer will NOT be subject to discipline if her conduct is proper in the jurisdiction in which she reasonably believes the predominant effect of her conduct will occur.
Effect of Sanctions in Other Jurisdictions
A suspension or disbarment in one jurisdiction does not automatically affect a lawyer's ability to practice in another jurisdiction.
Disability Proceedings
A lawyer who is incapacitated by an impairment such as substance abuse poses a particular risk of harm to clients, the public, and legal institutions. Most jurisdictions have disability proceedings, which result in the disabled lawyer's suspension from practice until she can show that rehabilitation has occurred. The procedures followed are generally the same as those of disciplinary proceedings, but provision may be made for psychiatric evaluation and diversion into a rehabilitation program.
Unauthorized Practice by Lawyer
A lawyer who is admitted to practice law in one jurisdiction is not, without more, authorized to practice in any other jurisdiction. A lawyer is subject to discipline for practicing in a jurisdiction where she is not admitted to practice. Except as allowed by that jurisdiction's laws or ethics rules, the unadmitted lawyer must not:
Permissible Types of Temporary Multi-Jurisdictional Practice
If a lawyer is admitted to practice in one state, and is not disbarred or suspended from practice in any state, then she may provide legal services in a second state ON A TEMPORARY BASIS in four situations:
Permissible Types of Permanent Multi-Jurisdictional Practice
(1) Lawyers Employed by Their Only Client - May set up legal services in a state they are not admitted to practice in to render legal services to their employer, but to LITIGATE a matter in that state, must seek admission pro hac vice.
Consequences of Multi-Jurisdictional Practice
A lawyer who is admitted to practice in one state only, but who practices in another state pursuant to the rules of such practice will be subject to the disciplinary rules of both states. Furthermore, an in-house or government lawyer who practices under the rule for lawyers employed by their only client, may be subject to the second state's client security assessments and continuing legal education requirements.
Unauthorized Practice by Nonlawyers
A person not admitted to practice as a lawyer must not engage in the unauthorized practice of law, and a lawyer must not assist such a person to do so.
Is it "practice of law?"
Important considerations in determining whether the practice of law is involved include:
Activities Constituting Law Practice
(1) Appearing in judicial proceedings
Activities Not Constituting Law Practice
State and federal agencies often permit nonlawyers, such as accountants, to appear before them representing clients. Also, while nonlawyers may not draft legal documents, they can act as scriveners, filling in the blanks on standard forms. Thus, real estate brokers, title insurance companies, and escrow companies are usually permitted to fill in the blanks on standard documents related to the sale of real property. Nonlawyers can also publish books or pamphlets offering general advice, including most do-it-yourself books and kits.
Tax Advice
Giving advice on tax law would probably constitute the unauthorized practice of law, but an accountant or other layperson may prepare tax returns and answer questions incidental to the preparation of the returns.
Consequences of Unauthorized Practice
A nonlawyer who engages in the unauthorized practice of law is subject to several sanctions, including injunction, contempt, and criminal conviction. A lawyer who assists in such an endeavor is subject to professional discipline.
Delegating Work to Nonlawyer Assistants
A lawyer may delegate tasks to a paralegal, law clerk, student intern, or other such person. But the lawyer must supervise the delegated work carefully and must be ultimately responsible for the results.
Training Nonlawyers for Law-Related Work
A lawyer may advise and instruct nonlawyers whose employment requires a knowledge of the law, e.g., claims adjusters, bank trust officers, social workers, accountants, and government employees.
Helping Persons Appear Pro Se
A lawyer may advise persons who wish to appear on their own behalf in a legal matter.
Assisting a Suspended or Disbarred Lawyer
A lawyer violates Model Rule 5.5 (a) if he assists a lawyer whose license has been suspended or revoked in practicing law. It is proper to hire a suspended or disbarred lawyer to do work that a layperson is permitted to do, but the suspended or disbarred lawyer must not be permitted to do any work that constitutes the practice of law.
Creating the Lawyer-Client Relationship
Lawyers are generally free to refuse service to any person for any reason. A lawyer-client relationship arises when:
Implied Assent and Reasonable Reliance
The lawyer's assent is implied when he fails to clearly decline representation and the prospective client reasonably relies on the representation. Reasonableness of the reliance is a question of fact.
Court Appointments
Trial and appellate courts often find it necessary to appoint lawyers to represent indigent clients and clients with unpopular causes. A lawyer must not seek to avoid such an appointment except for good cause.
Examples of Good Cause to Avoid Court Appointments
(1) Violation of Law or Disciplinary Rule - A lawyer must decline a court appointment if to accept it would require the lawyer to violate a law or disciplinary rule.
Duty to Reject Certain Cases
A lawyer must refuse employment in the following situations:
Duties Owed to Prospective Client
When a person discusses with a lawyer the possibility of forming a lawyer-client relationship and no such relationship ensues, the lawyer has a duty to:
Ethical Obligation to Accept Unpopular Cases
Lawyers have an ethical obligation to help make legal service available to all who need it. A lawyer can fulfill this obligation by accepting a fair share of unpopular matters or indigent or unpopular clients.
When to Agree on Fee
When a lawyer has not regularly represented the client, the basis or rate of the fee and the expenses for which the client will be responsible must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
Reasonableness of Fee
A court will not enforce a contract for an unreasonably high attorney's fee or an unreasonably high amount for expenses, and the attorney is subject to discipline for trying to exact such a fee or expenses.
Items That May and May Not Be Billed
The attorney must disclose the basis on which a client will be charged for legal services and expenses, and the attorney's bill should clearly show how the amount due has been computed. The attorney must not charge the client for ordinary overhead expenses associated with staffing, equipping, and running the attorney's office, but the attorney may charge the client for the actual cost to the attorney of special services such as photocopying, long distance calls, computer research, special deliveries, secretarial overtime, and the like. Alternatively, the attorney may charge a reasonable amount to which the client has agreed in advance. The attorney must not charge the client more than her actual cost for services provided by third parties, such as court reporters, travel agents, and expert witnesses. Furthermore, the attorney must not "double bill" her time.
Collecting and Financing Attorneys' Fees
(1) Payment in Advance - May require this, but must refund any unearned part of the advance if she is fired or withdraws.
Contingent Fees
Some states have set statutory limits on contingent fees percentages.
Fee Disputes
In seeking compensation from a client, a lawyer may not employ collection methods forbidden by law, improperly use confidential information, or harass a client.
Fee Splitting with Other Lawyers
As a general rule, a lawyer must not split a legal fee with another lawyer. The rule is designed to prevent lawyers from becoming "client brokers" and to discourage excessive fees. The general rule is subject to three exceptions:
Forwarding or Referral Fees
Lawyer is prohibited from paying anyone - including another lawyer - for recommending him or referring a matter to him.
Decisions to Be Made by Client
When a client brings a legal problem to a lawyer, it is the client who must decide what shall be the objectives of the lawyer's work. Thus, it is the client who must make the key decisions that affect the client's substantial legal rights. A lawyer must therefore abide by the client's decision regarding the following matters:
Limits on Lawyer's Responsibility and Authority
A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, and if the client gives informed consent. For example, a lawyer might agree to counsel her client about a dispute with the client's landlord, but stipulate that if the dispute has to be arbitrated or litigated, the client will hire another lawyer for that purpose.
Telling the Client "No"
When a lawyer discovers that her client expects assistance that violates a law or legal ethics rule, the lawyer must explain why she cannot do what the client expects. If the client insists on the lawyer's assistance in violating the law or ethics rule, the lawyer MUST withdraw.
Discovering a Client's Illegal Conduct
When a lawyer discovers that a client has begun an illegal course of action and the action is continuing, the lawyer must not assist in the wrongdoing. In this situation, the lawyer MUST withdraw. Sometimes withdrawal alone is not enough - the lawyer may have to make a "noisy withdrawal" in which she gives outsiders notice of her withdrawal and disaffirms any of her prior opinions, documents, affirmations, or the like that the client is using to carry out the wrongdoing. The lawyer's noisy withdrawal may put the client's victim on guard, but that is permissible.
