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ETHICS OUTLINE CH. 1 & 2 LEGAL ETHICS I. Professional Responsibility: Duty to that profession a.

Notions of morality and ethics: i. Golden rule: do unto others as you would have them do unto you. Uniquely interpersonal. ii. Utilitarian: looking at the net happiness: what situation provides you with the greatest happiness or Rule Utilitarianism: which is the greatest happiness for society. Moral right defined by what would bring greatest happiness. As far away from pain as possible both in quantity and quality. Classic Util. looked at fact that actions should be judged right or wrong solely in virtue of consequences: the right actions are those with the right consequences. Question of whether happiness is all that matters. Hedonism-idea that ultimate good-happiness. 1. Defense: only would work if the actions really would have the best consequences. 2. Rule utilitarianism: should be looking more at society as a whole-not just individuals. iii. Kantian: try to draw some principle from each-a maxim. Look to whether this should be a universal rule. Difference between prudent and right-morality based on universal maxims. Idea of human obligations wider in scope than human rights. Action rather than results. Cant use others as a mere means if they dont consent. iv. Justice: b. Ethics: two definitions: study of general nature of morals and of specific moral choices to be made by the individual in his relationship with others. Or rules and standards of conduct of the members of a profession(standard for this class). Rules open-ended, highly ambiguous. II. Discussion problems from the chapter a. Document sent to you by mistake says confidential on subject line and has boiler plate info. that says this is confidential info. i. Rule 4.4(b) (Section 4 of the rules deals with Transactions with persons other than clients) 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. b. A lawyer who receives a document relating to the representation of lawyers client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. (Comments: should promptly notify so can take protective measures. Some lawyers choose to send document back unread-where not required to do sodecision of professional judgment under 1.2 and 1.4) b. Served as legal counsel for family for variety of matters.S and D each inherited 750K. S has child C. Represent S in business, investment and estate. Know that S has drug problem and unfit to take care of C, estate and himself. D asks for a petition to court for conservator. You know he will oppose. i. Conflict: between S and D. Under the theories used in ch. 1: Utilitarian: good outcome for D and C if conservator, will help you as the attorney for more resources. Would not: if acting on S behalf is this a breach of loyalty? Drug problem-what does that mean? ii. Rule 1.14 Client with Diminished Capacity (Ch. 1 Client-Lawyer Relationship) a. When the clients capacity to make adequately considered decisions in connection with a representation is diminished whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (Comments, even though may have diminished capacity need to realize that both young kids, and old or handicapped can

frequently mull over decisions should have status of client-particularly in regards to maintaining adequate communication. Can allow other family in the room, but except in regards to section b need to keep the clients interest foremost.) b. When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the clients own interest, the lawyer may (watch really closely for these-so he could, but certainly doesnt have to) take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (when you are going to intrude-such factors are impt. as: wishes and values of the client to extent known-the best interest of and goals of least extent possible of intruding into their decision-making. In looking at-should see variability of state of mind, fairness of decision, ability to appreciate consequences.) c. Information protected by 1.6. When taking such action impliedly authorized under 1.6(a) to reveal info about the client, but only to extent reasonably necessary to protect clients interests. c. Workers comp checks are too high, but the client is barely making the ends meet. According to legal agreement, the lawyer L who represented deducts 10 percent each check as fee. Client doesnt want lawyer to do anything. i. First, want to make sure that really a mistake, re-run the numbers. Research, always, to see what the consequences are. ii. Important that a lawyer act with honesty. Here, client may have legal obligation to pay back. May be criminal to not disclosed. Is it a future crime? iii. Rule 1.16 Declining or Terminating Representation: Except as stated in (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 rules of professional conduct or other law; (so this is going to come up a lot, anytime violation of rules, shall withdraw) 2. the lawyers physical or mental condition materially impairs the lawyers ability to represent the client; or 3. the lawyer is discharged (b) except as stated in (c) a lawyer may withdraw if 1. withdrawal can be accomplished without material adverse effect on the interests of the client; 2. the client persists in a course *Could also look to Rule 1.2 Scope of Representation and Allocation of Authority Between Lawyer and Client 1.2(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 the lawyer may discuss the legal consequences of proposed course of conduct and may counsel or assist client to make good faith effort to determine validity, scope of law III. CHAPTER 2 SOURCES AND APPLICATION OF LEGAL ETHICS RULES Rule 5.5, 8.1-8.5 a. Characteristics important in attorneys? i. Loyalty: continually serving and acting on behalf of your client. ii. Truthful: faith in you and faith in the system. b. Sources for ethics: i. ABA, Rules of Court, Rules of State, local Rules, Model Code. c. Discipline: i. Penalties imposed by disciplining agency-disbarment, suspension or reprimand

1. Can be private reprimand: unpublished, private communication between agency and attorney. 2. Public reprimand 3. Suspension: may include taking and passing the bar again. 4. Disbarment ii. Normally going to hear about the matters from judge, adversary, client, other attorney (remember you are violating rules in certain circumstances when not telling) iii. Process: investigator looks into the conduct then reports to disciplinary board. Board reviews and recommendation and then either dismiss or further investigate. Then Board may file a formal complaint, disbarment, or sanctions. (Each state has different procedural rules but most operate like this) d. Conduct subject to discipline i. Can be disciplined for a crime that reflects adversely on the honesty, trustworthiness, or fitness to be an attorney, even if not while acting as an attorney. Rule 8.4 ii. As a lawyer, you are going to be subject to criminal laws and then civil, also can be reprimanded through the state ethics board. e. Bar Association rules: goal of a bar association is to improve the law, legal education and the administration of justice. i. ABA voluntary organization that has essentially taken duty of providing system of rules to advise and provide guidelines to states. ii. Law: self-regulating body that is why reporting requirements under ch. 8 iii. Each state going to have its own bar association and own set of rules. iv. Practice in a state 1. J.D., character and fitness requirements, for admission to the bar you must possess good moral character, MPRE, fee. Some states are going to require that you belong to their state bar association: called integrated or mandatory bar. 2. Good character requirement: a. In re DeBartolo where they would not admit him to the bar because he lied about some of his high school information, had 200-400 tickets and impersonated an officer. Said that he was allowed possibility to show rehabilitation, but said that needed to have respect for the law-also had lied about the high school thing and honesty huge. i. Need to have honesty, respect for the rights of others and law. Rule 8.1 Maintaining the Integrity of the Profession Ch. 8 Bar Admission and Disciplinary Matters (Review example that cant write a letter about someone to recommend to bar when you dont know them) 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, except that this rule does not require disclosure of information otherwise protected by 1.6 (confidentiality of information) (Comment going to be misconduct to make misrepresentation or omission in connection with disciplinary matter of lawyers conduct- was misrepresentation to recommend someone when didnt really know them) Rule 8.2 Judicial and Legal Officials (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatior officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct. (Comments: lawyers relied on in evaluating professional or personal fitness of persons being considered for election or appointment such as Attorney General or prosecutor) Rule 8.3 Reporting Professional Misconduct (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate authority (see the fact with this that it needs to be a substantial question so not everything is going to pass also, not a permissive rule. This is mandatory if it passes the threshold) (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 judges fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of info that is protected by 1.6 or gained while participating in approved lawyer assistant program. (Comments Self regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation fo the Rulesnot required to tell when involve 1.6 info, but lawyer should encourage the client to consent to this. The term substantial refers to the seriousness of the offense and not the quantum of evidence. Rule 8.4 Misconduct It is profession misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowing-assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects (this one is huge because it highlights the three really key areas and it says criminal act in general not just while lawyer) (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation (this kind of catches all of the things that are not a criminal act-again, dishonesty, fraud, deceit, misrepresentation-all things you are not going to want in a lawyer) (d) engage in conduct that is prejudicial to the administration of justice. ( where the lawyer manifests by words or conduct bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status violates this-legit advocacy representing these though not violation) (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules or (f) knowingly assist a judge or judicial officer in conduct that is a violation of the applicable rules of judicial conduct or other law. Comments used to include things like adultery, but the rules make clear that should only indicate those characteristics that are relevant to practice of law. A series of offenses, even minor ones when considered separately can indicate indifference to legal obligation. f. Practicing in other locales i. Representing in other states ii. Supreme Court: need to have separate admission and have practiced for at least three years. Federal Court need special admission-typically granted upon motion of atty. that is already a member of that bar and can affirm the good character. Appellate court-need to be a member of one of the bars. Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (so like if need to be part of that state bar association and wasnt then violation of this) (b) A lawyer who is not admitted to practice in this jurisdiction shall not (1) except as authorized by the rules or other law establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. (c) A lawyer admitted in another U.S. jurisdiction, and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jursidction and who actively participates in the matter (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized (this is the pro hac vice requirement if reasonably expects to meaning that can enage in conduct when anticipating litigation) (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer practice in a jrusidction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission or (4) are not in 2 or 3 of c and arise out of or are reasonably related to the lawyers practice in a jurisdiction in which the lawyer is admitted to practice. (d) a lawyer admitted in another U.S. jurisdiction, not suspended or disbarred, may provide legal services in this jurisdiction that: (1) are provided to the lawyers employer or org. affiliates and not services where require pro hac vice (2) services authorized to practice by federal law. Comments goal is protect the public from unqualified persons. Lawyer can provide advice to professional or pro se. Will violate if you have an office where you cant practice even if not physically there. Temporary-can still mean that you are there for an long period of time, like long negotiation. Those not normally allowed to practice can get ok from an admin agency or court. Reasonably related to practice mean that client previously represented or that client has significant connection or like a multistate corporation. IV. CH. 3 BEGINNING AND ENDING THE LAWYER CLIENT RELATIONSHIP (1.16, 1.18, 3.1, 6.1, 6.2) a. Duty to take cases: i. Lawyers are not a public utility meaning that they do not have to take any case that walks in the door-they do have the ability to refuse (this is not necessarily true with a court appointment) However in the attorney oath you promise never to reject for any consideration personal to himself or herself, the cause of the defenseless or the oppressed ii. Who pays when the client cant? Rule 6.1 Rule 6.1 Voluntary Pro Bono Publico Service Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. In fulfilling this responsibility the lawyer should: (a)provide a substantial majority of hours without fee or expectation of fee to: (1) persons of limited means (2) charitable, religious, civic, government, community orgs that are designed to address prersons of limited means (b) provide any additional services through: (1)no fee or reduced to groups seeking to protect civil rights, civil liberties, public rights charitable, religious, gov. etc, orgs. in matters of the organizational purpose where standard payment would deplete the orgs. resources or would be inappropriate. (2) delivery of legal services of reduced fee to people of limited menas (3) participate in orgs. for improving the law. (looking at this on average per year of your legal career recognizing that some years going to be higher than others. Can perform in crim or civ or quasi-crim. Should be mainly to limited means and can be legal advice, lobbying, admin rules, mentoing. Not going to be probono if you dont get your fee. Trying first for lawyers to get pro bono in a. if not then b. Each

lawyers individual responsibility and if you cant which sometimes happens then you should be giving money to legal aid and that is going to be roughly equivalent. Law firms should be encouraging) * With this, you want goodwill and idea that lawyers have responsibility to the community. Aspirational rule and expected to provide the majority of those hours to paragraph a: persons of limited means or organizations that have purpose of serving.

