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283 Cards in this Set

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  • Back
Violation of the Rules of Professional Conduct
It is professional misconduct for a lawyer to:
(1) Violate or attempt to violate any of the Rules of Professional Conduct;
(2) Knowingly assist or induce another person to violate the Rules; or
(3) Use the acts of another person to commit a violation.
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.

The exclusionary rules of criminal law do not apply in disciplinary proceedings. Thus, evidence obtained through an illegal search is admissible. A lawyer may, however, invoke his 5th Amendment privilege and refuse to answer questions at the hearing, and no disciplinary action can be taken against the lawyer if it is based solely on the claim of 5th Amendment privilege.

The burden of proof is on the party prosecuting the charge, and most states require proof of the charge beyond a preponderance of the evidence (but less than beyond a reasonable doubt). Most states also require that only evidence admissible under the rules of evidence be considered; thus, inadmissible hearsay would be excluded.
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:
(1) Private or public reprimand or censure, which is an acknowledgment of misconduct that goes on the lawyer's record with the disciplinary authorities;
(2) Suspension of the lawyer's license to practice for a definite period of time, at the end of which the right to practice is automatically reinstated; and
(3) Disbarment, which is the permanent revocation of the lawyer's license to practice. A disbarred lawyer may, however, apply for readmission upon proof of rehabilitation.

Other sanctions available include probation, restitution, costs of the disciplinary proceedings, and limitations on the lawyer's practice. Which sanction is imposed generally depends on the severity of the misconduct and the presence or absence of mitigating or aggravating circumstances.
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.

Professional discipline imposed by one state is not necessarily binding on another. Most states recognize the determinations of lawyer misconduct by sister states, but they do not agree on the reasons for recognition. The preferred view is that sister states accept disciplinary action by one state as conclusive proof of the misconduct, but not of sanctions imposed. Under this view, sister states are free to impose their own sanctions for the misconduct.

Each federal court in which a lawyer is admitted to practice must make an independent evaluation of the lawyer's conduct. The fact that a lawyer has been disciplined by a state, however, is competent evidence in a federal proceeding and may in itself be sufficient to convince a federal court to impose a similar sanction.
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:
(1) represent that she is admitted to practice in that jurisdiction; or
(2) establish an office or other systematic or continuous presence for the practice of law in that jurisdiction.
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:
(1) Association with Local Lawyer - Must associate a local lawyer who actively participates in the matter.
(2) Special Permission to Practice in Local Tribunal - An out-of-state lawyer may request special permission from the tribunal to handle a matter there. Commonly called admission "pro hac vice," which means admission for purposes of this matter only. The rules may require you to associate a local lawyer, though.
(3) Mediation or Arbitration Arising Out of Practice in Home State.
(4) Other Temporary Practice Arising Out of Practice in Home State - must be reasonably related to lawyer's home-state practice.
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.
(2) Legal Services Authorized by Federal or Local Law - For instance, having an office in Florida, where you aren't licensed, purely to handle patent prosecution in the Patent and Trademark Office, which you ARE authorized to do.
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:
(1) whether the activity involves legal knowledge and skill beyond that which the average layperson possesses;
(2) whether the activity constitutes advice or services concerning binding legal rights or remedies; and
(3) whether the activity is one traditionally performed by lawyers.
Activities Constituting Law Practice
(1) Appearing in judicial proceedings
(2) Engaging in settlement negotiations
(3) Drafting documents that affect substantial legal rights or obligations (e.g., contracts, wills, trusts).

Preparing an estate plan is generally considered the province of lawyers, and some courts have also held that nonlawyer clinics on how to obtain a low-cost divorce constitute unauthorized practice.
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:
(1) A person manifests an intent that the lawyer provide legal services and the lawyer agrees;
(2) A person manifests an intent to have the lawyer represent him, the lawyer fails to make clear that he does not want to undertake the representation, and the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide the services; or
(3) A tribunal appoints a lawyer to represent a client.
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.
(2) Unreasonable Financial Burden - A lawyer may seek to be excused from an appointment if to accept it would impose an unreasonable financial burden on the lawyer.
(3) Personal Inability to Represent Client Effectively - A lawyer may seek to be excused from a court appointment if the lawyer finds the client or the cause so repugnant that the lawyer-client relationship would be impaired or the lawyer could not represent the client effectively.
Duty to Reject Certain Cases
A lawyer must refuse employment in the following situations:
(1) Client's Motive is Harassment
(2) Unsupportable Factual or Legal Position - Must not make a frivolous claim. It is not frivolous if the lawyer can make a good faith argument - also not frivolous just because the lawyer doesn't have all the facts at the outset, but expects to develop them during discovery.
(3) Lawyer Not Competent - Lawyer must reject a case if he is too busy or too inexperienced to handle the matter competently.
(4) Strong Personal Feelings - If lawyer's personal feelings about a case are so strong that they would impair his ability to effectively represent the client, he must refuse the case.
(5) Impaired Mental or Physical Condition - A lawyer must decline a case if his mental/physical condition would materially impair his ability to represent the client.
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:
(1) Protect the prospective client's confidential information, which includes declining to represent other clients in the same or a related matter if the confidential information would be harmful to the prospective client;
(2) Protect any property the prospective client has given to the lawyer; and
(3) Use reasonable care in giving the person legal advice, such as whether the claim has merit, whether conflicts of interest exist, and when the action must be commenced.
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.

Factors considered in determining the reasonableness of a fee are:
(1) The time and labor required;
(2) The novelty and difficulty of the questions involved;
(3) The skill needed to perform the legal services properly;
(4) The likelihood, if apparent to the client, that work for this client will preclude the lawyer from doing fee-paying work for others;
(5) The fee customarily charged in the locality for similar legal work;
(6) The amount at stake and the results obtained for the client;
(7) The time limitations imposed by the client or the circumstances;
(8) The nature and length of the relationship between the lawyer and the client;
(9) The experience, reputation, and ability of the lawyer performing the services; and
(10) Whether the fee is fixed or contingent (a contingent fee can be higher because it requires the lawyer to take a gamble).
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.
(2) Property for Services - This is OK, provided it doesn't cause any kind of conflict. Subject to scrutiny because it may be a business transaction between the lawyer and the client.
(3) Cutting Off Services - A lawyer must not make a fee agreement that could curtail services in the middle of the relationship and thus put the client at a bargaining disadvantage.
(4) Credit Arrangements and Security - May allow the client to pay a legal fee by credit card, and may participate in a bar association program that enables clients to finance fees through bank loans. A lawyer may also take an interest-bearing promissory note from a client to secure the payment of fees, and when permitted by local law, lawyer may use an attorney's lien to secure the payment of a fee.
Contingent Fees
Some states have set statutory limits on contingent fees percentages.

Contingent Fees are prohibited in criminal cases and in domestic relations cases.

Contingent fee must be reasonable in amount; moreover, a lawyer must not use a contingent fee when the facts of the case make it unreasonable to do so.

A contingent fee agreement must be in writing signed by the client and must state:
(1) How the fee is to be calculated specifically;
(2) What litigation and other expenses are to be deducted from the recovery;
(3) Whether deductions for expenses will be made before or after the contingent fee is calculated; and
(4) What expenses the client must pay, whether or not she wins the case.

