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560 Cards in this Set
- Front
- Back
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Question
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Answer
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Violation of the Rules of Professional Conduct
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"It is professional misconduct for a lawyer to:
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(3) Use the acts of another person to commit a violation."
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Criminal Acts
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"A lawyer is subject to discipline for committing a criminal act that reflects adversely on his honesty
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"Dishonesty
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Fraud
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Conduct Prejudicial to the Administration of Justice
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"This rule is rarely invoked because nearly all of the offenses that would arise under it (e.g.
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Stating or Implying Ability to Improperly Influence Officials
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A lawyer must never state or imply that he has the ability to improperly influence a government agency or official or to achieve results by means that violate the law or legal ethics rules.
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Assisting a Judge in Violation of Judicial Code
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A lawyer is subject to discipline for knowingly assisting a judge or judicial officer in conduct that violates the Code of Judicial Conduct or other law.
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Duty to Report Professional Misconduct
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"A lawyer who KNOWS that another lawyer has violated the Rules of Professional Conduct in such a way that it raises a substantial question as to that lawyer's honesty
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Knowledge
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"ACTUAL knowledge
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Substantial
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"""A matter of clear and weighty importance."" ABA Model Rules Terminology"
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Exception for Confidential Knowledge
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"The requirement to report known instances of misconduct does not require disclosure of information protected by the confidentiality rules. Thus
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Disciplinary Process - Complaint
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"Disciplinary proceedings against a lawyer begin when a complaint is made to the state disciplinary authority (usually the state bar). Complaints are often brought by aggrieved clients
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Disciplinary Process - Screening
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"If the complaint is without merit
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Disciplinary Process - Hearing
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"If there is a hearing on the complaint
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The exclusionary rules of criminal law do not apply in disciplinary proceedings. Thus
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evidence obtained through an illegal search is admissible. A lawyer may
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The burden of proof is on the party prosecuting the charge
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and most states require proof of the charge beyond a preponderance of the evidence (but less than beyond a reasonable doubt). Most states also require that only evidence admissible under the rules of evidence be considered; thus
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Disciplinary Process - Decision and Review
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"After the hearing
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Disciplinary Process - Sanctions
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"The most common sanctions imposed on a lawyer found to have committed professional misconduct are:
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(1) Private or public reprimand or censure
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which is an acknowledgment of misconduct that goes on the lawyer's record with the disciplinary authorities;
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(2) Suspension of the lawyer's license to practice for a definite period of time
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at the end of which the right to practice is automatically reinstated; and
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(3) Disbarment
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which is the permanent revocation of the lawyer's license to practice. A disbarred lawyer may
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Other sanctions available include probation
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restitution
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Choice of Law in Disciplinary Proceedings
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"If the conduct in question occurred in connection with a proceeding that is pending before a tribunal
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Effect of Sanctions in Other Jurisdictions
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"A suspension or disbarment in one jurisdiction does not automatically affect a lawyer's ability to practice in another jurisdiction.
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Professional discipline imposed by one state is not necessarily binding on another. Most states recognize the determinations of lawyer misconduct by sister states
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but they do not agree on the reasons for recognition. The preferred view is that sister states accept disciplinary action by one state as conclusive proof of the misconduct
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Each federal court in which a lawyer is admitted to practice must make an independent evaluation of the lawyer's conduct. The fact that a lawyer has been disciplined by a state
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however
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Disability Proceedings
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"A lawyer who is incapacitated by an impairment such as substance abuse poses a particular risk of harm to clients
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Unauthorized Practice by Lawyer
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"A lawyer who is admitted to practice law in one jurisdiction is not
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(2) establish an office or other systematic or continuous presence for the practice of law in that jurisdiction."
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Permissible Types of Temporary Multi-Jurisdictional Practice
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"If a lawyer is admitted to practice in one state
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(2) Special Permission to Practice in Local Tribunal - An out-of-state lawyer may request special permission from the tribunal to handle a matter there. Commonly called admission ""pro hac vice
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"" which means admission for purposes of this matter only. The rules may require you to associate a local lawyer
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(4) Other Temporary Practice Arising Out of Practice in Home State - must be reasonably related to lawyer's home-state practice."
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Permissible Types of Permanent Multi-Jurisdictional Practice
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"(1) Lawyers Employed by Their Only Client - May set up legal services in a state they are not admitted to practice in to render legal services to their employer
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(2) Legal Services Authorized by Federal or Local Law - For instance
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having an office in Florida
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Consequences of Multi-Jurisdictional Practice
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"A lawyer who is admitted to practice in one state only
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Unauthorized Practice by Nonlawyers
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"A person not admitted to practice as a lawyer must not engage in the unauthorized practice of law
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"Is it ""practice of law?"""
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"Important considerations in determining whether the practice of law is involved include:
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(3) whether the activity is one traditionally performed by lawyers."
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Activities Constituting Law Practice
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"(1) Appearing in judicial proceedings
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(3) Drafting documents that affect substantial legal rights or obligations (e.g.
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contracts
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Preparing an estate plan is generally considered the province of lawyers
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and some courts have also held that nonlawyer clinics on how to obtain a low-cost divorce constitute unauthorized practice."
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Activities Not Constituting Law Practice
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"State and federal agencies often permit nonlawyers
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Tax Advice
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"Giving advice on tax law would probably constitute the unauthorized practice of law
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Consequences of Unauthorized Practice
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"A nonlawyer who engages in the unauthorized practice of law is subject to several sanctions
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Delegating Work to Nonlawyer Assistants
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"A lawyer may delegate tasks to a paralegal
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Training Nonlawyers for Law-Related Work
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"A lawyer may advise and instruct nonlawyers whose employment requires a knowledge of the law
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Helping Persons Appear Pro Se
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A lawyer may advise persons who wish to appear on their own behalf in a legal matter.
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Assisting a Suspended or Disbarred Lawyer
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"A lawyer violates Model Rule 5.5 (a) if he assists a lawyer whose license has been suspended or revoked in practicing law. It is proper to hire a suspended or disbarred lawyer to do work that a layperson is permitted to do
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Creating the Lawyer-Client Relationship
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"Lawyers are generally free to refuse service to any person for any reason. A lawyer-client relationship arises when:
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(2) A person manifests an intent to have the lawyer represent him
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the lawyer fails to make clear that he does not want to undertake the representation
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(3) A tribunal appoints a lawyer to represent a client."
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Implied Assent and Reasonable Reliance
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The lawyer's assent is implied when he fails to clearly decline representation and the prospective client reasonably relies on the representation. Reasonableness of the reliance is a question of fact.
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Court Appointments
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Trial and appellate courts often find it necessary to appoint lawyers to represent indigent clients and clients with unpopular causes. A lawyer must not seek to avoid such an appointment except for good cause.
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Examples of Good Cause to Avoid Court Appointments
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"(1) Violation of Law or Disciplinary Rule - A lawyer must decline a court appointment if to accept it would require the lawyer to violate a law or disciplinary rule.
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(3) Personal Inability to Represent Client Effectively - A lawyer may seek to be excused from a court appointment if the lawyer finds the client or the cause so repugnant that the lawyer-client relationship would be impaired or the lawyer could not represent the client effectively."
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Duty to Reject Certain Cases
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"A lawyer must refuse employment in the following situations:
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(2) Unsupportable Factual or Legal Position - Must not make a frivolous claim. It is not frivolous if the lawyer can make a good faith argument - also not frivolous just because the lawyer doesn't have all the facts at the outset
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but expects to develop them during discovery.
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(4) Strong Personal Feelings - If lawyer's personal feelings about a case are so strong that they would impair his ability to effectively represent the client
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he must refuse the case.
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(5) Impaired Mental or Physical Condition - A lawyer must decline a case if his mental/physical condition would materially impair his ability to represent the client."
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Duties Owed to Prospective Client
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"When a person discusses with a lawyer the possibility of forming a lawyer-client relationship and no such relationship ensues
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(1) Protect the prospective client's confidential information
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which includes declining to represent other clients in the same or a related matter if the confidential information would be harmful to the prospective client;
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(3) Use reasonable care in giving the person legal advice
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such as whether the claim has merit
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Ethical Obligation to Accept Unpopular Cases
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Lawyers have an ethical obligation to help make legal service available to all who need it. A lawyer can fulfill this obligation by accepting a fair share of unpopular matters or indigent or unpopular clients.
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When to Agree on Fee
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"When a lawyer has not regularly represented the client
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Reasonableness of Fee
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"A court will not enforce a contract for an unreasonably high attorney's fee or an unreasonably high amount for expenses
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(4) The likelihood
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if apparent to the client
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(9) The experience
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reputation
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(10) Whether the fee is fixed or contingent (a contingent fee can be higher because it requires the lawyer to take a gamble)."
