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MPRE Attack Outline Regulation of the Legal Profession (6% to 12%)

1. Powers of Courts and Other Bodies to Regulate Lawyers a. State Regulation Every state has its own bar and its own rules for professional conduct. The courts, not the legislature, have the ultimate authority in regulating the profession. b. Self-Regulation - A lawyer who knows (actual or inferred) another lawyer has violated the RPC that raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer must inform proper authority. A lawyer who knows that a judge has violated the RJC that raises a substantial question of his fitness for office must notify proper authority. i. Exceptions 1. Confidential Communications Cannot Be Disclosed Lawyer represents other lawyer, etc. 2. Approved Lawyers Assistance Program This rule does not require disclosure of information gained by lawyer while he is participating in substance abuse programs, etc. Admission to the Profession a. Rule - Lawyer must be psychologically and morally fit to practice law i. Burden On applicant ii. Permissible Standards Each state sets its own requirements for bar admission but these standards must have a rational relationship to the fitness to practice law 1. Good Moral Character is Required - Acts of moral turpitude (lying, violence, theft, recklessness, sexual misconduct, false statements to bar) show a lack of good character a. NOTE Negligent crimes and unintentional acts do not count here 2. Educational Requirements J.D. from accredited school and mandatory CLE 3. Bar Examination Most states require 4. Bar Application Procedural Requirements Candidate may be denied admission for making false statements, concealing material information (except confidential communications) or refusing to answer legitimate questions. th a. NOTE Applicant can plead the 5 but must do so openly (I refuse to answer) iii. Impermissible Standards 1. Citizenship Standard cannot require lawyer to be U.S. citizen or a citizen of the state 2. Political Beliefs Political beliefs cannot be used a. Exceptions i. Refusal to Swear Allegiance to the State or U.S. Constitution OR ii. Actively Affiliating with Organization with Illegal Objectives with the Specific Intent to Further Those Objectives Regulation After Admission (Lawyer Discipline) a. Grounds for Discipline i. Professional Misconduct 1. Violation of Rule Violation by lawyer or another at his direction, attempted violation, knowingly assisting or inducting a violation or using another person to commit a violation of a RPC 2. Criminal Conduct A criminal act that reflects poorly on attorneys trustworthiness, honest, or fitness as a lawyer 3. Dishonesty, Fraud, Deceit or Misrepresentation Engaging in this conduct, does not have to be illegal 4. Conduct Prejudicial to Administration of Justice 5. State or Imply an Ability to Improperly Influence Government Agency or Official 6. Assist a judge in Violating Judicial Code ii. Responsibilities of Partners, Managers, and Supervisory Lawyers Partners and other attorneys with management authority must make reasonable efforts to ensure that the firm has measures in effect giving reasonable assurance that all lawyers n the firm conform to the RPC 1. Duty to Supervise Subordinates Each lawyer having direct supervisory authority over another lawyer must take measures to ensure he is complying with RPC 2. Ethical Violations of Subordinates Lawyer is responsible for another lawyers violation of the RPC if: a. He Fails to Take Remedial Action Lawyer is a partner, has management authority, or has direct supervisory authority over another lawyer AND b. Knows of Conduct When it Can be Stopped or Mitigated AND

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c. Fails to Take Reasonable Remedial Action iii. Duty to Make Independent Judgments Each lawyer is responsible for his own actions 1. Exception Lawyer may follow directions from superior as long as reasonable iv. Ethical Violations of Other Attorneys Lawyer is not responsible for violations of another attorney UNLESS 1. Supervisory Authority That Fails to Take Remedial Action Discussed above OR 2. Orders or Ratifies Unethical Conduct b. Forms of Discipline i. Disbarment Permanent revocation of license in jurisdiction ii. Suspension Temporary revocation for period of time iii. Public or Private Censure Unauthorized Practice of Law (Only Admitted Attorneys Subject to ABA Rules) a. Unauthorized Practice of Lawyer by NonLawyers (Disbarred Law Student, etc.) i. Activity involves legal knowledge and skill AND ii. Person gives advice on binding legal rights OR Only attorney can give legal advice iii. Other activities traditionally performed by lawyers 1. Drafting Documents The general rules is that only lawyer can draft legal documents a. Exceptions i. Pro Se Legal Documents A nonlawyer may draft own documents ii. Fill in the Blank Documents 2. Appearing in Court to Represent or Assist General rule is that only a lawyer can appear in court to represent others a. Exceptions i. Pro Se Representation A nonlawyer can represent himself 1. Exception Corporations always require an attorney ii. Law Students Law students in many states can appear in court under supervision of practicing attorney. b. Unauthorized Practice of Law by Lawyers i. Not Admitted For Practice in Jurisdiction Lawyer cannot practice in jurisdiction where license has been revoked or suspended or where she has not been admitted to practice 1. Exceptions a. Pro Hac Vice Status Lawyer asks court in that state to practice in a particular case (up to courts discretion) b. Temporary Practice Arising Out of Authorized Practice Taking deposition in other state, etc. as long as related to practice in jurisdiction where lawyer is admitted ii. Assisting Nonlawyer in Unauthorized Practice of Law Lawyer cannot assist a non-lawyer or a disbarred or suspended lawyer in practice of law 1. Exception A lawyer may assist a nonlawyer in pro se representation iii. Fee Splitting With a Nonlawyer Generally prohibited 1. Exceptions a. Employees A lawyer may split fees with her employees through compensation or pension benefits b. Estate of Deceased Lawyer Lawyer may transfer a deceased lawyers partnership share to the estate of the deceased lawyer c. Non-Profit Organization A lawyer may share court awarded legal fees with a nonprofit that employed or recommended lawyer iv. Duty Not to Enter Partnership to Practice Law with a Nonlawyer Lawyers can form partnerships with each other but not with another type of professional, such as a CPA, if any part of the business is to practice law. 1. Separate and Apart Businesses Lawyer may own and operate a business with non-lawyers that is separate and apart from the practice of law Law Firms a. Incorporation If permitted by state, firm may incorporate as long as all officers, directors, shareholders are lawyers b. Buying and Selling Firm A lawyer can buy a practice, including goodwill, as long as following is satisfied: i. Seller Ceases to Engage in the Private Practice of Law OR in Area of Practice that Has Been Sold ii. Entire Practice or Area of Practice is Sold

