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Ethics Rules OUTLINE

TERMINOLOGY
1.0(a) Belief – denotes that the person involved actually supposed the fact in question to be true.
A person’s belief may be inferred from the circumstances

1.0(b) Confirmed in Writing – when used in reference to the “informed consent” of a person,
denotes “informed consent” that is given in writing by the person or a writing that a lawyer
promptly transmits to the person confirming an oral informed consent.
 [Adv. Cmte. 1] If it is not feasible to obtain or transmit the writing at the
time the person gives informed consent, then the L must obtain or transmit it
within a reasonable time thereafter

1.0(c) Firm or Law Firm – denotes a lawyer(s) in a law partnership, professional corporation,
sole proprietorship or other association authorized to practice law; OR lawyer(s) employed in a
legal services organization or the legal department of a corporation or other organization
 [Adv. Cmte. 2] The existence of a firm depends on the specific facts.
2 practitioners who share office space and occasionally consult each
o
other ordinarily would NOT be regarded as a “firm”
o 2 practitioners who present themselves to the public in a way that
suggests that they are a firm OR conduct themselves as a firm CAN be
regarded as a “firm”
o Other Relevant Factors in Determining a Firm:
 Terms of any relevant agreement between associated lawyers
 Mutual access concerning the Cs the Ls serve
 [Adv. Cmte. 3] Although there is NO uncertainty as to whether the legal
department of a corp. is a “firm”, there is confusion regarding identity of the
CLIENT
o Does the representation cover affiliates? Subsidiaries?
Unincorporated ass’n?

1.0(d) Fraud or Fraudulent – denotes conduct that is fraudulent under the substantive or
procedural law of the applicable jurisdiction and has a purpose to deceive
 [Adv. Cmte. 5] “Fraud” refers to such characterized by substantive law of
the applicable juris.

1.0(e) Informed Consent – denotes the agreement by a person to a proposed course of conduct
after the lawyer has communicated adequate information and explanation about the material risks
of and reasonably available alternatives to the proposed course of conduct
 [Adv. Cmte. 6] Many of the RoPC require the lawyer to obtain “informed
consent” of a client – See Rules 1.2(c), 1.6(a), and 1.7(b)
o L must make reasonable efforts to ensure that the C or other person
possesses info reasonably adequate to make an informed decision
o Ordinarily, disclosure of the facts and circumstances giving rise to the
situation, any explanation reasonably necessary to inform the C of the
material advantages of the proposed course of conduct, and a
discussion of the C’s options and alternatives
o Relevant Factors To Determine “Informed Consent”:
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Ethics Rules OUTLINE

Whether the C is experienced in legal matters generally



Whether the C is experienced in making decisions of the type

involved
 Whether the C is independently represented by other counsel in
giving consent
o [Adv. Cmte. 7] Obtaining informed consent will usually require an
affirmative response by the C or other person.
 May NOT assume consent via silence
 MAY be inferred from the conduct of a C who has reasonably
adequate information about the matter

1.0(f) Knowingly or Known or Knows – denotes actual knowledge of the fact in question. A
person’s knowledge may be inferred from the circumstances

1.0(g) Partner – denotes a member of a partnership, a shareholder in a law firm organized as a


professional corporation, or a member of an association authorized to practice law

1.0(h) Reasonable or Reasonably – when used in relation to conduct by a lawyer, denotes the
conduct of a reasonably prudent and competent lawyer

1.0(i) Reasonable Belief or Reasonably Believes – when used in reference to a lawyer, denotes
that the lawyer believes the matter in question and that the circumstances are such that the belief
is reasonable

1.0(j) Reasonably Should Know – when used in reference to a lawyer, denotes that a lawyer of
reasonable prudence and competence would ascertain the matter in question

1.0(k) Screened – denotes the isolation of a lawyer from any participation in a matter through
the timely imposition of procedures within a firm that are reasonably adequate under the
circumstances to protect information that the isolated lawyer is obligated to protect under these
Rules or other law
 [Adv. Cmte. 8] Applies to situations where screening of a personally
disqualified L is PERMITTED to remove imposition of a conflict of interest
under Rules 1.10, 1.11, 1.12, or 1.18
 [Adv. Cmte. 9] The purpose is to assure the affected parties that
confidential information known by the personally disqualified L remains
protected.
o Additional screening measures may be appropriate to implement,
reinforce, and remind all affected lawyers of the presence of the
screening
o [Adv. Cmte. 10] Screening measures must be implemented asap

1.0(l) Substantial – when used in reference to degree or extent, denotes a material matter of
clear and weighty importance

1.0(m) Tribunal – denotes a court, an arbitrator in a binding arbitration proceeding or a


legislative body, administrative agency or other body acting in an adjudicative capacity. A

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Ethics Rules OUTLINE

legislative body, administrative agency or other body acts in an adjudicative capacity when a
neutral official, after the presentation of evidence or legal argument by parties, will render a
binding legal judgment directly affecting a party’s interests in a particular matter.

1.0(n) Writing or Written – denotes a tangible or electronic record of a communication or


representation, including handwriting, typewriting, printing, photostating, photography, audio or
videorecording and e-mail. A “signed” writing includes an electronic sound, symbol, or process
attached to or logically associated with a writing and executed or adopted by a person with the
intent to sign the writing.

COMPETENCE & DILIGENCE


Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation REASONABLY necessary
for the representation.

As to “Legal Knowledge” and “Skill”…


[Adv. Cmte. 1] To determine competence, Relevant Factors Include:
 The relative complexity and specialized nature of the matter,
 The L’s general experience,
 The L’s training and experience in the field in question,
 The preparation and study the lawyer is able to give the matter, and
 Whether it is feasible to refer the matter to, or associate or consult with, a L
of established competence in the field in question
The relevant competence is that of a general practitioner, although expertise in a
particular field may be required in some circumstances.
[Adv. Cmte. 2] A L need not necessarily have special training or prior experience.
 Perhaps the most fundamental legal skill consists of determining what kind of
legal problems a situation may involve.
[Adv. Cmte. 3]In an emergency, a L may render such advice reasonably
necessary under the circumstances in a matter in which the L does not have
the skill ordinarily required where referral to or consultation with another L
would be impractical.

As to “Thoroughness” and “Preparation”…


[Adv. Cmte. 5] Competent handling of a legal matter includes inquiry into and
analysis of the FACTUAL and LEGAL elements of the problem, adequate preparation,
AND use of methods and procedures meeting the standards of competent
practitioners.

As to Maintaining “Competence”…
[Adv. Cmte. 6] To maintain the requisite knowledge and skill, a L should keep
abreast of changes in the law and its practice, engage in continuing study, and
comply with all CLE reqs.

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Ethics Rules OUTLINE

Rule 1.3 Diligence


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

[Adv. Cmte. 1] A L should pursue a matter on behalf of a C despite opposition,


obstruction, or personal inconvenience to the L, AND take whatever lawful ethical
measures are required to vindicate a C’s cause.
 A L must also act with commitment and dedication to the interests of the C
and with ZEAL in advocacy upon the C’s behalf.
 But, a L may exercise professional discretion in determining the MEANS by
which a matter should be pursued
[Adv. Cmte. 3] The worst professional shortcoming is procrastination, esp. w/SOL.
Unreasonable delay can cause a C needless anxiety and undermine confidence in
the L’s trustworthiness.
[Adv. Cmte. 4] Unless the relationship is terminated under 1.16, a L should carry
through to conclusion all matters undertaken for a C.
[Adv. Cmte 5] In the instance of a L’s death, each sole practitioner should prepare
a plan that designates another competent L to pursue the interests of his clients. If
no plan, then ABA Rule 28 provides for court appointment of a L to take protective
action.

DIVISION OF AUTHORITY
Rule 1.2 Scope Of Representation And Allocation Of Authority
Between Client And Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning
the OBJETIVES of representation and, as required by Rule 1.4, shall consult with the
client as to the MEANS by which they are to be pursued. A lawyer may take such action on
behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall
abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide
by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to
waive jury trial and whether the client will testify.

As to Allocation of Authority between Client and Lawyer…


[Adv. Cmte. 1] confers upon the C the ultimate authority to determine the
purposes to be served by the legal representation, within the limits imposed by law
and the L’s professional obligations.
 With respect to the MEANS by which the C’s objectives are to be pursued, the
L shall consult with the C as required by Rule 1.4(a)(2).
[Adv. Cmte. 2] When L and C disagree to the means to serve the C’s objective,
clients should DEFER to the specialized knowledge of the L with respect to technical,

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Ethics Rules OUTLINE

legal and “tactical matters”  strategic matters


 Conversely, Ls defer to the C regarding questions such as expense incurred
and concern for 3rd persons.
 IF no agreement can be reached, the L may withdraw under Rule 1.16(b)(4)
or the C may discharge the L under Rule 1.16(a)(3).
[Adv. Cmte. 3] The C may grant advance authorization for actions taken on his
behalf, but the L may NOT go beyond that apparent authorization.
[Adv. Cmte. 4] If the C suffers diminished capacity, the L’s duty to abide by the C’s
decisions under Rule 1.14.

 In practice, the distinction between objectives and means is difficult to draw. Freedman
says the client should be able to direct objectives and means. His opponents are
paternalistic lawyers. He believes in maximizing client autonomy: respect the client as a
moral agent.
 Restatement says you have the duty to follow the client’s opinion if he has one.

(b) A lawyer's representation of a client, including representation by appointment, does NOT


constitute an endorsement of the client's political, economic, social or moral views or
activities.

As to Independence from Client’s Views or Activities…


[Adv. Cmte. 5] Legal counsel shall not be denied to any person, regardless of his
views

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

As to Agreements Limiting the Scope of Representation…


[Adv. Cmte. 6] Scope of services may be limited by agreement or under the terms
the L’s services are made available to the C.
 In addition, the terms upon which representation is undertaken may exclude
specific means that might otherwise be used to accomplish the C’s objectives
(such as cost, or repugnant action)
[Adv. Cmte. 7] Affords substantial latitude, but limitation must be reasonable.
 Although an agreement for a limited representation does NOT exempt a L
from the duty to provide competent representation, the limitation is a
FACTOR when determining the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation
[Adv. Cmte. 8] All agreements concerning a L’s representation of a C must accord
with the RoPC under Rules 1.1, 1.8, and 5.6.

Rule 1.4 Communication


[Adv. Cmte. 1] Reasonable communication between the L and the C is necessary
for the C effectively to participate in the representation.

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(a) A lawyer shall:

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

[Adv. Cmte. 2] If a particular decision regarding representation must be made by


the C, Rule 1.4(a)(1) requires that the L promptly consult with and secure the C’s
consent prior to taking action unless prior discussions have previously resolved the
matter.

(2) Reasonably consult with the client about the MEANS by which the client's
OBJECIVES are to be accomplished;

[Adv. Cmte. 3] Rule 1.4(a)(2) requires the L to reasonably consult with the C
about the MEANS to be used to accomplish the C’s OBJECTIVES – and in some
situations, such consultation is a duty of the L. However, other situations, such as
the exigency of the trial setting, may require the L to act without prior consultation.

(3) keep the client reasonably informed about the status of the matter; [Adv. Cmte. 3]
such as significant developments affecting the timing or the substance of the
representation.

(4) promptly comply with reasonable requests for information; [Adv. Cmte. 4] such as
promptly returning phone calls and regularly communicating with clients to minimize the
occasions on which a client will need to request information

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

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

As to Explaining Matters…
[Adv. Cmte. 5] Adequacy of communication depends in part on the kind of advice
or assistance that is involved.
 For example, in proposals made in negotiation, the L should review all
important provisions with the C before proceeding to agreement
 For example, in litigation a L should explain the general strategy and
prospects of success and ordinarily should consult the C on tacts.
 NOTE: In certain circumstances, such as when a L asks a C to consent to a
representation affected by a conflict of interest, the C must give informed
consent, as defined in Rule 1.0(e)
[Adv. Cmte. 6] Sometimes, fully informing the C to this standard is impracticable…
 As to children/retards, See Rule 1.14
 As to a C that is a grp./org., it is impossible to inform every member, See

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Rule 1.13
[Adv. Cmte. 7] HOWEVER, in some circumstances, a L may be justified in delaying
transmission of information when the C would be likely to react imprudently to an
immediate communication.
 Ex. A L might withhold a psychiatric diagnosis of a C when the examining
psychiatrist indicates that disclosure would harm the C.

 If there is an important issue to be resolved, you have an obligation to consult with your
client, even if it is a question of means.

