Professional Responsibility

Front 1

AGC v. Gilbert
Admission to the Bar/Character Review

Back 1

disbarred for failure to disclose a civil suit on his application, as required, that he was a plaintiff in a civil suit before he was admitted to the bar

Front 2

In re Stern
Admission to the Bar/Character Review

Back 2

was not admitted b/c of lack of disclosure of an inappropriate relationship with a 15 yr old and didn't have fiscal responsibility. these things showed a lack of moral character

Front 3

In re Strzempek
Admission to the Bar/Character Review

Back 3

did not originally disclose information regarding his arrest and drunk driving incident. passed the bar exam, then disclosed it. he was found to not have moral character b/c he didn't disclose the information in a timely manner (there was several months that passed). he showed no remorse.

Front 4

AGC v. Hallmon
Advertising

Back 4

mrs. cloud was not a lawyer, but went through law school. hallmon attended the administrative hearing with mrs. cloud and it became obvious that he had no idea what the case was about. hallmon gave her permission to sign for him. judges didnt want the attorney to keep deferring to mrs. cloud. the board turned him into the AGC.

Front 5

MRPC 5.5- Unauthorized Practice of Law; Multi-jurisdictional Practice

Back 5

a lawyer cannot practice in a state where he or she is not barred, unless pro hoc vice is given or in limited circumstances as laid out in this rule (plea bargain, interviewing witnesses, etc)

Front 6

Unauthorized practice of law- paralegal

Back 6

cannot directly give legal advice to the client

cannot bring in a case and set fees

cannot appear/speak in court

can obtain and prepare documents, with attorney supervision and review

Front 7

AGC v. Shryock
Advertising

Back 7

had been suspended. but failed to close client's escrow account with his name as an attorney on it. used it for his real estate business after he was suspended. by using this account, he was holding out to be an attorney. drafted documents for the foreclosure case. he claims he is not practicing law b/c he is representing himself in the foreclosure case in which he has an interest.

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MRPC 5.3 Responsibilities regarding non-lawyer assistance
Advertising

Back 8

managing partners and responsibility to have associates, paralegals, assistants, secretaries have a duty to inform staff about rules of conduct- confidentiality, etc

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MRPC 7.1 Communications Concerning a Lawyer's Services
Advertising

Back 9

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers' Rules of Professional Conduct or other law; or
(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

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Advertising MRPC 7.2

Back 10

Rule 7.2 Advertising
(a) Subject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.
(b) A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may
(1) pay the reasonable cost of advertising or written communication permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service;
(3) pay for a law practice purchased in accordance with Rule 1.17; and
(4) refer clients to a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(d) Any communication made pursuant to this Rule shall include the name of at least one lawyer responsible for its content.
(e) An advertisement or communication indicating that no fee will be charged in the absence of a recovery shall also disclose whether the client will be liable for any expenses.
Cross References: Maryland Lawyers' Rules of Professional Conduct, Rule 1.8(e).
(f) A lawyer, including a participant in an advertising group or lawyer referral service or other program involving communications concerning the lawyer's services, shall be personally responsible for compliance with the provisions of Rules 7.1, 7.2, 7.3, 7.4, and 7.5 and shall be prepared to substantiate such compliance.

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Rule 7.4 Communication of Fields of Practice
Advertising

Back 11

(a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1. A lawyer shall not hold himself or herself out publicly as a specialist.
(b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.

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Rule 7.5 Firm Names and Letterheads
Advertising

Back 12

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

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Rule 7.3 Direct Contact with Prospective Clients
Personal Solicitation

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(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone, or real-time electronic contract even when not otherwise prohibited by paragraph (a), if:
(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing a lawyer;
(2) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(3) the solicitation involves coercion, duress, or harassment.
(c) Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

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Rule 1.17 Sale of Law Practice
Personal Solicitation

Back 14

(a) Subject to paragraph (b), a law practice, including goodwill, may be sold if the following conditions are satisfied:
(1) Except in the case of death, disability, or appointment of the seller to judicial office, the entire practice that is the subject of the sale has been in existence at least five years prior to the date of sale;
(2) The practice is sold as an entirety to another lawyer or law firm; and
(3) Written notice has been mailed to the last known address of the seller's current clients regarding:
(A) the proposed sale;
(B) the terms of any proposed change in the fee arrangement;
(C) the client's right to retain other counsel, to take possession of the file, and to obtain any funds or other property to which the client is entitled; and
(D) the fact that the client's consent to the new representation will be presumed if the client does not take any action or does not otherwise object within sixty (60) days of mailing of the notice.
(b) If a notice required by paragraph (a)(3) is returned and the client cannot be located, the representation of that client may be transferred to the purchaser only by an order of a court of competent jurisdiction authorizing the transfer. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer.

Note: used to not allow the sale of law firms. now, you can buy a practice of someone else. must send notices to clients that you have bought the practice. must tell them of right to get other counsel and any changes in fees. if atty doesnt hear anything in 60 days, then by law, the new atty can assume that they are now representing that client

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Personal Solicitation
Md. Code, Business Occupations and Professions, Sections 10-605.1 Prohibited written communications.

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(a) Applicability of section.- This section applies only to the following forms of communication:
(1) an audio recording;
(2) a computer on-line transmission;
(3) a facsimile transmission;
(4) a letter or other form of written communication;
(5) a telegraphic transmission;
(6) a telephonic transmission; and
(7) a video recording.
(b) In general.- A lawyer may not send a communication, directly or through an agent, to a prospective client for the purpose of obtaining professional employment if the communication concerns an action for personal injury or wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is sent or the person's relative, unless the accident or disaster occurred more than 30 days before the date the communication is sent.
(c) Exception.- This section does not apply to a communication sent by a lawyer to a prospective client at the request of the prospective client.

Front 16

Personal Solicitation
Ohralik v. Ohio State Bar Ass’n

Back 16

The decision holding that petitioner attorney's conduct in aggressively soliciting two young accident victims was not constitutionally protected was affirmed, because the state had a legitimate interest in preventing aspects of solicitation involving undue influence and other forms of vexatious conduct.

Front 17

Personal Solicitation
Florida Bar v. Went-For-It, Inc.

Back 17

Petitioner, a state Bar, proposed an amendment to its rules governing attorney advertisement that sought to impose a 30-day restriction on targeted direct-mail solicitation of accident victims and their relatives.
Court reversed because it determined petitioner's rules withstood the three-pronged scrutiny test for restrictions on commercial speech protected under the First Amendment, as petitioners had a substantial interest in protecting citizens from invasive conduct and the remedy for such invasiveness was narrow in scope and duration.

Front 18

Advertising- Retired or Dead Attorneys

Back 18

their name can still be used in the title of the firm if the attorneys were once part of the firm

Front 19

Personal Solicitation
Ficker v Curran

Back 19

Appellant state enacted a restriction on lawyer advertising that required attorneys to wait thirty days after an accident, disaster, criminal charge, or traffic charge before mailing out targeted solicitation to victims or arrests.
Targeted letters did not carry the same potential for undue influence as in-person solicitation. A targeted letter did not invade the recipient's privacy any more than did a substantively identical letter mailed at large. Any negative attitude toward the legal profession that a criminal defendant could have after receiving unwanted mail on day one or twenty-one would not dissipate by day thirty-one. Finally, unlike accident victims and wrongful death clients, what a criminal or traffic defendant needed was representation, not time to grieve.

The court affirmed the summary judgment in favor of appellee attorney and against appellant state on appellee's challenge to the constitutionality of a statute that restricted lawyer advertising. The statute implicated First Amendment rights, and targeted letters to criminal and traffic defendants did not carry the same potential for undue influence as in-person solicitation, nor did they unduly invade the recipient's privacy.

Front 20

Personal Solicitation

Back 20

is not permitted b/c it:
-invades one's privacy
-it is not open to public scrutiny unlike commercial advertising

Front 21

Targeted/Direct Mail

Back 21

sent to a specific person after a particular incident/accident/issue that would lead to potential representation. lawyers sending a letter or something to offer their services.

SCt said that a letter is much different than personal solicitation. considered to be more advertising rather than solicitation b/c
1) it is not private- there is a record of it unlike personal solicitation
2) person has the option to ignore it while solicitation is an invasion of person, physical privacy

every written communication from a lawyer sent to a potential client to offer services must say "advertising material" if it is a direct/targeted mailing.
cannot send letters to those who are mentally unstable

anything that is public record is not an invasion of privacy (arrest records are public)

Md- has a 30 day ban on mailings for civil cases, but not criminal cases

Front 22

MDRPC 5.6 restrictions on right to practice
Ethical Issues in Situations other than Litigation

Back 22

A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.

no restrictive covenants are permitted (non compete clauses)

Front 23

Fees
Rule 1.5a

Back 23

cant charge an unreasonable fee or an unreasonable amount for expenses. factors to be considered in fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

contingency fees have to be in writing while other non-contingency fees are preferred, but not required to be in writing

Front 24

Flat Fees

Back 24

often used where basically the client is going to be charged this amount of money per issue. common for wills and some criminal cases (DUI, etc)

some bar associations would set flat fees for particular services, but was later found to be in violation of anti-trust laws and therefore illegal and now is not done

Front 25

Proportional Fees

Back 25

percentage of the value of the deal. usually in transaction work (corporate merger, bond work, real estate)

Front 26

Hourly Fees

Back 26

average hourly rates: 200-300/hr.
must keep accurate timesheets. becomes difficult to keep track when you get interrupted or forget to keep track. need to be conscious of whether you are putting too much work or more work than the client can pay. extend the case just to pad the hours. this deal with ethical issues

Front 27

AGC v. Hess
Fees

Back 27

attorney was dealing with a very difficult client, but a very wealthy client. client asked for discount if he paid on time. attorney added on the same amount of discounted rate to the hours to try to offset the costs.

sent to the AGC. attorney says he shouldn't be in trouble b/c he is just getting back what they agreed to and that it is a reasonable fee.

court found that if you dont charge what you agree to charge, then it is an unreasonable fee.