iii. Written Notice is Given to Each of Sellers Clients Regarding the Proposed Sale and Right to Take Possession of the File 1. 90 Day Presumption of Consent After 90 days, consent is presumed iv. No Immediate Increase in Fees Fees charged must not be increased by reason of sale

The Client-Lawyer Relationship (10% to 16%)


1. Formation of Client-Lawyer Relationship A lawyer-client relationship is formed when the client intends to seek legal advice from lawyer and lawyer either accepts or fails to clearly decline the representation (i.e. implied assent) a. Acceptance - Lawyer Has No Duty to Accept i. Exceptions 1. Court Appointed a. Exception Good cause exists. Representation: i. Would Violate Law or Ethical Rule ii. Would Put an Unreasonable Financial Burden on Lawyer OR iii. Would Prevent Effective Representation Because of Lawyers Feelings Towards Client 2. Defenseless or Oppressed An attorney SHOULD accept if the only reason to refuse is selfish 3. Pro Bono Work The ABA ENCOURAGES 50 hours pro bona a year to indigent clients b. Rejection A lawyer must reject representation if: i. Accepting Would Require Lawyer to Violate an Ethical Rule ii. His Motive for Accepting Would be To Embarrass, Delay, or Burden a Third Person iii. The Defense or Claim is Frivolous 1. Exception Claim is not frivolous just because the law is against lawyers position if there is a good faith effort to change the law with the representation iv. The Lawyer is Incompetent in that Area of Law 1. Exception The lawyer can still take the case if: a. He believes he can become education without any undue expense or delay to client OR b. He associates with competent counsel who had help him v. His Personal Feelings Would Prevent Effective Representation OR vi. His Mental or Physical Condition Will Materially impair the Representation Scope, Objective, and Means of the Representation Lawyer must abide by clients wishes and communicate with client (see below). A lawyer may take such action on behalf of client as is impliedly authorized to carry out the representation. Lawyer must abide by a clients decision to settle or to enter a plea, waive jury trial, testify (unless he knows client will lie), etc. a. Scope of Representation Clients are permitted to make decisions regarding the ends of litigation, lawyers may decisions regarding the means of the litigation, such as strategy i. Attorneys Decisions EQUALS Means What arguments to make, what motions to file, what witnesses to call, etc. 1. Criminal or Fraudulent Conduct Lawyer must not counsel client to engage, or assist a client, in conduct that lawyer knows is criminal or fraudulent, but lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel client to determine the validity, scope, meaning, or application of the law. ii. Clients Decisions EQUALS Ends Client makes decisions regarding his substantive rights 1. Decision to Sue in Civil Cases Client decides 2. Settlement Offers Client makes ultimate decision 3. Pleas in Criminal Cases Client decides 4. Jury Waiver in Criminal Cases Client decides 5. Testify in Criminal Case Client decides (unless lawyer knows client will lie) 6. Decision to Appeal Client decides iii. Agreement to Limit Scope Lawyer may limit scope of representation if the limitation is reasonable and client gives informed consent b. Duty to Communicate Lawyer must explain matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation AND MUST: i. Promptly Inform of Decision Requiring Clients Informed Consent ii. Reasonably Consult About Means By which clients objectives are to be accomplished iii. Keep Client Reasonably Informed About Status of Matter iv. Promptly Comply with Reasonable Requests for Information AND

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v. Consult Client About Limitations on Lawyers Conduct Client With Disability or Diminished Capacity An attorney must, to the extent possible, maintain a normal lawyer-client relationship with a client who is disabled or has diminished capacity (minor, senile, etc.) i. Appointment of Guardian Lawyer may seek appointment of guardian if he reasonably believes client cannot protect her own interests Termination of Client-Lawyer Relationship a. Duty to Withdraw i. Court Permission Required in Litigation (Adversarial Proceeding) 1. Mandatory Withdrawal Attorney must ask courts permission to withdraw if the matter is already in litigation 2. Permissive Withdrawal Attorney may ask for the courts permission to withdraw if matter is already in litigation ii. Mandatory Withdrawal Lawyer must withdraw from representation where: 1. Attorneys Mental or Physical Condition Makes Continued Effective Representation Unreasonable 2. Continued Representation Would Foster the Commission of a Crime or Violate an Ethical Duty a. NOTE If lawyer can continue to effectively represent the client without violating the law or ethical rule, withdrawal is not mandatory even if the client asked the lawyer to break the law or violate an ethical duty 3. The Clients Primary Purpose is to Harass or Delay OR 4. The Client Fires Attorney a. NOTE If matter is already in litigation, the attorney must still ask courts permission iii. Permissive Withdrawal Lawyer MAY withdraw from representation for any reason if the withdrawal does not have a material adverse effect on the client or the client consents. However, even if the withdrawal will adversely affect the client, the attorney may withdraw if there is good cause 1. Good Cause a. Failure to Pay Attorney Fees b. Client Pursues Conduct Lawyer Believes is Criminal or Fraudulent c. Lawyer Believes Clients Objective is Imprudent or Morally Repugnant d. Continued Representation Would Imposed Unreasonable Financial Burden e. Client has Used Prior Legal Services of Attorney to Commit a Crime or Fraud f. Client Freely Assents to Lawyers Withdrawal g. Client Refuses to Cooperate 2. Procedure for Permissive Withdrawal a. Provide Timely Notice AND b. Give Client Reasonable Opportunity to Find Another Lawyer AND c. Promptly Return Unspent Advances for Fees and Expenses, Material Papers, and Client Property AND d. Not Divulge any Confidences Since Duty Persists Indefinitely Fees a. General Rules The fees and expenses must be communicated to client, preferably in writing, before or within a reasonable time after commencing the representation, except when lawyer will charge a regularly represented client on the same basis or rate. Any changes in rate of the fee or expenses must also be communicated to client i. Fees Must be Reasonable 1. Factors in Determining reasonableness a. Time and labor required, novelty and difficulty or questions involved, and the skill requisite to perform the legal service b. The likelihood that acceptance will preclude other employment by lawyer c. The fee customarily charged in the area for similar legal services d. The amount involved and the results obtained e. The time limitations imposed by the client or by the circumstances f. Nature and length of professional relationship with client g. The experience, reputation, and ability of the lawyer or lawyer performing the services AND h. Whether the fee is fixed or contingent ii. Contingent Fees 1. Requirements a. Must be in writing c.