Rule 2.1 Advisor


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

[Adv. Cmte. 1] A C is entitled to straightforward advice expressing the L’s honest


assessment, even though C is disinclined to hear it.
 [Adv. Cmte. 2] Pure, technical legal advice may be inadequate – it is proper
to refer to relevant moral and ethical considerations as well.
 [Adv. Cmte. 4] Certain matters that go beyond strictly legal Qs may also be
in the domain of another profession such as clinical psychology or social
work, for example.
[Adv. Cmte. 5] A L is NOT expected to give advice until ASKED by the client.
 However, when a L knows that a C proposes a course of action likely to result
in adverse legal consequences, the L’s duty under Rule 1.4 may require that
the L offer advice if that course of action is related to the representation
 However, when a matter is likely to involve litigation, it may be necessary
under Rule 1.4 to inform the C of forms of dispute resolution as reasonable
alternatives

 Owe it to your client to raise issues beyond the simple legality of what you
are doing. But can’t rob him of his ability to ultimately make the decision.

CONFIDENTIALITY
Rule 1.6 Confidentiality of Information
[Adv. Cmte. 1] See also Rule 1.18 for the L’s duties with respect to info provided
to the L by a prospective C, Rule 1.9(c)(2) for the L’s duty not to reveal
information relating to the L’s prior representation of a former C, and Rule 1.8(b)
and Rule 1.9(c)(1) for the L’s duties with respect to the use of such info to the
disadvantage of Cs and former Cs!

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(a) A lawyer shall NOT reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).

[Adv. Cmte. 2] This contributes to the trust that is the HALLMARK of the L-C
relationship, whereby the C is encouraged to seek legal assistance and to
communicate fully and frankly with the L even as to embarrassing or damaging
subjects. The L needs this info to represent the C effectively.
 [Adv. Cmte. 3] The principle of L-C confidentiality is reinforced by the AC
priv, the work product doctrine, and the rule of confidentiality in RoPC
o The confidentiality rule applies NOT ONLY to matters
communicated in confidence by the C but also to ALL info
relating to the representation, whatever its source.
[Adv. Cmte. 5] A L is IMPLIEDLY authorized to make disclosures about a C when
appropriate OR to the extent that the C’s instructions limit that authority

(b) A lawyer MAY reveal information relating to the representation of a client to the extent
the lawyer reasonably believes necessary:

[Adv. Cmte. 14] Rule 1.6(b) permits disclosure ONLY to the extent the L
reasonably believes the disclosure is necessary to accomplish one of the purposes
specified. Where practicable, the L should first seek to persuade the C to take
suitable action to avoid the need for disclosure.
[Adv. Cmte. 15] In exercising discretion under Rule 1.6(b), the L may consider
such factors as the nature of the L’s relationship w/C, the L’s own involvement in
the transaction, and factors that may extenuate the conduct in Q.
 NOTE: Some rules REQUIRE disclosure regardless of Rule 1.6(b). See Rules
1.2(d), 4.1(b), 8.1.
 [Adv. Cmte. 16] A L must act competently to safeguard the info relating to
representation of a C; See also Rules 5.1, 5.3
o [Adv. Cmte. 17] Factors considered to determine the reasonableness
of the L’s expectation of confidentiality: sensitivity of the info AND the
extent to which the privacy is protected by law or agreement
[Adv. Cmte. 18] The duty of confidentiality CONTINUES after the L-C relationship
has ended
 See Rule 1.9(c)(1-2) as to prohibition of using info to detriment of former
client!

 This is discretionary: because level of competition is high & level of loyalty of


businesses to firms is low, firms have the incentive to interpret legal obligations in a way
that favors the client. It remains to be seen whether a discretionary provision will really
change the behavior of American lawyers.

(1) to prevent reasonably certain death or substantial bodily harm;

[Adv. Cmte. 6] Rule 1.6(b)(1) recognizes the overriding value of life and physical
integrity. Such harm must be suffered imminently or be a present and substantial

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threat.
 Ex. A L who knows his C accidently discharged toxic waste into a town’s
water supply may reveal this info to the authorities.
 There have been some calls for a wrongful conviction exemption to the duty of
confidentiality. But as the Rule stands, this would not allow the lawyer to break his duty.
Rule has been amended so as to not require the trigger of a criminal “act” by the client.

Ex: Logan case, client admitted he had done the shooting and described what it was that he had
done, a reliable description. But he feared he would lose his plea deal if he confessed, so he
forbade his lawyers from revealing it until he died. Another man was then convicted falsely and
sentenced to life in prison. Served 26 years before the silence ended after the lawyer’s client
died. They argued they were duty-bound to protect their client’s confidentiality. They put their
perception of their obligations to their client ahead of the falsely convicted man. The client was
not committing a crime or fraud by not saying anything.

Ex: Spaulding case: Plaintiff sustained an aneurism in car accident. Defendant’s doctor
discovered the aneurism, and said the plaintiff could die instantly. The defendant’s lawyers did
not tell the plaintiff, and settlement was reached without including the condition.
 After the condition was discovered, the case ends up in the Supreme Court This was a
minor, and both sides had the obligation to inform the court of all information in their
hands. The result the court reaches turns on this peculiar fact.
 Not only did they remain silent, they did not bring the issue to their client. They were
paid by the insurance company, not the driver. The Rules say: the effect of decision on
third parties is normally for the client. The autonomy of the client to make the
decision was not respected. The lawyer concluded that his client would want to follow
the narrowest and most self-regarding course of action. Did not give client the
opportunity to decide. Also a conflict because fees being paid by the insurance co.
 Under rules? Revealing was discretionary under the Model Code, and there was no
future act being committed that revealing the information would prevent. Under the IL
rule, could not reveal except if necessary to keep the client from committing an ACT that
would result in death or serious bodily harm. Again, there was no act being committed in
either case.

Model Rule in 2001: only if client is committing a criminal act that will likely result in
imminent death or substantial bodily harm.--> Lawyers in Spaulding could not have decided to
reveal this at all. (Don’t have to reveal)
Model Rule in 2008: No mandatory provisions! A lawyer MAY reveal info  to prevent
reasonably certain death or substantial bodily harm. (Could reveal, but don’t have to)
 Doing away with the confidentiality requirements might, as Freedman points out, make
clients less willing to confide in their attorneys. This is necessary to have a fair trial. But
policy considerations may require the privilege/confidentiality to be violated in certain
circumstances. The duty is not absolute—indeed, it varies from state to state.
 One proposed solution is to prevent lawyers from revealing information because of the
importance of confidentiality, but to expect that in some circumstances the lawyers will
find it necessary to violate confidentiality and break the Rules. This may not work well,
however, because lawyers may not want to have so much discretion on such a difficult

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issue. Their clients may not want them to come forward, and having a mandatory Rule
would make it much easier for them to do so against their clients’ wishes. Moreover, if
we really believe that this is appropriate behavior, it should not be discretionary.

(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;

[Adv. Cmte. 7] Such a serious abuse of the L-C relationship by the C forfeits the
protection of Rule 1.6. See Rule 1.16 w/respect to a L’s right/obligation to
withdraw and Rule 1.13(c) w/respect to a L’s permission to reveal info relating to a
corp.’s fraud.
 Includes future crimes

(3) to prevent, mitigate or rectify substantial injury to the financial interests or


property of another that is reasonably certain to result or has resulted from the
client's commission of a crime or fraud in furtherance of which the client has used
the lawyer's services;

[Adv. Cmte. 8] Rule 1.6(b)(3) addresses the situation where the L does not learn
of the C’s crime/fraud until AFTER it has been consummated, whereby the loss
suffered by the affected person may be prevented, rectified, or mitigated.
 Does NOT apply when the C thereafter employs a L for representation for that
crime.

 Includes crimes committed in the past.


 Freedman does not like this element. He objects to the release of information to mitigate
or rectify a past injury/fraud. The general thrust of ethical rules has been to impose the
highest protection with respect to events in the past which the lawyer then learns of later.
Past crimes, frauds, the client brings to the lawyer—have traditionally been most
protected under the rules. This provision would allow for the revelation of completed
frauds whose effects are continuing

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client; or

[Adv. Cmte. 10] Where a legal/disciplinary charge alleges misconduct in the L’s
complicity in the C’s crime/fraud, the L MAY disclosure certain info essential to his
defense.
 The L does not have to await commencement of an action that charges such
complicity, so that the defense may be established by responding directly to
a 3rd party.
 “Allegations” must be formal charges, not just criticisms.

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(6) to comply with other law or a court order.

[Adv. Cmte. 12] Where another law supersedes Rule 1.6, (b)(6) permits the L to
make such disclosures as are necessary to comply with the law, and to discuss the
matter under Rule 1.4.

 Freedman thinks these priorities are misplaced.

 noisy withdrawal: Even where the lawyer is prohibited from disclosing client
information, the rules permit a form of withdrawal that will often implicitly reveal
protected information. The lawyer may give notice of withdrawal and “disaffirm” and
opinions, documents, etc.

Rule 1.9 Duties To Former Clients


(c) A lawyer who has FORMERLY represented a client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former
client except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit
or require with respect to a client.

[Adv. Cmte. 8] However, the fact that a L has once served a C does NOT preclude
the L from using generally known info about that C when later rep’ing another C
[Adv. Cmte. 9] These provisions may be WAIVED if the C gives informed
consent, confirmed in writing.

Rule 1.13 Organization As Client


[Adv. Cmte. 1] An org. C is a legal entity, but it cannot act except thru its officers,
directors, employees, shareholders, and other constituents.
 NOTE: This section applies equally to “unincorp. Associations”

(a) A lawyer employed or retained by an organization represents the organization...

[Adv. Cmte. 2] When one of the constituents of an org. C communicates with the
org.’s L in that person’s org. capacity, the communication is protected by Rule 1.6.

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 This does NOT mean that constituents of an org. C are the Cs of the L. The L
may NOT disclose to such constituents info relating to the representation
except for disclosures explicitly/impliedly authorized by the org. C in order to
carry out the representation or otherwise under Rule 1.6.
[Adv. Cmte. 3] When constituents of the org. make decisions for it, the decisions
ordinarily must be accepted by the L even if their utility or prudence is doubtful.
 Decisions concerning POLICY and operations, including ones entailing
serious risk, are NOT as such in the L’s province.

(b) If a lawyer for an organization knows that an officer, employee or other person associated
with the organization is engaged in action, intends to act or refuses to act in a matter related to
the representation that is a violation of a legal obligation to the organization, or a violation of
law that reasonably might be imputed to the organization, and that is likely to result in
substantial injury to the organization, then the lawyer shall proceed as is reasonably
necessary in the best interest of the organization. UNLESS the lawyer reasonably believes that it
is not necessary in the best interest of the organization to do so, the lawyer shall refer the
matter to higher authority in the organization....

[Adv. Cmte. 3] BUT, when the L knows that the org. is likely to be substantially
injured by action of an officer or other constituent that violates a legal obligation to
the org. or is in violation of any LAW that might be imputed to the org., the L MUST
proceed as is reasonably necessary in the best interests of the org., the C. (NOTE:
Knowledge may be inferred from the obvious/circumstances under Rule 1.0(f))
[Adv. Cmte. 4] In determining how to proceed, a L should give due consideration
to:
 The seriousness of the violation and its consequences
 The responsibility in the org.
 The apparent motivation of the person involved
 The policies of the org. concerning such matters, and
 Any other relevant considerations
 Ordinarily, referral to a higher authority would be necessary, BUT any
measure taken should, to the extent practicable, minimize the risk of
revealing info relating to the representation of persons outside the org.
o [Adv. Cmte. 5] The highest authority is typically the Bd. Directors
[Adv. Cmte. 10] If the L finds that the org.’s interests have become ADVERSE to
1+ constituents, the L should advise the constituent that the L cannot represent
such constituent, and that such person may wish to obtain independent
representation.
 When there is such adversity of interest, the L for the org. CANNOT provide
legal rep. for constituent

 lawyer required to go up the ladder. Thus, have to reveal information from one
employee to the higher-ups. Corporate lawyers see this as demanding because it
interferes with the way business is done within corporations. Puts them in a tough spot
with respect to corporate execs, who may decide whether to retain the lawyer.

(c) Except as provided in paragraph (d), IF

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(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can
act on behalf of the organization insists upon or fails to address in a timely and appropriate
manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in
substantial injury to the organization,

then the lawyer may reveal information relating to the representation whether or not Rule 1.6
permits such disclosure, but only if and to the extent the lawyer reasonably believes
necessary to prevent substantial injury to the organization.

 The exception permits revealing information outside the corporation. A lawyer may
reveal information related to the representation, but only to the extent necessary to
prevent substantial injury to the organization.
 Freedman says this won’t happen. He complains that the actions triggered by 1.13 are
triggered only when the revelation is in the interest of the corporation, not third parties.
The obligations under 1.6 apply regardless of whether in the interest of the client. But he
is wrong, because Rule 1.13 supplement’s the lawyer’s responsibility under 1.6,
providing the lawyer for a corporation with an additional basis to reveal information that
he would not have been permitted to reveal under 1.6.
o Who might you report a violation to? SEC? Justice Department?