After the case, must give the client a written statement showing all calculations.
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.

(1) Liens
(2) Retention of Funds in Trust Client (if the fee is disputed)
(3) Arbitration or Mediation
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:
(1) Lawyers Within a Firm
(2) Separation and Retirement Agreements
(3) Certain Splits with Lawyers Outside Firm - if the lawyers worked together on the case IF the total fee is reasonable, the split is in proportion to the services performed by each lawyer, and the client agrees to the split in writing.
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:
(1) Whether to accept a settlement offer;
(2) What plea to enter in a criminal case;
(3) Whether to waive a jury trial in a criminal case;
(4) Whether the client will testify in a criminal case; and
(5) Whether to appeal.
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.

A court rule or order may forbid a lawyer from sharing certain information with a client, and the lawyer must comply with such a rule or order.
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:
(1) The client can fire the lawyer;
(2) In some situations, the lawyer MUST withdraw; and
(3) In some situations, the lawyer may withdraw.
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.

Client is still liable to attorney in quantum meruit for the reasonable value of the work the attorney did before being fired.

In the case of a contingent fee, the lawyer is still entitled for the reasonable value of the work done before the firing - however, the claim doesn't arise until the contingency comes to pass.
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.
(2) If to continue with the representation will require the attorney to violate a law or disciplinary rule, the attorney must withdraw.
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.
(1) Client Persists in Criminal or Fraudulent Conduct
(2) Client Has Used Attorney's Services to Commit Past Crime or Fraud
(3) Client's Objective is Repugnant or Against Lawyer's Beliefs
(4) Client Breaks Promise to Attorney
(5) Financial Hardship for Attorney
(6) Client Will Not Cooperate
(7) Other Good Cause
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:
(1) Providing the client with reasonable notice of the withdrawal;
(2) Providing the client with time to obtain another attorney;
(3) Refunding attorneys' fees paid in advance and not yet earned and expense advances not yet spent; and
(4) Returning all papers and property to which the client is entitled.
Factors in Determining Requisite Skill:
(1) The complexity and specialized nature of the matter;
(2) The lawyer's general experience;
(3) The lawyer's training and experience in the field in question;
(4) The preparation and study the lawyer is able to give the matter; and
(5) Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field.

If the requisite competence can be achieved by reasonable preparation, the lawyer may accept representation despite lacking competence in the field initially.

In an emergency, a lawyer may assist the client, even if the lawyer does not have the skill ordinarily required; however, assistance should not exceed what is reasonably necessary to meet the emergency.

To handle a matter competently, a lawyer must inquire into and analyze the facts and legal elements of the problem, applying the methods and procedures used by competent practitioners. Competence, of course, requires adequate preparation.

Lawyers should take reasonable steps to keep abreast of current literature and developments in the fields of law in which they practice.
A lawyer must act with reasonable diligence and promptness in representing a client.

Diligence - A lawyer should pursue a matter on the client's behalf despite opposition, obstacles, and personal inconvenience, and may take whatever lawful and ethical measures are required to vindicate the client's cause. The lawyer should act with dedication and commitment to the client's interests and with zeal in advocacy on the client's behalf.

Diligence does not require the lawyer to be offensive or uncivil toward the adversary or other persons.

Once a lawyer agrees to handle a matter for a client, the lawyer must see the matter through to completion (unless, of course, he is fired or withdraws).

Untimely death or disability of a solo practitioner can create havoc for her clients. To prevent that, every solo practitioner should designate another competent lawyer to review the clients' files, notify the clients of the circumstances, and determine whether protective action is needed.
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:
(1) In a malpractice action, the forum is a civil court, not a disciplinary tribunal;
(2) In a malpractice action, the attorney's adversary is an injured plaintiff, not the state bar; and
(3) The purpose of a malpractice action is to compensate the injured plaintiff, not to punish the attorney, and not to protect the public from future wrongs.
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.
(2) Breach of Fiduciary Duties - Duties of loyalty, confidentiality, and honest dealing.
(3) Breach of Contract
(4) Negligence (Most Common) - Under this theory, plaintiff must establish normal elements of a negligence case: duty, breach, causation, damage.
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.

An attorney is expected to know the ordinary, settled rules of law known to practitioners of ordinary competence and diligence. Furthermore, an attorney has a duty to go to the library and look up rules of law that he does not know. If the answer is there to be found through standard research techniques and sources, and if the attorney does not find it, he has breached the duty of due care.

It is a breach of the duty of due care for a general practitioner to attempt to handle a problem himself if a reasonably prudent lawyer would have sent the client to a specialist.
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.

The duty covers all information relating to the representation of the client. The privilege covers only confidential communications (privileged information).

Attorney-client privilege concerns only the disclosure of information. The duty concerns both the disclosure AND use of 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:
(1) The employee communicates with the lawyer at the direction of the employee's superior;
(2) The employee knows that the purpose of the communication is to obtain legal advice for the corporation; and
(3) The communication concerns a subject within the scope of the employee's duties to act for the corporation.
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.

Covers both oral and written communications. However, the client cannot protect a preexisting document or thing from discovery simply by turning it over to the attorney. If the document or thing would be discoverable in the client's hands, it is equally discoverable in the attorney's hands.
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.

The presence of a third party will not destroy the confidentiality IF the third party was present to help further the attorney-client relationship. However, the third party need not play a direct role in the communication and may be present because of the client's psychological needs (e.g., a family member accompanying the client).
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.
(2) The privilege does not apply to a communication that is relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the attorney-client relationship.
(3) The privilege does not apply in a variety of situations in which the attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer.
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.

Whether information is generally known depends on all the surrounding circumstances, but information is not generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense.
Exceptions to the Duty of Confidentiality
(1) Client's Informed Consent
(2) Implied Authority - An attorney has implied authority from the client to use or disclose confidential information when appropriate to carry out the representation - unless, of course, the client gives specific instructions to the contrary.
(3) Dispute Concerning Attorney's Conduct - An attorney may reveal a client's confidential information to the extent necessary to protect the attorney's interests in a dispute that involves the conduct of the attorney. In using this exception, the attorney should: (i) reveal only what is necessary, (ii) attempt to limit the disclosure to those who need it, and (iii) obtain protective orders or take other steps to minimize the risk of unnecessary harm to the client.
(4) Disclosure to Obtain Legal Ethics Advice
(5) Disclosure Required by Law or Court Order
(6) Disclosure to Prevent Death or Substantial Bodily Harm
(7) Disclosure to Prevent or Mitigate Substantial Financial Harm
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.