Signed by the client AND State the method by which the fee is to be determined i. Percentage to lawyer ii. Litigation and other expenses to be deducted from recovery iii. Expenses deducted before or after contingent fee calculation AND iv. Expenses client will be responsible for regardless of outcome 2. Prohibited in: a. Criminal Cases b. Domestic Relations Cases iii. Fee Splitting With Other Attorneys A division of a fee between lawyers who are not in the same firm is permitted only if: 1. Division is Proportional to Services Provided 2. Client Agrees in Writing Including share that each lawyer will receive AND 3. Total Fee is Reasonable iv. Non-Compete Agreements Impermissible Agreements that restrict the ability of an attorney to practice after the termination of employment are not permitted

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Conflicts of Interests and the Duty of Loyalty (12% to 18%)


1. General Rules Lawyer owes a duty of loyalty to client, to exercise her time, professional judgment and efforts solely for benefit of that client, without any inference from outside loyalties or interest. This duty requires lawyer to work in the best interests of client, and not for the lawyers personal interest or the interest of any third party. a. Opposing Parties in Same Lawsuit/Transaction Lawyer cannot representing opposing parties here b. Resolving Conflicts of Interest If there is a significant risk that a conflict with the lawyer and client, a past client, or any third party will materially limit the lawyers ability to represent the client, he may not represent client UNLESS: i. He reasonably believes he can represent client with no adverse affect (reasonable lawyer standard) AND ii. Client gives informed written consent c. Continuing Duty The duty to disclose a conflict of interest to client is continuing (each time a new conflict comes into fruition) d. Consequences of Unresolved Conflicts of Interest If there is an unresolved conflict with the lawyer and client, a past client, or any third party that limits lawyers ability to represent client, he must not take the representation or withdraw from it i. Prior to Acceptance of Representation Refuse Representation of Client ii. After Acceptance of Representation Withdraw once lawyer becomes aware of conflicts and they cannot be resolved e. Imputed Disqualification If one lawyer in a firm cannot take representation because of conflict or confidentiality problem, no lawyer in the firm may take on the representation i. Exception If a lawyer is employed by a firm and has confidential info regarding a government matter obtained through previous representation of the government, the firm may represent another client against the government if: 1. Former government lawyer is completely screened from handling any portion of the representation against the government 2. The former government lawyer or judge shares in NO PART of the fees produced from representation AND 3. Written notice is given to the government agency to enable it to ascertain compliance with this rule Multiple Clients and Joint Representation a. Current Clients in Unrelated Lawsuits Duty of loyalty precludes lawyer from advocating against client even in a matter entirely unrelated to the clients other lawsuit b. Resolving Conflicts of Interests Among Multiple Clients if an interest of another client limits or is adverse to loyal representation, there is a conflict of interest and the lawyer may not represent either client UNLESS: i. Lawyer reasonably believes he can represent all parties effectively ii. Inform each affected client Note, if confidentiality prevents attorney from fully disclosing the info the client requires to fully understand the conflict of interest, informed consent is not possible iii. Client gives informed written consent c. Aggregate Settlements or Guilty Pleas Lawyer cannot accept an aggregate settlement or guilty plea unless each client consents in writing after being informed of all the agreements

