Ethics Rules OUTLINE

TERMINOLOGY
1.0(a) Belief – denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from the circumstances 1.0(b) Confirmed in Writing – when used in reference to the “informed consent” of a person, denotes “informed consent” that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.  [Adv. Cmte. 1] If it is not feasible to obtain or transmit the writing at the
time the person gives informed consent, then the L must obtain or transmit it within a reasonable time thereafter

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

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

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

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

 

1.0(f) Knowingly or Known or Knows – denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances 1.0(g) Partner – denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law 1.0(h) Reasonable or Reasonably – when used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer 1.0(i) Reasonable Belief or Reasonably Believes – when used in reference to a lawyer, denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable 1.0(j) Reasonably Should Know – when used in reference to a lawyer, denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question 1.0(k) Screened – denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law  [Adv. Cmte. 8] Applies to situations where screening of a personally
disqualified L is PERMITTED to remove imposition of a conflict of interest under Rules 1.10, 1.11, 1.12, or 1.18  [Adv. Cmte. 9] The purpose is to assure the affected parties that confidential information known by the personally disqualified L remains protected. o Additional screening measures may be appropriate to implement, reinforce, and remind all affected lawyers of the presence of the screening o [Adv. Cmte. 10] Screening measures must be implemented asap

1.0(l) Substantial – when used in reference to degree or extent, denotes a material matter of clear and weighty importance 1.0(m) Tribunal – denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A 2|Page

Ethics Rules OUTLINE

legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter. 1.0(n) Writing or Written – denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A “signed” writing includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

COMPETENCE & DILIGENCE
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation REASONABLY necessary for the representation. As to “Legal Knowledge” and “Skill”…
[Adv. Cmte. 1] To determine competence, Relevant Factors Include:  The relative complexity and specialized nature of the matter,  The L’s general experience,  The L’s training and experience in the field in question,  The preparation and study the lawyer is able to give the matter, and  Whether it is feasible to refer the matter to, or associate or consult with, a L of established competence in the field in question The relevant competence is that of a general practitioner, although expertise in a particular field may be required in some circumstances. [Adv. Cmte. 2] A L need not necessarily have special training or prior experience.  Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve. [Adv. Cmte. 3]In an emergency, a L may render such advice reasonably necessary under the circumstances in a matter in which the L does not have the skill ordinarily required where referral to or consultation with another L would be impractical.

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

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

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Rule 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
[Adv. Cmte. 1] A L should pursue a matter on behalf of a C despite opposition, obstruction, or personal inconvenience to the L, AND take whatever lawful ethical measures are required to vindicate a C’s cause.  A L must also act with commitment and dedication to the interests of the C and with ZEAL in advocacy upon the C’s behalf.  But, a L may exercise professional discretion in determining the MEANS by which a matter should be pursued [Adv. Cmte. 3] The worst professional shortcoming is procrastination, esp. w/SOL. Unreasonable delay can cause a C needless anxiety and undermine confidence in the L’s trustworthiness. [Adv. Cmte. 4] Unless the relationship is terminated under 1.16, a L should carry through to conclusion all matters undertaken for a C. [Adv. Cmte 5] In the instance of a L’s death, each sole practitioner should prepare a plan that designates another competent L to pursue the interests of his clients. If no plan, then ABA Rule 28 provides for court appointment of a L to take protective action.

DIVISION OF AUTHORITY
Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the OBJETIVES of representation and, as required by Rule 1.4, shall consult with the client as to the MEANS by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. As to Allocation of Authority between Client and Lawyer…
[Adv. Cmte. 1] confers upon the C the ultimate authority to determine the purposes to be served by the legal representation, within the limits imposed by law and the L’s professional obligations.  With respect to the MEANS by which the C’s objectives are to be pursued, the L shall consult with the C as required by Rule 1.4(a)(2). [Adv. Cmte. 2] When L and C disagree to the means to serve the C’s objective, clients should DEFER to the specialized knowledge of the L with respect to technical,

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

 In practice, the distinction between objectives and means is difficult to draw. Freedman says the client should be able to direct objectives and means. His opponents are paternalistic lawyers. He believes in maximizing client autonomy: respect the client as a moral agent.  Restatement says you have the duty to follow the client’s opinion if he has one. (b) A lawyer's representation of a client, including representation by appointment, does NOT constitute an endorsement of the client's political, economic, social or moral views or activities. As to Independence from Client’s Views or Activities…
[Adv. Cmte. 5] Legal counsel shall not be denied to any person, regardless of his views

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

Rule 1.4 Communication
[Adv. Cmte. 1] Reasonable communication between the L and the C is necessary for the C effectively to participate in the representation.

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Ethics Rules OUTLINE

(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;
[Adv. Cmte. 2] If a particular decision regarding representation must be made by the C, Rule 1.4(a)(1) requires that the L promptly consult with and secure the C’s consent prior to taking action unless prior discussions have previously resolved the matter.

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

(3) keep the client reasonably informed about the status of the matter; [Adv. Cmte. 3] such as significant developments affecting the timing or the substance of the representation. (4) promptly comply with reasonable requests for information; [Adv. Cmte. 4] such as promptly returning phone calls and regularly communicating with clients to minimize the occasions on which a client will need to request information (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. As to Explaining Matters…
[Adv. Cmte. 5] Adequacy of communication depends in part on the kind of advice or assistance that is involved.  For example, in proposals made in negotiation, the L should review all important provisions with the C before proceeding to agreement  For example, in litigation a L should explain the general strategy and prospects of success and ordinarily should consult the C on tacts.  NOTE: In certain circumstances, such as when a L asks a C to consent to a representation affected by a conflict of interest, the C must give informed consent, as defined in Rule 1.0(e) [Adv. Cmte. 6] Sometimes, fully informing the C to this standard is impracticable…  As to children/retards, See Rule 1.14  As to a C that is a grp./org., it is impossible to inform every member, See

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

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

Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
[Adv. Cmte. 1] A C is entitled to straightforward advice expressing the L’s honest assessment, even though C is disinclined to hear it.  [Adv. Cmte. 2] Pure, technical legal advice may be inadequate – it is proper to refer to relevant moral and ethical considerations as well.  [Adv. Cmte. 4] Certain matters that go beyond strictly legal Qs may also be in the domain of another profession such as clinical psychology or social work, for example. [Adv. Cmte. 5] A L is NOT expected to give advice until ASKED by the client.  However, when a L knows that a C proposes a course of action likely to result in adverse legal consequences, the L’s duty under Rule 1.4 may require that the L offer advice if that course of action is related to the representation  However, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the C of forms of dispute resolution as reasonable alternatives  Owe it to your client to raise issues beyond the simple legality of what you are doing. But can’t rob him of his ability to ultimately make the decision.

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

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Ethics Rules OUTLINE

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

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

 This is discretionary: because level of competition is high & level of loyalty of businesses to firms is low, firms have the incentive to interpret legal obligations in a way that favors the client. It remains to be seen whether a discretionary provision will really change the behavior of American lawyers. (1) to prevent reasonably certain death or substantial bodily harm;
[Adv. Cmte. 6] Rule 1.6(b)(1) recognizes the overriding value of life and physical integrity. Such harm must be suffered imminently or be a present and substantial

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Ethics Rules OUTLINE threat.  Ex. A L who knows his C accidently discharged toxic waste into a town’s water supply may reveal this info to the authorities.