(d) Paragraph (c) shall not apply with respect to information relating to a lawyer's
representation of an organization to investigate an alleged violation of law, or to defend the
organization … against a claim arising out of an alleged violation of law.

(e) A lawyer who reasonably believes that he or she has been DISCHARGED because of the
lawyer's actions taken pursuant to paragraphs (b) or (c), or who WITHDRAWS under
circumstances that require or permit the lawyer to take action under either of those paragraphs,
shall proceed as the lawyer reasonably believes necessary to assure that the organization's
highest authority is informed of the lawyer's discharge or withdrawal.

(f) In dealing with an organization's … constituents, a lawyer shall explain the identity of the
client when the lawyer knows or reasonably should know that the organization's interests
are adverse to those of the constituents with whom the lawyer is dealing.

(g) A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7.

As to Relation to Other Rules…


[Adv. Cmte. 6] The authority of Rule 1.13 is concurrent with other Rules
 This rules does not limit/expand the L’s responsibility under Rules 1.6, 1.8,
1.16, 3.3, or 4.1
 Rule 1.13(c) SUPPLEMENTS Rule 1.6(b) by providing an additional basis
upon which the L may reveal info relating to rep.
 If the L’s services are being used by an org. to further a crime/fraud  Rule
1.2(d) may also be applicable, in which event withdrawal under Rule

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1.16(a)(1) may be required.


 [Adv. Cmte. 14] In DERIVATIVE actions, where a conflict may arise
between the L’s duty to the org. and the L’s relationship w/the Bd., Rule 1.7
governs who should rep. the Dirs. And the org.

As to Government Agency…
[Adv. Cmte. 9] Rule 1.13 applies EQUALLY to gov. orgs.
 When the C is a gov. org., a diff. balance may be appropriate btw maintaining
confidentiality and assuring that the wrongful act is prevented or rectified, for
public business is involved.
 Rule 1.13 does NOT limit the authority of Ls employed by the gov. or Ls in
military service!

 KONIAK—see Freedman doc.

DUTY OF CANDOR TOWARD TRIBUNAL


 These rules are mandatory, but qualified by the requirement of ACTUAL knowledge.

Rule 1.2 Scope of Representation and Allocation of Authority


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

[Adv. Cmte. 9] If a C uses the advice of the L in a course of action that is criminal
or fraudulent, it does NOT make the L a party to that course of action.
[Adv. Cmte. 10] BUT, when the C’s course has ALREADY begun, the L is to AVOID
assisting the C; and the L may NOT provide advice in assistance – therefore
withdraw under Rule 1.16(a).
[Adv. Cmte. 11] Where the C is a fiduciary, the L may be charged with special
obligations in dealings with a beneficiary.
[Adv. Cmte. 13] If a L comes to KNOW or reasonably SHOULD know that a C
expects assistance NOT permitted by the Rules or by law, the L must consult with
the C regarding limitations on the L’s conduct.

 Not very clear what the line is between counseling or assisting fraud and explaining the
legal consequences of a course of conduct. Explaining is not necessarily assisting, but if
the lawyer knows the likely use of the information, he can be considered to have assisted
the conduct. Knowledge may be inferred from the circumstances.
 On the other hand, the standard for knowledge is fairly high, and the lawyer may be
entitled to give his client the benefit of the doubt. Moreover, explaining the scope and
application of the law may deter the client from committing criminal or fraudulent acts.

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Rule 3.3 Candor Toward The Tribunal


(a) A lawyer shall NOT knowingly:

(1) make a false statement of fact to a tribunal OR fail to correct a false statement of
material fact or law previously made to a tribunal

[Adv. Cmte. 1] Applies to ancillary proceedings, trial, AND adjudicative authority


(such as depositions)
[Adv. Cmte. 3] An advocate is responsible for the pleadings, but is NOT required to
have personal knowledge of matters asserted therein
 Compare to 3.1, An assertion purporting to be on the L’s own knowledge
may properly be made only when the L knows the assertion is true or
believes it to be true on the basis of a reasonably diligent inquiry.
 There ARE circumstances where failure to make a disclosure = affirmative
misrepresentation. The obligation in 1.2(d) not to counsel a client to
commit/assist fraud applies.

(2) fail to disclose legal authority known to be adverse to your client

[Adv. Cmte. 4] A L must recognize the existence of pertinent legal authorities;


underlying concept is that legal argument is a discussion seeking to determine the
legal premises properly applicable to the case

(3) offer evidence that the lawyer knows to be false

[Adv. Cmte. 8] The prohibition against offering false evidence ONLY applies if the L
KNOWS that the evidence is false. A L’s REASONABLE BELIEF that evidence is false
does NOT preclude its presentation to the trier of fact.
 (Knowledge, however, can be inferred from the circumstances)
 [Adv. Cmte. 5] Does NOT apply if the L offers evidence for the purpose of
establishing its falsity.
 [Adv. Cmte. 9] The prohibition against offering false evidence ONLY
applies if the lawyer KNOWS that the evidence is false. A lawyer’s
REASONABLE BELIEF that evidence is false does NOT preclude its
presentation to the trier of fact. (Knowledge, however, can be inferred from
the circumstances)
o Offering such proof may reflect poorly upon the advocate
[Adv. Cmte. 6] If the L KNOWS that the C intends to testify falsely, the L should
persuade the C otherwise. If ineffective, the L must REFUSE to present the false
evidence/testimony.

 Standard = ACTUAL Knowledge: just because a witness contradicts himself does not
indicate perjury or trigger the obligation to reveal confidential information.
 A lawyer is given discretion by this rule to decline to present evidence when she does not
“KNOW” that it is false. This permits her to disregard a client’s preference for offering

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such evidence without violating the advocacy duty owed the client.

(b) A lawyer representing a client, who KNOWS that the client intends to engage, is engaging
OR has engaged in criminal/fraudulent conduct related to the proceeding SHALL take
reasonable remedial measures, inc’l disclosure to the tribunal (if necessary)

[Adv. Cmte. 7] These duties apply to ALL Ls, inc’l defense counsel in crim cases.
[Adv. Cmte. 10] If the L subsequently comes to know certain evidence is false OR
is surprised by certain testimony at trial, and KNOWS such evidence is false 
proper course is to remonstrate w/C confidentially, advise the C of the L’s duty of
candor, and seek the C’s cooperation with respect to the withdrawal or correction of
the false evidence
 L must reveal the information, even if protected by Rule 1.6  it is up to the
tribunal to determine what should be done
 [Adv. Cmte. 15] If the L’s compliance with these rules causes such strain on
the L-C relationship that it becomes ineffective, the L may WITHDRAW under
Rule 1.16

 When a client intends to commit perjury, the lawyer’s option are to try to dissuade the
client; to request the court’s permission to withdraw (UNLIKELY to be granted during or
on the eve of trial because of the inevitable delay that will result and the likelihood that
the same scenario will unfold should another lawyer represent the client
 Other options have been criticized:
o Narrative form of testimony (which signals to the judge that the client is
committing perjury)
o Refusing to call the client (which threatens the interests of the client).
 What is a reasonable remedial measure is the subject of much debate.
o Some argue, like Freedman, that the DUTY a lawyer owes the CLIENT should
prevent the lawyer from revealing the perjury.
o Others argue that the DUTY a lawyer owes to the COURT supersedes the duty
to the client and that lawyers do not owe clients a duty to help them perpetuate
fraud on the court. The lawyer should not be a knowing accomplice to perjury.
o Current case law does NOT resolve the dispute
 BUT, Rule 3.3 would require remedial measures to be taken, and these
explicitly include disclosure.
• This apparently applies even in the criminal context.
 In Nix v. Whiteside, the lawyer’s refusal to offer perjured testimony
satisfied the Sixth Amendment’s “reasonably effective” standard.

(c) The duties of (a) & (b) continue throughout the proceeding AND apply even if
compliance requires disclosure of info otherwise protected by 1.6

[Adv. Cmte. 12] The L has special obligations to protect the tribunal against
criminal or fraudulent conduct that undermines the integrity of the adjudicative
process.
[Adv. Cmte. 13] As far as time limit: The conclusion of the proceeding is a
reasonably definite point for the termination of the obligation.

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 If the lawyer learns of the perjury before the proceedings conclude, must be
revealed. But if they are over, there is no obligation to reveal it.

(d) In an ex parte proceeding, the lawyer shall inform the tribunal of ALL material facts
KNOWN to the lawyer that will enable the tribunal to make an informed decision, whether or
NOT the facts are adverse

[Adv. Cmte. 14] The judge has an affirmative responsibility to accord the absent
party just consideration (ex. application for a temp. restraining order). The L for the
represented party has the correlative duty to make disclosures of material facts
known to the L and that the L reasonably believes are necessary to an informed
decision.

As to Withdrawal…
[Adv. Cmte. 15] Normally, a L’s compliance with the duty of candor imposed by
this Rule does not require that the L withdraw from the representation of a C whose
interests will be or have been adversely affected by the L’s disclosure, unless such
disclosure so deteriorates the L-C relationship that the L seeks permission from the
tribunal to withdraw under Rule 1.16(a)(b)

 This is the dominant rule. The lawyer’s obligations differ depending on state of
knowledge. The lawyer must follow the rule only when the lawyer knows his client is
going to commit perjury, or when he knows after the fact that perjury was committed.
 Thus, in the interests of zealous advocacy, the lawyer may be obligated to offer helpful
evidence that he cannot reasonably say is false. Some anxiety about the truth of the
evidence does not rise to this belief that would preclude the evidence from being offered.
o Tactically, if testimony sounds bad in your office, it will sound bad in the
courtroom so anxiety may give you reason to believe the evidence will be
damaging…a tactical, not an ethical issue.
o Lawyer may not make an assertion claimed to be his own knowledge unless he
knows it to be true.

Rule 3.4 Fairness To Opposing Party And Counsel


A Lawyer Shall NOT:

(a) unlawfully obstruct another party’s ACCESS to evidence or unlawfully alter,


destroy, or conceal a document or other material having a potential evidentiary
value. (A lawyer shall not counsel/assist another person to do any such act).

[Adv. Cmte. 1] Fair competition n the adversary system is secured by prohibitions


against destruction or concealment of evidence, improperly influencing witnesses,
obstructive tactics in discovery procedure, etc…
[Adv. Cmte. 2] Applies to evidentiary material generally.

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(b) falsify evidence or counsel/assist/induce another to testify falsely

[Adv. Cmte. 3] It is NOT improper to pay a witness’s expenses or to compensate


an expert witness on terms permitted by law, BUT most states make it IMPROPER to
pay an occurrence witness and IMPROPER to pay an expert a contingent fee.

(c) KNOWINGLY disobey an obligation, except for an open refusal based on an


assertion that no valid obligation exists

(d) make a frivolous discovery request OR fail to make a reasonably diligent effort to
comply with a legally proper discovery request

(e) allude to any matter that the lawyer does not REASONABLY BELIEVE is relevant
or that will not be supported by admissible evidence, ASSERT personal knowledge
(unless testifying), or STATE personal opinion as to justness of a cause, credibility of a
witness, culpability of a litigant or guilt of an accused.
 no personal opinions, matters outside the record.

(f) REQUEST a person, other than a client, to refrain from voluntarily giving relevant
information to another party unless:
o (1) the person is a relative, employee, or agent of the client
o (2) the lawyer reasonably believes that the person’s interests will not be adversely
affected by refraining from giving such info

Rule 4.1 Truthfulness In Statements To Others


In the course of representing a client a lawyer shall NOT knowingly:

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

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

[Adv. Cmte. 1] A L is required to be truthful when dealing with others on his C’s
behalf, but has NO affirmative duty to inform an opposing party of relevant facts.
 A misrepresentation can occur if the L incorporates/affirms a statement of
another person that the L KNOWS is FALSE
 A misrepresentation can also occur by partially true, but MISLEADING
statements OR omissions that are equivalent of affirmative false statements.
[Adv. Cmte. 2] Whether a statement = a statement of fact depends on the
circumstances.
 Certain statements in negotiation are ordinarily NOT statements of material
fact  such as:
o estimates of price/value placed on the subject of a transaction;
o parties’ intentions as to an acceptable settlement/claim
o existence of an undisclosed principal (except where non-disclosure of

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the principal would constitute fraud);


[Adv. Cmte.3] Under Rule 1.2(d), a L is prohibited from counseling/assisting a C
in conduct that the L KNOWS is criminal/fraudulent.
 When a L discovers misrepresentation AFTER the fact, sometimes it may be
necessary to give notice and to disaffirm an opinion, document, affirmation,
or the like.
 If the L CAN AVOID assisting a C’s crime or fraud only by disclosing this
information, then under (b), the L is required to do so, unless the disclosure
is prohibited by Rule 1.6

 Not clear how this provision interacts with Rule 1.6, which says that revealing
confidences is discretionary. One possibility is that Rule 4.1 makes disclosure
mandatory, another is that it remains discretionary, under Rule 1.6. The issue remains to
be adjudicated.