Front 28

AGC v. Ugwuonye
Fees

Back 28

took a non refundable retainer fee. claimed he worked 20 hours on the case, but really didnt. there were actually no good grounds for the case. he directly put the retainer in the operating account when he should have put it in a trust account until he earned it.

he was disciplined for spending too much time on a frivolous case

Front 29

Expenses
Fees

Back 29

must charge reasonable expenses. is not reasonable for an attorney to bill client for the time spent to calculate the bill. those hours are part of the overhead of the practice of law and not billable to the client. charges for rent, electricity, salaries, library, etc- all the overhead of running a law firm should be including in the hourly rate

can you bill separately for westlaw/lexis. one theory- its a library related expense. other theory- its a special charge and can charge what it costs you to the client

must agree on how to handle expenses- will be taken out from recovery or if it will be charged regardless of recovery, attorney will cover 1st X,000 then the client will cover the rest. many types of combinations

Front 30

non refundable retainer fees

Back 30

1- engagement fee: earned when attorneys lend their names to the case, and it bears no relation to the charge for hours spent on the matter. Such fee is intended to compensate the atty. For reputation, commitment to a specific client, unavailability to opponent, and reservation of future time to be spent on that client
2- special fees: services are billed against that initial amount but at the conclusion of the case, the atty. Keeps any part of the retainer that has not yet been charged

Front 31

Contingency Fee

Back 31

cannot have contingency fee in criminal case

typical percentages- anything over 50% isn't allowed, usually nothing under 20%. usually its 1/3 or 40%.

we allow contingencies fees b/c it allows people without the ability to pay a lawyer up front to have access to justice. criticism is that there is an excessive windfall- low amount of hours and high return on fee

Front 32

Merry-Go-Round Enterprises
Fees

Back 32

Applicant law firm represented the Chapter 7 trustee as special counsel in a lawsuit brought by the trustee against a national accounting firm. The lawsuit settled and applicant sought court approval of a $ 71,200,000 contingent fee, representing its 40 percent contingent fee agreement with the trustee, reduced $ 2 million to reflect a settlement with an objecting major creditor. The contingency fee agreement was pre-approved by the court under 11 U.S.C.S. § 328(a) and the court's order of approval became final without appeal. But debtors' largest unsecured creditor objected to the application, contending that an affirmative post-recovery reasonableness lodestar analysis under 11 U.S.C.S. § 330(a) was required. The court disagreed, and awarded the full $ 71,200,000, holding that a de novo reasonable fee determination and lodestar analysis of what fee should be awarded the applicant was neither required nor appropriate, and that the fee was reasonable under the Maryland Rules of Professional Conduct.

OUTCOME: The court awarded special litigation counsel a fee of $ 71,200,000 for services as special litigation counsel for the Chapter 7 trustee, holding that use of a lodestar analysis post-recovery to determine a reasonable fee was appropriate, and the fee was reasonable under the Maryland Rules of Professional Conduct.

Front 33

Somuah v. Flachs
Fees

Back 33

Respondent attorney sued petitioner former client to recover compensation for the legal services. The suit stemmed from the fact that petitioner had discharged respondent when she learned that he was not licensed to practice law in Maryland. On certiorari, the court held that petitioner had a good faith basis for being dissatisfied with respondent because she discovered that respondent failed to inform her that he was not licensed to practice in Maryland, the state where the attorney visited the client and where the cause of action arose. Further, the court held that because respondent had not engaged in serious misconduct, he was entitled to recover compensation from petitioner for the reasonable value of the services rendered prior to his discharge. The attorney's compensation was to be measured in light of the benefits obtained by petitioner as a result of respondent's services and the nature and gravity of the cause that led to the discharge. However, because the parties entered into a contingent fee contract, respondent's cause of action did not accrue until the contingency was fulfilled. Accordingly, the judgment was reversed.

OUTCOME: The judgment, which affirmed the judgment against petitioner former client in respondent attorney's suit to recover attorney's fees after discharge, was reversed and the case was remanded because respondent's claim against petitioner accrued only upon the fulfillment of the contingency fee agreement, that is where petitioner obtained a final judgment in the underlying case.

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Rule 6.1 Pro Bono Publico Service

Back 34

(a) Professional Responsibility. A lawyer has a professional responsibility to render pro bono publico legal service.
(b) Discharge of Professional Responsibility. A lawyer in the full-time practice of law should aspire to render at least 50 hours per year of pro bono publico legal service, and a lawyer in part-time practice should aspire to render at least a pro rata number of hours.
(1) Unless a lawyer is prohibited by law from rendering the legal services described below, a substantial portion of the applicable hours should be devoted to rendering legal service, without fee or expectation of fee, or at a substantially reduced fee, to:
(A) people of limited means;
(B) charitable, religious, civic, community, governmental, or educational organizations in matters designed primarily to address the needs of people of limited means;
(C) individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; or
(D) charitable, religious, civic, community, governmental, or educational organizations in matters in furtherance of their organizational purposes when the payment of the standard legal fees would significantly deplete the organization's economic resources or would otherwise be inappropriate.
(2) The remainder of the applicable hours may be devoted to activities for improving the law, the legal system, or the legal profession.
(3) A lawyer also may discharge the professional responsibility set forth in this Rule by contributing financial support to organizations that provide legal services to persons of limited means.
(c) Effect of Noncompliance. This Rule is aspirational, not mandatory. Noncompliance with this Rule shall not be grounds for disciplinary action or other sanctions.

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MDRPC 5.4 Professional Independence of a Lawyer
Fees

Back 35

Rule 5.4 Professional Independence of a Lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a lawyer who is deceased or disabled or who has disappeared may, pursuant to the provisions of Rule 1.17, pay the purchase price to the estate or representative of the lawyer.
(3) a lawyer who undertakes to complete unfinished legal business of a deceased, retired, disabled, or suspended lawyer may pay to that lawyer or that lawyer's estate the proportion of the total compensation which fairly represents the services rendered by the former lawyer;
(4) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(5) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

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Rule 5.7 Responsibilities Regarding Law-Related Services

Back 36

(a) A lawyer shall be subject to the Maryland Lawyers' Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or

(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

(b) The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.

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Post v. Bregman
Fees

Back 37

After petitioner attorney received a one-third share of a contingency fee, petitioner refused to pay respondent attorney 40 percent of the fee as called for in an agreement between the parties and instead filed an action for declaratory judgment and asserted that his honoring of the fee arrangement would have violated Md. Lawyers' R. Prof. Conduct 1.5(e). Respondent filed a two-count counterclaim for declaratory judgment and for breach of contract. The trial court granted summary judgment in favor of respondent, the appellate court affirmed, and petitioner sought review. On appeal, the court held that its review of the matter was limited to the relevance of Rule 1.5(e) in determining the enforceability of the fee agreement. The court held that the lower court erred in denying petitioner's motion for declaratory judgment. The court held that Rule 1.5(e) was not a "self-imposed internal regulation," but was a rule adopted by the court that governed fee-sharing agreements.

OUTCOME: The court reversed the judgment of the lower court in favor of respondent attorney and the dismissal of petitioner attorney's actions. The court instructed that the case be remanded to the trial court for further proceedings because the appellate court erred when it found an ethics rule inapplicable and, therefore, never considered the matters brought by the parties.

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Blondell v. Littlepage
Fees

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The referring attorney, who was representing a plaintiff in a medical malpractice action, referred the matter to the co-counsel. The two attorneys and the client agreed that the attorneys would jointly represent the client, with the co-counsel having primary responsibility for representing the client, and the referring attorney rendering services if requested by the co-counsel. The attorneys agreed to split any contingency fee 50-50. Ultimately, the client settled the claim, on the advice of the co-counsel, and for less than anticipated by the referring counsel. The referring counsel alleged that the co-counsel had improperly advised the client that there was a meritorious limitations defense in the malpractice action, that the referring counsel had delayed in filing suit, and that the client might have a malpractice claim against the referring attorney. On appeal, the court found that the circuit court did not err because the co-counsel owed no tort duty to the referring counsel, the co-counsel fulfilled the contractual obligation between the two attorneys, and the co-counsel could not tortiously interfere with a contract to which the co-counsel was a party.

OUTCOME: The judgment was affirmed.

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Sharing Fees

Back 39

cant share fees with non-lawyer

Md can share with court awarded fees if the work is done pro bono and the $ is given to the non profit organization

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Partnership
Fees

Back 40

cant form partnership with someone who isnt a lawyer in a law practice b/c that would be sharing legal fees with a non lawyer

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Attorney Client Privilege
Confidentiality

Back 41

in court trial, an atty cant be forced to testify about communications the client made to the attorney. evidentiary privilege to make the testimony inadmissible. this only covers communications between lawyer and client. doesnt apply if there is a 3rd person in the room when the communication is made

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Ethical Obligation of Confidentiality

Back 42

this covers more situation that atty client privilege, tha only applies when atty is being asked to testify at a trial/hearing proceeding

ethical obligation of confidentiality always applies.

this covers all information relating to the representation, no matter how you learned of it or if others know of it.

ethical obligation still applies even if a 3rd party is in the same room when the communications is made.

applies even if the client is dead.

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Rule 1.6
Confidentiality

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(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules, a court order or other law;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with these Rules, a court order or other law.

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Rule 1.18 Duties to Prospective Client
Confidentiality

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Rule 1.18 Duties to Prospective Client
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) Representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing, or the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

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Rule 1.13 Organization as a Client
Confidentiality

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(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) When the organization's highest authority insists upon action, or refuses to take action, that is clearly a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is reasonably certain to result in substantial injury to the organization, the lawyer may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization. Such action may include revealing information otherwise protected by Rule 1.6 only if the lawyer reasonably believes that:
(1) the highest authority in the organization has acted to further the personal or financial interests of members of the authority which are in conflict with the interests of the organization; and
(2) revealing the information is necessary in the best interest of the organization.
(d) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

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Implied Authority exception for confidentiality

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can disclose information that is required to carry out the representation (to claims adjuster, secretary, etc)

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Rule 3.3 Candor Toward the Tribunal
Confidentiality

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(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) Notwithstanding paragraphs (a) through (d), a lawyer for an accused in a criminal case need not disclose that the accused intends to testify falsely or has testified falsely if the lawyer reasonably believes that the disclosure would jeopardize any constitutional right of the accused.

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Nix v. Whiteside, 475 U.S. 157
Confidentiality

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PROCEDURAL POSTURE: The government appealed the ruling of the United States Court of Appeals for the Eighth Circuit granting a writ of habeas corpus to defendant on his claim that his counsel's failure to allow him to present perjured testimony at trial constituted ineffective assistance of counsel.