 There have been some calls for a wrongful conviction exemption to the duty of confidentiality. But as the Rule stands, this would not allow the lawyer to break his duty. Rule has been amended so as to not require the trigger of a criminal “act” by the client. Ex: Logan case, client admitted he had done the shooting and described what it was that he had done, a reliable description. But he feared he would lose his plea deal if he confessed, so he forbade his lawyers from revealing it until he died. Another man was then convicted falsely and sentenced to life in prison. Served 26 years before the silence ended after the lawyer’s client died. They argued they were duty-bound to protect their client’s confidentiality. They put their perception of their obligations to their client ahead of the falsely convicted man. The client was not committing a crime or fraud by not saying anything. Ex: Spaulding case: Plaintiff sustained an aneurism in car accident. Defendant’s doctor discovered the aneurism, and said the plaintiff could die instantly. The defendant’s lawyers did not tell the plaintiff, and settlement was reached without including the condition.  After the condition was discovered, the case ends up in the Supreme Court This was a minor, and both sides had the obligation to inform the court of all information in their hands. The result the court reaches turns on this peculiar fact.  Not only did they remain silent, they did not bring the issue to their client. They were paid by the insurance company, not the driver. The Rules say: the effect of decision on third parties is normally for the client. The autonomy of the client to make the decision was not respected. The lawyer concluded that his client would want to follow the narrowest and most self-regarding course of action. Did not give client the opportunity to decide. Also a conflict because fees being paid by the insurance co.  Under rules? Revealing was discretionary under the Model Code, and there was no future act being committed that revealing the information would prevent. Under the IL rule, could not reveal except if necessary to keep the client from committing an ACT that would result in death or serious bodily harm. Again, there was no act being committed in either case. Model Rule in 2001: only if client is committing a criminal act that will likely result in imminent death or substantial bodily harm.--> Lawyers in Spaulding could not have decided to reveal this at all. (Don’t have to reveal) Model Rule in 2008: No mandatory provisions! A lawyer MAY reveal info  to prevent reasonably certain death or substantial bodily harm. (Could reveal, but don’t have to)  Doing away with the confidentiality requirements might, as Freedman points out, make clients less willing to confide in their attorneys. This is necessary to have a fair trial. But policy considerations may require the privilege/confidentiality to be violated in certain circumstances. The duty is not absolute—indeed, it varies from state to state.  One proposed solution is to prevent lawyers from revealing information because of the importance of confidentiality, but to expect that in some circumstances the lawyers will find it necessary to violate confidentiality and break the Rules. This may not work well, however, because lawyers may not want to have so much discretion on such a difficult 9|Page

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issue. Their clients may not want them to come forward, and having a mandatory Rule would make it much easier for them to do so against their clients’ wishes. Moreover, if we really believe that this is appropriate behavior, it should not be discretionary. (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
[Adv. Cmte. 7] Such a serious abuse of the L-C relationship by the C forfeits the protection of Rule 1.6. See Rule 1.16 w/respect to a L’s right/obligation to withdraw and Rule 1.13(c) w/respect to a L’s permission to reveal info relating to a corp.’s fraud.

 Includes future crimes (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
[Adv. Cmte. 8] Rule 1.6(b)(3) addresses the situation where the L does not learn of the C’s crime/fraud until AFTER it has been consummated, whereby the loss suffered by the affected person may be prevented, rectified, or mitigated.  Does NOT apply when the C thereafter employs a L for representation for that crime.

 Includes crimes committed in the past.  Freedman does not like this element. He objects to the release of information to mitigate or rectify a past injury/fraud. The general thrust of ethical rules has been to impose the highest protection with respect to events in the past which the lawyer then learns of later. Past crimes, frauds, the client brings to the lawyer—have traditionally been most protected under the rules. This provision would allow for the revelation of completed frauds whose effects are continuing (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
[Adv. Cmte. 10] Where a legal/disciplinary charge alleges misconduct in the L’s complicity in the C’s crime/fraud, the L MAY disclosure certain info essential to his defense.  The L does not have to await commencement of an action that charges such complicity, so that the defense may be established by responding directly to a 3rd party.  “Allegations” must be formal charges, not just criticisms.

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

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

Rule 1.9 Duties To Former Clients
(c) A lawyer who has FORMERLY represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
[Adv. Cmte. 8] However, the fact that a L has once served a C does NOT preclude the L from using generally known info about that C when later rep’ing another C [Adv. Cmte. 9] These provisions may be WAIVED if the C gives informed consent, confirmed in writing.

Rule 1.13 Organization As Client
[Adv. Cmte. 1] An org. C is a legal entity, but it cannot act except thru its officers, directors, employees, shareholders, and other constituents.  NOTE: This section applies equally to “unincorp. Associations”

(a) A lawyer employed or retained by an organization represents the organization...
[Adv. Cmte. 2] When one of the constituents of an org. C communicates with the org.’s L in that person’s org. capacity, the communication is protected by Rule 1.6.

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

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

 lawyer required to go up the ladder. Thus, have to reveal information from one employee to the higher-ups. Corporate lawyers see this as demanding because it interferes with the way business is done within corporations. Puts them in a tough spot with respect to corporate execs, who may decide whether to retain the lawyer. (c) Except as provided in paragraph (d), IF 12 | P a g e

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(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.  The exception permits revealing information outside the corporation. A lawyer may reveal information related to the representation, but only to the extent necessary to prevent substantial injury to the organization.  Freedman says this won’t happen. He complains that the actions triggered by 1.13 are triggered only when the revelation is in the interest of the corporation, not third parties. The obligations under 1.6 apply regardless of whether in the interest of the client. But he is wrong, because Rule 1.13 supplement’s the lawyer’s responsibility under 1.6, providing the lawyer for a corporation with an additional basis to reveal information that he would not have been permitted to reveal under 1.6. o Who might you report a violation to? SEC? Justice Department? (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization … against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been DISCHARGED because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who WITHDRAWS under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. (f) In dealing with an organization's … constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. As to Relation to Other Rules…
[Adv. Cmte. 6] The authority of Rule 1.13 is concurrent with other Rules  This rules does not limit/expand the L’s responsibility under Rules 1.6, 1.8, 1.16, 3.3, or 4.1  Rule 1.13(c) SUPPLEMENTS Rule 1.6(b) by providing an additional basis upon which the L may reveal info relating to rep.  If the L’s services are being used by an org. to further a crime/fraud  Rule 1.2(d) may also be applicable, in which event withdrawal under Rule

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Ethics Rules OUTLINE 1.16(a)(1) may be required.  [Adv. Cmte. 14] In DERIVATIVE actions, where a conflict may arise between the L’s duty to the org. and the L’s relationship w/the Bd., Rule 1.7 governs who should rep. the Dirs. And the org.

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

 KONIAK—see Freedman doc.

DUTY OF CANDOR TOWARD TRIBUNAL
 These rules are mandatory, but qualified by the requirement of ACTUAL knowledge.