COMMUNICATION WITH REPRESENTED &


UNREPRESENTED PERSONS
Rule 4.2 Communication With Person Represented By Counsel
In representing a client, a lawyer shall NOT communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the
matter, UNLESS the lawyer has the CONSENT of the other lawyer or is AUTHORIZED to do
so by law or a court order.

[Adv. Cmte. 1] This rule protects a person who has chosen to be rep.ed by a L
against possible overreaching by other Ls participating in the matter.
 [Adv. Cmte. 2] Applies to communications with ANY person who is rep.ed by
counsel concerning the matter to which the communication relates
o [Adv. Cmte. 4] A L may NOT make a comm.. prohibited by Rule 4.2
through the acts of another either. See Rule 8.4(a)!
o [Adv. Cmte. 8] L must have ACTUAL KNOWLEDGE that the person
is rep.ed, and such knowledge MAY be inferred from the
circumstances.
 [Adv. Cmte. 3] Applies EVEN THOUGH the rep.ed person initiates or
consents to the communication. Once a L knows the person is represented,
he must terminate comm.
 [Adv. Cmte. 4] Rule 4.2 does NOT prohibit communication with a rep.ed
perso, OR employee or agent of that person, concerning matters OUTSIDE the
rep.
o NOR does Rule 4.2 preclude communication with a rep.ed person who
is seeking advice from a L who is NOT otherwise rep.ing a C in the
matter
o NOTE: Parties MAY communicate with each other, and a L MAY advise

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them as to those comm., but may NOT participate.


[Adv. Cmte. 5] Comm. Authorized by law may include comm.s by a L on behalf of
a C who is exercising a Const. or other legal right to comm. w/the gov. OR may
include inv. Activities of Ls rep.ing crim or civil enforcement proceedings
[Adv. Cmte. 6] A L who is uncertain whether a comm.. w/rep. person is permissible
may seek a court order for authorization.
[Adv. Cmte. 7] In the case of a rep.ed org., Rule 4.2 prohibits comm.s w/a
constituent of the org. who supervises, directs or regularly consults with the
organization’s lawyer concerning the matter or has authority to obligate
the organization with respect to the matter or whose act or omission in
connection with the matter may be imputed to the organization for
purposes of civil or criminal liability. Consent of the organization’s lawyer is not
required for communication with a former constituent.

 very strict rule


 Changes in the law of evidence: At CL, an agent or EE could utter admissions for his
principal only if he had “speaking authority”— authorized to speak for the principal.
o FRE 801(d)(2) broadens this, creating a longer list of agents capable of binding
their principles. Any agent may make an admission so long as the statement is
within the scope of his agency or employment. Anything he says is admissible
against his employer.
o 2001 Rules: A lawyer for another entity who calls up a corporate employee may
not have a conversation about his employment, because under the federal rules,
any statements are admissible.
 This worried plaintiff’s lawyers
o 2008 Rules: Omits the category of employees of a represented corporation. The
2001 version was thought to be too restrictive. But most states retain the older
rule. Their law is consistent with the 2001 version.
  Additionally, the Corporation holds an AC Priv that extends to employees. You
would be entrenching on that privilege. If the corporation is represented, probably can’t
interview anyone who is an employee of a corporation that is a party opponent.

Rule 4.3 Dealing With Unrepresented Person


In dealing on behalf of a client with a person who is not represented by counsel, a lawyer
shall NOT state or imply that the lawyer is disinterested. When the lawyer KNOWS or
reasonably SHOULD KNOW that the unrepresented person misunderstands the lawyer’s
role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
The lawyer shall NOT give legal advice to an unrepresented person, other than the advice to
secure counsel, if the lawyer KNOWS or reasonably SHOULD KNOW that the interests of such
a person are or have a reasonable possibility of being in conflict with interests of the client.

[Adv. Cmte. 1] In order to avoid a misunderstanding, a L will need to identify his C


and, where necessary, explain that the C has interests opposed to those of the
unrep.ed person
 For misunderstandings that arise when a L for an org. deals w/an unrep.ed

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constituent, See Rule 1.13(d)


[Adv. Cmte. 2] This rule does NOT prohibit a L from negotiating the terms of a
transaction or settling a dispute with an unrep.ed person
 So long as the L explains that the L represents an adverse party and is NOT
rep.ing the person, the L may inform the person of the terms on which the L’s
C will enter into an agreement or settle a matter, prepare docs that req. the
person’s signature, and explain the L’s own view of the meaning of the doc or
legal obligations.

 No general prohibition on interviewing unrepresented third party witnesses. Indeed, this


is part of lawyer’s obligation.

Rule 1.18 Duties To Prospective Client


(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship
with respect to a matter is a prospective client.

[Adv. Cmte. 2] NOT all persons who communicate info to a L are entitled to
protection under Rule 1.18
 One who communicates info unilaterally to L, without any reasonable
expectation that L is willing to discuss the possibility of forming a L-C
relationship is NOT a prospective C

(b) Even when NO client-lawyer relationship ensues, a lawyer who has had discussions with a
prospective client shall NOT use or reveal information learned in the consultation, EXCEPT
as Rule 1.9 would permit with respect to information of a former client.

[Adv. Cmte. 1] L’s discussions with a prospective C usually are limited in time and
depth and leave both the prospective C and the L free (and sometimes required) to
proceed no further.
[Adv. Cmte. 3] Rule 1.18(b) protects those communications during initial
consultation that are necessary to determine whether a L-C relationship may be
formed.
 [Adv. Cmte. 4] L during an initial consultation should LIMIT such info so as
to determine whether a conflict of interest exists. If a conflict exists, L should
so inform the prospective C or decline the representation
o If the prospective C wishes to retain the L, and if consent is possible
under Rule 1.7, then consent from ALL affected present or former Cs
must be obtained before rep.
 [Adv. Cmte. 5] L may condition convos w/a prospective C on the person’s
informed consent that NO information disclosed during the consultation will
prohibit the L from representing a different C in the matter.

(c) A lawyer subject to paragraph (b) shall NOT represent a client with interests materially
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adverse to those of a prospective client in the same or a substantially related matter if the
lawyer received information from the prospective client that could be significantly harmful to
that person in the matter EXCEPT as provided in paragraph (d). IF a lawyer is disqualified from
representation under this paragraph, no lawyer in a firm with which that lawyer is associated may
KNOWINGLY undertake or continue representation in such a matter, EXCEPT as provided in
paragraph (d).

[Adv. Cmte. 6] Even in the absence of an agreement, under Rule 1.18(c), L is


NOT prohibited from representing a C with interests adverse to those of the
prospective C in the same or a substantially related matter UNLESS the L has
received from the prospective C info that could be significantly harmful if used in
the matter.

(d) When the lawyer has received disqualifying information as defined in paragraph (c),
representation is permissible IF:

(1) Both the affected client and the prospective client have given informed consent,
confirmed in writing, OR

(2) The lawyer who received the information took reasonable measures to avoid
exposure to more disqualifying info than was reasonably necessary to determine
whether to represent the prospective client; AND
(i) The disqualified lawyer is timely screened from any participation in the
matter and is apportioned NO part of the fee therefrom; AND
(ii) Written notice is promptly given to the prospective client

[Adv. Cmte. 1] Under Rule 1.18(c), the prohibition is IMPUTED to other lawyers as
provided in Rule 1.10, BUT under Rule 1.18(d)(1), imputation may be avoided IF
L obtains the informed consent, confirmed in writing, of BOTH the prospective and
affected Cs
 Imputation may be avoided IF the conditions of Rule 1.18(d)(2) are met and
ALL disqualified Ls are timely screened and written notice is promptly given
to the prospective C
 Rule 1.18(d)(2) does NOT prohibit the screened L from receiving a salary or
partnership share
[Adv. Cmte. 8] Notice, inc’l a gen. description of the subject matter about which L
was consulted, and of the screening procedures employed, generally should be
given as soon as practicable after the need for screening becomes apparent.
 [Adv. Cmte. 9] For the duty of competence of L who gives assistance on the
merits of a matter to a prospective C, See Rule 1.1.
 For a lawyer’s duties when a prospective C entrusts valuables or papers to
the L’s care, See Rule 1.15.

RESPECTING RIGHTS OF WITNESSES, OTHER

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PARTY, & IN COURT BEHAVIOR


Rule 4.4 Respect For Rights Of Third Persons
(a) In representing a client, a lawyer shall NOT use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence
that violate the legal rights of such a person.

[Adv. Cmte. 1] Responsibility to a C requires a L to subordinate the interests of


others to those of the C, but that responsibility does NOT imply that a lawyer may
disregard the rights of 3rd persons.”

(b) A lawyer who receives a document relating to the representation of the lawyer's client and
KNOWS or reasonably SHOULD KNOW that the document was inadvertently sent shall
promptly notify the sender.

[Adv. Cmte. 2] Rule 4.4(b) does NOT address whether:


 L must take additional steps, such as returning the original document
 Whether the priv. status of the document has been waived
 The legal duties of a L who receives a doc that the lawyer knows or reasonably should
know was wrongfully obtained by the sending party

 CX-ing a witness to undermine their credibility DOES have a substantial purpose.


 A “document” includes e-mail or other electronic comm..

Rule 3.3: Candor Toward Tribunal


See p.13 - 16, under “Duty Of Candor Toward The Tribunal

Rule 3.4 Fairness To Opposing Party And Counsel


See p.16 – 17, under “Duty Of Candor Toward The Tribunal”

Rule 3.5 Impartiality And Decorum Of The Tribunal


A lawyer shall NOT:

(a) seek to influence a judge, juror… or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do;
(c) communicate with a juror or prospective juror after discharge of the jury IF:

(1) the communication is prohibited by law or court order;


(2) the juror has made known to the lawyer a desire not to communicate; or

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(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal.

[Adv. Cmte. 1] Many forms of improper influence are proscribed by criminal law or
the ABA Code of Judicial Conduct
 [Adv. Cmte. 2] A L may NOT communicate ex parte w/persons serving in an
off. Capacity IN the proceeding, such as judges, masters or jurors, unless
authorized to do so by law / ct. order
 [Adv. Cmte. 3] A L may communicate w/a juror AFTER the proceeding
unless prohibited
[Adv. Cmte. 4] Refraining from abusive or obstreperous conduct is a corollary of
the advocate’s right to speak on behalf of litigants.
 A lawyer must stand firm against abuse by a judge but should avoid
reciprocation.
 An advocate can preserve professional integrity by patient firmness no less
effectively than by belligerence or theatrics
[Adv. Cmte. 5] The duty to refrain from disruptive conduct applies to ANY
proceeding of a tribunal, including a deposition.

 Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to


speak on behalf of litigants. (no belligerence, theatrics, or assbagetry)

3.7 Lawyer as Witness


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

(1) the testimony relates to an uncontested issue;


(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer MAY act as advocate in a trial in which another lawyer in the lawyer's firm is
likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

As to The Advocate-Witness Rule…


[Adv. Cmte. 1] Combining the roles of advocate and W can prejudice the tribunal
and the opposing party AND can also involve a conflict of interest btw L and C.
[Adv. Cmte. 2] The TRIBUNAL may object when the trier may be confused or
misled. The opposing party may object where the combination of roles may
prejudice the party’s rights.
 [Adv. Cmte. 4] Rule 3.7(a)(3) recognizes that a balancing test is
required btw the interests of the C and those of the tribunal and the opposing

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party.
 The conflict of interest principles of Rules 1.7, 1.9, and 1.10 have NO
application here.

As to Conflict of Interest…
[Adv. Cmte. 6] The L must consider that the dual role of advocate-W = conflict
under Rules 1.7 or 1.9
 If there is likely to be substantial conflict btw the testimony of the C and that
of the L, the rep. involves a conflict of interest that REQUIRES compliance
with Rule 1.7
 Also, a L that might be permitted to simultaneously serve as an advocate and
W under Rule 3.7(a)(3) might be precluded from doing so under Rule 1.9
 If there IS a conflict of interest, the L must secure C’s informed
consent, confirmed in writing

Rule 5.2 Responsibilities Of A Subordinate Lawyer


(a) A lawyer is bound by the RoPC notwithstanding that the lawyer acted at the direction of
another person.

(b) A subordinate lawyer does NOT violate the RoPC if that lawyer acts in accordance with a
supervisory lawyer's reasonable resolution of an arguable question of professional duty.