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Neutral Third Party If the lawyer reasonably believes he can represent the interest of each party effectively, discloses his role to both, and does not engage in representation of one of the parties, he can act as a neutral third party between parties e. Evaluation for Use by Third Parties Lawyer may provide an evaluation for people other than her client as long as it is consistent to lawyers duties to the client Attorney and Client These conflicts do not result in imputed disqualification unless the reason for disqualification also applies to other lawyers in the same firm. a. Soliciting Gifts from the Client Lawyer cannot solicit gifts from client or prepare an instrument that will give lawyer (or person related to lawyer) a SUBSTANTIAL gift unless the lawyer and client are related b. No Financial Assistance Lawyer cannot give financial assistance to client in connection with contemplated or pending litigation except litigation expenses when representing an indigent client (pro bono work) and the advance of litigation expenses in contingent fee cases. c. Business Transactions With Clients Business transactions are permissible if following requirements are met: i. The terms of the transaction are fair and reasonable ii. The terms are disclosed in a manner the client can reasonably understand iii. The client is advised in writing to seek opinion of another lawyer and be given opportunity to do so AND iv. The client consents in writing d. Publication or Media Rights Lawyer must not acquire these rights to a portrayal or account based in substantial part on information relating to the representation of client PRIOR to end of the representation e. Acquiring Interest in Litigation Lawyer must not obtain proprietary interest in cause of action or subject matter of litigation in which the client is represented i. Exceptions 1. Lawyer may acquired lien to secure payment of his fees 2. Lawyer may enter into a contract for a reasonable contingency fee in civil case f. Attorney as Witness Lawyer cannot act as advocate in trial where he is likely to be called as a witness i. Exceptions 1. The testimony relates only to uncontested matter (evidence will not be offered against it) 2. The testimony relates to the nature and value of legal services rendered by him in the case OR 3. An attorney may be a witness if disqualification of lawyer would result in substantial hardship to client g. Consensual Sex With Client It is forbidden unless there was existing consensual sexual relationship before lawyer-client relationship began. Former Clients a. Opposing Former Client i. Substantially Related Matter Lawyer may not be materially adverse to a former client if current matter is substantially related to a former representation without informed written consent of former client ii. Confidential Information Lawyer may not oppose former client if he received confidential info in the prior representation of that client that is relevant and could be used in the present case to disadvantage of former client UNLESS former client gives informed written consent OR the confidential info has been revealed or is generally known. Third Party Compensation and Influence a. Lawyer Representing an Entity or Organization Lawyer owes duty of loyalty to entity or organization, not directors, shareholders, etc. i. Conflicts Between Entity and Constituents When dealing with organizations directors, officers, employees, etc. the attorney must reveal the identity of the client (i.e. the organization) if he knows or should know that the organizations interests may conflict with the directors, officers, or employee interests. ii. Simultaneous Representation of Entity and Individuals Lawyer representing organization may also represent directors, officers, etc. if he reasonably believes he can represent all parties effectively and there is consent by all parties. Consent from the organization must come from an appropriate official of the organization other than the person who is to be represented OR by the shareholders. iii. Protecting the Organizations Interests When a person associated with organization advocates a course of action that lawyer reasonably believes could cause organization substantial injury, he must act as reasonably necessary to protect the interests of the organization 1. Ask person associated with organization to reconsider 2. Must refer the matter to a higher authority within the organization

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If the highest authority fails to take timely action, attorney may report info to appropriate persons outside of organization Attorney Fee Paid by Third Party Lawyer may accept payment for her representation of client from a third party if (i.e. corporate employees or parental payment for representation of child): i. Client gives informed consent (need not be in writing) ii. No interference with attorneys independent professional judgment or representation AND iii. Attorney-client confidentiality is uncompromised

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Client Confidentiality (6% to 12%)


1. Duty of Confidentiality Duty of confidentiality requires lawyer to keep confidential all information provided to the lawyer for the purpose of rendering legal services unless disclosure is permitted by an exception. a. Scope of Duty The duty applies to all communications related to the representation made by a client to his attorney even if client did not request it be kept confidential and even if it would not harm or embarrass. It applies to former clients, current clients, and prospective clients. b. Timing of Duty i. Before AC Relationship Applies to all communications made by prospective clients even if AC relationship is never formed ii. After AC Relationship The duty applies forever, even after client death c. Exceptions to Rule Lawyer MAY reveal information if: i. Client gives informed consent 1. Implied Consent Lawyer has implied consent to reveal whatever is necessary to carry out the representation unless client gives specific instructions to the contrary ii. It will prevent reasonably certain death or substantial harm iii. It will prevent client from committing crime or fraud that will cause significant financial injury AND in furtherance of which the client has used or is using the lawyers services iv. It will prevent, mitigate, or rectify substantial financial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the clients commission of a crime or fraud in furtherance of which the client has used the lawyers services (distinguish from above, client has already acted here) v. To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and 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 respect to allegations in any proceedings concerning the lawyers representation of the client vi. To secure legal advice about the lawyers compliance with the RPC OR vii. To comply with other law, final court order, or other controlling ethical duty (i.e. to prevent client perjury) d. Fruits and/or Instrumentalities of a Crime Lawyer may not keep (but does not have to disclose where it came from), hide or alter the fruits or instrumentalities of a crime e. Duty to Prevent Client Perjury Attorney must not knowingly assist client perjury i. Client Will or Has Committed Perjury If attorney knows that client has committed perjury he must comply with three step process. If attorney has reason to believe that the client will commit perjury, the attorney must advice client of three step process 1. Urge client to tell truth or to rectify perjury if perjury already committed 2. If client refuses, attorney must seek withdrawal 3. If withdrawal is denied, attorney must disclose perjury to court even if reveals confidential information Attorney Client Privilege The AC privilege applies to confidences between a client and lawyer or lawyers agents in the course of representation. The AC privilege is evidentiary. Under this privilege, one may not be compelled to testify about a matter falling under the privilege and prevents a court from using subpoena power and contempt to compel revelation of confidential info. Any communication between attorney and client or their representatives intended by client to be confidential and made in an effort to obtain professional legal services is privileged in all criminal and civil proceedings unless the privilege is waived by client or an exception applies a. Definitions i. Intended to be Confidential Objective reasonable person standard of intent. Would reasonable person in client position intend the communication to be confidential? ii. To Obtain Professional Legal Services For privilege to apply, communication must have been made by client in effort to obtain professional legal services