OVERVIEW: Defendant was charged with murder of an acquaintance in a botched drug deal. Defendant initially told his attorney that he stabbed the victim in self defense because he saw a gun in the victim's hand. Defendant later admitted that he did not see a gun, but would testify that he did to bolster his defense. Counsel advised defendant that he could not suborn perjury, and would advise the court of defendant's plan and seek to withdraw, if he insisted on presenting perjured testimony. Defendant followed counsel's advice and testified at trial that he did not see a gun. Defendant was convicted of second-degree murder. Defendant's conviction was affirmed by the appeals court. Petitioner appealed the issuance of writ of habeas corpus to the court. The court reversed because the right to assistance of counsel was not violated when the attorney refused to assist in presenting perjured testimony.

OUTCOME: The court reversed the issuance of the writ of habeas corpus.

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Rule 1.8 Conflict of Interest: Current Clients: Specific Rules

Conflicts between lawyer and client

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(a) A lawyer shall not enter into a business transaction with a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client or confirmed on the record before a tribunal. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) subject to Rule 1.5, contract with a client for a reasonable contingent fee in a civil case.
(j) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

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Rule 1.7 Conflict of Interest: General Rule

Dealing with 2 clients at the same time

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(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
(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 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

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Rule 1.9 Duties to Former Clients
Conflicts of Interest

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(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) from whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

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Rule 1.10 Imputation of Conflicts of Interest: General Rule

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(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
(b) 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 information protected by Rules 1.6 and 1.9(c) that is material to the matter.
(c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which the newly associated lawyer is disqualified under Rule 1.9 unless the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.
(e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

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Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees

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(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

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Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
Conflicts of Interest

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(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

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Rule 6.3 Membership in Legal Services Organization
Conflicts of Interest

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A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:

(a) if participating in the decision would be incompatible with the lawyer's obligations to a client under Rule 1.7; or

(b) where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

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Rule 6.4 Law Reform Activities Affecting Client Interests
Conflicts of Interest

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A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

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Rule 6.5 Nonprofit and Court-Annexed Limited Legal Services Programs
Conflicts of Interest

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(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

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What is considered a business transaction? in terms of conflict of interest issues

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is offering a stock option instead of a $ fee a business transaction? since you can't do business with a client. this is probably fine to do. it's a contingency fee type arrangement. if we allow contingencies fees b/c risk of getting zero return is high in stocks just like contingency fees

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Receipt of gifts from clients
(comments to 1.8)
Conflicts of Interest

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gifts to lawyers are permitted so long as it wasn't solicited and no instrument prepared for the client by the attorney.

cannot suggest that a substantial gift be given by the client

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Evans v. Jack (in txt book)

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if you bring lawsuit under civil rights action and you win, the losing party has to pay the winning's attorney's paid. there was a suit that was brought and they sought a lot of injunctive relief and no damages. dealing with hiring/training minorities. took 3-4 yrs of discovery. the day of trial the Def. said that they will grant all injunctive relief if the P waives all attorney's fees under the CRA. the atty has conflict of interest. the agreement was made with the understanding that they will sue claiming its illegal to waive the attys fees. SCt denied it. the attorney ended up getting nothing

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1.8h2- Conflicts of Interest/Malpractice

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shouldn’t settle claim or potential claim with current or potential client unless they are advised in writing that they should get outside counsel for advice- for malpractice liability. If they get another lawyer, then the case has to be settled through them. Cant settle with the client once they have accused the lawyer of malpractice

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Rule 3.1 Meritorious Claims and Contentions
Ethical Issues in Litigation

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A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established.

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Rule 3.2 Expediting Litigation
Ethical Issues in Litigation

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A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

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Rule 3.3 Candor Toward the Tribunal
Ethical Issues in Litigation

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(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) Notwithstanding paragraphs (a) through (d), a lawyer for an accused in a criminal case need not disclose that the accused intends to testify falsely or has testified falsely if the lawyer reasonably believes that the disclosure would jeopardize any constitutional right of the accused.

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Rule 3.4 Fairness to Opposing Party and Counsel
Ethical Issues in Litigation

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A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

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Rule 3.5 Impartiality and Decorum of the Tribunal
Ethical Issues in Litigation

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(a) A lawyer shall not:
(1) seek to influence a judge, prospective, qualified, or sworn juror, or other official by means prohibited by law;
(2) before the trial of a case with which the lawyer is connected, communicate outside the course of official proceedings with anyone known to the lawyer to be on the jury list for trial of the case;
(3) during the trial of a case with which the lawyer is connected, communicate outside the course of official proceedings with any member of the jury;
(4) during the trial of a case with which the lawyer is not connected, communicate outside the course of official proceedings with any member of the jury about the case;
(5) after discharge of a jury from further consideration of a case with which the lawyer is connected, ask questions of or make comments to a jury member that are calculated to harass or embarrass the jury member or to influence the jury member's actions in future jury service;
(6) conduct a vexatious or harassing investigation of any prospective, qualified, or sworn juror;
(7) communicate ex parte about an adversary proceeding with the judge or other official before whom the proceeding is pending, except as permitted by law;
(8) discuss with a judge potential employment of the judge if the lawyer or a firm with which the lawyer is associated has a matter that is pending before the judge; or
(9) engage in conduct intended to disrupt a tribunal.
(b) A lawyer who has knowledge of any violation of paragraph (a) of this Rule, any improper conduct by a prospective, qualified, or sworn juror or any improper conduct by another towards prospective, qualified, or sworn juror, shall report it promptly to the court or other appropriate authority.

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Rule 3.6 Trial Publicity
Ethical Issues in Litigation

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(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a 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. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

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Rule 3.8 Special Responsibilities of a Prosecutor
Ethical Issues in Litigation

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The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(e) 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, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

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Rule 3.7 Lawyer as Witness
Ethical Issues in Litigation

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(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in 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 Rule 1.7 or Rule 1.9.

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Rule 4.1 Truthfulness in Statements to Others
Ethical Issues in Situations Other than Litigation

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(a) In the course of representing a client a lawyer shall not knowingly:

(1) make a false statement of material fact or law to a third person; or

(2) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.

(b) The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

Statements of Fact

[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal or tortious misrepresentation.

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Rule 4.2 Communication with Person Represented by Counsel
Ethical Issues in Situations Other than Litigation

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(a) Except as provided in paragraph (c), in representing a client, a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or court order to do so.

(b) If the person represented by another lawyer is an organization, the prohibition extends to each of the organization's (1) current officers, directors, and managing agents and (2) current agents or employees who supervise, direct, or regularly communicate with the organization's lawyers concerning the matter or whose acts or omissions in the matter may bind the organization for civil or criminal liability. The lawyer may not communicate with a current agent or employee of the organization unless the lawyer first has made inquiry to ensure that the agent or employee is not an individual with whom communication is prohibited by this paragraph and has disclosed to the individual the lawyer's identity and the fact that the lawyer represents a client who has an interest adverse to the organization.

(c) A lawyer may communicate with a government official about matters that are the subject of the representation if the government official has the authority to redress the grievances of the lawyer's client and the lawyer first makes the disclosures specified in paragraph (b).

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Rule 4.3 Dealing with Unrepresented Person
Ethical Issues in Situations Other than Litigation

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In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall 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 shall make reasonable efforts to correct the misunderstanding.

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Rule 4.4 Respect for Rights of Third Persons
Ethical Issues in Situations Other than Litigation

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(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person.

(b) In communicating with third persons, a lawyer representing a client in a matter shall not seek information relating to the matter that the lawyer knows or reasonably should know is protected from disclosure by statute or by an established evidentiary privilege, unless the protection has been waived. The lawyer who receives information that is protected from disclosure shall (1) terminate the communication immediately and (2) give notice of the disclosure to any tribunal in which the matter is pending and to the person entitled to enforce the protection against disclosure.

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Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
Ethical Issues in Situations Other than Litigation

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(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

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Rule 1.3 Diligence
Discipline & Malpractice

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A lawyer shall act with reasonable diligence and promptness in representing a client.

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Rule 1.4 Communication
Discipline & Malpractice

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(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is required by these Rules;

(2) keep the client reasonably informed about the status of the matter;

(3) promptly comply with reasonable requests for information; and

(4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers' Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

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Rule 6.2 Accepting Appointments
Discipline & Malpractice

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A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a) representing the client is likely to result in violation of the Maryland Lawyers' Rules of Professional Conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

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Rule 1.14 Client with Diminished Capacity
Ethical Issues in Situations Other than Litigation

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(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

Comment #1- when a client is a minor or has a diminished mental capacity, maintaining the normal client relationship may not be possible.

Comment #8- disclosure of client's diminished capacity. Disclosure of the client’s diminished capacity could adversely affect the client’s interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer may not disclose such information. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. The lawyer’s position in such cases is an unavoidably difficult one.

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Rule 1.16 Declining or Terminating Representation
Ethical Issues in Situations Other than Litigation

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(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Maryland Lawyers' Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon action or inaction that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

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Rule 2.1 Advisor
Discipline & Malpractice

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In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

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Rule 2.3 Evaluation for Use by Third Parties
Ethical Issues in Situations Other than Litigation

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(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.

(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

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Rule 2.4 Lawyer Serving as Third-Party Neutral
Ethical Issues in Situations Other than Litigation

Back 82

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

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Rule 3.9 Advocate in Nonadjudicative Proceedings
Ethical Issues in Situations Other than Litigation

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A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.

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Rule 3.1 Meritorious Claims and Contentions
Discipline & Malpractice

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A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established.

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Rule 8.4 Misconduct

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It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers' Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this paragraph;
(f) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Maryland Lawyers' Rules of Professional Conduct or other law; or
(g)knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

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Rule 8.2 Judicial and Legal Officials

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(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) Canon 5C (4) of the Maryland Code of Judicial Conduct, set forth in Rule 16-813, provides that a lawyer becomes a candidate for a judicial office when the lawyer files a certificate of candidacy in accordance with Maryland election laws, but no earlier than two years prior to the general election for that office. A candidate for a judicial office:
(1) shall maintain the dignity appropriate to the office and act in a manner consistent with the impartiality, independence and integrity of the judiciary;
(2) with respect to a case, controversy, or issue that is likely to come before the court, shall not make a commitment, pledge, or promise that is inconsistent with the impartial performance of the adjudicative duties of the office;
Committee Note: Rule 8.2(b)(2) does not prohibit a candidate from making a commitment, pledge, or promise respecting improvements in court administration or the faithful and impartial performance of the duties of the office.
(3) shall not knowingly misrepresent his or her identity or qualifications, the identity or qualifications of an opponent, or any other fact;
(4) shall not allow any other person to do for the candidate what the candidate is prohibited from doing; and
(5) may respond to a personal attack or an attack on the candidate's record as long as the response does not otherwise violate this Rule.