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Items That May and May Not Be Billed
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"The attorney must disclose the basis on which a client will be charged for legal services and expenses
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Collecting and Financing Attorneys' Fees
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"(1) Payment in Advance - May require this
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(2) Property for Services - This is OK
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provided it doesn't cause any kind of conflict. Subject to scrutiny because it may be a business transaction between the lawyer and the client.
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(4) Credit Arrangements and Security - May allow the client to pay a legal fee by credit card
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and may participate in a bar association program that enables clients to finance fees through bank loans. A lawyer may also take an interest-bearing promissory note from a client to secure the payment of fees
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Contingent Fees
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"Some states have set statutory limits on contingent fees percentages.
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Contingent fee must be reasonable in amount; moreover
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a lawyer must not use a contingent fee when the facts of the case make it unreasonable to do so.
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(4) What expenses the client must pay
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whether or not she wins the case.
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After the case
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must give the client a written statement showing all calculations."
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Fee Disputes
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"In seeking compensation from a client
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(3) Arbitration or Mediation"
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Fee Splitting with Other Lawyers
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"As a general rule
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(3) Certain Splits with Lawyers Outside Firm - if the lawyers worked together on the case IF the total fee is reasonable
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the split is in proportion to the services performed by each lawyer
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Forwarding or Referral Fees
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Lawyer is prohibited from paying anyone - including another lawyer - for recommending him or referring a matter to him.
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Decisions to Be Made by Client
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"When a client brings a legal problem to a lawyer
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(5) Whether to appeal."
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Limits on Lawyer's Responsibility and Authority
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"A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances
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"Telling the Client ""No"""
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"When a lawyer discovers that her client expects assistance that violates a law or legal ethics rule
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Discovering a Client's Illegal Conduct
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"When a lawyer discovers that a client has begun an illegal course of action and the action is continuing
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Lawyer's Duties to a Client with Diminished Capacity
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"Normally
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Protective Action and Appointment of Guardian (Clients with Diminished Capacity)
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"When the client has diminished capacity and faces a substantial risk of physical
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Informed Consent
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"""Informed Consent"" means that the client agrees to a proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives."
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Information About Status of the Matter and Means to be Used
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"The lawyer must keep the client reasonably informed as to the status of the matter and about the means by which the lawyer plans to accomplish the client's objectives. If the lawyer must make an immediate decision
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Requests for Information
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"If the lawyer keeps the client properly informed of developments in the matter
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Consultation About Illegal or Unethical Conduct
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"If the client expects the lawyer to do something that is either illegal or unethical
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Withholding Information from Client
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"A lawyer may delay the transmission of information to a client if the client would be likely to react imprudently to an immediate communication. The lawyer must not
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A court rule or order may forbid a lawyer from sharing certain information with a client
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and the lawyer must comply with such a rule or order."
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Terminating the Lawyer-Client Relationship
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"Once established
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(2) In some situations
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the lawyer MUST withdraw; and
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(3) In some situations
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the lawyer may withdraw."
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Client Fires Attorney
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"The clients complete trust is an essential part of any attorney-client relationship. The law thus allows the client to fire the attorney at any time
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In the case of a contingent fee
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the lawyer is still entitled for the reasonable value of the work done before the firing - however
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Court Permission to Substitute Attorneys
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"After a lawsuit has been filed
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Mandatory Withdrawal
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"(1) An attorney MUST withdraw if the attorney's mental or physical condition materially impairs the attorney's ability to continue representing the client.
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(2) If to continue with the representation will require the attorney to violate a law or disciplinary rule
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the attorney must withdraw."
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Permissive Withdrawal
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"An attorney may withdraw from representing a client for any reason if it can be done without material adverse effect on the client's interests or if the client consents. In addition
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(7) Other Good Cause"
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Attorney's Duties Upon Termination of Representation
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"An attorney who withdraws from a matter must comply with local laws that require notice to or permission of the tribunal before withdrawal. Moreover
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(4) Returning all papers and property to which the client is entitled."
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Competence
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"Factors in Determining Requisite Skill:
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(5) Whether it is feasible to refer the matter to
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or associate or consult with
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If the requisite competence can be achieved by reasonable preparation
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the lawyer may accept representation despite lacking competence in the field initially.
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In an emergency
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a lawyer may assist the client
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To handle a matter competently
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a lawyer must inquire into and analyze the facts and legal elements of the problem
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Lawyers should take reasonable steps to keep abreast of current literature and developments in the fields of law in which they practice."
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Diligence
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"A lawyer must act with reasonable diligence and promptness in representing a client.
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Diligence - A lawyer should pursue a matter on the client's behalf despite opposition
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obstacles
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Once a lawyer agrees to handle a matter for a client
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the lawyer must see the matter through to completion (unless
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Untimely death or disability of a solo practitioner can create havoc for her clients. To prevent that
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every solo practitioner should designate another competent lawyer to review the clients' files
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Can a single incident of violation of the rules regarding competence or diligence be sufficient to impose discipline?
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Yes - there is no requirement for a pattern of misconduct. One single incident will suffice.
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Malpractice Action vs. Disciplinary Matters
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"These differ in three ways:
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(1) In a malpractice action
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the forum is a civil court
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(2) In a malpractice action
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the attorney's adversary is an injured plaintiff
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(3) The purpose of a malpractice action is to compensate the injured plaintiff
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not to punish the attorney
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Ethics Violation as Evidence of Legal Malpractice
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"A lawyer's breach of an ethics rule does not automatically or presumptively mean that the lawyer has committed malpractice. Courts do
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Theories of Malpractice Liability
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"(1) Intentional Tort - Fraud
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(2) Breach of Fiduciary Duties - Duties of loyalty
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confidentiality
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(4) Negligence (Most Common) - Under this theory
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plaintiff must establish normal elements of a negligence case: duty
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Duty of Due Care (Malpractice Liability - Negligence)
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"Standard of care is the competence and diligence normally exercised by attorneys in similar circumstances. If the attorney represents to a client that he has a greater competence than other attorneys undertaking similar matters (i.e.
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Breach of Duty of Due Care (Malpractice Liability - Negligence)
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"An attorney is liable for negligence
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An attorney is expected to know the ordinary
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settled rules of law known to practitioners of ordinary competence and diligence. Furthermore
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It is a breach of the duty of due care for a general practitioner to attempt to handle a problem himself if a reasonably prudent lawyer would have sent the client to a specialist."
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Legal Causation (Malpractice Liability - Negligence)
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"As in any tort case
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Damages (Malpractice Liability - Negligence)
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"The plaintiff in a professional negligence case must prove damages - e.g.
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Liability for Negligence of Others
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"The ordinary principles of respondeat superior apply in suits for professional negligence. Thus
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Malpractice Insurance
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"Because legal malpractice actions are now commonplace
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Contracting with Client to Limit Malpractice Liability
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A lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.
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Settling Malpractice Claims
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"A lawyer must not settle a pending or potential malpractice claim with an unrepresented client or former client without first advising that person
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Reimbursement of Client
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"A lawyer who has breached a duty to his client with monetary effect cannot escape discipline by reimbursing the client for any loss. Thus
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General Duty of Confidentiality
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"As a general rule
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Ethical Duty of Confidentiality vs. Attorney-Client Privilege
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"The duty of confidentiality prohibits an attorney from voluntarily revealing information relating the the representation of a client. Attorney-client privilege prevents the court from compelling the lawyer to reveal confidential information.
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Attorney-client privilege concerns only the disclosure of information. The duty concerns both the disclosure AND use of information."
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Attorney-Client Privilege
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Prevents a court or other government tribunal from compelling the revelation of confidential communications between an attorney and a client if the subject of the communication concerns the professional relationship between the attorney and the client.
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Corporate Clients and Privilege
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"When the client is a corporation
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(3) The communication concerns a subject within the scope of the employee's duties to act for the corporation."
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Client (Privilege)
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"""Client"" means a person or entity that seeks legal services from an attorney."
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Attorney (Privilege)
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"""Attorney"" means a person who is authorized (or whom the client reasonably believes to be authorized) to practice law in any state or nation. However
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Communication (Privilege)
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"""Communication"" covers information passed from the client to the attorney and from the attorney to the client. It also covers information passed to or from the agents of either the attorney or client."
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Details of the Attorney-Client Privilege
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"Usually doesn't cover the mechanical details of the relationship
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Covers both oral and written communications. However
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the client cannot protect a preexisting document or thing from discovery simply by turning it over to the attorney. If the document or thing would be discoverable in the client's hands
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Confidential (Privilege)
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"Must have been made by a means not intended to disclose the communicated information to outsiders
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The presence of a third party will not destroy the confidentiality IF the third party was present to help further the attorney-client relationship. However
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the third party need not play a direct role in the communication and may be present because of the client's psychological needs (e.g.