Lawyer's Duties to a Client with Diminished Capacity
Normally, it is assumed that a client can make decisions about important matters, but if the client is a minor or has diminished mental capacity, that may not be true. Nevertheless, such a client may be able to make some kinds of decisions that affect her own well-being. For example, even very young children can have valuable opinions about who should have custody of them. Similarly, even very old clients can handle routine financial matters, though they may need legal protection concerning major transactions. The lawyer has a duty, so far as reasonably possible, to maintain a normal lawyer-client relationship with the client. The lawyer must treat the client with attention and respect. Even if the client has a guardian or other representative, the lawyer should, so far as possible, treat the client as a client, particularly in communicating with the client about significant developments.
Protective Action and Appointment of Guardian (Clients with Diminished Capacity)
When the client has diminished capacity and faces a substantial risk of physical, financial, or other harm, the lawyer may take reasonable actions to protect the client. These actions include consulting with people or entities that can protect the client, and when appropriate, seeking the appointment of a guardian or similar surrogate. When taking protective action, the lawyer has implied authority to reveal the client's confidential information, but only to the extent necessary to protect the client.
Informed Consent
"Informed Consent" means that the client agrees to a proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives.
Information About Status of the Matter and Means to be Used
The lawyer must keep the client reasonably informed as to the status of the matter and about the means by which the lawyer plans to accomplish the client's objectives. If the lawyer must make an immediate decision, the lawyer need not consult with the client before acting.
Requests for Information
If the lawyer keeps the client properly informed of developments in the matter, the client will not often need to ask the lawyer for information. But, when a client does make a reasonable request for information, the lawyer must respond promptly. If that is impossible, then the lawyer or a member of her staff should acknowledge the client's request and tell the client when the information will be available.
Consultation About Illegal or Unethical Conduct
If the client expects the lawyer to do something that is either illegal or unethical, the lawyer must consult with the client and explain why he cannot do what the client wants.
Withholding Information from Client
A lawyer may delay the transmission of information to a client if the client would be likely to react imprudently to an immediate communication. The lawyer must not, however, withhold information to serve the lawyer's or a third person's interest or convenience.
Terminating the Lawyer-Client Relationship
Once established, the lawyer-client relationship ordinarily continues until the completion of the work for which the lawyer was hired. However, the relationship can end prematurely in any of three ways:
Client Fires Attorney
The clients complete trust is an essential part of any attorney-client relationship. The law thus allows the client to fire the attorney at any time, with or without cause. Even if the client fires the attorney for no good reason, the client will not be held liable for breach of contract; for policy reasons, courts construe all attorney employment contracts as being terminable at will.
Court Permission to Substitute Attorneys
After a lawsuit has been filed, the rules of most courts require the court's permission for a substitution of attorneys. When a party wants to fire her attorney, courts almost always grant the necessary permission, but permission may be denied if a substitution of attorneys would cause undue delay or disruption. On the other hand, when an attorney seeks to withdraw from a case, the court may deny the necessary permission; in that even, the attorney must continue the representation even if there is good cause for withdrawal.
Mandatory Withdrawal
(1) An attorney MUST withdraw if the attorney's mental or physical condition materially impairs the attorney's ability to continue representing the client.
Permissive Withdrawal
An attorney may withdraw from representing a client for any reason if it can be done without material adverse effect on the client's interests or if the client consents. In addition, the attorney may withdraw despite an adverse impact on the client's interests in the situations listed below, provided the circumstances are severe enough to justify harming the client's interests.
Attorney's Duties Upon Termination of Representation
An attorney who withdraws from a matter must comply with local laws that require notice to or permission of the tribunal before withdrawal. Moreover, upon termination of the representation, the attorney must take reasonable steps to protect the client's interests, including:
Factors in Determining Requisite Skill:
A lawyer must act with reasonable diligence and promptness in representing a client.
Can a single incident of violation of the rules regarding competence or diligence be sufficient to impose discipline?
Yes - there is no requirement for a pattern of misconduct. One single incident will suffice.
Malpractice Action vs. Disciplinary Matters
These differ in three ways:
Ethics Violation as Evidence of Legal Malpractice
A lawyer's breach of an ethics rule does not automatically or presumptively mean that the lawyer has committed malpractice. Courts do, however, regard an ethics violation as relevant evidence that the lawyer's conduct was below the appropriate standard of care.
Theories of Malpractice Liability
(1) Intentional Tort - Fraud, misrepresentation, malicious prosecution, abuse of process, or misuse of funds.
Duty of Due Care (Malpractice Liability - Negligence)
Standard of care is the competence and diligence normally exercised by attorneys in similar circumstances. If the attorney represents to a client that he has a greater competence than other attorneys undertaking similar matters (i.e., he is a specialist), then he is held to that higher standard.
Breach of Duty of Due Care (Malpractice Liability - Negligence)
An attorney is liable for negligence, but not everything that causes harm is negligence. An attorney is not liable for "mere errors in judgment" if the judgment was well-informed and reasonably made.
Legal Causation (Malpractice Liability - Negligence)
As in any tort case, the plaintiff in a professional negligence case must prove that the defendant's conduct was the legal cause of the plaintiff's injury. That is, the injury would not have happened but for the defendant's negligence, and furthermore, that it is fair to hold the defendant liable for unexpected injuries or for expected injuries that happen in unexpected ways.
Damages (Malpractice Liability - Negligence)
The plaintiff in a professional negligence case must prove damages - e.g., the money paid out to discharge an adverse judgment, or the value of a lost cause of action. The plaintiff can recover for direct losses and also for losses that are indirect but foreseeable.
Liability for Negligence of Others
The ordinary principles of respondeat superior apply in suits for professional negligence. Thus, an attorney can be held liable for injuries caused by a negligent legal secretary, law clerk, paralegal, or employee associate when acting within the scope of employment. Furthermore, under general principles of partnership law, each partner in a law firm is liable for the negligence of another partner committed in the ordinary course of the partnership business. The law varies widely from state to state concerning vicarious liability among shareholders in an incorporated law firm.
Malpractice Insurance
Because legal malpractice actions are now commonplace, malpractice insurance has become an expensive but necessary part of law practice. The Model Rules do not require lawyers to carry malpractice insurance, but prudent lawyers carry ample coverage, both to protect their personal assets and to promote their public image as reliable professionals.
Contracting with Client to Limit Malpractice Liability
A lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.
Settling Malpractice Claims
A lawyer must not settle a pending or potential malpractice claim with an unrepresented client or former client without first advising that person, in writing, to seek advice from an independent lawyer about the settlement and giving that person time to seek that advice.
Reimbursement of Client
A lawyer who has breached a duty to his client with monetary effect cannot escape discipline by reimbursing the client for any loss. Thus, even if the lawyer pays the client back for any damage he caused, he is still subject to discipline.
General Duty of Confidentiality
As a general rule, a lawyer must not reveal any information relating to the representation of the client. A lawyer may, however, reveal such information if the client gives informed consent, or if the disclosure is impliedly authorized to carry about the representation.
Ethical Duty of Confidentiality vs. Attorney-Client Privilege
The duty of confidentiality prohibits an attorney from voluntarily revealing information relating the the representation of a client. Attorney-client privilege prevents the court from compelling the lawyer to reveal confidential information.
Attorney-Client Privilege
Prevents a court or other government tribunal from compelling the revelation of confidential communications between an attorney and a client if the subject of the communication concerns the professional relationship between the attorney and the client.
Corporate Clients and Privilege
When the client is a corporation, the privilege covers communications between the lawyer and a high-ranking corporate official. It also covers communications between the lawyer and another corporate employee if the following conditions are met:
Client (Privilege)
"Client" means a person or entity that seeks legal services from an attorney.
Attorney (Privilege)
"Attorney" means a person who is authorized (or whom the client reasonably believes to be authorized) to practice law in any state or nation. However, for the privilege to apply, the attorney MUST be acting as an attorney - not in any other capacity, such as friend, etc.
Communication (Privilege)
"Communication" covers information passed from the client to the attorney and from the attorney to the client. It also covers information passed to or from the agents of either the attorney or client.
Details of the Attorney-Client Privilege
Usually doesn't cover the mechanical details of the relationship, such as the identity of the client, the fee arrangement between the attorney and client, and the bare fact that the attorney is acting for the client. BUT these details can be protected if revealing them is tantamount to revealing a privileged communication.
Confidential (Privilege)
Must have been made by a means not intended to disclose the communicated information to outsiders, and the communicating person must reasonably believe that no outsider will hear the contents of the statement.
Eavesdroppers (Privilege)
Originally, the presence of an unsuspected eavesdropper was sometimes held to destroy the confidentiality of a communication. Under modern evidence law, that is no longer true; an eavesdropper can be prohibited from testifying about a confidential communication.
