Model Rules Of Professional Conduct

Front 1

When may a lawyer testify in her client's trial?

Back 1

(1) the testimony relates to an uncontested issue
(2) the testimony relates to the nature/value of legal services rendered in the case; or
(3) where disqualification of the lawyer would work substantial hardship on the client

Front 2

Does a lawyer's inability to represent a client b/c she has to testify on a material/contested issue impute to other attorney's in her firm?

Back 2

No, another attorney can represent the client as long as it doesn't violate any other rule

Front 3

When is L prohibited from entering an agreement to take a case on a contingency fee?

Back 3

(1) Where the representation is for a ∆ in a criminal case, or
(2) In domestic relations matter where payment would be contingent on securing a divorce, the amount of alimony/support, or property settlement in lieu thereof

Front 4

When may L accept a referral fee?

Back 4

Where
(1) L assumes joint responsibility for the representation (or the division is in proportion the services performed by each),
(2) Client agrees to the arrangement, including the share each lawyer will get, and the agreement is confirmed in writing, AND
(3) The total fee is reasonable

Front 5

When MAY L enter into a business transaction with client?

Back 5

Where the transaction terms are:
(1) Fair & reasonable and fully disclosed via a writing in a manner reasonably comprehensible to C
(3) C is advised in a writing that advises C to seek independent legal advice regarding the transaction and is given the reasonable opportunity to do so, and
(4) Client gives informed consent transmitted in writing SIGNED by C, to essential terms of transaction and lawyer's role in it, including whether L is representing C in the transaction

Front 6

Can L ever acquire literary or media rights relating to a representation?

Back 6

L may negotiate such an agreement only after the conclusion of the representation

Front 7

Can L ever use information relating to C's representation to C's disadvantage?

Back 7

Only where C gives informed consent

Front 8

In general, L may not provide financial assistance to a client in connection with pending or contemplated litigation. What are the exceptions?

Back 8

L may advance/pay court costs and litigation expenses:
(1) When repayment is contingent on the outcome of the matter, or
(2) When the client is indigent

Front 9

When may L accept compensation for the representation of C from a third party?

Back 9

If the following three requirements are satisfied:
(1) C gives informed consent
(2) No interference with L's independence of professional judgment or the lawyer-client relationship, and
(3) Information relating to the representation of C remains protected as required by Rule 1.6

Front 10

Rule re: aggregate settlements of multiple clients?

Back 10

In general: L repping 2 or more C's may not participate in making an aggregate settlement or in a crim case an aggregate agreement as to guilty or nolo contendre pleas

Exception: each client in informed consent, in a writing SIGNED by the client - and L must disclose:
(1) The existence and nature of all the claims or pleas involved; and,
(2) The participation of each person in the settlement

Front 11

When may L make an agreement prospectively limiting L's liability to C for malpractice?

Back 11

ONLY where C is independently represented in making the agreement

But Note: Watch out for this being adverse to C's interests in the future

Front 12

Can L settle a malpractice claim against himself with clients/non-clients?

Back 12

No, attorneys cannot settle malpractice claims against themselves. Unless:
(1) L has advised C in writing of the desirability of obtaining independent counsel, and
(2) L has provided C with reasonable time to obtain independent counsel

But note: seems to be conflict of interest anyway

Front 13

When can L acquire a proprietary [i.e. ownership] interest in C's cause of action or the subject matter of C's litigation?

Back 13

Never!

Well, unless you count the following two things which are A OK:

(1) Lawful liens for attorney's fees and expenses, and
(2) Reasonable contingency fees in civil cases

Front 14

Rule re: L accepting a gift from C?

Back 14

(1) L shall not SOLICIT a substantial gift from C
(2) L shall not prepare on behalf of C any instrument giving L or L's relative any substantial gift
...Unless C is a "related person" to L

Related persons include a spouse, children, grandchildren, parents, grandparents, and other relatives with whom the lawyer/client maintains a close, familial relationship

Front 15

Rule re: successive conflicts

Back 15

An attorney who has formerly represented a client in a matter shall NOT then represent another person
- In the same or substantially related matter,
- In which that person's interests are materially adverse to the interest of the former client...
UNLESS...both clients give informed written consent

Front 16

When can L reveal/disclose confidential information about a current or former client L learned from his prior firm's [or his own] representation of the client??