Rule 1.2 Scope of Representation and Allocation of Authority
(d) A lawyer shall NOT counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
[Adv. Cmte. 9] If a C uses the advice of the L in a course of action that is criminal or fraudulent, it does NOT make the L a party to that course of action. [Adv. Cmte. 10] BUT, when the C’s course has ALREADY begun, the L is to AVOID assisting the C; and the L may NOT provide advice in assistance – therefore withdraw under Rule 1.16(a). [Adv. Cmte. 11] Where the C is a fiduciary, the L may be charged with special obligations in dealings with a beneficiary. [Adv. Cmte. 13] If a L comes to KNOW or reasonably SHOULD know that a C expects assistance NOT permitted by the Rules or by law, the L must consult with the C regarding limitations on the L’s conduct.

 Not very clear what the line is between counseling or assisting fraud and explaining the legal consequences of a course of conduct. Explaining is not necessarily assisting, but if the lawyer knows the likely use of the information, he can be considered to have assisted the conduct. Knowledge may be inferred from the circumstances.  On the other hand, the standard for knowledge is fairly high, and the lawyer may be entitled to give his client the benefit of the doubt. Moreover, explaining the scope and application of the law may deter the client from committing criminal or fraudulent acts. 14 | P a g e

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Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall NOT knowingly: (1) make a false statement of fact to a tribunal OR fail to correct a false statement of material fact or law previously made to a tribunal
[Adv. Cmte. 1] Applies to ancillary proceedings, trial, AND adjudicative authority (such as depositions) [Adv. Cmte. 3] An advocate is responsible for the pleadings, but is NOT required to have personal knowledge of matters asserted therein  Compare to 3.1, An assertion purporting to be on the L’s own knowledge may properly be made only when the L knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.  There ARE circumstances where failure to make a disclosure = affirmative misrepresentation. The obligation in 1.2(d) not to counsel a client to commit/assist fraud applies.

(2) fail to disclose legal authority known to be adverse to your client
[Adv. Cmte. 4] A L must recognize the existence of pertinent legal authorities; underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case

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

 Standard = ACTUAL Knowledge: just because a witness contradicts himself does not indicate perjury or trigger the obligation to reveal confidential information.  A lawyer is given discretion by this rule to decline to present evidence when she does not “KNOW” that it is false. This permits her to disregard a client’s preference for offering 15 | P a g e

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such evidence without violating the advocacy duty owed the client. (b) A lawyer representing a client, who KNOWS that the client intends to engage, is engaging OR has engaged in criminal/fraudulent conduct related to the proceeding SHALL take reasonable remedial measures, inc’l disclosure to the tribunal (if necessary)
[Adv. Cmte. 7] These duties apply to ALL Ls, inc’l defense counsel in crim cases. [Adv. Cmte. 10] If the L subsequently comes to know certain evidence is false OR is surprised by certain testimony at trial, and KNOWS such evidence is false  proper course is to remonstrate w/C confidentially, advise the C of the L’s duty of candor, and seek the C’s cooperation with respect to the withdrawal or correction of the false evidence  L must reveal the information, even if protected by Rule 1.6  it is up to the tribunal to determine what should be done  [Adv. Cmte. 15] If the L’s compliance with these rules causes such strain on the L-C relationship that it becomes ineffective, the L may WITHDRAW under Rule 1.16

 When a client intends to commit perjury, the lawyer’s option are to try to dissuade the client; to request the court’s permission to withdraw (UNLIKELY to be granted during or on the eve of trial because of the inevitable delay that will result and the likelihood that the same scenario will unfold should another lawyer represent the client  Other options have been criticized: o Narrative form of testimony (which signals to the judge that the client is committing perjury) o Refusing to call the client (which threatens the interests of the client).  What is a reasonable remedial measure is the subject of much debate. o Some argue, like Freedman, that the DUTY a lawyer owes the CLIENT should prevent the lawyer from revealing the perjury. o Others argue that the DUTY a lawyer owes to the COURT supersedes the duty to the client and that lawyers do not owe clients a duty to help them perpetuate fraud on the court. The lawyer should not be a knowing accomplice to perjury. o Current case law does NOT resolve the dispute  BUT, Rule 3.3 would require remedial measures to be taken, and these explicitly include disclosure. • This apparently applies even in the criminal context.  In Nix v. Whiteside, the lawyer’s refusal to offer perjured testimony satisfied the Sixth Amendment’s “reasonably effective” standard. (c) The duties of (a) & (b) continue throughout the proceeding AND apply even if compliance requires disclosure of info otherwise protected by 1.6
[Adv. Cmte. 12] The L has special obligations to protect the tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process. [Adv. Cmte. 13] As far as time limit: The conclusion of the proceeding is a reasonably definite point for the termination of the obligation.

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

(d) In an ex parte proceeding, the lawyer shall inform the tribunal of ALL material facts KNOWN to the lawyer that will enable the tribunal to make an informed decision, whether or NOT the facts are adverse
[Adv. Cmte. 14] The judge has an affirmative responsibility to accord the absent party just consideration (ex. application for a temp. restraining order). The L for the represented party has the correlative duty to make disclosures of material facts known to the L and that the L reasonably believes are necessary to an informed decision. As to Withdrawal… [Adv. Cmte. 15] Normally, a L’s compliance with the duty of candor imposed by this Rule does not require that the L withdraw from the representation of a C whose interests will be or have been adversely affected by the L’s disclosure, unless such disclosure so deteriorates the L-C relationship that the L seeks permission from the tribunal to withdraw under Rule 1.16(a)(b)

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

Rule 3.4 Fairness To Opposing Party And Counsel
A Lawyer Shall NOT:
(a) unlawfully obstruct another party’s ACCESS to evidence or unlawfully alter,

destroy, or conceal a document or other material having a potential evidentiary value. (A lawyer shall not counsel/assist another person to do any such act).
[Adv. Cmte. 1] Fair competition n the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, etc… [Adv. Cmte. 2] Applies to evidentiary material generally.

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(b) falsify evidence or counsel/assist/induce another to testify falsely
[Adv. Cmte. 3] It is NOT improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law, BUT most states make it IMPROPER to pay an occurrence witness and IMPROPER to pay an expert a contingent fee.

(c) KNOWINGLY disobey an obligation, except for an open refusal based on an assertion that no valid obligation exists (d) make a frivolous discovery request OR fail to make a reasonably diligent effort to comply with a legally proper discovery request (e) allude to any matter that the lawyer does not REASONABLY BELIEVE is relevant or that will not be supported by admissible evidence, ASSERT personal knowledge (unless testifying), or STATE personal opinion as to justness of a cause, credibility of a witness, culpability of a litigant or guilt of an accused.  no personal opinions, matters outside the record. (f) REQUEST a person, other than a client, to refrain from voluntarily giving relevant information to another party unless: o (1) the person is a relative, employee, or agent of the client o (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such info

Rule 4.1 Truthfulness In Statements To Others
In the course of representing a client a lawyer shall NOT knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
[Adv. Cmte. 1] A L is required to be truthful when dealing with others on his C’s behalf, but has NO affirmative duty to inform an opposing party of relevant facts.  A misrepresentation can occur if the L incorporates/affirms a statement of another person that the L KNOWS is FALSE  A misrepresentation can also occur by partially true, but MISLEADING statements OR omissions that are equivalent of affirmative false statements. [Adv. Cmte. 2] Whether a statement = a statement of fact depends on the circumstances.  Certain statements in negotiation are ordinarily NOT statements of material fact  such as: o estimates of price/value placed on the subject of a transaction; o parties’ intentions as to an acceptable settlement/claim o existence of an undisclosed principal (except where non-disclosure of