A lawyer's failure to handle a conflict properly can have three unpleasant consequences:
(1) Disqualification as counsel in a litigated matter;
(2) Professional discipline; and
(3) Civil liability for legal malpractice.
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:
(1) Do the lawyers have a formal agreement among themselves?
(2) Do they hold themselves out in a way that would make the public think they practice together as a firm?
(3) Do they share their revenues and responsibilities?
(4) Do they have physical access to each other's client files?
(5) Do they routinely talk among themselves about the matters they are handling? and
(6) Would the purpose of the particular conflict rule be served by imputing one lawyer's conflict to other lawyers in the group?
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:
(1) The representation of one client will be directly adverse to another client; or
(2) There is a significant risk that the representation of one client will be materially limited by the lawyer's own interest or by the lawyer's responsibilities to another client, a former client, or a third person.
Informed, Written Consent
Despite a concurrent conflict of interest, a lawyer may represent a client if all four of the following conditions are satisfied:
(1) The lawyer reasonably believes that he can competently and diligently represent each affected client, despite the conflict of interest;
(2) The representation is not prohibited by law;
(3) The representation does not involve asserting a claim by one client against another client represented by that lawyer in the same litigation (or other proceeding before a tribunal); and
(4) Each affected client gives informed, written consent.
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:
(1) One defendant seeks to put the blame on the other;
(2) The story told by one defendant is inconsistent with the story told by the other;
(3) One defendant has a strong defense that is compromised to protect the other; and
(4) The trial tactics that would help one would harm the other.
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:
(1) First, the lawyer should analyze the facts of the case and the applicable law. If she concludes that she can effectively represent both clients, despite their potentially conflicting interests, then she can move to the second step.
(2) Second the lawyer should disclose the potential conflict to each client and explain how it can harm each client, the reasonably available alternatives, and the disadvantages of having only one lawyer for the two of them.
(3) Third, when the clients fully understand the situation, the lawyer may invite their informed, written consent to the joint representation.
(4) Fourth, if the potential conflict eventually ripens into a present conflict, the lawyer must repeat steps 1-3 above. The lawyer must withdraw from the joint representation if a reasonable lawyer would have to advise either of the two clients not to consent. The lawyer may continue to represent one consenting client, but only if the client who is dropped gives informed, written consent to the continuation.
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.

The same four-step process to analyze and deal with conflicts of interest applies.
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.

Example: Clients X, Y, and Z hire attorney A to represent all of them in forming a new business venture. Z's contribution to the business will be a valuable invention. Z has applied for a patent, but until a patent issues, the specifics of the invention are protected as Z's trade secret. X, Y, and Z may agree that Z may disclose the specifics of the invention to A in confidence and that A will not share the information with X or Y.
Conflicts Caused by Lawyer's Own Interests
(1) Lawyer's Financial Interest
(2) Lawyers Who Are Close Relatives
(3) Sexual Relationship Between Lawyer and Client
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:
(1) The terms are fair to the client;
(2) The terms are fully disclosed to the client in writing, expressed in a manner that the client can reasonably understand. Must cover the essential terms of the transaction and disclose the lawyer's role in the transaction;
(3) The client is advised in writing that he should get the advice of an independent lawyer about the arrangement before entering into it; and
(4) The client gives informed consent in a signed (by the client) writing.

This doesn't apply to a fee agreement.
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.

Rule applies when the lawyer uses the information for ANYONE's benefit other than the client.

There is possible civil liability even when the client is not disadvantaged.
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.

A lawyer is prohibited from preparing a legal instrument (such as a will or deed of gift) that creates a substantial gift to the lawyer (or the lawyer's relative), except when the donor is one of the lawyer's relatives.

Lawyer is not prohibited from seeking to have himself or his law partner or associate named as executor of an estate or counsel to the executor or to some other fee-paying position. However, the general conflict of interest principles do prohibit such efforts if the lawyer's advice is tainted by the lawyer's self-interest. Moreover, lawyers with long experience in probate and estate planning law know that clients tend to rebel when they discover the lawyer trying to "feather his own nest" in this manner.
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.

A lawyer may, however, advance court costs and other litigation expenses on the client's behalf, and repayment may be contingent on the outcome of the case.

A lawyer may simply pay the court costs and litigation expenses for an indigent client, without any provision for repayment.

A lawyer is subject to discipline for giving a client other financial help in the context of 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:
(1) The lawyer must assure that the clients have come to an agreement among themselves about how the sum will be shared);
(2) The lawyer must disclose all of the terms of the sharing agreement to each client and must disclose the existence and nature of all of the claims that will be settled; and
(3) Each client must give informed consent to the aggregate settlement agreement in a writing signed by the client.
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:
(1) Practice in a limited liability entity, provided that the lawyer remains personally liable to the client for her own malpractice, and the entity complies with legal requirements for notice, insurance overage, and the like.
(2) A lawyer may enter into an agreement with his client that reasonably limits the scope of the lawyer's representation.
(3) A lawyer may agree prospectively with a client to arbitrate all legal malpractice claims, provided that such an agreement is proper under local law and the client understands the scope and effect of the agreement.
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:
(1) Client gives informed, written consent;
(2) The third person does not interfere with the lawyer's independence or the representation of the client; and
(3) The arrangement does not compromise the client's confidential information.
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:
(1) The lawyer reasonably believes that the third person's interest will not adversely affect the representation; and
(2) The client gives informed, written consent.
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
(2) Lawyer must not oppose the former client in any matter in which the confidential information would be relevant, unless the former client gives informed, written consent.
(3) May Not Use Confidential Information to Former Client's Disadvantage
(4) Must not represent one client whose interests are materially adverse to those of a former client in a matter that is "substantially related" to a matter in which the lawyer represented the former client.
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:
(1) The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) Any lawyer remaining in the firm has confidential information that is material to the matter.
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.

"Matter" here has a very narrow, technical meaning. It means a specific set of facts involving some specific parties.

If a lawyer is disqualified under this rule, then everyone in that lawyer's firm is also disqualified unless the following three conditions are met:
(1) The lawyer must be timely screened off from the case - must not work on it, discuss it with those who do, or have access to the case files.
(2) The lawyer must not be apportioned a part of the fee earned in the case - the fee must not be directly related to the fee in the matter in which the lawyer is disqualified.
(3) Written notice must promptly be given to the governmental agency to enable it to make sure that the above conditions are being met.
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.

If a former government lawyer is disqualified by this rule, then everyone in that lawyer's firm is also disqualified unless:
(1) The lawyer is timely screened off from the matter; and
(2) The lawyer is not apportioned any part of the fee earned in the matter.
Current Government Service After Private Practice
Ordinary conflict rules apply to a lawyer who enters government service after private practice or other nongovernmental work.

If a lawyer worked "personally and substantially" on a "matter" in private practice or other nongovernmental employment, the lawyer must not work on that same matter when she later enters government service, whether or not the later work would be adverse to a former client. However, informed, written consent can solve the conflict.

When a person in government service is currently working personally and substantially on a matter, she must not negotiate for private employment with any party or lawyer who is involved in that matter. There is a special exception for judges' and adjudicative officers' law clerks who are seeking work after their clerkships end.
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.

If a lawyer is disqualified under this rule, everyone else in the lawyer's firm is also disqualified unless the following conditions are met:
(1) The lawyer is timely screened off from the matter;
(2) The lawyer is not apportioned any part of the fee earned in the matter; and
(3) Written notice is given to the parties and the appropriate tribunal so that they can ensure that the foregoing conditions are met.
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:
(1) Demonstrate that the lawyer who held discussions with the prospective client took care to avoid exposure to any more confidential information than was necessary to determine whether to represent the prospective client;
(2) Demonstrate that the disqualified lawyer is timely screened from any participation in the matter and will not share the fee; and
(3) Give written notice to the prospective client.
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.

