Intro *ABA doesnt punish State Bars do!

UPL

5.5

When lawyers are not licensed in the state theyre practicing (most states require physical presence in state) repercussion: cant collect
fees; malpractice claim {Does dot prevent delegation of work 5.3} Practice of law = ambiguous defined by each state {C.2}
*Non-lawyers cannot engage in systematic & continuous practice of law in a jx & cannot hold themselves out as lawyers to the public.

Competence
Competence

1.1

eysAttornisory Superv

Requires: (1) legal knowledge [settled area of law = breach; unsettled area of law breach], (2) skill, (3) thoroughness & (4)
preparation reasonably necessary for representation Attorney discretion is given great deference [std. = gen. legal practitioner]
Strickland
(1) Performance was deficient [not functioning as counsel guaranteed by 6th A = undermines integrity of trial/jury verdict] (2) Deficient
v. WA Test
performance prejudiced [negated by huge EV of guilt] [must show reasonable probability that but for error, outcome would be different]
(Presumed when: no attorney, asleep, drunk, gov interference w/ representation, some conflicts of interest) applies to duty to investigate
- IAC
Malpractice (1) Duty [relationship formed?]; (2) breach [1.1 foresight (breach of K, of fiduciary duty, or negligence]; (3) Causation [Actual (but for
attys conduct, no damages) & Prox. (w/in scope of risk caused by acts)]; (4) Damages [legally cognizable harm]
- Settlement does not cut off the possibility of a malpractice claim; - Must prove you would have won the underlying case = $$
Reasonable diligence & promptness failure to respond to court = malpractice claim (based on negligent behavior)
Diligence
1.3
Communication 1.4 lawyer must maintain reasonable lines of communication w/ clients during rep. convey settlement offers to clients
Rat Rule
8.3 Lawyer must report another lawyers rule breaking in relation to honesty, trustworthiness, or fitness as a lawyer.
8.4 Lawyers cannot knowingly assist another lawyer violate rules of conduct (cannot tell subordinate to violate rule)
5.1(a) Supervisory atty must make efforts to reasonably assure all lawyers in the firm conform to the rules of prof. conduct
5.1(c) Atty responsible for another atty's rule violation if: ordered conduct, has direct authority over, or knows of conduct when can be fixed
1.7 Supervisory attys can have imputed conflicts from other attys in the firm (1.10) also may be resp. for ending relationship [1.16(d)]
5.3 Responsibilities regarding non-lawyer assistants must ensure the non-lawyer complies with lawyer conduct rules.

Subordinate
Attorney

Bound by rules even though acting at direction of another person does not violate rules if acting in accordance w/ supervisory
attys reasonable resolution of an arguable question of professional duty. [All about knowledge sub. had of violation]

5.2

Confidentiality (A-C Priv & W-P do NOT PROTECT UNDERLYING FACTS)

Confidentiality

1.6

A lawyer cannot reveal any information relating to the representation of a client {must be representing them!} unless the client
gives informed consent {or impliedly authorized for carrying out representation}or an exception applies [exceptions permissive disclosure: prevent death, prevent client committing crime, prevent or mitigate financial harm, secure legal advise abt rules,
protect oneself in client lawsuit, comply w/ law or court order, detect/resolve conflicts of int. ] extends for life of lawyer! *Trumped by 3.3
{Permissive disclosure under the rules does not waive A-C privilege} **Duty does not extend to physical EV of a crime [3.4]
A lawyer shall not reveal a confidence or secret of his client unless the client gives informed consent, except for disclosures that are impliedly authorized by
carrying out the representation [add relevant exception here] (and except to prevent the client from committing a criminal act that the lawyer believes is
likely to result in imminent death or substantial bodily harm)
Inadvertent Disclosure 4.4(b) If you know or reasonably know info (related to rep.) disclosure was inadvertent - must promptly notify sender
Attorney-Client R68 Elements: (1) Communication btwn privileged people (+ corps.); (2) made in confidence [waffle house mtg not confid.]; (3)
for the purpose of providing legal assistance to the client. (Party asserting priv. has burden of proving each element)
Privilege
Elements: (1) Tangible material; (2) Prepared by a party or a partys agent; (3) in anticipation of/during course of litigation
WorkR87
Types: (1) Ordinary [88] No disclosure unless opp. party has (1) substantial need; & (2) cant get info w/o undue hardship
Product
(2) Opinion [89: opinions/mental impressions of atty] no disclosure unless waived or extreme circs or crime inv.