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Informal Conversations in Social Settings Privilege does not apply (not effort to obtain services) iii. Client Any person or entity seeking professional legal services or advice iv. Attorney Any person authorized, or client reasonably believes is authorized, to practice law in any state or nation v. Representatives 1. Of Client Anybody with authority to obtain legal services or to act on advice rendered by attorney on behalf of client 2. Of Attorney Anybody hired by attorney in an effort to help render legal services vi. Corporate Clients AC privilege applies to communications between the lawyer and high ranking corporate executives and corporate employees if: 1. Employee was directed to communicate with the attorney 2. The employee knows that the purpose of the communication is to obtain legal advice for the corporation AND 3. The communication concerns a matter within the scope of the employees duties at the corporation a. Mere Witness No AC privilege covering employee statements where employee is a mere witness. b. Holder of Privilege The client holds the privilege and it survives even if AC relationship is terminated or client dies (estate holds the privilege if client is dead) c. Exceptions i. Crime or Fraud The communication made to further what the client knew or should have known to be a crime or fraud ii. Breach of Duty Between Attorney-Client The communication relates to alleged breach of duty between the lawyer and client (i.e. malpractice suit) iii. Former Joint Clients in Matter of Common Interest The communication is offered by one client against the other(s) in a civil suit iv. Competency or Intent of a Client The communication is about the competency or intent of a client who has attempted to dispose of his property by will or inter vivos conveyance Work Product Doctrine This protects all materials prepared by an attorney or her agents in anticipation of or for litigation unless the opposing party demonstrates a substantial need for and an inability to obtain the information by other means. NOTE, attorney opinions and mental impressions are always protected from disclosure under the work product doctrine

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Duty of Competence (6% to 12%)


1. Elements a. Legal Knowledge and Skill However, lawyer need not be an expert in all matters to undertake representation. A lawyer without prior experience in a field of practice may still take a case as long as : i. He does the work to become educated without any undue expense or delay to client OR ii. He associates with counsel competent in the area, who can help assist the lawyer. b. Preparation and Thoroughness Lawyer must inquire into and analyze the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent lawyers. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake. Major litigation and complex transactions require more. Duty of Diligence Lawyer must act with reasonable diligence and promptness in representing a client. He must pursue matter on behalf of client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a clients cause or endeavor. He must also act with commitment and dedication and zeal in advocacy. Maintaining Competence Lawyer must satisfy continuing legal education requirements and take reasonable steps to become aware of new developments in the attorneys field of practice Malpractice Liability Lawyer may not settle a pending or potential malpractice claim with client without advising client in writing to seek independent legal counsel and giving client time to do so. a. Lawyer may not attempt to limit malpractice liability i. Exception Client and attorney may agree to limit only if client is represented by another attorney when the client enters into the agreement to limit liability

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Litigation and Other Forms of Advocacy (10% to 16%)

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Duty to Prevent Frivolous Claims or Defenses Lawyer must not bring or defend a proceeding, or assert an issue therein, unless there is a basis in law and fact for doing so that it is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. a. Frivolous Action is frivolous if lawyer is unable either to make a good faith argument on the merits of the action taken under existing law OR to support the action taken by a good faith argument for an extension, modification, or reversal of existing law. b. Not Frivolous i. Facts Not Fully Substantiated Filing of action or defense is not frivolous merely because facts have not first been fully substantiated ii. Vital Evidence Uncovered Only Through Discovery Not frivolous merely because lawyer expects to develop vital evidence only by discovery. iii. Lawyer Believes Position Will Not Prevail Filing is not frivolous merely because lawyer believes clients position will be unsuccessful iv. Criminal Cases Lawyer for D may defend the proceeding as to require that every element of the case be established Duty to Expedite Cases Lawyer must make reasonable efforts to move cases along. Occasional postponement for personal reasons is ok. Duty of Candor to the Tribunal Lawyer shall not knowingly: a. Make a false statement of material fact or law to court or fail to correct a false statement previously made i. Scope Applies to end of proceeding and applies even if compliance requires disclosure of information otherwise protected by the duty of confidentiality b. Fail to disclose to court legal authority in controlling jurisdiction known to lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel c. Offer evidence that lawyer knows is false. If lawyer, client, or a witness called by lawyer has offered material evidence and lawyer finds out, he must take reasonable remedial measures, including, if necessary, disclosure to court. A lawyer may refuse to offer evidence, other than the testimony of a D in a criminal matter that the lawyer reasonably believes is false. i. Scope Applies to end of proceeding and applies even if compliance requires disclosure of information otherwise protected by the duty of confidentiality d. Lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to court i. Scope Applies to end of proceeding and applies even if compliance requires disclosure of information otherwise protected by the duty of confidentiality e. In ex parte proceeding, lawyer must inform court of all material facts known to lawyer that will enable court to make an informed decision, whether or not the facts are adverse. Fairness to Opposing Party and Counsel Lawyer must not: a. Unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a document that may have value. Lawyer must also not counsel someone to commit this act. b. Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. c. Knowingly violate a court rule or order d. Commit discovery abuse In pretrial procedure: i. Make a frivolous discovery request ii. Fail to make reasonably diligent effort to comply with a legally proper discovery request by opposing party e. Not return a document relating to representation of lawyers client that lawyer knows or reasonably should know that the document was sent to him by accident f. Chicanery at Trial At Trial, Lawyer must not: i. Refer to irrelevant or inadmissible material ii. Assert personal knowledge of contested facts except when testifying as witness OR iii. State personal opinion on justness of cause, credibility of witness, culpability of civil litigant, or guilt or innocence or accused g. Request noncooperation of witness that he not give relevant information to another party UNLESS: i. The person is a relative or an employee or other agent of a client AND ii. The lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information Impartiality and Decorum of Tribunal a. Conduct prejudicial to the administration of justice OR

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b. Stating or implying an ability to improperly influence government agency or official Lawyer as Witness Lawyer must not act as an advocate in a trial where the lawyer is likely to be called a witness a. Exceptions i. Testimony only relates to uncontested matter or there is no reason to believe substantial evidence will be offered to counter ii. Testimony relates to nature and value of legal services provided by him in the case iii. Disqualification would result in substantial hardship to client