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Rule 8.1 Bar Admission and Disciplinary Matters

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An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.

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Rule 8.3 Reporting Professional Misconduct

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(a) A lawyer who knows that another lawyer has committed a violation of the Maryland Lawyers' Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in a lawyer or judge assistance or professional guidance program.

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Rule 1.15 Safekeeping Property
Discipline & Malpractice

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(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created.
(b) A lawyer may deposit the lawyer's own funds in a client trust account only as permitted by Rule 16-607 b.
(c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the lawyer's own benefit only as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property.
(e) When a lawyer in the course of representing a client is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall distribute promptly all portions of the property as to which the interests are not in dispute.

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Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
Discipline & Malpractice

Back 90

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Maryland Lawyers' Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Maryland Lawyers' Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's violation of the Maryland Lawyers' Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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Rule 5.2 Responsibilities of a Subordinate Lawyer
Discipline & Malpractice

Back 91

(a) A lawyer is bound by the Maryland Lawyers' Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Maryland Lawyers' Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

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Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
Discipline & Malpractice

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With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer;
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Maryland Lawyers' Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action; and
(d) a lawyer who employs or retains the services of a nonlawyer who (i) was formerly admitted to the practice of law in any jurisdiction and (ii) has been and remains disbarred, suspended, or placed on inactive status because of incapacity shall comply with the following requirements:
(1) all law-related activities of the formerly admitted lawyer shall be (A) performed from an office that is staffed on a full-time basis by a supervising lawyer and (B) conducted under the direct supervision of the supervising lawyer, who shall be responsible for ensuring that the formerly admitted lawyer complies with the requirements of this Rule.
(2) the lawyer shall take reasonable steps to ensure that the formerly admitted lawyer does not:
(A) represent himself or herself to be a lawyer;
(B) render legal consultation or advice to a client or prospective client;
(C) appear on behalf of or represent a client in any judicial, administrative, legislative, or alternative dispute resolution proceeding;
(D) appear on behalf of or represent a client at a deposition or in any other discovery matter;
(E) negotiate or transact any matter on behalf of a client with third parties;
(F) receive funds from or on behalf of a client or disburse funds to or on behalf of a client; or
(G) perform any law-related activity for (i) a law firm or lawyer with whom the formerly admitted lawyer was associated when the acts that resulted in the disbarment or suspension occurred or (ii) any client who was previously represented by the formerly admitted lawyer.
(3) the lawyer, the supervising lawyer, and the formerly admitted lawyer shall file jointly with Bar Counsel (A) a notice of employment identifying the supervising lawyer and the formerly admitted lawyer and listing each jurisdiction in which the formerly admitted lawyer has been disbarred, suspended, or placed on inactive status because of incapacity; and (B) a copy of an executed written agreement between the lawyer, the supervising lawyer, and the formerly admitted lawyer that sets forth the duties of the formerly admitted lawyer and includes an undertaking to comply with requests by Bar Counsel for proof of compliance with the terms of the agreement and this Rule. As to a formerly admitted lawyer employed as of July 1, 2006, the notice and agreement shall be filed no later than September 1, 2006. As to a formerly admitted lawyer hired after July 1, 2006, the notice and agreement shall be filed within 30 days after commencement of the employment. Immediately upon the termination of the employment of the formerly admitted lawyer, the lawyer and the supervising lawyer shall file with Bar Counsel a notice of the termination.

Front 93

Rule 1.1 Competence
Discipline & Malpractice

Back 93

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Front 94

Notes on MRPC 4.2

Back 94

• MRPC 4.2- govt. official can meet with a client without permission from OAG if the official can resolve the issue
• If you have obtained counsel, can another lawyer give a second opinion? Yes. The lawyer isn’t representing the client who is seeking second opinion. This is permitted by 4.2
• Can the D lawyer talk to a witness for the prosecution without the prosecutor’s permission. Yes, b/c the witness isn’t being represented by the state. If the witness is represented, then you must speak to their lawyer

Front 95

Personal Solicitation
Md. Code, Business Occupations and Professions, Sections 10-605.2

Back 95

§ 10-605.2. Requirements for communications.
(a) Applicable communications.-
(1) This section applies only to a communication:
(i) in a form described under subsection (c) of this section;
(ii) sent by a lawyer, directly or through an agent or employee, to a prospective client for the purpose of obtaining professional employment; and
(iii) if the communication concerns:
1. an action for personal injury or wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is sent or the person's relative; or
2. a criminal prosecution, or a prosecution of a traffic offense that is punishable by a period of incarceration, involving the person to whom the communication is sent or the person's relative.
(2) This section does not apply to a direct marketing communication that is not related to:
(i) a specific accident or disaster described under paragraph (1)(iii)1 of this subsection; or
(ii) a specific criminal prosecution or traffic offense described under paragraph (1)(iii)2 of this subsection.
(b) Nonapplicability of certain communication.- This section does not apply to a communication sent to a prospective client at the request of the prospective client.
(c) Forms of communication.- This section applies only to the following forms of communication:
(1) an audio recording;
(2) a computer on-line transmission;
(3) a facsimile transmission;
(4) a letter or other form of written communication;
(5) a telegraphic transmission;
(6) a telephonic transmission; and
(7) a video recording.

Front 96

Personal Solicitation
Md. Code, Business Occupations and Professions, Sections 10-605.2 (Part 2)

Back 96

(d) Required wording.-
(1) Each communication shall include the words "this is an advertisement" in a prominent place at the beginning and end of each communication as required in this subsection.
(2) In a communication sent by computer on-line transmission, facsimile, mail, or telegraph, the required wording shall appear in conspicuous print size and in a freestanding form:
(i) on the outside of the envelope, if any; and
(ii) at the beginning and end of the contents of the communication.
(3) If the form of the communication is a self-mailing brochure or pamphlet, the required wording shall appear on the address panel of the brochure or pamphlet.
(4) In a video recording communication, the required wording:
(i) shall appear conspicuously in the communication for at least five seconds at the beginning and for at least five seconds at the end of the communication; and
(ii) of the audio recording portion, if any, of the communication shall meet the requirements of paragraph (5) of this subsection.
(5) In an audio recording communication, the required wording shall appear, at the beginning and end of the communication, in a tone, volume, clarity, and speed of delivery at least substantially equivalent to the quality of the tone, volume, clarity, and speed of the audio elsewhere in the communication.
(e) Legal pleadings or documents.- A written communication may not be in the form of, or include, legal pleadings or legal documents.
(f) Envelopes.- A communication may not reveal on the envelope, or on the outside of a self-mailing brochure or pamphlet, the nature of the prospective client's legal matter.
(g) Maryland Rules of Professional Conduct.- In addition to meeting the requirements of this section, a communication shall comply with Maryland Rules of Professional Conduct 7.1 through 7.4.
(h) Required filing.-
(1) In this subsection, "Bar Counsel" means the principal executive officer of the disciplinary system for lawyers under the Maryland Rules.
(2) Subject to the provisions of this subsection, a person who sends a communication shall, within 3 days after the date that the communication is sent, file the following with the Bar Counsel:
(i) a copy of the communication, together with a sample copy of the envelope, if any, used in conjunction with the communication; and
(ii) the name of the person to whom the communication was sent and the person's mailing address, telephone number, or telecommunication address to which the communication was sent.
(3) If communications identical in content are sent to two or more persons, a person may comply with the provisions of paragraph (2) of this subsection by filing with the Bar Counsel within 3 days after the date that the communication was sent a single copy of the communication together with a list of the names and the applicable mailing addresses, telephone numbers, or telecommunication addresses of the persons to whom the communication was sent.
(4) If the person periodically sends an identical communication to additional persons, the person may comply with the provisions of paragraph (2) of this subsection by filing with Bar Counsel lists of additional names and the applicable mailing addresses, telephone numbers, or telecommunication addresses not less than monthly.
(5) A communication may not state or imply that a communication is approved by the Bar Counsel, the State, or any unit of the State.
(i) Prohibited communications.- A lawyer, or a person acting as an agent or employee of the lawyer, may not send, or knowingly permit to be sent, on a lawyer's behalf, on the behalf of a lawyer's firm, partner, or associate, or on behalf of any other lawyer affiliated with the lawyer, a communication that does not meet the requirements of this section.

Front 97

AGC v. Gansler
Ethical Issues in Litigation

Back 97

• The prosecutor made extrajudicial statements in connection with the prosecution of various well-publicized crimes.
-the prosecutor violated Rule 3.6 by commenting on one defendant's confession, by discussing the plea offer, and by providing his opinion as to the guilt of two defendants.
-do not allow such statements so that the D can have a fair trial
-

Front 98

Haines v. Liggett Group, Inc.
Ethical Issues in Litigation

Back 98

• Plaintiff administrator signed a contingent fee agreement with his attorneys for representation in a suit against defendant cigarette manufacturer for the death of the decedent after years of smoking. The agreement required the attorneys to advance costs of litigation.
• Because the financial burden had become heavy, the attorneys moved to withdraw.
• N.J. R. of Prof' Conduct 1:16, entitled "Declining or Terminating Representation," states in pertinent part that a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client or if (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.
• N.J. R. of Prof'l Conduct 1:16 provides that withdrawal is entirely within the discretion of the court and a court may refuse to allow withdrawal despite a showing of good cause, R. 1:16(c).
• The court held that the fee agreement was binding on the client and the attorney was required to perform it as well. The court noted that the attorney had been unable to find another attorney to assume the case, and held that the client's interests would be prejudiced.

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Spaulding v Zimmerman
Ethical Issues in Litigation

Back 99

• The minor's injuries were diagnosed as a severe crushing chest injury, a cerebral concussion, and bilateral fractures of the clavicles.
• The defense's expert, who also examined the minor, reported that the minor had an aorta aneurysm, which may have been caused by the accident.
• At settlement negotiations, the minor's parents were not aware of the report received by the defense. The parties settled and the trial court approved the settlement.
• The court found that the fact that the settlement did not contemplate the aorta aneurysm gave the trial court reason to exercise its discretion in vacating the settlement under rule 60.02. The court further found that there was no evidence that the defense had disclosed either to plaintiff's counsel or the trial court that insurance limitations were involved in the settlement.