Attorney-Client Relationship
A person who consults with an atty about forming a relationship = prospective client; cannot disclose info gained during intake
interview except to reveal 1.9 conflict. If there is a 1.9 conflict, then atty cannot represent a client whose int. are materially adverse
to prospective client that are substantially similar w/o consent of both clients imputed to firm. {C.4: limit interviews}
R15 Consultation = prosp. relations. Exists no confidential info disclosure; must protect prop.; use reasonable care no conflicts
A relationship forms when: (1) a person manifests intent to attorney they want legal rep. & the attorney consents or knows/reas.
Formation of R14
should know that client thinks relationship formed OR (2) court appoints attorney. {No express need for written contract}
Relationship
A contract btwn an attorney & client may be enforced by either party unless it was made far into rep. or after representation.
R18
1.2 Lawyer shall abide by clients decisions concerning objectives of representation (& whether: to settle, client will testify, plea, waive jury
trial) must communicate these offers [1.4]; attorney may limit scope of representation [ghostwriting should be written, but still must
be reasonable & able to competently rep.!]; shall not counsel client to engage in criminal or fraudulent acts
R19 A client & lawyer may agree to limit representation if the client consents and the limits are reasonable in the circumstances.
1.4 Must explain info for decisions on informed consent; ways to implement client objectives; promptly comply w/ info requests; keep client
informed of status of matter; inform client of relevant limits on lawyers conduct & explain matters so client can make informed decisions.
1.8 Lawyer must try to avoid any conflict of interest that may potentially be avoided
R16 Attorney must act in a manner consistent w/ clients objectives, be competent & diligent, maintain client confidentiality, fulfill K
obligations
R17 Client duties: must pay attorney fees, indemnify lawyer for liability the client caused, & fulfill valid K obligations.
Contactin
4.1(a) Cannot make a false stmt of material fact/law to a 3rd person or (b) fail to disclose info when disclosure is nec. to prevent crime.
rd
g3
4.2 No talk abt subj. of rep. w/ a person atty knows rep. by another atty in matter (consent/EonfideEe.) solved by alerting opp. atty.
Parties
4.3 dealing w/ unrepresented person on behalf of client: cannot give legal advice except to say go get another attorney if conflicting int.
4.4(a) Cannot use means w/ no other purpose than embarrassing, delaying, or burdening 3 rd P or getting EV in violation of legal rts.
Misconduct 8.4 Attorney cannot: commit criminal act that reflects poorly on lawyers honesty, trustworthiness, or fitness as a lawyer. No conduct
involving dishonesty, fraud, deceit, misrep. cannot assist client in illegal conduct [or send non-atty to do any of this] shouldnt
threaten criminal prosecution when it may be a misrepresentation and may be prejudicial to administration of justice (c) & (d)
Safeguarding
1.15 Must keep clients $ in separate trust acct. Records must be kept for 5 years after rep. if 2 ppl have int, it must be kept separate
until dispute is resolved. Record-Keeping: personally review regularly {dont delegate} fiduciary duty to protect
Property

ionRepresentatScope of

Duty to
Prospective
Clients

1.18

Ending
Relationship

1.16

(a) Must withdraw: rep. will violate MR; physical/mental cond. Impairs ability; discharged (b) May withdraw: w/ no materially
adverse effects on client; C acts in way attorney believes is illegal; C used attorney svcs to commit crime/fraud; C insists on acting
in a way atty fundamentally disagrees w/; C fails to fulfill obl.; unreas. $ burden on atty court must usually allow withdrawal

Attorneys Fees
Reasonable

factors to determine reasonableness: time required, likelihood of barring other cases, fee usu. charged, amount involved & result
obtained, short notice, time/length of prof. relationship w/ client, exp. Of attorney, & whether fee is fixed or contingent.
*Contingent fees must be in writing & how fee determined must be included {not allowed in divorce/alimony or criminal case}
Non-Refundable Fees: if you collect a fee you didnt earn, you have to refund even if the K says non-refundable
1.8(i)(2) Fees create an inherent conflict of int = hourly: client wants pay less & attorney wants to charge more / contingent: attorney
wants to settle early w/ little effort & client may want to go all the way to trial flat fee (usu. charged in locality) + reas.
1.5(e) Fees can only be divided btwn attys not in same firm if: proport. To work [w/ joint responsib.]; client agrees; & total is reas.
1.8(f) 3rd P pay fees: not allowed unless: C gives informed consent; no interference w/ professional judgment; & confidentiality upheld
5.4 Attys cannot directly split fees w/ non-attys can share fees w/ non-profit that retained/recomm. Client; cannot form partnership
for practicing law w/ non-attorney; cannot pract. for corp that attorney has interest in or is an officer of. Cannot pay for nonattorney to get Cs (b) An atty CANNOT form a partnership with a non-lawyer if any of the activities consist of the practice of law.

1.5

& no double
billing!!