Lawyer must ordinarily report the violation to a higher authority in the organization. If necessary, the lawyer must report it to the organization's highest authority.
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.

If a securities lawyer becomes aware of credible evidence that her client is materially violating a federal or state securities law, she MUST report the evidence to her client's chief legal officer (CLO) or chief executive officer. The same reporting duty applies to credible evidence that one of her client's personnel has breached a fiduciary duty under federal or state law or has committed a "similar material violation" of federal or state law.

The CLO must investigate the situation to determine whether a violation occurred. If one occurred, the CLO must take all reasonable steps to get the client to make an "appropriate response."

If the securities lawyer believes the CLO didn't get an appropriate response, she must report the evidence to one of the following: (1) the client's whole board of directors; (2) the audit committee of the board; or (3) a committee made up of outside directors.

This reporting rule is MANDATORY.

A securities lawyer who violates Sarbanes-Oxley can be disciplined by the SEC, but one who complies cannot be held civilly liable for doing so and cannot be disciplined under any inconsistent state rule.

If fired for complying, the lawyer may report the firing to the client's board of directors.
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:
(1) Stop the client from committing a violation that will cause substantial financial injury to the client or its investors;
(2) Rectify such a financial injury if the lawyer's services were used to further the violation; or
(3) Prevent the client from committing or suborning perjury in an SEC matter or lying in any matter within the jurisdiction of any branch of the federal government.
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.

If a lawyer is entrusted with a large sum to hold for a long period, the lawyer should put it into a separate, interest-bearing account, and the interest it earns will belong to the client. This is recommended when the lawyer is administering estate funds or the like.
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.

Sometimes a client entrusts the lawyer with an advance against legal fees that the lawyer has not yet earned - this must be put into the client trust account, and any unearned amount must be paid back to the client at the close of representation.
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:
(1) The lawyer must notify the client promptly when a third party turns over money or property to the lawyer to hold on the client's behalf;
(2) The lawyer must keep complete, accurate, and up-to-date records of all money and property held on behalf of the client. These records must be kept in accordance with generally accepted accounting practice, and they must be preserved for five years after the termination of the representation;
(3) The lawyer must render appropriate accountings of all money and property held on behalf of the client; and
(4) When the time comes to pay over money or deliver property to which the client or a third party is entitled, the lawyer must do so promptly.
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.

If the lawyer knows or should know that the evaluation will materially harm the client, the lawyer must obtain the client's informed, written consent before making the evaluation.

The ordinary rules of confidentiality apply to information gained during the evaluation. The client may limit the scope of the evaluation or the sources of information available to the lawyer, but the lawyer should describe any material limitations in the report furnished to the third person.

A lawyer who is hired to evaluate a client's affairs for a third person may be liable to the third person for negligence in rendering the evaluation.
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.

Securities Cases - This special obligation most often arises when a lawyer has prepared an opinion letter to be used in disclosure documents for securities investors. The lawyer may be held liable for both misstatements and omissions of material facts. A lawyer is not a guarantor of every fact in the disclosure materials about the company or transaction. However, if the disclosures are inconsistent, or the lawyer has any reason to doubt their accuracy, the lawyer has a duty to inquire to determine the correct facts.

Tax Shelter Opinions - When a lawyer gives a widely disseminated legal opinion about the tax treatment likely to be afforded an investment, the lawyer must candidly disclose and estimate the degree of risk that the IRS will not allow the tax treatment being sought, even if such disclosure will be contrary to the interest of the client in selling the investment.
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.

A lawyer who serves as a third-party neutral does not represent any of the parties. A party who is not familiar with arbitration, mediation, or the like, and who is not represented by counsel, may erroneously believe that the lawyer third-party neutral is protecting his interests, but that is not so. The lawyer must therefore clearly explain the situation to the unrepresented party.

A lawyer who serves as a third-party neutral in a matter must not thereafter become the lawyer for anyone involved in the matter, unless all of the parties give their informed, written consent. This conflict is imputed to other lawyers in the lawyer's firm, but can be solved by screening, not sharing the fee, and notifying the parties.

No conflict arises when a lawyer who served as a PARTISAN arbitrator for a party is later asked to become that party's lawyer.
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:
(1) It is NOT frivolous to assert a position without first fully substantiating all the facts.
(2) It is NOT frivolous to assert a position knowing that vital evidence can be uncovered only through discovery proceedings.
(3) It is NOT frivolous to assert a position even though the lawyer believes that the position will not ultimately prevail.
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.

The duty to expedite does not require the lawyer to take actions that would harm the client's legitimate interests. However, realizing financial or other benefits from otherwise improper delay is NOT a legitimate interest.
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.

An attorney is subject to discipline for knowingly failing to disclose to the court a legal authority in the controlling jurisdiction that is directly adverse to the client's position and that has not been disclosed by the opposing counsel. The attorney is, of course, free to argue that the cited authority is not sound or should not be followed.
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.

Note that the duty to rectify false evidence continues until the end of the proceedings, which means when a final judgment has been affirmed on appeal or the time for appeal has expired.
False Testimony by Criminal Defendant
The criminal defense lawyer should follow the same three steps as he would for discovering the falsity of evidence:
(1) The lawyer must try to convince the defendant not to testify falsely.
(2) If the defendant insists, the lawyer should consider withdrawal, if that will solve the problem. Usually it will not, though.
(3) If all else fails, the lawyer must reveal the situation to the judge, even if that means disclosing the client's confidential information. The judge must then decide what to do, perhaps declare a mistrial, make some kind of statement to the jury, or perhaps nothing.

Several jurisdictions, including New York and California, handle the problem by allowing the criminal defendant to testify in a "narrative fashion." That means that the defense lawyer questions the defendant in the ordinary way up to the point of the false testimony. At that point, the defense lawyer asks a question that calls for a narrative answer (such as, "What else happened?"). The defendant then tells his story. The defense lawyer is not permitted to rely on the false parts of the story when arguing the case to the trier of fact.
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:
(1) Hiding or destroying evidence;
(2) Bribing a witness;
(3) Intimidating a juror;
(4) Buying a judge; and
(5) Failing to obey a law or court order to disclose information. Appropriate measures include disclosure to the court, if that becomes necessary.
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:
(1) An attorney may pay expenses reasonably incurred by the witness in attending and testifying (e.g., travel, meals, etc.).
(2) An attorney may pay reasonable compensation for the witness's loss of time in attending and testifying.
(3) An attorney may pay a reasonable fee to an expert witness for preparing to testify and for testifying. The fee must NOT be contingent on either the content of the testimony or the outcome of the case.
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:
(1) The person is a client, or a relative, employee, or agent of a client; and
(2) The lawyer reasonably believes that the person's interests will not be harmed by not volunteering the information.
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:
(1) The justness of a cause;
(2) The credibility of a witness;
(3) The culpability of a civil litigant; or
(4) The guilt or innocence of an accused.

A lawyer may, of course, make an argument based on the evidence concerning any of these matters.
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.

Generally a written communication to a judicial officer is not ex parte if a copy of the communication is timely sent to the opposing parties. A lawyer must not, however, communicate ORALLY on the merits of a matter with the judge or other official before whom the matter is pending without giving adequate notice to the adversary. If the local rules of court allow lawyers to appear ex parte, without notice to the adversary, to obtain extensions of time to plead or respond to discovery, a lawyer may do so - but the lawyer must not discuss the merits of the case at that time.