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AGC v. Walter
Ethical Issues in Litigation

Back 100

Facts
• The petition filed against the attorney alleged that the attorney submitted requests for reimbursement for expenditures he had not actually made and for expenses in excess of the amounts he had actually incurred.
Legal Theory
• The attorney never asked for continuing legal education-related expenses to be paid by his law firm in excess of the amounts to which he believed he was entitled pursuant to firm expense-payment policies. The sum that the firm contended that the attorney overcharged was negligible in comparison to the attorney's financial contributions to the firm. In the 22 years the attorney was with the firm he traveled frequently. The attorney had never before been disciplined by the Commission. In upholding the heating judge's findings, the appellate court noted that the hearing judge was entitled to accept or reject all, part, or none of the testimony of any witness and was entitled to draw reasonable inferences from the facts found to be true.
Holding
• In concluding that the attorney did not violate Md. R. Prof. Conduct 8.4, the hearing judge found that no client was ever asked to pay more than the actual reasonable cost of travel, lodging, and incidental expenses incurred by the attorney.

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AGC v. Culver
Discipline & Malpractice

Back 101

• The violations found against the attorney arose from the representation of a divorce client. While the court stopped short of concluding that the attorney had raped the client, it did find that he engaged in inappropriate sexual intercourse with her and, as a result, actively participated in adulterous conduct, in violation of Md. R. Prof. Conduct 8.4(b).
• Md. R. Prof. Conduct 8.4(b) makes it professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects.
A sexual relationship with a client, whether or not in violation of criminal law, will create an impermissible conflict between the interests of the client and those of the lawyer if: (1) the representation of the client would be materially limited by the sexual relationship and, (2) it is unreasonable for the lawyer to believe otherwise. Under those circumstances, client consent after consultation is ineffective. The comment to Md. R. Prof. Conduct 8.4 makes clear that sexual misconduct may violate Rule 8.4(d), as constituting conduct prejudicial to the administration of justice. Sexual misconduct or sexual harassment involving colleagues, clients, or co-workers may violate Rule 8.4(d).
• It has been held that an attorney who desires to engage in sexual relations with a divorce client, when issues of child custody, support, and distribution of marital assets are at stake, must choose between furthering an intimate relationship or acting as a lawyer for the client. It is impermissible to do both.
• In Maryland, it is fraudulent as to both present and future creditors to enter into an obligation with the intent or belief that the debt will be beyond one's ability to pay when it matures. Md. Code Ann., Com. Law § 15-206 (2000 & 2003 Cum. Supp.).
• An attorney engages in unethical conduct by recommending that clients transfer property for the purpose of hiding assets and defrauding creditors. An attorney violates Md. R. Prof. Conduct 1.2(d) by conveying property to assist a client in avoiding creditors.
• Md. R. Prof. Conduct 1.15(a) requires a client's funds to be held in the escrow account until a respondent attorney has earned a fee. An attorney's failure to place unearned fees into an attorney trust account violated Rule 1.15(a).

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AGC v. Ficker
Discipline & Malpractice

Back 102

• The attorney maintained no diary or tickler system and his only schedule of court cases was a large desk calendar. When the events that gave rise to the charges surfaced, the attorney had three offices. His practice was a high-volume one concentrated on serious traffic violations, often alcohol-related. The attorney hired various associates, none of whom remained in his employ very long or consistently. He would interview most of the clients and assign cases to himself and the associates the day before trial.
• The attorneys assigned would often have never seen the file before and, in most cases, would never have met the client. The complaints filed against the attorney dealt with deficiencies in the way he kept track of cases and assigned them to associates, and the failure to appear in court for scheduled trials or hearings. The court had occasion to reprimand the attorney once before for similar deficiencies.
• Md. Lawyers' R. Prof. Conduct 1.1 requires a lawyer to provide competent representation to a client and defines competent representation as requiring, among other things, thoroughness and preparation reasonably necessary for the representation.
• The requirement of adequate preparation has long been recognized as part of a lawyer's responsibility to provide competent representation, and it is not without significance that, in the current Code of Professional Responsibility embodied in the Maryland Lawyers' Rules of Professional Conduct, the duty to provide competent representation is given the place of honor as the first ingredient in the lawyer-client relationship.

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AGC v. Kimmel
Discipline & Malpractice

Back 103

• The attorneys were not licensed to practice law in Maryland but decided to expand its Pennsylvania-based law firm into Maryland to handle its large volume of automobile warranty lemon law cases. Respondents hired an associate licensed in Maryland on the same day as her initial interview.
• The associate ended up failing to respond to motions compelling discovery in 47 cases filed by her on behalf of respondents' Maryland clients. The associate consented to disbarment in Maryland as a sanction for her misconduct.
• Respondents raised various exceptions to the hearing judge's findings and conclusions that they failed to supervise the associate and failed to respond in a timely fashion to a client's direct inquiry regarding his Maryland case.
-Rule 5.1, 5.3
• The court upheld the findings and conclusions that respondents violated the Rules since numerous warnings or indicators should have informed respondents for the need for more heightened supervision of the associate, including her repeated requests for paralegal assistance, her significant case load, the differences in lemon law case procedure in Maryland, among other factors.

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Attorney v. Client Decisions

Back 104

• Fundamental rights- client decision
• Strategy decision- lawyer decision

Front 105

1. John was charged with murder in Maryland. John has a friend, Fifi, who is a criminal
defense lawyer admitted only in Virginia. Can Fifi interview witnesses in Maryland,
represent John in plea bargaining with the state’s attorneys office, and/or appear at trial in
Maryland circuit court?

Back 105

He needs to obtain temporary permission to appear in court (pro hoc vice)
• Doesn’t need permission to interview a witness in MD – rule states that even if you aren’t admitted in MD, when it reasonably expects to be so authorized, so therefore she can do certain things on temp. basis without being admitted pro hoc vice, on a case that she expects to be admitted pro hoc vice
• In order to rep. someone in a plea bargain, the previous rule may cover you, but it would be safer to get pro hoc vice

Front 106

2. Jack was a member of the Maryland Bar from 1990-2004. He was disbarred in 2004
because he had taken funds from his client trust account to buy jewelry for his girlfriend.
Jack has now been hired by the law firm with which he was formerly a partner to work as
a paralegal. In his role as a paralegal, Jack interviews prospective clients, interviews
witnesses, and negotiates with insurance companies. Is Jack engaged in the unauthorized
practice of law?

Back 106

Cant work for his old law firm
• Cant interview prospective clients
• Can interview witnesses, if it is a different firm
• No negotiating with insurance companies

Front 107

3. Sally is not a lawyer. She opened a storefront office with a sign that reads “Divorces
and Wills.” Sally helps persons complete divorce complaints and draft wills by accessing
a website where such forms and wills are available for free. Sally charges $100 per
divorce and $75 for a will. Is Sally engaged in the unauthorized practice of law?

Back 107

• No because this is something the people can do themselves. She is assisting with the application, not giving any legal advice. Kind of a middle man situation
• She is offering typist/secretarial service
• Is she holding herself out as a lawyer? She might be better off to specify that she isn’t a lawyer
• In filling out the form, she may be giving legal advice (grounds for divorce)
• If she is simply typing, then its fine, but if there is legal advice, then it is a problem with the unauthorized practice of law

Front 108

4. Attorney published the following ad in a newspaper: “I have won over $50 million for
my clients over the past three years. If you are interested in obtaining more money for
your personal injury claim, call me.”

Back 108

• This advertisement may be misleading to the consumer by the ad indicating that if they want more money, contact the lawyer, in violation of MRPC 7.1. the statement has to be true. If the statement is true, ___, creates an unjustified expectation. You can advertise past results, but a disclaimer must be included (past success is no assurance for a potential case)
• If you advertise past results
o Must be true
o Cant be misleading
o Potentially is comparing himself to other lawyers

Front 109

5. Attorney had a newspaper ad with the picture of a dead person with blood all over its
mangled body. The ad said: “We specialize in serious car accidents.”

Back 109

• Almost makes it sound like they caused the accident. Graphic representation
• Cant use the words “specialist”

Front 110

Attorney Client Relationship

Back 110

agency relationship- client is the principle, lawyer is the agent

at will relationship. client always has the right to fire the lawyer (fee may still be owed).
when can the lawyer fire the client? Rule 1.16

Front 111

6. A law firm had a television ad with O.J. Simpson saying: “I know how important it is
to have a good lawyer when you are arrested. That is why I recommend the law offices of
Attorney Q, the criminal’s best friend.”

Back 111

• This is only okay if he is a client of the law firm
• Criminal’s best friend, will do anything for you- may be misleading. May be seen as a slogan. May seem that it will do whatever necessary (maybe illegal)

Front 112

7. A law firm had a television ad which had a man and woman arguing in the kitchen
about who should take out the trash. A voice then appeared which said, “Sometimes
divorce is the only solution. Call us, the Divorce Law Firm; we’re the cheapest guys in
town.”

Back 112

• This will be fine, although distasteful, so long as the “cheapest guys in town” is actually true and not misleading
• Comparison of price- which is fine, but it seems its an improper comparison
• “divorce law firm”- this is a trade name, so it should be fine
• The dramatization is not a problem in MD

Front 113

8. Attorney M was walking along the street when he noticed a small crowd of persons.
He went over and saw his former law school classmate, Fifi, who had been hit by a car. M
went to Fifi and asked her if he could represent her in the personal injury case.

Back 113

-if she was a lawyer, the rule wouldn’t apply. Even if she is a lawyer, the rule may not allow it b/c her mental condition may not be as such to talk about legal counsel. Maybe a personal friend in which the rule doesn’t apply to

Front 114

9. Attorney Q heard that on Friday, Fifi was injured in a car accident in which her
husband had been killed. On Monday, Q sent flowers to Fifi along with a sympathy card
and his business card. On Tuesday, Q sent a letter to Fifi telling her that he was willing to
represent her in the personal injury and wrongful death matters.

Back 114

- not permitted. Out of line. No personal connection there, attempting to solicit business. This is called targeted or direct mail

Front 115

10. Jill is a lawyer admitted in Maryland. Jill has a brief due in the Court of Appeals on
Wednesday morning. On Tuesday afternoon, she must attend a deposition of a witness in
Houston in a case being tried in Baltimore. Jill is billing the clients in both cases $200 per
hour. Jill leaves her home at 8 a.m. and drives to BWI Airport. She boards the airplane at
10 a.m. The flight to Houston is three hours. During two of the three hours, Jill reviews
the brief and calls her secretary to make changes. The other hour of the flight, Jill reads a
magazine. Jill arrives in Houston at noon central time, and takes a cab to the deposition.
Because she is early, Jill eats lunch at a restaurant in the building where the deposition
will take place. The deposition ends at 4p.m. central time. Jill takes a cab to the airport,
and flies home. On the flight back, Jill sleeps most of the way, but works about one hour
on the brief. Jill arrives home at 8 p.m. eastern time. How should Jill bill her two clients
for this day?