[Adv. Cmte. 1] Although a lawyer is NOT relieved of responsibility for a violation by


the fact that the lawyer acted at the direction of a supervisor, that fact may be
relevant in determining whether a lawyer had the knowledge required to render
conduct a violation of the RoPC
 Ex. If a subordinate filed a frivolous pleading at the direction of a supervisor,
the subordinate would NOT be GUILTY unless he knew of the document’s
frivolous character
[Adv. Cmte. 2] When in a supervisor-subordinate relationship, the duo encounters
an ethical professional judgment  supervisor assumes responsibility for making
the judgment
 If a Q can reasonably be answered only ONE way  BOTH lawyers are equally
responsible for fulfilling it
 If the Q is reasonably arguable  someone has to decide upon the course of
action
o Ex. If a Q arises whether the interests of 2 clients conflict under 1.7,
the supervisor’s reasonable resolution of the Q should protect the
subordinate professionally if the resolution is subsequently challenged

THREAT OF FRIVOLOUS LITIGATION

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Rule 3.1 Meritorious Claims And Contentions


A lawyer shall NOT bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis in law and fact for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal of existing law. A lawyer for
the defendant in a criminal proceeding, or the respondent in a proceeding that could result in
incarceration, may nevertheless so defend the proceeding as to require that every element of the
case be established.

[Adv. Cmte. 1] The advocate has a DUTY to use legal procedure for the fullest
benefit of the C’s cause, but also a DUTY not to abuse legal procedure.
[Adv. Cmte. 2] The filing of an action or defense for a C is NOT frivolous merely bc
the facts have nor been fully substantiated or bc the L expects to develop vital
evidence via discovery  all that is required is sufficient info to make a good faith
arg in support of C’s position
 An action is NOT frivolous even tho the L thinks the C will not prevail
 An action IS frivolous if the L is unable to make a good faith arg on the merits
of the action taken

 You can’t threaten to file a claim that you have no intention of filing or that your client
does not want you to file.
o But: under Rule 8.4 this is an objective determination.
o Rule 11—a little bit different and more demanding. It could be a Rule 11
violation based on the purpose of filing the claim. (bigger threat than 3.1)

TERMINATING REPRESENTATION
Rule 1.16 Declining Or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the RoPC or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the
client;  for whatever reason

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(2) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent; (knowledge not required)

(3) the client has used the lawyer's services to perpetrate a crime or fraud; (past)

(4) the client insists upon taking action that the lawyer considers repugnant or with
which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client; or

(7) OTHER good cause for withdrawal exists.

(c) A lawyer must comply with applicable law requiring notice to or permission of a
tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer
shall continue representation notwithstanding good cause for terminating the
representation.

 The court may not give permission for the lawyer to withdraw.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably
practicable to protect a client's interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering papers and property to which the
client is entitled and refunding any advance payment of fee or expense that has not been earned
or incurred. The lawyer may retain papers relating to the client to the extent permitted by other
law.

[Adv. Cmte. 1] Premise: A lawyer shall NOT accept representation in a matter


unless it can be performed competently, promptly, without improper conflict of
interest and to completion.
[Adv. Cmte. 2] A L ordinarily MUST decline OR withdraw from representation if the
C demands that the L engage in conduct that is illegal or violates the RoPC or law.
 L is NOT obliged to decline/withdraw simply bc the C suggests such a course
of conduct
[Adv. Cmte. 7] L has the OPTION to withdraw if:
 It can be accomplished w/o material adverse effect on the C’s interests
 C persists in a course of action that the L reasonably believes is
criminal/fraudulent
 L’s services were misused in the past, even if that would materially prejudice
the client
 C insists on taking action that L considers repugnant
 [Adv. Cmte. 8] C refuses to abide by the terms of an agreement relating to

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the rep.
[Adv. Cmte. 3] When a lawyer has been appointed to representation, withdrawal
ordinarily requires approval of the appointing authority. Likewise, notice to the
court is often required.
 The court may request explanation for withdrawal, while the lawyer may be
bound to keep the confidential facts that would constitute such an
explanation.
 The lawyer’s statement that professional considerations require termination
of the representation ordinarily should be accepted as sufficient.
 [Adv. Cmte. 5] Whether a client CAN discharge appointed counsel may
depend on applicable law, and such C should be given a full explanation of
the consequences.
[Adv. Cmte. 4] Where future disputes about withdrawal are anticipated, it may be
advisable to prepare a written statement reciting the circumstances
[Adv. Cmte. 9] Even if the lawyer has been unfairly discharged, a lawyer must
take all reasonable steps to mitigate the consequences to the client.

CONFLICTS OF INTEREST
Conflict of interest: a reasonable possibility of harm, not the harm itself. The conflict exists
even if there is no impropriety, no malpractice.
 Not always clear if someone is your client or not. Must be clear whether you represent
the employees of a corporation. A representation of a corporate parent does not create a
relationship with subsidiaries.

Rule 1.7 Conflict Of Interest: Current Clients


(a) A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; OR
(2) there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client or a third person or by a
personal interest of the lawyer.

 Even if the representation is not in the same matter, it is still a conflict. Based on a broad
notion of loyalty. It is consentable, but unlikely they will consent.
 Obligations to others might qualify the zeal of the representation.
 Positional conflicts: Generally, there is no rule in trial courts, because the different
matters probably won’t affect each other. But in the appellate or state supreme court,
interests might be in conflict, and rules are more restrictive of those situations. May
suggest a disloyalty to current client, and there is always a “tug” on your zeal, which
might be tempered by your desire to please the other client.

(b) Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may

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represent a client IF:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same … proceeding before a tribunal;

 The client CANNOT waive this kind of conflict.

(4) each affected client gives informed consent, confirmed in writing.

[Adv. Cmte. 1] Loyalty and independent judgment are essential elements in the
L’s relationship to a C
[Adv. Cmte. 2] Resolution of a conflict of interest problem under Rue 1.7
REQUIRES the L to:
 (1) clearly identify the C or C(s)
 (2) determine whether a conflict of interest exists
 (3) decide whether the rep. may be under taken despite the conflict (is it
consentable?)
 (4) If so, consult with the Cs affected under Rule 1.7(a) and obtain
informed consent, in writing
[Adv. Cmte. 3] If a conflict arises BEFORE rep. is undertaken  representation
MUST be DECLINED, unless L obtains informed consent of each C under Rule
1.7(b).
[Adv. Cmte. 4] If a conflict arises AFTER rep. is undertaken  L ordinarily must
WITHDRAW from rep., unless the L obtains informed consent of the C under Rule
1.7(b).
[Adv. Cmte. 5] Unforeseeable developments, such as changes in corp. and
other org. affiliations OR the addition/realignment of parties in litigation, might
create conflicts in the midst of a representation. Depending on the circumstances,
the L may have the option to withdraw from one of the representation in order to
avoid the conflict.
 Must take steps to notify the tribunal and minimize the harm under Rule
1.16
 Must continue to protect the confidences of the C under Rule 1.9(c)

As to Identifying Conflicts of Interest: DIRECTLY Adverse…


[Adv. Cmte. 6] Absent consent, a L may NOT act as an advocate in one matter
against a person the L represents in another matter
 The C as to whom the rep. is directly adverse will feel betrayed, and the
damage to the L-C relationship is likely to impair the L’s ability to rep. the
client effectively.
 The C on whose behalf the adverse rep. is undertaken reasonably may fear
that the L will pursue the C’s case less effectively out of deference to the
other C
On the other hand, simultaneous rep. in unrelated matters of clients whose interests
are ONLY economically adverse (Ex. Rep. of competing economic enterprises in

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unrelated litigation) does NOT ordinarily constitute a conflict of interest and may
NOT require consent of the Cs.

As to Identifying Conflicts of Interest: MATERIAL Limitation…


[Adv. Cmte. 8] Even where there is NO direct adverseness, a conflict of interest
exists if there is a significant RISK that a L’s ability to consider, recommend or carry
out an appropriate course of action for the C will be materially limited as a result of
the L’s other responsibilities or interests
 Critical Questions:
o Likelihood that a difference in interests will eventuate?
o If it does, whether it will materially interfere with the L’s professional
judgment OR foreclose courses of action that reasonably should be
pursued on behalf of the C

As to Identifying Conflicts of Interest: PERSONAL Interest Conflicts…


[Adv. Cmte. 10] The L’s own interests should not be permitted to have an adverse
effect on rep. of C.
 Examples include:
o If the probity of the L’s own conduct in a transaction is in question
o When a L has discussions concerning possible employment with an
adverse party to C
[Adv. Cmte. 11] When Ls rep.ing diff. Cs in the same/related matter are closely
related by blood/marriage, there is a RISK that the C confidences will be revealed
and that the L’s family relationship will interfere.
 C is entitled to know of the existence and implications of the relationship btw
the Ls before the L agrees to undertake rep.  must acquire informed
consent
 Disqualification due to familial relationship is NOT imputed to members of a
firm!
[Adv. Cmte. 12] L cannot have sex with Cs unless it predates the L-C relationship.
See Rule 1.8(j)
[Adv. Cmte. 13] L MAY be paid from a source OTHER than the C, IF the C is
informed of that fact and consents and the arrangement does not compromise the
L’s duty of loyalty. See Rule 1.8(f)

As to PROHIBITED Representations…
[Adv. Cmte. 14] Some conflicts are NONconsentable.
[Adv. Cmte. 15] Consentability is determined by considering whether the L could
reasonably provide competent and diligent representation DESPITE the conflict.
 [Adv. Cmte. 16] A conflict is NONconsentable if it is prohibited by LAW
 [Adv. Cmte. 17] A conflict is NONconsentable if Cs are aligned directly
against each other in the same litigation or proceeding

As to Informed Consent…
[Adv. Cmte. 18] Informed consent requires that EACH affected C be aware of the
relevant circumstances and of the material and reasonably foreseeable ways that
the conflict could have adverse effects on the interests of that C.
 When rep. of multiple Cs in a single matter is undertaken, the info must
include the implications of the common rep., inc’l possible effects on loyalty,

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confidentiality, and the AC priv AND the advantages and risks involved
 [Adv. Cmte. 19] Sometimes it may be impossible to make the disclosures
necessary for consent.
[Adv. Cmte. 21] A C who has given consent to a conflict may REVOKE the consent
and, like any other C, may terminate the L’s rep. at any time.
[Adv. Cmte. 22] Whether a L may properly request to WAIVE conflicts that might
arise in the future is subject to the test of Rule 1.7(b).
 Effectiveness of waiver depends on the extent to which the C understands
the RISKS
o The more comprehensive the explanation of the risks, the greater
likelihood C gets it
o NOTE: Advance consent CANNOT be effective if the circumstances that
materialize in the future are such as would make the conflict
NONconsentable under Rule 1.7(b)

As to Conflicts in Litigation…
[Adv. Cmte. 23] Rule 1.7(b)(3) PROHIBITS rep. of opposing parties in the same
litigation, regardless of consent… BUT, rep. of co-Ps or co-Ds, governed by Rule
1.7(a)(2), may ALSO create conflict due to discrepancy in testimony, incompatible
positions in relation to opposing party, or different settlement possibilities. The
feasibility of rep. depends on the similarity of the individual’s claims.
[Adv. Cmte. 24] L MAY take inconsistent legal positions in diff. tribunals at diff.
times on behalf of diff. Cs = NO conflict of interest.
 Conflict MAY exist if the L’s rep. of one C creates precedent that would
weaken the position of the other C
 Factors relevant to determining this conflict:
o Whether the cases are pending
o Whether the issue is substantive v. procedural
o The temporal relationship btw the matters
o The significance of the issue to the immediate and long-term interests
of the Cs involved
o The C’s reasonable expectations in retaining the L
 If there is a RISK of material limitation  absent informed consent, the L must
refuse rep. to a C
[Adv. Cmte. 25] When the L reps. A class action, the UNNAMED members of the
class are ordinarily NOT considered to be clients of the L under Rule 1.7(a)(1) and
L does NOT need consent.

As to NONlitigation Conflicts…
[Adv. Cmte. 7] Directly adverse conflicts can also arise in transactional matters.
 If a L is asked to represent the seller of a business in negotiations with a
buyer represented by the L, not in the same transaction but in another,
unrelated matter, the L could NOT undertake the rep. without the informed
consent of each C.
 [Adv. Cmte. 26] Relevant factors in determining Material Limitation:
o DURATION and INTIMACY of the L’s relationship w/ the C(s) involves
o Functions being performed by the L
o Likelihood that disagreements will arise

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o Likely prejudice to the C from the conflict


 [Adv. Cmte. 27] EX. Conflict Qs may arise in estate planning/administration
[Adv. Cmte. 28] Whether a conflict is consentable depends on the circumstances:
 EX. L may NOT rep. multiple parties to a negotiation whose interests are
antagonistic to each other BUT common rep. IS permissible where the Cs are
generally aligned in interest

As to Special Considerations in Common Representation…


[Adv. Cmte. 29] L must be aware that the FAILURE of Common rep. = additional
cost, embarrassment, and recrimination.
 Rep. is NOT feasible where future litigation btw Cs is imminent OR
contemplated
 Rep. is UNLIKELY to remain impartial
 [Adv. Cmte. 30] An important factor in determining the appropriateness fo
common rep. is the effect on the L-C confidentiality and the AC priv.
o Btw commonly rep.ed Cs, the AC priv. does NOT attach
o As to confidentiality, L has an equal duty of loyalty to each C and
cannot keep secrets
o [Adv. Cmte. 32] Any limitation as to SCOPE of rep. made necessary
as a result of common rep. should be fully explained to the Cs at the
outset of the rep.