iii. Does the Court have the authority to appoint and obligate a lawyer to represent someone? As seen above should be doing pro bono, but what if youre not? 1. Bothwell v. Republic Tobacco Co. civil case here against tobacco co. Argument that the court has no authority to force lawyer to take on civil case. Court sai that they could for two reasons: (couldnt do it under statutory so said two reasons under inherent authority) a. Inherent Authority: i. Fair and Just adjudicative processes: adversary system. Responsible for keeping that system fair and just. Necessary because of our system. Goal is to ferret out the truth and cant do this with lawyer only on one side. ii. Maintain integrity of system: looks at historical analysis says historically did. Monopoly of lawyers and not everyone can pursue a legal career. Says that no other branch of government holds the exclusive rights to government. Ethical obligation. b. Ultimately doesnt take case because wasnt reasonably necessary for admin of justice. c. Establishes that the Court has inherent power to bring assistance to those in need. When indigency primary reason for disparate access to our system, that the federal court does have the inherent authority to conscript a lawyer. But needs to be of necessity. Not every civil case: look at factual complexity of the case, ability of plaintiff to investigate the facts, existence of conflicting testimony, P ability to bring claims, complexity of legal issues. So looking at marketability-not going to force to take if no one would want it. Rule 6.2 Accepting Appointments (This is the rule that would have applied above-normally though, seems like going to see this in criminal, not civil cases) A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a)representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyers ability to represent the client. (Comment answer to question that a lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant-however, all lawyers have job and responsibility to assist in pro bono. Fulfills by representing fair share of unpopular clients. for good cause a lawyer may seek to decline an appt. to represent a person who cant afford services and unpopular. Good cause exists if cant handle the matter competently. Same exact obligations like confidentiality and same limitations.) d. Problem 1 where practices in business and Nazi party wanted her to take case, but grandparents victims of holocaust-ethical obligation to take? Lawyer not public utility and no duty to take whatever case they bring to you. This is not a situation of appointment. If situation of appt. then going to need to look to 6.2 and then fall into one of those exceptions. Look also

in these situations to the attorney oath-particularly the last sentence that says defenseless or oppressed and ask whether your client was that. b. Withdrawal i. Ruskin v. Rodgers client attempted to fire atty. after first cross examination of witness. Midst of trial and the court said no, prejudicial, disruptive to the other side. Making decision, it seemed on emotional. Basically realize here that an ability to fire a client is not always absolute. Court has a charge in maintaining the system of justice. Court considered all different factors affected by decision. See Model Rules where it says that lawyer MUST comply with applicable law requiring notice OR permission of a tribunal when terminating representation. When ordered by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating. Trial court broad powers to allow or disallow termination of atty. ii. Rosenberg v. Levin instance where the atty. had done a lot of work and was on contingent fee. With compensation, decided that shouldnt give more than original amount-agreed not less than 5000. But a client should not be penalized from firing. Court said that the amount should be limited. Said that going to pay for services with max being amount that was originally set out. Competing interest of attorney right to compensation and a clients right to fire. Could have gone three ways: 1. Contract Rule: damages under tradition breach of contract-going to be full contract price-this prevents client from profiting from breach. Avoid problem of setting a price for incomplete work. 2. Quantum Meruit Rule: reasonable value of your services. 3. Quantum Meruit limited by Contract price: this was the courts decision, gives you the work you put in with the cap being what the contract was. iii. Holmes v. YJA Realty where the lawyer wanted to withdraw because not being paid. Court said that the right to withdraw is not absolute, but permissible here because the client was not being paid. Additionally, look at the lack of prejudice that would have existed. iv. Kriegsman v. Kriegsman where woman in divorce had already said that not going to be able to pay a lot. Firm wants to be released-husband was pro se. Here court wouldnt let her-difficult for another attorney to step in at this point. Firm had accepted a retainer. Where firm accepts a retainer to conduct legal proceeding-impliedly agrees to prosecute the matter to conclusion. 1. Problem 6 asks to compare these: in these cases, really looking at prejudice and lack thereof with Holmes and serious with K. 1.16b5 will allow to backout without getting paid. 1.16b1 dealing with serious adverse effect-K would have had. Rule 1.16 Declining or Terminating Representation (a) Except as in c, a lawyer shall not represent or shall withdraw if: (1)the representation violation of the rules or other law (2) the lawyers physical or mental condition materially impairs ability or (3) the lawyer is discharged (b) Except in (c) a lawyer may withdraw if: (1)withdrawal can be accomplished without material adverse effect on the interests of client (K case-said it couldnt be) (2) the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent (3) client used the lawyers services to perpetrate a crime (4) client insists upon taking action that lawyer considers repugnant or which has fundamental disagreement (5) client fails to substantially deliver an obligation to lawyer regarding services and has been given warning that will withdraw.

(6) representation is unreasonable financial burden or unreasonably difficult by client or (7) other good cause for withdrawal exists (c) A lawyer must comply with law requiring notice or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation, notwithstanding good cause for terminating. (d) upon termination, need to protect interest, give notice, allow time for other counsel, give up papers, give back fee. (Comments a lawyer should not accept representation in a matter unless it can be performed competetently, promptly, without improper conflict of interest and to completion. Appointment cases-going to need OK for withdrawal, also going to likely need ok from court if litigation. Difficulty that arises when have confidential info that is making you withdraw. Commment 4: a client has a right to discharge a lawyer at any time, with or without cause subject to liability for payment of services. Lawyer MAY withdraw in some circumstances if no materially adverse consequences on client.

c. Problem 4 Can you discharge your lawyer at any time? See in 1.16 Declining and Terminating Representation that there are some rules. But there are some situation where shall if violation of rules or law, physical or mental impairs, or discharged. MAY withdraw if wont materially adverse effect. . . see (b) of 1.16 d. Frivolous Claims: governed by Rule 3.1 Rule 3.1 (prohibits any attorney from taking a frivolous legal position that has no basis in existing law. See rule 1.16 which would require atty. to refuse employment if the employment would cause attorney to violate a disciplinary rule-so if a client came to you and asked you to file a meritless claim-couldnt under 3.1 and would have to decline) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue unless basis in law and fact for doing so that is not frivolous, can include good faith argument for extension of or reversal of existing law. A lawyer for the defendant in a criminal proceeding or proceeding that could result in incarceration, may so defend the proceeding as to require that every element of the case be established. (Need to use legal procedure for the fullest benefit of the clients cause, but also a duty not to abuse legal procedure. Dont need to do this though for crim-can prove along the way) e. Going to have a duty to decline under 1.16 if you think frivolous under 3.1 V. Ch. 4 Advertising and Solicitation (7.1-7.6) a. Advertising: your dealings with the public at large: solicitation targeting specific person, personal contact by the lawyer with a specific client. Traditionally solicitation was punished more harshly than advertising. i. In general 1. Can place advertisements in basically all media-just cant e false or misleading. It is very possible for something to be literally true and still misleading. Misleading statements also if they are difficult to quantify in terms of facts like saying I have the most efficient probate practice-very difficult to quantify. 2. Web site-still going to be subject to false/misleading. Like if winbig.com 3. Rule 7.1 Communications Concerning a Lawyers Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyers 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. (Comments: make sure to include this about 7.2 advertising because it includes all advertising permitted by 7.2 and all communications about a lawyers services. Also truthful statements that are misleading are prohibitedanything that without another part would have person believe something for which no reasonable factual foundation. For instance if gave results such that reasonable person would expect that the same results could be obtained for other clients in similar matters without reference to the specific facts and legal circumstances of each clients case.

ii. Past 1. Lawyers not allowed to either advertise or solicit-now the standards are more lax for advertising and somewhat so for solicitation. 2. Concerns: a. middle class ability to afford. b. Didnt know what their legal rights were. c. Lack of info. d. Bar concerns:specialized services must be specially tailored to the individual-very difficult therefore to advertise. e. Dont want to mislead the client. b. Bates v. State Bar of AZ placed an ad. Firm did routine work and published their prices. Ban on advertising for attorneys was challenged: Sherman Antitrust and First Am. i. Court said that the Sherman antitrust not applicable, but First Am. commercial speech is protected to a certain extent when truthful and not misleading. ii. Court found not misleading-not dealing here with an advertisement making claims regarding quality of services. Real issue here was whether could advertise prices: arguments against 1. Adverse effect on professionalism: court said no-that attorneys are going to charge for services and that this is not going to come as a surprise. 2. Inherently Misleading Nature of Attorney Advertising: saying that everything is individualized and that you are not going to be able to tell in advance what you need-but here talking about routine services. 3. Advertising does not provide complete info: Yes may not provide all the info, but the alternative is no information at all. 4. Undesirable Economic Effects: concern that it would increase overhead-say no because this would help-good way of getting new clients. 5. Adverse effect on Quality: barring advertising is not a way to prevent shoddy work. 6. Difficulties in Enforcement: talking out of both sides of mouth, first talking all about honor and now say going to mislead and hard to enforce? 7. Major thing is that CANNOT be misleading, false or deceptive (see this rule in 7.1 regarding lawyers communications about services. Rule 7.2 Advertising (a) Subject to the requirements of 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyers services except that a lawyer may 1. pay the reasonable costs of advertisements or communications permitted by this rule 2. pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; 3. pay for a law practice in accordance with Rule 1.17 and 4. refer clients to another lawyer or 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, (c) Any communication made pursuant to this rule shall include the anme and office address of at least one lawyer or law firm responsible for its content.

Comment to assist the public in obtaining legal services, lawyers should be allowed to make known their services through not only reputation but also advertising. Particulary impt. with people of moderate means who do not have extensive use of services-interest in expanding info should prevail over considerations of tradition. Can include a bunch of stuff like names of clients regularly represented, references, foreign language ability, kind of services, practice area, fees. Although some jurisdictions really dont like television advertising-model rules say tha this would impede flow of info particularly to those of limited means. Paying Others to Recommend a Lawyer: not permitted to pay others for channeling professional work. Can however, for your ads and all of that or pay publicist or PR person. Can make referrals-but cant let this interfere with professional judgment-and as can see above, conditions. c. Solicitation (Rule 7.3) i. Ohralik and Primus major solicitation cases 1. Ohralik v. Ohio State Bar Court approved an indefinite suspension for ambulance chaser that had contacted two girls shortly after accident, tape recorded them and then threatened to sue for contingency when they said they didnt want him to represent them any more. Court said this was not like Bates-this was solicitation: difference being that you dont have time to compare. You are pressured. Court said that did not need to show actual harm, that state may adopt rules that forbid solicitation in person because of the likelihood of producing fraud. a. In this instance, face to face contact-Court looking at whether fast talking attorneys can pressure people into making decisions. Court wants to guard the legal community and reputation. 2. In re Primus here had spoken with women that had been threatened to be sterilized as condition of Medicaid. Informed of rights and said that ACLU was willing to provide free legal services. Court distinguishes this by saying that Primus had not been guilty of in-person solicitation for pecuniary gain but had conveyed an offer for free help a. Big here is the pecuniary gain. Also offering to help a group of individuals-dealing with political expression. 3. Problem 1 why allow to solicit to family, lawyer of former client: if another lawyer, not so easily pressured or coerced. If family, assume that you have interests which counterbalance. 4. Could you call on other lawyers at their offices to let them know you will take on work? Yes, as long as you are not paying them to do so. See the provision in 7.2 which allows referral if you are not getting paid. 7.2 also says that a lawyer may not give anything of value to someone who is referring clients. Can have an agreement as long as it is not exclusive and the client is informed. Rule 7.3 Direct Contact with Prospectiv Clients (Solicitation) (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 lawyers doing so is the lawyers pecuniary gain, unless the person contacted: 1. is a lawyer; or 2. has a family, close personal, or prior professional relationship with the lawyer (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic 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. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the

words Advertising Material on the outside of the envelope, if any, and at the beginning and ending of any recorded or electronic communication unless the recipient is specified in a1 or a2. (d) Lawyer can, though participate in group or prepaid legal service that makes these calls. Comment concern of abuse in these real time forums-with trained advocate and direct interpersonal encounter. May find difficult to evaluate when put in this position. Potential for abuse. Use of general advertising written and recorded or electronic allows to flow cleanly and freely-also with advertising can be recorded and shared with other lawyers and may help guard against false info that would be violation of 7.1. Not concerns with potential for abuse if former client, family member, no pecuniary gain or a lawyer. But still-permitted forms can be abused, any solicitation which is false or misleading under 7.1 or harass, coerce under 7.3(b)(2) or person made known didnt want under 7.3(b)(1) forbidden. d. Specialization (Rule 7.4) i. Peel v. Attorney Regulatory & Disciplinary Comn had been given specialty status by National Board of Trial Ad which has rigorous standars, but not by bar of state-said that may call himself a specialist-provided that identify the organization that certified and not misleading the public. Model Rules were amended-where can say that you were certified as a specialist on in suituatiosn where the org. has been approved by state authority or by ABA. Rule 7.4 Communication of Fields of Practice and Specialization (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation Patent Attorney or substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the designation Admiralty, Proctor in Admiralty or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. Comment lawyer able to say specialist, specializes in, specialty, but these are always going to be subject to the false and misleading requirement of 7.1. Certifying organizations under part d may be required to apply standards of knowledge and proficiency to insure that the lawyers recognition as a specialist is meaningful. e. The Gray Area between solicitation and advertising? i. Zauder v. Office of Disciplinary Counsel of Supreme Court of Ohio place a newspaper ad and was targeting specific people that had used a intrauterine device. Aimed at a very specific audience, but the court said that this was OK. This is still a general message even though it concerns a specific legal problem. (But OConnor pointed out in dissent in part that lawyers should be prohibited from giving out free smaples of legal advice-may mislead. 1. Can target a specific client, as long as not misleading or false (dont forget to always look at 7.1 when you have any solicitation or advertising case) ii. Shapero v. Kentucky Bar Assn where Shapero had mailed solicitation letters to people that he knew were foreclosing on homes. Again, said that this was OK because the bar could regulate this. Was not in person. Can be policed by requiring copies be sent to regulatory agencies. 1. Also, if you are sending this through the mail, take a look at 7.3 which requires with this that you have advertising material written on it. *Also, note that under 8.4 misconduct, anything that you cant do someone else cant do either. iii. Florida Bar v. Went For It, Inc. state rule that there was a 30 day waiting period between when an accident occurred and the attorney could contact individual. Upheld that rule regarding mailing solicitation letters to families. Here, Central Hudson test where regulation must serve a substantial governmental interest, directly and materially