Back 16

only if the four requirements of rule 1.6 are satisfied [i.e. informed consent, implied authorization in order to carry out representation, to prevent death/substantial bodily harm, client from committing crime or rectify substantial financial injury, secure legal advice, establish claim or defense on behalf of L, to comply with other law or court order]

Front 17

When can L use a prior client's [of her own or any law firm she has worked at when she worked there] information, without disclosing it, to the disadvantage of the former client?

Back 17

Exceptions under rule 1.6 [i.e. informed consent, implied authorization, prevent death, etc.]

OR

Where the client's information has become "generally known," if in compliance with other rules
Note: L may not reveal/disclose client's information where it is generally known, only use it

Front 18

"Substantially Related" definition for purposes of Rule 1.9 successive conflicts?

Back 18

"Matters are 'substantially related' . . . if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter"

Front 19

When screening is a remedy, what does it require?

Back 19

(1) Prompt written notice to the affect prior client [or government employer] that describes and outlines the procedures for compliance with the screening process,
(2) Certificates of compliance with the screening process delivered upon the request of the former client and at the termination of the screening procedure [NOT required if government consent needed]
(3) No participation from the disqualified lawyer, and
(4) L must obtain no fees from the representation of the matter

Front 20

Screening: Is it a remedy where L cannot take on C2 because L currently representes a conflicting interest that is not personal?

Back 20

NO - no matter how large the firm (But informed consent is option if permitted under other rules)

Front 21

Screening: Is it a remedy where L cannot take on C because of information L obtained about C's opponent (that would be material to C's matter) during L's previous work at a different firm/government position?

Back 21

YES - imputes but screening/informed consent are sufficient

Front 22

Screening: Is it a remedy where L cannot take on C because of information L obtained during a prospective client interview?

Back 22

YES - screening is a remedy for conflicts arising b/w a present prospective client and a former prospective client who simply interviewed wit L but never signed a retainer agreement

Front 23

When is L prohibited from representing a client who is adverse to a client of L's former law firm?

Back 23

(1) L cannot KNOWINGLY,
(2) Represent C in the SAME OR SUBSTANTIALLY RELATED MATTER in which a firm with which L was associated had previously represented a client if
(3) C's interests are MATERIALLY ADVERSE to those of the former client; and
(4) L has ACTUALLY ACQUIRED INFORMATION from the former client that would be MATERIAL TO THE PRESENT MATTER

Front 24

Under what circumstances is a firm prohibited from representing a person with interests materially adverse to those of a client represented by a formerly associated lawyer but not currently represented by the firm?

Back 24

The firm may not represent the prospective client if [without obtaining the client's written informed consent] either:
1) The matter is the same or substantially related to that in which the formerly associated attorney represented the client, AND
2) Anyone in the firm has material information relating to the former client's representation

Front 25

Can a former public officer or government employee represent the opposing party of a former client for whom the attorney participated personally and substantially in the same matter?

Back 25

Generally no, but yes, if:

(1) The government gives informed, written consent, and
(2) L refrains from using any information learned from the previous representation that is protected by the rules

Front 26

Under what circumstances may L who is currently a government officer/employee participate in a matter that the attorney participated in personally and substantially while in private practice?

Back 26

L may participate in such a matter if the appropriate government agency gives its informed consent in writing

But note: former client secrets can still not be shared with a current government client

Front 27

May a former government employee now working in private firm who possesses confidential government information that could benefit his firm's client represent that client? Imputation?

Back 27

No, he may not and it is imputed, but his firm may represent that client where:
(1) L is timely screened,
(2) L receives no fees from the representation, and
(3) The government agency is promptly notified of the representation so that it may ascertain compliance

Front 28

May L solicit for jobs from C or C's opponent in a pending matter if L obtains C's informed, written consent?

Back 28

No, even with consent attorneys cannot solicit for jobs from a current client or adverse client in a pending matter

Front 29

Can L represent C in the same matter that L previously participated in personally and substantially as a judge, adjudicative officer, law clerk, arbitrator, mediator, or third-party neutral? Imputation?