Holder of Privilege
The attorney-client privilege exists for the benefit of the client, not for the benefit of the attorney. Therefore, the client is the "holder" of the privilege - i.e., the client is the one who can claim or waive the privilege.
Waiver of Privilege
A waiver consists of failure to claim the privilege when there is an opportunity to do so, or the intentional revelation of a significant portion of the privileged communication.
Lawyer's Duty to Invoke Privilege
If the client has not waived the privilege, and if someone tries to obtain privileged information when the client is not present, the lawyer must claim the privilege on the client's behalf.
Duration of Privilege
The attorney-client privilege continues indefinitely. Termination of the relationship, even for cause, does not terminate the privilege. The privilege even survives the death of the client. Thus, a lawyer has a continuing obligation to assert the privilege on behalf of a client who has died, subject to exceptions relating to the deceased's disposition of property.
Exceptions to Privilege
(1) The privilege does not apply if the client seeks the attorney's services to engage in or assist a future crime or fraud.
Work Product Immunity
Generally, material prepared by a lawyer for litigation or in anticipation of litigation is immune from discovery or other compelled disclosure unless the opposition shows a substantial need for the material and an inability to gather the material without undue hardship. A lawyer's mental impressions or opinions are immune from discovery or compelled disclosure regardless of the opposition's need unless the immunity has been waived.
Is the ethical duty of confidentiality destroyed by the presence of a third party?
No - confidential information remains confidential even if known to others, UNLESS it becomes generally known.
Exceptions to the Duty of Confidentiality
(1) Client's Informed Consent
Example of the Doctrine of "Preemptive Self-Defense"
Client C hired lawyer L to help him form a limited partnership venture for real estate investments. C furnished L with confidential data for L to use in preparing financial statements and other documents needed in connection with the sale of the partnership shares. Unbeknownst to L, some of the confidential data was fraudulent, and C's partners lost their investments as a consequence. Two of the partners confronted L and accused him of being knowingly involved in the fraud. L MAY reveal enough of C's confidential information to convince the partners that L did not know the data was fraudulent, even though L has not yet been formally charged with a criminal or civil wrong or disciplinary violation.
Conflicts of Interest
Loyalty is an essential element in the relationship between a lawyer and a client. The lawyer's professional judgment must be exercised solely for the benefit of the client, free of compromising influences and loyalties. Thus, absent the necessary informed consent, a lawyer must not represent a client if a conflict of interest exists. A conflict of interest arises when there is a substantial risk that the lawyer's representation of the client will be materially and adversely affected by the lawyer's own interests or the lawyer's duties to another current client, a former client, or a third person.
Consequences of a Conflict of Interest
If a conflict of interest is apparent BEFORE a lawyer takes on a client's matter, then the lawyer must not take it on. If a conflict becomes apparent only after the lawyer has taken on the client's matter, and if informed consent of the affected client(s) will not solve the problem, then the lawyer must withdraw.
Imputed Conflicts of Interest
Generally, lawyers who practice together in a "firm" are treated as a single unit for conflict of interest purposes. That is, when one of the lawyers cannot take on a matter because of a conflict of interest, the other lawyers in the "firm" are also barred from taking on that matter. The conflict is said to be "imputed" from the first lawyer to the other lawyers.
Firm (Conflict of Interest)
"Firm" includes not only an ordinary private law firm, but also other groups of lawyers who practice closely together, such as lawyers in a corporate law department, legal aid office, or prosecutors' or public defenders' office. Whether a group of lawyers should be regarded as a "firm" for conflict of interest purposes depends on many factors, including:
Exceptions to Imputed Disqualification
Conflicts that are uniquely personal to the lawyer in question, which makes it unlikely that other lawyers in the firm would have divided loyalties.
Concurrent Conflicts of Interest
A lawyer must not represent a client if the representation creates a concurrent conflict of interest. A concurrent conflict exists in two situations:
Informed, Written Consent
Despite a concurrent conflict of interest, a lawyer may represent a client if all four of the following conditions are satisfied:
Revocation of Consent
Just as a client can almost always fire a lawyer, the client can almost always revoke a previously given consent to a conflict. The revocation may or may not mean that the lawyer can continue representing other clients in the matter, depending on the particular facts.
May a lawyer ask a client to consent to conflicts that may arise in the future?
Yes, this may be properly done, but only if it is reasonable to do so, and only if the client truly understands the particular kinds of conflicts that may arise and the consequences of consenting.
Representing Co-Parties in Criminal Litigation
The 6th amendment guarantees every criminal defendant the right to effective assistance of counsel. Because the interests of criminal co-defendants are very likely to diverge, ordinarily a lawyer should not try to defend two people in a criminal case. If a trial judge requires two criminal defendants with divergent interests to share a single lawyer, and if they are prejudiced as a result, their 6th amendment rights have been violated. Here are four examples of divergent interests:
Representing Co-Parties in Civil Litigation
In civil litigation, one lawyer may represent two plaintiffs or two defendants whose interests are potentially in conflict, but ONLY IF the two clients give informed, written consent. Here is a four-step guide for handling this situation:
Representing Two Clients with Inconsistent Legal Positions in Two Unrelated Cases (Example)
Suppose a lawyer represents two clients in different cases that are pending in different tribunals. On behalf of Client One, the lawyer needs to argue that a certain statute is unconstitutional. On behalf of Client Two, the lawyer needs to argue that the same statute is constitutional. Aside from that legal issue, the cases are unrelated. On those bare facts, there is no conflict of interest between Client One and Client Two. Suppose, however, that Client One's case will be heard next week in the intermediate appellate court that hears cases from Judicial District Six. Client Two's case will be tried seven months from now in a trial court in Judicial District Six. Thus, the appellate court's decision in Client One's case is likely to become the controlling precedent in Client Two's case. That presents a substantial risk that the lawyer's representation of one client will be materially limited by her responsibilities to the other client. Therefore, the lawyer must fully disclose the situation to both clients and seek their informed, written consent. If either or both clients will not consent, the lawyer must seek the court's permission to withdraw from one or both cases.
Do unnamed members of a class count as clients?
No, unnamed members of a class ordinarily are NOT regarded as clients for conflict of interest purposes.
Representing Multiple Clients in Nonlitigation Matters
Lawyers are often asked to represent more than one client in nonlitigation matters. Whether that creates a conflict of interest depends on many factors, including the length and intimacy of the lawyer's relationship with one or more of the clients, the kind of work the lawyer is asked to do, the chances of disagreement between the clients, and the consequences to the clients if the joint representation breaks down.
Special Problems of Representing More than One Client
A lawyer is often able to create or adjust a relationship between two or more clients by identifying and building on the interests that the clients have in common. When doing this, the lawyer must be impartial in dealing with the several clients. If the relationships among the clients are already antagonistic, or if contentious negotiations or litigation is on the horizon, a single lawyer ordinarily should not try to represent all of the clients.
Confidentiality and Privilege Problems of Representing More than One Client
In litigation between two people who were formerly joint clients of a single lawyer, neither of them can claim the attorney-client privilege for their communications with that lawyer. That is one disadvantage of having one lawyer for multiple clients, and the lawyer should warn clients about it before undertaking multiple representation. Moreover, a multiple representation is unlikely to work if one client wants to disclose material to the lawyer in confidence and wants to keep it confidential from the other clients. Therefore, the lawyer should ordinarily make clear to all clients at the outset that whatever one client discloses will be shared with ALL of the other clients. In special situations, however, the clients may agree that one of them may disclose a given item of information the lawyer but not to the other clients.
Conflicts Caused by Lawyer's Own Interests
(1) Lawyer's Financial Interest
Business Transactions with Client and Money or Property Interests Adverse to Client
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessor, security, or money interest that is adverse to a client, unless all of the following conditions are satisfied:
Misuse of Client's Confidential Information
A lawyer has a duty not to disclose information relating to the representation of a client, except when an exception to the duty of confidentiality applies. In addition, a lawyer must not use such information to the client's disadvantage, unless the client gives informed consent or some other exception to the duty of confidentiality applies. The same rule applies to misuse of a former or prospective client's confidential information.
