ABA MODEL RULES
I.
PREAMBLE 18: violation of a rule should not give rise to cause of action nor should it create any presumption
that a legal duty has been breached
II.
COMPETENCE
a. MR 1.1 requires competent representation to a client. Competence requires the (1) legal knowledge, (2) skill,
(3) thoroughness, and (4) preparation reasonably necessary for the representation
III.
SCOPE OF REPRESENTATION
a. MR 1.2(a) requires a lawyer to consult and abide by the client's decisions concerning the objectives of
representation
b. MR 1.2(b) provides that a lawyer does not necessarily share the views of his client
c.
MR 1.2(c) permits a lawyer to limit the objectives of representation
d. MR 1.2(d) forbids a lawyer to assist a client to commit a crime or fraud BUT allows a lawyer to advise the
client of the legal consequences of any proposed course of conduct
i. Arguably, lawyer can assist in breach of contract, regulatory law, or environmental law
ii. HOWEVER, MR 1.16 defines "law" broadly
IV.
DILIGENCE
a. MR 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client
i. Lawyer can arguably stall for tactical reasons, financial reasons, or preparation of witnesses
V.
COMMUNICATIONS
a. MR 1.4 requires a lawyer to keep the client reasonably informed about a matter and to promptly reply to
any requests for information
b. MR 1.4(b) requires the lawyer to explain a matter to a client to the extent reasonably necessary for the
client to make an informed decision
VI.
FEES
a. General Rule
i. MR 1.5(a) requires that a lawyer's fees be reasonable
b. New Client
i. MR 1.5(b) requires disclosure of fees, preferably in writing
c. Contingent Fees
i. MR 1.5(c) provides that contingent fees must be in writing and lawyer must disclose accounting
method
ii. MR 1.5(d) prohibits contingent fees for
1. Domestic relations where payment is contingent upon securing divorce, alimony, or property
settlement
a. Arguably includes child support and custody as well
2. Representation of a defendant in a criminal case
d. Unconscionable Fees
i. Sophistication of client
ii. Market Price Comparison
iii. Non-refundable retainer
VII.
e.
Quantum Meruit
i. IF client has just cause for termination, lawyer gets no compensation
ii. Alternative: if client has just cause for terminating lawyer, lawyer still gets compensated at the
contract rate
iii. MODERN VIEW
1. Contract amount OR
2. Quantum Meruit
iv. POLICY: keep track of hours
v. Courts are split whether lawyer gets anything if client loses
f.
Division of Fees Between Lawyers Not in the Same Firm
i. MR 1.5(e) allows fee division if fee is reasonable AND
1. Proportionate to the services of each lawyer OR
2. Written agreement reached with client stating that each lawyer is jointly responsible AND
3. No objection from client as to all lawyers involved
CONFIDENTIALITY OF INFORMATION
a. General Rule
i. MR 1.6(a) provides that a lawyer shall not reveal information relating to representation of a client
b. Exceptions
i. MR 1.6(b) provides that a lawyer may reveal information if the lawyer reasonably believes necessary
1. To prevent the client from committing a future criminal act involving imminent death or
substantial bodily harm
2. Self defense exception: permits disclosure to avoid liability for client's conduct
VIII.
CONFLICT OF INTERESTS: GENERAL RULE
a. MR 1.7(a): Concurrent Conflicts: General Rule
i. Provides that a lawyer shall not represent a client with direct adversity to another client
b. Exceptions
i. Reasonable belief that representation will not have adverse affect on another client AND
ii. Each client consents after consultation
c.
MR 1.7(b): Positional Conflicts: General Rule
i. Provides that a lawyer shall not represent a client if the representation would be materially limited
by responsibilities to another client (arguing adverse positions)
d. Exceptions
i. Reasonable belief that representation will not have adverse affect on another client AND
ii. Consent after consultation
e.
Comment [9] suggests that a lawyer can represent antagonistic parties in two different cases in different
trial courts BUT NOT in the same appellate court. Factors include:
i. Importance of effect of representation
ii. Impact representation has on the outcome
iii. Temptation to delay case
f.
ABA Formal Opinion 93-377 rejects Comment [9] and forbids representation of antagonistic clients if both
are in the same jurisdiction (jurisdiction is not defined)
g.