Can NOT communicate with a juror or a member of the juror pool from which jurors will be chosen. This rule forbids communication on any subject, even the weather! It also does not matter who initiates the communication - the lawyer must refuse.
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:
(1) Local law or a court order prohibits such communication;
(2) The juror has told the lawyer that he does not want to communicate; or
(3) The communication involves misrepresentation, coercion, or harassment.
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.

A lawyer who is running for judicial office must comply with the applicable provisions of the Code of Judicial Conduct.
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).

A lawyer may, however, make a public statement that "a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client."

There is an additional constraint on the prosecutor in a criminal case. He must not make extrajudicial comments that have a "substantial likelihood of heightening public condemnation of the accused."

These rules apply equally to other lawyers who are associated in a law firm or agency with the lawyer participating in the case.
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:
(1) The claim, charge, or defense involved (provided there is an accompanying statement that the charge is only an accusation and that the party is deemed innocent until proven guilty);
(2) The names of persons involved (unless the law prohibits it);
(3) Any information that is already in the public record;
(4) The scheduling or result of any step in litigation;
(5) The fact that an investigation is ongoing, a request for help in getting information, and a warning of danger (if appropriate); and
(6) Routine booking information about a criminal defendant, such as his name, address, occupation, family status, the time and place of arrest, the names of arresting officers, and the names of investigating officers or agencies.
Trial Counsel as Witness - Reasons to Avoid Dual Role
Conflict of Interest may be created.

The functions of trial counsel and witness are different. A witness must state facts objectively, but a trial counsel is supposed to present them persuasively. When the two roles are combined, it may be unclear whether a particular statement is to be taken as evidence or advocacy.

The adversary may be handicapped in challenging the credibility of one who serves this dual role. Courtesy and sound tactics may force the adversary to tread softly on cross-examination. Furthermore, a favorable impression created as trial counsel may lend unjustified believability to the trial counsel's words as witness.
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:
(1) A lawyer may serve as trial counsel if her testimony as witness will relate solely to an uncontested matter or to a mere formality.
(2) A lawyer may serve as trial counsel if testimony will relate solely to the nature and value of legal services he has rendered in the case.
(3) A lawyer may serve as trial counsel and also testify about any matter if withdrawal as trial counsel would cause "substantial" hardship. Courts tend to be narrow-minded in applying this exception. Mere duplication of legal fees or the loss of a long working relationship with counsel are sometimes held not to constitute substantial hardship.
(4) A lawyer is permitted to act as an advocate at a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by the conflict of interest rules.
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.

A prosecutor must make reasonable efforts to assure that the accused is:
(1) Advised of the right to counsel;
(2) Advised of the procedure for obtaining counsel; and
(3) Given a reasonable opportunity to obtain counsel.

A prosecutor must not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.

A prosecutor must timely disclose to the defense all evidence and information known to the prosecutor that tends to negate the guilt of the accused or mitigate the degree of the offense. Failure to disclose material information may deprive the defendant of due process.

When a convicted person is to be sentenced, the prosecutor must disclose to the defense and to the court all unprivileged mitigating information known to the prosecutor (except when a protective order of the court relieves the prosecutor of this obligation).

Except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, a prosecutor must not make extrajudicial statements that have a "substantial likelihood of heightening public condemnation of the accused." A prosecutor must take reasonable care to prevent investigators, police employees, and other subordinates from making such statements.

A prosecutor must not subpoena another lawyer to give evidence about a client or former client unless the evidence is not privileged, is essential, and cannot be obtained in another way.

A government lawyer with discretionary power relative to civil litigation should not institute or continue actions that are obviously unfair.

Even if litigation appears warranted, a government lawyer has a responsibility to develop a full and fair record. The lawyer must not use her position or the economic power of the government to harass parties or to force unjust settlements or results.
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).

When a lawyer represents a client before a legislative body or administrative agency in an official hearing or meeting at which the lawyer or client presents evidence or argument, the lawyer must, generally speaking, follow the same rules as though in court. A lawyer should comply with these rules even though the rules do not bind nonlawyers who do similar work.

These rules do NOT apply:
(1) When a lawyer represents a client in bilateral negotiations with the government;
(2) In an application for a license or other privilege;
(3) When the government is investigating the client's affairs; or
(4) When the government is examining the client's compliance with a regular reporting requirement (such as the filing of tax returns).
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.

A misrepresentation can occur when the lawyer makes a statement knowing that it is false, when the lawyer affirms or incorporates a statement knowing that it is false, when the lawyer states something that is partly true but misleading, or in some contexts when the lawyer fails to speak or act.

Conventional "puffery" in negotiation is normally not taken to be statements of material fact.

A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud - unless the lawyer is forbidden to do so by the ethical duty of confidentiality. Where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued representation would require the lawyer to assist in the client's crime or fraud, the lawyer must withdraw.
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.

Corporations and other organizations are "persons" for purposes of this rule. Thus, a lawyer must get the consent of the organization's counsel before communicating with the following constituents of the organization:
(1) A person who supervises, directs, or regularly consults with the organization's lawyer about the matter at hand;
(2) A person whose conduct may be imputed to the organization for purposes of criminal or civil liability; or
(3) A person who has authority to obligate the organization concerning the matter.
Consent is NOT needed before talking to a FORMER constituent of the organization. However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization's legal rights, such as the attorney-client privilege.

The rule does not prohibit:
(1) A lawyer from communicating with a represented person when the communication is authorized by law or court order or when the communication does not concern the subject of the representation;
(2) Represented person from communicating directly with each other; and
(3) A lawyer from interviewing an unrepresented person who will be called as a witness by some other party.
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.

Lawyers sometimes receive documents that were sent to them by mistake. That happens with e-mail, fax, postal service, and even personal messenger service. It can also happen when documents are produced pursuant to a discovery request. When a lawyer obtains such a document, and when she knows or reasonably should know that it was sent by mistake, she must promptly notify the sender so that the sender can take protective measures. The Model Rule does not address some related questions on which state law is split; e.g., whether the recipient must return the document to the sender, and whether inadvertent disclosure of the document waives a privilege that would otherwise protect it.
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:
(1) The first lawyer ordered the second lawyer's misconduct or knew about it and ratified it; or
(2) The first lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer, and she knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action.
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:
(1) The lawyer ordered the conduct or knew about it and ratified it; or
(2) The lawyer is a partner or manager or has direct supervisory responsibility over the nonlawyer and the lawyer knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action.
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.