Back 115

- the 3 hours she worked on the brief should be billed to the brief client while the remaining hours should be billed to the client for the deposition
- Able to bill for all travel time, inclusive of sleeping time
- Bill for 15 hours- 12 hours to one client for travel time; 3 hours to other client whose brief she worked on
- Must discuss billing arrangements for travel time/expenses with client ahead of time
- Should you charge same rate for travel as you do for normal work hours? Most firms have a different rate for travel
- Don’t charge for sleep time?
- It depends on how you set up billing with scheduling
- Professor doesn’t think that you should be able to double bill for travel time to one client and brief writing for other client

Front 116

11. Jill is a lawyer admitted in Maryland. She was asked by a client to prepare a legal
analysis of the impact of proposed tax legislation on the client’s real estate business. In
order to write a memo providing such analysis, Jill read the proposed bills, read legislative
testimony, and spoke with legislative aides. Jill billed the client $2000 based on 10 hours
of work at $200 per hour. One month later, a real estate firm that had never retained Jill’s
firm called Jill and asked her to prepare an analysis of the same piece of legislation. Jill
figures it will take her about two hours to prepare a memo relevant to this client’s
concerns about the legislation. What should Jill charge the second client?

Back 116

- should charge for the 2 hours
- $400.00

Front 117

12. Jill, a Maryland attorney, was hired on a contingency fee basis to represent X
Corporation which was being sued for employment discrimination based on religion. An
employee of X Corp. (Bill) alleged that he had been fired because he was a Mormon. Bill
is seeking damages of $1 million. X Corp. agreed to pay Jill 2% of any amount under $1
million it will be required to pay Bill. Three months into the representation, X Corp.
learned that Jill is a Mormon. Because of this, X Corp. fired Jill as its attorney. Is Jill
entitled to any fee?

Back 117

• No I don’t think so b/c there was no settlement at that point in time when she was fired..

Front 118

13. Jill is an attorney in Maryland who hired an advertising agency to air television
commercials offering legal services in personal injury work. Jill in fact handles no cases,
but refers all those responding to the ad to other lawyers who have agreed to pay her 25 %
of the 40% contingency fee which they receive. Is Jill’s arrangement proper?

Back 118

FINISH

Front 119

14. Upon passing the bar exam, Jill wanted to open her own law firm. Jill actually had a
number of clients, but had no money for an office or secretary. Jill’s parents offered to
“back” Jill by investing $50,000 in her firm. In return, Jill would give her parents 15% of
her legal fees. Can Jill agree to this arrangement?

Back 119

• Jill cant agree to the arrangement b/c the rules don’t allow fees to be shared with non lawyers
• Jill can set it up to be a loan- b/c there is no sharing of fees.
• Don’t allow equity investments in law firms by non lawyers

Front 120

15. Upon graduation and even after passing the bar exam, Jill was unable to obtain a job
as a lawyer with a law firm. In order to pay her bills, Jill obtained a job as a cosmetics
salesperson at Nordstrom’s. The manager of the store was very impressed with Jill, and
when Jill told the manager of her legal education, Nordstrom offered to set up a counter next to the cosmetics counter where Jill could offer legal advice. Nordstrom offered Jill a
large raise. Is this arrangement proper?

Back 120

• Conflict of interest is at issue
• Non lawyer has an interest in her being there
• Potential confidentiality issue
• Can allow general counsel b/c it is attorneys for the company. Cant do this b/c it involves the public

Front 121

16. Sally came to the “Law Offices of Fifi”. Sally told Fifi that she had killed her cousin
two days ago and threw his body into a nearby lake, and that she planned to kill her
former lawyer next month when he returned from vacation. What are Fifi’s ethical
obligations regarding the confidentiality of the information told to her by Sally?

Back 121

• Cant disclose the past act (the murder)- b/c you cant prevent any harm/death at this point, the harm is already done
• Can disclose the intent to kill her attorney the next month. If one reasonably believes that the murder would occur, attorney has an obligation to disclose or has the option to disclose (check rule 1.6)
• Note- what is required to disclose, not disclose, may disclose is up to each state- varies significantly
• Do have an obligation to tell the potential client that they shouldn’t commit the crime they are considering doing

Front 122

17. Jill came to the law office of Joe, and told him that she planned to shoplift a dress
from K-mart the following day, and that she planned to sell the dress to Veronica for
$5000 who believed the dress was an original Versace design. What is Joe’s ethical
obligation of confidentiality regarding this information?

Back 122

• Property crimes only permit disclosure if the attorney’s services are involved (drawing up a document or notarizing, etc)
• There is no attorney involvement here

Front 123

18. Jack came to the law office of Donna, and told Donna he had murdered a ten year old
girl who had been reported missing. Jack paid Donna a retainer of $2000 to represent him
in the event he was arrested. The next day, Jack was killed in a car accident. The
following day, the girl’s body was found. The next day, Tom was arrested for the girl’s
murder. The prosecutor has stated the case is very strong against Tom. What should
Donna do regarding the information she received from Jack? Does her obligation change
during Tom’s trial? After Tom’s conviction? Just before Tom’s execution?

Back 123

• The fact that the client is dead doesn’t impact confidentiality
• Death has already occurred, since there is no imminent harm, there can be no disclosure
• There can be no disclosure to prevent Tom’s death b/c the attorney’s services are not involved with Tom
• Have to weigh the chances of the confession being made by a crazy person. Suggestion is to go to the judge and run it by him

Front 124

19. ABC Corporation is a plastics manufacturer. Its president, Lola, has told you that it
had released a toxic substance into a nearby lake which is used by the neighboring town
for its supply of water. It is Lola’s belief that the substance is “probably harmless, except
for those whose immune system has been weakened by illness. What is your ethical
obligation of confidentiality?

Back 124

• Can disclose under imminent harm/substantial bodily injury
• Either disclose or don’t disclose. If its something you cant disclose, you cannot drop hints to suggest for further investigation
• Can suggest to the client to try to go to EPA or start clean up acts and tell them you wont turn them in- up to the attorney in MD

Front 125

20. Jill was injured in a car accident and has suffered some injuries she finds very
embarrassing to discuss. She agreed to tell Jim, a lawyer, about them only after Jim
promised confidentiality. Can Jim discuss these injuries with the insurance company
claims adjuster? Can Jim have his secretary type a demand letter setting forth the injuries?
Can Jim discuss Jill’s injuries with Jim’s associate, Todd, who is a social friend of Jill?

Back 125

• Have to disclose to the claims adjuster- implied authority exception, as well as secretary, but not social friend
• Have an obligation to explain to the client that there needs to be some disclosure- they have the option to not bring the lawsuit

Front 126

21. Fifi, an attorney, was accused by the SEC of intentionally filing a false report on
behalf of X Corp. Can Fifi use confidential information received from X Corp. to defend
herself against this allegation?

Back 126

• Yes, can use the confidential information to prove that the documentation isn’t fraudulent

Front 127

22. Fifi, in good faith, had prepared X Corp’s IPO filings with the SEC based on the
information she received from X Corp. After the filing has been completed, X Corp. told
Fifi that some of the numbers were fabricated. What should Fifi do?

Back 127

• May disclose in this situation b/c her services were used (doesn’t have to though)

Front 128

23. Bill is an attorney for X Corp. The Board of Directors asked Bill to talk to various
persons within X Corp. to determine if X Corp’s SEC filings were accurate. Bill met with
Tim, the chief financial officer, and Molly, an accountant in the accounting department.
Both told him the filings were fraudulent at the direction of Max, the chairman of the
board of directors. What should Bill do?

Back 128

• Even though you work for the corporation, are you the lawyer for the employees, no.
• Is it confidential- yes
• There is an exception- what the employees tell you as an authorized investigation its quasi-confidential (its not confidential to the public, but not confidential to the board of directors of the corporation) the board told you to talk to the employees. Not the lawyer for the employees, but you are doing the investigation for the board. the information from the employees can only be disclosed to the board by the attorney. The board can then waive the confidentiality and disclose the information.

Front 129

24. You represent Bob who is accused of armed robbery. Bob has confessed committing
the crime to you but intends to testify he was bowling 25 miles away from the crime scene
at the time of the robbery. Bob has also told you Jim will testify he was bowling with him.
What should you do?

Back 129

FINISH

Front 130

25. Jill comes into your office with a gun. She tells you that she shot her brother. She
gives you the gun. What should you do?

Back 130

FINISH

Front 131

26. Dan was an attorney for X Corp.which was negotiating with Tiger Woods to have
Tiger endorse a new sport drink. Dan negotiated with Tiger’s lawyer who made the offer
to use Tiger’s name and picture on the drink’s label for $500,000. When Dan told X
Corp.’s board about this offer, X Corp. agreed that this was a good deal for it, but X Corp.
did not have the $500,000 and did not have the ability to obtain it from the bank. The
board asked Dan whether he would lend X Corp. $500,000 for this deal. In turn, X Corp.
agreed to pay Dan $50,000 per year for ten years plus 10% of the profits from the sale of
the drink for twenty years. Can Dan accept this offer?

Back 131

• 1.8a3
• Has to be a really clear understanding of what the deal is, the role of the attorney, all must go into a writing (procedural obligation)
• Informed consent- must have a reasonable chance to seek other council, but not required to 1.8a2
• A1- the deal must be reasonable and fair to the client (substantive obligation)

Front 132

27. Tom asked Jill, a lawyer, to draft a will for him. Tom listed ten beneficiaries of his
estate, including Jill. Tom intends to give Jill $1000 in his will. Can Jill draft this will?

Back 132

• She cant draft the will under 1.8c
• Question as to whether 1000 was substantial
• 1000 was part of the will

Front 133

28. Tom asked Jill, a lawyer, to draft a will for him. Jill charged Tom $200. Tom was so
happy with the will, Tom gave Jill a plasma television valued at $5000. Can Jill accept the
television?

Back 133

• The Tv was a substantial gift
• Tv was not part of the will
• The tv was not solicited
• There is no instrument involved in this case- the lawyer isn’t preparing a title exchange for the tv
• You may accept a gift from a client if it

Front 134

29. John Salvo was arrested and charged with the murder of five persons. Two television
producers contacted Salvo upon his arrest and expressed an interest in creating a reality
TV show about his crimes. Salvo contacted Jill, a criminal defense lawyer, to represent
him in the murder cases. Jill’s fee for a murder case is typically $50,000. Salvo does not
have $50,000, but has offered to assign to Jill the right to sell his story to television. Jill
estimates this is worth about $50,000. Can Jill agree to this?