Corporation Takeover (Attorney Representing Both Corporations)
i. Loyalty to original client
ii. Adverse affect on representation
iii. Confidentiality issues
iv. Whether language was identical or different
h. MR 1.10 imputes disqualification to the entire firm if a lawyer is disqualified under any provision of MR 1.7
IX.
CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
a. MR 1.8(a) provides that lawyer shall not enter into business transactions with the client unless
i. Fair and reasonable to the client
1. HOWEVER, lawyer decides what is fair and reasonable and thus arguably produces an
immediate conflict
ii. Client has reasonable opportunity to seek independent counsel for the transaction AND
iii. Client consents in writing
1. Comments suggest that independent counsel review before the transaction takes place.
Comments also suggest that this rule does not apply to clients' regular commercial services
since lawyer will have no unfair advantage
b. MR 1.8(b) provides that a lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client consents or is otherwise permitted or required under MR 1.6
and MR 3.3
c.
MR 1.8(c) provides that a lawyer shall not prepare an instrument giving the lawyer or his relative any
substantial gift form the client, including testamentary gift, except if the client is related to the lawyer
i. MR 1.10 imputes disqualification to everyone in the law firm if the lawyer is disqualified under 1.8(c)
d. MR 1.8(d) requires a lawyer to wait until after representation concludes before buying client's media rights
e.
MR 1.8(e) provides that a lawyer shall not provide financial assistance to the client unless advancements to
the client will be repaid or the client is indigent
f.
MR 1.8(f) provides that a lawyer shall not accept compensation from anyone other than the client unless
i. Client consents
ii. No interference with lawyer's professional judgment AND
iii. Information relating to representation of a client is protected by MR 1.6
g.
MR 1.8(h) provides that a lawyer shall not agree with a client to limit liability for malpractice unless
authorized by law and client is independently represented by another attorney to make the agreement. MR
1.8(h) also provides that lawyer shall not settle for malpractice unless written notification given to client
indicating that independent counsel should be obtained
h. MR 1.8(i) provides that a lawyer shall not represent a client when the opposing attorney is related as
parent, child, sibling, or spouse unless the client consents
X.
CONFLICT OF INTEREST: FORMER CLIENT
a. MR 1.9(a) provides that a lawyer shall not represent a client in the same or substantially the same matter
as a former client if the current client's interests are materially adverse to the former client unless the
client consents
b. MR 1.9(b) provides that a lawyer shall not knowingly represent a current client in the same or substantially
related matter where the lawyer's former firm had previously represented a client with materially adverse
interest to the current client and the lawyer has material information about the former client UNLESS the
former client consents
c.
XI.
MR 1.10 imputes disqualification on the entire firm where a lawyer is disqualified under any provision in MR
1.9
IMPUTED DISQUALIFICATION
a. MR 1.10(a) provides that every lawyer in a firm is prohibited from representing a client if any one of them
practicing alone would be prohibited from representing a client under MR 1.7, MR 1.8(c) or MR 1.9.
b. MR 1.10(b) provides that after a lawyer terminates association with a firm, the firm can represent a client
with materially adverse interests to the clients of the outgoing lawyer unless the matter is the same or
substantially related to the former lawyer's client and any remaining lawyer has confidential information
relating to that client
XII.
MATTER
a. MR 1.11 defines matter as any judicial or other proceeding involving a specific party or parties
XIII. CLIENT UNDER DISABILITY
a. MR 1.14 provides that when a client's decisionmaking is impaired by minority, mental disability, or
otherwise, the lawyer shall, as far as reasonably possible, maintain a normal relationship with the client
b. MR 1.14(b) allows a lawyer to appoint a guardian or take other protective action for the client when the
lawyer reasonably believes that the client cannot act in his own interests
XIV.
SAFEKEEPING PROPERTY
a. MR 1.15 requires the lawyer to suet up an identified trust fund account for the client, separate from
lawyer's own property, and maintain appropriate accounting to disburse client funds
XV.