Back 29

No, he may not represent C in the same matter [absent informed written consent], and yes it is imputed to the firm, unless:
(1) Attorney is timely screened
(2) Attorney does not receive fee from representation, and
(3) All parties to the proceeding and tribunal are given written notice so that they can verify compliance

Front 30

"Confidential government information" definition under rule 1.11

Back 30

"Information that has been obtained under governmental authority and which, at the time this rule us applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public"

Front 31

May a former government employee who has confidential government information about a person (acquired when the lawyer was a public officer or employee) represent a private client, [C] whose interests are adverse to that person, in a matter in which the information could be used to the material disadvantage of the person? Imputation?

Back 31

No, and it imputes, unless:
(1) L is timely screened, and
(2) L receives no portion of the fre from the matter in which she cannot participate

NOTE: no requirement about notifying L's former government agency regarding the potential conflict!!

Front 32

Employment negotiations where L is personally or substantially participating in a matter as a judge, adjudicate officer, arbitrator, or mediator? Law clerk?

Back 32

- Lawyers may not negotiate for employment w/a party to any matter that L is personally/substantially participating in as a judge, adjudicate officer, arbitrator, or mediator.

- BUT, a lawyer who is working as a clerk to a judge may negotiate for employment with a party to a matter in which the clerk is personally/substantially participating in, AS LONG AS the clerk NOTIFIES THE JUDGE

Front 33

What is the one exception to the rule that lawyers cant represent anyone in connection with a matter in which the lawyer participated personally/substantially as a judge or other adjudicate officer, third party neutral, clerk, etc. unless all parties give informed consent in writing?

Back 33

If these requirements are met then the lawyer is NOT prohibited from subsequently representing the party
(1) An ARBITRATOR,
(2) Selected as a partisan of a party
(3) In a multimember arbitration panel

Front 34

Rule re media deals about representation of a client

Back 34

At any time prior to the conclusion of the representation, L may NOT make or negotiate an agreement giving L literary or media rights to a portrayal or account based "in substantial part" on information relation to the representation

Front 35

When should an attorney NOT seek to remedy a conflict by obtaining waiver/informed consent?

Back 35

Where:
- Full consultation is impossible due to confidentiality issues, OR
- If a reasonable attorney would see the conflict as hopeless / a reasonable attorney would not conclude that L could not provide competent and diligent representation to the client

Front 36

What constitutes a "directly adverse interest"?

Back 36

- Interests must be adverse in a LEGAL sense,
- Examples of things that are not necessarily sufficient for a legal conflict of interest to exist:
+ Economic Competition b/w 2 clients
+ General Disagreement b/w 2 clients

Front 37

Simultaneous Representation of Conflicting Interests:

When does an actual conflict exist?

Back 37

An actual conflict exists...

Where L presently represents a client whose interests would be directly adverse to those of the prospective client

Front 38

Simultaneous Representation of Conflicting Interests:

When does a potential conflict exist?

Back 38

A potential conflict exists...

Where there is a "significant risk" that any relevant lawyer may be "materially limited" if she tried to represent both a client whom she is currently representing and the prospective client in question

Front 39

Successive Representation of Conflicting Interests:

What are the two circumstances in which successive representation issues arise and what are the tests for each?

Back 39

(1) Conflicts due to the misuse of a former client's information
a. Where any relevant lawyer acquired confidential information through representation of a former client or in an intake interview such that a conflict would arise if the client represented the prospective client?

(2) Conflicts due to the successive representation (or where C1 was interviewer who didn’t end up signing retainer agreement) of two or more clients
a. In THE SAME OR SUBSTANTIALLY RELATED MATTER
b. Where the clients INTERESTS ARE MATERIALLY ADVERSE to each others

Front 40

Successive Representation of Conflicting Interests:

C wants L to represent her, but C's interests would be materially adverse to PC, whom L interviewed a month a go but did not end up representing and no retainer agreement was signed. In addition, C wants L to represent her in a matter that is the same as the one for which PC was looking for representation. Can L represent C?