As to Organizational Clients…
[Adv. Cmte. 34] L who reps. A corp. or org. does NOT, by virtue of that rep.,
necessarily rep. any constituent OR affiliated org. such as parent or subsidiary. See
Rule 1.13(a)
 L is NOT barred from accepting rep. adverse to an affiliate in an unrelated
matter, unless the circumstances are such that the affiliate should also be
considered a C of the L, there is an agreement btw the L and the org. C that
the L will avoid rep. adverse to the C’s affiliates, OR the L’s obligations to
either the org. C ro the new C are likely to limit materially the L’s rep. of the
other C.
[Adv. Cmte. 35] L for a corp. or org. who is ALSO a member of its Bd. Dirs. should
determine whether the responsibilities of the 2 roles may conflict. L may be called
on the advise of the corp. in matters involving actions of the Dirs.
 Consideration should be given to:
o Frequency with which such situations may arise
o Potential intensity of the conflict
o The effect of the L’s resignation from the Bd.
o Possibility of the corp.’s obtaining legal advice from another L in such
situations
 IF there is a material risk that the dual role will compromise the L’s
professional judgment, the L should EITHER not serve as a Dir. OR should
cease to be the corp.’s L when conflicts arise.

 The lawyer has to make the client understand the significance of the conflict. Freedman
says that Rule 1.7(b) allows the client to consent to a limitation of the representation
(refers to Rule 1.2(c)) if the client fully understands the implications of the conflict and

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the representation will not be limited in any way to which the client has not consented.
 The true concern is whether the representation “may be materially limited”. The
client’s consent does not necessarily satisfy this concern. You have to believe the lawyer
can provide effective representation to each client.
o This depends on the circumstances:
 The level of actual conflict between the parties
 The depth or conflicts in their interests.
o If something goes on, a negotiator might say the lawyer did not inform them of
the dangers. Thus, if any doubt, mutual representation is unwise.
 Significance of joint representation:
o Each will not have a lawyer who focuses only on their interests.
o Duty to each may materially limit representation of the others.
o Have to balance the interests.
o No duty of confidentiality vis a vis the others with respect to info told by each one
—obligation is to keep each one informed.
o In a subsequent dispute, no privilege attaches to conversations with any of them.
o In a dispute, will not be able to represent any one of the parties.
 Courts may not let you make a current client a former client so you can sue them on
behalf of a more lucrative client.

Rule 1.8 Conflict Of Interest: Current Clients: Specific Rules


(a) A lawyer shall NOT enter into a business transaction with a client OR knowingly acquire
an ownership, possessory, security or other pecuniary interest adverse to a client UNLESS:

(1) the transaction and terms … are fair and reasonable … and are fully disclosed and
transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing....

As to Business Transactions between Client and Lawyer…


[Adv. Cmte. 1] The reqs. Of 1.8(a) must be met even when the transaction is NOT
closely related to the subject matter of the rep.
 Ex. When a L drafting a will for the C learns that the C needs money for
unrelated expenses and offers to make a loan to the C
 Ex. When L is engaged in the sale of goods/services related to the practice
of law; See Rule 5.7
 Ex. When L purchases property from estates they represent
 BUT, it does NOT apply to ordinary fee arrangements btw C and L, which are
governed by Rule 1.5 NOR does it apply to commercial transactions btw L
and C for products/services that the C generally markets to others
[Adv. Cmte. 2] When necessary, the L should discuss BOTH the material risks of
the proposed transaction, any risk posed by the L’s involvement, and the existence

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of reasonably available alts. And should explain why the advice of independent legal
counsel is desirable.
[Adv. Cmte. 3] L must disclose the risks associated w/the L’s dual role as both
legal adviser and participant in the transaction, such as the risk that the L will
structure the transaction or give legal advice in a way that favors the L’s interests
at the expense of the C. L must obtain C’s informed consent. In some cases, the
L’s interest may be such that Rule 1.7 will preclude the L from seeking C’s consent.
 NOTE: [Adv. Cmte. 4] If the C is independently rep.ed in the transaction,
Rule 1.8(a)(2) is inapplicable, and (a)(1) is satisfied either by a writted
disclosure by the L or by the L’s independent counsel

(b) A lawyer shall NOT use information relating to representation of a client to the
disadvantage of the client unless informed consent, except as permitted or required by Rules.

[Adv. Cmte. 5] Use of info relating to the rep. to the disadvantage of the C violates
the L’s duty of loyalty. Rule 1.8(b) applies when the info is used to the benefit of
EITHER the L or a 3rd person
 Prohibits disadvantageous use of C info UNLESS the C gives informed
consent, except as permitted or required by these Rules; See Rules 1.2(d),
1.6, 1.9(c), 3.3, 4.1(b), 8.1, and 8.3
 Ex. If a L learns that a C intends to purchase and develop several parcels of
land, the L may NOT use that info to purchase one of the parcels in
competition w/the C

(c) A lawyer shall NOT solicit any substantial gift from a client…unless the lawyer or other
recipient of the gift is related to the client.

[Adv. Cmte. 6] L MAY accept a gift from a C, IF the transaction meets general stds.
Of fairness.
 Ex. A simple gift such as a holiday present is permitted
 [Adv. Cmte. 7] If effectuation of a substantial gift requires preparing a legal
instrument such as a will or conveyance, the C should have the detached
advice that another L can provide

(d) Prior to the conclusion of representation of a client, a lawyer shall NOT make or negotiate
an agreement giving the lawyer literary or media rights … relating to the representation.

[Adv. Cmte. 9] Literary/media rights creates a CONFLICT of interest btw the


interests of the C and the personal interests of the L.
 L may rep. a C in a transaction concerning literary property from agreeing
that the L’s fee shall consist of a share in ownership of that property, if in
conformity with Rule 1.5

(e) A lawyer shall NOT provide financial assistance to a client in connection with pending or
contemplated litigation, EXCEPT THAT:

(1) a lawyer MAY advance court costs and expenses of litigation, the repayment of which
may be contingent on the outcome of the matter; and

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(2) a lawyer representing an indigent client MAY pay court costs and expenses of
litigation.

(f) A lawyer shall NOT accept compensation for representing a client from one other than the
client UNLESS:

(1) the client gives informed consent;


(2) there is no interference with the lawyer's independence of professional judgment or
with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.

[Adv. Cmte. 11] Because 3rd party payers frequently have interests that differ
from those of the C, Ls are prohibited from accepting/continuing such
representations UNLESS the L determines that there will be no interference w/L’s
independent professional judgment AND there is informed consent from C
 See also Rule 5.4(c) (prohibiting interference w/L’s professional judgment by
one who recommends, employs, or pays the L to render legal services for
another)
[Adv. Cmte. 12] If the fee arrangement creates a conflict of interest for the L, then
the L must comply w/Rule 1.7 AND conform to the reqs. Of confidentiality under
Rule 1.6.

 Insurance companies (interests may conflict with the insured, and lawyer may not
zealously represent the insured)

(g) A lawyer who represents two or more clients shall NOT participate in making an aggregate
settlement of the claims of or against the clients, or in a criminal case an aggregated agreement
as to guilty or nolo contendere pleas, unless each client gives informed consent...

[Adv. Cmte. 13] Differences in willingness to make/accept an offer are RISKS of


common rep., which should be discussed PRIOR to undertaking rep., BUT Rule
1.2(a) affords EACH C the final say in deciding whether to accept/reject an offer of
settlement.
 Before a settlement/plea is accepted on behalf of multiple Cs, the l must
inform EACH about all the material terms of the settlement, inc’l what the
other clients will receive/pay

(h) A lawyer shall NOT:

(1) make an agreement prospectively limiting the lawyer's liability to a client for
malpractice UNLESS the client is independently represented in making the agreement;
OR

(2) settle a claim or potential claim for such liability with an unrepresented client or
former client unless that person is advised in writing of the desirability of seeking and is
given a reasonable opportunity to seek the advice of independent legal counsel in
connection therewith.

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[Adv. Cmte. 14] This does NOT prohibit a L from entering into an agreement w/the
C to arbitrate legal malpractice claims, provided the agreement is valid and the C
informed.
 NOR does it limit the ability of Ls to practice in the form of a LLC entity,
provided each L remains personally liable to the C for his own conduct.
 NOR does it prohibit an agreement in accordance with Rule 1.2 that defines
the scope of rep.
 [Adv. Cmte. 15] Agreements SETTLING a malpractice claim are NOT
prohibited

(i) A lawyer shall NOT acquire a proprietary interest in the cause of action or subject matter
of litigation the lawyer is conducting for a client, EXCEPT that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.

[Adv. Cmte. 16] This rule is designed to avoid giving the L too great an interest in
the rep.
 Exceptions: Liens auth. By law to secure L’s fees

(j) A lawyer shall NOT have sexual relations with a client UNLESS a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.

[Adv. Cmte. 17] The L-C relationship is that of a fiduciary – of the highest trust &
confidence. Thus, a sex relationship can unfairly exploit the L’s fiduciary role and
would impair the L’s professional judgment
 Also blurs confidences and AC priv.
 Applies REGARDLESS if the sex is consensual and REGARDLESS of the
absence of prejudice, UNLESS the sex predates the L-C relationship
o Even if OK, L must determine if his ability to rep. C will be limited under
Rule 1.7(a)(2)
[Adv. Cmte. 19] When C = org., L may NOT have a sex relationship w/a
constituent of the org. who supervises, directs, or regularly consults w/that L
concerning the org.’s legal matters.

(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a)
through (i) that applies to any one of them shall apply to ALL of them.
[Adv. Cmte. 20] Sections (a) – (i) apply to ALL lawyers associated in a firm w/the
personally prohibited L

Rule 1.9 Duties To Former Clients


 concern that lawyer will misuse information against the former client’s interests.

(a) A lawyer who has FORMALLY represented a client in a matter shall not thereafter represent

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another person in the same or a substantially related matter in which that person's interests are
materially adverse to the interests of the former client UNLESS the former client gives informed
consent, confirmed in writing.

[Adv. Cmte. 1] L cannot rep. Cs and then rep. other Cs adverse to the former Cs.
BUT, if L rep.ed multiple Cs in a matter, he MAY rep. one C against the other in a
later matter w/informed consent
[Adv. Cmte. 2] L who recurrently handled a type of problem for a former C is NOT
precluded from later rep.ing another C in a factually distinct problem of that type
even tho the subsequent rep. involves a position adverse to the prior C
[Adv. Cmte. 3] Matters are “substantially related” IF they involve the SAME
transaction or legal dispute OR if there is otherwise a substantial risk that
confidential info would materially advance the C’s position in the subsequent
matter.
 Ex. L who rep.ed a businessman and learned extensive private financial info
about a person may NOT then represent that person’s spouse in obtaining a
divorce.
 BUT, info that has been disclosed to the public or other parties adverse to
the former C will NOT be disqualifying.
o Info acquired in a prior rep. may have been rendered obsolete by
passage of time
In the case of an org. C, general knowledge of the C’s policies and practices
ordinarily is NOT disqualifying, but knowledge of specific facts relevant to a matter
WILL preclude rep.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter
in which a firm with which the lawyer formerly was associated had previously represented a
client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c)
that is material to the matter; unless the former client gives informed consent, confirmed in
writing.

[Adv. Cmte. 4] There are several competing considerations:


 First, the C prev. rep.ed by the former firm MUST be reasonably assured that
the principle of loyalty to the C is NOT compromised
 Second, Rule 1.9 should NOT be so broadly cast as to preclude other persons
from having reasonable choice of legal counsel.
 Third, Rule 1.9 should NOT unreasonably hamper Ls from forming new
associations and taking on new Cs after having left a previous association
[Adv. Cmte. 5] If a L, while with one firm acquired NO knowledge or info relating to
a particular C of the firm, and that L later joined another firm, NEITHER the L
individually NOR the 2nd firm is disqualified from rep.ing another C in the same or a
related matter even though the interests of the 2 Cs conflict.
 See Rule 1.10(b) for restrictions on a firm once the L has terminated
association w/a firm
[Adv. Cmte 6] Application of Rule 1.9(b) depends on PARTICULAR FACTS, aided
by inferences about the way in which Ls work together (depending on level of

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access, privity, fileshare, etc.)

 a lawyer who leaves the firm may act adversely even in a substantially related matter to a
client of the former firm, so long as he did not learn any confidential information himself.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the information
has become generally known; or
(2) reveal information relating to the representation except as Rules would permit or require.