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Eavesdroppers (Privilege)
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"Originally
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Holder of Privilege
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"The attorney-client privilege exists for the benefit of the client
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Waiver of Privilege
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"A waiver consists of failure to claim the privilege when there is an opportunity to do so
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Lawyer's Duty to Invoke Privilege
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"If the client has not waived the privilege
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Duration of Privilege
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"The attorney-client privilege continues indefinitely. Termination of the relationship
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Exceptions to Privilege
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"(1) The privilege does not apply if the client seeks the attorney's services to engage in or assist a future crime or fraud.
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(3) The privilege does not apply in a variety of situations in which the attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer."
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Work Product Immunity
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"Generally
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Is the ethical duty of confidentiality destroyed by the presence of a third party?
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"No - confidential information remains confidential even if known to others
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Whether information is generally known depends on all the surrounding circumstances
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but information is not generally known when it can be obtained only by means of special knowledge or substantial difficulty or expense."
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Exceptions to the Duty of Confidentiality
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"(1) Client's Informed Consent
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(2) Implied Authority - An attorney has implied authority from the client to use or disclose confidential information when appropriate to carry out the representation - unless
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of course
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(3) Dispute Concerning Attorney's Conduct - An attorney may reveal a client's confidential information to the extent necessary to protect the attorney's interests in a dispute that involves the conduct of the attorney. In using this exception
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the attorney should: (i) reveal only what is necessary
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(7) Disclosure to Prevent or Mitigate Substantial Financial Harm"
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"Example of the Doctrine of ""Preemptive Self-Defense"""
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"Client C hired lawyer L to help him form a limited partnership venture for real estate investments. C furnished L with confidential data for L to use in preparing financial statements and other documents needed in connection with the sale of the partnership shares. Unbeknownst to L
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Conflicts of Interest
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"Loyalty is an essential element in the relationship between a lawyer and a client. The lawyer's professional judgment must be exercised solely for the benefit of the client
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Consequences of a Conflict of Interest
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"If a conflict of interest is apparent BEFORE a lawyer takes on a client's matter
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(3) Civil liability for legal malpractice."
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Imputed Conflicts of Interest
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"Generally
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Firm (Conflict of Interest)
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"""Firm"" includes not only an ordinary private law firm
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(6) Would the purpose of the particular conflict rule be served by imputing one lawyer's conflict to other lawyers in the group?"
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Exceptions to Imputed Disqualification
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"Conflicts that are uniquely personal to the lawyer in question
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Concurrent Conflicts of Interest
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"A lawyer must not represent a client if the representation creates a concurrent conflict of interest. A concurrent conflict exists in two situations:
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(2) There is a significant risk that the representation of one client will be materially limited by the lawyer's own interest or by the lawyer's responsibilities to another client
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a former client
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"Informed
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Written Consent"
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(1) The lawyer reasonably believes that he can competently and diligently represent each affected client
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despite the conflict of interest;
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(4) Each affected client gives informed
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written consent."
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Revocation of Consent
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"Just as a client can almost always fire a lawyer
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May a lawyer ask a client to consent to conflicts that may arise in the future?
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"Yes
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Representing Co-Parties in Criminal Litigation
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"The 6th amendment guarantees every criminal defendant the right to effective assistance of counsel. Because the interests of criminal co-defendants are very likely to diverge
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(4) The trial tactics that would help one would harm the other."
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Representing Co-Parties in Civil Litigation
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"In civil litigation
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(1) First
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the lawyer should analyze the facts of the case and the applicable law. If she concludes that she can effectively represent both clients
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(2) Second the lawyer should disclose the potential conflict to each client and explain how it can harm each client
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the reasonably available alternatives
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(3) Third
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when the clients fully understand the situation
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(4) Fourth
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if the potential conflict eventually ripens into a present conflict
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Representing Two Clients with Inconsistent Legal Positions in Two Unrelated Cases (Example)
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"Suppose a lawyer represents two clients in different cases that are pending in different tribunals. On behalf of Client One
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Do unnamed members of a class count as clients?
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"No
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Representing Multiple Clients in Nonlitigation Matters
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"Lawyers are often asked to represent more than one client in nonlitigation matters. Whether that creates a conflict of interest depends on many factors
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The same four-step process to analyze and deal with conflicts of interest applies."
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Special Problems of Representing More than One Client
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"A lawyer is often able to create or adjust a relationship between two or more clients by identifying and building on the interests that the clients have in common. When doing this
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Confidentiality and Privilege Problems of Representing More than One Client
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"In litigation between two people who were formerly joint clients of a single lawyer
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Example: Clients X
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Y
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Conflicts Caused by Lawyer's Own Interests
|
"(1) Lawyer's Financial Interest
|
|
|
(3) Sexual Relationship Between Lawyer and Client"
|
|
|
|
Business Transactions with Client and Money or Property Interests Adverse to Client
|
"A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership
|
|
|
(2) The terms are fully disclosed to the client in writing
|
expressed in a manner that the client can reasonably understand. Must cover the essential terms of the transaction and disclose the lawyer's role in the transaction;
|
|
|
This doesn't apply to a fee agreement."
|
|
|
|
Misuse of Client's Confidential Information
|
"A lawyer has a duty not to disclose information relating to the representation of a client
|
|
|
There is possible civil liability even when the client is not disadvantaged."
|
|
|
|
Gifts to Lawyer from Client Who Is Not a Relative
|
"A lawyer must not solicit a substantial gift from a client who is not the lawyer's relative. However
|
|
|
A lawyer is prohibited from preparing a legal instrument (such as a will or deed of gift) that creates a substantial gift to the lawyer (or the lawyer's relative)
|
except when the donor is one of the lawyer's relatives.
|
|
|
Lawyer is not prohibited from seeking to have himself or his law partner or associate named as executor of an estate or counsel to the executor or to some other fee-paying position. However
|
the general conflict of interest principles do prohibit such efforts if the lawyer's advice is tainted by the lawyer's self-interest. Moreover
|
|
|
Acquiring Literary or Media Rights Concerning a Client's Case
|
"A lawyer must not acquire literary or media rights to a story based in substantial part on information relating to the lawyer's representation of a client. However
|
|
|
Financial Assistance to Client in Litigation
|
"A lawyer is prohibited from financially assisting a client in connection with pending or contemplated litigation.
|
|
|
A lawyer may
|
however
|
|
|
A lawyer may simply pay the court costs and litigation expenses for an indigent client
|
without any provision for repayment.
|
|
|
A lawyer is subject to discipline for giving a client other financial help in the context of pending or contemplated litigation."
|
|
|
|
Aggregate Settlement Agreements
|
"When a lawyer represents several co-parties in a matter
|
|
|
(3) Each client must give informed consent to the aggregate settlement agreement in a writing signed by the client."
|
|
|
|
Class Action Settlements
|
"In a class action
|
|
|
Aggregate Settlement of Criminal Case
|
"The same rules that apply to an aggregate settlement in a civil case also apply to a joint plea bargain in a criminal case
|
|
|
Limit of Malpractice Liability
|
"A lawyer must not make an agreement with a client that prospectively waives or limits the lawyer's liability for legal malpractice (except in the unlikely event that the client is independently represented in making the agreement). A lawyer may
|
|
|
(1) Practice in a limited liability entity
|
provided that the lawyer remains personally liable to the client for her own malpractice
|
|
|
(3) A lawyer may agree prospectively with a client to arbitrate all legal malpractice claims
|
provided that such an agreement is proper under local law and the client understands the scope and effect of the agreement."
|
|
|
Settling Malpractice Claims
|
"The law always favors the amicable settlement of claims. Thus
|
|
|
Compensation from Third Person
|
"A lawyer must not accept compensation from a third person for representing a client
|
|
|
(1) Client gives informed
|
written consent;
|
|
|
(3) The arrangement does not compromise the client's confidential information."
|
|
|
|
Conflict Between Client's Interest and Third Person's Interest
|
"Sometimes the interest of a third person may create a substantial risk of materially limiting the lawyer's ability to represent the client effectively. When that is true
|
|
|
(2) The client gives informed
|
written consent."
|
|
|
"When an insured and his insurance company are involved
|
whom does the insurance defense lawyer represent?"
|
|
|
Duties to Former Clients
|
"(1) Continuing Duty of Confidentiality
|
|
|
(2) Lawyer must not oppose the former client in any matter in which the confidential information would be relevant
|
unless the former client gives informed
|
|
|
(4) Must not represent one client whose interests are materially adverse to those of a former client in a matter that is ""substantially related"" to a matter in which the lawyer represented the former client."
|
|
|
|
Disqualification of Lawyer's New Firm
|
"A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer was formerly associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired confidential information that is material to the matter; unless the former client gives informed
|
|
|
Disqualification of Lawyer's Former Firm
|
"When a lawyer has terminated an association with a firm
|
|
|
(2) Any lawyer remaining in the firm has confidential information that is material to the matter."
|
|
|
|
Federal and State Conflict of Interest Laws
|
Lawyers who move between government and private jobs must comply not only with the ethics rules but also with various state and federal statutes and regulations.