advance that interest and be narrowly tailored as to achieve a reasonably close fit. Here the interest was in protecting the public and their perception of the legal community, protect against intrusiveness, said that it was narrowly tailored. f. Who are you going to be able to have on your letterhead? This same thing like false and misleading. Rule 7.5 Firm Names and Letterheads (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a governmental agency or with a public or charitable legal services organization and is not otherwise in violation of 7.1 (again going to be looking at 7.1-like if your firm name was winbig, you are probably going to have a problem b/c false and misleading) (b) A law firm with offices in more than one jurisdiction, mayuse thesmae name or other professional designation in each jurisdiction, but identification of the lawyer in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer holding a public office shall not be used in the name of the firm, or in communications on its behalf when substantial period where lawyer not regularly practicing with firm. (d) Lawyer may state or imply that they practice in partnership or other organization only when that is the fact. Comment you can call the firm name by all or some of the members, or deceased where there has been continuing succession in name or by distinct trade name like ABC legal clinic. Any firm including name of deceased partner is trade name. Useful for identification-however, misleading to use name of nonlawyer or predecessor. Lawyers sharing office facilities may not demoniate themselves as a title that would lead people to believe that they were practicing together. g. Are you allowed to give to a judge to get good appointments i. Rule 7.6 prohibits this. Pretty narrow. Still can give to a political figure, but not for the purpose of or obtaining consideration for a type of legal engagement or appt. Rule 7.6 Political Contributions to Obtain Government Legal Engagements or Appointments by Judges A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits poltical contributions for the purpose of obtaining or being considered for that type of legal engagement or appt. Comment lawyers can still be part of political process and make contributions and solicit for, but when make or solicit in order to obtain appointment, then public question whether should have received this. Political contribution-any loan, gift subscription. Not going to include substantially uncompensated service, engagement of appts. made on basis of experience, qualifactions, or rotational list compiled without paying attn. to the lawyers political contributions. Going to be in trouble if you would not have given money-except for getting appt. Purpose going to be determined by circumstances in which it occurs. If bribery-other crime committedmisconduct 8.4(b) VI. Ch. 5 Attorney Fees and Fiduciary Duties (1.5, 1.8(e), 1.15) a. Fees: clearly important part of the attorney client relationship-rules regulating it. See that the main thing in rules 1.5 is that it cant be unreasonable i. Need to let your client know within a reasonable time what the fee arrangement is going to be. ii. With contingent, need to be really clear with the client about what expenses they will be paying for. iii. The thrust of these rules is so that you communicate with your clients about payment. (Rule 1.4 requires that the lawyer shall keep the client reasonably informed about the status of the matter-this would include fees) iv. Robert Wheeler Inc. v. Scott where complaint that this fee was unreasonable. Appellate court goies through the analysis of the factors that are looked at in rule 1.5. Important with any fee issue that you look not only at the making money part of it, but also at your reputation and integrity. Key is that you need to discuss the billing at the beginning-

communicate. Here first year associate was doing most of the work-the other sides billable hours were considerably lower. v. ABA Formal Opinion ABA Committee on Ethics laywer must disclose the basis on which billed. May not bill more time than actually spends. Cant bill more than one client for the same chunk of time. Need to disclose the bases of the amounts to be charged. Need to let them know not only the initial amount but keep aware with each statement why they are being billed what they are being billed. Professional Obligations Regarding the Reaonableness of the Fees: Attorney-client is to be based on trust and should only be charging reasonable. Breaking down the bill so that client understands it. A lawyer who has spent four hours of time on behalf of three clients has not earned twelve billable hours. A lawyer who files for six hours for one client while working five hours on behalf of another has not earned eleven billable hours. A lawyer who is able to reuse old work product has not re-earned hours previously billed. Additionally, job of lawyer is to expedite services and handle efficiently. Cant charge directly for overhead expenses but can charge for telephone calls, copying etc, but this needs to be at a reasonable cost for these things. Cant be profiting from them. vi. If for example quoted someone at flat fee-preferably in writing is part of the rule-would want to look at all the factors. Contingent, written and signed by client. Amount in controversy can affect the case (Wheeler, large amount of money) vii. Problem 2(e) going to violate the reasonableness standard of rule 1.5 to make a series of short calls, and bill if thinking about in bathroom, etc. What if you have done the same case before? Likely being billed higher. Rule 1.5 Fees (a) A lawyer shall not make an agreement for, chare, or collect an unreasonable fee or unreasonable expenses. The following factors are to be considered to determine reasonableness i. The time and labor required, novelty of the issue or difficulty, requisite skill to do it. ii. Likelihood, if apparent to the client that acceptance of this will limit the other employment iii. Fee customarily charged in that locality for similar services iv. Amount involved and results obtained. v. Time limitations by client or circumstances. vi. Nature and length of the professional relationship between lawyer and client vii. Experience, reputation and ability of lawyers performing the lwork. viii. Whether fixed or contingent. (Comment these factors are not exclusive) (b) what the client has to pay shall be communicated to client, preferably in writing, before or within reasonable time fater representation, except when regular client and on regular rate. Any changes in rate shall also be communicated. (c) Fee can be contingent, except for that prohibited in (d) or in law. Shall be in writing, signed by client and shall state the method by which fee determined including percentage that will accrue if settlement, trial, appeal, other expenses and whether expenses calculated before or after discovery. Must clearly identify the expenses client will be liable for whether or not client is prevailing party. Upon conclusion of the matter, lawyer shall provide client with written statement stating outcome, if there is recovery, showing remittance to client and method of determination. (Big here that with a contingent fee you have to have it in writing and you have to have the client sign it.) (d) Shall not enter into arrangement for, charge or collect: (1) any fee in domestic relations matter, payment or amount of which is contingent upon securing divorce, or alimony or support, or property settlement in lie thereof; or (2) contingent fee for criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if

(1) The division is in proportion to the services performed by each lawyer and each lawyer assumed joint responsibility for representation; (2) Client agrees, including share that each will receive and confirmed in writing AND (3) Total fee is reasonable. Comment lawyer may seek reimbursement for cost of services performed in house like copying and other expenses. Need to promptly establish fee arrangement with a new client. Preferably in writing-really going to want this because it is going to cut down on misunderstanding. Lawyer can have advance fee-but going to need to return any that didnt earn. A lawyer may accept property in payment for services providing this does not involve acquisition of proprietary interst in the cause of action or subject matter of the litigation-with this though, going to need to look at 1.8 because often looks like business transaction. Shall not exploit a fee arrangement and should not set up in a way that would encourage curtailing of services. If a procedure has been established for fee disputes like mediation MUST comply. Even if voluntary-should comply. b. Billable hours i. Alternatives: could have a flat fee. Argument that billables are penalizing an efficient lawyer. May discourage communication because know that you are going to be charging for every phone call. c. Contingent fees? i. Could there be a conflict of interest here? Are you asking for too much money because you know that your cut will be higher. ii. Criminal: not going to allow because dont want any underhanded conduct. iii. Prohibited in domestic relations matters. iv. Still with contingent fees-subject to the same reasonableness restraint. v. Good things: promote access to the courts for those that may not have enough money up front. Idea that you should not be denied justice because you cant pay up front. d. Client Trust Accounts i. Bottom line is that you need to keep things separate. ii. What is a client trust account: atty receive money from clients-must keep their money separate from the attorneys personal account or law office account. (1) When lawyer receives a large sum to be held for a long period, the lawyer should make a specific agmt. with client about how sum will be handled. (2) Lawyer should use separate interest bearing account. (3) Any money that has been advanced for expenses is considered to be the clients property-so you need to deposit that into a client account. Also, advance on attorney fees need to be paid into account. Future fees will only be withdrawn when the lawyer needs them. (4) At reasonable intervals-lawyer shall provide client with accounting of the work done. iii. Must keep complete accounting records of all of the clients money and property that comes into the attorneys possession. iv. Client Security fund: used to reimburse clients with dishonest lawyers. Rule 1.15 Safekeeping Property (a) A lawyer shall hold property of clients or third persons that is in a lawyers possession in connection with a representation separate from the lawyers own property. Funds shall be kept in a separate account maintained in the state where the lawyers office is situated, or elsewhere with the consent of the client, or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of representation. (b) A lawyer may deposit the lawyers own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in amount necessary for that purpose. (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.

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in the rule or otherwise permitted by law or agreement, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and upon request by the client or third person, shall promptly render a full accounting regarding such 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. Comment Lawyer can keep the funds that the lawyer reasonabl y believes represent the fees owed, but cant hold the funds to coerce a client into accepting the lawyers contention-need to keep disputed funds in trust account. Rule recognizes that there may be third parties that have claims to funds, like a lien or creditorlawyer may have a duty under the applicable law to protect against third party claims. Should not unilaterally assume to arbitrate a dispute between the client and the third party, but may file court action when there is substantial ground for dispute. Duty as a fiduciary to take care of client property. Need to remember, that after you get a settlement, under 1.15(e) if two or more individuals claim and interest going to need to keep separate until the dispute is resolved. So like if you set up a per hour deal in the beginning, but then just calculated hours and subtracted from their check, this would be unethical. Rule 1.8(e) Current Clients-Specific Rules, Conflict of Interest A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except that (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of client. Comment so, this rule deals specifically with what you can give to the client in connection with pending litigation (not in general) and can only do with contingency fee and advance or to indigent. So cant give a loanbut this is only in litigation sense.

VII.

Ch. 6 Competence, Diligence and Unauthorized Practice (1.1-1.4, 1.8(h), 1.18, 5.3-5.5) a. Differences between Legal Malpractice and Disciplinary Action (ALWAYS LOOK TO WHETHER ASKING WHETHER AN ACTION CAN BE DISCIPLINED V. A LAWYER BEING SUBJECT TO CIVIL LIABILITY) i. Legal Malpractice: going to be in civil court, adversary is the injured person, purpose is to compensate that person for their injuries, money damages ii. Disciplinary Action: Disciplinary Hearing, Adversary is the disciplinary authority, purpose is to punish the attorney and to protect the public, punishment is reprimand. b. Legal Malpractice: With legal malpractice-like on a test-look for buzz words-like is she guilty this is higher than a disciplinary action. i. Legal mal refers to the attorneys civil liability to a client or other injured person for professional misconduct or negligence. Civil court ii. Theories of malpractice 1. Intentional Tort: misuse of fudns, abuse of process, misrepresentation. 2. Breach of Fiducairy Duty 3. Breach of Contract 4. Unintentional Tort: this is the most common theory: must prove the familiar elements of negligence. First the attorney-client relationship, Duty of care, breach of that duty, actual cause, proximate cause and damages iii. Duty of care:

1. owe the duty obviously to the client-owe duty also to others like prospective clients: See below rule 1.18 2. Invited reliance duty of care to non-client if atty. invites the non-client to rely on. 3. Non client intended to benefit. 4. Breach of fiduciary duty by client. iv. Standard of Care: skill and knowledge ordinarily possessed by attorneys under similar circumstances-but can be higher if atty. holds himself to that standard. v. Breach of duty of care: not based just on error in judgment or mistake on point of law that has not been well settled. Expected to do reasonable research and make an informed decision. vi. Actual Cause: must prove actual cause-means would not have happened but for defendants negligent act. Trial within a trial and Need Proximate Cause vii. Damages: need to actually prove damages. c. Defenses to Legal Mal i. Solid defense that reasonably believed that the action was required by law or legal ethics rules. ii. Also, may have comparative or contributive, statute of limitations. Statute will not start to run until lawyer discloses the supposed malpractice or the facts that the client knows or reasonably should know. Doesnt start till actual injury. d. Vicarious Liability: firm is going to also be liable. i. Going to be civilly liable for injuries caused by an employee or principal of the firm who was acting in the ordinary course of business e. Malpractice Insurance i. ABA rules do not require that you carry. Most do though. ii. Different types: Occurrence policy for acts of omissions made during the policy term regardless of when the claim was asserted. iii. Liability polices require insurer to defend against. Most policies give the insurer the right to pick counsel. iv. All cover act or omission, some cover judicial sanctions or fiduciary duty-some will cover personal injury or malicious prosecution. v. Will typically exclude sexual harassment 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. Comment relevant factors to competence include the complexity and specialized nature of the matter, the lawyers general experience, lawyers training and experience in the field in question, preparation and study that the lawyer is able to give to the matter. Expertise in a particular field of law may be required in some circumstances. Newly admitted lawyer can be as competent as a practitioner with long experience. A lawyer can provide competent representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the filed in question. In emergency, lawyer can give advice or assistance, which lawyer ordinarily required consultation or referral-but should be limited to that which is reasonably necessary in the circumstances. (Comment 2 is key that you can provide competent legal analysis in a field that is completely new to you.) Preparation/Thoroughness includes inquiry into a matter, analysis of factual and legal elements, adequate preparation. An agreement between the lawyer and client (per 1.2(c)) ragrding scope of representation may limit the matters for which client responsible. Rule 1.3 Diligence (as an attorney required under 1.1 and 1.3 to provide competent and diligent legal services.) A lawyer shall act with reasonable diligence and promptness in representing a client Comment: a lawyer should pursue a matter on behalf of a client despite opposition, obstruction, personal inconvenience and take whatever lawful and ethical measures are required to vindicate clients cause. Must act

with commitment and dedication with zeal in advocacy. Have authority to exercise professional discretion in determining the means by which a matter should be pursued. Lawyers workload must be controlled so that each matter can be handled competently. Needs to handle manners in timely fashion. Frequently outcome will matter on time, even if doesnt client needless anxiety with extra time. Does not mean that cant ask for postponement of something when doesnt burden client. Unless relationship termainted, a lawyer should caryy through to conclusion all matters undertaken for a client. If employment for specific matter, relationship terminates when matter has been resolved. Duty of diligence may require that lawyer make a plan for a clients files if cant do so because of disability. Rule 1.4 Communication A lawyer shall: (1) promptly inform the client of any decision or cirucmstnace with respect to which the clients informed consent is required by the Rules (like if the lawyer receives a settlement offer, not going to be something can decide on their own-going to need to promptly inform client) (2) reasonably consult with client about means by which clients objectives are to be accomplished. (some situations going to need to consult with client prior to taking action, in other cases, though, like in trial, going to need to make split second decisions) (3) keep the client reasonably informed about the status of the matter (this provision seems to come up a lot) (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyers conduct when the lawyer knows that the client expects assistance not permitted by Rules (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (client should have sufficient information to participate intelligently in decisions concerning the objectives of representation-in litigation should explain general strategy and prospects of success, with negotiation should be more thorough because have more time to do so- should fulfill reasonable expectations for info. With organization, cant tell everyone so direct at appropriate group. May sometimes withhold information, but cant just be doing this because it serves the attorneys interest. f. Ethics of Second Rate Legal Service i. At what point do client imposed limits on budges, means and scope prevent lawyer from doing a competent job. 1.1 and 1.3 require that the lawyer provide competent and diligent legal services. ii. 1.2 Deals with the scope of representation and authority between lawyer and client. 1. Addresses what authority a client will have over a matter. Certain things will always be a clients decision-like whether or not to settle or appeal, or in a criminal trial whether or not he will testify. 2. Although client can limit some, clear that if the lawyer could not competently and diligently do his job, then must withdraw. 3. RS 19(1) allows limit of duty that the lawyer would otherwise owe to the client provided that the limit is reasonable and the client consents and is adequately informed Rule 1.2 Scope of Representation and Allocation of Authority Between Lawyer and client (a) Subject to c and d, a lawyer shall abide by a clients decisions concerning the objectives of representation and as required by 1.4 shall consult with the client as to the means by which they are pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out representation. A lawyer shall abide by clients decision to settle a matter. In a criminal case, the lawyer shall abide by the clients decision, aftere consultation, as to a plea to be entered, whether to waive a jury trial and whether the client will testify. (b) Representation of client is not endorsement of political, econ. social or moral views.

(c) A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Comment 1 Client ultimate authority to determine the purposes to be served by legal representation. 2. Clients normally defer to special knowledge and skill of lawyer with respect to means to accomplish objectives-conversely lawyers normally defer to client regarding questions of expense to be incurred. Rule does not prescribe how disagreements will be resolved-if lawyer has fundamental disagreement about representation-lawyer may withdraw or client can discharge. 3 At outset of litigation the client can give lawyer ability to take specific action without further consultation. 6. Lawyer can be limited in serviceslimited representation may be appropriate because client has limited objectives for representation-could exclude actions that client thinks are too costly. 7. Must be reasonable under the circumstances Such limitation would not be reasonable if time allotted was not sufficient to yield advice upon which client could rely. Does NOT exempt from competent-but whether limited factor to consider. (d) Fact that client uses lawyer advice in course of conduct that is criminal does not make lawyer party to that. 10. When client course of action has lready begun and is continuing, lawyers responsibility especially delicate. Required to avoid assisting client- like drafting documents that lawyer knows are fraudulent.

Also dealing with second rate legal service-note that rule 1.8(h) does not allow a lawyer to prospectively limit a lawyers liability to client for malpractice. 1.8 Conflict of Interest: Current Clients (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyers 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. * Always keep in the back of your mind with any issue of misconduct that the lawyer may be not only subject to discipline, but additionally, may be criminally liable if aspects of legal malpractice can be proven. With malpractice-need to look at your duty-may be fiduciary, definitely duty of competence and diligence-then causation and damages. Not just damaged you not having your day in court-actual damage. With malpractice situation examine first in term of criminal then in terms of disciplinary. And always remember 1.8-that cant settle without certain things present. g. Multi Jurisdictional, Multi Disciplinary Practice of Law i. Limit the practice of law to those that have passed the bar-trying to protect the public. ii. Rule 5.5 prohibits unauthorized practice of law-can have pro hac vice. Does have a number of exemptions though-typically where there is another lawyer from that jurisdiction that is helping out. iii. This rule is also pertaining to companies that want to have a sort of one stop shoppingiv. 5.4 limits this by prohibiting sharing of fees with non-lawyers. 5.4(b) prohibits creation of partnership between a lawyer and non-lawyer if the partnership will engage in practice of law. Rule 5.3 Responsibility Regarding Non Lawyer Assistants With non lawyer associated with retained by, employed: (a)a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the persons conduct is compatible with the professional obligations of the lawyer

(b) a laywer having direct supervisory authority over the non lawyer shall make reasonable efforts to ensure that the persons conduct is compatible with the professional obligations of a lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules if engaged in by the lawyer if: (1) the lawyer orders or with the knowledge of the specific conduct ratifies the conduct involved;or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Comment 1 a lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment-particularly regarding obligation not to disclose information relating to rep. of client and should be responsible for their work product. 2. A requires that the lawyers with the managerial authority make reaonalbe efforts to establish internal policies and proceudures designed to provide assuarnace that the non lawyers will act in compliance with rules. Rule 5.4 Professional Independence of a Lawyer (a) A lawyer or firm shall not share legal fees with a nonlawyer except that (so like if office manager and someone choose the firm because of him, could not pay him a fee) (1) an agreement by a lawyer with the firm, partner, asscociate may provide payment of money over reasonable period of time after death to a lawyers estate or to one or more specified persons; (2) a lawyer who purchases the practice of deceased disabled or disappeared lawyer may, pursuant to 1.17 pay to estate or other rep. of the lawyer the agreed-upon purchase price; (3) a lawyer or firm may include non lawyer employees in compensation or retirement plan even though plan based in whole or part on profit sharing arrangement and (4) lawyer may share court-awarded legal fees with non profit org. that employed, retained or recommended the employment of lawyer. (b) a lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law (c) a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyers professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for profit, if: (1) a nonlawyer owns any interest, except fiduciary rep. of estate of lawyer may hold stock or interest for a reasonable time. (2) if a non lawyer is a corporate director or officer thereof or occupies a position of similar responsibility in any form of association other than a corporation or (3) a nonlawyer has the right to direct or control professional judgment of a lawyer. Comment 1 designed to protect lawyers professional independence of judgment. Where someone else pays the fees that does not modify the lawyers responsibility to client. 2 This rule also expresses traditional limitations on permitting third party to direct or reguatle judgment-see also 1.8f lawyer may accept compensation from third party as long as there is no interference with the lawyers independent professional judgment and the client gives informed consent. Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of law See Ch. 2 notes. Remember that under (c) even if admitted-going to be on temporary basis-to another jurisdiction and restrictions on how can do it. Can do it in association with another lawyer who is actively participating Problems: where she went online and gave legal advice in R.I. but she is allowed to practice in AZ-does not fall under 5.5(c) which would allow her in certain circumstances to practice.

VIII.

Ch. 7 Confidential Information (1.6, 1.8(b), 1.9(b), 3.3, 3.4(a) 4.1)

a. Washington v. Olwell where the client had given knife to lawyer. Lawyer asserts privilege of atty-client and against self-incrimination for his client. Atty-client privilege does extend beyond just words-would extend to the knife, but lawyers cant be repositories for this type of stuff. i. Two conflicting interests in desire to protect the confidentiality and atty-client relationship and still want to ferret out the truth. Rule 1.6 Confidentiality of Information (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 to carry out representation or the disclosure permitted under (b) (b) A lawyer MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary (1) to prevent reasonably certain death or substantial bodily harm (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyers services. (3) to prevent, mitigate or rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from clients commission of a crime or fraud in furtherance of which the client has used the lawyers services (4) to secure legal advice about the lawyers compliance with these Rules (5) to establish claim or defense on behalf of lawyer in controversy b/w lawyer and client to establish defense to crimainl charge or civil claim against lawyer based upon conduct in which client involved. (6) Comply with other law or court order (in Washington case-complying with the court order) Comment 2 fundamental principle of relationship is that lawyer msut not reveal information relating to representation. Trust that is hallmark of client-lawyer relationship. Client needs to be honest in order for lawyer to fully do his job. Comment 3 that the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation whatever its source. Comment 4 that confidentiality applies not only to what the lawyer found out but also to disclosures that could reasonably lead to discovery of such information. Comment 6: with the disclosure adverse to client-such harm is considered reasonably certain to occur if suffered imminently or if there is a present and substantial threat that a person will suffer the harm at a later date. Comment 7: cant counsel or assist the client in conduct the lawyer knows is criminal or fraudulent (1.2d) 8-not going to apply when the person who committed the crime or fraud thereafter employs a lawyer for representation concerning the offense. 12:Other law may require that a lawyer reveal confidential informationthese rules do ont address. When it is required-then must discuss the matter with the client to extent required by 1.4. 13 may be ordered to reveal by court. Absent informed consent of the client-the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that info is protected. In event of adverse ruling the lawyer must consult with client about possibility of appeal. 15 Rule is discretionary-factors that may be used to decide are nature of the lawyers relationship with the client and with those who might be injured by clinent, the lawyers involvement in the transaction and factors that may extenuate the conduct in question. Acting Competently to Preserve Confidentiality 16 Must act competently to safeguard info relating to representation of the client against inadvertent or unauthorized disclosure.17 when transmitting client infolawyer needs to take reasonable precautions to prevent the info from coming in hands of unintended. May require more if more sensitive. Former client 18 the duty of confidentiality continues even after the relationship has been terminated 1.9 (c)(1). * Problem 2 where the client told lawyer that he killed two girls. Here you have to protect confidential information does not fall within one of the exceptions. Would need to talk about potential outcomes. Could