WITHDRAWAL
a. MR 1.16(a) provides that a lawyer MUST withdraw IF
i. Representation would violate the MR or other Law (broadly construed)
ii. Lawyer is no longer physically or mentally capable to represent the client
iii. Lawyer is discharged
b. MR 1.16(b) provides that a lawyer MAY withdraw IF
i. Withdrawal will not have an adverse affect on the client
ii. Client persists in a course of conduct that the lawyer reasonably believes is criminal or fraudulent
iii. Client has used lawyer's services to perpetuate a crime or fraud
iv. Client insist on pursuing repugnant or imprudent objectives
v. Client fails to fulfill obligations to the lawyer and lawyer notifies client of withdrawal
vi. Representation is an unreasonable financial burden
vii. Other good cause
c.
MR 1.16(c) provides that a lawyer MUST represent a client when ordered by the court to do so
d. MR 1.16(d) provides that upon termination, lawyer shall protect the interests of the client but does not
have to protect criminal or fraudulent behavior
e.
XVI.
Comment to 1.6 suggests that the lawyer can "waive the red flag" after withdrawing from representation
ADVISOR
a. MR 2.1 provides that a lawyer shall exercise independent professional judgment and render candid advice,
including advice on the law, economics, social, moral, and political factors if relevant to the client's case
XVII. MERITORIOUS CLAIMS AND CONTENTIONS
a. MR 3.1 provides that a lawyer shall not bring or defend a frivolous claim unless there is a basis for doing so
that is nonfrivolous, such as a good faith argument for an extension, modification, or reversal of existing
law
i. Comment [2] suggests that the lawyer need not investigate facts plead in the client's case
ii. HOWEVER, Comment [2] conflicts with FRCP 11 which requires reasonable inquiry
b. In a criminal case, a lawyer may defend by requiring the prosecution to prove every element beyond a
reasonable doubt
XVIII. EXPEDITING LITIGATION
a. MR 3.2 requires the lawyer to make reasonable efforts to expedite litigation consistent with the interests
with the client
XIX.
CANDOR TOWARDS THE TRIBUNAL
a. MR 3.3(a) provides that a lawyer shall not knowingly
i. Make a false statement of material fact or law to a tribunal
ii. Fail to disclose material facts necessary to avoid assisting a crime or a fraud
iii. Fail to disclose directly adverse legal authority
iv. Offer perjured testimony or false documents
1. If discovered after, lawyer must take reasonable remedial measures
2. If that fails, lawyer must disclose to court
b. MR 3.3(b) provides that this rule trumps MR 1.6
c.
MR 3.3(c) provides that a lawyer may refuse to offer evidence that the lawyer reasonably believes is false
d. MR 3.3(d) provides that in ex parte communications, a lawyer shall inform the tribunal of all present
material facts whether adverse to the lawyer or not
XX.
FAIRNESS TO OPPOSING PARTY AND COUNSEL
a. MR 3.4(a) forbids unlawfully (according to a statute) obstructing another party's access to evidence or the
destruction of evidence
b. MR 3.4(b) provides that a lawyer shall not falsify evidence, counsel or assist perjury, or offer an unlawful
inducement to a witness
c.
MR 3.4(d) provides that a lawyer shall not make frivolous discovery requests
d. MR 3.4(e) provides that a lawyer shall not
i. Ask inadmissible/irrelevant questions
ii. Vouch for a witness
iii. Assert personal knowledge of the facts
iv. State personal opinion about
1. Witness credibility
2. Justness of cause OR
3. Culpability or guilt
XXI.
IMPARTIALITY
a. MR 3.5 prohibits (a) bribery, (b) unlawful ex parte communications, and (3) intentional disruptive conduct in
court
XXII. TRIAL PUBLICITY
a. MR 3.6(a) prohibits discussing the case with media if the lawyer knows or reasonably should know will have
a substantial likelihood of materially prejudicing the outcome
b. MR 3.6(b) provides exceptions, including disclosure of the claim, defense, parties, and disclosure of already
public information
XXIII. LAWYER AS A WITNESS
a. MR 3.7(a) provides that a lawyer shall not be an advocate and witness in same trial unless
i. Testimony is uncontested
ii. Testimony relates to nature or value of legal representation
iii. Disqualification of lawyer would materially hardship the client
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XXIV. PROSECUTORS
a. MR 3.8 provides that prosecutors shall
i. Refrain from prosecuting without probable cause
ii. Allow to get a lawyer
iii. Refrain from allowing to waive rights without an attorney
iv. Disclose mitigating or exculpatory evidence
v. Refrain from making prejudicial or extrajudicial statements
vi. Refrain from subpoenaing a lawyer in grand jury or other criminal proceedings to present evidence
about a past or present client unless
1. Prosecutor reasonably believes that the information is not protected from disclosure by
rule or privilege
2. Evidence sought is essential to completion of ongoing investigation or prosecution AND
3. There is no other feasible alternative to obtain the information
XXV.