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

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

COMMUNICATION WITH REPRESENTED & UNREPRESENTED PERSONS
Rule 4.2 Communication With Person Represented By Counsel
In representing a client, a lawyer shall NOT communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, UNLESS the lawyer has the CONSENT of the other lawyer or is AUTHORIZED to do so by law or a court order.
[Adv. Cmte. 1] This rule protects a person who has chosen to be rep.ed by a L against possible overreaching by other Ls participating in the matter.  [Adv. Cmte. 2] Applies to communications with ANY person who is rep.ed by counsel concerning the matter to which the communication relates o [Adv. Cmte. 4] A L may NOT make a comm.. prohibited by Rule 4.2 through the acts of another either. See Rule 8.4(a)! o [Adv. Cmte. 8] L must have ACTUAL KNOWLEDGE that the person is rep.ed, and such knowledge MAY be inferred from the circumstances.  [Adv. Cmte. 3] Applies EVEN THOUGH the rep.ed person initiates or consents to the communication. Once a L knows the person is represented, he must terminate comm.  [Adv. Cmte. 4] Rule 4.2 does NOT prohibit communication with a rep.ed perso, OR employee or agent of that person, concerning matters OUTSIDE the rep. o NOR does Rule 4.2 preclude communication with a rep.ed person who is seeking advice from a L who is NOT otherwise rep.ing a C in the matter o NOTE: Parties MAY communicate with each other, and a L MAY advise

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

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

Rule 4.3 Dealing With Unrepresented Person
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall NOT state or imply that the lawyer is disinterested. When the lawyer KNOWS or reasonably SHOULD KNOW that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall NOT give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer KNOWS or reasonably SHOULD KNOW that the interests of such a person are or have a reasonable possibility of being in conflict with interests of the client.
[Adv. Cmte. 1] In order to avoid a misunderstanding, a L will need to identify his C and, where necessary, explain that the C has interests opposed to those of the unrep.ed person  For misunderstandings that arise when a L for an org. deals w/an unrep.ed

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Ethics Rules OUTLINE constituent, See Rule 1.13(d) [Adv. Cmte. 2] This rule does NOT prohibit a L from negotiating the terms of a transaction or settling a dispute with an unrep.ed person  So long as the L explains that the L represents an adverse party and is NOT rep.ing the person, the L may inform the person of the terms on which the L’s C will enter into an agreement or settle a matter, prepare docs that req. the person’s signature, and explain the L’s own view of the meaning of the doc or legal obligations.

 No general prohibition on interviewing unrepresented third party witnesses. Indeed, this is part of lawyer’s obligation.

Rule 1.18 Duties To Prospective Client
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
[Adv. Cmte. 2] NOT all persons who communicate info to a L are entitled to protection under Rule 1.18  One who communicates info unilaterally to L, without any reasonable expectation that L is willing to discuss the possibility of forming a L-C relationship is NOT a prospective C

(b) Even when NO client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall NOT use or reveal information learned in the consultation, EXCEPT as Rule 1.9 would permit with respect to information of a former client.
[Adv. Cmte. 1] L’s discussions with a prospective C usually are limited in time and depth and leave both the prospective C and the L free (and sometimes required) to proceed no further. [Adv. Cmte. 3] Rule 1.18(b) protects those communications during initial consultation that are necessary to determine whether a L-C relationship may be formed.  [Adv. Cmte. 4] L during an initial consultation should LIMIT such info so as to determine whether a conflict of interest exists. If a conflict exists, L should so inform the prospective C or decline the representation o If the prospective C wishes to retain the L, and if consent is possible under Rule 1.7, then consent from ALL affected present or former Cs must be obtained before rep.  [Adv. Cmte. 5] L may condition convos w/a prospective C on the person’s informed consent that NO information disclosed during the consultation will prohibit the L from representing a different C in the matter.

(c) A lawyer subject to paragraph (b) shall NOT represent a client with interests materially 21 | P a g e

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adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter EXCEPT as provided in paragraph (d). IF a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may KNOWINGLY undertake or continue representation in such a matter, EXCEPT as provided in paragraph (d).
[Adv. Cmte. 6] Even in the absence of an agreement, under Rule 1.18(c), L is NOT prohibited from representing a C with interests adverse to those of the prospective C in the same or a substantially related matter UNLESS the L has received from the prospective C info that could be significantly harmful if used in the matter.

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible IF: (1) Both the affected client and the prospective client have given informed consent, confirmed in writing, OR (2) The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying info than was reasonably necessary to determine whether to represent the prospective client; AND (i) The disqualified lawyer is timely screened from any participation in the matter and is apportioned NO part of the fee therefrom; AND (ii) Written notice is promptly given to the prospective client
[Adv. Cmte. 1] Under Rule 1.18(c), the prohibition is IMPUTED to other lawyers as provided in Rule 1.10, BUT under Rule 1.18(d)(1), imputation may be avoided IF L obtains the informed consent, confirmed in writing, of BOTH the prospective and affected Cs  Imputation may be avoided IF the conditions of Rule 1.18(d)(2) are met and ALL disqualified Ls are timely screened and written notice is promptly given to the prospective C  Rule 1.18(d)(2) does NOT prohibit the screened L from receiving a salary or partnership share [Adv. Cmte. 8] Notice, inc’l a gen. description of the subject matter about which L was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.  [Adv. Cmte. 9] For the duty of competence of L who gives assistance on the merits of a matter to a prospective C, See Rule 1.1.  For a lawyer’s duties when a prospective C entrusts valuables or papers to the L’s care, See Rule 1.15.

RESPECTING RIGHTS OF WITNESSES, OTHER
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PARTY, & IN COURT BEHAVIOR
Rule 4.4 Respect For Rights Of Third Persons
(a) In representing a client, a lawyer shall NOT use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
[Adv. Cmte. 1] Responsibility to a C requires a L to subordinate the interests of others to those of the C, but that responsibility does NOT imply that a lawyer may disregard the rights of 3rd persons.”

(b) A lawyer who receives a document relating to the representation of the lawyer's client and KNOWS or reasonably SHOULD KNOW that the document was inadvertently sent shall promptly notify the sender. [Adv. Cmte. 2] Rule 4.4(b) does NOT address whether:  L must take additional steps, such as returning the original document  Whether the priv. status of the document has been waived  The legal duties of a L who receives a doc that the lawyer knows or reasonably should know was wrongfully obtained by the sending party  CX-ing a witness to undermine their credibility DOES have a substantial purpose.  A “document” includes e-mail or other electronic comm..