decide to tell and be subject to reprimand. With any of the permissive exceptions-remember to state that they are permissive and that you could just withdraw under 1.16. Also with Washington case: seeing rule 3.4 Fairness to Opposing Party and Counsel in that if you became depository for criminal then that would be unfair. Rule 3.4a Fairness to Opposing Counsel (this is one of the rules that you are going to look to in regards to the destruction or altering of evidence_ (a) (a lawyer shall not) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. ii. Washington case concluded that the attorney should on his own turn over the information. Held also that to be protected as privileged communication, information or objects acquired by an attorney must have been communicated or delivered to him by the client and not merely obtained by the attorney while acting in that capacity for the client. 1. Keeps the privilege by not disclosing where the weapon came from and burden of introducing the weapon would still be on the prosecution. b. People v. Meredith where found the wallet in the dumpster by the investigator of atty. Prosecutor wanted the private investigator to testify as to where he found the wallet. Problem that the prosecution would have no way to get to the wallet and show where it was found-behind his house. By removing the wallet they essentially destroyed a piece of evidence by moving it and the only way that the prosecutor could prove where it was was through private investigation. i. Again, see the competing policies. But decided that when the defense counsel alters or removes physical evidence he necessarily deprives the prosecution of the opportunity to observe the evidence in its original condition or location-permits the defense in effect to destroy critical information. Rule 1.2 Scope of Representation and Allocation of Authority between lawyer and client (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 and application of law Rule 1.8 b Conflict of Interest: Current Clients (b) a lawyer shall not use information relating to the representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by rules (Comment violates duty of loyalty-when used either to benefit the lawyer or third person. Like if knows that client intends to purchase parcel of land, the lawyer cant setp in and buy one) If a lawyer learns from a talkative bartender that his drunk driving client is a lush-then not protected by attorney-client because the bartender is not his client, but it is still going to be confidential and shall not use the information because relating to representation of client If an attorney used confidential information to further his own interest, like purchase a piece of land abutting his clients because knows client going to build shopping mall-not violating 1.8-but could be a conflict of interest. Concern that using information to make an investment may conflict with the quality of service-that lawyer would be putting his own interests before his clients. Attorney is agent of client Rule 1.9(b) Duties to Former Clients (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 the client. (1) whose interests are materially adverse to that person and (2) about whom the lawyer has acquired information by rules 1.6 and 1.9c that is proected by rulesunless the former client gives informed consent confirmed in writing Comment 5 that operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by 1.6 and 1.9c. So if had no info about a client and goes to another firm neither the lawyer or the firm will be disqualified. 6 says that

in some firms lawyer may have access to all files and may regularly participate in discussions of their affairsshould be inferred that such a lawyer privy to all information about firms clients. And opposite situation too. Rule 3.3 Candor Towards the Tribunal (a) a lawyer shall not knowingly (1) make a false statement of fact o law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel (this is going to be a reasonableness standard-and it needs to be controlling-not just analogous. (3) Offer evidence that the lawyer knows to be false. If a lawyer, the lawyers client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity-the lawyer shall take reasonable remdial measures including if necessary disclosure to the tribunal. A lawyer may refuse to offer evidence other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) a lawyer who represents a client in an adjudicative proceeding and who knows that the 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 the tribunal. (c) The duties in a and b continue to the conclusion of the proceeding and apply even if compliance requires disclosure otherwise prohibited by 1.6. (so this rule is going to trump 1.6-so like dealing with perjury.) (d) In an ex parte proceeding a 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. Comment-going to apply in both a trial and any ancillary proceeding like a deposition. Thus (a)3 requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false. 2 performance of duty while maintaining confidences of the client qualified by the advocates duty of candor to the tribunal. The lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false ** Offering evidence Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the clients wishes. Duty premised on lawyers obligation as an officer of court to prevent trier of fact from being misled. 6. If the lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence-the lawyer should seek to persuade the client that the evidence should not be offered. If ineffective and the lawyer continues to represent the client the lawyer must refuse to offer the false evidence. 7. Some jurisdictions have them do a narrative-Rules says that the rules are going to be subordinate to this. Comment 8: The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyers reasonable belief that the evidence is false does not preclude its presentation to the trier of fact. A lawyers knowledge that evidence is false, however, can be inferred from the circumstances. Comment 10: going to need to take reasonable remedial measures to correct testimony that was given that was false. Need to try to get the client to cooperate in stating that the statements were false-if fails then needs to make disclosure to the tribunal. Comment 11: recognizes that may have grave consequences for the client, but the alternative is going to be the lawyer cooperates in deceiving the court. 12 Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with witness, juror, court official, etc. Ex parte-need this because no balance on the other side and yet the goal of ex parte is to achieve a substantially just result.

Withdrawal-comment 15-that may have to because so deteriorate the relationship between the lawyer and client. Rule 4.1 Truthfulness in Statements to Others (this would include like statements to other lawyers- 4 deals with Transactions with persons other than clients) 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 when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. (this again would be like the Washington case where you have the stuff) Comment have no affirmative duty to inform an opposing party of relevant facts-but you cant make a misrepresentation. This rule- specific application of principle set forth in 1.2(d) and addresses situation where a clients crime or fraud takes the form of lie or misrepresentation. Problem example where you found a witness that is not beneficial to your case, do you have to inform the other party? In this instance you are not hiding evidence and you are not making false or misrepresentations to others meaning other counsel-if however, the client was ex parte-then under 3.3(d) you would need to inform of all material facts whether or not they were adverse. (Should have had the other side with interrogatories asking counsel whether knows of anyone that saw accident)

IX.

CH 8 CANDOR IN LITIGATION (rules 1.6, 3.3, 4.1, 8.4 (c)) a. See a trilema with candor in litigation and confidentiality i. Told to seek the clients trust and find out everything that the client knows about the case. 2.told to preserve confidentiality of client info except in very limited situations. 3. told to act with candor and refrain from presenting evidence that we know is false. ii. Different Ideas to deal with situation 1. Narrative Testimony Approach (recall this is not followed by the rules) a. that if the defendant has admitted to counsel facts that establish guilt and insists on right to trial-must strongly discourage. If insists will take the stand-could withdraw-have the problem of the client then knowing what not to do next time. Not professional for a lawyer to lend aid to perjury. So matters where think he is going to perjur himself supposed to let him take a narrative approach and let the defendant say what he wants. 2. Friedmans position a. Says that it is ok basically to let the defendant testify even if you know they are going to perjur himself because the client is going to not tell the next laywer. Second-could have the narrative approach which is no solution either because the judge will know what is going on and the jury will. Third would be the ignorance approach where lawyer makes clear that he does not want to know-not good either. Says that this has disabled the lawyers from trying to counsel against perjury. b. Recommends the traditional model. Telling truthfully and lawywer should keep confidence and if the client insists on testifying then the should try to convince not to-and if he cant should go on just like normal. 3. ABA: See 3.3 that rejected all of these approaches- Nix v. Whiteside Supreme Court made clear that the rules way of handling this does not amount to ineffective assistance of counsel iii. Different Jurisdictions and Case Law 1. NY law is that lawyer reveal clients fraud except when the lawyer knows about it from clients confidence or secret. Approved the narrative approach. DC also allows narrative-after trying to persuade not to. 2. California-no rule on point but can see in caselaw below what they do

a. People v. Johnson addresses the two different approaches that can prohibit from testifying and say that going to tell the tribunal or could go Freedmanwhere just go with it. California tries to find middle groundwhere dont protect client from testifying-ask questions with reasonable probability that it is true and when know false allow narrative. Talks about Freedman but fact that no one endorses this. Notes that first should try to get to testify. Fundamental right of defendant in criminal case (this is crim case) to testify. Court endorses narrative approach as best accommodation of competing interest of keeping confidential information and not sanctioning fraud on the court. i. Finds that this approach does not signal to the jury because the jur has no reason to think this is perjury. iv. ABA Formal Opinion 1. A lawyer in a civil case who discovers that her client has lied in responding to discovery requests must take all reasonable steps to rectify the fraud which may include disclosue to the court. In this context, the normal duty of confidentiality in Rule 1.6 is explicitly superseded by 3.3. The lawyer must first attempt to persuade the client to rectify the situation or if that proves impossible, must herself take whatever steps are necessary to ensure that a fraud is not perpetrated on the tribunal. 2. Untruthfulness to opposing party-under 4.1 however is not going to be expressly trumpted by 1.6. 3. Must note that telling the court is not going to be the first step that you want to take. Could for example supplement if not complete. b. Problem examples: with controlling law- and duty to inform the court under 3.3(a)(2) going to be a reasonable standard and needs to be controlling-not going to be just analogous, but also not going to be able to distinguish based on tiny details. c. If you find out 10 weeks before trial that your client is guilty i. First try to talk out of it. If in California, would allow the defendant in criminal case to narrative. With model rules, likely going to want to withdraw. Under 1.16 (b)(2) allows to withdraw if the client persists in a course of action involving the lawyers services that the lawyer reasonably believes are criminal or fraudulent. Can attempt to withdraw without disclosing significant information. But know also that the rules do not require you withdraw. Attorney cannot give false information to the court. ii. What if 10 minutes before trial-could not allow the friends testimony but have to allow him to testify. Required then to take reasonable remedial measures. Frist should convince client to withdraw or correct-after that could disclose if wouldnt recalling that 3.3 trumps 1.6. 1. Recall that the duty to disclose also is not over at the end of the proceedingsincluding appeals. iii. If some room for doubt and the attorney not sure that perjury-should respect the client and go ahead with the trial. X. CH. 9 FAIRNESS IN LITIGATION (3.1 3.9, 4.4) a. Fairness Towards Jurors i. Problem where question whether could hire a private investigator to find out jurors attitudes towards race discrimination See 4.4 and 3.5-see below where says that you as a lawyer shall not seek to influence judge, juror. 1. What about a paralegal to search political party database to see affiliation? a. First you are going to want to question whether this would even be useful for your client-of course you want to zealously advocate, but this may be frivolous, or waste of time and expense.

ii. Juror in elevator asks what is going to happen in trial? 1. Again, 3.5 Impartiality and Decorum of Tribunal: shall not communicate ex parte with a juror unless authorized. This includes talking about the trial, the baseball game on tv last night, etc. If do end up talking to them, share this with the other side. iii. Under 3.5 c you are going to need to respect a jurors wishes if they choose not to talk to you after a tiral. iv. Extraneous evidence affecting juror decisions? 1. Colorado decision that will not allow a juror to testify what other jurors have said, however, will allow a juror to testify about extraneous prejudicial information that impacted their decision. So with problem of whether or not the jury saw the whole deposition testimony even that not to be included as an exhibit-could under this ask whether the bailiff delivered the entire transcript, but you would not be able to ask how the evidence affected the deliberations. Rule 3.5 Impartiality and Decorum of the Tribunal A lawyer shall not (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order (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 (3) communication involves misrepresentation, coercion, duress or harassment or (d) engage in conduct intended to disrupt a tribunal. Comment Must not communicate ex parte during proceeding-so like couldnt go to the judges house to talk about case. 3. May communicate with juror after the fact as long as respect jurors desire not to talk. 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. (b) A lawyer who receives a document relating to the representation of the lawyers client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. v. What about those represented by counsel 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. Comment rule applies to communications with any person represented by counsel concerning matter to which communication relates. Rule applies even if represented person initiates or consents. 3. A lawyer must immediately terminate communication if finds out that shouldnt be having this conversation. 4. Doesnt prohibit communication about outside matters. A lawyer may not make communication prohibited by this rule through acts of another (8.4 a) 6. Can seek court order if not sure if would fall under this rule. Under exceptional circumstances may seek court order to authorize communication. 7. In the case of a represented organization, the Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organizations lawyer concerning the matter or has authority to obligate the organization with respect to the matter of whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Can talk to a former constitutent. (so not going to cover every single employee going to see only some. Problem of

interviewing someone that regularly consulted with the client. Look to this comment when interviewing someone within an organization. Dont need consent if they are not one of the groups specified in comment 7) 8. Only applies where the lawyer KNOWS, but the actual knowledge may be inferred from the circumstances. vi. b. Fairness Towards Witnesses i. Able to help witness by showing a document, etc, but you cant tell them a different story of event. Standard wisdom that you can discuss the case before testify. Duty to investigate the facts and can do this through speaking with witnesses. ii. Adversary system and with that want witnesses to deliver their statements smoothly. iii. Three grades of witness coaching 1. knowingly counsels witness to testify to something that is overtly false. 2. Same as grade one, but does this covertly, through implication-less easy to detect, but no less harmful. 3. Lawyer unknowingly induce witness to alter testimony. iv. Ordering of questions, and using a recall first method and then ask can help in keeping honest. v. Can help the witness refresh their memory and test the truthfulness. May find out if the witness has good character, whether the witness could be impeached, whether the witness has made previous statements, whether the witness has been prejudiced. Rule 3.7 Lawyer as a Witness (a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: 1. the testimony related to an uncontested issue; 2. the testimony relates to the nature and value of legal services rendered in the case; or 3. the disqualification of the lawyer would cause substantial hardship on client (b) a lawyer may act as an advocate in a trial in which another lawyer in the lawyers firm is likely to be called as a witness unless precluded from doing so in 1.7 or 1.9 Comment 1 Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and the client. 2 trier of fact may be confused or misled by a lawyer serving as both advocate and witness. Combination of roles may prejudice litigation. Witness required to testify on basis of personal knowledge while advocate is expected to explain and comment on evidence given by others. May not be clear whether a statement by an advocate-witness should be taken as proof or analysis of proof. 3 To protect tribunal-prohbitis from serving as advocate and witness except in those circumstances in a. 4 paragraph a3 recognizes the balancing that may be required between interests of client, tribunal and opposing party. 6. Lawyer who may be permitted under a3 may not be allowed because of 1.7 in that conflict between testimony of client and lawyer or that 1.9 problem. c. Fairness Towards Adversary (4.1 Truthfulness in statements to others) Rule 3.1 Meritorious Claims and Contentions see above Comment: duty not to abuse legal procedure. Because law is always changing-need to take account for this, in regards to extension of the law. Not going to be frivolous because facts have not been fully substantiated. Lawyer needs to determine whether can make a good faith argument in support of client position. Not going to be frivolous even if lawyer believes that ultimately the clients position will not prevail. Will be frivolous however if the lawyer is unable either to make a good faith argument on merits or for extension, modification, reversal of existing law. Can make the prosecution set forth every element of proof even where there is no defense. * Also, note that like prosecutors have a higher duty than civil litigator-criminal defense more latitude with this. Allowed to force prosecution even when no meritorious defense. Rule 3.4 Fairness to Opposing Party and Counsel A lawyer shall not