|
|
|
Private Work Following Government Work on Same Matter
|
"Except when expressly permitted by law
|
|
|
""Matter"" here has a very narrow
|
technical meaning. It means a specific set of facts involving some specific parties.
|
|
|
If a lawyer is disqualified under this rule
|
then everyone in that lawyer's firm is also disqualified unless the following three conditions are met:
|
|
|
(1) The lawyer must be timely screened off from the case - must not work on it
|
discuss it with those who do
|
|
|
(3) Written notice must promptly be given to the governmental agency to enable it to make sure that the above conditions are being met."
|
|
|
|
Subsequent Use of Information Gained During Government Service
|
"A government lawyer who receives confidential government information about a person must not later represent a private client whose interests are adverse to that person
|
|
|
If a former government lawyer is disqualified by this rule
|
then everyone in that lawyer's firm is also disqualified unless:
|
|
|
(2) The lawyer is not apportioned any part of the fee earned in the matter."
|
|
|
|
Current Government Service After Private Practice
|
"Ordinary conflict rules apply to a lawyer who enters government service after private practice or other nongovernmental work.
|
|
|
If a lawyer worked ""personally and substantially"" on a ""matter"" in private practice or other nongovernmental employment
|
the lawyer must not work on that same matter when she later enters government service
|
|
|
When a person in government service is currently working personally and substantially on a matter
|
she must not negotiate for private employment with any party or lawyer who is involved in that matter. There is a special exception for judges' and adjudicative officers' law clerks who are seeking work after their clerkships end."
|
|
|
Switching from Judicial Service to Private Law Practice
|
"A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or as a law clerk to such person
|
|
|
If a lawyer is disqualified under this rule
|
everyone else in the lawyer's firm is also disqualified unless the following conditions are met:
|
|
|
(3) Written notice is given to the parties and the appropriate tribunal so that they can ensure that the foregoing conditions are met."
|
|
|
|
Law Clerks Negotiating for Private Employment
|
A law clerk to a judge or other adjudicative officer must notify that person before negotiating for private employment with a party (or the attorney for a party) in a matter in which the law clerk is participating personally and substantially. Law clerks are specially treated because they are usually newly admitted lawyers for whom a clerkship is only a temporary first step in a legal career.
|
|
|
Other Adjudicative Officers Negotiating for Private Employment
|
"The lenient rule that applies to law clerks does not apply to judges
|
|
|
Lawyer's Duty Concerning Confidential Information (Prospective Client)
|
"The attorney-client privilege protects confidential communications between a lawyer and a prospective client. The ethical duty of confidentiality also applies to discussions between a lawyer and prospective client. Thus
|
|
|
Lawyer's Duty Concerning Conflict of Interest (Prospective Client)
|
"A lawyer who obtains confidential information during preliminary discussions with a prospective client must not later represent a different person in the same or a substantially related matter if the confidential information could significantly harm the prospective client. This conflict is imputed to others in the lawyer's firm
|
|
|
(3) Give written notice to the prospective client."
|
|
|
|
Duty of Loyalty to an Organization
|
"A corporation
|
|
|
Conflicts Between the Organization and Its Constituents
|
"When there are conflicts
|
|
|
Protecting the Organization's Interests
|
"If the lawyer for an organization learns that a person associated with the organization has acted
|
|
|
Lawyer must ordinarily report the violation to a higher authority in the organization. If necessary
|
the lawyer must report it to the organization's highest authority."
|
|
|
Duty to Report Outside the Organization
|
"If the lawyer reports the violation to the organization's highest authority
|
|
|
Whistle Blower Protection
|
"A lawyer who reasonably believes that she has been fired because of reporting in a manner as proscribed to protect the organization's interest
|
|
|
Representing Both the Organization and an Associated Person
|
"The lawyer for an organization may represent both the organization and one or more directors
|
|
|
Serving as Both Director and Lawyer
|
"This is not forbidden
|
|
|
Securities Lawyer's Duties Under Sarbanes-Oxley Act
|
"These rules apply to lawyers who represent an issuer of securities and who practice before the SEC.
|
|
|
If a securities lawyer becomes aware of credible evidence that her client is materially violating a federal or state securities law
|
she MUST report the evidence to her client's chief legal officer (CLO) or chief executive officer. The same reporting duty applies to credible evidence that one of her client's personnel has breached a fiduciary duty under federal or state law or has committed a ""similar material violation"" of federal or state law.
|
|
|
The CLO must investigate the situation to determine whether a violation occurred. If one occurred
|
the CLO must take all reasonable steps to get the client to make an ""appropriate response.""
|
|
|
If the securities lawyer believes the CLO didn't get an appropriate response
|
she must report the evidence to one of the following: (1) the client's whole board of directors; (2) the audit committee of the board; or (3) a committee made up of outside directors.
|
|
|
A securities lawyer who violates Sarbanes-Oxley can be disciplined by the SEC
|
but one who complies cannot be held civilly liable for doing so and cannot be disciplined under any inconsistent state rule.
|
|
|
If fired for complying
|
the lawyer may report the firing to the client's board of directors."
|
|
|
Revealing Confidential Information to the SEC
|
"The securities lawyer may reveal to the SEC
|
|
|
(3) Prevent the client from committing or suborning perjury in an SEC matter or lying in any matter within the jurisdiction of any branch of the federal government."
|
|
|
|
Safeguarding the Client's Money and Property
|
"When money or property belonging to a client comes into the lawyer's hands
|
|
|
Client Trust Fund Account
|
"Must be located in the state where the lawyer practices (unless the client consents to it being elsewhere). A lawyer
|
|
|
If a lawyer is entrusted with a large sum to hold for a long period
|
the lawyer should put it into a separate
|
|
|
Interest On Lawyer Trust Account (IOLTA) Programs
|
"If a client entrusts a lawyer with a sum that is too small to earn any net interest
|
|
|
Funds that Must Be Placed in Client Trust Fund Account
|
"When the client entrusts the lawyer with money to pay costs and expenses not yet incurred
|
|
|
Sometimes a client entrusts the lawyer with an advance against legal fees that the lawyer has not yet earned - this must be put into the client trust account
|
and any unearned amount must be paid back to the client at the close of representation."
|
|
|
Funds in Which Both Client and Lawyer Have an Interest
|
"A lawyer sometimes receives funds from a third party that are to be used
|
|
|
Funds in Which a Third Party Has an Interest
|
"Sometimes a third party has an interest in funds that come into the lawyer's possession on behalf of a client. Statute
|
|
|
Safeguarding Property
|
"When the lawyer comes into possession of property (other than money) to be held on a client's behalf
|
|
|
Additional Duties Regarding Client's Money or Property
|
"A lawyer has the following additional duties respecting a client's money or property:
|
|
|
(2) The lawyer must keep complete
|
accurate
|
|
|
(4) When the time comes to pay over money or deliver property to which the client or a third party is entitled
|
the lawyer must do so promptly."
|
|
|
Duty to Render Candid Advice
|
"When acting as advisor to a client
|
|
|
Giving Advice Beyond the Law
|
"A lawyer may give a client not only legal advice
|
|
|
Volunteering Advice
|
"A lawyer ordinarily has no duty to give advice until asked. However
|
|
|
Evaluation for Use by Third Persons
|
"A lawyer may evaluate a client's affairs for the use of a third person if the lawyer reasonably believes that making the evaluation is compatible with the lawyer's other responsibilities to the client.
|
|
|
If the lawyer knows or should know that the evaluation will materially harm the client
|
the lawyer must obtain the client's informed
|
|
|
The ordinary rules of confidentiality apply to information gained during the evaluation. The client may limit the scope of the evaluation or the sources of information available to the lawyer
|
but the lawyer should describe any material limitations in the report furnished to the third person.
|
|
|
A lawyer who is hired to evaluate a client's affairs for a third person may be liable to the third person for negligence in rendering the evaluation."
|
|
|
|
Cases in Which Opinion Is to Be Widely Disseminated (Evaluation for Use by Third Persons)
|
"When a lawyer agrees to certify facts to a large number of persons who can be expected to rely on the lawyer
|
|
|
Securities Cases - This special obligation most often arises when a lawyer has prepared an opinion letter to be used in disclosure documents for securities investors. The lawyer may be held liable for both misstatements and omissions of material facts. A lawyer is not a guarantor of every fact in the disclosure materials about the company or transaction. However
|
if the disclosures are inconsistent
|
|
|
Tax Shelter Opinions - When a lawyer gives a widely disseminated legal opinion about the tax treatment likely to be afforded an investment
|
the lawyer must candidly disclose and estimate the degree of risk that the IRS will not allow the tax treatment being sought
|
|
|
Lawyer as Negotiator
|
"The Rules prohibit a lawyer from making a false statement of material fact. However
|
|
|
Puffing and Subjective Statements (Negotiation)
|
"Because it is the essence of negotiation that the lawyer attempt to magnify the strength of the client's position
|
|
|
Misapprehension (Negotiation)
|
"A lawyer who believes an opponent is underestimating the strength of his client's position has no duty to correct that misapprehension unless the lawyer or client caused it. However
|
|
|
Lawyer as Third-Party Neutral
|
"A lawyer serves as a third-party neutral when she assists two or more nonclients in resolving a dispute or other matter that has arisen between them. Examples of a third-party neutral are an arbitrator
|
|
|
A lawyer who serves as a third-party neutral does not represent any of the parties. A party who is not familiar with arbitration
|
mediation
|
|
|
A lawyer who serves as a third-party neutral in a matter must not thereafter become the lawyer for anyone involved in the matter
|
unless all of the parties give their informed
|
|
|
No conflict arises when a lawyer who served as a PARTISAN arbitrator for a party is later asked to become that party's lawyer."