Rule 3.3: Candor Toward Tribunal
See p.13 - 16, under “Duty Of Candor Toward The Tribunal

Rule 3.4 Fairness To Opposing Party And Counsel
See p.16 – 17, under “Duty Of Candor Toward The Tribunal”

Rule 3.5 Impartiality And Decorum Of The Tribunal
A lawyer shall NOT: (a) seek to influence a judge, juror… or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do; (c) communicate with a juror or prospective juror after discharge of the jury IF: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or 23 | P a g e

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

 Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. (no belligerence, theatrics, or assbagetry)

3.7 Lawyer as Witness
(a) A lawyer shall NOT act as advocate at a trial in which the lawyer is likely to be a necessary witness UNLESS: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer MAY act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. As to The Advocate-Witness Rule…
[Adv. Cmte. 1] Combining the roles of advocate and W can prejudice the tribunal and the opposing party AND can also involve a conflict of interest btw L and C. [Adv. Cmte. 2] The TRIBUNAL may object when the trier may be confused or misled. The opposing party may object where the combination of roles may prejudice the party’s rights.  [Adv. Cmte. 4] Rule 3.7(a)(3) recognizes that a balancing test is required btw the interests of the C and those of the tribunal and the opposing

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

As to Conflict of Interest…

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

Rule 5.2 Responsibilities Of A Subordinate Lawyer
(a) A lawyer is bound by the RoPC notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does NOT violate the RoPC if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
[Adv. Cmte. 1] Although a lawyer is NOT relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the RoPC  Ex. If a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would NOT be GUILTY unless he knew of the document’s frivolous character [Adv. Cmte. 2] When in a supervisor-subordinate relationship, the duo encounters an ethical professional judgment  supervisor assumes responsibility for making the judgment  If a Q can reasonably be answered only ONE way  BOTH lawyers are equally responsible for fulfilling it  If the Q is reasonably arguable  someone has to decide upon the course of action o Ex. If a Q arises whether the interests of 2 clients conflict under 1.7, the supervisor’s reasonable resolution of the Q should protect the subordinate professionally if the resolution is subsequently challenged

THREAT OF FRIVOLOUS LITIGATION
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Rule 3.1 Meritorious Claims And Contentions
A lawyer shall NOT bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
[Adv. Cmte. 1] The advocate has a DUTY to use legal procedure for the fullest benefit of the C’s cause, but also a DUTY not to abuse legal procedure. [Adv. Cmte. 2] The filing of an action or defense for a C is NOT frivolous merely bc the facts have nor been fully substantiated or bc the L expects to develop vital evidence via discovery  all that is required is sufficient info to make a good faith arg in support of C’s position  An action is NOT frivolous even tho the L thinks the C will not prevail  An action IS frivolous if the L is unable to make a good faith arg on the merits of the action taken

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

TERMINATING REPRESENTATION
Rule 1.16 Declining Or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the RoPC or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client;  for whatever reason 26 | P a g e

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(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (knowledge not required) (3) the client has used the lawyer's services to perpetrate a crime or fraud; (past) (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) OTHER good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.  The court may not give permission for the lawyer to withdraw. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
[Adv. Cmte. 1] Premise: A lawyer shall NOT accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. [Adv. Cmte. 2] A L ordinarily MUST decline OR withdraw from representation if the C demands that the L engage in conduct that is illegal or violates the RoPC or law.  L is NOT obliged to decline/withdraw simply bc the C suggests such a course of conduct [Adv. Cmte. 7] L has the OPTION to withdraw if:  It can be accomplished w/o material adverse effect on the C’s interests  C persists in a course of action that the L reasonably believes is criminal/fraudulent  L’s services were misused in the past, even if that would materially prejudice the client  C insists on taking action that L considers repugnant  [Adv. Cmte. 8] C refuses to abide by the terms of an agreement relating to

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

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

Rule 1.7 Conflict Of Interest: Current Clients
(a) A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; OR (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.  Even if the representation is not in the same matter, it is still a conflict. Based on a broad notion of loyalty. It is consentable, but unlikely they will consent.  Obligations to others might qualify the zeal of the representation.  Positional conflicts: Generally, there is no rule in trial courts, because the different matters probably won’t affect each other. But in the appellate or state supreme court, interests might be in conflict, and rules are more restrictive of those situations. May suggest a disloyalty to current client, and there is always a “tug” on your zeal, which might be tempered by your desire to please the other client. (b) Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may 28 | P a g e

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represent a client IF: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same … proceeding before a tribunal;  The client CANNOT waive this kind of conflict. (4) each affected client gives informed consent, confirmed in writing.
[Adv. Cmte. 1] Loyalty and independent judgment are essential elements in the L’s relationship to a C [Adv. Cmte. 2] Resolution of a conflict of interest problem under Rue 1.7 REQUIRES the L to:  (1) clearly identify the C or C(s)  (2) determine whether a conflict of interest exists  (3) decide whether the rep. may be under taken despite the conflict (is it consentable?)  (4) If so, consult with the Cs affected under Rule 1.7(a) and obtain informed consent, in writing [Adv. Cmte. 3] If a conflict arises BEFORE rep. is undertaken  representation MUST be DECLINED, unless L obtains informed consent of each C under Rule 1.7(b). [Adv. Cmte. 4] If a conflict arises AFTER rep. is undertaken  L ordinarily must WITHDRAW from rep., unless the L obtains informed consent of the C under Rule 1.7(b). [Adv. Cmte. 5] Unforeseeable developments, such as changes in corp. and other org. affiliations OR the addition/realignment of parties in litigation, might create conflicts in the midst of a representation. Depending on the circumstances, the L may have the option to withdraw from one of the representation in order to avoid the conflict.  Must take steps to notify the tribunal and minimize the harm under Rule 1.16  Must continue to protect the confidences of the C under Rule 1.9(c)

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

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

As to Identifying Conflicts of Interest: MATERIAL Limitation…

[Adv. Cmte. 8] Even where there is NO direct adverseness, a conflict of interest exists if there is a significant RISK that a L’s ability to consider, recommend or carry out an appropriate course of action for the C will be materially limited as a result of the L’s other responsibilities or interests  Critical Questions: o Likelihood that a difference in interests will eventuate? o If it does, whether it will materially interfere with the L’s professional judgment OR foreclose courses of action that reasonably should be pursued on behalf of the C As to Identifying Conflicts of Interest: PERSONAL Interest Conflicts… [Adv. Cmte. 10] The L’s own interests should not be permitted to have an adverse effect on rep. of C.  Examples include: o If the probity of the L’s own conduct in a transaction is in question o When a L has discussions concerning possible employment with an adverse party to C [Adv. Cmte. 11] When Ls rep.ing diff. Cs in the same/related matter are closely related by blood/marriage, there is a RISK that the C confidences will be revealed and that the L’s family relationship will interfere.  C is entitled to know of the existence and implications of the relationship btw the Ls before the L agrees to undertake rep.  must acquire informed consent  Disqualification due to familial relationship is NOT imputed to members of a firm! [Adv. Cmte. 12] L cannot have sex with Cs unless it predates the L-C relationship. See Rule 1.8(j) [Adv. Cmte. 13] L MAY be paid from a source OTHER than the C, IF the C is informed of that fact and consents and the arrangement does not compromise the L’s duty of loyalty. See Rule 1.8(f)

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

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

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

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

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

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

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

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

 The lawyer has to make the client understand the significance of the conflict. Freedman says that Rule 1.7(b) allows the client to consent to a limitation of the representation (refers to Rule 1.2(c)) if the client fully understands the implications of the conflict and 32 | P a g e