(1) The lawyers in a firm may agree that, when one of them dies, the others will pay a death benefit over a reasonable period of time to the dead lawyer's estate or to designated persons.
(2) The nonlawyer employees of a firm may be included in a compensation or retirement plan even though the plan is based on a profit-sharing arrangement with nonlawyers.
(3) One lawyer's practice can be sold to another lawyer. One who buys the practice of a dead, disabled, or disappeared lawyer may pay the purchase price to the estate or the representatives of the lawyer.
(4) When a court awards attorneys' fees to the winning lawyer in a case, the lawyer may share the fee with a nonprofit organization that hired or recommended him as counsel.
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:
(1)A nonlawyer owns any interest in the firm or association (but, when a lawyer dies, her estate may hold an interest during the administration of the estate);
(2) A nonlawyer is a corporate director or officer or the equivalent thereof; or
(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.
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;
(2) The entire practice, or the entire field of practice, must be sold to one or more lawyers or firms; and
(3) Written notice must be given to the seller's clients regarding the sale, proposed changes in fee arrangements, the clients' right to retain other counsel or to take possession of their files, and the fact that consent to the transfer of the clients' files will be presumed if a client takes no action within 90 days of receipt of the notice. If notice cannot be given to a client, a court order is required to authorize the transfer of the representation of that client to the purchaser.

After the sale of his practice, a lawyer may still be employed as a lawyer on the staff of a public agency or legal services entity that provides legal services to the poor, or as in-house counsel to a business. Additionally, a lawyer's return to private practice because of an unanticipated change in circumstances does not necessarily violate the Rules.
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:
(1) If a lawyer provides nonlegal services in circumstances that are not distinct from her provision of legal services, then the Rules of Professional Conduct apply to both the legal and nonlegal services.
(2) If a lawyer provides nonlegal services through an entity that is not her law office but that she controls (either alone or with other lawyers), that lawyer must take reasonable steps to assure that people who receive the nonlegal services understand that those services are not legal services and that the Rules do not cover those services (for instance, no attorney-client privilege). If the lawyer does not take these reasonable steps, he is subject to the Rules with respect to the nonlegal services.
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.

There are no grounds for professional discipline for violating this rule.
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:
(1) The lawyer must not knowingly participate in a decision or action of the organization if doing so would be incompatible with the lawyer's obligations to a client under the general conflict of interest rules.
(2) The lawyer must not knowingly participate in a decision or action of the organization if doing so would adversely affect the representation of one of the organization's clients whose interests are adverse to those of a client of the lawyer.
Quick-Advice Programs
A lawyer may participate in a quick-advice program sponsored by a court or nonprofit organization, subject to the following rules:
(1) The lawyer must obtain the client's informed consent to the limited scope of the relationship. If the lawyer's quick advice is not enough to set the client on the right track, the lawyer must advise the client to obtain further legal help.
(2) A lawyer who participates in a quick-advice program ordinarily has no time to conduct an ordinary conflict of interest check. Therefore the general conflict principles do not apply unless the lawyer actually knows that giving the quick advice creates a conflict of interest. As in other contexts, actual knowledge can be inferred from the circumstances.
(3) The rule of imputed conflicts of interest is also relaxed in a quick-advice situation. Therefore a lawyer may dispense advice in a quick-advice program unless the lawyer actually knows that he is disqualified from doing so because of a conflict imputed from another lawyer in his firm. Conversely, a conflict created by advice a lawyer dispenses in a quick-advice program will not be imputed to others in the lawyer's firm.
(4) If a person who has received quick advice from a lawyer then wants to hire that lawyer to render further service in the matter, the ordinary conflict of interest rules apply to that further service.
(5) All other rules apply in quick-advice situations.
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.

When a lawyer is working on a law reform project and is asked to participate in a decision that could materially benefit one of the lawyer's clients, the lawyer must disclose that fact - but the lawyer need not identify the client.
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).

This rule does not prohibit all political contributions by lawyers or firms - only those that would not have been made but for the desire to be considered for the employment or appointment.

Excluded from the ambit of the rule are:
(1) Uncompensated services;
(2) Engagements or appointments made on the basis of experience, expertise, qualifications, and cost, following a process that is free from influence based on political contributions; and
(3) Engagements or appointments made on a rotating basis from a list compiled without regard to political 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.

Lawyers are given broad latitude in advertising their services in a true and nonmisleading manner.
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.

This rule only applies when a significant motive for the lawyer's solicitation is the lawyer's pecuniary gain. Thus, a lawyer who volunteers to represent someone without a fee, and without other hope of pecuniary gain, is not subject to discipline for solicitation.

Absent actual knowledge that the prospective client does not wish to receive communications from the lawyer, a lawyer is not prohibited from sending truthful, nondeceptive letters to persons known to face a specific legal problem.

A lawyer must not use coercion, duress, or harassment when making contact with a prospective client. Furthermore, the rule prohibits a lawyer from making contact with prospective clients who have made known to the lawyer a desire not to be solicited by the lawyer.

All written, electronic, or recorded communications with prospective clients who are known to need specific legal services must include the words "Advertising Material."

A lawyer is permitted to participate in group or prepaid legal service plan, even though the plan uses personal contacts and live telephone contacts to offer the plan to persons who are not known to need specific legal services.
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.

Trade names (e.g., "Greater Chicago Legal Clinic"; "The Smith Firm") - even ones that do not include the names of one or more partners - are permitted, provided the name is not misleading and does not imply a connection with a governmental agency or with a public or charitable legal services organization.

A law firm that has offices in more than one jurisdiction may use the same name, Internet address, or other professional designation in each jurisdiction. However, when lawyers in a particular office are identified (e.g., on the letterhead), the identification must indicate the jurisdictional limitations on those lawyers not licensed in the jurisdiction where the office is located.

A private law firm must not use the name of a lawyer who holds public office during any substantial period in which the lawyer is not regularly and actively practicing in the firm.

Lawyers must not imply that they are partners or are otherwise associated with each other in a law firm unless they really are.

Two law firms may hold themselves out to the public as being "associated" or "affiliated" if they have a close, regular, ongoing relationship and if the designation is not misleading. But using such a designation has a significant drawback - ordinarily the two firms would be treated as a single unit for conflict of interest purposes.
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.

A judge must not allow family, social, political, or other relationships to interfere with the judge's conduct or judgments.

A judge must not lend the prestige of judicial office to advance the private interests of the judge or others.

The following acts are permissible, as long as the judge is sensitive to abuse of the prestige of the judicial office:
(1) Based on personal knowledge, a judge may act as a reference or provide a recommendation for someone.
(2) In response to a formal request from a sentencing judge, probation officer, or corrections officer, a judge may provide relevant information about a person. A judge MUST NOT INITIATE the communication of such information.
(3) Judges must not appear voluntarily as character witnesses, and (except when the demands of justice require) they should discourage people from requiring them to serve as character witnesses. If served with a summons, however, a judge may testify as a character witness.
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."

Even if a judge is not a member of an organization described above, the judge can be disciplined for using such an organization.

A judge can also be disciplined for publicly manifesting a knowing approval of "invidious discrimination on any basis."

When a judge learns that an organization to which she belongs practice discrimination that would bar the judge's membership, the judge must either:
(1) Resign promptly; or
(2) Work to end the discriminatory practice, and not participate in other activities of the organization in the meantime. If the organization does not end the discrimination within a year, the judge must resign.
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.

A judge must hear and decide all matters assigned to her, except those in which disqualification is required.

A judge must be faithful to the law and maintain professional competence in it. A judge must not be swayed by partisan interests, public clamor, or fear of criticism.

A judge must require order and decorum in court proceedings. "Require" means that the judge must exercise reasonable direction and control over persons who are subject to the judge's direction and control.