Gifts to Lawyer from Client Who Is Not a Relative
A lawyer must not solicit a substantial gift from a client who is not the lawyer's relative. However, a lawyer may accept a small gift from a client, such as a token of appreciation or an appropriate holiday gift. Indeed, the rule does not prohibit a lawyer from accepting even a substantial gift, although the gift may be voidable for undue influence.
Acquiring Literary or Media Rights Concerning a Client's Case
A lawyer must not acquire literary or media rights to a story based in substantial part on information relating to the lawyer's representation of a client. However, a lawyer may acquire such rights after the client's legal matter is entirely completed, appeals and all.
Financial Assistance to Client in Litigation
A lawyer is prohibited from financially assisting a client in connection with pending or contemplated litigation.
Aggregate Settlement Agreements
When a lawyer represents several co-parties in a matter, the adversary sometimes makes an "aggregate settlement offer." That creates a potential conflict of interest among the lawyer's several clients. Because of this conflict, the lawyer must not participate in the making of an aggregate settlement agreement unless all of the following conditions are met:
Class Action Settlements
In a class action, the lawyer who represents the class ordinarily does not have a complete lawyer-client relationship with the unnamed members of the class. Even so, at settlement time, the class's lawyer must follow all of the class action rules concerning notice and other procedural requirements that protect the unnamed class members.
Aggregate Settlement of Criminal Case
The same rules that apply to an aggregate settlement in a civil case also apply to a joint plea bargain in a criminal case, although ordinarily one lawyer will not be representing more than one defendant in a criminal case.
Limit of Malpractice Liability
A lawyer must not make an agreement with a client that prospectively waives or limits the lawyer's liability for legal malpractice (except in the unlikely event that the client is independently represented in making the agreement). A lawyer may, however, do the following:
Settling Malpractice Claims
The law always favors the amicable settlement of claims. Thus, a lawyer may settle a malpractice claim or potential claim made by his client, but only if the lawyer first advises the client in writing to seek the advice of an independent lawyer about the settlement, and the lawyer gives the client a reasonable chance to obtain such advice.
Compensation from Third Person
A lawyer must not accept compensation from a third person for representing a client, unless three conditions are met:
Conflict Between Client's Interest and Third Person's Interest
Sometimes the interest of a third person may create a substantial risk of materially limiting the lawyer's ability to represent the client effectively. When that is true, the lawyer may represent the client, provided that:
When an insured and his insurance company are involved, whom does the insurance defense lawyer represent?
The law on this varies from state to state. Some say that the client is the policyholder only, but some say that the policyholder and insurance company are joint clients. In either case, the lawyer's conduct is governed by the Rules of Professional Conduct and NOT by the insurance contract.
Duties to Former Clients
(1) Continuing Duty of Confidentiality
Disqualification of Lawyer's New Firm
A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer was formerly associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired confidential information that is material to the matter; unless the former client gives informed, written consent.
Disqualification of Lawyer's Former Firm
When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
Federal and State Conflict of Interest Laws
Lawyers who move between government and private jobs must comply not only with the ethics rules but also with various state and federal statutes and regulations.
Private Work Following Government Work on Same Matter
Except when expressly permitted by law, a lawyer who leaves government service and enters private practice must not represent a private client in a matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed, written consent.
Subsequent Use of Information Gained During Government Service
A government lawyer who receives confidential government information about a person must not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage to that person. The rule covers only information actually received by the government lawyer, not information that could be fictionally imputed to the lawyer. "Confidential government information" means information that is gained under government authority and which the government is prohibited from revealing, or has a privilege not to reveal, and which is not otherwise available to the public.
Current Government Service After Private Practice
Ordinary conflict rules apply to a lawyer who enters government service after private practice or other nongovernmental work.
Switching from Judicial Service to Private Law Practice
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceedings give informed, written consent. The same rule applies to a lawyer who has earlier served as an arbitrator, mediator, or other third-party neutral. However, an arbitrator who is selected as a partisan of a party in a multi-member arbitration panel may subsequently represent the party.
Law Clerks Negotiating for Private Employment
A law clerk to a judge or other adjudicative officer must notify that person before negotiating for private employment with a party (or the attorney for a party) in a matter in which the law clerk is participating personally and substantially. Law clerks are specially treated because they are usually newly admitted lawyers for whom a clerkship is only a temporary first step in a legal career.
Other Adjudicative Officers Negotiating for Private Employment
The lenient rule that applies to law clerks does not apply to judges, arbitrators, mediators, third-party neutrals, and other adjudicative officers. They are forbidden to negotiate for private employment with a party (or the attorney for a party) in a matter in which they are participating personally and substantially.
Lawyer's Duty Concerning Confidential Information (Prospective Client)
The attorney-client privilege protects confidential communications between a lawyer and a prospective client. The ethical duty of confidentiality also applies to discussions between a lawyer and prospective client. Thus, the lawyer must not reveal or use information learned during those discussions, unless an exception to the duty of confidentiality applies.
Lawyer's Duty Concerning Conflict of Interest (Prospective Client)
A lawyer who obtains confidential information during preliminary discussions with a prospective client must not later represent a different person in the same or a substantially related matter if the confidential information could significantly harm the prospective client. This conflict is imputed to others in the lawyer's firm, but the imputation can be overcome by informed, written consent. It can also be overcome by satisfying all of the following conditions:
Duty of Loyalty to an Organization
A corporation, governmental agency, unincorporated association, or similar organization is a legal entity, but it must act through the people who make up the organization - the directors, officers, agency employees, shareholders, owners, or the like. A lawyer who represents an organization obviously must work through those people. However, when the organization is the lawyer's client, the lawyer owes the duty of loyalty to the ORGANIZATION - not to the people who are its constituents.
Conflicts Between the Organization and Its Constituents
When there are conflicts, the lawyer for the organization should caution the person in question that the attorney represents the organization, not the person. When appropriate, the lawyer should also advise the person to obtain independent legal counsel.
Protecting the Organization's Interests
If the lawyer for an organization learns that a person associated with the organization has acted, or is about to act, in a way that violates a duty to the organization or a law in a way that might be imputed to the organization, and if the violation is likely to cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary to protect the interests of the organization.
Duty to Report Outside the Organization
If the lawyer reports the violation to the organization's highest authority, but the highest authority fails to take timely, appropriate action, the lawyer may report the relevant information to appropriate persons outside of the organization. This is true even if the information would otherwise be protected by the duty of confidentiality. However, the lawyer's authority to report to outsiders applies only if, and to the extent that, the lawyer reasonably believes that reporting is necessary to prevent substantial injury to the organization. The authority to report to outsiders does not apply to a lawyer who is hired by the organization to investigate an alleged violation of law or to defend the organization or its constituents against a claimed violation of law.
Whistle Blower Protection
A lawyer who reasonably believes that she has been fired because of reporting in a manner as proscribed to protect the organization's interest, or who withdraws under circumstances that require or permit her to act pursuant to the duties to report, must proceed as she believes necessary to assure that the organization's highest authority is informed of the firing or withdrawal.
Representing Both the Organization and an Associated Person
The lawyer for an organization may represent both the organization and one or more directors, officers, employees, or other persons associated with the organization, provided that the ordinary conflict of interest rules are satisfied. When dual representation requires the consent of the organization, the consent must be given by an appropriate person other than the person to be represented.
Serving as Both Director and Lawyer
This is not forbidden, but it creates a conflict of interest. If there is a substantial risk that the dual role will compromise the lawyer's professional judgment, the lawyer should either resign as director or not act as the organization's lawyer when a conflict arises.
Securities Lawyer's Duties Under Sarbanes-Oxley Act
These rules apply to lawyers who represent an issuer of securities and who practice before the SEC.
Revealing Confidential Information to the SEC
The securities lawyer may reveal to the SEC, without the client's consent, any confidential information that is reasonably necessary to:
Safeguarding the Client's Money and Property
When money or property belonging to a client comes into the lawyer's hands, the lawyer must not steal it, borrow it, or put it to the lawyer's own use. Furthermore, the lawyer must keep it separated from the lawyer's own money and property. A lawyer is subject to discipline for commingling the client's money or property with the lawyer's own personal or business funds or property. (FIDUCIARY)
Client Trust Fund Account
Must be located in the state where the lawyer practices (unless the client consents to it being elsewhere). A lawyer, ordinarily, must NEVER put her own (or the firm's) money in the account, but there is an exception to put money in there for the sole purpose of paying bank service charges.