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

Rule 1.8 Conflict Of Interest: Current Clients: Specific Rules
(a) A lawyer shall NOT enter into a business transaction with a client OR knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client UNLESS: (1) the transaction and terms … are fair and reasonable … and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing.... As to Business Transactions between Client and Lawyer…
[Adv. Cmte. 1] The reqs. Of 1.8(a) must be met even when the transaction is NOT closely related to the subject matter of the rep.  Ex. When a L drafting a will for the C learns that the C needs money for unrelated expenses and offers to make a loan to the C  Ex. When L is engaged in the sale of goods/services related to the practice of law; See Rule 5.7  Ex. When L purchases property from estates they represent  BUT, it does NOT apply to ordinary fee arrangements btw C and L, which are governed by Rule 1.5 NOR does it apply to commercial transactions btw L and C for products/services that the C generally markets to others [Adv. Cmte. 2] When necessary, the L should discuss BOTH the material risks of the proposed transaction, any risk posed by the L’s involvement, and the existence

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

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

(c) A lawyer shall NOT solicit any substantial gift from a client…unless the lawyer or other recipient of the gift is related to the client.
[Adv. Cmte. 6] L MAY accept a gift from a C, IF the transaction meets general stds. Of fairness.  Ex. A simple gift such as a holiday present is permitted  [Adv. Cmte. 7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, the C should have the detached advice that another L can provide

(d) Prior to the conclusion of representation of a client, a lawyer shall NOT make or negotiate an agreement giving the lawyer literary or media rights … relating to the representation.
[Adv. Cmte. 9] Literary/media rights creates a CONFLICT of interest btw the interests of the C and the personal interests of the L.  L may rep. a C in a transaction concerning literary property from agreeing that the L’s fee shall consist of a share in ownership of that property, if in conformity with Rule 1.5

(e) A lawyer shall NOT provide financial assistance to a client in connection with pending or contemplated litigation, EXCEPT THAT: (1) a lawyer MAY advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and 34 | P a g e

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(2) a lawyer representing an indigent client MAY pay court costs and expenses of litigation. (f) A lawyer shall NOT accept compensation for representing a client from one other than the client UNLESS: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.
[Adv. Cmte. 11] Because 3rd party payers frequently have interests that differ from those of the C, Ls are prohibited from accepting/continuing such representations UNLESS the L determines that there will be no interference w/L’s independent professional judgment AND there is informed consent from C  See also Rule 5.4(c) (prohibiting interference w/L’s professional judgment by one who recommends, employs, or pays the L to render legal services for another) [Adv. Cmte. 12] If the fee arrangement creates a conflict of interest for the L, then the L must comply w/Rule 1.7 AND conform to the reqs. Of confidentiality under Rule 1.6.

 Insurance companies (interests may conflict with the insured, and lawyer may not zealously represent the insured) (g) A lawyer who represents two or more clients shall NOT participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent...
[Adv. Cmte. 13] Differences in willingness to make/accept an offer are RISKS of common rep., which should be discussed PRIOR to undertaking rep., BUT Rule 1.2(a) affords EACH C the final say in deciding whether to accept/reject an offer of settlement.  Before a settlement/plea is accepted on behalf of multiple Cs, the l must inform EACH about all the material terms of the settlement, inc’l what the other clients will receive/pay

(h) A lawyer shall NOT: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice UNLESS the client is independently represented in making the agreement; OR (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. 35 | P a g e

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

(i) A lawyer shall NOT acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, EXCEPT that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and (2) contract with a client for a reasonable contingent fee in a civil case.
[Adv. Cmte. 16] This rule is designed to avoid giving the L too great an interest in the rep.  Exceptions: Liens auth. By law to secure L’s fees

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

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

Rule 1.9 Duties To Former Clients
 concern that lawyer will misuse information against the former client’s interests. (a) A lawyer who has FORMALLY represented a client in a matter shall not thereafter represent 36 | P a g e

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

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
[Adv. Cmte. 4] There are several competing considerations:  First, the C prev. rep.ed by the former firm MUST be reasonably assured that the principle of loyalty to the C is NOT compromised  Second, Rule 1.9 should NOT be so broadly cast as to preclude other persons from having reasonable choice of legal counsel.  Third, Rule 1.9 should NOT unreasonably hamper Ls from forming new associations and taking on new Cs after having left a previous association [Adv. Cmte. 5] If a L, while with one firm acquired NO knowledge or info relating to a particular C of the firm, and that L later joined another firm, NEITHER the L individually NOR the 2nd firm is disqualified from rep.ing another C in the same or a related matter even though the interests of the 2 Cs conflict.  See Rule 1.10(b) for restrictions on a firm once the L has terminated association w/a firm [Adv. Cmte 6] Application of Rule 1.9(b) depends on PARTICULAR FACTS, aided by inferences about the way in which Ls work together (depending on level of

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 a lawyer who leaves the firm may act adversely even in a substantially related matter to a client of the former firm, so long as he did not learn any confidential information himself. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as Rules would permit or require.
[Adv. Cmte. 7] Independent of whichever firm, L has duty to preserve confidentiality of info about former Cs; See Rules 1.6 and 1.9(c). [Adv. Cmte. 8] The fact that L once served a C does NOT preclude the L from using generally known info about that C when later rep.ing another C. ***NOTE!!!!: [Adv. Cmte. 9] The provisions of Rule 1.9 can be WAIVED if C gives informed consent, confirmed in writing.  W/regard to effectiveness of advance waiver, See Rule 1.7 [cmt. 22]  W/regard to disqualification of a firm w/which L was formerly associated, See Rule 1.10

 CONSENT of the former client is sufficient to permit lawyer to accept the representation despite the conflict.  But there is no suggestion that the lawyer might have to obtain informed consent from the new client? Still need to think about whether there is a conflict with the lawyer’s own interests under 1.7. If lawyer wants to maintain good will of former client, there may still be a conflict.  Information that is generally known- can be used to former client’s disadvantage. But this means more than publicly available—must be of “considerable public notoriety” or have received “widespread publicity”  Significant relationship (between matters) and substantial role (of lawyer): There is no way a lawyer can prove she did not obtain client confidences. And the party that wants to protect its confidences should not be required to disclose them. Thus, it is presumed that the lawyer obtained confidences from the previous client. The former client does not have to assert what the confidences shared were, only describe the relationship between lawyer and client, and the court will infer the kinds of info that would have been available to the lawyer.  under Rule 1.13, a lawyer may represent both an organization and its officers, but if their interests diverge, the lawyer must withdraw from the representation.

Rule 1.10 Imputation Of Conflicts Of Interest: General Rule
 Partner is also disqualified, because they share equipment, profits, and conversations, 38 | P a g e

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and these cannot be policed. (a) While lawyers are associated in a firm, none of them shall KNOWINGLY represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, UNLESS: (1) The prohibition is based on a personal interest of the prohibited lawyer and does NOT present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm, OR
[Adv. Cmte. 2] Gives effect to the principle of loyalty to C as it applies to Ls who practice in a law firm.  A firm of Ls is essentially one L for purposes of the RoPC.  When a L moves from one firm to another, the situation is governed by Rules 1.9(b), 1.10(a)(2) and 1.10(b) [Adv. Cmte. 3] Does NOT prohibit rep. where neither Qs of C loyalty nor protection of confidential info are presented (such as political views, etc.). [Adv. Cmte. 4] Does NOT prohibit rep. by others in the law firm where the person is prohibited from involvement in a matter in a matter is a non-lawyer (paralegal, legal secretary).  Nor does it prohibit rep. if the L is prohibited from acting bc of events before the person became a L, for ex., work that the person did while a law student.  Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential info that both the non-lawyers and the firm have a legal duty to protect.