[Adv. Cmte. 7] Independent of whichever firm, L has duty to preserve


confidentiality of info about former Cs; See Rules 1.6 and 1.9(c).
[Adv. Cmte. 8] The fact that L once served a C does NOT preclude the L from using
generally known info about that C when later rep.ing another C.
***NOTE!!!!: [Adv. Cmte. 9] The provisions of Rule 1.9 can be WAIVED if C gives
informed consent, confirmed in writing.
 W/regard to effectiveness of advance waiver, See Rule 1.7 [cmt. 22]
 W/regard to disqualification of a firm w/which L was formerly associated, See
Rule 1.10

 CONSENT of the former client is sufficient to permit lawyer to accept the representation
despite the conflict.
 But there is no suggestion that the lawyer might have to obtain informed consent from the
new client? Still need to think about whether there is a conflict with the lawyer’s own interests
under 1.7. If lawyer wants to maintain good will of former client, there may still be a conflict.
 Information that is generally known- can be used to former client’s disadvantage. But this
means more than publicly available—must be of “considerable public notoriety” or have
received “widespread publicity”

 Significant relationship (between matters) and substantial role (of lawyer): There is no way
a lawyer can prove she did not obtain client confidences. And the party that wants to protect its
confidences should not be required to disclose them. Thus, it is presumed that the lawyer
obtained confidences from the previous client. The former client does not have to assert what the
confidences shared were, only describe the relationship between lawyer and client, and the court
will infer the kinds of info that would have been available to the lawyer.

 under Rule 1.13, a lawyer may represent both an organization and its officers, but if their
interests diverge, the lawyer must withdraw from the representation.

Rule 1.10 Imputation Of Conflicts Of Interest: General Rule


 Partner is also disqualified, because they share equipment, profits, and conversations,

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and these cannot be policed.

(a) While lawyers are associated in a firm, none of them shall KNOWINGLY represent a client
when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9,
UNLESS:
(1) The prohibition is based on a personal interest of the prohibited lawyer and does
NOT present a significant risk of materially limiting the representation of the client by
the remaining lawyers in the firm, OR

[Adv. Cmte. 2] Gives effect to the principle of loyalty to C as it applies to Ls who


practice in a law firm.
 A firm of Ls is essentially one L for purposes of the RoPC.
 When a L moves from one firm to another, the situation is governed by
Rules 1.9(b), 1.10(a)(2) and 1.10(b)
[Adv. Cmte. 3] Does NOT prohibit rep. where neither Qs of C loyalty nor protection
of confidential info are presented (such as political views, etc.).
[Adv. Cmte. 4] Does NOT prohibit rep. by others in the law firm where the person
is prohibited from involvement in a matter in a matter is a non-lawyer (paralegal,
legal secretary).
 Nor does it prohibit rep. if the L is prohibited from acting bc of events before
the person became a L, for ex., work that the person did while a law student.
 Such persons, however, ordinarily must be screened from any personal
participation in the matter to avoid communication to others in the firm of
confidential info that both the non-lawyers and the firm have a legal duty to
protect.

***Added in 2009…
(2) The prohibition is based upon Rule 1.9(a), or (b), AND

[Adv. Cmte. 7] Rule 1.10(a)(2) REMOVES the imputation otherwise required by


Rule 1.10(a) BUT does so WITHOUT requiring that there be informed
consent by the former C. Instead, it requires that the procedures laid out in (i)-
(iii) be followed.

(i) The disqualified lawyer is timely screened from ANY participation in the
matter and is apportioned NO part of the fee therefrom

[Adv. Cmte. 8] This does NOT prohibit the screened L from receiving a salary or
partnership share est. by prior independent agreement, BUT that L may NOT
receive compensation directly related to the matter in which the L is disqualified.

(ii) Written notice is promptly given to any affected former client to enable the
former client to ascertain compliance with the provisions of this Rule, which shall
include a description of the screening procedures employed; a statement of the
firm’s and of the screened lawyer’s compliance with these Rules; a statement that
review may be available before a tribunal; and an agreement by the firm to
respond promptly to any written inquiries or objections by the former client about
the screening procedures; AND

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[Adv. Cmte. 9] The notice should generally include a description of the screened
L’s prior rep. and be given as soon as practicable after the need for screening
becomes apparent. It should also include a statement by the screened L and the
firm that the C’s material confidential info has NOT been disclosed or used in
violation of the RoPC.

(iii) certifications of compliance with these Rules and with the screening
procedures are provided to the former client by the screened lawyer and by a
partner of the firm, at reasonable intervals upon the former client’s written request
upon termination of the screening procedures.

[Adv. Cmte. 10] This section gives the former C assurance that the C’s material
info has NOT been disclosed or used inappropriately.

(b) When a lawyer has terminated an association with a firm, the firm is NOT prohibited from
thereafter representing a person with interests materially adverse to those of a client
represented by the formerly associated lawyer and not currently represented by the firm,
UNLESS:
(1) the matter is the same or substantially related to that in which the formerly associated
lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c)
that is material to the matter.

[Adv. Cmte. 5] Applies REGARDLESS of when the formerly associated L rep.ed the
C.

(c) A disqualification prescribed by this rule MAY be WAIVED by the affected client under the
conditions stated in Rule 1.7.

[Adv. Cmte. 6] Removes imputation w/the informed consent of the affected C


under Rule 1.7.

(d) The disqualification of lawyers associated in a firm with former or current government
lawyers is governed by Rule 1.11(b)(c)(d).

 Consent to conflicts of interest—Freedman sees this as compatible with a client-centered


system. Question is whether the lawyer was able to obtain a voluntary and informed
consent.
 A conflict is unwaivable (as in the Louima case) if no defendant would knowingly desire
that attorney’s representation, if he understood the risks of the conflict.
 Grounds for court-ordered disqualification—eliminates counsel that might have an
unfair advantage because of confidences gained from the moving party.
 Disqualification: Court will take into account interests such as delay caused by granting
the motion, wrongful conduct of the moving party, timing of the motion, and the
nonmoving party’s interest in retaining the counsel of her choice.

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Freedman: Problems with screening (based on common sense & practicalities of proof):
1. lawyer learned of confidences – justified by ethical obligation to learn everything
relevant. Avoid making client reveal its confidences in order to protect them.
2. Atty might use confidences on behalf of another party. Based on requirement of loyalty,
zeal, and communication of all material information.
3. Common sense—a possibility that atty might disclose to new partners, because there is a
significant incentive to elicit the confidences.
4. Would be impossible to police these violations--Could not prove a specific breach.

The former client could consent, but if he refuses, the firm must be disqualified.
Freedman thinks that screening would not protect confidential information from being disclosed.

FEES
Fee arrangements ALWAYS create a conflict of interest. there is no resolution other than
looking to lawyer to make judgments as to what is in the client’s best interests….even thought
the rest of our Rules say we can’t trust ourselves to do so.

Rule 1.5 Fees


(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the
skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment
will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) experience, reputation, and ability of the lawyer performing the services; and

(7) whether the fee is fixed or contingent.

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[Adv. Cmte. 1] The factors specified in (1)-(8) are NOT exclusive, NOR will each
factor be relevant in each instance. The main point: Feed and expenses must be
REASONABLE.
[Adv. Cmte. 3] Contingent fees are also subject to the reasonableness standard;
BUT applicable law may impose limitations.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the
client will be responsible shall be communicated to the client…

[Adv. Cmte. 2] In a NEW C-L relationship, an understanding as to fees/expenses


must be promptly established. It is desirable to furnish the C w/at least a memo
stating the gen. nature of the legal services, the basis, the rate, the total expected
amount, and to what extent the C will be responsible for any costs, expenses, or
disbursements.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered,
except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A
contingent fee agreement shall be in a writing signed by the client and shall state the method by
which the fee is to be determined, including the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted
from the recovery; and whether such expenses are to be deducted before or after the contingent
fee is calculated. The agreement must clearly notify the client of any expenses for which the
client will be liable whether or not the client is the prevailing party. Upon conclusion of a
contingent fee matter, the lawyer shall provide the client with a written statement stating the
outcome of the matter and, if there is a recovery, showing the remittance to the client and the
method of its determination. (Based on REASONABLENESS standard)

[Adv. Cmte. 4] L may require advance payment of a fee, BUT is obliged to return
any unearned portion under Rule 1.16(d).
 L may accept property, ownership in an enterprise, or other means as
payment, SO LONG AS it does NOT involve acquisition of a proprietary
interest in the cause of action under Rule 1.8(i) or in a transaction under
Rule 1.8(a)
[Adv. Cmte. 5] L should NOT enter into an agreement whereby services are to be
provided ONLY up to a stated amount when further expenses are foreseeable. It is
proper, rather, to define the extent of services in light of the C’s ability to pay.

 Fee agreement must resolve issue of whether fees are computed before or after expenses
are determined.
 Most criticism of contingency fees comes from the defendant’s bar and potential
defendant in class actions, who argue that they stir up frivolous litigation. Thus, source
of critique is not aligned with potential plaintiffs. In fact, its not clear that lawyers will
want to take on frivolous cases with little chance of success. The benefit of such fees is
that they allow access to attorneys for the poor and encourage the lawyer to work
efficiently, since there is no point in racking up hours. But there may be an incentive to
settle a case rather than spend the hours required to go to trial.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:
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(1) contingent fee upon the securing divorce, amount of alimony, or property settlement
(2) a contingent fee for representing a defendant in a criminal case.

 Conservative notion that lawyers will not be able to contain zeal in obtaining divorces if
their financial rewards depend on it. Crim defense laywers will be tempted into
impropriety in defense of their client.

(e) A division of a fee between lawyers who are not in the same firm may be made only if:
(1) in proportion to the services performed by each lawyer or each lawyer assumes joint
responsibility for the representation;
(2) the client agrees to the arrangement, including share each lawyer will receive, and the
agreement is confirmed in writing; and
(3) the total fee is reasonable.

[Adv. Cmte. 7] A division is a SINGLE billing to a C convering the fee of 2+ Ls who


are NOT in the same firm (generally btw a referring L and a trial specialist). Ls MAY
divide a fee either on the basis of the proportion of services rendered OR if each
assumes responsibility for the whole. C must agree to the arrangement and the
shares, signed, and in writing.
 Discourages the fee charged for forwarding clients; okay to share fees with former
partners and members of the same firm, but rarely with nonlawyers.

Rule 1.15 Safekeeping Property


 One of the most common grounds for lawyer discipline. No intent required.

(a) A lawyer shall hold property … separate from the lawyer's own property. Funds shall be
kept in a separate account …

[Adv. Cmte. 1] L is a professional fiduciary.


 Funds should be kept in a safe deposit box, unless heightened security is
necessary
 L should maintain, on a current basis, books and records in accordance
w/generally accepted accounting practice AND comply w/any record-keeping
rules established by law or court order

(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of
paying bank service charges on that account, but only in an amount necessary for that purpose.

[Adv. Cmte. 2] Accurate records must be kept regarding which part of the funds
are L’s.

(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid
in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

[Adv. Cmte. 3] Any disputed funds must be kept in a trust account and the L

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should suggest means for prompt resolution of the dispute, such as arbitration.

(d) Upon receiving funds or other property in which a client or third person has an interest, a
lawyer shall promptly notify the client or third person. …lawyer shall promptly deliver to the
client or third person any funds or other property …

(e) When in the course of representation a lawyer is in possession of property in which two or
more persons (one of whom may be the lawyer) claim interests, the property shall be kept
separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all
portions of the property as to which the interests are not in dispute.

[Adv. Cmte. 4] 3rd parties may have lawful claims against specific funds or other
property in a L’s custody, such as a C’s creditor.
 L may have a duty under applicable law to protect such 3rd party claims
against wrongful interference by C.
 L should NOT unilaterally assume to arbitrate a dispute btw the C and the 3rd
party, BUT, when there are substantial grounds for dispute as to the person
entitled to the funds, : may file an action to have a court resolve the dispute.

As to Retainers…
 General retainers (paying for a promise to take a case if needed) are permissible, as long
as they are reasonable. But a “special retainer,” in which the client pays a flat fee for a
specific task, is considered improper in many jurisdictions, because it interferes with the
clients authority to fire a lawyer at any time, under Rule 1.16(a).

ADVERTISING & SOLICITATION


Examples of what first amendment litigation has led to: Comment 3 to Rule 7.2—taste in
advertising is subjective. No longer any prohibition based on good taste.

Rule 7.1 Communications Concerning A Lawyer's Services


A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's
services. A communication is false or misleading if it contains a material misrepresentation of
fact or law, or omits a fact necessary to make the statement considered as a whole not materially
misleading.