Back 40

Here, depends on the nature of the information that L received from the prior prospective client (PC):

In general, L MAY represent C despite the material adverseness in same/substantially related matter - UNLESS:
- The information L obtained in the interview with PC could be "SIGNIFICANTLY HARMFUL" to PC in the representation of C

NOTE: also, screening is a remedy so can get a different lawyer in your firm to represent and you are A OK

Front 41

Rules re: lawyer's use of former client's information - MRPC § 1.9(c)

Back 41

(1) L may not use the former/prospective client's confidential information to the disadvantage of the former/prospective client
--> UNLESS, the underlying information has become generally known

(2) L may not reveal or disclose information acquired during the representation/interview if the former/prospective client (no exceptions!)

Front 42

Conflict rule re: lawyers formerly serving as public officers or government employees?

Back 42

L can't rep private clients...
(1) In connection with a matter
(2) In which L participated personally and substantially as a government lawyer

UNLESS...
The appropriate government agency gives its informed consent, confirmed in writing

NOTE: L also may not violate MRPC § 1.9(c) here [regarding the use of information of a former client]

Front 43

How is a former government lawyer who now works at a private firm but has a conflict from the previous government work properly screened such that another lawyer in her firm may represent the client?

Lawyer has a conflict applicable to this screening rule where the conflict arose in one of the following ways:
(1) L had disqualifying information under MRPC § 1.9(c), or
(2) The representation would have been in connection with a matter in which L previously participated personally and substantially and no government informed consent was obtained

Back 43

- First of all, knowledge is required that the other lawyer knows of L1s conflict, otherwise they aren't breaking the rule, so look for lack of actual knowledge

But where there is actual knowledge, L's conflict is imputed to other lawyers unless:

(1) L is timely screened from any participation in the matter
(2) L is apportioned no part of the fee from the representation, AND
(3) Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of Rule 1.11

Front 44

TEST for Conflicts due to a private lawyer's misuse of CONFIDENTIAL GOVERNMENT INFORMATION about a person

Back 44

(1) The lawyer must have acquired information about a person pursuant to government authority during the period of L's government service,
(2) The information must be unavailable to the public
(3) At the time this rule is applied (i.e. when the conflict is analyzed), the government must either:
i. Have a privilege not to disclose the information, OR
ii. Be prohibited by law from disclosing the information to the public
(4) The lawyer then may not represent another client whose
(a) interests are adverse to the person
(b) in a matter where the information could be used to the material disadvantage of the person

Front 45

Imputation/Screening of Conflicts of other attorneys at Lawyer #1's present law firm

When can screening be used?

Back 45

Screening can be used to avoid imputation of conflicts...(1) Based on prior representation of private clients
1. No participation/fees;
2. notice to former client;
3. certificates of compliance if requested

(2) Arising from Lawyer #1's prior government employment
1. No participation/fees; and
2. Government agency must receive written notice of conflict

(3) Based on information acquired from prior prospective client who never signed up
1. No information/fees
2. Lawyer #1 must have taken reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the person
3. Prior prospective client must receive notice

Front 46

General rule re: Imputation/Screening

Back 46

If one is disqualified, the conflict imputes and all are disqualified in the same firm

Screening is not a remedy

Front 47

When are conflicts of other attorneys who have left Lawyer #1's present law firm imputed to Lawyer #1 (and the rest of the firm)?

Back 47

The conflict will NOT be imputed where either of the following two conditions are met:

(1) The prospective client is not materially adverse to the departed attorney's client in a substantially related matter, OR

(2) The firm has "washed its hands"
i. The firm no longer represents the departed attorney's client, AND
ii. No attorney remaining at the firm has CONFIDENTIAL information from the client that is material to the matter in question

Front 48

When are conflicts of other attorneys at Lawyer #1's previous firm imputed to Lawyer #1 at her current firm?

Back 48

The prior firm's conflicts will NOT be imputed where either of the following two conditions are met:

(1) The prospective client is not materially adverse to the prior firm's client in a substantially related matter, OR

(2) Lawyer #1 does not have CONFIDENTIAL information from the prior firm's client that is material to the matter in question

Front 49

Judicial Rule re: settlement

Back 49

Judges may encourage, but must not coerce, settlement of parties

Front 50

How can a judge avoid hearing a matter assigned to him?