Back 134

• Subject to 1.8d
• To eliminate issues of attorney being more concerned about the media rights than proper representation
• Issue of confidentiality- but it probably can be waived
• Attorney will have an incentive to allow the case to go crazy, b/c the crazier, the better the media rights/movie

Front 135

30. Fifi is a personal injury lawyer. Bob was injured in a car accident. The defendant’s
insurance company has offered $200,000, but Bob and Fifi agree that this offer is about
$100,000 too low. Bob is facing eviction from his apartment because he has been out of
work and has depleted his financial resources. Bob also has no money to pay for his
medicine. Bob was examined by Dr. Jones who Fifi often uses as an expert witness. Bob
was treated by his own doctor, Dr. Smith. Bob has asked Fifi to lend him money to pay
for his rent and medicine, and to pay the medical bills of both Dr. Smith and Dr. Jones.
Can Fifi agree to Bob’s request?

Back 135

• The only thing a lawyer can pay for is a litigation cost- 1.8e
• If the client owes you money for any reason, you have a greater incentive to settle more quickly, and most likely for less to get your money
• May be to protect the attorney- if you help one, you may help others- slippery slope- bright line rule
• Can pay for litigation expense- such as a suit and cleaning up the client- the blurry line is a litigation expense
• Can help the client apply for a loan to help cover their own personal expenses (rent, food, etc), but cant give the money themselves

Front 136

31. Lola, a fifteen year old high school student, was arrested for possession of marijuana.
Lola along with her mother, Fifi, came to your office for you to represent Lola. You have
agreed to represent Lola for $2000. Fifi paid the $2000, and left the office. You and Lola
discussed the case. The next day, Fifi called and asked you whether Lola had discussed
cocaine use. Fifi also suggested that Lola plead guilty to “teach her a lesson.” What should
you tell Fifi? Was it proper to accept the $2000 from Fifi?

Back 136

• This is interfering with the attorney client relationship
• Decision to plead guilty has to be made with the client, and not the mother b/c that interferes with the atty-client relationship/confidentiality
• There is no exception for people who are paying the bills to “breach” confidentiality
• Insurance company situation- special- who is the client? The individual is the client, not the attorney hired by the insurance company
• This comes from MRoPC 1.8

Front 137

32. Max, an attorney, was retained by five passengers on a cruise ship all of whom
became ill from food poisoning. The ship’s insurance company offered Max $100,000 for
all five clients. What should Max tell his clients?

Back 137

• Aggregate offer creates problems, not aggregate representation
• If one person deserves 80k and one deserves 30k, people wont be able to get what they deserve
• 1.8g
• Cannot tell each client that 100k will be shared among the 5 clients
• Comment 13- differences in willingness to make/accept an offer of settlement is an issue with class action/multiple representation cases

Front 138

33. Karen, an attorney, offered her client two fee arrangements: $200 per hour or $150
per hour and an agreement by the client not to sue Karen for malpractice. Moreover,
Karen’s standard fee agreement provides that all fee disputes and malpractice claims be
submitted to arbitration.

Back 138

• 1.8h
• Cant do this unless they are independently represented
• Is sending the claim to arbitration limiting liability for malpractice? In MD, agreements for arbitration for malpractice isn’t limiting liability

1.8h2- shouldn’t settle claim or potential claim with current or potential client unless they are advised in writing that they should get outside counsel for advice- for malpractice liability. If they get another lawyer, then the case has to be settled through them. Cant settle with the client once they have accused the lawyer of malpractice

Front 139

34. Bill and Susan are lawyers and married to each other. Bill is representing Tom who is
suing Jack for breach of contract. Can Susan represent Jack? What if Bill and Susan were
not married, but living together? Dating and sexually involved? Sexually involved but not
dating?

Back 139

• Comment from 1.7. if they are married they can be opposing counsel if the clients have informed consent
• Not high chances that a client is going to agree
• May be a chance of breach of confidentiality
• Issue of loyalty
• May be a lack of advocacy to satisfy the marital relationship
• If they are not married, but living together? Dating and sexually involved? Sexually involved but not dating?- the rule doesn’t apply to this in MD.

Front 140

35. Joe and Bob were arrested and charged with felony murder in the robbery of a
Blockbuster video store that resulted in the death of the clerk. Both Joe and Bob want Jill
to represent them. Can Jill represent both Joe and Bob in this criminal case?

Back 140

• 1.7a2- materially limited. They potentially may blame each other, so you cant defend both in that situation
• Situation where a atty can represent 2 co-defendants- when there is a waiver from both of the co-defendants. 1.7b
• FYI..many states wont let you represent 2 co-defendants in a capital case
• The rule permits waiver even if there is a conflict
• Problem still- both clients are charged for felony murder, how would you handle this? What if the both have a conflicting alibis? – there is little chance that both defendants were not at the scene of the crime. What if they have the same alibi?- no conflict.
• Comments say that ordinarily an atty shouldn’t represent 2 co-defendants b/c of the great risk. However as a matter of law there is no conflict. If the facts do pose a conflict, then an attorney cannot represent 2 co-defendants
• Waiver is only permitted if the lawyer reasonably believes that there is no conflict.
• Even if the clients are willing to waive, you cant ask for a waiver if you don’t reasonably believe that you cant do the job.
• Can the prosecution challenge the joint representation? Yes, the prosecution has an interest in the joint representation.

Front 141

36. Jack and Jill have been married for four years. After four years of disagreement, they
are now in total agreement --they want a divorce. They both also agree that they want Fifi
to represent both of them in handling the divorce. They see no conflict because they have
agreed that Jill will have custody of their one child, and have agreed that Jack will pay
child support of $1000 per month. Can Fifi represent both Jack and Jill?

Back 141

• 1.7 even if the opposing parties consent to using the same attorney b/c they think there is no conflict, they cant use the same counsel
• The parties may be in agreement but are directly adverse
• There can be no waiver of this b/c of 1.7b3

Front 142

37. Lola, an attorney, was retained by Bill who is suing his former employer for
employment discrimination based on sexual orientation. A few months after Lola began
her representation of Bill in the employment case, Bill was involved in a car accident
where he ran a red light and crashed into Susan. Susan wants to retain Lola to sue Bill for
her personal injuries. Can Lola represent Susan in the personal injury matter?

Back 142

FINISH

Front 143

38. Bob, an attorney, represented Jack in a divorce two years ago. The divorce matter is
over. Max has asked Bob to represent him in personal injury case against Jack. Can Bob
represent Max against Jack?

Back 143

FINISH

Front 144

39. Larry was a teacher who sued the Baltimore City School Board for employment
discrimination. The school board was represented by Joe of the law firm Joe and Moe.
Larry’s lawyer was Jill of the law firm Jack and Jill. After filing the complaint and
engaging in some depositions and other discovery, Jill quit the firm of Jack and Jill and
joined Joe and Moe. Was it proper for Jill to accept a job with Joe and Moe? Can Joe
continue to represent the School Board?

Back 144

FINISH

Front 145

40. Fifi came to the law office of Sally. During the initial interview, Fifi told Sally that
she was interested in obtaining a divorce from her husband Fred. Fifi told Sally that she
had been involved in an affair with a co-worker at the factory where she was employed.
Fifi spoke with Sally for about 30 minutes, but told Sally she did not want to sign a
retainer agreement until she thought about it that night. The next day, Fifi called Sally and
told her she had decided not to hire her. The next day, Fred came to Sally’s law office to
talk about getting a divorce from Fifi because he suspected she was having an affair with
someone at work. Can Sally or any other lawyer at Sally’s firm represent Fred?

Back 145

FINISH

Front 146

41. During an audit of Dan’s federal income tax return, the IRS disallowed a deduction
which Dan took for supporting his cat. Dan has told you that his cat is like a child to him
and he does not know why the IRS is seeking additional tax payment from him. Dan
wants you to defend him in court. Would it be proper for you to accept Dan’s case?

Back 146

FINISH

Front 147

42. Bill sold his used car to Joe. Joe is interested in retaining you because the car blew its
transmission one week after Joe bought it. Joe does not know if Bill knew about the
transmission problem but wants to sue anyway. Joe is also interested in suing for negligent
infliction of emotional distress, fraud and deceit, and is interested in punitive damages.
Would it be ethical to accept Joe’s case?

Back 147

FINISH

Front 148

43. Tim, a Maryland resident, is interested in suing Jim for the tort of alienation of
affection because Jim had an affair with Tim’s girlfriend. Tim’s lawyer has found two
cases that seem relevant. One case from Kansas held that the tort of alienation of affection
no longer is recognized in Kansas. In the other case, the Texas Supreme Court held that
the tort of alienation of affection was only available to married persons. At a hearing on
defendant’s motion to dismiss, Jim’s lawyer did not mention either case. Is Tim’s lawyer
under an ethical duty to disclose these cases?

Back 148

FINISH

Front 149

44. Larry and Moe were arrested for burglary. The prosecution offered to drop the charge
against Moe if he testified against Larry. The prosecution also offered to pay the travel
expenses, daycare expenses, hotel room, food expenses, and lost wages of a witness.
Additionally, the prosecution hired Dr. Smart, a psychiatrist as an expert witness because
Larry planned to raise the defense of insanity. Dr. Smart’s fee is contingent on a guilty
verdict. Has the prosecution acted properly?

Back 149

FINISH

Front 150

45. Is the following closing argument proper? “I can tell that the plaintiff was lying on the
stand today. I’ve known many liars in my life, and believe me, plaintiff is a liar. I know a
liar when I see one, and I am looking at one right now.” (looking at plaintiff)

Back 150

FINISH

Front 151

46. Lola, a lawyer, is representing Tim in an employment discrimination case filed by
Bill. Lola has told Tim, Tim’s wife, an employee of Tim, and a neighbor of Tim to refuse
to discuss the facts of the case with anyone. Has Lola acted ethically?

Back 151

FINISH

Front 152

47. Bill represented Tom in a personal injury trial held before a jury. The jury returned a
verdict against Tom for $100,000. Bill saw a member of the jury (Joe) in the supermarket
one week after the trial was over. Bill went over to Joe and asked him “How could you
have believed Max?” Max was the plaintiff in the case. Did Bill act properly?