[Adv. Cmte. 2-3] Truthful statements that are MISLEADING are also Prohibited:
 Ex. If the statement omits a fact necessary to make the L’s communication
considered as a whole
 Ex. If there is substantial likelihood that it will lead a reasonable person to
formulate a specific conclusion about the L or L’s services for which there is
NO factual foundation
 Ex. An ad that truthfully reports L’s achievements, if presented so as to lead

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a reasonable person to form an unjustified expectation of the same results


 Ex. An unsubstantiated comparison of L’s services/fees with those of other
Ls, if presented w/such specificity as would lead a reasonable person to
conclude that the comparison can be substantiated
[Adv. Cmte. 4] See also Rule 8.4(e) for the prohibition against stating/implying
an ability to influence improperly a gov. agency or official OR to achieve results by
means that violate RoPC

 Held to include statements like: no fee unless you prevail, which omits the significant
costs charged whether or not they succeed or not.

Rule 7.2 Advertising


(a) a lawyer may advertise services through written, recorded, or electronic communication,
including public media

[Adv. Cmte. 1] The interest in expanding public info about legal services ought to
prevail over considerations of tradition. Nevertheless, advertising by Ls entails the
risk of practices that are misleading or overreaching.
[Adv. Cmte. 3] Qs of effectiveness and taste in advertising are matters of
speculation and subjective judgment. (Some juris have extensive provisions…)

(b) A lawyer shall NOT give anything of value to a person recommending lawyer's services
EXCEPT:
(1) pay the reasonable costs of advertisements or communications;
(2) pay the usual charges of a legal service plan or qualified lawyer referral service.
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement
not otherwise prohibited under these Rules that provides for the other person to refer clients or
customers to the lawyer, IF:
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.

[Adv. Cmte. 5] Ls are NOT permitted to PAY others for channeling professional
work. Rule 7.2(b)(1), however, allows L to pay for advertising and
communications permitted by Rule 7.2, inc’l costs of print directory listings, on-line
directory listings, newspaper ads, TV and radio airtime, domain-name registrations,
sponsorship fees, banner ads, group advertising, and compensation for EEs, agents,
and vendors involved.
[Adv. Cmte. 6] L may pay the usual charges of a legal service plan (assistance
to prospective clients to secure legal rep.) OR a non-for-profit lawyer referral
service (unbiased org. that holds itself out to the public as a lawyer referral
service) OR a qualified lawyer referral service (approved by a reg. authority to
afford adequate protections for prospective Cs).
[Adv. Cmte. 7] L who accepts assignments or referrals must act reasonably to
assure that the activities of the plan/service are compatible w/L’s professional
obligations

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 See Rule 5.3


 [Adv. Cmte. 8] Such reciprocal arrangements must not interfere w/L’s
judgment
o See Rules 2.1 and 5.4(c)

(c) Any communication made pursuant to this rule shall include the name and office address of
at least one lawyer or law firm responsible for its content.

[Adv. Cmte. 2] Permits public dissemination of information concerning: a L’s name


or firm name, address & telephone #, kinds of services the L will undertake, the
basis on which the L’s fees are determined (inc’l prices for specific services and
payment arrangements), L’s foreign language ability, names of references, names
of C’s regularly rep.ed, AND other info that might invite the attention of those
seeking legal assistance.

 Lawyer referral plans or union-supported plan can’t be prohibited as commercial speech


under first Amendment.
 Lawyers cannot pay individuals to go out and seek clients for them.

Rule 7.3 Direct Contact With Prospective Clients


(a) A lawyer shall NOT by in-person, live telephone or real-time electronic contact solicit
professional employment from a prospective client when a significant motive for the lawyer's
doing so is the lawyer's pecuniary gain, UNLESS the person contacted:
(1) is a lawyer; or
(2) has a family, close personal, or prior professional relationship with the lawyer.

[Adv. Cmte. 4] There is far less likelihood that L would engage in abusive practices
against an individual who is a former C, OR w/whom the L has close personal or
family relationship, OR in situations in which L is motivated by considerations other
than pecuniary, OR when the person contacted L first.
 This rule is NOT intended to prohibit L from participating in constitutionally
protected activities: public/charitable legal-service orgs. OR bona fide
political, social, civic, fraternal, EE, or trade orgs. Whose purposes include
providing/recommending legal services to its members.

(b) A lawyer shall NOT solicit professional employment from a prospective client by written,
recorded or electronic communication or by in-person, telephone or real-time electronic contact
even when not otherwise prohibited by paragraph (a), IF:
(1) the prospective client has made known to the lawyer a desire not to be solicited by the
lawyer; OR
(2) the solicitation involves coercion, duress or harassment.

[Adv. Cmte. 5] Even permitted forms of solicitation can be abused.


 Any solicitation which contains info which is false/misleading under Rule 7.1
 NOTE: If after sending a letter or other communication to a C under Rule 7.2

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the L receives NO response, any further effort to communicate w/the


prospective C may violate Rule 7.3(b)
[Adv. Cmte. 6] Contacting reps. Of orgs. Is functionally similar to advertising under
Rule 7.2

(c) Every … communication from a lawyer soliciting professional employment from a


prospective client known to be in need of legal services in a particular matter shall include the
words "Advertising Material" on the outside envelope,  written solicitation permitted.

[Adv. Cmte. 7] Rule 7.3(c) does NOT apply to communications sent in response
to REQUESTS of potential Cs or their spokespersons.
 General announcements by Ls do NOT constitute solicitation

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or
group legal service plan operated by an organization not owned or directed by the lawyer that
uses in-person or telephone contact to solicit memberships or subscriptions for the plan from
persons who are not known to need legal services in a particular matter covered by the plan.

[Adv. Cmte. 8] Rule 7.3(d) permits L to participate w/an org. which uses personal
contact to solicit members for its group or prepaid service plan, provided that the
personal contact is NOT undertaken by any L who would be a provider of legal
services through the plan.
 Ls who participate in legal service plans must reasonably reassure that the
plan sponsors are in compliance with Rule 7.1, 7.2 and 7.3(b)
 See also 8.4(a)

 Prohibition (critized by F.) on soliciting employment from a prospective client when a


significant motive is pecuniary gain.
o Case: no problem about solicitation for political causes, because primary purpose
is a political statement rather than financial recompense.
o Can’t have a conversation with a prospective client when a purely commercial
transaction. Case: clinic solicited personal injury clients—FL rule that prohibited
solicitation for 30 days after accidents was legitimate control over commercial
speech. No face-to-face solicitation: Hugh Laura case, placing a pen in hand of
patient.
o With respect to ordinary soliciation: 7.3b says that a written solicitation,
designated as advertising (even is targeted) is permissible.
 Line drawn at coercive situation—face to face contact. (or telephonic)
 Freedman opposes this prohibition on advertising because obligation to chase
ambulances helps protect individuals’ rights.

BAR ADMISSION AND DISCIPLINE


Rule 8.1 Bar Admission and Disciplinary Matters
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An applicant for admission to the bar, or a lawyer in connection with a bar admission
application or in connection with a disciplinary matter, shall not:

a) KNOWINGLY make a false statement of material fact; or


b) Fail to disclose a fact necessary to correct a misapprehension KNOWN by the person to
have arisen in the matter, or KNOWINGLY fail to respond to a lawful demand for
information from an admissions or disciplinary authority…

[Adv. Cmte. 1] It is a SEPARATE offense for a lawyer to knowingly make a


misrepresentation or omission in connection with a disciplinary investigation of the
lawyer’s own conduct.
 8.1(b) ALSO requires CORRECTION of any prior misstatement or affirmative
CLARIFICATION of any misunderstanding
[Adv. Cmte. 2] Subject to 5th A and corresponding provisions of state constitutions!
 NOTE: NITA CITY’s ADDITIONAL PROVISION: “A lawyer shall NOT further
the application for admission to the bar of another person known by the
lawyer to be unqualified in respect to character, education, or any relevant
attribute.”
[Adv. Cmte. 3] A lawyer representing an applicant for admission to the bar, OR
representing a lawyer who is the subject of a disciplinary inquiry/proceeding, is
governed by the rules applicable to the client-lawyer relationship of 1.6 and 3.3

 The failure to respond truthfully to the questions indicates a lack of concern for the truth,
which means that the person fails to show the good moral character and fitness necessary
to practice law. The Bar may weigh this very heavily. Misrepresentation is a more
frequent basis for denial than misconduct.
 Licensed lawyers are duty-bound not to assist in the admission of an unqualified
applicant.

Rule 8.2 Judicial and Legal Officials


(a) A lawyer shall NOT make a statement he knows to be false or with reckless disregard
as to its truth/falsity concerning the qualifications or integrity of a judge, adjudicatory
officer, public officer, or of a candidate for election/appointment to judicial/legal office

(b) A lawyer who is a candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct.

[Adv. Cmte. 1] Expressing honest and candid opinions contributes to improving


the administration of justice. Conversely, false statements can unfairly undermine
confidence in the administration of justice.
 [Adv. Cmte. 2] When a lawyer seeks judicial office, he should be limited in

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his political activity


 [Adv. Cmte. 3] To maintain fair & independent administration of justice,
lawyers are encouraged to continue traditional efforts to DEFEND
judges/courts unjustly criticized

Rule 8.3 Reporting Professional Misconduct


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

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

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6…

[Adv. Cmte. 1] Self-regulation requires members of the profession to initiate


disciplinary investigation when they know of a violation of the Rules.
 Reporting a violation is especially important where the victim is unlikely to
discover the offense
[Adv. Cmte. 2] A report about misconduct is NOT required for violation of 1.6
[Adv. Cmte. 3] If law forced a lawyer to record EVERY violation of the RoPC, it
would be unenforceable
 This Rule LIMITS the reporting obligation to those offenses that a self-
regulating profession must vigorously endeavor to prevent.
o Requires a measure of judgment
 “Substantial” refers to the seriousness of the possible offense and Not the
quantum of evidence of which the lawyer is aware
[Adv. Cmte. 4] Duty to report professional misconduct does NOT apply to a lawyer
retained to represent a lawyer who’s professional conduct is in question.
[Adv. Cmte. 5] Excluding disclosure of info in a lawyer/judge’s assistance program
incentivizes professionals to seek treatment through such programs without
penalty.

 Himmel case: Himmel did not report the conduct of another lawyer who he sued on
behalf of a former client who was owed money. He was disciplined for failing to comply
with the IL version of rule 8.3, which requires the reporting of professional misconduct of
other lawyers. Case is of limited application across the US because the provision differs.
 The Model Rule: does not require disclosure of information otherwise protected by Rule
1.6. Any information to which your duty of confidentiality extends (anything) may be
revealed only with client’s permission. Outside of IL, a client may direct you not to
reveal info about another lawyer’s breach of professional duty. This is often in the
client’s interest.
 In IL: a lawyer is obliged to reveal professional errors unless the information comes to
the lawyer in a privileged communication. Your client may prevent you from revealing

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what he told you, but not what you learned from other sources. The information in
Himmel was not privileged, although it would likely have been confidential under the
Model Rule.

Rule 8.4 Misconduct


It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the RoPC, knowingly assist or induce another to do so,
or do so through the acts of another;

[Adv. Cmte. 1] This does NOT prohibit a lawyer from advising a client concerning
action the client is legally entitled to take

(b) commit a CRIMINAL ACT that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;

[Adv. Cmte. 2] Traditionally, the fitness was determined in terms of offenses


involving “moral turpitude” (offenses concerning some connection to fitness for
the practice of law).
 Although a lawyer IS personally answerable to the entire criminal law, a
lawyer should NOT be professionally answerable only for offenses that
indicate lack of those characteristics relevant to law practice.

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

[Adv. Cmte. 2] These offenses (dishonesty, fraud, deceit, or misrepresentation)


belong in the category negating fitness as a lawyer.
 A pattern of repeated offenses, even ones of minor significance, can indicate
indifference to legal obligation

(d) engage in conduct that is prejudicial to the administration of justice;

[Adv. Cmte. 3] Ex. A lawyer who knowingly manifests by words or conduct, bias or
prejudice based upon race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status violates (d) when such actions are prejudicial to
justice
 BUT, a trial judge’s finding that peremptory challenges were exercised on a
discriminatory basis does not ALONE establish violation of Rule 8.4(d)

(e) state or imply an ability to influence improperly a government agency or official


or to achieve results by means that violate the RoPC or other law; or

[Adv. Cmte. 4] A lawyer MAY refuse to comply with an obligation imposed by law
upon a good faith belief that no valid obligation exists.

(f) knowingly assist a judge or judicial officer in conduct that is a violation of

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applicable rules of judicial conduct or other law.

[Adv. Cmte. 5] Lawyers holding public office assume legal responsibilities going
beyond those of other citizens.
 A lawyer’s abuse of public office can suggest inability to fulfill the
professional role of lawyers
 The same is true of abuse of positions of private trust such as trustee,
executor, administrator, guardian, agent and officer, director or manager of a
corp., etc.

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