(a) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (Washington and People v. Johnson case, also example of where the attorney made document purposely light so they would be hard to read, altered the ability to use the document.) (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by opposing party; (this also may apply to problem where individual made very light copies so that it would be difficult for adversary to read) (e) in trial, allude to any matter that the lawyer odes not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: 1. the person is a relative or an employee or other agent of a client and 2. the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information. Comment 1 fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery and the like. 2 documents and other items often essential to establish a claim or defense. Cant alter, destroy material characteristics of evidence. In such a case (where someone turns something over to you) applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances. 3 Allows for payment of reimbursement of expenses for a witness. Should not be paying someone to be a witness, however, if they are an expert going to be different. Common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying 4 Paragraph f permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. d. Fairness Towards Court (3.3 Candor towards tribunal, See also above, 3.5 Impartiality and Decorum of Trial) i. In fairness to court need to have quick litigation and need to avoid doing things outside the court that would be problematic to fair trial. Rule 3.2 Expediting Litigation (this would be fairness to court along with fairness to adversary A lawyer shall make reasonable efforts to expedite litigation consistent with interests of the client. Comment not proper for a lawyer to routinely fail to expedite litigation solely for convenience of advocates. i. Trial publicity and comments about litigation 1. Dont want the media to influence the courts. Historical standard was that needed to show actual prejudice or a substantial and imminent threat to a fair trial in order to restrict coverage during criminal trial, but has allowed trial courts to restrain. Now standard in 3.6 is substantial likelihood of material prejudice 2. Court in Gentile v. Nevada held that an attorneys speech may be limited: upholding standard of substantial likelihood of materially prejudicing This decision reflected in 3.6 and 3.8. a. 3.8 (g) has extra standard for prosecutors that they must refrain from making comments that have a substantial likelihood of heightening public condemnation of accused. 3. Excessive pre-trial publicity may interfere with an individuals right to a fair.

a. Rules will allow a lawyer to mitigate the effects of negative publicity, but cant do more than that. Rule 3.6 Trial Publicity (a) a lawyer who is participating or hs 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 (before under Supreme Court case said that needed the actual prejudice or substantial and imminent threat to fair trial) (b) Notwithstanding a, a lawyer may state (really this does not allow a lawyer to say very much.) 1. the claim, offense or defense involved, and except when prohibited by law, the identity of the persons involved 2. information contained in a public record. 3. that an investigatior of a matter is in progress; 4. the scheduling or result of any step in litigation. 5. a request for assistance in obtaining evidence and information necessary thereto 6. a warning of danger concerning the behavior of a person involved, where ther is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest and 7. in a criminal case, in addition to 1-6 i. the identity, residence, occupation and family status of the accused. ii. If the accused has not bee apprehended, information necessary to aid in the apprehension of that peson; iii. The fact, time and place of arrest and iv. The indentity of the arresting officers or agencies and the length of the investigation. (c) Notwithstanding (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyers client. Shall be limited to such information necessary to mitigate adverse publicity. (d) no lawyer in firm or government agency with lawyer subject to a shall make statement prohibited by paragraph a. ii. Function of a Prosecutor: 1. Still going to need to apply the same rules of 3.5 with impartiality and decorum in regards to jurors asking questsions after the fact. 2. But as the rules evidence, the prosecutor also has a higher duty. Unique power to bring criminal prosecutions on behalf of the government an with this power, also a special duty to exercise it in a responsible fashion. 3. Comment 1 of 3.8 states that A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. a. Lawyers empowered by law to bring and press criminal charges have an authority that must be exercised with care to protect the rights of both the innocent and guilty 4. U.S. v. Bagley explained that a prosecutor as required by Due Process clause must disclose evidence that favors the defendant with respect to guilt on merits or impeachment of prosecution witness or punishment of offense. Failure to disclose undermines confidence in the outcome of the trial Rule 3.8 Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cuase. (b) Make reasonable efforts to aussre that the accused has been advised of the right to, and the procedure for obtaining counsel, and has been given reasonable opportunity to obtain counsel. (c) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order. (e) Not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes i. The information sought is not protected from disclosure by any applicable privilege ii. The evidence sought is essential to the successful completion of an ongoing investigation or prosecution and iii. There is no other feasible alternative to obtain the information. (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutors action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under 3.6 Comment 1 that prosecutors may have to abide by different rules depending on jurisdiction. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to Prosecution. 2. Paragraph c is not going to apply to those choosing to appear pro se or uncharged suspect that has knowingly waived rights to counsel. 5. Paragraph f is a supplement to 3.6 which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutors extrajudicial statement can create the additional problem of increasing public condemnation of the accused.

XI.

CHAPTER 10 BIAS IN (AND OUT OF THE COURTROOM) a. Types of Bias Lawyers Face: unconsciously held stereotypes that cause behavior, frequently not intentional actions. Want to increase sensitivity to the issues. i. Gender Bias 1. Effects of Gender in Federal Courts: Ninth Circuit Gender Bias Task Force (1993) a. Finding that gender bias was around, but that it had merely gone underground. Subtle interactions that undercut the credibility and professional worth. b. Concern because older generation retiring but this attitude is still around. See judges cutting off female or asking male to speak before female counsel. Attitudes that are not dependent on age, but instead on gender. Men that are over and under 50 think that there is little bias, but women over and under think that there is. 2. Study of Gender in Courts: Keeping Bias at Bay (2002) a. Fact that there may not be intention behind the bias does not obviate need for action. Women perceive that they are being treated differently and told it is of our own making. 3. Whats Gender Got to Do with It: Incivility in the Federal Courts (2002) a. Rudeness, disrespect, gender disparagement and sexually inappropriate behaviors alarmingly common. 2/3 of attorneys have experienced general incivility, gendered incivility, and or unwanted sexual attention. b. Misbehavior in treating women attorneys as mothers, wives, sexual partners, daughters-roles which men are more accustomed to. 4. What Judges Can Learn from Gender Bias Task Force Studies

a. Judges can be a major force for promoting equality in the judicial system. Perception of gender bias in a judge is more harmful than most others. Potent symbol in judge for impartiality. b. Important to pay close attention to unconscious prejudice. c. Many judges addressing women by first name more than men and assume not lawyers. d. Judges can influence one anothers behavior through socializing, conversation and observation. e. See that women and male judges see situations differently regarding whether ok to address female judges by first name. 5. In Re Plaza Hotel Corporation condescending attitude, gender biased remakrks interfere with orderly conduct of federal litigation in atmosphere of equal justice. Sanctionable. ii. Racial and Ethnic Bias 1. Special Committee on Race and Ethnicity (1995) When people perceive bias in the legal system whether they suffer from it or not, they lose respect for that system as well as for the law. 2. Mainly all white in federal bench and minorities going to state court. Hispanics and Asian feel treated poorly in both settings 3. Concerns of accomplishments discounted on grounds of affirmative action. Lack of mentors because need to work hard to keep job. 4. Minnesota Study on Racial Bias 1993 a. Disadvantage people of color not only hiring but retention. b. People of color experience a disproportionately large number of civil problems due to racial discrimination and poverty. Less likely to have access to representation, fewer employers taking steps to recruit and hire 5. In Re Charges of Unprofessional Conduct where sought to have counsel for defendant removed because only counsel to play on color to jury a. Here, Supreme Court has deferential standard of review of lower court conclusions, but say even with this cant find that this conduct was nonserious. Race based misconduct undermines idea that all created equal. Remorse or lack of malice and apologies do not change this. iii. Sexual Orientation Bias/ Bias by Lawyers 1. In re Vincenti disbarred had previous complaints against. Suggested that the social worker had inappropriately touched client, made comments about sexual orientation and highly personalized cross examination. iv. Other Forms of Bias including Sexual Harassment and Bias on the Basis of Disability, Age or Religion 1. In re Kirby removal of judge because tardy, alcohol on his breath, gender bias comments. a. Canon 3(a)3 a judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom he deals b. Here basis for censure discourteous treatment. 2. Age bias: problem example where asks old man about vision, how long since had an eye exam etc. and then says keep the old coot off the highway-was this inappropriate? May have gone to this issue of negligence, but the comment reflects bias and may violate 8.4 because it is an overgeneralization about a group of people-may violate comment 3 because may be implying negligent because old. Under Canon 3.6 should turn witness in. Also see 3.4(e) that the lawyer should not allude to the credibility or culpability of witness.

3. Comments like those people or lumping together as a group is going to indicate misconduct-bias and judge will need to watch for this. Rule 3.4 Fairness to Opposing Party and Counsel A lawyer shall not (a) unlawfully obstruct another partys access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (Washington and People v. Johnson case) (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: 1. the person is a relative or an employee or other agent of a client and 2. the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information. Comment 1 fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery and the like. 2 documents and other items often essential to establish a claim or defense. Cant alter, destroy material characteristics of evidence. In such a case (where someone turns something over to you) applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances. Rule 1.8 Conflicts of Interest (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. 4. b. Setting for Bias i. Bias by Lawyers ii. Bias by Judges: How to remove bias with Judges? Canon 2C A judge shall not hold member in any organization that practices invidious discrimination on basis of race, sex, religion or national origin. Comment 1 Whether an organization practices invidious discrimination is often complex question to which judges must be sensitive. Answer cannot be determined mere examination of current membership but how selects members and other relevant factors. An organization generally said to discriminate if arbitrarily excludes on basis of sex, race, religion 2 also, under canon 2 and 2a cant be part of anything with appearance of impropriety. Also would not be allowed under 2 or 2a for a judge to have meeting at a club or regularly use a club that discriminates on basis of race, sex, religion or national origin. 3 Judge can make immediate efforts to have the organization discontinue its invidious discrimination. If fails to discontinue then judge required to resign from club. (Example from problems that cant have membership in club that prohibits minorities-and also even if doesnt say so in bylaws but the bias in effect is enough to require to quit)

Canon 3B 5 A judge shall perform judicial duties without bias or prejudice. A judge shall not, in performance of judicial duties, by words or conduct manifest bias or prejudice including but not limited to bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status and shall not permit staff, court officials or others subject to the judges direction and control to do so. Comment 2 a judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings judiciary into disrepute. (Example where judge referring to female lawyer as missy-this would be trouble and the duty is going to be the same in criminal or civil trial. Also, with this canon-need to have control over courtroom so if your baliff said something shouldnt let go. Canon 3 deals with administrative) Canon 3B 6 A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, gage, sexual orientation or socioeconomic status against parties, witnesses, counsel or others. Doesnt preclude legitimate advocacy on these. (this is going to come up then really anytime that you have a lawyer being biased) iii. Bias by Clients c. How can Bias be remedied? i. Look to misconduct rules * Remember that by laughing or letting something go that you are supporting bias in a way. Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly or assist or induce another to do so, or do so through the acts of another (going to see that if lawyer has someone else do their dirty work still going to be in trouble) (b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects. (this doesnt have to be acting while lawyer) (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice ( like problem where if always asked for the male attorney) (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules or (f) knowingly assist a judge or judicial officer in conduct that is a violation of the applicable rules of judicial conduct or other law. Comment 2 many kinds of illegal conduct reflect adversely on fitness to practice law. Some kind of offenses not the case like adultery. A lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to the practice of law. A pattern of repeated offenses, even ones of minor significance when considered separately indicate indifference to legal obligation. 3. A lawyer who, in course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph d. (Saw the use of this maybe when the client wanted the male lawyer to take deposition because thought more aggressive-the lawyer may be manifesting this bias but also has the duty to follow clients request and preferences) 5. Lawyers holding public office assume legal responsibilities going beyond those of other citizens. XII. CHAPTER 11 CONFLICTS OF INTEREST LAWYERS CLIENTS AND THIRD PARTIES (1.2, 1.7, 1.8, 1.10, 1.13, 1.14, 1.18, 2.1, 3.7, 5.4 c) a. Three types of conflicts of interest: this issue is really at the heart of professional ethics. i. These are situations where the lawyer is potentially compromised in fulfilling duties to the client. ii. Looking at where ther is some interest where the lawyer is not able to fully fulfill their duty of loyalty, competence diligence.