Back 50

Unless disqualification is required, judges must hear and decide all matters assigned to them

Front 51

When acting in their official capacity, judges must be:

Back 51

1) Patient;
2) Dignified; and
3) Courteous

Additionally judges must require similar conduct from those under their direction and control

Front 52

Judicial Rule re: commenting on jury verdicts

Back 52

Judges may NOT comment or criticize jurors for their verdict....
UNLESS the comments are in a court order or judicial opinion

Front 53

Judicial Rule re: ex parte communications

Hint: General rule + 5 exceptions

Back 53

Generally, judges are not permitted to initiate, consider, or permit ex parte communications

Exception 1: ex parte communications are permitted if:
(1) The communication is for scheduling, administrative matters, or is an emergency
(2) The communication does not address substantive matters;
(3) No party gains an advantage as a result of the communication; and
(4) All parties are notified of the substance of the communication

Exception 2: A judge may obtain the written advice of a disinterested expert so long as both parties are given:
(1) Advance notice of the expert's identity and the subject matter of the expert's opinion, and
(2) A reasonable opportunity to object and respond

Exception 3: A judge may consult another judge or with court personnel, as long as:
(1) The information received is not a part of the record, and
(2) The judge does not compromise his responsibility to decide the matter personally

Exception 4: If both sides consent a judge may speak with the parties separately to encourage a settlement

Exception 5: A judge may engage in ex parte communication where expressly authorized by law

Front 54

What must a judge do if he receives unauthorized ex parte communication concerning the substance of a matter?

Back 54

Provide both parties with
(1) Notice of the substance of the communication, and
(2) An opportunity to respond

Front 55

Judicial rule re: public/nonpublic statements

Back 55

Judges cannot say things that will interfere wit ha proceeding in any court, specifically
A judge cannot make
(1) Public statements that could affect the outcome or impair the fairness of a matter, or
(2) Nonpublic statements that could affect a trial's fairness

Front 56

Judicial rule re: issues that may come before the court

Back 56

Judges cannot make pledges, promises, or commitments that are inconsistent with the impartial performance of judicial duties

Front 57

Judicial Comments on Pending Cases: Statements that are Allowed or Required

Back 57

Judges may:

(1) Explain procedures;
(2) Comment on cases in which they are involved personally; and
(3) Make public statements required by their judicial duties

Front 58

Judicial Disqualification: Personal Bias or Knowledge

Back 58

A judge must disqualify herself if she has:
(1) A personal bias or prejudice concerning a party or a party's lawyer, or
(2) Personal knowledge of relevant facts

Front 59

Judicial Disqualification: 5 circumstances in which Judge must disqualify herself if she or someone within the third degree of relationship fall within one of the circumstances?

Back 59

A judge must disqualify herself if the judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them is:
(1) A party in the proceeding;
(2) An officer, director, general partner, managing member, or trustee of a party;
(3) Acting as a lawyer in the proceeding;
(4) Likely to be a material witness in the proceeding; or
(5) A person with more than a de minimis interest in the outcome of the proceeding that could be substantially affected by the proceeding

Front 60

A judge must disqualify her self when the judge knows that what persons have a economic interest in the subject matter in controversy, or is a party to the proceeding?

Back 60

The judge, individually or as a fiduciary, or the judge's spouse, domestic partner, parent, or child

Or any other member of the judge's family residing in the judge's household

Front 61

What judicial disqualifications may be waived by the parties and their lawyers? What are the requirements to waive the disqualification?

Back 61

Rules requiring disqualification under 2.11 EXCEPT for bias or prejudice

Disqualification may be avoided if:
(1) The judge discloses the basis for the disqualification on the record; and
(2) The parties and their lawyers agree to it outside the presence of the judge

Front 62

Who, if they make campaign contributions to a judge's campaign, can be grounds for the judge to disqualify herself?

Back 62

A Party
A Party's Lawyer, or
The Law Firm of a Party's Lawyer

Front 63

A judge must disqualify herself if she was previously involved in the case as a:

Back 63

(1) Lawyer / Employee of a Lawyer
(2) Governmental Employee;
(3) Material Witness; or
(4) Judge in another court

Front 64

Judicial rule re: awareness of financial interests

Back 64

A judge must keep informed about his personal financial interests and those of his immediate family

Front 65

When MAY a judge appoint a person who has contributed to the judge's election campaign?