A judge must be patient, dignified, and courteous to those with whom the judge deals in an official capacity, including litigants, lawyers jurors, and witnesses. A judge must require like behavior of lawyers, court officers and staff, and others who are under the judge's direction and control.

A judge must give every person who has a legal interest in a proceeding (or that person's lawyer) the right to be heard in accordance with the law.
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:
(1) A judge may have ex parte communications when expressly authorized by law, which is defined to include court rules and decisional law, as well as constitutional and statutory law.
(2) With the consent of the parties, the judge may confer separately with the parties and their lawyers in an effort to settle or mediate a pending matter.
(3) In other situations the judge may have an ex parte communication, only if ALL FOUR of the following conditions are met:
(i) The circumstances require the judge to communicate with one side only (if the other side cannot be reached);
(ii) The communication concerns an emergency or a scheduling or administrative matter as distinct from a substantive matter or matter affecting the merits;
(iii) The judge believes that no party will gain a procedural or tactical advantage from the communication; and
(iv) The judge notifies the lawyers for the other parties of the essence of the communication and gives them an opportunity to respond.
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:
(1) A judge may consult about a matter with other judges and with other court personnel whose function is to aid the judge in carrying out adjudicative responsibilities (e.g., the judge's clerk).
(2) A judge may obtain the advice of a disinterested expert on the applicable law, provided that the judge tells the parties' lawyers what expert was consulted, what the expert said, and gives the parties' lawyers a chance to respond. A common and often desirable way to get the advice of a legal expert is to invite the expert to file a brief amicus curae.
(3) A judge must not have communications about a matter outside the presence of the parties' lawyers with any person not mentioned above unless the four conditions mentioned regarding ex parte communications are satisfied.
(4) Some jurisdictions permit a trial judge to communicate with an appellate court about a proceeding. A copy of any written communication, or the substance of any oral communication, should be provided to the parties' lawyers.
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:
(1) Respect the rights of the parties, but resolve issues without unnecessary expense or delay;
(2) Monitor cases closely to eliminate dilatory practices, avoidable delays, and unnecessary costs;
(3) Encourage settlements, but without forcing the parties to give up their right to adjudication;
(4) Devote adequate time to judicial duties;
(5) Be punctual in attending court;
(6) Be expeditious in deciding matters under submission; and
(7) Insist that the parties, lawyers, and court personnel cooperate in achieving the objectives states above.
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.

The duty to abstain from comment does not prohibit judges from making public statements in the course of their official duties, or from publicly explaining court procedures.

The duty to abstain from comment does not apply if the judge is a litigant in a personal capacity. The duty does apply, however, if the judge is a litigant in an official capacity, as in writ of mandamus proceedings.
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.

A judge who is subject to a public election must not appoint a lawyer to a position if the judge either knows that the lawyer has contributed to the judge's election campaign more than the jurisdiction's specific dollar amount within a designated number of years prior to the judge's campaigns, or learns of such contribution through a timely motion by a party or other interested person. This provision does not apply if the appointed position is substantially uncompensated, the lawyer is selected in a rotation from a list of qualified and available attorneys compiled without regard to their having made political contributions, or the judge finds that no other lawyer is willing, competent, and able to accept the position.
Disciplinary Responsibilities
Judges have the following duties respecting misconduct by lawyers and other judges:
(1) If Judge A receives information indicating a substantial likelihood that Judge B has committed a violation of the CJC, Judge A should take appropriate action. If Judge A has actual knowledge that Judge B has committed a violation of the CJC that raises a substantial question as to Judge B's fitness for office, Judge A must inform the appropriate disciplinary authority.
(2) If a judge receives information indicating a substantial likelihood that a lawyer has violated the Rules of Professional Conduct, the judge should take appropriate action. If a judge has actual knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question about the lawyer's honesty, trustworthiness, or fitness to practice, then the judge must report the lawyer to the relevant disciplinary authority.
(3) A judge's acts in dealing with misconduct by a lawyer or other judge are privileged and cannot be the basis for civil suit.
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.

The judge should disclose on the record any information the judge believes that the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no reasonable basis for disqualification.
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:
(1) A personal bias concerning a party or a party's lawyer; or
(2) Personal knowledge of relevant evidentiary facts.

To be disqualifying, a bias must be personal and must stem from an extrajudicial source; adverse attitudes toward a party formed on the basis of evidence presented in the case are not disqualifying.
Prior Involvement - Disqualification
A judge must disqualify himself if the judge previously:
(1) Served as a material witness in the matter;
(2) Served as a lawyer in the matter; or
(3) Was associated in law practice with a person who served as a lawyer in the matter at the time they practiced together.
Economic or Other Interest - Disqualification
A judge must disqualify himself if the judge knows that he, either as an individual or as a fiduciary:
(1) Has an economic interest in the matter or in one of the parties; or
(2) Has any other interest that is more than de minimis and that could be substantially affected by the proceedings.

"Economic interest" has a very technical definition - it means that the judge (or judge's spouse, parent, child, or family member residing in the judge's household):
(1) Is an officer, director, advisor, or other active participant in the affairs of a party; or
(2) Owns more than a de minimum legal or equitable interest in a party.

Exceptions to the definition of economic interest:
(1) Mutual Funds - ownership is not an economic interest unless the judge participates in the management of the fund or the proceeding could substantially affect the value of the interest.
(2) Securities Held by Organization (where Judge is an officer, etc) - Only when educational, religious, charitable, fraternal, or civic organization.
(3) Bank Deposits, Mutual Insurance Policies, and the Like - Just because you do regular business there doesn't disqualify you.
(4) Government Securities - Ownership of government securities is not a disqualifying economic interest, unless the value of the securities could be substantially affected by the proceedings.
Involvement of a Relative - Disqualification
A judge must disqualify himself if the judge has a relative involved in the case.

"Relative" means a person (or the spouse of a person) who is related within the third degree to the judge or the judge's spouse. The third degree of relationship means: great-grandparents, grandparents, parents, uncles, aunts, brothers, sisters, children, grandchildren, and great-grandchildren - in short, anyone related closer than a cousin.

"Involved" means that the relative is:
(1) A party, or an officer, director, or trustee of a party;
(2) A lawyer in the proceedings;
(3) Known by the judge to have more than a de minimis interest that could be substantially affected by the proceedings; or
(4) Known by the judge to be a likely material witness in the proceedings.
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:
(1) The judge discloses on the record the ground for disqualification. The judge may then ask whether the parties and their lawyers wish to discuss waiver.
(2) The lawyers consult privately with their respective clients.
(3) All the parties and their lawyers meet, outside the presence of the judge, and agree that the judge should not be disqualified. As a practical matter, the judge may wish to have all the parties and their lawyers sign a remittal agreement.
(4) If the judge is willing to do so, she may then proceed with the case.
Extrajudicial Activities
A judge must conduct all extrajudicial activities so that they do not:
(1) Cast doubt on the judge's impartiality;
(2) Demean the judicial office; or
(3) Interfere with the judge's judicial duties.
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:
(1) A government agency or private organization devoted to the improvement of the law, the legal system, or the administration of justice; and
(2) A nonprofit educational, religious, charitable, fraternal, or civic organization.