Inherent
conflict w/ $

Fee Splitting

Conflicts of Interest
Curren
t
Clients

1.7

(a) Current conflict if: (1) rep. of 1 client will be directly adverse {C.6} to rep. of another client OR (2) There is a sig. risk that rep. of 1+
clients will be materially limited by the attys responsibilities to another client, former client, or personal int. of attorney
- Cant hot potato clients (passing for big $ clients) b/c relationship may begin w/ intake interview [1.18] & no rep. co [Holloway v. AK]
(b) Even if conflict exists under (a), attorney may still rep. client if: attorney reas. believes he can rep. both clients competently &
diligently; not prohibited by law; not on opp. sides of v.; each client gives consent in writing.
Informed R122 Conflicts of interest must be waived by both affected parties through informed consent = requires that client/former client have
reas. adequate info abt. material risks of such rep. factors listed in (C.c(i) p. 232)
Consent
Successiv
1.9 After rep., an attorney shall not rep. another client in the same or substantially related matter where that persons interests are
materially adverse to the ints. Of the former client {informed cons. in writing} same applies to an attys old firms former client
e Conflicts
{C.3}: Substantially Related = involve same trans/legal dispute; subst. risk Tonfide. Info from 1 st rep. would materially advance
clients position in subsequent matter. Info disclosed to public disqualifying very fact-specific based on opp. for misuse
Subst.
R132 Substantially related if: (1) current matter involves the work attorney performed for former client; OR (2) there is subst. risk that
rep. of the client will involve the use of info gained in course of rep. former client, unless info has become generally known.
Related
{C.d} = cannot switch sides in same matter; cannot attack attys own former work; cannot disclose former C confidences.

Specific
Conflicts

1.8

(a) No business transactions w/ C [writing, info on outside counsel, inf. consent]; (b) cannot use info to disadvantage of client; (c) no
solicitation of C gifts; (d) no literary/media rts to story; (e) no financial assistance to C [court/lit. costs]; (f) 3rd P cant pay on behalf
of C [inf. consent, no interference, 1.6 protections]; (g) no aggregated settlement w/ 2 clients; (h) no agreement limiting malpractice
liability; (i) no proprietary interest in litigation; (j) no sex w/ clients unless relationship existed before representation began
Imputing 1.10 Migratory Lawyer w/ 1.9 conf.: (a) When an attorney has a conflict while working in a firm, everyone in that firm has the conflict
[doesnt apply to sex/pers.l conflicts] 1.10(a)(2) removes imputed conflict by requiring firm to follow screening procedures of (i)Conflicts
(iii) = no client consent req. (b) deals with the old firm and how to handle C that conflicts w/ old employee-lawyers former C
Once an attorney realizes a conflict of interest exists, in order to protect the confidentiality interests of each client, she must withdraw from rep. [1.16(a)(1)]

Litigation Ethics
(a) Cannot knowingly: make (or fail to correct) false statement of law to court; fail to disclose controlling legal authority adverse to
client that opp. counsel did not mention; offer EV attorney knows/sh know to be false. (b) C intends to perjure must tell court; (c)
this rule trumps client confidentiality [1.6]; (d) attorney must, in ex parte proceeding, tell court all info necessary to make informed
decision (c) Explained If an atty learns her client has committed perjury [b/c 3.3 trumps 1.6], she must (1) try to convince client to
rectify it; (2) attempt to withdraw if it will fix the problem; or (3) tell the court [If another W perjures, then must tell court]
Trial publicity
3.6 (a) cannot make statements to media abt trial specific things in (b); (c) can only make nec. statements to mitigate neg. publicity
Advocate 3.7 Lawyer cannot be an advocate in the trial where they will likely be a necessary witness {uncontested issue; relates to nature/value of legal
srvcs in case; disqual. Would cause subst. hardship} not imputed to rest of firm (unless precluded by 1.7 or 1.9)
-witness
Fairness to
3.4 Issues with Evidence Lawyer cant unlawfully obstruct another partys access to EV or alter, destroy, or conceal a
doc./tangible thing w/ potential evidentiary value {& cant tell someone else to do it} (e) cannot allude to any matter the atty
Opp. Counsel
does not reasonably believe is supported by admissible EV, also cannot state personal op. about case or witness credib. extreme
cases may be viewed as disrupting the tribunal [3.5(d)]
Impartiality
3.5 Lawyer cannot seek to influence a judge, juror, or prospective juror in an illegal manner [tampering]
Statements
8.2(a) A lawyer cannot make statements about judges when the atty knows the statement is false or is making the stmt w/ reckless
disregard as to its truth or falsity about the qualifications or integrity of a judge or someone running for a judgeship.
abt Judges

Candor to
the Court

3.3

Advertising
Ad
7.1 Cannot make false or misleading statements about atty or atty services. False/misleading = contains material misrepresentation Of
law/fact or omits fact necessary to make statement as a whole not materially misleading nothing about tacky ads
requirements
Forms of
7.2 (a) May advertise through written, recorded or electronic comm. (b) lawyer cannot compensate for recommending that lawyers
services; (c) must include name & address of at least 1 attorney or firm responsible for content of ad.
Advertising
In-Person
7.3(a) Cannot solicit in-person or by real-time electronic communication, when the primary motive is pecuniary gain unless it is
another lawyer or someone who has a family, close personal, or prior professional relationship w/ lawyer.
Solicitation
Mail
7.3(c) Categorical ban on this is unconstitutional; SOIf soliciting someone known to be in need of legal services, the written, recorded
or electronic material must have Advertising Material on the outside envelope (or at the beginning & end of recorded material)
Solicitation
unless there is a prior personal or professional relationship, like in (a).