***Added in 2009… (2) The prohibition is based upon Rule 1.9(a), or (b), AND
[Adv. Cmte. 7] Rule 1.10(a)(2) REMOVES the imputation otherwise required by Rule 1.10(a) BUT does so WITHOUT requiring that there be informed consent by the former C. Instead, it requires that the procedures laid out in (i)(iii) be followed.

(i) The disqualified lawyer is timely screened from ANY participation in the matter and is apportioned NO part of the fee therefrom
[Adv. Cmte. 8] This does NOT prohibit the screened L from receiving a salary or partnership share est. by prior independent agreement, BUT that L may NOT receive compensation directly related to the matter in which the L is disqualified.

(ii) Written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; AND 39 | P a g e

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

(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client’s written request upon termination of the screening procedures.
[Adv. Cmte. 10] This section gives the former C assurance that the C’s material info has NOT been disclosed or used inappropriately.

(b) When a lawyer has terminated an association with a firm, the firm is NOT prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, UNLESS: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
[Adv. Cmte. 5] Applies REGARDLESS of when the formerly associated L rep.ed the C.

(c) A disqualification prescribed by this rule MAY be WAIVED by the affected client under the conditions stated in Rule 1.7.
[Adv. Cmte. 6] Removes imputation w/the informed consent of the affected C under Rule 1.7.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11(b)(c)(d).  Consent to conflicts of interest—Freedman sees this as compatible with a client-centered system. Question is whether the lawyer was able to obtain a voluntary and informed consent.  A conflict is unwaivable (as in the Louima case) if no defendant would knowingly desire that attorney’s representation, if he understood the risks of the conflict.  Grounds for court-ordered disqualification—eliminates counsel that might have an unfair advantage because of confidences gained from the moving party.  Disqualification: Court will take into account interests such as delay caused by granting the motion, wrongful conduct of the moving party, timing of the motion, and the nonmoving party’s interest in retaining the counsel of her choice. 40 | P a g e

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

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

Rule 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) experience, reputation, and ability of the lawyer performing the services; and (7) whether the fee is fixed or contingent. 41 | P a g e

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

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client…
[Adv. Cmte. 2] In a NEW C-L relationship, an understanding as to fees/expenses must be promptly established. It is desirable to furnish the C w/at least a memo stating the gen. nature of the legal services, the basis, the rate, the total expected amount, and to what extent the C will be responsible for any costs, expenses, or disbursements.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (Based on REASONABLENESS standard)
[Adv. Cmte. 4] L may require advance payment of a fee, BUT is obliged to return any unearned portion under Rule 1.16(d).  L may accept property, ownership in an enterprise, or other means as payment, SO LONG AS it does NOT involve acquisition of a proprietary interest in the cause of action under Rule 1.8(i) or in a transaction under Rule 1.8(a) [Adv. Cmte. 5] L should NOT enter into an agreement whereby services are to be provided ONLY up to a stated amount when further expenses are foreseeable. It is proper, rather, to define the extent of services in light of the C’s ability to pay.

 Fee agreement must resolve issue of whether fees are computed before or after expenses are determined.  Most criticism of contingency fees comes from the defendant’s bar and potential defendant in class actions, who argue that they stir up frivolous litigation. Thus, source of critique is not aligned with potential plaintiffs. In fact, its not clear that lawyers will want to take on frivolous cases with little chance of success. The benefit of such fees is that they allow access to attorneys for the poor and encourage the lawyer to work efficiently, since there is no point in racking up hours. But there may be an incentive to settle a case rather than spend the hours required to go to trial. (d) A lawyer shall not enter into an arrangement for, charge, or collect: 42 | P a g e

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(1) contingent fee upon the securing divorce, amount of alimony, or property settlement (2) a contingent fee for representing a defendant in a criminal case.  Conservative notion that lawyers will not be able to contain zeal in obtaining divorces if their financial rewards depend on it. Crim defense laywers will be tempted into impropriety in defense of their client. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.
[Adv. Cmte. 7] A division is a SINGLE billing to a C convering the fee of 2+ Ls who are NOT in the same firm (generally btw a referring L and a trial specialist). Ls MAY divide a fee either on the basis of the proportion of services rendered OR if each assumes responsibility for the whole. C must agree to the arrangement and the shares, signed, and in writing.

 Discourages the fee charged for forwarding clients; okay to share fees with former partners and members of the same firm, but rarely with nonlawyers.

Rule 1.15 Safekeeping Property
 One of the most common grounds for lawyer discipline. No intent required. (a) A lawyer shall hold property … separate from the lawyer's own property. Funds shall be kept in a separate account …
[Adv. Cmte. 1] L is a professional fiduciary.  Funds should be kept in a safe deposit box, unless heightened security is necessary  L should maintain, on a current basis, books and records in accordance w/generally accepted accounting practice AND comply w/any record-keeping rules established by law or court order

(b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.
[Adv. Cmte. 2] Accurate records must be kept regarding which part of the funds are L’s.

(c) A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
[Adv. Cmte. 3] Any disputed funds must be kept in a trust account and the L

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

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. …lawyer shall promptly deliver to the client or third person any funds or other property … (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
[Adv. Cmte. 4] 3rd parties may have lawful claims against specific funds or other property in a L’s custody, such as a C’s creditor.  L may have a duty under applicable law to protect such 3rd party claims against wrongful interference by C.  L should NOT unilaterally assume to arbitrate a dispute btw the C and the 3rd party, BUT, when there are substantial grounds for dispute as to the person entitled to the funds, : may file an action to have a court resolve the dispute.

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

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

Rule 7.1 Communications Concerning A Lawyer's Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
[Adv. Cmte. 2-3] Truthful statements that are MISLEADING are also Prohibited:  Ex. If the statement omits a fact necessary to make the L’s communication considered as a whole  Ex. If there is substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the L or L’s services for which there is NO factual foundation  Ex. An ad that truthfully reports L’s achievements, if presented so as to lead

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

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

Rule 7.2 Advertising
(a) a lawyer may advertise services through written, recorded, or electronic communication, including public media
[Adv. Cmte. 1] The interest in expanding public info about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by Ls entails the risk of practices that are misleading or overreaching. [Adv. Cmte. 3] Qs of effectiveness and taste in advertising are matters of speculation and subjective judgment. (Some juris have extensive provisions…)

(b) A lawyer shall NOT give anything of value to a person recommending lawyer's services EXCEPT: (1) pay the reasonable costs of advertisements or communications; (2) pay the usual charges of a legal service plan or qualified lawyer referral service. (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, IF: (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement.
[Adv. Cmte. 5] Ls are NOT permitted to PAY others for channeling professional work. Rule 7.2(b)(1), however, allows L to pay for advertising and communications permitted by Rule 7.2, inc’l costs of print directory listings, on-line directory listings, newspaper ads, TV and radio airtime, domain-name registrations, sponsorship fees, banner ads, group advertising, and compensation for EEs, agents, and vendors involved. [Adv. Cmte. 6] L may pay the usual charges of a legal service plan (assistance to prospective clients to secure legal rep.) OR a non-for-profit lawyer referral service (unbiased org. that holds itself out to the public as a lawyer referral service) OR a qualified lawyer referral service (approved by a reg. authority to afford adequate protections for prospective Cs). [Adv. Cmte. 7] L who accepts assignments or referrals must act reasonably to assure that the activities of the plan/service are compatible w/L’s professional obligations

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 See Rule 5.3  [Adv. Cmte. 8] Such reciprocal arrangements must not interfere w/L’s
judgment o See Rules 2.1 and 5.4(c)

(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.
[Adv. Cmte. 2] Permits public dissemination of information concerning: a L’s name or firm name, address & telephone #, kinds of services the L will undertake, the basis on which the L’s fees are determined (inc’l prices for specific services and payment arrangements), L’s foreign language ability, names of references, names of C’s regularly rep.ed, AND other info that might invite the attention of those seeking legal assistance.