|
|
|
|
Discipline for Asserting Frivolous Position
|
"A lawyer is subject to discipline for bringing a frivolous proceeding
|
|
|
(3) It is NOT frivolous to assert a position even though the lawyer believes that the position will not ultimately prevail."
|
|
|
|
Defending in Criminal Proceedings
|
"Despite the general rule against taking frivolous positions
|
|
|
Duty to Expedite Litigation
|
"A lawyer must make reasonable efforts to expedite litigation
|
|
|
The duty to expedite does not require the lawyer to take actions that would harm the client's legitimate interests. However
|
realizing financial or other benefits from otherwise improper delay is NOT a legitimate interest."
|
|
|
Duty of Candor About Applicable Law to the Tribunal
|
"An attorney is subject to discipline for knowingly making a false statement of law to the court.
|
|
|
An attorney is subject to discipline for knowingly failing to disclose to the court a legal authority in the controlling jurisdiction that is directly adverse to the client's position and that has not been disclosed by the opposing counsel. The attorney is
|
of course
|
|
|
Duty of Candor About Facts of the Case to the Tribunal
|
"An attorney is subject to discipline for knowingly making a false statement of material fact to the court. Ordinarily
|
|
|
Must an attorney volunteer harmful facts in the interests of candor?
|
"An attorney generally has no obligation to volunteer a fact that is harmful to his client's case. The adversary system assumes that opposing sides can use discovery proceedings and their own investigations to find out the facts. If an attorney's adversary fails to uncover a harmful fact
|
|
|
Ex Parte Proceedings and the Duty of Candor
|
"In an ex parte proceeding
|
|
|
Using False Evidence and the Duty of Candor
|
"In a matter pending before a tribunal
|
|
|
Discovery of Falsity After Evidence Has Been Offered
|
"If a lawyer has offered a piece of evidence and later discovers that it is false
|
|
|
Note that the duty to rectify false evidence continues until the end of the proceedings
|
which means when a final judgment has been affirmed on appeal or the time for appeal has expired."
|
|
|
False Testimony by Criminal Defendant
|
"The criminal defense lawyer should follow the same three steps as he would for discovering the falsity of evidence:
|
|
|
(2) If the defendant insists
|
the lawyer should consider withdrawal
|
|
|
(3) If all else fails
|
the lawyer must reveal the situation to the judge
|
|
|
Several jurisdictions
|
including New York and California
|
|
|
Other Corruption of an Adjudicative Proceeding
|
"A lawyer who represents a client in an adjudicative proceeding must take appropriate measures to prevent any person (a client or anyone else) from committing criminal or fraudulent conduct that will corrupt the proceedings. Examples of such conduct are:
|
|
|
(5) Failing to obey a law or court order to disclose information. Appropriate measures include disclosure to the court
|
if that becomes necessary."
|
|
|
Opponent's Access to Evidence
|
"A lawyer must not unlawfully obstruct another party's access to evidence. Furthermore
|
|
|
Falsifying Evidence and Assisting in Perjury
|
"A lawyer must not falsify evidence. Furthermore
|
|
|
Paying Witnesses
|
"A lawyer must not offer an inducement to a witness that is prohibited by law. However
|
|
|
(1) An attorney may pay expenses reasonably incurred by the witness in attending and testifying (e.g.
|
travel
|
|
|
(3) An attorney may pay a reasonable fee to an expert witness for preparing to testify and for testifying. The fee must NOT be contingent on either the content of the testimony or the outcome of the case."
|
|
|
|
Securing Absence or Noncooperation of Witness
|
"A lawyer must not advise or cause a person to secrete himself or to flee the jurisdiction for the purpose of making him unavailable as a witness. A lawyer may
|
|
|
(1) The person is a client
|
or a relative
|
|
|
(2) The lawyer reasonably believes that the person's interests will not be harmed by not volunteering the information."
|
|
|
|
Violating Court Rules and Orders
|
"A lawyer must not knowingly violate a rule of procedure
|
|
|
Abusing Discovery Procedures
|
"A lawyer must not make a frivolous discovery request
|
|
|
Referring to Inadmissible Material
|
"During the trial of a case
|
|
|
Asserting Personal Knowledge of Contested Facts
|
"During the trial of a case
|
|
|
Asserting Personal Opinions
|
"During the trial of a case
|
|
|
A lawyer may
|
of course
|
|
|
Using Threats to Gain Advantage in Civil Case
|
"A lawyer may bring
|
|
|
Treating Opponents with Courtesy and Respect
|
"The professional ideal is that advocates relate to each other with a respectful and cooperative attitude marked by civility consistent with their responsibility to their clients. Lawyers also should treat all participants in a proceeding with such respect and cooperativeness. Certain conduct toward other participants is prohibited and includes: physical force or threat; ethnic
|
|
|
Improper Influence
|
"A lawyer must not seek to influence a judge
|
|
|
Improper Ex Parte Communication
|
"While a proceeding is pending in a tribunal
|
|
|
Generally a written communication to a judicial officer is not ex parte if a copy of the communication is timely sent to the opposing parties. A lawyer must not
|
however
|
|
|
Can NOT communicate with a juror or a member of the juror pool from which jurors will be chosen. This rule forbids communication on any subject
|
even the weather! It also does not matter who initiates the communication - the lawyer must refuse."
|
|
|
Investigation of Prospective Jurors
|
"It is not improper for a lawyer to investigate members of a jury panel to determine their backgrounds and the existence of any factors that would be grounds for a challenge (e.g.
|
|
|
Post-Trial Communications with Jurors
|
"After the trial is over and the jury is discharged a lawyer must not communicate with a former jury member (or even a person who was a prospective juror) if any of the following conditions is met:
|
|
|
(3) The communication involves misrepresentation
|
coercion
|
|
|
Disruptive Conduct
|
A lawyer must not engage in conduct intended to disrupt a tribunal. This rule applies in depositions as well as in the courtroom.
|
|
|
Statements About Judicial and Legal Officials
|
"A lawyer must not make a statement that the lawyer knows is false about the qualifications or integrity of a judge
|
|
|
A lawyer who is running for judicial office must comply with the applicable provisions of the Code of Judicial Conduct."
|
|
|
|
Trial Publicity
|
"A lawyer who is connected with a case must not make a public statement outside of the courtroom that the lawyer reasonably should know would have a ""substantial likelihood of materially prejudicing"" the case (e.g.
|
|
|
A lawyer may
|
however
|
|
|
These rules apply equally to other lawyers who are associated in a law firm or agency with the lawyer participating in the case."
|
|
|
|
Dry Facts About Case (Trial Publicity)
|
"Notwithstanding the general rule against prejudicial statements
|
|
|
(1) The claim
|
charge
|
|
|
(5) The fact that an investigation is ongoing
|
a request for help in getting information
|
|
|
(6) Routine booking information about a criminal defendant
|
such as his name
|
|
|
Trial Counsel as Witness - Reasons to Avoid Dual Role
|
"Conflict of Interest may be created.
|
|
|
The functions of trial counsel and witness are different. A witness must state facts objectively
|
but a trial counsel is supposed to present them persuasively. When the two roles are combined
|
|
|
The adversary may be handicapped in challenging the credibility of one who serves this dual role. Courtesy and sound tactics may force the adversary to tread softly on cross-examination. Furthermore
|
a favorable impression created as trial counsel may lend unjustified believability to the trial counsel's words as witness."
|
|
|
Ethical Limitations Imposed - Trial Counsel as Witness
|
"A lawyer must not act as an advocate at a trial in which the lawyer is likely to be a necessary witness
|
|
|
(4) A lawyer is permitted to act as an advocate at a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by the conflict of interest rules."
|
|
|
|
Special Responsibilities of a Prosecutor
|
"The primary goal of the prosecutor is to seek justice
|
|
|
A prosecutor must not seek to obtain from an unrepresented accused a waiver of important pretrial rights
|
such as the right to a preliminary hearing.