Interest On Lawyer Trust Account (IOLTA) Programs
If a client entrusts a lawyer with a sum that is too small to earn any net interest, the lawyer must put it into a pooled checking account that earns interest. After the bank deducts its service charges from the interest, the bank sends the remaining interest to the state bar or to a legal foundation, which uses the interest to fund charitable legal programs.
Funds that Must Be Placed in Client Trust Fund Account
When the client entrusts the lawyer with money to pay costs and expenses not yet incurred, the advance must be put into the lawyer's client trust fund account. The lawyer can then pay the expenses with checks drawn on the account.
Funds in Which Both Client and Lawyer Have an Interest
A lawyer sometimes receives funds from a third party that are to be used, in part, to pay the lawyer's fee. The lawyer must place such funds in a client trust account until there is an accounting and severance of the respective interests of the client and the lawyer. If the client disputes the amount that is due to the lawyer, then the disputed portion must be kept in the client trust account until the dispute is resolved.
Funds in Which a Third Party Has an Interest
Sometimes a third party has an interest in funds that come into the lawyer's possession on behalf of a client. Statute, common law, or contract may require the lawyer to protect the third party's interest against interference by the client; accordingly, when the third party's claim is not frivolous, the lawyer must refuse to surrender the funds to the client until the third party has been paid. However, a lawyer should not unilaterally presume to arbitrate a dispute between the client and the third party. If there are substantial grounds for the dispute, the lawyer may file an interpleader action to have a court resolve the dispute. The lawyer must promptly distribute any sums that are not in dispute.
Safeguarding Property
When the lawyer comes into possession of property (other than money) to be held on a client's behalf, the lawyer must identify it as belonging to the client and must put it in a safe place. For small items, most lawyers use a bank safe deposit box.
Additional Duties Regarding Client's Money or Property
A lawyer has the following additional duties respecting a client's money or property:
Duty to Render Candid Advice
When acting as advisor to a client, a lawyer must exercise independent judgment and render candid advice. Candid advice is sometimes hard to take - the facts may be harsh and the choices unattractive. The lawyer should attempt to keep the client's morale up, but should neither sugarcoat the advice nor delude the client.
Giving Advice Beyond the Law
A lawyer may give a client not only legal advice, but also moral, economic, social, or political advice when relevant to the client's situation. When appropriate, a lawyer may also urge a client to seek advice from persons in related professions - e.g., advice from an accountant, psychiatrist, physician, or family counselor.
Volunteering Advice
A lawyer ordinarily has no duty to give advice until asked. However, if the lawyer knows that the client is planning a course of action that will have substantial adverse legal consequences for the client, the lawyer may volunteer advice without being asked.
Evaluation for Use by Third Persons
A lawyer may evaluate a client's affairs for the use of a third person if the lawyer reasonably believes that making the evaluation is compatible with the lawyer's other responsibilities to the client.
Cases in Which Opinion Is to Be Widely Disseminated (Evaluation for Use by Third Persons)
When a lawyer agrees to certify facts to a large number of persons who can be expected to rely on the lawyer, the lawyer has special obligation to be complete, accurate, and candid.
Lawyer as Negotiator
The Rules prohibit a lawyer from making a false statement of material fact. However, the lawyer is under no duty to do the other side's fact research or volunteer any facts that would undermine the client's position.
Puffing and Subjective Statements (Negotiation)
Because it is the essence of negotiation that the lawyer attempt to magnify the strength of the client's position, there are some statements that the ABA Model Rules will allow even though they may constitute "puffing" of the client's position - i.e., they are not considered statements of material fact. The key factor to examine when determining if a statement contains a material fact is whether the opposing party would be reasonable in relying on the statement made. Certain types of subjective statements, such as those relating to the relative merits of the case, estimates of price and value, and a party's intentions as to an acceptable settlement are not considered statements of material fact in this context.
Misapprehension (Negotiation)
A lawyer who believes an opponent is underestimating the strength of his client's position has no duty to correct that misapprehension unless the lawyer or client caused it. However, in certain instances, the opponent's lack of knowledge of pertinent facts may be so important that disclosure is required.
Lawyer as Third-Party Neutral
A lawyer serves as a third-party neutral when she assists two or more nonclients in resolving a dispute or other matter that has arisen between them. Examples of a third-party neutral are an arbitrator, mediator, etc. Nonlawyers can serve as third-party neutrals, but some court rules require lawyers for some types of cases. When a lawyer serves as a third-party neutral, she is subject not only to the ordinary rules of legal ethics, but also to various codes of conduct devised by groups such as the American Arbitration Association.
Discipline for Asserting Frivolous Position
A lawyer is subject to discipline for bringing a frivolous proceeding, or for asserting a frivolous position in the defense of a proceeding. Likewise, a lawyer is subject to discipline for taking a frivolous position on an issue in a proceeding. A "frivolous" position is one that cannot be supported by a good faith argument under existing law AND that cannot be supported by a good faith argument for changing the existing law. Note the following:
Defending in Criminal Proceedings
Despite the general rule against taking frivolous positions, the lawyer for the defendant in a criminal case (or for the respondent in a proceeding that could result in incarceration) may conduct the defense so that the prosecutor must prove ever necessary element of the crime.
Duty to Expedite Litigation
A lawyer must make reasonable efforts to expedite litigation, consistent with the interests of the client. A lawyer may occasionally ask for a postponement for personal reasons, but he should not make a habit of it.
Duty of Candor About Applicable Law to the Tribunal
An attorney is subject to discipline for knowingly making a false statement of law to the court.
Duty of Candor About Facts of the Case to the Tribunal
An attorney is subject to discipline for knowingly making a false statement of material fact to the court. Ordinarily, an attorney is not required to have personal knowledge of the facts stated in pleadings and other litigation documents - those contain assertions made by the client or by other persons, not by the attorney. But when an attorney does make an assertion of fact to the court, the attorney is expected either to KNOW that the assertion is true or to BELIEVE it to be true based on reasonably diligent inquiry. Furthermore, an attorney's failure to speak out is, in some contexts, the equivalent of an affirmative misrepresentation (e.g., when the attorney or the client has caused a mistake or misunderstanding).
Must an attorney volunteer harmful facts in the interests of candor?
An attorney generally has no obligation to volunteer a fact that is harmful to his client's case. The adversary system assumes that opposing sides can use discovery proceedings and their own investigations to find out the facts. If an attorney's adversary fails to uncover a harmful fact, an injustice may result, but that is simply the way the adversary system works.
Ex Parte Proceedings and the Duty of Candor
In an ex parte proceeding, only one side is present. Because the other side has no opportunity to offer its version of the facts, the model of the adversary system does not apply in the ex parte context. Therefore, a lawyer in an ex parte proceeding MUST INFORM the tribunal of ALL MATERIAL FACTS known to the lawyer that will help the tribunal make an informed decision.
Using False Evidence and the Duty of Candor
In a matter pending before a tribunal, a lawyer is subject to discipline for offering evidence that the lawyer KNOWS is false. "Knows" means actual knowledge, but actual knowledge can be inferred from the circumstances. A lawyer should resolve doubts about veracity in favor of her client, but a lawyer cannot ignore an obvious falsehood. Furthermore, a lawyer may refuse to offer evidence that she reasonably believes is false, except for a criminal defendant's testimony on his behalf. These principles apply, not just in court, but also in an ancillary proceeding, such as a deposition.
Discovery of Falsity After Evidence Has Been Offered
If a lawyer has offered a piece of evidence and later discovers that it is false, she must take reasonable remedial measures. First, the lawyer must speak confidentially with her client, urging the client's cooperation in withdrawing or correcting the false evidence. Second, if the client will not cooperate, the lawyer should consider asking the court's permission to withdraw. Ordinarily, withdrawal is not mandatory, but it becomes mandatory if the lawyer's discovery of the false evidence creates such a rift between the lawyer and the client that the lawyer can no longer represent the client effectively. Withdrawal alone is not a sufficient remedial step if it leaves the false evidence before the tribunal. The lawyer should also move to strike the false evidence or take other steps to cancel out its effect. Third, if a withdrawal is not permitted or will not solve the problem, the lawyer must disclose the situation to the judge, even if that means disclosing the client's information that would otherwise be protected under the duty of confidentiality.