Back 65

(1) Where the position is "substantially uncompensated,"
(2) The lawyer selected is chosen from a rotating list of competent lawyers without regard to their having made political contributions; or
(3) No other lawyer is "willing, competent and able to accept the position"

Front 66

Judges must take appropriate action on information about:

Back 66

"substantially likely" violations of the Model Rules or Judicial Code

Front 67

A judge must not participate in extrajudicial activities that:

Back 67

(1) Interfere with the performance of judicial duties;
(2) Cause frequent disqualification;
(3) Undermine the judge's independence, integrity, or impartiality;
(4) Appear to be coercive; or
(5) Make improper use of court premises, staff, stationary, equipment, or other resources

Front 68

In what three circumstances MAY a judge voluntarily appear before, or otherwise consult with, an executive or legislative body or official?

Back 68

Where the judge is:
(1) Giving an opinion concerning the law;
(2) Sharing specialized knowledge acquired from the judge's time on the bench; or
(3) Appearing pro se or as a fiduciary

Front 69

What governmental appointments MAY judges accept?

Back 69

Only those that concern the law

Front 70

May a judge hold membership in a discriminatory organization?

Back 70

NO - not if the organization practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation

Front 71

May a judge hold membership in an organization that discriminates on the basis of age?

Back 71

If it isn't a violation of other rules, yes, as it does not violate the prohibition against membership in organizations that practice invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation

Front 72

When may a judge use the facilities of a discriminatory organization?

Back 72

A judge may NOT use the facilities of a discriminatory organization, UNLESS such use was an ISOLATED event that could not be perceived as an endorsement

Front 73

A judge MAY participate in activities sponsored by:

Back 73

(1) Organizations concerned with the law, and
(2) Nonprofit organizations

Front 74

May a judge solicit contributions for an organization they belong to?

Back 74

YES, but ONLY from
(1) Family Members, OR
(2) Judges the Judge does NOT SUPERVISE

And only if
The organization is concerned with the LAW (legal organizations only!)

Front 75

When must a judge comply with the code?

Back 75

As soon as practicable and not more than a year after taking the bench

Front 76

Judicial financial activities: Serving in a Business

Back 76

A judge may NOT serve as an officer, director, manager, general partner, advisor, or employee of any business entity, UNLESS the business is:

(1) Closely held by the judge or members of the judge's family, or
(2) Primarily engaged in investing her or her family's money

Front 77

A judge may accept, and need not report:

Back 77

(1) Inexpensive gifts
(2) Gifts from friends and family;
(3) Social hospitality;
(4) Financial opportunities and benefits that are available to the public;
(5) Rewards and prizes from contests;
(6) Scholarships available to the public;
(7) Complimentary resource materials supplied by a publisher; and
(8) Incidental benefits from the separate business of a household family member

Front 78

A judge may accept but must report:

Back 78

(1) Gifts incident to a public testimonial;
(2) Complimentary tickets to law-related events or events associated with the judge's extrajudicial activities; and
(3) Anything of value, including gifts and loans, given by a person who has appeared or is likely to appear before the judge

Front 79

Judicial Conduct: Accepting Reimbursement

Back 79

When accepting reimbursement from sources other than the judge's employer, a judge must:

(1) Accept reimbursement ONLY for ACTUAL COSTS incurred during the judge's participation in a permitted extrajudicial activity, and
(2) Publicly report the reimbursement

Front 80

A judge must publicly report the amount or value of:

Back 80

(1) Extrajudicial compensation;
(2) Gifts that exceed a given amount, and
(3) Reimbursements and waivers that exceed a given amount

Front 81

Judicial Rules - When a public reporting is required, what must the judge report?

Back 81

(1) The date, place and nature of the activity
(2) The description of anything of value accepted; and
(3) The source of reimbursement

Front 82

May a judicial candidate accept an endorsement that is from a partisan political organization / political party?

Back 82

No, but can accept one from anyone else pretty much, as long as doesn’t violate other rules of CJC

Front 83

If a judge becomes a candidate for a nonjudicial elective office...

Back 83

Resignation is necessary unless permitted by law