Note that service on the board of a public educational other than a law school is prohibited, but service on the board of a public law school or any private educational institution would generally be permitted.

A judge must NOT serve as an officer, director, trustee, or nonlegal advisor of an organization if it is likely that the organization:
(1) Will be engaged in proceedings that would ordinarily come before the judge; or
(2) Will frequently be engaged in adversary proceedings in the court on which the judge sits or one under its appellate jurisdiction.

A judge must not use the prestige of the judicial office for fundraising or membership solicitation for an organization. A judge may, however, make recommendations to fund-granting sources concerning law-related projects. Furthermore, a judge may help plan fundraising for an organization, and may help manage and invest the organization's funds.
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:
(1) A gift incident to a public testimonial, except when the donor frequently appears on the same side in litigation (e.g., an organization of criminal prosecutors);
(2) Books, tapes, and the like, given by publishers for official use;
(3) An invitation to the judge and his spouse to a law-related function;
(4) A gift, award, or benefit incident to the activities of the judge's spouse or a family member living in the judge's household, unless it could be perceived as intended to influence the judge;
(5) Ordinary social hospitality (e.g., a dinner invitation);
(6) A gift from a relative or friend on a special occasion (e.g., a birthday or wedding gift), if it is commensurate in value to the relationship and the occasion (not an expensive gift from a distant friend);
(7) A gift, bequest, favor, or loan from a relative or close personal friend whose appearance in a case would disqualify the judge in any event (e.g., a new car from the judge's parents);
(8) A loan from a lending institution, made in the regular course of its business and on the same terms available to nonjudges;
(9) A scholarship or fellowship given on the same terms as to other people; and
(10) Any other gift, bequest, favor, or loan by a person who has not, and is not likely to, come before the judge as a litigant or lawyer (if the value exceeds $150, the judge must report it).
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:
(1) Interfere with the judge's judicial duties;
(2) Involve the judge in proceedings that would ordinarily come before him; or
(3) Involve the judge in adversary proceedings in the court on which the judge sits or one under its appellate jurisdiction.

The restrictions on financial dealings that apply to a judge personally also apply when the judge acts as a fiduciary.

When the duties of a fiduciary conflict with the judge's duties under the CJC, the judge should resign as fiduciary.
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.

A judge may receive compensation and reimbursement of expenses for proper outside activities if:
(1) The compensation or expense reimbursement does not create an appearance of impropriety or of influencing the judge's performance of judicial duties;
(2) The compensation is reasonable for the work done and does not exceed what would be given to a nonjudge; and
(3) The reimbursement of expenses does not exceed actual expenses reasonably incurred by the judge and, when appropriate to the occasion, the judge's spouse or guest.

A judge who receives compensation for outside activities must report: the activity, when and where it took place, the payor, and the amount. A judge must make such reports annually in a public court document. In a community property state, compensation received by the judge's spouse is not attributed to the judge for this purpose.

Like other citizens, judges are entitled to reasonable privacy concerning their income, debts, investments, and other assets. Except when required by reporting rules, or by the rules concerning disqualification, judges are not required to disclose their financial affairs.
Judges and Politics
The general rule is that judges must stay out of politics. The general rule has three exceptions:
(1) A judge may participate in political activities designed to improve the law, the legal system, or the administration of justice;
(2) A judge may participate in political activities where specifically authorized by law; and
(3) A judge may participate in political activities that are permitted under the CJC.
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:
(1) Makes a public announcement of candidacy;
(2) Declares or files as a candidate with the election or appointment authority; or
(3) Authorizes solicitation or acceptance of contributions or support.

A judge or candidate for judicial office must not:
(1) Act as a leader of hold office in a political organization;
(2) Publicly endorse or oppose another candidate for public office;
(3) Make speeches on behalf of a political organization;
(4) Attend political gatherings; or
(5) Financially support a political organization or candidate, which includes soliciting funds, making contributions, paying assessments, and buying tickets for political dinners or other functions.

When false statements are publicly made about a judicial candidate, a judge, or judicial candidate who knows the facts may make the facts public. A public officer, such as a prosecutor, may retain that office while running for an elective judicial office. A judge or judicial candidate may privately express her views on candidates for public office. A candidate does not "endorse" another candidate simply by running on the same political ticket.

A judge must resign from judicial office when she becomes a candidate for nonjudicial office. However, a judge need not resign when seeking to become a delegate to a state constitutional convention.
Rules Applicable to Candidates for Judicial Office
(This includes an incumbent judge who seeks retention)

A candidate must act with the dignity, impartiality, integrity, and independence expected of a judge. A candidate must encourage members of her family to adhere to the same standards expected of the candidate when they act in support of the candidate.

A candidate must take appropriate steps to assure that her subordinates and agents act with the same restraint expected of the candidate.

Candidates may respond to attacks on themselves or their records.

When seeking judicial office, a candidate must not:
(1) With respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office; or
(2) Knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.

A candidate may make pledges or promises to improve judicial administration, and an incumbent judge may speak privately with other judges and court personnel in the performance of judicial duties. The duties stated in this section apply to any statements made in the process of securing judicial office, including statements to selection, tenure, and confirmation authorities.
"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.

A candidate must not engage in political activity to secure the appointed position, except that she may:
(1) Communicate with the appointing authority and screening groups;
(2) Seek support from groups that regularly offer such support (or from individual, where requested by the appointing authority); and
(3) Provide information about her qualifications to the appointment authority and to support groups.

In addition to the acts permitted above, a nonjudge candidate for an appointed judicial position may:
(1) Retain an office in a political organization;
(2) Attend political gatherings; and
(3) Pay ordinary assessments and make ordinary contributions to a political organization or candidate and purchase tickets for political party dinners and other functions.
Rules Applicable to Judges and Candidates Subject to Public Election
They may at any time (whether or not they are then standing for election):
(1) Buy tickets for and attend political gatherings;
(2) Identify themselves as members of a political party; and
(3) Contribute to a political organization.

When standing for election, they may:
(1) Speak at gatherings on their own behalf;
(2) Appear in advertisements supporting their candidacy;
(3) Distribute campaign literature supporting their candidacy;
(4) Publicly endorse or oppose other candidates for the same judicial office; and
(5) Allow their names to be listed on election materials along with the names of candidates for other elective offices, and appear in promotions of the political ticket.

These parties must neither personally solicit publicly stated support nor solicit or accept campaign contributions.

These parties may, however, establish campaign committees which may: (1) put on candidate forums and publish campaign literature, (2) manage campaign funds, and (3) solicit public support and reasonable contributions from members of the public, including lawyers.

Campaign committees may solicit contributions and public support no earlier than one year before an election and no later than 90 days after the last election in which the candidate participates during the election year.

A candidate must instruct her campaign committee not to accept contributions in excess of the jurisdiction's specified limits. Also, the campaign committee must file with the designated state office a report stating the name, address, occupation, and employer of each person who has made such excessive contributions.
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:
(1) A retired judge subject to recall is allowed to serve as an arbitrator or mediator, and (except when acting as a judge) to serve as a fiduciary.
(2) Continuing part-time judges, periodic part-time judges, and pro tempore part-time judges are exempt from many, but not all, of the CJC provisions that restrict outside activities and political activities.