False Testimony by Criminal Defendant
The criminal defense lawyer should follow the same three steps as he would for discovering the falsity of evidence:
Other Corruption of an Adjudicative Proceeding
A lawyer who represents a client in an adjudicative proceeding must take appropriate measures to prevent any person (a client or anyone else) from committing criminal or fraudulent conduct that will corrupt the proceedings. Examples of such conduct are:
Opponent's Access to Evidence
A lawyer must not unlawfully obstruct another party's access to evidence. Furthermore, a lawyer must not unlawfully alter, destroy, or conceal a document or other item having evidentiary value. In addition, a lawyer must not counsel or assist another person to do any of these things. Suppressing or tampering with evidence may also constitute a crime.
Falsifying Evidence and Assisting in Perjury
A lawyer must not falsify evidence. Furthermore, a lawyer must not counsel or assist a witness to testify falsely. Well-prepared lawyers seldom pass up an opportunity to talk to a witness before the witness testifies. The lawyer may probe the witness's memory, explore the basis of the witness's knowledge, point out holes and fallacies in the witness's story, and seek to refresh the witness's recollection by proper means. However, the lawyer must not try to "bend" the testimony, or put words in the witness's mouth.
Paying Witnesses
A lawyer must not offer an inducement to a witness that is prohibited by law. However, the following payments to witnesses are proper:
Securing Absence or Noncooperation of Witness
A lawyer must not advise or cause a person to secrete himself or to flee the jurisdiction for the purpose of making him unavailable as a witness. A lawyer may, however, advise a person not to voluntarily give information to an opponent or other party if the following conditions are met:
Violating Court Rules and Orders
A lawyer must not knowingly violate a rule of procedure, a rule of evidence, a rule of court, or an order made by the court - but a lawyer may openly refuse to obey such a rule or order for the purpose of making a good faith challenge to the validity of the rule or order.
Abusing Discovery Procedures
A lawyer must not make a frivolous discovery request, or fail to make reasonable efforts to comply with a legally proper discovery request made by the adversary. Abuse of discovery proceedings can also subject both the lawyer and the client to fines and other sanctions.
Referring to Inadmissible Material
During the trial of a case, a lawyer must not refer to material that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.
Asserting Personal Knowledge of Contested Facts
During the trial of a case, a lawyer must not assert personal knowledge of facts in issue (except when testifying as a witness).
Asserting Personal Opinions
During the trial of a case, a lawyer must not state a personal opinion about:
Using Threats to Gain Advantage in Civil Case
A lawyer may bring, or threaten to bring, criminal charges against her adversary in order to gain an advantage in a civil case, provided that the criminal and civil matters are closely related and that both the civil case and criminal charges are warranted by the law and the facts. However, a lawyer must not threaten to report adversary counsel for a disciplinary violation in order to gain an advantage for her client in a civil case. If the adversary counsel's disciplinary violation is the kind that must be reported, the lawyer should simply report it - she should not use it as a bargaining chip in the civil case.
Treating Opponents with Courtesy and Respect
The professional ideal is that advocates relate to each other with a respectful and cooperative attitude marked by civility consistent with their responsibility to their clients. Lawyers also should treat all participants in a proceeding with such respect and cooperativeness. Certain conduct toward other participants is prohibited and includes: physical force or threat; ethnic, racial, or gender-based slurs; and reckless charges of wrongdoing.
Improper Influence
A lawyer must not seek to influence a judge, court official, juror, or prospective juror by improper means. For example, a lawyer must not offer a gift to a judge unless the judge would be allowed to accept it under the ABA Code of Judicial Conduct.
Improper Ex Parte Communication
While a proceeding is pending in a tribunal, a lawyer must not have an ex parte communication with a judge, court official, juror, or prospective juror except when authorized by law or court order. An "ex parte communication" is a communication that concerns the matter at issue and occurs outside the presence and without the consent of the other parties to the litigation or their representatives.
Investigation of Prospective Jurors
It is not improper for a lawyer to investigate members of a jury panel to determine their backgrounds and the existence of any factors that would be grounds for a challenge (e.g., bias, relationship to a party). Such an investigation must be done discreetly and must not involve contact with the prospective juror or, in most cases, her family.
Post-Trial Communications with Jurors
After the trial is over and the jury is discharged a lawyer must not communicate with a former jury member (or even a person who was a prospective juror) if any of the following conditions is met:
Disruptive Conduct
A lawyer must not engage in conduct intended to disrupt a tribunal. This rule applies in depositions as well as in the courtroom.
Statements About Judicial and Legal Officials
A lawyer must not make a statement that the lawyer knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office. The same rule applies to statements made with reckless disregard as to truth or falsity.
Trial Publicity
A lawyer who is connected with a case must not make a public statement outside of the courtroom that the lawyer reasonably should know would have a "substantial likelihood of materially prejudicing" the case (e.g., discussing the character or credibility of a party or witness, performance or results of an examination, possibility of a guilty plea, or existence or contents of a confession).
Dry Facts About Case (Trial Publicity)
Notwithstanding the general rule against prejudicial statements, a lawyer who is connected with the case may publicly state the following "dry facts" about the case:
Trial Counsel as Witness - Reasons to Avoid Dual Role
Conflict of Interest may be created.
Ethical Limitations Imposed - Trial Counsel as Witness
A lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, except for these situations:
Special Responsibilities of a Prosecutor
The primary goal of the prosecutor is to seek justice, not to convict. The prosecutor must not prosecute a charge that she knows is not supported by probable cause.
Advocate in Legislative and Administrative Proceedings
When a lawyer appears on behalf of a client before a legislative body or administrative agency, the lawyer must disclose that she is acting in a representative capacity (not on her own behalf).
Truthfulness in Statements to Third Persons
When dealing on behalf of a client with a third person, a lawyer must not knowingly make a false statement of law or material fact.
Communication with Persons Represented by Counsel
A lawyer must not communicate about a matter with a person the lawyer knows is represented by counsel, unless that person's counsel consents, or unless the law or court order authorizes the communication.
Dealing with Unrepresented Persons
When dealing with an unrepresented person, a lawyer must not state or imply that the lawyer is disinterested. When the lawyer knows, or reasonably should know, that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding. Likewise, if the lawyer knows or should know that her client's interests are likely to be in conflict with those of the unrepresented person, she must not give legal advice to that person (other than to get a lawyer). The rule does not, however, prevent a lawyer from negotiating a transaction or settling a client's dispute with an unrepresented person.
Respect for Rights of Third Persons
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. Furthermore, a lawyer must not use methods of obtaining evidence that violate the legal rights of a third person.
Partners' Duty to Educate and Guide in Ethics Matters
The partners or managing lawyers of a law firm (and the supervisory lawyers in a governmental agency, business, or other group of lawyers) must make reasonable efforts to assure that the other lawyers adhere to the Rules of Professional Conduct.
Duties of Direct Supervisor
A lawyer who directly supervises the work of another lawyer must make reasonable efforts to assure that the other lawyer adheres to the Rules of Professional Conduct.
How Duties (of Supervisors and Partners) are Fulfilled
The steps necessary to fulfill these duties depend on the kind and size of the firm or other group. In a small private law firm, informal supervision and occasional admonition may be sufficient. In a larger organization, more elaborate steps may be necessary. Some firms provide continuing legal education programs in professional ethics, and some firms have designated a partner or committee to whom a junior lawyer may turn in confidence for assistance on an ethics issue.
Ethical Responsibility for Another Lawyer's Misconduct
A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer if:
Duties (of Subordinate Lawyer) Concerning Clear Ethics Violation
Orders from a supervisory lawyer are no excuse for clearly unethical conduct - a lawyer must follow the ethics rules even when acting under the directions of another person. However, the fact that a subordinate lawyer was acting on directions from a supervisor may be relevant in determining whether the subordinate had the knowledge that is required for some ethics violations.
Duties (of Subordinate Lawyer) Concerning Debatable Ethics Questions
A subordinate lawyer does not violate the rules of professional conduct by acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty. When a debatable ethics question arises, someone must decide on a course of action, and that responsibility must rest with the supervisory lawyer. If the supervisor's judgment turns out to have been wrong, the subordinate lawyer should not be disciplined for doing what the supervisor directed.
Duty to Educate Nonlawyer Assistants and Guide Them in Ethics Matters
Law firms, governmental and business law departments, and other groups of lawyers employ many kinds of nonlawyers - secretaries, investigators, paralegals, law clerks, messengers, and law student interns. Lawyers who work with such employees must instruct them concerning the ethics of the profession and should ultimately be responsible for their work.