|
|
|
When a convicted person is to be sentenced
|
the prosecutor must disclose to the defense and to the court all unprivileged mitigating information known to the prosecutor (except when a protective order of the court relieves the prosecutor of this obligation).
|
|
|
Except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose
|
a prosecutor must not make extrajudicial statements that have a ""substantial likelihood of heightening public condemnation of the accused."" A prosecutor must take reasonable care to prevent investigators
|
|
|
A prosecutor must not subpoena another lawyer to give evidence about a client or former client unless the evidence is not privileged
|
is essential
|
|
|
Even if litigation appears warranted
|
a government lawyer has a responsibility to develop a full and fair record. The lawyer must not use her position or the economic power of the government to harass parties or to force unjust settlements or results."
|
|
|
Advocate in Legislative and Administrative Proceedings
|
"When a lawyer appears on behalf of a client before a legislative body or administrative agency
|
|
|
When a lawyer represents a client before a legislative body or administrative agency in an official hearing or meeting at which the lawyer or client presents evidence or argument
|
the lawyer must
|
|
|
(4) When the government is examining the client's compliance with a regular reporting requirement (such as the filing of tax returns)."
|
|
|
|
Truthfulness in Statements to Third Persons
|
"When dealing on behalf of a client with a third person
|
|
|
A misrepresentation can occur when the lawyer makes a statement knowing that it is false
|
when the lawyer affirms or incorporates a statement knowing that it is false
|
|
|
A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud - unless the lawyer is forbidden to do so by the ethical duty of confidentiality. Where the duty of confidentiality prevents the lawyer from disclosing material facts
|
and where continued representation would require the lawyer to assist in the client's crime or fraud
|
|
|
Communication with Persons Represented by Counsel
|
"A lawyer must not communicate about a matter with a person the lawyer knows is represented by counsel
|
|
|
Corporations and other organizations are ""persons"" for purposes of this rule. Thus
|
a lawyer must get the consent of the organization's counsel before communicating with the following constituents of the organization:
|
|
|
(1) A person who supervises
|
directs
|
|
|
Consent is NOT needed before talking to a FORMER constituent of the organization. However
|
when talking with either a present or former constituent
|
|
|
(3) A lawyer from interviewing an unrepresented person who will be called as a witness by some other party."
|
|
|
|
Dealing with Unrepresented Persons
|
"When dealing with an unrepresented person
|
|
|
Respect for Rights of Third Persons
|
"In representing a client
|
|
|
Lawyers sometimes receive documents that were sent to them by mistake. That happens with e-mail
|
fax
|
|
|
Partners' Duty to Educate and Guide in Ethics Matters
|
"The partners or managing lawyers of a law firm (and the supervisory lawyers in a governmental agency
|
|
|
Duties of Direct Supervisor
|
A lawyer who directly supervises the work of another lawyer must make reasonable efforts to assure that the other lawyer adheres to the Rules of Professional Conduct.
|
|
|
How Duties (of Supervisors and Partners) are Fulfilled
|
"The steps necessary to fulfill these duties depend on the kind and size of the firm or other group. In a small private law firm
|
|
|
Ethical Responsibility for Another Lawyer's Misconduct
|
"A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer if:
|
|
|
(2) The first lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer
|
and she knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action."
|
|
|
Duties (of Subordinate Lawyer) Concerning Clear Ethics Violation
|
"Orders from a supervisory lawyer are no excuse for clearly unethical conduct - a lawyer must follow the ethics rules even when acting under the directions of another person. However
|
|
|
Duties (of Subordinate Lawyer) Concerning Debatable Ethics Questions
|
"A subordinate lawyer does not violate the rules of professional conduct by acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty. When a debatable ethics question arises
|
|
|
Duty to Educate Nonlawyer Assistants and Guide Them in Ethics Matters
|
"Law firms
|
|
|
Duty of Partners Respecting Nonlawyer Employees
|
"The partners and managers in a law firm (and the supervisory lawyers in a governmental agency
|
|
|
Duties of Direct Supervisor Respecting Nonlawyer Employees
|
"A lawyer is subject to discipline in two situations when a nonlawyer does something that
|
|
|
(2) The lawyer is a partner or manager or has direct supervisory responsibility over the nonlawyer and the lawyer knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action."
|
|
|
|
Fee Splitting with Nonlawyers and Temporary Lawyers
|
"A lawyer must not share her legal fee with a nonlawyer. Obviously
|
|
|
(1) The lawyers in a firm may agree that
|
when one of them dies
|
|
|
(3) One lawyer's practice can be sold to another lawyer. One who buys the practice of a dead
|
disabled
|
|
|
(4) When a court awards attorneys' fees to the winning lawyer in a case
|
the lawyer may share the fee with a nonprofit organization that hired or recommended him as counsel."
|
|
|
Partnership with Nonlawyer to Practice Law
|
A lawyer must not form a partnership with a nonlawyer if any part of the partnership activities will constitute the practice of law.
|
|
|
Nonlawyer Involvement in Incorporated Firm or Other Association
|
"A lawyer must not practice in an incorporated law firm or association authorized to practice law for profit if:
|
|
|
(1)A nonlawyer owns any interest in the firm or association (but
|
when a lawyer dies
|
|
|
(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer."
|
|
|
|
Restrictive Partnership and Employment Agreements
|
"A lawyer must neither make nor offer a partnership or employment or similar agreement that restricts a lawyer's right to practice after termination of the relationship
|
|
|
Restrictive Settlement Agreements
|
A lawyer must neither make nor offer an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
|
|
|
When Sale of a Law Practice is Permitted
|
"(1) The seller must cease to engage in the private practice of law or in the sold field of practice in the area where the practice has been conducted;
|
|
|
(2) The entire practice
|
or the entire field of practice
|
|
|
(3) Written notice must be given to the seller's clients regarding the sale
|
proposed changes in fee arrangements
|
|
|
After the sale of his practice
|
a lawyer may still be employed as a lawyer on the staff of a public agency or legal services entity that provides legal services to the poor
|
|
|
Clients' Fees After Sale of Practice
|
Clients' fees must not be increased because of the sale. The purchaser must honor existing fee agreements made by seller.
|
|
|
Law-Related (Ancillary) Services
|
"Examples include financial planning
|
|
|
(1) If a lawyer provides nonlegal services in circumstances that are not distinct from her provision of legal services
|
then the Rules of Professional Conduct apply to both the legal and nonlegal services.
|
|
|
(2) If a lawyer provides nonlegal services through an entity that is not her law office but that she controls (either alone or with other lawyers)
|
that lawyer must take reasonable steps to assure that people who receive the nonlegal services understand that those services are not legal services and that the Rules do not cover those services (for instance
|
|
|
Providing Nonlegal Services to Clients
|
"When a client-lawyer relationship exists between the lawyer and the individual receiving the law-related services
|
|
|
Pro Bono Publico Service
|
"Every lawyer has a professional responsibility to provide legal service to people who cannot pay for it. The Model Rules recommend that every lawyer spend 50 hours per year on pro bono work; a ""substantial majority"" of those hours should be spent doing unpaid legal service for poor people or organizations that address the needs of poor people.
|
|
|
There are no grounds for professional discipline for violating this rule."
|
|
|
|
Membership in Legal Services Organizations
|
"A lawyer may serve as a director
|
|
|
(2) The lawyer must not knowingly participate in a decision or action of the organization if doing so would adversely affect the representation of one of the organization's clients whose interests are adverse to those of a client of the lawyer."
|
|
|
|
Quick-Advice Programs
|
"A lawyer may participate in a quick-advice program sponsored by a court or nonprofit organization
|
|
|
(1) The lawyer must obtain the client's informed consent to the limited scope of the relationship. If the lawyer's quick advice is not enough to set the client on the right track
|
the lawyer must advise the client to obtain further legal help.
|
|
|
(2) A lawyer who participates in a quick-advice program ordinarily has no time to conduct an ordinary conflict of interest check. Therefore the general conflict principles do not apply unless the lawyer actually knows that giving the quick advice creates a conflict of interest. As in other contexts
|
actual knowledge can be inferred from the circumstances.
|
|
|
(3) The rule of imputed conflicts of interest is also relaxed in a quick-advice situation. Therefore a lawyer may dispense advice in a quick-advice program unless the lawyer actually knows that he is disqualified from doing so because of a conflict imputed from another lawyer in his firm. Conversely
|
a conflict created by advice a lawyer dispenses in a quick-advice program will not be imputed to others in the lawyer's firm.
|
|
|
(4) If a person who has received quick advice from a lawyer then wants to hire that lawyer to render further service in the matter
|
the ordinary conflict of interest rules apply to that further service.
|
|
|
(5) All other rules apply in quick-advice situations."
|
|
|
|
Law Reform Activities Affecting Client Interests
|
"A lawyer may serve as a director
|
|
|
When a lawyer is working on a law reform project and is asked to participate in a decision that could materially benefit one of the lawyer's clients
|
the lawyer must disclose that fact - but the lawyer need not identify the client."