b. Conflicts Created by Third Party Interference with the Attorney Client Relationship i. Insurance company in the Beckwith case-saw that certain interests between attorney and client conflict. Or where you are lawyer for corporation, working for entity, but what about people that are working for the corporation. ii. Compensation from a third party 1. Beckwith Machinery Co. v. Travelers Indem. Co. where T was the insurance company and hired a law firm to deal with the case but said that the claims pertaining to punitive damage were not going to be covered. 13 months after the suit was filed, the company notified B that denying coverage of all claims and withidrawing defense. Court said breach of duty to defend. When an insurance company concludes that a claim is not to be covered, must timely inform the insured and that they must get another lawyer. Hornbook law that if an insurer assumes the insureds defense without sending the insured a reservation of rights letter or bringing declaratory relief, the insurer will later be precluded from denying converage. Fiduciary relationship must act in good faith. Rule 5.4 (c) Professional Independence of a Lawyer (c) a lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyers professional judgment in rendering such legal services. Also with this is 1.8 f which states that a lawyer shall not accept compensation for representing a client fro one other than the client unless: (1) the client gives informed consent (2) there is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship and (3) the information relating to the representation of a client is protected as required in 1.6 c. Allocating Decision Making i. Principal-agent relationship. But there are some, what the court refers to as substantial rights that the clients really need to decide, directly affecting clients. ii. If there is not a substantial right indicated, then the attorney would be free to act indendently. iii. RS the client defines the goals of the representation and the lawyer implements them, but that each consults with the other. Rule 1.2 Scope and Representation of Authority Between Lawyer and Client see ch. 6 Old fashioned view was that the attorney is going to handle all of it, not the case these days. Cleints are much more involved. RS takes a middle view that some decisions should be left to client and some to lawyer. Substantial rights are to be left to the client and other to lawyer. Tactical issues are really in the realm of lawyer. Comment 1 Paragraph a of the rule confers upon the client the ultimate authority to determine the purposes to be served by legal representation. Decisions spelled out in a like whether to settle a matter must be made by client also see 1.4(a)(1) where you must promptly communicate this type of decision with client where informed consent is required. 2 Clients normally defer to lawyer for special knowledge particularly in regards to technical legal matters. 3 Can authorize lawyer to take specific actions on client behalf without further consultation. 6(agreements limiting scope) may be appropriate because client has limited objectives for representation. Such limitatsion may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent. 7. the limitation must be reasonable under the circumstances. Would be reasonable for instance if time allotted was not sufficient. d. Who is the Client? i. Corporations: rules state that a lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity. Rule 1.13 Organization as Client

(a) a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If lawyer knows that officer, employee or other associated with org is doing something violation of legal obligation to org. or violation of law, 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 not in best interests of org. to do so, the lawyer shall refer the matter to higher authority, including if warranted by the circumstances, the highest authority that can act on behalf of org. (c) Except as in (d) if 1. despite lawyers best efforts highest authority fails to address in timely appropriate manner or refusal 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, tehn the lawyer may reveal inof relating to representation whether or not 1.6 permits it but only if and to the extent that the lawyer reasonably believes necessary to prevent substantial injury to the corporation. (d) c shall not apply with respect to info relating to a lawyers representation of org to investigate an alleged violation of law, or to defend an officer, employee or other constituent against claim arising out of an alleged violation of law. (e) Lawyer that reasonably believes discharged because of actions of b or c or because withdraws shall proceed as lawyer reasonably believes necessary to the assure the organziations highest authority is informed of the lawyers discharge or withdrawal. (f) When talking with directors, employees etc. shall explain identity of client when knows or should know that interests of org. in conflict with other. (g) A lawyer representing an organization may also repsresent any of its directors, officers, employees, members, shareholders or other constituents pursuant to 1.7. Need to have consent from someone other than who you are going to be representing. Comment 2 When one of the constituents of org. communicates with org lawyer communication is protected by 1.6 So like if investgating claims of wrongdoing and interviews this would be 1.6. But this does not mean that these people are the lawyers clients. Comment 3 When constitutents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Comment 4 lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Ordinarily referral to higher authority necessary, but in some circumstances can ask constituent to reconsider the matter. Need to always minimize risk of revealing information relating to representation of persons outside organization. Comment 5 highest body to be referred to is typically board of directors Problem with interaction: know that the organization is the client because of 1.13 (a). Still though according to comments constituent is still protected by confidentiality, but as seen in comments that the director is not going to be the client. SHALL proceed as is reasonably necessary in the best interest of the organization if there is a problem. But under 1.2 (d) may at times have a conflict, because the attorney may not counsel client to engage in fraud. a. What if there was something illegal going on? Still your first interest is to the company. Duty of loyalty and there are consequences if go above and beyond. Should be assertive and proactive early. ii. Duty to a Prospective Client as well as those that are already your client. Also, duty to a former client-rule 1.9. Rule 1.18 Duties to Prospective Client (idea that you may have a conflict of interest with prospective or former which is 1.9 (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation except as 1.9 would permit with respect to information. (c) A lawyer subject to b shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as in d. If a lawyer is disqualified from represneation, no laywer in a firm may knowingly undertake or continue representation in this matter except as provided in (d). (d) When the lawyer has received disqualifying information as defined in (c), representation is permissible if i. Both affected and prospective clients have given informed consent confirmed in writing or ii. The lawyer who received the info took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and ( this was like in-class where guy started telling about problem-should have him stop talking under this) 1. the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and 2. written notice is promptly given to prospective client. Comment 1 A lawyers discussions with a prospective client usually are limited in time and depth and leave both the rposective client and the lawyer free (and sometimes required) to proceed no further. Hence prospective clients should receive some but no all of the protection afforded clients. 2 Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship is not a prospective client within the meaning of (a) 4 in order to limit disqualification should only get the information that is reasonably necessary to see whether would be disqualified. 5 a lawyer may condition conversations with a prospective client on the persons informed consent that no info disclosed during consultation will prohibit the lawyer from representing a different client in the matter. 6 Even in absence of agreement under (c) the lawyer is not prohibited from representing a client with interests adverse to those of the prosepective client in the same or substantially related matter unless the laywer has received from the prospective client information that could be significantly harmful if used in the matter. In class problem:duty will extend to prospective. Question whether it is substantially related under 1.9 former duty to client and identify what duties you owe to your former client. If the prospective client starts rattling off information about their complaint, as soon as you recognize there to be a conflict you need to stop him so that under 1.18 you have taken reasonable methods to avoid e. Conflicts of Interest between the Lawyers Interests and the Clients: 1. in general see 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 clients situation. a. Comment that purely technical legal advice can be inadequate. 3. client may expressly or impliedly want only pure legal advice. However, need to realize that certain matters going to be outside domain of law: psychiatry, business, etc. When consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. 2. Could have a conflict if client with diminished capacity See Rule 1.14 above. ii. Business Transactions with the Client

iii. Adverse Ownership, Possessory or Security Interests iv. Interest in the Subject of the Litigation Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in b, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. This 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 lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under (a), a lawyer may represent the client if: 1. the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; 2. the representation is not prohibited by law; 3. the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and 4. each affected client gives informed consent confirmed in writing. Comment 1 Concrrent conflicts of interest can arise from the lawyers responsibilities to another clietnn, former client or third person or from the lawyers own interests. 2. lawyer must clearly identify the client or clients, 2. determine whether a conflict interest exists 3. decide whether the representation may be undertaken despite the existence of a conflict and obtain informed consent in writing. 3. If conflict exists representation must be declined. 4. If conflict arises after representation then must withdraw unless consent of client. If conflict during a trial may have the option to withdraw depending on circumstances. 6. a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed. However, simultaneous representation in matters where interests are economically adverse does not ordinarily equal conflict. 8. A conflict of interest exists if there is a significant risk that a lawyers ability to consider, recommend or carry out an appropriate course of actions for the client will be materially limited as a result of the lawyers other responsibilities or interests. 11. Personal Interest: when lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed. Each client entitled to know of the existence and implications of the relationship between the lawyers. 13. (see this is 1.8 too) lawyer may be paid from a source other than the client including a co-client if the client is informed of that fact and consents and that arrangement does not compromise the lawyers duty of loyalty or independent. 18. With informed conset-each affected client must be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the client could have adverse effects on the interests of that client. 19. Some circumstances may be impossible to make the disclosure necessary to obtain consent. Blocked by confidentiality. 20. Need conferment in writing but does not supplant need for lawyer to talk to client and explain risks and advantages if any of representation burdened by consent. Client can revoke consent at any time. 22. Consent to future conflict limited to extent of b and that client reasonably undertstands risks that the wiaver entails. Cant have a general and open ended. 23. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co defendant. Howevre, common representation of individuals in civil litigation is proper if requirements of b are met. 24. Fact that advocating on behalf of one client may create adverse precedent to another doesnt matter.

28. Whether consentable depends on the situation. For exmpale, cant represent multiple parties where interests are fundamentally antagonistic to ech other. 29. With lots of clients, need to be mindful that common representation fails because of potentially adverse interests cannot be reconciled can be additional cost, embarrassment and recrimination. Cant undertake common representation when contentious litigation or negotiations are imminent. 30. With regard to attorney client privilege the prevailing rule is that as between commonly represented clients, the privilege does not attach. In class problem: With 1.7(a)(2) representing multiple clients there is always going to be some significant risk that the clients interests will diverge. Confidentiality one problem because you owe all a duty of confidentiality but also need to inform the different clients and keep open communication channels. First identify the status of client. E.g. You represented W in business and now Mrs. W wants you to represent in divorce. W is a former client. Is the matter substantially related? Had information about finances of client. Could get informed consent to represent.

v. Trial Lawyer as Witness Rule 3.7 see above: can only have trial lawyer as a witness in very limited circumstances because may confuse the jury and may prejudice the partys rights in litigation. 1. AAA Plumbing Pottery Corp. v. St. Paul Insurance Co. of Illinois dont want Gross to represent. Says that he is necessary as witness. Said that he cant because may be a witness but refused to vi. Gifts and Favors from a Client 1.8(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gifts unless the lawyer or other recipient is related. For purposes of paragraph any close familial relation Comment 6 may accept a gift if the transaction meets general standards of fairness. Like simple Christmas gift or token of appreciation. If client gives a more substantial gift (c) does not prohibit taking it, but may be voidable under doctrine of undue influence which treats client gifts as presumptively fraudulent 8 Does not prohibit having a partner or another associate named as executor of esate or to another potentially lucrative position. Will be subject to general rules of conflict of interest. vii. Phillips v. Carson suing attorney for legal mal in connection with personal loans. Loaned him 200K because said he was having financial problems executed and prepared a mortgage for her and didnt file. At no time did he tell her to seek independent counsel. Called his office and find out the mortgage hadnt been filed. Then demanded payment from Carson and he filed bankruptcy. 1. Goes to 1.8 a that a lawyer shall not enter into business transaction with a client if they have differing interests therein (older version. 2. Issue of whether this was apparently authorized by parnterhsip. Claims that reasonable belief of the third party concerning existence of apparent authority. Firm points out that the indication of authority must come from principal not from agent. Letters here about the loan were on firm stationary. Says that issue of material fact. 3. INSERT 1.8 XIII. CH. 12 CONFLICTS BETWEEN TWO CLIENTS (1.7, (see above) 1.8(b),(g), (i), 1.9-1.12, 1.18(see above) 6.3) a. Directly Adverse Representation in the Same Matter