 Lawyer referral plans or union-supported plan can’t be prohibited as commercial speech under first Amendment.  Lawyers cannot pay individuals to go out and seek clients for them.

Rule 7.3 Direct Contact With Prospective Clients
(a) A lawyer shall NOT by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, UNLESS the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.
[Adv. Cmte. 4] There is far less likelihood that L would engage in abusive practices against an individual who is a former C, OR w/whom the L has close personal or family relationship, OR in situations in which L is motivated by considerations other than pecuniary, OR when the person contacted L first.  This rule is NOT intended to prohibit L from participating in constitutionally protected activities: public/charitable legal-service orgs. OR bona fide political, social, civic, fraternal, EE, or trade orgs. Whose purposes include providing/recommending legal services to its members.

(b) A lawyer shall NOT solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), IF: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; OR (2) the solicitation involves coercion, duress or harassment.
[Adv. Cmte. 5] Even permitted forms of solicitation can be abused.  Any solicitation which contains info which is false/misleading under Rule 7.1  NOTE: If after sending a letter or other communication to a C under Rule 7.2

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Ethics Rules OUTLINE the L receives NO response, any further effort to communicate w/the prospective C may violate Rule 7.3(b) [Adv. Cmte. 6] Contacting reps. Of orgs. Is functionally similar to advertising under Rule 7.2

(c) Every … communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope,  written solicitation permitted.
[Adv. Cmte. 7] Rule 7.3(c) does NOT apply to communications sent in response to REQUESTS of potential Cs or their spokespersons.  General announcements by Ls do NOT constitute solicitation

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
[Adv. Cmte. 8] Rule 7.3(d) permits L to participate w/an org. which uses personal contact to solicit members for its group or prepaid service plan, provided that the personal contact is NOT undertaken by any L who would be a provider of legal services through the plan.  Ls who participate in legal service plans must reasonably reassure that the plan sponsors are in compliance with Rule 7.1, 7.2 and 7.3(b)  See also 8.4(a)

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

BAR ADMISSION AND DISCIPLINE
Rule 8.1 Bar Admission and Disciplinary Matters
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An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: a) KNOWINGLY make a false statement of material fact; or b) Fail to disclose a fact necessary to correct a misapprehension KNOWN by the person to have arisen in the matter, or KNOWINGLY fail to respond to a lawful demand for information from an admissions or disciplinary authority…
[Adv. Cmte. 1] It is a SEPARATE offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer’s own conduct.  8.1(b) ALSO requires CORRECTION of any prior misstatement or affirmative CLARIFICATION of any misunderstanding [Adv. Cmte. 2] Subject to 5th A and corresponding provisions of state constitutions!  NOTE: NITA CITY’s ADDITIONAL PROVISION: “A lawyer shall NOT further the application for admission to the bar of another person known by the lawyer to be unqualified in respect to character, education, or any relevant attribute.” [Adv. Cmte. 3] A lawyer representing an applicant for admission to the bar, OR representing a lawyer who is the subject of a disciplinary inquiry/proceeding, is governed by the rules applicable to the client-lawyer relationship of 1.6 and 3.3

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

Rule 8.2 Judicial and Legal Officials
(a) A lawyer shall NOT make a statement he knows to be false or with reckless disregard as to its truth/falsity concerning the qualifications or integrity of a judge, adjudicatory officer, public officer, or of a candidate for election/appointment to judicial/legal office (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
[Adv. Cmte. 1] Expressing honest and candid opinions contributes to improving the administration of justice. Conversely, false statements can unfairly undermine confidence in the administration of justice.  [Adv. Cmte. 2] When a lawyer seeks judicial office, he should be limited in

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

Rule 8.3 Reporting Professional Misconduct
(a) A lawyer who KNOWS that another lawyer has committed a violation of the RoPC that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who KNOWS that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office, shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6…
[Adv. Cmte. 1] Self-regulation requires members of the profession to initiate disciplinary investigation when they know of a violation of the Rules.  Reporting a violation is especially important where the victim is unlikely to discover the offense [Adv. Cmte. 2] A report about misconduct is NOT required for violation of 1.6 [Adv. Cmte. 3] If law forced a lawyer to record EVERY violation of the RoPC, it would be unenforceable  This Rule LIMITS the reporting obligation to those offenses that a selfregulating profession must vigorously endeavor to prevent. o Requires a measure of judgment  “Substantial” refers to the seriousness of the possible offense and Not the quantum of evidence of which the lawyer is aware [Adv. Cmte. 4] Duty to report professional misconduct does NOT apply to a lawyer retained to represent a lawyer who’s professional conduct is in question. [Adv. Cmte. 5] Excluding disclosure of info in a lawyer/judge’s assistance program incentivizes professionals to seek treatment through such programs without penalty.

 Himmel case: Himmel did not report the conduct of another lawyer who he sued on behalf of a former client who was owed money. He was disciplined for failing to comply with the IL version of rule 8.3, which requires the reporting of professional misconduct of other lawyers. Case is of limited application across the US because the provision differs.  The Model Rule: does not require disclosure of information otherwise protected by Rule 1.6. Any information to which your duty of confidentiality extends (anything) may be revealed only with client’s permission. Outside of IL, a client may direct you not to reveal info about another lawyer’s breach of professional duty. This is often in the client’s interest.  In IL: a lawyer is obliged to reveal professional errors unless the information comes to the lawyer in a privileged communication. Your client may prevent you from revealing 49 | P a g e

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

Rule 8.4 Misconduct
It is professional misconduct for a lawyer to: (a) violate or attempt to violate the RoPC, knowingly assist or induce another to do so, or do so through the acts of another;
[Adv. Cmte. 1] This does NOT prohibit a lawyer from advising a client concerning action the client is legally entitled to take

(b) commit a CRIMINAL ACT that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
[Adv. Cmte. 2] Traditionally, the fitness was determined in terms of offenses involving “moral turpitude” (offenses concerning some connection to fitness for the practice of law).  Although a lawyer IS personally answerable to the entire criminal law, a lawyer should NOT be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
[Adv. Cmte. 2] These offenses (dishonesty, fraud, deceit, or misrepresentation) belong in the category negating fitness as a lawyer.  A pattern of repeated offenses, even ones of minor significance, can indicate indifference to legal obligation

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

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the RoPC or other law; or
[Adv. Cmte. 4] A lawyer MAY refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.

(f) knowingly assist a judge or judicial officer in conduct that is a violation of 50 | P a g e

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

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