Back 152

FINISH

Front 153

48. Alan, a tenth grade school teacher, was arrested for rape of two of his students.
Alan’s attorney, Ashley, held a news conference about one week before trial. Ashley told
the press that the sex was consensual and that the two alleged victims were “very
experienced sexually.” Did Ashley act properly?

Back 153

FINISH

Front 154

49. Lola, a lawyer, is representing Jill in Jill’s lawsuit against Bill for defamation. Bill
had told Max that Jill was a cocaine user. Lola, in fact, had seen Jill use cocaine. Bill’s
lawyer intends to call Lola as a witness. Can Lola or her law partner, Fifi, represent Jill at
trial?

Back 154

• Lola cant be the lawyer for the defendant
• MRPC 3.7
• Could her partner in the law firm? Would there be a conflict of interest?
• No, partner can’t represent b/c she would have to cross examine the other lawyer from the same firm
• Law firm is disqualified if the lawyer who is disqualified is going to testify against the client. If in favor of the client, other law firm lawyers can represent (just direct, no cross)

Front 155

50. Lola, a lawyer, is representing Jill in Jill’s lawsuit against Bill for defamation. Bill is
represented by Tom. Lola called Bill and asked if he would be willing to discuss a
settlement. Bill agreed. Did Lola act properly?

Back 155

• No she didn’t act properly
• Cant call the other party with representation- only their attorney
• The attorney can only talk to the client of the other side, if the attorney says they can. Only the attorney can give the waiver, not the client
• MRPC 4.2

Front 156

51. Tim, a lawyer, is representing Joe in his lawsuit against XYZ Corp. alleging age
discrimination. Tim asked Bob, president of XYZ, whether he wanted to discuss a
settlement. Bob agreed to meet with Tim. Tim also called Jill, a former employee of XYZ,
and asked Jill whether she was aware of any policy of XYZ to not promote employees
over the age of fifty. Jill told Tim she had seen a memo on this issue before she retired.
Has Tim acted properly?

Back 156

• MRPC 4.2b
• Lawsuit against corporation
• Lawyer talked to president of the corporation and former employee of the corporation
• The lawyer for the corporation is not the lawyer for the president or the former employee of the corporation
• The lawyer cant talk to the president
• The lawyer cant talk to current employees
• The former employee isn’t covered by this rule
• Under the comments- must look at 4.4b. under this rule, the former employee cant be contacted if they have privileged/protected from disclosure or evidentiary privilege information

Front 157

52. Bill is the landlord of a large apartment complex. Lola is a lawyer who represents a
group of African-Americans who allege that Bill refuses to rent to non-whites. Lola, who
is African-American, posed as a potential tenant and met with Bill to try to rent a unit in
Bill’s apartment complex. Bill told her there were no vacancies. Lola then had her law
partner, Pat, who is white, pose as a prospective tenant. Bill agreed to rent to Pat. Did Lola
and Pat act properly?

Back 157

• They have a witness problem- they can’t be witnesses for this trial
• Lawyer shouldn’t get personally involved with the facts of the case
• Since the lawyers couldn’t do it themselves, they could have sent others
• MRPC 4.3- the lawyer has to make it clear to the landlord that they are a lawyer and what the lawyer is there for

Note:
• MRPC 4.2- govt. official can meet with a client without permission from OAG if the official can resolve the issue
• If you have obtained counsel, can another lawyer give a second opinion? Yes. The lawyer isn’t representing the client who is seeking second opinion. This is permitted by 4.2
• Can the D lawyer talk to a witness for the prosecution without the prosecutor’s permission. Yes, b/c the witness isn’t being represented by the state. If the witness is represented, then you must speak to their lawyer

Front 158

53. Jim, a lawyer, is representing Bill in a lawsuit against Tim. Tim does not have a
lawyer. Jim called Tim, and told Tim that he wanted to discuss Bill’s lawsuit. Jim met
with Tim. After Tim told Jim about the case, Jim recommended that Tim settle the case
with Bill. Did Jim act properly?

Back 158

• The lawyer can meet with him, but cant give him any legal advice (which he did b/c he wanted them to settle the case)
• If a person is unrepresented, first suggest that they get a lawyer
• If they do, talk to the lawyer. If not, after they thought about it and refuse it, then you can get the facts from the other person. At some point you can start talking about settling. If they ask you what you think, need to tell them that you advise they get a lawyer. Cant give them legal advice, but can settle with them. Cant show them that they are disinterested

Front 159

54. Sally represents the defendant manufacturer of a birth control device that plaintiff
alleges has caused infections. During cross examination of plaintiff, Sally asked the
plaintiff to identify all the men with whom she had engaged in sexual intercourse. Was
Sally’s question proper?

Back 159

• MRPC 4.4
• Shouldn’t ask questions that only have the purpose of embarrassing

Front 160

55. Lola, a lawyer, is representing Tim in defense of a murder charge. Which of the
following decisions are for Lola to make and which are for Tim to make? Whether to
plead guilty; waive a jury trial; testify on his own behalf; call a friend Jim to testify; which
jurors to strike; to request a change of venue; and to waive opening statement.

Back 160

• Rule 1.2
• Certain decisions for lawyer, certain for client
• Fundamental right- client decision
• Strategy decision- lawyer decision

Front 161

56. Jill is the court appointed attorney for a fourteen year old boy (Joe) whose parents are
divorcing and fighting over custody. Joe told Jill that he wants to live with his father
because his father lets him do whatever he wants. Joe complains that his mother makes
him do his homework, won’t let him smoke cigarettes in the house, and won’t let him
drink beer. What should Jill do?

Back 161

• Rule 1.14
• When a client is a minor, a normal client relationship may not be possible
• Rule 1.16 (withdrawing representation)- can w/draw if there is a fundamental disagreement with your client
• You can withdraw or put the child on the stand to let the child testify to why they want to go to the father’s
• It is assumed that the court will make the right decision

Front 162

57. Jim is a criminal defense attorney who represents Jill who is charged with shoplifting.
This is Jill’s first brush with the law, and a plea of guilty would result in at most a short
probationary period. Jim does not believe, however, that Jill is mentally competent to
enter a plea. If found not mentally competent, Jill will be admitted to a mental institution
for an indefinite period. What should Jim do?

Back 162

• Rule 1.14 Comment 8
• This is a question of degree. If it is a close call, then maybe accept a plea
• If she is so far out, then order an evaluation done for the client’s condition

Front 163

58. Bob owns a ten unit apartment house. Bob asked his lawyer, Frank, to draft a
standard lease that he can use. Bob told Frank that he wants the lease to contain a
provision that provides that if the tenant reports a housing code violation, this is a
sufficient basis for the tenant to be evicted and forfeit his security deposit. Frank told Bob
that such a clause is unenforceable. Bill responded that he knows this, but most tenants do
not, and therefore the lease provision will be helpful to him, although he knows he cannot
enforce it. What should Bob do?

Back 163

• This depends…

Front 164

59. Jack and Jill have been partners in a software design company for five years. Their
business is based on two contracts both worth about $200,000 per year. One contract is
with X Corp. and the other is with Z Corp. Jack and Jill have decided to split up and go
into business alone. You have been hired to negotiate the break-up of the partnership by
Jack. You have learned from a friend that X Corp. is on the verge of bankruptcy and that it
plans to close shop in about one month. Jill is represented by Tom in the negotiations.
You and Tom meet, and Tom proposes a settlement. Jill will take the X Corp. contract,
Jack will take the Z Corp. contract, and both will sign releases. What should you do?

Back 164

• Would it be fraudulent to not disclose information that would affect the deal?
• Rule 4.1
• Acting on better information isn’t fraudulent
• The other attorney proposed it, so there is no issue of an attorney knowing that this may be fraudulent

Front 165

60. Bill has been hired to bring a medical malpractice action against Dr. No on behalf of
Jill. Bill wrote a letter to Dr. No’s lawyer to discuss a settlement before a complaint is
filed. Dr. No’s lawyer, Jim, agreed to meet with Bill. Before their settlement meeting,
based on his research, Bill has concluded that the claim has not been filed within the
period required by the relevant statute of limitations. Bill and Jim meet, and Bill presents
his evidence regarding Jill’s injuries. Bill tells Jill he will file the complaint in ten days
unless a settlement offer is received. The next day, Jim calls Bill and offers to settle the
case for $20,000. Bill had estimated Jill’s damages to be about $50,000. What should Bill
do?

Back 165

• Silence can prove deceit if there is a duty to speak
• Duty is to the client to shut up and settle the case
• Shouldn’t say that you are going to file the case, knowing that the SOL has already run, might be considered frivolous

Front 166

61. Tim was a customer at Bob’s pizza parlor when he was severely injured when a pizza
oven exploded. After his release from the hospital, Tim called Bob and told him he was
planning to sue. Bob told Tim that Lulu was his lawyer. Tim then called Lulu, and told
Lulu that he did not want his own lawyer, and he wanted to settle the case. Lulu agreed to
meet with Tim. Before her meeting, Lulu met with Bob and both agreed that any
settlement in the $50,000 range would be acceptable. When Tim met with Lulu, Tim
demanded $1000 to settle the case. What should Lulu do?

Back 166

• Push Tim to get a lawyer
• If he doesn’t, he cant do anything
• Don’t push the settlement
• Suggest his to get the settlement looked at by a lawyer, give him 10 days to review, etc
• There is nothing fraudulent about agreeing to this settlement
• You don’t have an obligation to tell opposing counsel that your client will settle for more

Front 167

62. Assume same facts as above, except that Tim was represented by a lawyer who
demanded to settle for $45,000, and Lulu responded that her client would never settle for
more than $30,000. Did Lulu act properly?

Back 167

• Yes, according to 4.1- statements in terms of price during negotiations that would normally constitute fraud, isn’t in negotiations

Front 168

63. Cathy is a personal injury lawyer in the products liability area. Cathy represented
John who was injured by a can opener manufactured by Black& Decker. The lawyer for
Black& Decker offered to settle the case with John but only if Cathy agreed not to
represent any other plaintiffs who might be injured by the same can opener. Is this offer
proper?

Back 168

• No
• Rule 5.6b- not allow to agree to a restriction in practice as a settlement term

Front 169

Malpractice

Back 169

discipline is what we have been talking about this semester. there doesn't have to be an injury

malpratice is a civil lawsuit brought by a client who has been injured. this is a negligence case
1- is their a duty owed? (only owed to a client)
2- breach of the standard of care (typically going to need an expert witness as to what is the standard of care and often times the rules that we have discussed are used to help find the standard of care, preamble section 20)
-damages is required

malpractice insurance:
-not required except in oregon (only state)
-