Communications With Persons Other Than Clients (2% to 8%)


1. 2. Truthfulness in Statements to Others Lawyer is prohibited from making false statements of material fact or law to third parties (at any time) Communications with Adversaries a. Represented Persons In representing client, lawyer shall not communicate about the subject of the representation with a person lawyer knows to be represented by another lawyer in the matter, unless lawyer has consent of other lawyer or authorization of court b. Unrepresented Persons i. In dealing on behalf of a client with a person who is not represented by counsel, lawyer shall not state or imply that the lawyer is disinterested ii. When lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, lawyer should make reasonable efforts to correct misunderstanding iii. Lawyer must not give legal advice to an unrepresented person, other than the advice to secure legal counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonably possibility of being in conflict with the interests of client. Communications with Witnesses Lawyer is allowed to communicate with all witnesses (even witness for opposing party) a. Prohibited from encouraging witnesses to leave the jurisdiction or avoid testifying b. Prohibited from harassing witnesses or prospective witnesses c. Payment to Witnesses i. Non-Expert Witness Cannot pay except for reimbursement of travel/food expenses ii. Expert May pay expert a reasonable fee and expenses iii. Contingent Fee Prohibited No witness, non-expert or expert, may be paid on a contingent basis Communication with Jurors a. Pre-Trial Cannot communicate with members of the panel from which the jury will be selected b. During Trial Cannot communicate except during court proceedings c. Post-Trial May communicate with juror or prospective juror after discharge of jury unless: i. Prohibited by law or court order ii. Juror makes it known he does not want to talk to lawyer OR iii. The communication involves misrepresentation, coercion, duress, or harassment Communications with Court a. Ex Parte Communications Ex parte communications are prohibited unless: i. There is an emergency (however notice must be given to other party asap) ii. It is a letter to the judge and the opposing party receives a copy b. No Gifts to Court Personnel i. Exception Ordinary hospitality Communications with the Press Lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

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Different Roles of the Lawyer (4% to 10%)


1. Lawyer as Advisor a. Duty to Render Candid Advice Lawyer must exercise independent professional judgment and render candid advice b. Advice Beyond the Law In giving advice, lawyer may refer to other considerations such as moral, economic, social and political factors that may be relevant to clients situation c. Criminal Conduct Lawyer must not advise/ client in engaging in criminal or fraudulent conduct i. Legal Consequences of Any Proposed Course of Conduct Lawyer, however, may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist client to

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make a good faith effort to determine the validity, scope, meaning or application of the law (i.e. no one has ever been prosecuted for this). d. Volunteering Advice Lawyer is not expected to give advice until asked by client. However, when lawyer knows that client proposes action that is likely to result in substantial adverse legal consequences to the client, lawyers duty to communicate may require that lawyer offer advice if client course of conduct is related to representation Lawyer as Evaluator Lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if lawyer reasonably believes that making the evaluation is compatible with other aspects of lawyers relationship with client a. Evaluation Materially Adverse to Clients Interest When lawyer knows or should know that evaluation is likely to affect clients interests materially and adversely, lawyer must not provide the evaluation unless client gives informed consent Lawyer as Negotiator a. Truthfulness in Statements to Others When representing client, lawyer must not make false statement of material fact or law to others i. No Duty to Disclose Lawyer is required to be truth with third parties on clients behalf, but has no duty to inform that party of relevant facts 1. Exception Lawyer must not knowingly 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 confidentiality b. Subjective Statements This rule only applies to statements of fact, not subjective statements. Estimates of price or value, etc. are not statements of material fact. Lawyer as Arbitrator, Mediator, or Other Third Party Neutral If lawyer reasonably believes he can represent the interest of each party effectively, he discloses his role to both, and does not engage in representation of one of the parties, he may act as an arbitrator, mediator or neutral third party between parties Special Responsibilities of Prosecutor a. Must not prosecute without probable cause b. Must make reasonable efforts to assure that accused has been advised of the right to, and procedure for obtaining, counsel and has been given reasonable opportunity to retain counsel c. Must not seek waiver of pretrial rights from unrepresented accused (right to preliminary hearing, etc.) d. Must make timely disclosure of potentially exculpatory evidence to the defense (any evidence that tends to negate Ds guilt or his sentencing) e. Must not subpoena a lawyer to present evidence about a past or present claim unless he reasonably believes that info sought is not protected from disclosure by a privilege AND The evidence sought is essential to the investigation AND There is no other alternative to obtain info f. Must refrain from making public statements with substantial likelihood of heightening public condemnation of the accused. Must also reasonably prevent investigators, police, employees, etc. from making extrajudicial statements that prosecutor would be prohibited from making i. Exception May only make statements that are necessary to inform public of the nature and extent of the prosecutors action and that serve a legitimate law enforcement purpose.

Safekeeping Funds and Other Property (2% to 8%)


1. Duty to Protect Clients Property Lawyer has duty to safeguard client property (must be identified and stored in safe or deposit box) a. Client Trust Account Must deposit client money in separate, individual interest bearing trust account. The interest generated belongs to client. i. Unearned Expenses or Fees These should be deposited in an individual account and withdrawn only as fees and expenses are earned b. Pooled Client Trust Account Pooled trust accounts are allowed for smaller funds held for short period for several clients at once. These funds must be held in a checking account and the interest generated is used to pay off bank service fees first with remainder going to state for legal service for poor. c. No Borrowing or Commingling Cannot borrow or commingle client funds i. Exception to Commingling May deposit 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 Duty to Keep Records Must maintain complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of 5 years after termination of representation Duty to Promptly Notify and Deliver Upon receiving funds or other property in which client or third party has an interest, lawyer must promptly notify and deliver (unless prior arrangement) and must give an accounting if person requests