|
|
|
Political Contributions to Obtain Government Employment
|
"A lawyer or firm must not accept a government legal engagement (i.e.
|
|
|
(2) Engagements or appointments made on the basis of experience
|
expertise
|
|
|
(3) Engagements or appointments made on a rotating basis from a list compiled without regard to political contributions."
|
|
|
|
Advertising
|
"A lawyer is subject to discipline for any type of communication about the lawyer or the lawyer's services that is false or misleading - applies to ALL kinds of communications.
|
|
|
Lawyers are given broad latitude in advertising their services in a true and nonmisleading manner."
|
|
|
|
Solicitation
|
"A lawyer must not seek fee-paying work by initiating personal or live telephone contact
|
|
|
This rule only applies when a significant motive for the lawyer's solicitation is the lawyer's pecuniary gain. Thus
|
a lawyer who volunteers to represent someone without a fee
|
|
|
Absent actual knowledge that the prospective client does not wish to receive communications from the lawyer
|
a lawyer is not prohibited from sending truthful
|
|
|
A lawyer must not use coercion
|
duress
|
|
|
All written
|
electronic
|
|
|
A lawyer is permitted to participate in group or prepaid legal service plan
|
even though the plan uses personal contacts and live telephone contacts to offer the plan to persons who are not known to need specific legal services."
|
|
|
Certified Specialists
|
Some states and private organizations certify lawyers as specialists in a field of law. A lawyer who has been certified as a specialist in a field may state that fact to the public if the certifying body is identified and it has been approved by the ABA.
|
|
|
Statement of Fields of Practice
|
"In public communications
|
|
|
Patent and Admiralty Lawyers
|
"Patent and admiralty lawyers have traditionally been accorded special treatment. A lawyer who is admitted to practice before the U.S. Patent and Trademark Office may use the designation ""Patent Attorney
|
|
|
Firm Names and Letterheads
|
"A private law partnership may be designated by the names of one or more of the partners. When partners die or retire
|
|
|
Trade names (e.g.
|
""Greater Chicago Legal Clinic""; ""The Smith Firm"") - even ones that do not include the names of one or more partners - are permitted
|
|
|
A law firm that has offices in more than one jurisdiction may use the same name
|
Internet address
|
|
|
Two law firms may hold themselves out to the public as being ""associated"" or ""affiliated"" if they have a close
|
regular
|
|
|
"Selection
|
Tenure
|
|
|
"Selection
|
Tenure
|
|
|
Conduct On the Bench
|
"The general standard of integrity and independence obviously applies to a judge's conduct on the bench in a judicial capacity. Although judges must be independent
|
|
|
Conduct Off the Bench
|
The duty of integrity and independence also applies to a judge's behavior in his personal life.
|
|
|
Impropriety and the Appearance of Impropriety
|
"A judge must respect and comply with the law and must act in a way that promotes public confidence in the integrity and impartiality of the judiciary. This duty applies to conduct both on and off the bench. A judge is subject to constant public scrutiny and must therefore accept constraints that would be burdensome to the ordinary citizen.
|
|
|
A judge must not allow family
|
social
|
|
|
The following acts are permissible
|
as long as the judge is sensitive to abuse of the prestige of the judicial office:
|
|
|
(1) Based on personal knowledge
|
a judge may act as a reference or provide a recommendation for someone.
|
|
|
(2) In response to a formal request from a sentencing judge
|
probation officer
|
|
|
(3) Judges must not appear voluntarily as character witnesses
|
and (except when the demands of justice require) they should discourage people from requiring them to serve as character witnesses. If served with a summons
|
|
|
"Discrimination Based on Race
|
Sex
|
|
|
Even if a judge is not a member of an organization described above
|
the judge can be disciplined for using such an organization.
|
|
|
When a judge learns that an organization to which she belongs practice discrimination that would bar the judge's membership
|
the judge must either:
|
|
|
(2) Work to end the discriminatory practice
|
and not participate in other activities of the organization in the meantime. If the organization does not end the discrimination within a year
|
|
|
"Diligent
|
Impartial Performance of Judicial Duties"
|
|
|
A judge must hear and decide all matters assigned to her
|
except those in which disqualification is required.
|
|
|
A judge must be faithful to the law and maintain professional competence in it. A judge must not be swayed by partisan interests
|
public clamor
|
|
|
A judge must be patient
|
dignified
|
|
|
A judge must give every person who has a legal interest in a proceeding (or that person's lawyer) the right to be heard in accordance with the law."
|
|
|
|
Avoidance of Bias and Prejudice
|
"A judge must avoid bias and prejudice and must require others (including lawyers) who are under the judge's direction and control to do likewise. Prejudice in this context includes
|
|
|
Ex Parte Communications (Judicial Conduct)
|
"""Ex parte"" means one side only. An ex parte communication means a communication between a judge and representative from one side of a matter when no representative from the other side is present. A judge must not initiate
|
|
|
(1) A judge may have ex parte communications when expressly authorized by law
|
which is defined to include court rules and decisional law
|
|
|
(2) With the consent of the parties
|
the judge may confer separately with the parties and their lawyers in an effort to settle or mediate a pending matter.
|
|
|
(3) In other situations the judge may have an ex parte communication
|
only if ALL FOUR of the following conditions are met:
|
|
|
(iv) The judge notifies the lawyers for the other parties of the essence of the communication and gives them an opportunity to respond."
|
|
|
|
Communications from Others (Judicial Conduct)
|
"A judge must not initiate
|
|
|
(1) A judge may consult about a matter with other judges and with other court personnel whose function is to aid the judge in carrying out adjudicative responsibilities (e.g.
|
the judge's clerk).
|
|
|
(2) A judge may obtain the advice of a disinterested expert on the applicable law
|
provided that the judge tells the parties' lawyers what expert was consulted
|
|
|
(4) Some jurisdictions permit a trial judge to communicate with an appellate court about a proceeding. A copy of any written communication
|
or the substance of any oral communication
|
|
|
Findings of Facts and Conclusions of Law
|
"If a judge asks the lawyers for one side to propose findings of fact and conclusions
|
|
|
Independent Investigation of Facts
|
A judge must not independently investigate the facts in a case and must consider only the evidence presented.
|
|
|
"Promptness
|
Efficiency
|
|
|
(1) Respect the rights of the parties
|
but resolve issues without unnecessary expense or delay;
|
|
|
(2) Monitor cases closely to eliminate dilatory practices
|
avoidable delays
|
|
|
(3) Encourage settlements
|
but without forcing the parties to give up their right to adjudication;
|
|
|
(7) Insist that the parties
|
lawyers
|
|
|
Public Comments on Cases
|
"When a case is pending or impending in any court
|
|
|
The duty to abstain from comment does not prohibit judges from making public statements in the course of their official duties
|
or from publicly explaining court procedures.
|
|
|
The duty to abstain from comment does not apply if the judge is a litigant in a personal capacity. The duty does apply
|
however
|
|
|
Promises with Respect to Cases Likely to Come Before Court
|
"A judge must not make pledges
|
|
|
Commentary on Jury Verdict
|
"A judge must not commend or criticize jurors for their verdict
|
|
|
Nonpublic Information (Judicial Conduct)
|
"A judge must not disclose or use
|
|
|
Administrative Duties (Judicial Conduct)
|
"Judges must discharge their administrative duties diligently without bias or prejudice
|
|
|
Judicial Appointments
|
"A judge must exercise the power of appointment impartially and on the basis of merit (e.g.
|
|
|
A judge who is subject to a public election must not appoint a lawyer to a position if the judge either knows that the lawyer has contributed to the judge's election campaign more than the jurisdiction's specific dollar amount within a designated number of years prior to the judge's campaigns
|
or learns of such contribution through a timely motion by a party or other interested person. This provision does not apply if the appointed position is substantially uncompensated
|
|
|
Disciplinary Responsibilities
|
"Judges have the following duties respecting misconduct by lawyers and other judges:
|
|
|
(1) If Judge A receives information indicating a substantial likelihood that Judge B has committed a violation of the CJC
|
Judge A should take appropriate action. If Judge A has actual knowledge that Judge B has committed a violation of the CJC that raises a substantial question as to Judge B's fitness for office
|
|
|
(2) If a judge receives information indicating a substantial likelihood that a lawyer has violated the Rules of Professional Conduct
|
the judge should take appropriate action. If a judge has actual knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question about the lawyer's honesty
|
|
|
(3) A judge's acts in dealing with misconduct by a lawyer or other judge are privileged and cannot be the basis for civil suit."
|
|
|
|
Disqualification - General Rule
|
"A judge must disqualify himself in a proceeding in which the judge's impartiality might be reasonably questioned. Note that the rule uses the objective standard of reasonableness; a far-fetched argument or litigant's whim is not sufficient to disqualify a judge.