b. 1.7 comments: Need to identify where the conflict exists, determine if and where and whether you could still take the job. Going to perhaps need to decline or terminate under 1.16 if there is a conflict of interest. Cant represent someone that has an adverse interest even where totally different manner because client feel betray. If personal conflict: blood or marriage, significant risk: not imputed to the rest of your firm. i. Some conflicts will be non consentable-state law. ii. If OK, need informed consent confirmed in writing. Consent may be revoked. iii. Fact that you may be advocating legal precedent that is against your client is allowed. Cant take on more than one client if you foresee contentious litigation or negations. May end up having to withdraw from both. Prevailing rule with atty client privilege is that when you are representing more than one client going to need to let everyone know what is going on. 1.8(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as required by these rules Comment this violates duty of loyalty when information is used to benefit the lawyer or a third person such as another client or business associate. 1.8(g) A lawyer who represents two or more client shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case and aggregate agreement as to guilty or nolo contendere pleas, unless each client gives informed consent in writing signed by client The lawyers disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement JOINT REPRESENTATION Three Considerations: 1. Interest of clients in certain objectives that are available through joint rep. 2. Need to protect against dangers of 3. Desire to preserve lawyers reputation by avoiding appearance of impropriety. Can be cost effective and may eliminate some communication problems, but if the interests diverge, atty is subject to disqualification and must withdraw usually causing hardship to both and potential malpractice. Comment 13 differences of willingness to make or accept offer is one of the inherent problems of multiple clients. 1.2 a that client has the final right to accept or reject. 1.8(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 lawyers fee or expenses 2. contract with a client for a reasonable contingent fee in a civil case. c. Opposing Present Client in an Unrelated Matter d. Multiple Clients in the Same Matter e. Former Clients Confidential Information Rule 1.9 Duty to a Former Client (a) a lawyer who has formerly represented a client in a matter shall not thereafter represent antoehr person in the same or a substantially related matter in which the persons interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing (b) A lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm which lawyer formerly was associated had previously represented client 1. whose interests are materially adverse and 2. about whom the lawyer acquired information prohibited by 1.6 or 1.9(c) (c) A lawyer who has formerly represented a client in a matter or whose former firm has formerly represented a client shall not therafter:

1. Use information relating to the representation to disadvantaget 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. Say this in State Farm Mutual Auto Ins. v. KAW where the family previously represented by a firm for auto accident. Then said that Dad was negligent. State farm wanted to disqualify because said that he had information about the dad. Court said yes even though dad allowed. Idea have interests on both sides of the v. Purpose of 1.9 is two fold both in the free flow of information and development of trust. Second purpose is fairness in adversarial system which cant have. Haagen Daaz case also here had Haagen Daz as a former client of one of the atty in firm. Concern about representing law suit in the same or substantially related matter. No need to show that actually had info just that needs to be a possibility. Presumption of this because too difficult to prove this information. Would have to reveal confidential information in order to prove this. Gray Plant as a firm was disqualified under rule 1.10 with firm imputation. Substantially related because both cases were dealing with distribution of the ice cream. Could have screened out the lawyer in some jurisdictions, but not allowed in the rules. Problem example: re points Rule 1.10 Imputation of Conflicts of Interest: General Rule (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 by 1.7 or 1.9 unless the conflict is based on personal reasons and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited thereafter from representing a person with interests materially adverse to those of a client represented by the lawyer formlerly associated and not currently represented by the firm unless: i. the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and ii. anylawyer in the firm has information protected by 1.6 and 1.9 (c) that is material to this matter. (c) A disqualification may be waived by the affected client under conditions of 1.7. (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11 Comments: Principles of Imputed Disqualification 2. Principle of loyalty 3. Does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not work on a case b/c of strong political views will not materially limit representation by the firm. 4. Doesnt prohibit because of involvement by a non lawyer. 6. Removes imputation with the informed consent of the affected client or former client under conditions of 1.7. Require that the lawyer determine that the representation is not prohibited by 1.7b and that each affected client has given informed consent to the representation confirmed in writing.

Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees (this rule comes up a lot in multiple choice: key language is the personally and substantially participated.) (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of government (this is going to be like prosecutor, D.A. etc. (1) is subject to 1.9(c)

(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate government agency gives its informed consent confirmed in writing to representation. (b) When a lawyer is disqualified from representation under a, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation unless (1) the disqualified lawyer is timely screened from any participation in the matter and apportioned no part of the fee thereform AND (2) written notice is promptly given to the appropriate agency to enable it to ascertain compliance with provision. (c) Except as law may otherwise permit, lawyer having info that lawyer knows is confidential gov info about a person acquired when lawyer was public officer or employee may not represent a private client whose interests are adverse in a matter in which info could be used to material disadvantage of that person. As used the term confidential gov information means that it has been obtained under gov authority and gov is prohibited by law from disclosing to the public or has a legal privilege not to disclose which is not otherwise available to public. A firm with which lawyer associated may undertake or continue only if disqualified lawyer is timely screened from any participation in matter and apportioned no fee. (d) Except as law may otherwise permit, a lawyer currently serving as public officer i. Is subject to 1.7 and 1.9 ii. Shall not 1. participate in a matter in which the lawyer participated personally and substantially while in private prac or nongov unless informed consent by gov agency 2. negotiate for private employment with any person involved as a party or lawyer for party in which lawyer participating personally and substantially except serving as law clerk. Comment 3 a2 and d2 apply regardless whether the person is adverse to the client. For example a lawyer who has pursued a claim on behalf of governement for a client may not pursue the same claim on behalf of a later private client. Same with reverse. 4 Represents balancing of interests. No unfair advantage but dont want to prohibit lawyers from going from private to government or vice versa. *See in this rule reference to screening, dont see this in most situations with model rules, see importance of having government lawyers be able to move back and forth.

Rule 1.12 Former Judge, Arbitrator Mediator or Other Third Party Neutral a. Except as stated in (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (look not only at the personally aspect of this rule, but whether they were substantially involved as well. Law clerk in class problem where we would need to see whether they were participating personally and substantially and could not then work on anything that falls into this category) (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally or substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participant personally and substantially but only after lawyer has notified the judge or other adjudicative officer.

(c) If a lawyer is disqualified by paragraph (a) no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee thereform and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this rule. (d) an arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited form representing that party. Comment Personally and substantially signified that judge that was member of multimember court and thereafter left to practice is not prohibited from representing a client in a matter pending in the court but in which the judge did not participate. Rule 6.3 Membership in Legal Services Organization A lawyer may serve as a director, officer or member of a legal services organization apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision or action would be incompatible with 1.7 (b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to client of lawyer. Former Judges and Government Employees XIV. CH 13 LAWYERS IN LAW FIRMS AND SPECIALIZED PRACTICE AREAS (1.0, 1.10, 1.17, 2.3, 5.1-5.7) a. General Dynamics case: Fired atty. Said that they could do this because it was an at will employment so there should be no conflict. However, the Court was concerned here the an attorneys professional responsibilities would be compromised. i. Different situation then with a private client. You livelihood is dependent on this company. Competing interests of wanting to make money and needing to follow the ethical guidelines. ii. Court finds that can fire atty. at any time, but cant fire without consequences-need to pay equitable fee so that dont abuse the process. Atty can sue also for torts for retaliatory action. See above for 1.10 Rule 1.17 Sale of Law Practice A lawyer or law firm may sell or purchase a law practice or an area of law, including good will if the following conditions are satisfied. (a) the seller ceases to engage in private practice of law, or in the area that practice (geographic and jurisdiction) (b) the entire practice or area is sold to one or more lawyers or firm (c)The seller gives written notice to each of the sellers clients regarding i. the proposed sale ii. the clients right to retain other counsel or to take possession of the file and iii. the fact that the client consent to the transfer of the client or files will be presumed if the client does not take action or does not object within 90 days of the receipt of the notice. If a client cannot be given notice, the representation of that client may be transferred to purchaser only upon entyr of an order so authorizing by a court having jurisdiction. The seller may disclose to the coutrt in camera information relating to the representation only to the extent necessary to obtain an authorzization of transfer.

(d) the fee charged to clients shall not be increased by reason of sale.

Comment 1 pracitce of law is a profession not merely a business and clients are not commodities that can be purchased at sold at will. 4. permit from retirement and in some jurisdictions so big that the state will allow the lawyer to sell if changing jurisdictions. 6. Sale of entire practice: reasoning that protects clients interests that are less lucrative from being sold off. 8. Lawyer ceasing to practice cannot be required to remain in practice because some clients cannot be given actual notice of the proposed purchase. In class: when you are leaving a firm, you need to communicate with your clients and inform them that you are leaving. It will be a client decision as to whether they will follow you to your new firm. You have an ongoing duty under 1.16 to protect your clients interests even if no longer representing them. Rule 2.3 Evaluation for Use by Third Persons (a) a lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client IF the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyers relationship with the client (e.g. evaluation of financials for a loan from a bank) (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the clients interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6 Comments 1. ex: concerning title of property rendered at behest of the vendor for the information of prospective purchaser or some situations required by government agency 2. When the evaluation is intended for use by third party, a legal duty to that party may or may not arisescope beyond the rule. In Class problem: why providing an evaluation the atty needs to be aware of how the evaluation may possibly effect the client and whether or not it would be materially adverse to him. Rule 2.4 Lawyer Serving as a Third-Party Neutral (a) A lawyer serves as a third party neutral when the lawyer assists two or moer persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third prty neutral may include services as arbitrator, mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. (b) A lawyer serving as a third party neutral shall inform unrepresented partie s that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyers role in the matter, the lawyer shall explain the difference between the lawyers role as a third party neutral and a lawyers role as one who represents a client. Comments: after the mediation, the mediator is not going to be able to serve as an attorney for either of these clients. Rule 5.1 Responsibilities of Partners, Managers and Supervisory Lawyers (a) A partner in a law firm and a lawyer who individually or togeterh with other lawyers possess comparable managerial authrority in a law firm, shall make reaonsonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers conform to Rules (b) A lawyer having direct supervisory authority ofver another lawyer shall make reasonable efforts to ensure that the other lawyer conforms iwith rules. (c) A lawyer shall be responsible for another lawyers violation of Rules if i. The lawyer orders or with knowledge of specific conduct ratifies the condut or

ii. The lawyer is a partner or has comparable managerial authority or direct supervisory authority and knows of the conduct at a time when the consequences can be avoided or mitigated.

Rule 5.2 Responsibilities of a Subordinate lawyer (a) A alweyr is bound by the rules of conduct notwithstanding that the layer has acted at the direction of another person. (b) A subordinate lawyer does not vioalate the rules if that lawyer acts in accordance with a supervisory lawyers reasonable resolution of an arguable question of professional duty. Rule 5.3 (see ch. 6) Rule 5.4 (see ch. 6)

Rule 5.5 (see ch. 2 and 6) Rule 5.6 Restrictions on Right to Practice A lawyer shall not participate in offering or making (a) a partnership, shareholders, operating, employment or other agreement that restricts the right of a lawyer to practice after termination of the relationship except an agreement concerning benefits upon retiring (like couldnt make a settlement offer and say that the lawyer couldnt work further with the case) (b) an agreement in which a restriction on the lawyers right to practice is part of the settlement of a client controversy. Couldnt have a no competition clause in your partnership agreement. Couldnt also have a settlement even if the atty was convicted of malpractice where the atty agrees not to practice for a specified time period.

Rule 5.7 Responsibilities Regarding Law Related Services (a) a lawyer shall be subject to the Rules with respect to the provision if law related services in b if the law related services are provided 1. by the lawyer in circumstances that are not distinct from the lawyers provision of legal services to clients or 2. in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law related services knows that the services are not legal services and that the protections of the client lawyer relationship do not exist. (b)the term law related services denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a non lawyer. XV. Ch 14 Judicial Conduct (ABA Model Rules of Judicial Conduct, 1.12, 3.5, 8.3, 8.4(f)

Rule 1.12 (see ch. 11) Rule 3.5 Impartiality and Decorum in Tribunal A lawyer shall not (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law. (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law aor court order.

(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 of a desire not to communicate or (3) communication involves misrepresentation, coercion, duress or harassment. Rule 8.3 Reporting Professional Misconduct (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial (see the use of this because would have serious problems if a lawyer is going to report every infraction) question as to the judge's fitness for office shall inform the appropriate authority. (so like if a judge is running for office, under 8.3 you are going to be obligated to report misconduct that you both know about and raise substantial question as to the judges fitness. [1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense. [2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests. [3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct. Rule 8.4 f It is professional misconduct to: (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.