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Disputed Claims 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 must be kept separate by the lawyer until dispute is resolved. The lawyer shall promptly distribute all portions of the property that are not in dispute

Communications About Legal Services (4% to 10%)


1. Advertising and Other Public Communications About Legal Services a. False or Misleading Statements Lawyer cannot make false or misleading statements about him or his services i. False or Misleading Definition Statement contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading b. Communication of Fields of Practice Lawyer can communicate the fact that he does or does not practice in particular areas of law c. Communication of Specialization Lawyer cannot state or imply he is a specialist in a certain field UNLESS: i. Lawyer has been certified as a specialist by an organization that has been approved by state or accredited by ABA AND ii. The name of the certifying org is clearly identified in the communication Solicitation (Direct Contact With Specific Clients) a. In Person Solicitation Lawyer must not by in-person, live telephone or real time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyers doing so is pecuniary gain UNLESS: i. Person contacted is a lawyer ii. Person contacted is family OR has close personal or prior professional relationship with lawyer 1. NOTE Lawyer cannot solicit these people if a. The prospective client makes it known to lawyer that he does not want to be solicited OR b. Solicitation involves coercion, duress, or harassment b. Advertising Material Requirement Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words Advertising Material on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication unless the recipient of communication is person specified in above exception Law Firm Names Firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firms identity or by a trade name, such as the ABC Legal Clinic a. Deceased Lawyers Firm may keep deceased names as long as it is not misleading i. NOTE This should be noted on the firm letterhead, etc. b. Public Service Name of lawyer holding a public office must not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which lawyer is not actively or regularly practicing with the firm c. Trade Names Use of such names in a law practice is acceptable so long as not misleading (i.e. implying a false connection to government or legal services) d. Partnership Lawyers can state they are partnership or other org on when that is true

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Lawyers Duties to the Public and Legal System (2% to 4%)


1. 2. Voluntary Pro Bono Every lawyer has professional responsibility to provide legal services to those unable to pay (goal is 50 hours a year) Serving in Legal Services Organization Lawyer may serve as director, officer or member of a legal services organization, apart from the law firm in which he practices, notwithstanding that the org serves persons having interests adverse to a client of the lawyer a. Lawyer Must Not Knowingly Participate in Decision or Action Lawyer, however, must not knowingly participate in a decision or action of the organization IF: i. Participating in the decision or action would be incompatible with the lawyers obligations to a client under the duty of loyalty OR ii. The decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer Political Contributions to Obtain Engagements or Appointments Lawyer or firm must not accept a government legal engagement or an appointment by judge if lawyer or firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal position or appointment

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Prohibited Contributions Prohibited contributions are for the purpose of obtaining or being considered for a government legal engagement or appointment by a judge if, but for the desire to be considered for the legal engagement or appointment, the lawyer or firm would not have solicited or made the contributions Assisting Judicial Misconduct Knowingly assisting a judge or judicial officer in conduct that is a violation of the ABA Model Code of Judicial Conduct

a.

Judicial Conduct (2% to 8%)


1. Maintain the Independence and Impartiality of the Judiciary Judge must uphold and promote independence, integrity, and impartiality and must avoid impropriety and appearance of impropriety a. Compliance with the Law Must comply with law, code of judicial conduct, court rules and these rules b. Promoting Confidence in Judiciary Must promote public confidence in independence, integrity, and impartiality and must avoid impropriety and the appearance of impropriety i. Appearance of Impropriety Test is whether conduct would create in reasonable minds a perception that judge violated this code or engaged in other conduct that reflects poorly on honesty, impartiality, temperament, or fitness to serve as judge c. Avoid Abuse of the Prestige of Judicial Office Must not abuse the privilege of judicial office to advance personal or economic interests of the judge or others, or allow others to do so. Performing the Duties of Judicial Office Impartially, Competently, and Diligently Must perform all these duties a. Must give precedence to the duties of judicial office over judges personal and extrajudicial activities b. Must be impartial and fair c. Must not have bias or prejudice in performance of duties d. Must not harass by verbal or physical conduct that denigrates or shows hostility toward a person on bases such as race, sex, gender, religion, etc. (must also make sure lawyers do not do this in court) e. Must not be swayed by public clamor or fear of criticism, not be swayed by family, social, political, financial or other interests f. Must require order and decorum in proceedings before the court and must be patient and dignified with litigants, jurors, staff, witnesses, lawyers, etc. and must require the same of lawyers, staff, and others under judges control g. Must not commend or criticize jury on verdict other than in a court order or opinion or in a proceeding i. Exception Judgment notwithstanding the verdict h. Must not make any public statement that might be expected to affect the outcome or impair the fairness of a matter pending in court i. Must make sure that every person who has a legal interest in a proceeding, or that persons lawyer, has a right to be heard according to law i. Settlements May encourage parties to settle but shall not coerce parties into settlement j. In making admin appointments must be impartial and appoint on merit; must avoid nepotism, favoritism, and unnecessary appointments; must not appoint a lawyer to a position if the judge either knows that the lawyer, or his spouse or partner, has contributed more than ___ within the prior ___ years to the judges election campaign unless position is uncompensated, lawyer has been selected off list of qualified and available lawyers compiled without regard to their having made political contributions, OR no other lawyers wants the position k. Must not approve compensation of appointees beyond the fair value of services rendered Ex Parte Communications Must not initiate, permit, or consider ex parte communications unless it is an emergency Disqualification Judge must disqualify himself in any proceeding in which the judges impartiality might reasonably be questioned, including but not limited to the following circumstances: a. Judge has a personal bias or prejudice concerning a party or a partys lawyer, or personal knowledge of facts that are in dispute in the proceeding b. Previously served as a lawyer (or was associated with lawyer) or judge (i.e. trial court judge promoted to appellate court judge) in the matter of controversy c. The judge knows that he, individually or as a fiduciary, or the judges spouse, partner, parent, or child, or any other member of judges family residing in the judges household, has an economic interest in the subject matter in controversy or in a party to the proceeding d. Judge knows or learns that a party, a partys lawyer, or the law firm of a partys lawyer has within the previous ___years made aggregate contributions to the judges campaign in an amount that is greater than ___for an individual or ___ for an entity (look at state law) e. Judge knows that the judge, the judges spouse or partner, or a person within the third degree of relationship (everyone but judges cousins) to either of them, or the spouse or partner of such a person is: i. A party to the proceeding, or an officer, director, partner, member, or trustee of a party ii. Acting as a lawyer in the proceeding