TRUTHFULNESS IN STATEMENTS
a. MR 4.1(a) prohibits lawyer from knowingly making a false statement of material fact or law to a third
person
b. MR 4.1(b) prohibits a lawyer from failing to disclose a material fact in order to avoid assisting a crime or
fraud unless disclosure is prohibited by MR 1.6
c.
Comment [2] permits inflation of settlement offer
XXVI. COMMUNICATIONS WITH PERSON REPRESENTED BY COUNSEL (ANTI-CONTACT RULE)
a. MR 4.2 provides that a lawyer shall not communicate about the subject matter of the representation with a
person the lawyer knows to be represented by another lawyer in the matter unless
i. Opposing party's lawyer consents OR
ii. Lawyer is authorized by law to contact the opposing party without his attorney present
b. Comment [4] discusses the issue of Corporations
i. A lawyer shall not communicate with another person or entity who has managerial responsibilities on
behalf of the organization OR whose acts or omissions could bind the corporation unless
1. Such person is represented by private counsel
2. If so, consent by that attorney is sufficient to satisfy the rule
c.
Comment [3] provides that the communication apply with any person, whether a party or not
d. Comments also suggest that the lawsuit need not be filed
e.
MR 8.4(a) prohibits lawyer from assisting another to violate the rules. Thus, the lawyer arguably cannot
have anyone else contact opposing parties without presence of their attorneys
XXVII. COMMUNICATIONS WITH UNREPRESENTED PARTIES
a. MR 4.3 requires that the lawyer, in dealing with an unrepresented party, shall make reasonable efforts to
make the unrepresented party aware of the lawyer's role and the purpose of the communication. The
lawyer must not imply that he is disinterested
XXVIII.
a.
RESPONSIBILITY OF PARTNER OR SUPERVISORY LAWYER
MR 5.1(a) provides that a partner shall make reasonable efforts to assure that the lawyers in the firm
comply with rules of professional conduct
b. MR 5.1(b) provides that a supervisor shall make reasonable efforts to assure that the lawyers under
supervision comply with rules of professional conduct
c.
MR 5.1(c) provides that a lawyer will be responsible for any violations if
i. Lawyer orders a violation of the rules OR
ii. With knowledge, ratifies a violation OR
iii. Partner or supervisor knew of the conduct at a time when consequences could be avoided or
mitigated but failed to do so
XXIX. RESPONSIBILITY OF SUBORDINATE LAWYER
a. MR 5.2(a) provides that a lawyer is bound by the rules of professional conduct regardless if acting under
direction of another
b. MR 5.2(b) provides that a subordinate lawyer does not violate the rules if acting in accordance with a
supervisory lawyer's reasonable resolution of an arguable question of professional duty
XXX.
REPORTING PROFESSIONAL MISCONDUCT
a. MR 8.3(a) requires a lawyer to report violations of the rules of professional conduct if the lawyer has
knowledge of misconduct that is substantially related to dishonesty, trustworthiness, or fitness of the
lawyer unless information is protected from disclosure under MR 1.6
XXXI. MISCONDUCT
a. MR 8.4(a) provides that a lawyer shall not violate, attempt to violate, or knowing assist another to violate
the rules of professional conduct himself or through acts of another
b. MR 8.4(b) prohibits commission of a criminal act reflecting adversely on honesty, trustworthiness, or
fitness
c.
MR 8.4(c) prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation
d. MR 8.4(d) prohibits conduct that is prejudicial to the administration of justice
e.
MR 8.4(e) prohibits a lawyer from stating or implying the ability to improperly influence a government
agency or official
f.
MR 8.4(f) prohibits a lawyer from knowingly assisting a judge or judicial officer in conduct that violates the
rules of judicial conduct or other law