Duty of Partners Respecting Nonlawyer Employees
The partners and managers in a law firm (and the supervisory lawyers in a governmental agency, business, or other group of lawyers) must make reasonable efforts to assure that the conduct of the nonlawyers is compatible with the obligations of the profession.
Duties of Direct Supervisor Respecting Nonlawyer Employees
A lawyer is subject to discipline in two situations when a nonlawyer does something that, if done by a lawyer, would violate a disciplinary rule:
Fee Splitting with Nonlawyers and Temporary Lawyers
A lawyer must not share her legal fee with a nonlawyer. Obviously, the salaries of nonlawyer employees of a firm are paid with money earned as legal fees, but that is not regarded as "sharing" a fee. Furthermore, a firm can employ temporary lawyers through a placement agency without violating the fee-splitting rule.
Partnership with Nonlawyer to Practice Law
A lawyer must not form a partnership with a nonlawyer if any part of the partnership activities will constitute the practice of law.
Nonlawyer Involvement in Incorporated Firm or Other Association
A lawyer must not practice in an incorporated law firm or association authorized to practice law for profit if:
Restrictive Partnership and Employment Agreements
A lawyer must neither make nor offer a partnership or employment or similar agreement that restricts a lawyer's right to practice after termination of the relationship, except for an agreement concerning benefits upon requirement.
Restrictive Settlement Agreements
A lawyer must neither make nor offer an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
When Sale of a Law Practice is Permitted
(1) The seller must cease to engage in the private practice of law or in the sold field of practice in the area where the practice has been conducted;
Clients' Fees After Sale of Practice
Clients' fees must not be increased because of the sale. The purchaser must honor existing fee agreements made by seller.
Law-Related (Ancillary) Services
Examples include financial planning, accounting, lobbying, trust services, real estate counseling, providing title insurance, and preparing tax returns. Even though law-related services are not legal services, a lawyer who provides such services is subject to the Rules of Professional Conduct in two situations:
Providing Nonlegal Services to Clients
When a client-lawyer relationship exists between the lawyer and the individual receiving the law-related services, the lawyer must comply with the Rules. Specifically, the transaction must meet the following requirements: the terms of the transaction must be fair to the client; the terms must be fully disclosed to the client in writing, and such disclosure must cover the essential terms of the transaction and the lawyer's role in the transaction; the client must be advised in writing that he should seek advice from an independent lawyer regarding the arrangement; and the client must give informed consent in a writing signed by the client.
Pro Bono Publico Service
Every lawyer has a professional responsibility to provide legal service to people who cannot pay for it. The Model Rules recommend that every lawyer spend 50 hours per year on pro bono work; a "substantial majority" of those hours should be spent doing unpaid legal service for poor people or organizations that address the needs of poor people.
Membership in Legal Services Organizations
A lawyer may serve as a director, officer, or member of a legal services organization (apart from the lawyer's regular employment) even though the organization serves persons whose interests are adverse to the lawyer's regular clients. This general rule is, however, subject to the following limitations:
Quick-Advice Programs
A lawyer may participate in a quick-advice program sponsored by a court or nonprofit organization, subject to the following rules:
Law Reform Activities Affecting Client Interests
A lawyer may serve as a director, officer, or member of a law reform group, even though a reform advocated by the group may harm one of the lawyer's clients.
Political Contributions to Obtain Government Employment
A lawyer or firm must not accept a government legal engagement (i.e., employment that a public official has the power to award) or an appointment by a judge if the lawyer for firm makes or solicits a political contribution for the purpose of obtaining such employment or appointment ("pay to play" contributions).
A lawyer is subject to discipline for any type of communication about the lawyer or the lawyer's services that is false or misleading - applies to ALL kinds of communications.
A lawyer must not seek fee-paying work by initiating personal or live telephone contact, or real-time electronic contact, with a nonlawyer prospect with whom the lawyer has no family, close personal, or prior professional relationship. Thus, an attorney who hangs around in the hallway of a courthouse, offering legal services for a fee to criminal defendants who are not represented by counsel, is subject to discipline. Likewise, a lawyer who hears on the radio that a person was badly injured in an accident and promptly telephones that person's spouse offering legal services for a fee is subject to discipline. A lawyer cannot use an agent to do this either.
Certified Specialists
Some states and private organizations certify lawyers as specialists in a field of law. A lawyer who has been certified as a specialist in a field may state that fact to the public if the certifying body is identified and it has been approved by the ABA.
Statement of Fields of Practice
In public communications, a lawyer may state that he does (or does not) practice in particular fields of law, but must not state or imply that he is a certified specialist unless the conditions for such communication are met.
Patent and Admiralty Lawyers
Patent and admiralty lawyers have traditionally been accorded special treatment. A lawyer who is admitted to practice before the U.S. Patent and Trademark Office may use the designation "Patent Attorney," or something similar. A lawyer who is engaged in admiralty practice may use the designation "Proctor in Admiralty," or something similar.
Firm Names and Letterheads
A private law partnership may be designated by the names of one or more of the partners. When partners die or retire, their names may be carried over to successor partnerships.
Selection, Tenure, and Discipline of Federal Judges
Justices of the US Supreme Court and judges of other Article III federal courts are appointed by the President with the advice and consent of the Senate. They hold office for life during good behavior. A federal judge can be removed from office by impeachment and can be disciplined in less drastic ways by a committee of federal judges. The ABA Code of Judicial Conduct is the official standard of conduct for all federal judges.
Selection, Tenure, and Discipline of State Judges
The constitutions of most states specify how judges are to be selected. In some states, judges are appointed by the governor or the state legislature, while in others they are elected by the voters. In still other states, judges are initially appointed and later retained or rejected by the voters. State judges can be removed from office or otherwise disciplined in accordance with state constitutional and statutory provisions.
Conduct On the Bench
The general standard of integrity and independence obviously applies to a judge's conduct on the bench in a judicial capacity. Although judges must be independent, they must also comply with the law.
Conduct Off the Bench
The duty of integrity and independence also applies to a judge's behavior in his personal life.
Impropriety and the Appearance of Impropriety
A judge must respect and comply with the law and must act in a way that promotes public confidence in the integrity and impartiality of the judiciary. This duty applies to conduct both on and off the bench. A judge is subject to constant public scrutiny and must therefore accept constraints that would be burdensome to the ordinary citizen.
Discrimination Based on Race, Sex, Religion, or National Origin (Organizations)
A judge is prohibited from being a member of an organization that currently practices "invidious discrimination" based on four specified grounds: race, sex, religion, or national origin. This category does not include an "intimate, purely private organization" whose membership limitations could not be constitutionally prohibited. Furthermore, this category does not include an organization that is "dedicated to the preservation of ethnic, religious, or cultural values of legitimate common interest to its members."
Diligent, Impartial Performance of Judicial Duties
Judicial duties include all duties of the judge's office that are prescribed by law. Judicial duties take precedence over all of the judge's other activities.
Avoidance of Bias and Prejudice
A judge must avoid bias and prejudice and must require others (including lawyers) who are under the judge's direction and control to do likewise. Prejudice in this context includes, but is not limited to, prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status. Even in nonjudicial activities, a judge should avoid making demeaning remarks or jokes that play on these prejudices. A judge's duty to control lawyers does not preclude legitimate advocacy by lawyers when issues of prejudice arise in a case. A judge should be aware that facial expression and body language can convey prejudice as easily as words.
Ex Parte Communications (Judicial Conduct)
"Ex parte" means one side only. An ex parte communication means a communication between a judge and representative from one side of a matter when no representative from the other side is present. A judge must not initiate, permit, or consider ex parte communications except in these three situations:
Communications from Others (Judicial Conduct)
A judge must not initiate, permit, or consider communications from others made to the judge outside the presence of the parties' lawyers concerning a pending or impending matter, except in these four situations:
Findings of Facts and Conclusions of Law
If a judge asks the lawyers for one side to propose findings of fact and conclusions, the lawyers for the other parties must be told of the request and given a chance to respond to the proposed findings and conclusions.
Independent Investigation of Facts
A judge must not independently investigate the facts in a case and must consider only the evidence presented.