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iii. A person who has more than a de minimis interest that could be substantially affected by the proceeding OR iv. Likely to be a material witness in the proceeding 1. Exceptions to Rule Even if disqualified, judge may still preside by necessity or by remittal a. Necessity Every judge is disqualified from the matter in a jurisdiction b. Remittal Parties voluntarily agree to judges participation i. Disclose basis for disqualification on record ii. All parties voluntarily consent to participation AND iii. Agreement is on the record Extrajudicial Activities Judge must conduct his personal and extrajudicial activities to minimize the risk of conflict to the obligations of judicial office a. Extrajudicial Activities in General Judge may engage in activities except as prohibited by law or this code. However, when engaging in these activities, judge must not: i. Participate in activities that will interfere with his duties ii. Participate in activities that will lead to frequent disqualification of the judge iii. Participate in activities that would appear to a reasonable person to undermine judges independence, integrity, or impartiality iv. Engage in conduct that would appear to reasonable person to be coercive OR v. Make use of court premises, staff, stationary, equipment, etc., except for incidental use for activities that concern the law, the legal system, the admin of justice, or unless such additional use is permitted by law b. Testifying as a Character Witness May not testify except when subpoenaed c. Use of Nonpublic Information Must not disclose or use for any purpose unrelated to judicial duties d. Participation in Educational, Religious, Charitable, Fraternal, or Civil Organizations and Activities Judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the admin of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for political gain or profit so long as it does not reflect adversely on judges impartiality. i. Organization must not be for the political or financial gain of its members ii. Judge shall not fundraise, solicit members or allow the prestige of judicial office to be used iii. Judge shall not participate in org if it is likely that the org will be involved in litigation that will come before his court e. Affiliation with Discriminatory Organizations Cannot be a member in org that discriminates on race, sex, gender, religion, national origin, ethnicity, or sexual orientation. Judge must not use the benefits or facilities of one of these organizations but his attendance at an event or facility of one of these organizations is not a violation of this rule when the judges attendance is an isolated event that could not reasonably be perceived as an endorsement of the orgs practices f. Appointments to Fiduciary Positions Judge must not accept appointment to serve in a fiduciary position, such as executor, admin, trustee, guardian, etc. except for the estate, trust, or person of a member of the judges family, and only if such service will not interfere with his duties (matter not likely to come before him) g. Practice of Law Judge cannot practice law. He may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judges family, but is prohibited from serving as the family members lawyer in any forum. i. Arbitrator/Mediator May not serve except in cases before him ii. Appointments to Government Commissions May not accept unless commission is dedicated to improving legal system 1. Ceremonial, Historical, or Educational Activity Judge may represent the government in ceremonial, historical, or educational activity h. Financial, Business, or Remunerative Activities i. Rule - Judge may hold and manage investments of the judge and member of his family. May not serve as officer, director, manager, etc. of any business entity except if it is a closely held business of his family 1. Exception to Rule A judge must not engage in financial activities permitted above if they will interfere with his judge duties, will lead to his frequent disqualification, will involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before his court OR violates the judicial code i. Compensation for Extrajudicial Activities May accept reasonable compensation unless acceptance would appear to a reasonable person to undermine the judges independence, integrity, or impartiality j. Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value Cannot accept if it would appear to a reasonable person to undermined his independence, integrity, or impartiality

6.

i. Exceptions 1. Gifts incident to public testimony 2. Bar related functions 3. Law book publishers 4. Ordinary social hospitality 5. Loan from a lender as long as lender is engaged in the business of lending and judge receives rate of everyone else k. Compliance With Law Judge must comply with law in all of his extrajudicial activities Political Activities Judge or candidate for judicial office must not participate in political or campaign activity that is inconsistent with independence, integrity, or impartiality of the judiciary. a. Prohibited Activities i. Hold office in political orgs ii. Make speeches on behalf of political orgs iii. Publicly endorse or oppose candidate for any public office iv. Attend or purchase tickets to political gatherings (sponsored by political orgs or candidate) v. Solicit funds for political orgs or candidates vi. Use court staff, facilities or other court resources in campaign for judicial office vii. Seek, accept, or use endorsements from a political org viii. Appoint individual who made substantial contribution to judges election campaign b. Activities of Judges who Become Candidates for Nonjudicial Office Upon becoming candidate for a NONJUDICIAL appointive office, judge must resign from his bench. Upon becoming a candidate for a nonjudicial APPOINTIVE office, he is not required to resign, as long as he complies with provisions of this code c. Campaign for Election or Retention of Judicial Office While campaigning for election or retention of judicial office a judge cannot: i. Personally solicit or receive funds Campaign committees are ok ii. Make pledges or promises of conduct in office iii. Knowingly misrepresent own qualifications or facts concerning his opponent must make sure campaign people are not doing this either