|
|
|
The judge should disclose on the record any information the judge believes that the parties or their lawyers might consider relevant to the question of disqualification
|
even if the judge believes there is no reasonable basis for disqualification."
|
|
|
Rule of Necessity - Disqualification
|
"Case law has created a rule of necessity that overrides the rules of disqualification. For example
|
|
|
Bias or Personal Knowledge - Disqualification
|
"A judge must disqualify himself if there is reasonable ground to believe that the judge has:
|
|
|
To be disqualifying
|
a bias must be personal and must stem from an extrajudicial source; adverse attitudes toward a party formed on the basis of evidence presented in the case are not disqualifying."
|
|
|
Prior Involvement - Disqualification
|
"A judge must disqualify himself if the judge previously:
|
|
|
(3) Was associated in law practice with a person who served as a lawyer in the matter at the time they practiced together."
|
|
|
|
Economic or Other Interest - Disqualification
|
"A judge must disqualify himself if the judge knows that he
|
|
|
""Economic interest"" has a very technical definition - it means that the judge (or judge's spouse
|
parent
|
|
|
(1) Is an officer
|
director
|
|
|
(2) Securities Held by Organization (where Judge is an officer
|
etc) - Only when educational
|
|
|
(3) Bank Deposits
|
Mutual Insurance Policies
|
|
|
(4) Government Securities - Ownership of government securities is not a disqualifying economic interest
|
unless the value of the securities could be substantially affected by the proceedings."
|
|
|
Involvement of a Relative - Disqualification
|
"A judge must disqualify himself if the judge has a relative involved in the case.
|
|
|
""Relative"" means a person (or the spouse of a person) who is related within the third degree to the judge or the judge's spouse. The third degree of relationship means: great-grandparents
|
grandparents
|
|
|
(1) A party
|
or an officer
|
|
|
(4) Known by the judge to be a likely material witness in the proceedings."
|
|
|
|
Persons Making Contributions to Judge's Election Campaign - Disqualification
|
"A judge who is subject to public election must disqualify himself if he knows
|
|
|
Public Statements of Judicial Commitment - Disqualification
|
"A judge must disqualify himself if he
|
|
|
Remittal of Disqualification
|
"The parties and their lawyers can remit (waive) all of the foregoing grounds of disqualification
|
|
|
(3) All the parties and their lawyers meet
|
outside the presence of the judge
|
|
|
(4) If the judge is willing to do so
|
she may then proceed with the case."
|
|
|
Extrajudicial Activities
|
"A judge must conduct all extrajudicial activities so that they do not:
|
|
|
(3) Interfere with the judge's judicial duties."
|
|
|
|
Avocational Activities (Extrajudicial Activities)
|
"A judge may speak
|
|
|
Governmental Hearings and Consultations (Extrajudicial Activities)
|
"A judge must not appear at a public hearing before
|
|
|
Governmental Committees and Commissions (Extrajudicial Activities)
|
"A judge must not accept appointment to a governmental committee or commission or other governmental position that is concerned with fact or policy issues that do not relate to the law
|
|
|
Law-Related Organizations and Nonprofit Organizations (Extrajudicial Activities)
|
"A judge may serve as an officer
|
|
|
(1) A government agency or private organization devoted to the improvement of the law
|
the legal system
|
|
|
(2) A nonprofit educational
|
religious
|
|
|
Note that service on the board of a public educational other than a law school is prohibited
|
but service on the board of a public law school or any private educational institution would generally be permitted.
|
|
|
A judge must NOT serve as an officer
|
director
|
|
|
A judge must not use the prestige of the judicial office for fundraising or membership solicitation for an organization. A judge may
|
however
|
|
|
Investments (Extrajudicial Activities)
|
"Unless otherwise improper under the CJC
|
|
|
Financial and Business Dealings (Extrajudicial Activities)
|
"A judge must not engage in financial or business dealings that might be perceived to exploit the judge's position
|
|
|
Participation in a Business (Extrajudicial Activities)
|
"A judge must not be an officer
|
|
|
"Gifts
|
Bequests
|
|
|
(1) A gift incident to a public testimonial
|
except when the donor frequently appears on the same side in litigation (e.g.
|
|
|
(2) Books
|
tapes
|
|
|
(4) A gift
|
award
|
|
|
(5) Ordinary social hospitality (e.g.
|
a dinner invitation);
|
|
|
(6) A gift from a relative or friend on a special occasion (e.g.
|
a birthday or wedding gift)
|
|
|
(7) A gift
|
bequest
|
|
|
(8) A loan from a lending institution
|
made in the regular course of its business and on the same terms available to nonjudges;
|
|
|
(10) Any other gift
|
bequest
|
|
|
Fiduciary Activities (Extrajudicial Activities)
|
"Generally
|
|
|
When the duties of a fiduciary conflict with the judge's duties under the CJC
|
the judge should resign as fiduciary."
|
|
|
Service as an Arbitrator or Mediator (Extrajudicial Activities)
|
"A full-time judge must not act as an arbitrator
|
|
|
Practice of Law (Extrajudicial Activities)
|
"A full-time judge must not practice law. However
|
|
|
Outside Compensation and Expenses (Extrajudicial Activities)
|
"The federal government and many other jurisdictions have adopted rigorous requirements concerning receipt and reporting of judges' outside compensation and expense reimbursement. The following rules apply only where not supplanted by more rigorous requirements.
|
|
|
(3) The reimbursement of expenses does not exceed actual expenses reasonably incurred by the judge and
|
when appropriate to the occasion
|
|
|
A judge who receives compensation for outside activities must report: the activity
|
when and where it took place
|
|
|
Like other citizens
|
judges are entitled to reasonable privacy concerning their income
|
|
|
Judges and Politics
|
"The general rule is that judges must stay out of politics. The general rule has three exceptions:
|
|
|
(1) A judge may participate in political activities designed to improve the law
|
the legal system
|
|
|
(3) A judge may participate in political activities that are permitted under the CJC."
|
|
|
|
Candidate
|
"A ""candidate"" is a person who seeks to obtain or retain a judicial office either by election or appointment. The same definition applies to a judge who seeks an elected or appointed nonjudicial office. A person becomes a candidate when she does any one of the following things:
|
|
|
(5) Financially support a political organization or candidate
|
which includes soliciting funds
|
|
|
When false statements are publicly made about a judicial candidate
|
a judge
|
|
|
A judge must resign from judicial office when she becomes a candidate for nonjudicial office. However
|
a judge need not resign when seeking to become a delegate to a state constitutional convention."
|
|
|
Rules Applicable to Candidates for Judicial Office
|
"(This includes an incumbent judge who seeks retention)
|
|
|
A candidate must act with the dignity
|
impartiality
|
|
|
When seeking judicial office
|
a candidate must not:
|
|
|
(1) With respect to cases
|
controversies
|
|
|
(2) Knowingly misrepresent the identity
|
qualifications
|
|
|
A candidate may make pledges or promises to improve judicial administration
|
and an incumbent judge may speak privately with other judges and court personnel in the performance of judicial duties. The duties stated in this section apply to any statements made in the process of securing judicial office
|
|
|
"""Announce Clause"""
|
"The U.S. Supreme Court has held that an ""announce clause"" - i.e.
|
|
|
Rules Applicable to Candidates for Appointed Positions
|
"A candidate must not solicit or accept funds (even through a campaign committee) to support her candidacy.
|
|
|
A candidate must not engage in political activity to secure the appointed position
|
except that she may:
|
|
|
(2) Seek support from groups that regularly offer such support (or from individual
|
where requested by the appointing authority); and
|
|
|
In addition to the acts permitted above
|
a nonjudge candidate for an appointed judicial position may:
|
|
|
(3) Pay ordinary assessments and make ordinary contributions to a political organization or candidate and purchase tickets for political party dinners and other functions."
|
|
|
|
Rules Applicable to Judges and Candidates Subject to Public Election
|
"They may at any time (whether or not they are then standing for election):
|
|
|
When standing for election
|
they may:
|
|
|
(5) Allow their names to be listed on election materials along with the names of candidates for other elective offices
|
and appear in promotions of the political ticket.
|
|
|
These parties may
|
however
|
|
|
A candidate must instruct her campaign committee not to accept contributions in excess of the jurisdiction's specified limits. Also
|
the campaign committee must file with the designated state office a report stating the name
|
|
|
Sanctions for Violating Rules on Political Activity
|
A successful candidate who violates the rules on political activity is subject to judicial discipline. An unsuccessful candidate who is a lawyer and who violates the rules is subject to lawyer discipline.
|
|
|
Application of the Code of Judicial Conduct
|
"It applies to all persons who perform judicial functions
|
|
|
(1) A retired judge subject to recall is allowed to serve as an arbitrator or mediator
|
and (except when acting as a judge) to serve as a fiduciary.
|
|
|
(2) Continuing part-time judges
|
periodic part-time judges
|