Promptness, Efficiency, and Fairness
A judge must dispose of judicial matters promptly, efficiently, and fairly. This duty requires the judge to:
Public Comments on Cases
When a case is pending or impending in any court, a judge must not make any public comment that might reasonably be expected to affect its outcome or impair its fairness, or make any nonpublic comment that might substantially interfere with a fair trial. This duty continues through appeal and until the case is finally disposed of. The judge must require like abstention from court personnel under her control.
Promises with Respect to Cases Likely to Come Before Court
A judge must not make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.
Commentary on Jury Verdict
A judge must not commend or criticize jurors for their verdict, but a judge may thank jurors for their service. This duty does not apply to judicial commentary on a verdict in a court order or judicial opinion.
Nonpublic Information (Judicial Conduct)
A judge must not disclose or use, for nonjudicial purposes, any nonpublic information acquired in a judicial capacity. Nonpublic information includes, without limitation, information that is under seal, impounded, or obtained in camera, and information obtained in grand jury proceedings, presentencing reports, dependency cases, and psychiatric reports.
Administrative Duties (Judicial Conduct)
Judges must discharge their administrative duties diligently without bias or prejudice, maintain their competence in judicial administration, and cooperate with others in administrative matters. Judges must require those under their direction and control to do likewise. Supervising judges must take reasonable steps to insure the prompt disposition of matters in their courts.
Judicial Appointments
A judge must exercise the power of appointment impartially and on the basis of merit (e.g., when appointing referees, special masters, receivers, guardians, assigned counsel, and court personnel). A judge must not make unnecessary appointments, must avoid nepotism and favoritism, and must not approve compensation for appointees beyond the fair value of their services.
Disciplinary Responsibilities
Judges have the following duties respecting misconduct by lawyers and other judges:
Disqualification - General Rule
A judge must disqualify himself in a proceeding in which the judge's impartiality might be reasonably questioned. Note that the rule uses the objective standard of reasonableness; a far-fetched argument or litigant's whim is not sufficient to disqualify a judge.
Rule of Necessity - Disqualification
Case law has created a rule of necessity that overrides the rules of disqualification. For example, suppose that Judge Z is the only judge available to rule on an emergency motion for a temporary restraining order. Judge Z may rule on the motion even though she might be disqualified were it not an emergency. Even in such a situation, Judge Z should disclose the ground for disqualification on the record and should use reasonable efforts to transfer the matter to a different judge as soon as possible. Furthermore, a judge should not be disqualified for a reason that would apply equally to all other judges to whom the matter might be assigned.
Bias or Personal Knowledge - Disqualification
A judge must disqualify himself if there is reasonable ground to believe that the judge has:
Prior Involvement - Disqualification
A judge must disqualify himself if the judge previously:
Economic or Other Interest - Disqualification
A judge must disqualify himself if the judge knows that he, either as an individual or as a fiduciary:
Involvement of a Relative - Disqualification
A judge must disqualify himself if the judge has a relative involved in the case.
Persons Making Contributions to Judge's Election Campaign - Disqualification
A judge who is subject to public election must disqualify himself if he knows, or learns through timely motion, that a party or party's lawyer has, within a designated number of prior years, made contributions to the judge's election campaign that exceed the jurisdiction's specified amount.
Public Statements of Judicial Commitment - Disqualification
A judge must disqualify himself if he, while a judge or a candidate for judicial office, has made a public statement that commits or appears to commit him with respect to an issue in the proceeding or the controversy in the proceeding.
Remittal of Disqualification
The parties and their lawyers can remit (waive) all of the foregoing grounds of disqualification, except personal bias concerning a party. The procedure for remittal is as follows:
Extrajudicial Activities
A judge must conduct all extrajudicial activities so that they do not:
Avocational Activities (Extrajudicial Activities)
A judge may speak, write, lecture, teach, and participate in nonjudicial activities that involve either legal or nonlegal subjects, provided that these activities are consistent with the duties stated elsewhere in the Code of Judicial Conduct. Because judges are in a unique position to help improve the law, they are encouraged to do so through bar associations, judicial conferences, and the like.
Governmental Hearings and Consultations (Extrajudicial Activities)
A judge must not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official, except on matters concerning the law, the legal system, or the administration of justice. This duty does not apply when the judge is acting pro se in a matter that involves the judge or his interests.
Governmental Committees and Commissions (Extrajudicial Activities)
A judge must not accept appointment to a governmental committee or commission or other governmental position that is concerned with fact or policy issues that do not relate to the law, the legal system, or the administration of justice. Such appointments are likely to be very time-consuming, can involve the judge in controversial matters, and can interfere with the independence of the judiciary. A judge may, however, represent a governmental until on a ceremonial occasion, or in connection with a historical, educational, or cultural activity.
Law-Related Organizations and Nonprofit Organizations (Extrajudicial Activities)
A judge may serve as an officer, director, trustee, or nonlegal advisor of:
Investments (Extrajudicial Activities)
Unless otherwise improper under the CJC, a judge may hold an manage investments (including real estate) for himself or members of his family. In managing his own investments, a judge must seek to minimize the number of cases in which he will be disqualified. As soon as it can be done without serious loss, a judge must eliminate investments that might require frequent disqualification.
Financial and Business Dealings (Extrajudicial Activities)
A judge must not engage in financial or business dealings that might be perceived to exploit the judge's position, or that involve frequent dealings with lawyers or others who are likely to come before the court on which the judge sits. A judge who acquires information in a judicial capacity must not use it for private gain. A judge should discourage members of his family from engaging in dealings that might be perceived to exploit the judge's position.
Participation in a Business (Extrajudicial Activities)
A judge must not be an officer, director, manager, general partner, advisor, or employee of any business entity. A judge may, however, manage or participate in a business that is closely held by the judge or members of his family, or a business that is primarily engaged in investing the judge's or the family's financial resources. A judge should not participate in even a closely held family business if it will take too much time, or if the business frequently appears before the court on which the judge sits.
Gifts, Bequests, Favors, and Loans (Extrajudicial Activities)
As a general rule, a judge should not accept gifts, bequests, favors, or loans from anyone. A judge should urge family members who reside in the judge's household not to accept such items either. The exceptions to the general rule are as follows:
Fiduciary Activities (Extrajudicial Activities)
Generally, a judge must not serve as an executor, administrator, trustee, guardian, or other fiduciary. However, a judge may serve in such a capacity for a member of the judge's family, but only if the service will not:
Service as an Arbitrator or Mediator (Extrajudicial Activities)
A full-time judge must not act as an arbitrator, mediator, or private judge unless expressly authorized by law. This does not, of course, prevent the judge form participating in arbitration, mediation, or settlement conferences in a judicial capacity.
Practice of Law (Extrajudicial Activities)
A full-time judge must not practice law. However, a judge may act pro se and may, without compensation, give legal advice to, and draft or review documents for, a member of her family. A judge must not, however, act as an advocate or negotiator for a family member in a legal matter.
Outside Compensation and Expenses (Extrajudicial Activities)
The federal government and many other jurisdictions have adopted rigorous requirements concerning receipt and reporting of judges' outside compensation and expense reimbursement. The following rules apply only where not supplanted by more rigorous requirements.
Judges and Politics
The general rule is that judges must stay out of politics. The general rule has three exceptions:
A "candidate" is a person who seeks to obtain or retain a judicial office either by election or appointment. The same definition applies to a judge who seeks an elected or appointed nonjudicial office. A person becomes a candidate when she does any one of the following things:
Rules Applicable to Candidates for Judicial Office
(This includes an incumbent judge who seeks retention)
"Announce Clause"
The U.S. Supreme Court has held that an "announce clause" - i.e., a clause prohibiting candidates for judgeships from announcing their views on disputed legal or political issues - is unconstitutional because it violates the First Amendment. The Court examined the announce clause in the Minnesota CJC and stated that the clause prohibited speech on the basis of content and burdened the speech of political candidates.
Rules Applicable to Candidates for Appointed Positions
A candidate must not solicit or accept funds (even through a campaign committee) to support her candidacy.
Rules Applicable to Judges and Candidates Subject to Public Election
They may at any time (whether or not they are then standing for election):
Sanctions for Violating Rules on Political Activity
A successful candidate who violates the rules on political activity is subject to judicial discipline. An unsuccessful candidate who is a lawyer and who violates the rules is subject to lawyer discipline.
Application of the Code of Judicial Conduct
It applies to all persons who perform judicial functions, including magistrates, court commissioners, and special masters and referees. There are many highly detailed exceptions, but here are the two important broad generalizations: