Rule 1.1 A lawyer shall provide competent representation to a client.

Competent representation
Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.

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

(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.

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

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

Rule 1.3 A lawyer shall act with reasonable diligence and promptness in representing a client.
Diligence

Rule 1.4 (a) A lawyer shall:

Communication
s (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;
(2) reasonably consult with the client about the means by which the client's objectives
are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(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.

Rule 1.5 (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an
Fees 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) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.

(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, preferably in writing,
before or within a reasonable time after commencing the representation, except when the
lawyer will charge a regularly represented client on the same basis or rate. Any changes in
the basis or rate of the fee or expenses shall also be communicated to the client.

(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.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of alimony or support, or
property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each
lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will receive,
and the agreement is confirmed in writing; and
(3) the total fee is reasonable.

Rule 1.6 (a) A lawyer shall not reveal information relating to the representation of a client
Confidentiality unless the client gives informed consent, the disclosure is impliedly authorized in
of Information  order to carry out the representation or the disclosure is permitted by paragraph (b).

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

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

(2) to prevent the client from committing a crime or fraud that is reasonably certain to
result in substantial injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(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;
(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;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of
employment or from changes in the composition or ownership of a firm, but only if the
revealed information would not compromise the attorney-client privilege or otherwise
prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or

unauthorized disclosure of, or unauthorized access to, information relating to the
representation of a client.

Rule 1.7 (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
Conflict of representation involves a concurrent conflict of interest. A concurrent conflict of interest
Interest: Current exists if:
Client
(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.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),
a lawyer may 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 litigation or other proceeding
before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Rule 1.8 (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire
Current Clients: an ownership, possessory, security or other pecuniary interest adverse to a client unless:
Specific Rules
(1) the transaction and terms on which the lawyer acquires the interest are fair and
reasonable to the client 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 signed by the client, to the essential
terms of the transaction and the lawyer's role in the transaction, including whether the
lawyer is representing the client in the transaction.

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

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary
gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to
the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to
the client. For purposes of this paragraph, related persons include a spouse, child,
grandchild, parent, grandparent or other relative or individual with whom the lawyer or
the client maintains a close, familial relationship.

(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 to a portrayal or account
based in substantial part on information relating to the representation.

(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
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation
on behalf of the client.

(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.

(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, in a writing signed by the client. The lawyer's disclosure shall
 include the existence and nature of all the claims or pleas involved and of the
participation of each person in the settlement.

(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.

(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.

(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.

(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.

Rule 1.9 (a) A lawyer who has formerly represented a client in a matter shall not thereafter
Duties to represent another person in the same or a substantially related matter in which that
Former Clients person's interests are materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or 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.

(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.

Rule 1.10 (a) While lawyers are associated in a firm, none of them shall knowingly represent a client
Imputation of when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or
Conflicts of 1.9, unless:
Interest: General
Rule (1) the prohibition is based on a personal interest of the disqualified lawyer and does
not present a significant risk of materially limiting the representation of the client by
the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified
lawyer’s association with a prior firm, and

(i) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom;

(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

(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
and upon termination of the screening procedures.

(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.
(c) A disqualification prescribed by this rule may be waived by the affected client
under the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or current
government lawyers is governed by Rule 1.11.

Rule 1.11 (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a
Special public officer or employee of the government:
Conflicts of
Interest for (1) is subject to Rule 1.9(c); and
Former and (2) shall not otherwise represent a client in connection with a matter in which the lawyer
Current participated personally and substantially as a public officer or employee, unless the
Government appropriate government agency gives its informed consent, confirmed in writing, to the
Officers and representation.
Employees
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a
firm with which that lawyer is associated may knowingly undertake or continue
representation in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the
lawyer knows is confidential government information about a person acquired when the
lawyer was a public officer or employee, may not represent a private client whose
interests are adverse to that person in a matter in which the information could be used to
the material disadvantage of that person. As used in this Rule, the term "confidential
government information" means information that has been obtained under governmental
authority and which, at the time this Rule is applied, the government is prohibited by law
from disclosing to the public or has a legal privilege not to disclose and which is not
otherwise available to the public. A firm with which that lawyer is associated may
undertake or continue representation in the matter only if the disqualified lawyer is timely
screened from any participation in the matter and is apportioned no part of the fee
therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public
officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally and substantially
while in private practice or nongovernmental employment, unless the appropriate
government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as
lawyer for a party in a matter in which the lawyer is participating personally and
substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative
officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b)
and subject to the conditions stated in Rule 1.12(b).

(e) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation, arrest or
other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government
agency.
Rule 1.12 (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection
Former Judge, with a matter in which the lawyer participated personally and substantially as a judge or
Arbitrator, other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or
Mediator or other third-party neutral, unless all parties to the proceeding give informed consent,
Other Third- confirmed in writing.
Party Neutral
(b) A lawyer shall not negotiate for employment with any person who is involved as a
party or as lawyer for a party in a matter in which the lawyer is participating personally
and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or
other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative
officer may negotiate for employment with a party or lawyer involved in a matter in which
the clerk is participating personally and substantially, but only after the lawyer has
notified the judge or other adjudicative officer.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer
is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter
and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to
enable them to ascertain compliance with the provisions of this rule.

(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not

prohibited from subsequently representing that party.

Rule 1.13 (a) A lawyer employed or retained by an organization represents the organization acting
Organization as through its duly authorized constituents.
Client
(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,
including, if warranted by the circumstances to the highest authority that can act on behalf
of the organization as determined by applicable law.

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

(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.

(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 or an officer, employee or other constituent associated with 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 directors, officers, employees, members, shareholders

or other 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. If the organization's consent to the dual representation is required by Rule 1.7, the
consent shall be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.

Rule 1.14 (a) When a client's capacity to make adequately considered decisions in connection with a
Client with representation is diminished, whether because of minority, mental impairment or for some
Diminished other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-
Capacity lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk
of substantial physical, financial or other harm unless action is taken and cannot
adequately act in the client's own interest, the lawyer may take reasonably necessary
protective action, including consulting with individuals or entities that have the ability to
take action to protect the client and, in appropriate cases, seeking the appointment of a
guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is

protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer
is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only
to the extent reasonably necessary to protect the client's interests.

Rule 1.15 (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession
Safekeeping in connection with a representation separate from the lawyer's own property. Funds shall
Property be kept in a separate account maintained in the state where the lawyer's office is situated,
or elsewhere with the consent of the client or third person. Other property shall be
identified as such and appropriately safeguarded. Complete records of such account funds
 and other property shall be kept by the lawyer and shall be preserved for a period of [five
years] after termination of the representation.

(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.

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

(d) Upon receiving funds or other property in which a client or third person has an
interest, a lawyer shall promptly notify the client or third person. Except as stated in this
rule or otherwise permitted by law or by agreement with the client, a lawyer shall
promptly deliver to the client or third person any funds or other property that the client or
third person is entitled to receive and, upon request by the client or third person, shall
promptly render a full accounting regarding such property.

(e) When in the course of representation a lawyer is in possession of property in which

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

Rule 1.16 (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
Declining or representation has commenced, shall withdraw from the representation of a client if:
Terminating
Representation (1) the representation will result in violation of the rules of professional conduct 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;
(2) the client persists in a course of action involving the lawyer's services that the
lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(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.

(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.

Rule 1.18 (a)  A person who consults with a lawyer about the possibility of forming a client-lawyer
Duties to relationship with respect to a matter is a prospective client.
Prospective
Clients (b)  Even when no client-lawyer relationship ensues, a lawyer who has learned
information from a prospective client shall not use or reveal that information, except as
Rule 1.9 would permit with respect to information of a former client.

(c)   A lawyer subject to paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially related matter if the
lawyer received information from the prospective client that could be significantly
harmful to that person in the matter, except as 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).

(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 information 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.

Rule 2.1 In representing a client, a lawyer shall exercise independent professional judgment and
Advisor 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.
Rule 3.1 A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
Meritorious unless there is a basis in law and fact for doing so that is not frivolous, which includes a
Claims and good faith argument for an extension, modification or reversal of existing law. A lawyer
Contentions 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.

Rule 3.3 (a) A lawyer shall not knowingly:

Candor Toward
the Tribunal (1) make a false statement of fact or law to a tribunal or fail to correct a false statement
of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or
a witness called by the lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than
the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is
false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts
known to the lawyer that will enable the tribunal to make an informed decision, whether
or not the facts are adverse.

Rule 3.4 A lawyer shall not:

Fairness to
Opposing Party (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or
and Counsel conceal a document or other material having potential evidentiary value. A lawyer shall
not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to
a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists;
 (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably
diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant
information to another party unless:
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely
affected by refraining from giving such information.

Rule 3.5 A lawyer shall not:

Impartiality and
Decorum of the (a) seek to influence a judge, juror, prospective juror or other official by means prohibited
Tribunal by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to
do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment;
or
(d) engage in conduct intended to disrupt a tribunal.

Rule 3.6 (a) A lawyer who is participating or has participated in the investigation or litigation of a
Trial Publicity matter shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary
thereto;
(6) a warning of danger concerning the behavior of a person involved, when there
is reason to believe that there exists the likelihood of substantial harm to an
individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
 (ii) if the accused has not been apprehended, information necessary to aid
in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue prejudicial
effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement
made pursuant to this paragraph shall be limited to such information as is necessary to
mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to

paragraph (a) shall make a statement prohibited by paragraph (a).

Rule 3.7 (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
Lawyer as necessary witness unless:
Witness (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.

Rule 3.8 The prosecutor in a criminal case shall:

Special
Responsibilities (a) refrain from prosecuting a charge that the prosecutor knows is not supported by
of a Prosecutor probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and
the procedure for obtaining, counsel and has been given reasonable opportunity to obtain
counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights,
such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in
connection with sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is relieved of
this responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence
about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable
privilege;
(2) the evidence sought is essential to the successful completion of an ongoing
 investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of
the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from
making extrajudicial comments that have a substantial likelihood of heightening public
condemnation of the accused and exercise reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or associated with the
prosecutor in a criminal case from making an extrajudicial statement that the prosecutor
would be prohibited from making under Rule 3.6 or this Rule.

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable
likelihood that a convicted defendant did not commit an offense of which the defendant
was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court
authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an
investigation, to determine whether the defendant was convicted of an
offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a
defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant
did not commit, the prosecutor shall seek to remedy the conviction.

Rule 3.9 A lawyer representing a client before a legislative body or administrative agency in a non-
Advocate in adjudicative proceeding shall disclose that the appearance is in a representative capacity
Non- and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and
adjudicative 3.5.
Proceedings
Rule 4.1 In the course of representing a client a lawyer shall not knowingly:
Truthfulness in
Statements to (a) make a false statement of material fact or law to a third person; or
Others
(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.

Rule 4.2 In representing a client, a lawyer shall not communicate about the subject of the
Communication representation with a person the lawyer knows to be represented by another lawyer in the
s with Person matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by
Represented by law or a court order.
Counsel
Rule 4.3 In dealing on behalf of a client with a person who is not represented by counsel, a lawyer
Dealing with shall not state or imply that the lawyer is disinterested. When the lawyer knows or
Unrepresented reasonably should know that the unrepresented person misunderstands the lawyer’s role in
person 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 the interests of the
client.

Rule 4.4 (a) In representing a client, a lawyer shall not use means that have no substantial purpose
Respect for other than to embarrass, delay, or burden a third person, or use methods of obtaining
Rights of 3rd evidence that violate the legal rights of such a person.
Persons
(b) A lawyer who receives a document or electronically stored information relating to the
representation of the lawyer's client and knows or reasonably should know that the
document or electronically stored information was inadvertently sent shall promptly notify
the sender.

Rule 5.1 (a) A partner in a law firm, and a lawyer who individually or together with other lawyers
Responsibilities possesses comparable managerial authority in a law firm, shall make reasonable efforts to
of a Partner or ensure that the firm has in effect measures giving reasonable assurance that all lawyers in
Supervisory the firm conform to the Rules of Professional Conduct.
Lawyer
(b) A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional
Conduct.

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of
Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct
involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the other lawyer practices, or has direct supervisory authority over the other
lawyer, and knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.

Rule 5.2 (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the
Responsibilities lawyer acted at the direction of another person.
of a Subordinate
Lawyer (b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer
acts in accordance with a supervisory lawyer's reasonable resolution of an arguable
question of professional duty.

Rule 5.3 With respect to a non-lawyer employed or retained by or associated with a lawyer:
Responsibilities
Regarding Non- (a) a partner, and a lawyer who individually or together with other lawyers possesses
lawyer comparable managerial authority in a law firm shall make reasonable efforts to ensure that
Assistance the firm has in effect measures giving reasonable assurance that the person's conduct is
 compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable
efforts to ensure that the person's conduct is compatible with the professional obligations
of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of
the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the
conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in
which the person is employed, or has direct supervisory authority over the person, and
knows of the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action.

Rule 5.4 (a) A lawyer or law firm shall not share legal fees with a non-lawyer, except that:
Professional (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide
Independence of for the payment of money, over a reasonable period of time after the lawyer's death, to
a Lawyer the lawyer's estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer
may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of
that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include non-lawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that
employed, retained or recommended employment of the lawyer in the matter.

(b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the
partnership consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to
render legal services for another to direct or regulate the lawyer's professional judgment in
rendering such legal services.

(d) A lawyer shall not practice with or in the form of a professional corporation or
association authorized to practice law for a profit, if:

(1) a non-lawyer owns any interest therein, except that a fiduciary representative of the
estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time
during administration;
(2) a non-lawyer is a corporate director or officer thereof or occupies the position of
similar responsibility in any form of association other than a corporation; or
(3) a non-lawyer has the right to direct or control the professional judgment of a
lawyer.
Rule 6.1 Every lawyer has a professional responsibility to provide legal services to those unable to
Voluntary Pro pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services
Bono Publico per year. In fulfilling this responsibility, the lawyer should:
Service
(a) provide a substantial majority of the (50) hours of legal services without fee or
expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations
in matters that are designed primarily to address the needs of persons of limited means;
and

(b) provide any additional services through:

(1) delivery of legal services at no fee or substantially reduced fee to individuals,
groups or organizations seeking to secure or protect civil rights, civil liberties or public
rights, or charitable, religious, civic, community, governmental and educational
organizations in matters in furtherance of their organizational purposes, where the
payment of standard legal fees would significantly deplete the organization's economic
resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means;
or
(3) participation in activities for improving the law, the legal system or the legal
profession.

In addition, a lawyer should voluntarily contribute financial support to organizations that

provide legal services to persons of limited means.

Rule 6.2 A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for
Accepting good cause, such as:
Appointments
(a) representing the client is likely to result in violation of the Rules of Professional
Conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the
lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-
lawyer relationship or the lawyer's ability to represent the client.

Rule 7.1
Communication A lawyer shall not make a false or misleading communication about the lawyer or the
s Concerning a lawyer's services. A communication is false or misleading if it contains a material
Lawyer's misrepresentation of fact or law, or omits a fact necessary to make the statement
Services considered as a whole not materially misleading.

Rule 7.2: Information About Legal Services

Communication
s Concerning a
Lawyer’s (a) A lawyer may communicate information regarding the lawyer’s services through any
Services: media.
specific rules
(b) A lawyer shall not compensate, give or promise anything of value to a person for
recommending the lawyer’s services except that a lawyer may:

(1) pay the reasonable costs of advertisements or communications permitted by this Rule;

(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer
referral service;

(3) pay for a law practice in accordance with Rule 1.17;

(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; and

(5) give nominal gifts as an expression of appreciation that are neither intended nor
reasonably expected to be a form of compensation for recommending a lawyer’s services.

(c) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular
field of law, unless:

(1) the lawyer has been certified as a specialist by an organization that has been approved
by an appropriate authority of the state or the District of Columbia or a U.S. Territory or
that has been accredited by the American Bar Association; and

(2) the name of the certifying organization is clearly identified in the communication.

(d) Any communication made under this Rule must include the name and contact
information of at least one lawyer or law firm responsible for its content.

Rule 7.3 Information About Legal Services

Solicitation of
Clients (a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a
lawyer or law firm that is directed to a specific person the lawyer knows or reasonably
should know needs legal services in a particular matter and that offers to provide, or
reasonably can be understood as offering to provide, legal services for that matter.

(b) A lawyer shall not solicit professional employment by live person-to-person contact
when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s
 pecuniary gain, unless the contact is with a:

 (1) lawyer;

(2) person who has a family, close personal, or prior business or professional relationship
with the lawyer or law firm; or

(3) person who routinely uses for business purposes the type of legal services offered by
the lawyer.

(c) A lawyer shall not solicit professional employment even when not otherwise
prohibited by paragraph (b), if:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited
by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

(d) This Rule does not prohibit communications authorized by law or ordered by a court
or other tribunal.

(e) Notwithstanding the prohibitions in this Rule, 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 live person-to-person contact to enroll members or sell subscriptions for
the plan from persons who are not known to need legal services in a particular matter
covered by the plan.

Rule 8.1 An applicant for admission to the bar, or a lawyer in connection with a bar admission
Bar Admission application or in connection with a disciplinary matter, shall not:
and Disciplinary
Matters (a) knowingly make a false statement of material fact; or

(b) fail to disclose a fact necessary to correct a misapprehension known by the person to
have arisen in the matter, or knowingly fail to respond to a lawful demand for information
from an admissions or disciplinary authority, except that this rule does not require
disclosure of information otherwise protected by Rule 1.6.

Rule 8.3 (a) A lawyer who knows that another lawyer has committed a violation of the Rules of
Reporting Professional Conduct that raises a substantial question as to that lawyer's honesty,
Professional trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate
Misconduct 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
or information gained by a lawyer or judge while participating in an approved lawyers
assistance program.

Rule 8.4 It is professional misconduct for a lawyer to:

Misconduct
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another;

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

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

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

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

achieve results by means that violate the Rules of Professional Conduct or other law;

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable
rules of judicial conduct or other law; or

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or
discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age,
sexual orientation, gender identity, marital status or socioeconomic status in conduct
related to the practice of law. This paragraph does not limit the ability of a lawyer to
accept, decline or withdraw from a representation in accordance with Rule 1.16. This
paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
1.1: Competence
Competence [Rule 1.1]  
o Lawyer must have the knowledge, skill, thoroughness to complete the work 
 When Lawyers breach this duty, they also face charges of neglect, failure to communicate, ect. 
o Criminal Competence 
 "Ineffective Assistance of Counsel" (6th Amendment Requirement) 
 Attorney-client relationship existed 
 Defendant acted negligently or in breach of contract 
 That such acts were the proximate cause of the plaintiff's damages  
 That but for defendants conduct the plaintiffs would have been successful in the prosecution of
their medical malpractice claim  
 Strickland v. Washington (1984)  
 Two prong test for IAC: 
 (1) Are the lawyers errors v serious? So serious that counsel was not functioning to level
guaranteed by 6th amendment 
 (2) Is there a reasonable probability that but for the serious errors, the result of the
proceeding would have been different? 
 **Additional criteria if non-US citizen  
 Here, not unreasonable behavior. 
 DISSENT: Test is too vague, nearly impossible to show a different result 
 ABA Standards Post Strickland to satisfy 6th amendment 
 Determine all relevant facts known to accused 
 Keep client informed as defense is prepared 
 Inform accused of their rights; take all procedural steps necessary in good faith 
 Conduct a prompt investigation and explore all avenues relevant to the merits 

 Padilla v. Kentucky (2010) 

 Failure to provide accurate advice to noncitizens about immigration consequences of conviction
renders representation ineffective 
 Missouri v. Frye (2012) 
 Failure to inform client of plea bargain is a critical error that renders representation ineffective
(plea bargain knowledge is a constitutional requirement) 
 Lafler v. Cooper (2012) 
 Offering incorrect legal advice that leads defendant to reject a favorable plea offer renders
representation ineffective.
o Ignorance of law can render IAC
 Erroneous conclusion that records that could show mitigation were inaccessible under state law
 Incorrect assumptions did not need to request discovery
 Mistaken belief based on statute that had been amended
1.4
Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish
the client's objectives. In some situations — depending on both the importance of the action under consideration and
the feasibility of consulting with the client — this duty will require consultation prior to taking action. In other
circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may
require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to
inform the client of actions the lawyer has taken on the client's behalf.  Additionally, paragraph (a)(3) requires that
the lawyer keep the client reasonably informed about the status of the matter, such as significant developments
affecting the timing or the substance of the representation.

 Collaborative law practice  

 o Each client has own lawyer 
o All agree to work in non adversarial mode and works to avoid damage to network of family
relationships  
o Mainly for divorce  
o If litigation becomes necessary both lawyers must resign  
o These restrictions are permissible so long as the clients are informed of the potential risks  
o 2009 Collaborative law act failed  
 
 
ABILITY TO MAKE DECISIONS 
 Competent Adults 
 Rule 1.2 [pg. 295 great summary]  
 Lawyers must consult client as to means used to pursue objectives  
 Civil case: Client decides whether to settle 
 Criminal case: Client decides whether to plead guilty, waive jury trial, testify  
 Comment 2: "clients normally defer to the special knowledge and skill of their lawyer with respect to the means
to be used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters." 
Jones v Barnes   
o Court: indigent defendant has no right to compel appointed counsel to press nonfrivolous points he requested
if counsel, as a matter of professional judgment decides not to present those points  
Mccoy vs Louisiana
- IAC to disregard on crucial element (admission of guilt)

8.1 Scope
- Violation of rules ≠ basis for civil liability
- BUT can be used as evidence in malpractice suit

Disciplinary Hearing
Complaint by client/lawyer  Bar counsel investigates  Does warrant charges then closed, if it does charges
are filed  Hearing comm. conducts hearing makes finding recommends sanction  Decision reviewed by
judicial agency and or highest state court, Reviewing body makes final decision on sanction

1.0(f): disciplinary authorities might infer from the circumstances that a lawyer did know that the legal
assistance would be used for fraudulent purposes

1.0(d) fraud: denotes conduct that is fraudulent under the substantive or procedural law of the applicable jx and
has a purpose to deceive
- generally involves an intentional misrepresentation of a material fact-a lie or a purposeful deception

Lawyer may be disciplined for any conduct that is dishonest or prejudicial to the administration of justice or that
reflects lack of fitness to practice
- Failure to pay child support
- Domestic violence
- Drunk driving
- Sexual harassment
- Assisting in a crime

Crime
 - Lawyer can be disciplined for the commission of any criminal act that violates an ethical rule or that
reflects dishonesty, untrustworthiness, or lack of fitness to practice
- Even if no criminal charges if filed or the lawyer is acquitted of a charge in criminal proceeding
Discipline
- Can be disciplined regardless where the violation occurs
- Must report to other states where admitted if discipline is imposed in one of the states
o Once bar counsel learns of this may impose reciprocal discipline
Legal Protections for subordinate lawyers
- NY COA says right to fire employees at will did not include the right to fire lawyers who complained of
unethical conduct by another lawyer, because lawyers have professional duties not only to their
employer but to broader public
- Kelly v. Hutton Williams: A law graduate not admitted to the bar but working at a law firm as an
associate cannot be fired for reporting a colleague’s violation of the code of Professional Responsibility
Civil Liability
- Legal malpractice
o Legal Malpractice

 Elements
 Lawyer owed a duty to the plaintiff

 Lawyer failed to exercise "the competence and diligence normally exercised by lawyers in
similar circumstances," and

 The breach of duty caused harm to plaintiff

 Very hard to win because must establish "but for" the lawyer's conduct harm would not have occurred,
basically trying a case within a case

 Can be characterized as tort or contract

 Client may sue on the basis of any mistake by a lawyer that would not have been made by an
ordinarily competent and diligent lawyer in the same circumstances

 Top ten reasons

 Ignore conflicts of interest

 Sue your former client for an unpaid fee

 Accept any client and any matter that comes along

 "do business" with your client

 Practice outside your area of expertise

 Go overboard in opening branch offices and making lateral hires

 Leave partner peer review to the other firms

 Ignore a potential claim and represent yourself in a professional liability dispute

 Settle a matter without written authorization from your client

 Fail to communicate with your client

 Remedies
  Damages

 Injunction

 Return of property

 Alteration or cancellation of a legal document

 Other

o Fiduciary duty

 Applies not only to lawyers but also to others who are deemed fiduciaries
 Fiduciaries owe special duties not to misuse property or information that has been entrusted to them,
must place the interests of the other above their own interests, and must act in good faith on the
other's behalf

 Differences arent that great because P must prove breach and breach caused injury
 Some states have longer SoL for these types of claims or a shift in the BoP
 What duties?
 Safeguarding the client's confidences and property

 Avoiding impermissible conflicting interests

 Adequately informing the client

 Following instructions of the client

 Not employing powers arising from the client-lawyer relationship adversely to the client

 Can arise out of role other than lawyer-client relationship

 Broker, escrow agent, expert witness, executor, mediator, trustee

o A lawyer can be sued, criminally prosecute and disciplined for one act

o If lawyer is found to have owed a duty to a third person, and if it is shown that harm was caused by
improper conduct by the lawyer, the lawyer might be found liable to the third person

 Malpractice insurance

o Lawyers arent required to purchase except in Oregon, but most do

o Info generally available to clients

 Business incentive to obtain coverage

o What isnt covered? [pg. 126]

 Does not cover intentional misconduct

 Other Civil Liability

o Lawyers may also be liable either to clients or to nonclients for a whole variety of conduct that also
could result in liability for nonlawyers

 E.g. stealing, lying, breach of K

o Disqualification for conflicts of interest

  Ethics rules may influence courts but many courts follow their own common law standards for
disqualification

 Criminal liability

o It happens

 Client Protection funds

o State sponsored funds designed to reimburse clients whose lawyers have stolen their money

Confidentiality
- Email communications are questionable if company monitors
- Consent usually must be explicit and in writing
- Can even be liable to third parties for revealing info that might harm 3d party
1.6(b) exceptions
-(1) “such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial
threat that a person will suffer such harm at a later date if the lawyer fails to take action ne essary to eliminate the
threat”
- Doesn’t matter who will actually be perpetrating the harm
-Mere possibility of personal injury does not rise to this level
(2) Client can prevent by refraining from conduct
- Does not require revelation, but other rules bar the lawyer from counseling or assisting the conduct in question
and may require the lawyer to withdraw from representation
Sarbanes Oxley
- Requires lawyers who practice before the SEC or who advise companies regulated by the Commission to report
any information about securities fraud to the highest officials of the corporation
o SEC hasn’t done much to enforce against lawyers
Disclosure Rules and other duties
- 1.2, 1.6, 4.1
o 8.4)c) = dishonesty
o 1.13 corporation
 If senior corporate official don’t address the conduct rule permits the lawyer to reveal the info
to the extent necessary to prevent substantial injury to the organization
o 3.3, under what circumstances a lawyer must disclose to a tribunal that the lawyer’s client or another
witness has provided false testimony
o 1.16(a) requires withdrawal if continued representation would result in a violation of the rule
o 1.16(B) permits a lawyer to withdraw from representing a client who persists in criminal or fraudulent
conduct
1.6
- duty continues after representation
- Includes prospective clients, even when turned down
 - incorporates by reference 1.18(b)
Hypo: attny drops first name and verdict, this is not sufficient to protect in a life sentence case, other lawyers might be
familiar, these cases get attention
Privilege vs confidentiality
- privileged is waived once breached
- courts cant order generally
-only info disclosed by client to the attorney for seeking legal advice or representation
- Confidentiality does not disappear
- Courts can generally order this to be disclosed
- -Can apply to any source
- Duty only runs to client (including prospective former etc.)
- wouldn’t protect confidentiality of other sources that are non clients as long as they have authorization
Except to the extent that the client's instructions or special circumstances limit that authority, a lawyer is impliedly
authorized to make disclosures about a client when appropriate in carrying out the representation. In some
situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to
make a disclosure that facilitates a satisfactory conclusion to a matter. 

- Implied Authorization necessary to carry out representation

- filing a lawsuit
- incorporating a business
- filing documents with government agencies
- take to lawyers at the firm, unless client forbids
1.6(b)(4)
- If talk in hypotheticals and still able to surmise identity it is okay as long as getting advice
1.6(b)(7)
 Moreover, the disclosure of any information is prohibited if it would compromise the attorney-client privilege or
otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has
not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person's
intentions are known to the person's spouse; or that a person has consulted a lawyer about a criminal investigation
that has not led to a public charge).  Under those circumstances, paragraph (a) prohibits disclosure unless the client
or former client gives informed consent.  A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s
conduct when exploring an association with another firm and is beyond the scope of these Rules.
1.6©
Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the
sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of
employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the
safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of
software excessively difficult to use)

Defense
- Revelation must be narrow
- Don’t need to wait for a charge
 - What Conditions
o To establish a claim against a client for unpaid fees
o To defend against a claim of malpractice or other claim of civil liability against the lawyer
o To defend against disciplinary proceeding
o To defend against criminal charge
- How much
o No more than necessary to vindicate
o Should minimize number of people
o Seek protective order
o Take other available steps to avoid the dissemination of the information
- Inform client
o Yes, should notify client and seek solutions that do not require lawyer to make revelation, but may use
without consent
- Sarbanes Oxley permits a lawyer who practices before the SEC and who has reported a fraud to a client
company’s officials to use that report in connecgion with any investigation concerning the lawyer’s compliance
with the SEC’s rules
1.14
then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include:
- consulting with family members,
- using a reconsideration period to permit clarification or improvement of circumstances,
- using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support
groups,
- professional services,
- adult-protective agencies or other individuals or entities that have the ability to protect the client.
- In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the
client to the extent known, the client's best interests and the goals of intruding into the client's
decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client's
family and social connections.
- Guardian ad litem - individual with duty to determine and advocate for the best interest of the client 
- Conservator - individual given power to manage the financial affairs of the client 
- Guardian - individual who manages the financial affairs and make medical/personal decisions on behalf of the
client.
1.7
Positional conflict
a. Lawyer may make inconsistent arguments on a legal issue in different courts at different times without running
afoul of the conflicts rules 
i. Seriousness depends on likelihood that one client would be materially harmed if a lawyer made an
argument in another case that was contrary to the clients interest 
b. MPRC 1.7 - Will this legal position materially limit the lawyers effectiveness in representing another client in a
different case? 
i. MPRC 1.7 Comment for factors when making this decision: 
1. Trial v. appellate court 
2. Substantive v. procedural issue 
3. Temporal relationship between the matters 
4. Practical significance of issue to short and long term interests of client 
5. Clients reasonable expectation of retaining lawyer 
ii. Is the decision in one case likely to affect the decision in the other case? Will the lawyer be inclined to
soft pedal?  
Conflict Consequences
- DQ is unique to conflict rules
-
Lawfirm Rules
5.1(a)
- Such policies and procedures include:
- those designed to detect and resolve conflicts of interest,
- identify dates by which actions must be taken in pending matters,
- account for client funds and property and
- ensure that inexperienced lawyers are properly supervised.
Size Dependent
 In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the
required systems ordinarily will suffice.
 In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate
measures may be necessary
Apart from this Rule [5.1] and Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a partner,
associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a
question of law beyond the scope of these Rules.

- Hypo with COI discovered by another associate

o No disciplinary liability because not partner or supervisor
o Did not directly participate
o No affirmative duty to inquire
o COI is imputed BUT does not mean violations are imputed
 Partners managers, or supervisors might be responsible because efforts
- Ratification requires knowledge
- Hypo: attorney did not know the claim was frivolous and was following the partner’s orders so she is probably
not responsible
- Knowledge: state disciplinary authorities consider knowledge or lack of. If acting under supervisor, considered
whether the lawyer had the opportunity to investigate or verify the facts of the case or applicable law. Reliance
on supervisor is relevant determine whether lawyer had knowledge required to render the conduct a violations

5.3
A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. 
- Examples include:
o the retention of an investigative or paraprofessional service,
o hiring a document management company to create and maintain a database for complex litigation,
o sending client documents to a third party for printing or scanning, and using an Internet-based service
to store client information. 
When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the
services are provided in a manner that is compatible with the lawyer’s professional obligations. 
- The extent of this obligation will depend upon the circumstances, including:
o the education,
o experience and reputation of the nonlawyer;
o the nature of the services involved; the terms of any arrangements concerning the protection of client
information;
 o and the legal and ethical environments of the jurisdictions in which the services will be performed,
particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of
authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of
the lawyer), and 5.5(a) (unauthorized practice of law). 

8.4
characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious
interference with the administration of justice are in that category
ACP and WPD

  Ethical Duty Attorney Client Privilege

Source Rule 1.6 Common law evidence

Scope Information related to representation of Narrower Scope; confidential

a client communication between a lawyer and
 More demanding because not a client for obtaining legal advice
dependent on whether someone
is trying to compel

Method of Professional Discipline advice

Enforcement Quash subpoena or motion to exclude
• Type of case
- Criminal
o Lawyer or client subpoenaed to testify before a grand jury
o Lawyer sub. To testify before a petit trial jury
o Client is cross examined during a trial
o Client’s documents are seized from his lawyer pursuant to a search warrant
- Civil/administrative adjudications
o Discovery is sought from a lawyer or a client through depos, interrogs, or a request for production of
documents
o A lawyer is called to testify before a judge or jury
- Legislative/administrative investigations
o ACP maybe if a lawyer or a client is subpoenaed to testify before a legislative committee or an
administrative agency
- A reporting statute appears to compel a lawyer to disclose information even without an official request
o Privilege might be invoked as to arguably privileged material if A lawyer seeks to avoid disclosure by
preemptive proceeding (e.g. declaratory judgment or injunction) or invokes the privilege to defend
against penalties for having made disclosures (Belge)
 Rule 3.7 Prohibits lawyers from acting as advocates and witnesses in the same trials
o But there are exceptions if a lawyer has relevant info and no priv. applies
 Rule 1.6(b)(6) allows revelation of confidences if necessary to comply with a court order
o If info is also covered by ACP, courth should not issue such an order
 SCOTUS
o Has expressly declined to decide whether 6th Amendment can trump ACP
·       Elements of Attorney Client Privilege [pg. 211 summary]
o   (1) Communication
·       Any form; but protects only against the disclosure of the communication itself, not against the
disclosure of underlying facts
o   (2) Privileged Persons
 ·       Includes attorney, supporting legal staff, interpreters, psychologists, parents/guardians (if
minor/disabled), prospective clients
 Be careful with 3d parties because could later be found to constitute a waiver
 Applies to lawyers communicating about the client, and lawyers for two different parties with common
interests can discuss joint strategy without waiver
 Secretaries, paralegals and other agents are PPs
o   (3) Communication in Confidence
·       Client must reasonably believe that the communication is confidential (remember monitored (e.g.
employer) email likely isn't, most courts say prison officials can monitor all electronic comms between
prisoners
o   (4) Communication for the Purpose of Seeking Legal Assistance
·       Business, personal advice is unprotected
 Only part of conversation relating to legal advice is privileged
·       Underlying facts are not privileged
 Many aspects of communications involve strategy
 Getting facts isnt always that easy
·       Goes both ways (lawyer to client, client to lawyer)
·       Documents are not privileged, unless they are for the use in legal advice
 E.g. of what would be privileged client prepared summary of facts for lawyer to get advice
 Confidential memo a layer writes for co-counsel that is record of privileged communication
 If document, it must have come into existence at the same time as or later in time than the
client’s first communication with the lawyer

 Doesn't require promise or exchange of money to create the relationship

 Only part of the conversation relating to legal advice is privileged
 
·       CONSEQUENCES IF A COMMUNICATION IS PRIVILEGED
o   Lawyer cant be forced to testify
o   Client can't be forced to testify
o   Paper and electronic communications are protected
 
·       Client Identity
o   Usually not privileged, especially in tax cases
 Does not protect the name, address, or whereabouts of a client who receives tax advice, nor the amount of
fees paid
 
·       Waiver
o   Express Waiver by client
·       Voluntary act of the client, telling the lawyer or if information is revealed to non-privileged person
o Can still invoke 5th amendment, but only for client, not non-privi person
 
o   Waiver by the lawyer
·       Express - client tells lawyer to do so
·       Implied - gives lawyer authority that includes waiver
 Most jx examine facts of disclosure and hold no waiver if reasonable precautions were taken
and prompt action to recover the misdirected information was taken
·       Apparent - Making a statement to third party that lawyer can waive
o   Failure to invoke
 ·       Not objecting to a question pertaining to A/C privilege at trial waives the objection (waiver by inaction)
(not appealable)
 
o  Privilege not lost if lawyer represents two clients jointly
 Considered common clients with common privilege
 IF two clients hire the lawyer separately and lawyer wants the privilege to apply to conversations where
both are present, should obtain agreement to participate in a "common" representation
 
o   Waiver by putting privileged communication into issue
·       If client creates a privileged issue by introducing it into court (malpractice)
 Waiver as to conversation by disclosure of part of it
 If reveal part of privileged com, judge may find waiver of the privilege as to the part of the conversation
that relates to the subject matter on which the client volunteered testimony
o   Compliance with court order
·       If Judge says you have to, lawyer not required to go to jail
 
Problem 4-1
·       Probably nothing protected
o   Public place (similar to elevator)
o   Non-privileged persons
o   Client and lawyer probably know nothing is secret here
·       Best case try to withhold the strategy
 
Crime Fraud Exception
 Even if all criteria is met, no privilege is asking for assistance in committing a crime or a fraud  
 Request for advice about whether a certain act is permitted under the law is privileged
 Past act advice is privileged
 IF client asks about planned crime, no privilege because intention to perform a criminal or fraudulent act triggers
the crime-fraud exception
 Hypo: client asks for eviction advice and says he will burn down house
 Info on arson was found to be protected because no evidence to suggest he had asked the lawyer for
assistance with the crime
 Does not matter whether client knows the planned conduct is criminal
  Only client intentions are relevant
 Conversation where client asks lawyer about plan they know involves a fraud, lawyer's knowledge or
intentions are irrelevant and no privilege
 Conversely if only lawyer has criminal intent conversation is privileged, only client's intentions are
relevant to the privilege

Challenging claim of privilege
 Lawyer seeking disclosure of the letter would have to argue for an in camera inspection of e.g. a latter, in which
the judge would review the letter privately to decide it is privileged urging that inspection might show the client's
lawyer had provided advice on how to get away with a crime
 Std [Applies to documents/conversations]: Victim's lawyer would have to show a judge a "factual basis
adequate to support a good faith belief by a reasonable person that in camera review may [show that] the
crime-fraud exception applies
 Same std applies to conversations with lawyer and client
  Tobacco litigation, routed all studies through lawyers, Courts found studies not protected or covered by
crime-fraud exception
Revelations permitted or required by the ethics code
-Does info lose privilege if lawyer reveals under ethics rules?
 Answer is unclear
 In litigation any waiver of privilege might be held to be limited to the original proceeding
 Some instances explicit exception have been incorporated into law of privilege for ethic rules compliance
The death of the client
 ACP remains in force even if revelation would prevent wrongful incarceration or execution of an innocent person
and it remains in effect after the client dies
 ABA committee concluded revelation to a prosecutor is not justified by rule 1.6(b)(5) unless it is necessary to
respond to the former client's allegations
 Even if asked by prosecutor
 ABA would make exception for revelation during a court supervised hearing, during which the former
client could object to the disclosure
Problem 4-2
 Very tough, probably cannot reveal
 Suicide of Vincent Foster
 Met with private lawyer to seek legal advice
 9 days later killed himself
 Grand jury issued subpoena for Hamilton's notes
 Judge examined the notes in camera and determined that the privilege applied
 Swidler & Berlin v. US pg .228
 Said notes were privileged
 Historical justification
 Policy considerations
 No reason to think GJ testimony about confidential communications further the client's
intent, unlike estate analogy
 Clients concern about reputation, civil liability, possible harm to friends or family
 Dissent: shouldn’t be an absolute bar, courts should be able to weigh interests
  
Work Product Doctrine
 Protects notes and other material that a lawyer prepares "in anticipation of litigation" from discovery in pretrial
civil proceedings
 Does not protect materials lawyer creates for reasons other than litigation
 E.g. routine records of hiring and firing not protected
 **Critical element = possession of lawyer generated information in the lawyer's mind or private files
 Mostly civil FRCP 26(b)(3) but Rest. Says it is recognized in criminal and admin proceedings
 No protection if not made in anticipation for lit.
 E.g. regular records for hiring and firing vs. records of discharged employees only after threaten to sue
the corporation
 Dual Purpose? Usually no protected
 Relevant documents? Not usually, maybe if lawyers can demonstrate "selection and compilation" of the
documents  
Qualified Protection
 WPD not absolute, can overcome
 Std: substantial need for the material and that the opposing party is "unable without undue hardship to obtain
the substantial equivalent" of the material by other means
  Vague standard
 Can overcome with ordinary work product
 That which is compiled by the lawyer but does not contain the lawyer's "mental impressions"
 Crime Fraud exception also applies
Mental Impressions
 Stronger protection for thoughts, strategies, or mental impressions
 IMMUNE from disco
 Some opinions in dicta saw maybe in "extraordinary circumstances"
Protection of work product, not underlying information
 Doctrine prevents freeloading on an opponent's work, but it does not enable the opponent to close off a
lawyer's sources of information by getting there first
Expert Witness
 WPD applies to working drafts of reports and many communications between experts and attorneys
 Experts who are merely consultants and not expected to testify are given greater protection
 These rules are only federal
Upjohn
 1981, S.Ct decided that in federal proceedings applying federal law corporate entities could claim ACP and that
the scope of the privilege should depend on the subject matter of the communication, not on who was doing the
communicating
 H: communications between lawyers and the lower level employees who had knowledge of the bribery was
privileged
 8th Cir
1. Communication made for purpose of securing legal advice
2. Employe making the communication did so at the direction of his corporate superior
3. Superior made the request so that the corporation could secure legal advice
4. Subject matter of the communication is within the scope of the employee’s corporate
duties
5. Communication is not disseminated beyond those persons who, because of the
corporate structure, need to know its contents
 Gov. requests for waiver
 Past practice of encouraging corporations under investigation to waive and be rewarded
 2008 DOJ would no longer waiver in leniency decision
 More recently DOJ emphasized goal of identifying the individual who are criminally responsible as
particularly important when assessing cooperation
ACP for Gov. Officials
 Do not get same level or privilege
 Communications between official and GC of agency ≠ privileged
 Can be subpoenaed
 Cant use taxpayer money to conceal activities from taxpayers
 Gov lawyers duty to act in the public interest
Worldwide Bribery 4-3
 Actual scope of upjohn?
 Trying to bully the corporation
 Records of bribery maybe, but in prep for litigation?
 You are GC of the company, not representing Patel
 Advice to Patel, get a lawyer

Malpractice
 - Togstad
- Std: Whether reasonable person (not attorney) would rely on such advice
Authority
o Express - Client expressly authorizes the conduct 
 Lawyers need express authority to settle 
 Some states permit implied authority here 
o Implied - Client gives instruction that allows lawyer to take action ("advance the case") 
o Apparent - Client places lawyer in a position that causes a third party to reasonable believe the client had given
the lawyer express authority 
 Only works for client, lawyer cannot tell 3rd party they have ability to take certain acts 
-Authority to Settle: state dependent, in certain states client may be bound on the basis of implied authority discerned
from an extensive course of conduct 
Client-Lawyer Relationship
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 on which the lawyer acquires the interest are fair and reasonable to the client 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 signed by the client, to the essential terms of the transaction and
the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

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

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a
client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other
recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child,
grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close,
familial relationship.

(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 to a portrayal or account based in substantial part on information relating to the
representation.

(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

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

(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.

(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, in a writing signed by the client. The lawyer's disclosure shall include the existence
and nature of all the claims or pleas involved and of the participation of each person in the settlement.

(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.

(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.
 (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.
(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.
2nd Half Rules:
 1.2, 1.4, 1.5, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.15, 1.16
 3.1, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9
 4.1, 4.2, 4.3, 4.4
 5.2, 5.4
 6.1, 6.2
 7.1
 8.3, 8.4
Class Notes
Current 1.8
Client - In general court won’t DQ if reqs of IC met
Conflicts in Insurance Comp.
Civil Cases  Insurer not a client just because designates lawyer to defend
L&S: 403– insured, but could be based on other factors
418 MPRC:  Lawyer can’t share info learned of insured w/insurer
1.7, 1.8(f) & (usually results in w/drwl)
(g)  Even though 1.8, 1,7 + 1.6 apply wrt COIs and IC
 5.4(c): person who employs or pays a lawyer can’t direct
lawyer for other person
 If conflict, lawyer should act in best interest of insured, if
reps both has to withdraw, usually insurer has to pay for
other attny for insured
 financial considerations: insurer can make decisions about
discretionary efforts or expenses in lit. but lawyer may not
follow if substantially increases risk of liability
 settlements: in insured rejects settlement within policy
limits and wants to litigate, responsible for own attorney
 If insurer turns down settlement and damages are awarded
in excess of policy limits, insurer usually has to cover legal
fees incurred
Immigrants and foreign employers: employers want to hire
foreigners and have attny rep them both.
 Pot. Conflict. = info by employee that would lead to
revocation of offer, information by employer that would
indicate to employee company unstable
 Waivers often not sufficient b/c limited English, don’t
understand conflicts that may arise, can’t afford separate
counsel, agreements that call for employee but not
employer to waive are often unenforceable
Class Actions
 Pot conflicts w/individual vs class, prior relationships
with named Ds, greater concern for fee vs claim,
settlement by collusion
ABA Rule Comments & Examples
Rule 1.7: Conflict of Interest: Current Clients
 atty’s will be forced to withdraw from
representing all co-represented clients if common
representation fails
o if litigation or negotiation between parties
is imminent or contemplated can’t
undertake common representation
 Confidentiality: Usually no atty-client privilege
between commonly represented clients
o Must share all information between clients
o if client needs atty to keep information
confidential from the co-client, atty must
withdraw
 Disclosure: Atty must disclose at onset of
common representation any limitations that are
likely to occur, and that atty’s role will be non-
adversarial w/r/t the co-represented parties
 Other relevant factors in accepting co-
representation:
o whether the lawyer subsequently will
represent both parties on a continuing basis
and
o whether the situation involves creating or
terminating a relationship between the
parties.
1.8(f) - Person paying for atty services
 Sometimes, it’s sufficient for atty to obtain the
client's informed consent w/r/t the fact of a 3rd
party payment and the identity of the third-party
payer.
o If the fee arrangement creates a conflict of
interest for the atty, then he must comply
with Rule 1.7.
  Indiv. With differing viewpoints may be treated as single
class
 1.7/1.9 issues: don’t fit well with CAs, 1.7(a)(1) unnamed
members not clients
 Cts are hesitant to DQ lawyers at settlement stage when
conflicts arise
Aggregate Settlements:
 Pot conf.: common in mass tort with large sum of $,
lawyers w/holdout clients who don’t want to settle usually
have to terminate relationship for other clients
 1.8(g) ag settlements or nolo contender are not allowed
unless (1) IC in writing, signed and inform all
 ABA opinion: lwyr must disclose total amt of settlement,
details of other client participations, amt of fees and costs
to be paid to lawyer, usually requires lwy to get consent
from clients to share info, often difficult because involve
morbidity factors
Conflicts  Former Client: pot cons = betray confidences, make
Involving adverse use of confid., attack or challenge work did on
Former behalf of 1 party, engage is work disloyal to client
Clients L&S: Two Situations
418-449 1. Lwyr know or might have had access to info from FC
MPRC: 1.7, that could be used adv to the client (breach to fmr) 
1,9, 1.10 1.9 (waivable with IC)
2. New client wants lawyer to sue lawyer’s former
client  1.7; 1.9 (waivable unless so severe lwyr
cdnt reasonable believe comepetent and dil. Rep)
Former Clients
 Rules are less restrictive (don’t want to tie up lawyers)
 Duties: (1) cant rep in subst. related matter and material
adversity (2) Used to evaluate COIs when lwyrs move
firms (3) bars use or revelation of confid. Of frmr to same
extent as present
 Key differences:
 Current-if work could adversely impact a present client,
might not be waivable, but ok w/IC
 Current-conflicts raise issue regardless of subj matter, if
substantial relationship
 Termination: depends on course of dealings w.parties,
clients reasonable understanding, timing alone is not
dispositive
 Cant drop client to get new client UNLESS withdrawal,
fired, client triggers conflict (acquiring company), w/draw
for another reason
 Lawyers moving from corps aren’t necessarily bound,
factor specific
 If frmr moves to DQ, don’t need to reveal confidences to ct
Successive Conflicts Is it the same matter? If not is it
“substantially related”? If yes, is new Cs “materially
adverse,” need frm written IC, but can’t rep “same or
substantially similar”
 Same single transaction, or doc lwyr produced
 Substantial Relationship? More about what lwyr learned
that could be used adversely.
 Factors: Same trans or legal disp.; substantial risk lwyrs
 Insurer-Insured Conflict
o Representing insured and 3d-party payer
prohibited unless atty determines no
interference on his judgment and informed
consent
1.8(g) - aggregate settlements
 Atty must inform each co-client about all the
material terms of the settlement, including what
the other clients will receive or pay if the
settlement or plea offer is accepted and IC signed
in writing
 Class action: even though no full atty-client
relationship with every class member – must
comply with notification/procedural
requirements
Rule 1.7: Conflict of Interest: Current Clients
 Atty’s duties of loyalty and independence may be
materially limited by responsibilities to former
clients under Rule 1.9 or by the lawyer's
responsibilities to other persons, such as
fiduciary duties arising from a lawyer's service as
a trustee, executor or corporate director.
 Big firms trying to preclude by hiring lots of
lawyers? May refuse business, maybe advanced
waiver but frowned upon esp. if experienced user
of legal services
Rule 1.9: Duties to Former Clients
 Atty has continuing duties of loyalty and
confidentiality after rep’ing a client...e.g.
o Atty could not seek to rescind, on behalf of a
new client, a contract drafted on behalf of
the former client.
o Atty who prosecuted an accused person
could not represent the accused in a
subsequent civil action against the
government concerning the same
transaction.
o Atty who represented multiple clients in a
matter may not represent one of the clients
against the others in the same or a
substantially related matter after a dispute
arose among the clients in that matter
 Scope of a Matter: The issue:
o whether the lawyer was so involved in the
matter that the subsequent representation can
be justly regarded as a changing of sides in
the matter in question.
 Substantial Relation:
o involves the same transaction or legal
dispute, or
 would normally have learned (not actually learned) o substantial risk that confidential information
confidential info could be used adverse. BOTH must be normally obtained in the prior representation
yes to be substantially related, and still IC can get by would materially advance the client's
 How involved in previous matter Silver Chrysler (EDNY) position in the subsequent matter
 General knowledge is okay, but strategies, business o Atty who has represented a businessperson
directives may be a problem and learned private financial information
 Obsolete info is okay, our out-of date that it is not relevant may not then represent that person's spouse
is ok in a divorce
Courts: usually apply same test to disciplinary matters and o Atty who previously represented a client in
DQ, but not bound use rules as stds, sometimes use state securing environmental permits for a mall is
standards precluded from representing neighbors
 Free to sue fmr client any time if not “the same or subst. against the mall for environmental
related” Westinghouse considerations
 THREE STEP INQUIRY from 7th Cir for substantial  But atty could later represent mall
relationship and whether CI may have been given: (1) tenants in wrongful-eviction case
factual reconstruction of the scope of prior legal rep (2) against the mall
whether rsble to infer CI allegedly given would been given
to lawyer representing a client in those matters (3) whether Rule 1.10:
that info is relevant to issues raised in litigation pending  Similar to 1.9(b) but looks at whether old firm retains
Westinghouse conflicts created by work of moving lawyer vs 1.9
Material adversity: should be less restrictive than direct examines whether lawyer brings the old firm conflicts
adversity in theory but ABA says it is the same with her
Conflicts In practice three options Rule 1.7: Conflict of Interest: Current Clients
Involving  Proceed w/out consent  Atty’s duties of loyalty and independence may be
Former  Tell client firm can’t accept materially limited by responsibilities to former
Clients L&S:  Ask for former client consent clients under Rule 1.9 or by the lawyer's
449–475 Representing the competitor of a former client responsibilities to other persons, such as
MPRC: 1.7,  Representation of economic competitors poses no serious fiduciary duties arising from a lawyer's service as
1.9, 1.10 COI (1.7 comment) a trustee, executor or corporate director.
 Maritrans Case (Lawyer represents corporation and
becomes familiar with operations and finances, along with Rule 1.9: Duties to Former Clients
strengths and weaknesses of competitors. Firm also  Atty has continuing duties of loyalty and
represents Meritrans competitors, but Lawyer does not confidentiality after rep’ing a client
work on those matters. Meritrans seeks to DQ firm)  o Atty could not seek to rescind, on behalf of a
 Judge - Must be decided on a case-by-case basis and new client, a contract drafted on behalf of
dependent on extent to which the fiduciary was involved the former client.
in its former clients affairs. Here the relationship is too o Atty who prosecuted an accused person
strong and an injunction is warranted could not represent the accused in a
 Factors: Direct competitors; same services; detail of info; subsequent civil action against the
value of CI; conduct of firm; time lapse was low government concerning the same
1.9 transaction.
 Rule 1.9(b) governs lawyers moving from firm to firm  o Atty who represented multiple clients in a
 First question - is the matter the same or substantially matter may not represent one of the clients
related?  against the others in the same or a
 Difference between 1.9(b) and 1.9(a): Consent substantially related matter after a dispute
is not required unless the lawyer had acquired information arose among the clients in that matter
protected by Rules 1.6 and 1.9(c) that is material to the
matter   Scope of a Matter: The issue:
 "Could have acquired" (1.9(a)) v. "Actually acquired" o whether the lawyer was so involved in the
(1.9(b)) matter that the subsequent representation can
 Applicable Assumptions  be justly regarded as a changing of sides in
 Lawyers with management responsibility may be the matter in question.
presumed to have received confidential information about
all firm matters   Substantial Relation:
 Junior lawyers with no management duties had access to o involves the same transaction or legal
or information about only matters that they worked on or dispute, or
 perhaps matters handled by their department  o substantial risk that confidential information
 The burden is on the firm facing disqualification to show normally obtained in the prior representation
the attorney DOES NOT possess confidential information would materially advance the client's
that is material to the new matter  position in the subsequent matter
Using/Revealing Client Confidences MRPC 1.9© prohibits o Atty who has represented a businessperson
the revelation of confidences received from former clients and learned private financial information
AND prohibits the adverse use of such confidences  may not then represent that person's spouse
 EXCEPTION: Disclosure is permitted pursuant to other in a divorce
rules (i.e. - defense against malpractice)  o Atty who previously represented a client in
 EXCEPTION: If the lawyer received confidential securing environmental permits for a mall is
information that has since become generally known, the precluded from representing neighbors
lawyer must keep the information confidential but is not against the mall for environmental
barred from using the info adversely against the client  considerations
 Lawyers can share information laterally when moving  But atty could later represent mall
from firm to firm to determine if conflicts exist pursuant tenants in wrongful-eviction case
to MPRC 1.6(b)(7)  against the mall
1.10
Imputation of Former Client Conflicts to Affiliated  Current and Former Firm Clients
Lawyers o Atty disqualified only when atty has actual
Rule 1.10(a)(2) permits screening to avoid imputation of knowledge or information about former firm
conflicts from one lawyer in a firm to another if the conflict clients:
involves a client that the lawyer represented at a prior firm or o If atty acquired no knowledge or
that the prior firm represented. MRPC also permit screening information relating to a particular client,
under certain other conditions to avoid otherwise neither atty nor new firm is DQ’d from later
impermissible conflicts   representing that client
Four situations  o If former client is the only one affected by a
1. Conflict involves work in which a lawyer was involved before current representation, only need consent
person become a lawyer  
from former client
2. Work done by former gov lawyer while person at the gov and now
at a firm that seeks to represent a client whose interest conflict with
the gov lawyers prior work  Rule 1.10: Imputation of Conflicts
3. Lawyer Received info from prosp client who did not become  no prohibition on representation when neither
actual client and firm seeks to represent or is representing a client questions of client loyalty nor protection of
whose interests conflict with those of the prosp client (1.18)  confidential information are presented.
4.Lawyer is DQ because lwr previously worked on matter as a judge, o Atty in firm has strong political position
a law clerk, an arbitrator, a mediator, or in some similar role (1.12)   against a firm’s client. Atty won’t work
 ABA approves amendment to allow screening for personal on case and his beliefs won’t affect
interest but rejected screening of laterals   atty’s on the case – no conflict for firm
 1.10(a)(2) added later which allows screening to prevent o Atty owns a business that firm is
imputation of lateral consent   opposing – firm is conflicted b/c
 If comply with screening requirements don’t need IC but practicing atty’s are materially limited
need to provide detailed notice of its screening procedures by loyalty to owner-atty
to the relevant former clients    No prohibition on representation by firm atty’s if
Firm: Lawyers in a law partnership, professional corp, sole non-lawyers have conflicts (e.g.
proprietorship or other association; Lawyers employed in a paralegals/assistants)
legal services org or the legal department of a corporation or
 No prohibition for atty’s pre-legal experiences
other organization
(but atty should be screened in case they have
 Imputed across offices and Not size dependent confidential information)
Shared office?: Context specific .If their file management and
 Former Atty Representation - can rep clients of
communication might permit one lawyer in a suite to have
former atty:
access to confidential info about a matter being handled by
o Doesn't matter how long ago the atty
another lawyer  
rep’d the former client
Consequences if screening not permitted or screening
o But doesn’t apply to any current client
insufficient?  Move to DQ; Lots of time and money  
o Nor if the current representation is part
 In practice judges usually apply their own judge-made
standards rather than those of Rule 1.10 to assess the of the same or substantially related
adequacy of the screen   matter on which former atty worked and
Lawyer switches firms? 1.10(b), like 1.9(b)  any other atty in firm has CI from that
  Firm A can take on new client whose interests are matter
materially adverse to client that went with attorney unless  1.10 governs all  practicing lawyers except
matter is substantially related to the work former attny did those that work for governments   
at the firm  and a lawyer who still works at firm A has  Steps needed for a screen Q: whether the
material confidential information learned in connection procedures adopted "are reasonably adequate
with work done for client that switched 1.10(b) requires under the circumstances to protect information
both  that the isolated lawyer is obligated to protect 
 Both cases determine if (1) Material adversity (2)  Waiving imputed conflicts?  1.10(C) says
Substantial relationship (3)Possession of material conflict imputed may be resolved by obtaining
confidences by a lawyer in the firm  (4) IF yes to all the informed consent of the affected client to the
three cant take on without consent of affected client   new representation under the conditions when a
 1.9(b) examines whether the lawyer brings the old firm's conflict can be waived by consent in 1.7 
conflicts with her  based on CI at firm A  Must make the appropriate disclosures and the
 1.10(b) conflicts remaining at firm A as result of work necessary consent must be in writing  
lwyr did while there 
 1.10(a) analyze COIs w/other lawyers at firm B b/c work at
firm a
Conflicts 1.5 Fees (highest rate on books = $1800/hr) 1.4 - Communications
Between Types: time spent, contingency, schedule, flat fees  guiding principle: atty should fulfill reasonable
Lawyers and  1.5 doesn’t require much, disclosure encouraged to be in client expectations for information consistent
Clients L&S: writing with (1) the duty to act in the client's best
477–514 1.5(a): reasonably is based on factors like time and labor, interests, and (2) the client's overall needs given
(skim 496– whether acceptance of matter precludes other employment; fee their representation
98) MPRC: customarily charged for service; amount in controversy and  In some circumstances, a lawyer may be justified
1.4, 1.5, 7.1, result; time limitations/circumstances imposed by client; in delaying transmission of information when the
8.4 nature and length of professional relationship; experience, client would be likely to react imprudently to an
reputation, ability of the lawyer; fixed or contingent. immediate communication.
Cases o Atty might withhold a psychiatric
Matter of Fordham: This is unreasonable; Fordham disclosed diagnosis of a client when the
his inexperience; work was novel & successful; BUT Fordham examining psychiatrist indicates that
never estimated how many hours that would take and this was disclosure would harm the client.
OBJECTIVELY out of line with other fees  A lawyer may not withhold information to serve
the lawyer's own interest or convenience or the
Mass Tobacco: Agreeing to 20% contingency fee becomes interests or convenience of another person.
unreasonable despite the LARGE risk and time commitment
involved in the suit when the amount awarded drastically 1.5 - Fees
differs from typical ($2 billion awarded; typically would have  An agreement may not be made whose terms
been about $20million)  might induce the lawyer improperly to curtail
services for the client or perform them in a way
1.5(b): Communications About Fee Arrangements (1.5(b))  contrary to the client's interest
 Lawyer must disclose (1) scope of the representation and (2) o Atty should not enter into an agreement
basis or rate of fee and expenses for which the client will be whereby services are to be provided
responsible  only up to a stated amount when it is
o Preferably in writing, but NOT required  foreseeable that more extensive services
o Should include general nature of the legal services to probably will be required (unless the
be provided  situation is adequately explained to the
o Should reveal hourly rate  client.)
o Doesn't have to be before representation; within a
reasonable time after commencing the representation  7.1 - Communications w/r/t Atty’s Services
o Does NOT need to estimate total time/total fee   A truthful statement is misleading if: omits a
o Good business to provide clients with realistic assessment of fact necessary to make the lawyer’s
the possible cost of representation (may include a high and communication considered as a whole not
low prediction)  materially misleading.
Modification of Fee Arrangements   A truthful statement is misleading if:
 Increasing fees - courts have varying standards about what substantial likelihood exists that it will lead a
is required in this situation (simple notification v. informed reasonable person to formulate a specific
 consent with each client)  conclusion about the lawyer or the lawyer’s
Lots of inappropriate practices services for which there is no reasonable factual
 ABA opinion cant bill second client for recycled work foundation
 No billing for personal expenses, double billing,  A truthful statement is misleading if: presented
rounding, billing for overhead, unnecessary work, in a way that creates a substantial likelihood that
charging for secretaries a reasonable person would believe the lawyer’s
Billing irregularities Case Study communication requires that person to take
 Potential other rules here 8.3, 5.1, 5.3, 8.3©, 5.2 (not further action when, in fact, no action is required
excused from conduct because being ordered  A communication that truthfully reports a
 5.1 © liability as partner lawyer’s achievements may be misleading if
Dividing Fees with Other Firms or Non-Lawyers  presented so to lead a reasonable person to form
 If two lawyers in different law firms work on case, an unjustified expectation that the same results
both should be paid for their services  could be obtained for other clients in similar
 Can be difficult with contingent fees if lawyers do not matters
always keep time records   an unsubstantiated claim or comparison about a
 MPRC 1.5(e) requires that a division of a fee between lawyer’s or law firm’s services or fees may be
lawyers made only IF:  misleading if presented with such specificity as
1. Division is in proportion to the services performed would lead a reasonable person to conclude that
and each lawyer assumes joint responsibility for the the comparison or claim can be substantiated.
action 
a. Lawyers "agree to share responsibility like 8.4 - Misconduct
partnersEach lawyer could be disciplined    a lawyer should be professionally answerable
2. Client agrees to the arrangement  only for offenses that indicate lack of those
3. Total fee is reasonable  characteristics relevant to law practice.
o Offenses involving violence,
dishonesty, breach of trust, or serious
interference with the administration of
justice are in that category.

Conflicts 1.5© : Contingency fees 1.4 - Communications: see previous section

Between  Pros: access to courtroom for otherwise poor clients, usually
Lawyers and aligns interests of lawyer/client 1.5 - contingent fees:
Clients L&S:  Con: lwyrs encouraged to engage in improper tactics to  Prohibition on contingent fees w/r/t domestic
514–554 ensure good recoveries; or may settle too quickly and relations matters DOES NOT APPLY to
(skip 539– cheaply to on to other clients contracts for contingent fees for representation to
542) MPRC:  Must specify:  recover amounts due under support, alimony, or
1.4, 1.5, 1.7,  Percentage of the recovery  other financial order
1.8(a), (c),  Indicate whether the percentage to be charged depends on
(d), (e), (f), how the case proceeds  1.7 - current client conflicts:
(h), & (i),  Whether award is deducted from before or after lawyer's fee 
1.10, 1.15, is calculated 
1.16(d), 5.2, Limits 1.8 - Current Client Conflicts – Special Rules
5.4, 7.1, 8.3,  No limit, but must be reasonable. Factors include (1) risk  (a) - no business transactions with clients
8.4 undertaken by lawyer, and (2) time invested into recovery  o requirements of paragraph (a) must be
o Reverse Contingent Fees (Percentage of the difference met even when the transaction is not
between what a plaintiff sought and what the defendant closely related to the subject matter of
ultimately had to pay) : Legal, but lawyer should take pains the representation
to ensure informed consent   Violation if a lawyer drafting a
Advanced payment of fees/nonrefundable rights will for a client learns that the
 Lawyer usually must return to the client any unearned client needs money for
portion of the retainer.  unrelated expenses and offers
to make a loan to the client
o applies to lawyers purchasing property
 Exception: Lump sum; in most cases this is a deposit
from estates they represent.
securing the lawyer's availability, and is not dependent on
o Applies when the lawyer accepts an
the work done 
interest in the client's business or other
 nonmonetary property as payment
 Non-refundable retainers: Generally discouraged because it
restricts ability to fire lawyers (Public policy strongly  (c) - no solicitation of substantial gifts from
favors client rights to fire lawyers at any time)  client
o such a gift may be voidable by the client
 BUT this protects lawyers from clients that are highly at under the doctrine of undue influence,
risk of not paying  which treats client gifts as
presumptively fraudulent.
o If effectuation of a substantial gift
 1.8(h): Malpractice: MPRC 1.8(h): Cannot limit liability requires preparing a legal instrument
through client agreement unless the client is independently such as a will or conveyance the client
represented when making the agreement  should seek another lawyer
 sole exception: where the
 Settlement: Ok for lawyers to settle with clients who do not client is a relative of the donee.
have independent legal advice, but lawyer must advise o does not prohibit a lawyer from seeking
client in writing that it is a good idea to get legal advice  to be (or helping a colleague) named as
 Settling a malpractice claim may not bar the client from executor of the client's estate or to
filing a disciplinary complaint or require the client to another potentially lucrative fiduciary
withdraw  position
LLP o As long as not solicited + independent
 One partner is liable for his own conduct and those they counsel = ok for gift in will
supervise, but not vicariously liable for conduct of other  (d) - no agreement for literary or media rights for
partners  case atty is working on
 Some clients don't like LLPs - may be less careful in making o does not prohibit a lawyer representing
decisions  a client in a transaction concerning
Fee arbitration  literary property from agreeing that the
 Comment to 1.5: If jurisdiction has set a mandatory lawyer's fee shall consist of a share in
mediation or arbitration requriement, the lawyer MUST ownership in the property
comply with it  o Can also make agreement after
 If the process is voluntary, the lawyer should representation concludes
"conscientiously consider submitting to it" 
 MPRC 1.8(h): Cannot limit liability and prohibit settlement  (e) - no financial assistance to client
without giving client opportunity for independent legal o Doesn't apply to lending client court
advice  costs, , medical examinations, and other
 Comment 14 to 1.8: Attorney/client arbitration clauses are litigation expenses or
OK so long as agreement is enforceable AND client is fully o For indigent clients, atty can fund
informed of the scope of the agreement. 
litigation expenses, regardless of
Collection of Fees 
prospect of repayment
 If Client DOESN'T PAY : Can contact the client, Can hire a
collection agency, Can withhold documents to the client, so
long as it doesn't unreasonably harm the client   (f) - no compensation from other than client
 Fees Owed to Lawyer who Withdraws; Depends on whether (unless consent in writing at the beginning, no
reason for withdrawal is for good cause  interference, and info protected)
 Lawyers are subject to Fair Debt Collection Practices Act , o Compensation from 3rd parties can be
Cannot engage in: (1) False/misleading representations (2) accepted BUT NOT if doing so creates
Abusive and unfair practices  conflict of interest
must not: Commit any acts of harassment against debtor;
Retain documents or unearned fees as leverage; Make false or
 (h) - no prospective limiting of malpractice
misleading statements about fee claim; Reveal information to
o Doesn't prohibit a contract limiting
a third party to get client to pay 
5.4(a): allows to share with lawyers in permissive jx even malpractice claims to ADR
though some of the money may end up being shared with non o Should usually advise client of
lawyers   usefulness of independent
representation with malpractice
 Cant pay referral fees to non lawyers (runners) 
limitations of any kind
o But may make payments for making info available
about their practices  
 o Cant pay accountant, real estate broker, or anyone else  (i) - can’t take proprietary interest in litigation
who sends clients your way after coming into contact atty is conducting
with group    o Liens still allowed – see jurisdiction for
o Some amount of solicitation is constitutionally specific lien allowances, client entitle to
protected   fair terms, clear explanation, and written
Third party  encouragement and advice to seek
 Parents, auto insurers, employers   advice of lawyer
 Rules allow only if: 
1.10 - Imputation of Conflicts
1. Client consents after being advised 
2. 3d person does not direct decision  whether a personal COI is imputed depends on
or ]interfere  whether it presents "questions of client loyalty or
3. Lawyer avoids sharing with the protection of confidential information."  
third person confidences learned from representation  
1.15 - Safekeeping Property
Conflicts with lawyers' personal or business interests  
 The lawyer is not required to remit to the client
 Generally: 1.7(a)(2) CoI if "there is a significant risk funds that the lawyer reasonably believes
that the representation of one or more clients will be represent fees owed.
materially limited … by a personal interests of a o Lawyer may not hold funds to coerce a
lawyer."  client into accepting the lawyer's
i. Must meet 1.7(b) contention.
Rule 1.8  Lawyer should not unilaterally assume to
Business transactions between lawyer and client  : Trend arbitrate a dispute between the client and the
has become permissive; Traditional view = should be avoided; third party
Better if maintain clear boundaries; 1.8(a) does not flatly
prohibit lawyers from doing business with clients but strongly 1.16(d) - reasonable treatment of terminated client
discourages them from doing so.    Even if the lawyer has been unfairly discharged
 Before making a deal ask questions on pg. 546   by the client, a lawyer must take all reasonable
 Don't apply to every lawyer-client contract   steps to mitigate the consequences to the client.
o Applies to contracts for goods and services regardless o The lawyer may retain papers as
of whether the lawyer is the buyer or the seller  security for a fee, but only to the extent
o Don't apply: (1) K for legal services, unless part of permitted by law.
fees is to be paid by transfer of property to the lawyer
5.2 - responsibilities of subordinate lawyer:
(2) K in which the client sells the lawyer some product
or service that client normally sells to others (e.g.  For example: if a question arises whether the
lawyer seeing a client/doctor for services)  interests of two clients conflict under Rule 1.7,
o DOES NOT depend on whether the Ks are related or the supervisor's reasonable resolution of the
question should protect the subordinate
unrelated to the matter on which the lawyer represents
professionally if the resolution is subsequently
the client  
challenged.
o Only applies where another party to the K is a cleint  
Things to avoid 
o Borrowing/lending money to your clients unless take 5.4 - Professional Independence of a Lawyer
great care to comply for 1.8, except for litigation  Where someone other than the client pays the
expenses   lawyer's fee or salary, or recommends
o Don't ever borrow a penny from client funds that are employment of the lawyer, that arrangement does
entrusted to you  not modify the lawyer's obligation to the client
o Don't sell anything to a client  
o Don't ask your client to invest in your business   7.1 - Communication of Lawyer’s Service
o Stocks can be form of payment but requires 1.8 and  It is misleading to use the name of a lawyer
1.7 + maybe subject to SEC rules   holding a public office in the name of a law firm,
Gifts or in communications on the law firm’s behalf,
during any substantial period in which the lawyer
 1.8(c) prohibits a lawyer from soliciting substantial gifts
is not actively and regularly practicing with the
or bequest from a client  
firm.
 Prohibits a lawyer from preparing for a client any
 A law firm name or designation is misleading if
instrument (such as a will) giving a gift to the lawyer or
it implies
his relatives (unless close relative) 
  Does not bar lawyer from receiving unsolicited gifts from o a connection with a government agency,
clients: If too large client could later sue for its return   o with a deceased lawyer who was not a
 Client must be given a chance to get independent legal former member of the firm,
advice before xfer  Gifts  o with a lawyer not associated with the
 Sex firm or a predecessor firm,
o with a nonlawyer or
 Rules prohibit, even if client is not prejudiced, except for
sexual relationships that existed before   o with a public or charitable legal services
organization.
 1.8(j) bars relationship with any person in the corporation
"who supervises, directs, or regularly consults with that
lawyer concerning the organizations legal matters."    8.3 - Reporting Misconduct
No prohibition on relationship with former clients; Can  Relaxed rules for treatment/assistance/therapy
assist client in finding new counsel before initiating  programs
Intimate or family relationships with adverse lawyers   
 May not represent clients who are adversaries unless the 8.4 - misconduct
clients have been informed of the relationship, advised of
the possible problems, and given informed consent  
o NOT imputed to members of lawyers' firms, consent
might still be advisable  
Imput. of lawyer-client conflicts to other lwyrs in firm 
 Financial interest conflicts  
o 1.8(k) financial interest conflicts of one lawyer in a
firm are imputed to all other lawyers in the firm, but
does not impute to 1.8(j) thought of as personal
conflict 
 Non-Financial= 1.10(a)
 If personal interest involves a prohibition to undertake
certain transactions under Rule 1.8, one should refer to
Rule 1.8(k) rather than Rule 1.10 to determine whether
imputed  
Conflicts Regulation of Lobbying 1.9 - current client conflicts (see above)
Issues for  Lobbying Disclosure act: Disclosure for those who lobby
Government executive agencies apply only to those who lobby very 1.10 - imputation conflicts
Lawyers and senior officials
Judges L&S:  Conflict of Interest and revolving door statutes 1.11
555–596  18 USC 205 (2009): prohibits current officers and  1.11(a)(2) dqs lawyers only from work on matters
MPRC: 1.9, employees of US from bringing claims against US or involving a specific party or parties, rather than
1.10, 1.11, representing any party before agency or court in connection extending DQ to all substantive issues
1.12 ABA with matter which US has a direct and substantial interest  (e ) a matter may continue in another form, lawyer
Model Code  18 USC 207(a)(1)(B)(2009): Two year prohibition on should consider the extent to which the matters involve
of Judicial former officers and employees of the US from bringing same basic facts, same or related parties, and the time
Conduct claims against the US or helping others bring claims in elapsed (hypos on pg. 563)
(especially which US is a party or has a direct and substantial interest  "personal and substantial participation"-Not defined
Canons 2 & and in which the former officer or employee participated o Borrowed from Ethics in Government Act 18
3) personally and substantially while a federal employee USC 207
 18USC 207©(2007): bars former gov employees from o "personally" means directly and includes the
trying to influence employees of their former agency for a participation of a subordinate when actually
period of 1 year after leaving office on behalf on any other directed by the former Gov employee
person (doesn’t restrict jobs lawyers may accept that much) o "substantially" means that the employees
 See also Obama EOs involvement must be of significance to the matter,
Successive conflicts of former and present gov. lawyers or form a basis for a reasonable appearance of
 1.11 imposes less stringent standards regarding successive such significant
conflicts that arise from a lawyers present or past gov o Requires more than official responsibility,
service, allows screening knowledge, or perfunctory involvement, or
 Rationale: would make if v difficult for gov lawyer to get involvement on an administrative or peripheral
jobs and we want lawyers in the government issue…The single act of approving or
 Conflicts of former gov lawyers in private practice participation in a critical step may be substantial
 1.11(a)(2): precludes a former government lawyer from o It is essential that the participation be related to a
representing a client in a "matter in which the lawyer "particular matter involving a specific party"
participated personally and substantially" while in gov o It is more complicated in gov context b/c not just
service litigation
 Former gov lawyers are governed by this instead of 1.9(a)  When a lawyer has been employed by
wrt conflicts between prior gov work and present work in one government agency and then moves
private practice BUT 1.9(c) still applies
o Present gov lawyer are subject to 1.9(a) and 1.11
to a second government agency, it may
o Both groups are subject to restrictions imposed by be appropriate to treat that second
Rule 1.7 and 1.9©(on protecting confidences) agency as another client for purposes of
 NO inquiry into degree of adversity, barred if participated this Rule,
personally and substantially  e.g. when a lawyer is employed by a city
 1.11(b) permits other lawyer in firm to handle matter, so and subsequently is employed by a
long as less stringent requirements are met (rather than Rule
1.10) NO CONSENT NEEDED
federal agency.
o Screen and ensure no fee unless part of regular salary
or partnership share
o No consent needed, simply screen and notify gov
agency about its work on the matter
o Notice should include "a description of the screened
lawyer's prior representation and of the screening
procedures employed
o Less stringent because of timing of the rule (early) and
want to encourage government service

Confidential information
 1.11© (NON-Consentable): Precludes former gov lawyers
on grounds they learned confidential information about
person and the new matter involved material adverse use of
the information
o Permits screening to avoid conflicts; Requires actual
knowledge Only wrt to matter in which lawyer could
use info in a way to harm
o Must have been obtained through gov power (e.g.
subpoena)
o Gov Must be barred from disclosing
o Info Must not be in public domain
o If screened, firm may go ahead, can be basis for DQ
 Matter (an be cured by agency consent 1.11(a)
 Confidential gov info cannot be cured by consent 1.11©
 Conflict of Gov lawyers who formerly worked in private
practice

1.11(d): Conflicts of gov lawyers, formerly in private

 1.9(a) and 1.7
 Federal state and local prosecutors are subject to same rules
that apply to other gov. lawyers
 Prosecutors have some additional rules

Conflicts rules for former judges, law clerks, arbitrators,

and mediators
 1.12(a): "personal + substantial participation” same as 1.11
  "imputation" :1.12(c ) says so long as the judge is timely
screened from any participation in the matter and is
apportioned no part of the fee there from, and written notice
is promptly given to the parties and any appropriate tribunal
so they can check whether the rule is observed
 Does not prohibit regular salary or partnership share
established by prior independent agency
 "Employment Negotiation 1.12(b) prohibits lawyer-
adjudicators from negotiation for employment with any
party or lawyer for a party to a matter in which the
adjudicator is "participating personally and substantially"
o Similar prohibition imposed on gov lawyers in 1.11
o Present tense, does not appear to prohibit the lawyer-
adjudicator from employment negotiation after the
adjudication has concluded
 Law clerks are permitted to apply for jobs even with parties
involved in matters that are pending before their judges but
"only after the lawyer has notified the judge or other
adjudicative officer" (1.12(b))
Lawyers’ 3.1 requires lwyrs bring meritorious claims, but undefined 1.2
Duties to  Wide range of interpretations e.g. lawyer got facts wrong,
Courts L&S: lawyer should have investigated further (forged emails?),
597–627 should have known suit was groundless but unpersuasive 1.16 - Declining Representation
MPRC: 1.2, witness statements might be enough, or scintilla might help  If court appointed – seek court approval or
1.16, 3.1, 3.3, avoid sanctions provide notice of matters of mandatory
8.4(c)  Investigate: If you believe or no objective reason to distrust withdrawal – tread carefully when court requests
problem don’t need to reasons that are tied up with CI
Vs FRCP 11
 Bar discipline vs judge $ and non financial discipline 3.1 Meritorious claims and contentions:
 FRCP 11 has safe harbor, w/draw within 21 days, 3.1  Comment 2: facts need not be fully substantiated
doesn’t before suit is filed
 FRCP Penalties sanctions, which can apply if lawyer files in  Recognizes lawyer may need to use discovery to
GF and later finds out groundless develop vital evidence
 Lawyers Must "inform themselves of their
Liability for malicious pros/wrongful use of civil proc. clients' cases and the applicable law and determine that
(tort) : P usually must prove they can make good faith arguments in support of their
 She won previous suit in which she was a D clients' positions
 Prior suit was brought without probable cause
o If lwyr had "reasonable belief" facts could be established
and under those facts, the client had valid claim" 3.3 - Candor Toward The Tribunal
 Prior suit was brought with malice (a motivation other than  applies when the lawyer is representing a
obtaining a proper adjudication of the case), and client in an ancillary proceeding such as
 That the P was injured despite having won the prior suit a deposition
 Some states require "special injury" that he was injured in
his reputation, his person, or his liberty

Lawyer believes client will lie on stand?
 Nix: As Strickland reasonable Q. Ct recommends
o Attempt to dissuade client (minimum)
o Rules also suggest that an attnys elevation of his
client's perjury to the court is a professionally
responsible and acceptable response to the conduct of
a client who has actually given perjured testimony
o Withdrawal of counsel when this situation arises at
trial gives rise to many difficult questions including
possible mistrial and claims of double jeopardy
 o Whatever scope of right to testify, it is elementary
that such a right does not extend to testifying falsely
3.3 Duty of Candor
 3.3(b) lwyrs must correct fraudulent conduct by
witnesses
 TRUMPs confidentiality (3.3(c))
 In civil case if reasonably believes testimony is false,
lawyer may refuse; Only if actual knowledge must the
lawyer refrain
 In criminal case lawyer must not present, BUT must allow
if he does not know but only reasonably believes it to be
false. (3.3(a)(3).
Protecting yourself by not knowing facts? Maybe up to a
point but 1.2(d); 1.13; 3.3(b)

Lying?
 Rules prohibit false statements, but some less direct forms
like partial truth are okay
 Perjury: lying under oath
 Bronston: evasions and half-truths are not perjury even if
speaker intends to mislead
 Other rules: 8.4© barring deceit, 7.1 false or misleading
statements in advertising is defined here BUT NOT in 3.3
or 8.4
Trilemma: (1) thorough complete representation of clients;
(2) lawyer-client confidentiality; (3) avoiding false
information (Monroe Freedman)

Lawyers’ 3.4 Fairness to Opposing Party and Counsel 3.3 - Candor Towards the Tribunal
Duties to  Lawyers may coach witnesses and help with their demeanor  If only a portion of a witness's testimony will be
Courts L&S: (American law hates rambling), MPRC says little about this  false, the lawyer may call the witness to testify
628–650  3.4 - just discusses false or induced testimony, coaching and but may not elicit or otherwise permit the witness
MPRC: 3.3, preparation is unaddressed   to present the testimony that the lawyer knows is
3.4, 4.1, 7.1,  Restatement permits this, but cannot introduce false false.
8.4 evidence, suggest answers. (Criticism: lawyers shouldn't do  Certain local rules that require a defendant to
this, how do they know the true facts?)  provide a narrative statement on their own
Concealment of Evidence behalf, regardless of its truthfulness, trump this
 3.4(a): can’t obstruct another party’s evidence rule
 Also may be tort of spoliation  If client provides false information in court, and
 Must have “potential evidentiary value” to be unlawful atty thinks withdrawal wouldn’t correct the issue,
o Tough to enforce this rule then atty must disclose to the court, even if in
 Cases: violation of 1.6 (CI rule)
o State v.  Olwell  (1964) - should turn over physical o Atty may still represent the person – but
evidence of crime after inspection and testing, with or may need to seek court approval for
without subpoena ; Prosecutor should be careful not to withdrawal if relationship deteriorates
disclose where the knife came from to avoid prejudice 
 Lawyer resisted coroner subpoena  3.4 - fairness to opposing party and counsel
o In re Ryder (1967) - Concealing evidence by moving  Other law may require atty’s take temporary
money/guns to lawyers own safe deposit box is control over physical evidence for clients – in
unethical, motivation doesn't matter because lawyer that case, follow that law and its requirements
helped to conceal evidence 
 FBI obtained a warrant on deposit box  4.1 - Truthfulness to Others
o People v. Meredith (1981) - Lawyer instructing an  generally accepted conventions in negotiation,
investigator to move evidence at a crime scene is certain types of statements ordinarily are not
impermissible if intended to deceive prosecution Unless taken as statements of material fact. E.g.:
it is necessary to test/examine the evidence  o Estimates of price or value placed on
  Knowledge of evidence location remains the subject of a transaction
privileged   o a party’s intentions as to an acceptable
 Defendant appealed his conviction arguing settlement of a claim
lawyer violated attorney client privilege  o the existence of an undisclosed
o Morell v. State (1978) - Almost no difference between principal except where nondisclosure of
documents and other physical evidence, applied same the principal would constitute fraud.
rule of law as Olwell.  Defendant appealed his  Crime or Fraud by Client
conviction arguing lawyer violated IAC  o Depending on circumstances, atty may
need to:
o Federal Obstruction of Justice Statutes - Prohibits  Withdraw from representation
concealment, alteration, and destruction of documents by  Withdraw and give notice of
any person who knows the documents are covered by a withdrawal and disaffirm opinions,
grand jury subpoena  documents, or affirmations
o Sarbanes-Oxley Act  Withdraw and disclose info about representation
 Concealment issues can arise in bar proceedings as well to avoid looking like an accomplice

7.1

8.4

Lawyers’ Concealment of Docs/Evidence in Civil/Criminal 3.3 - Candor toward the Tribunal

Duties to - Also may be unlawful if a tort  Atty’s reasonable belief that evidence is false
Courts L&S:  Criminal Matters  does NOT preclude presentation to fact finder
650–685 o If lawyers does not know of violation of law and no  However: lawyer’s knowledge that evidence is
MPRC: 3.3, criminal investigation is foreseeable, no duty to turn false can be inferred from the circumstances.
3.4, 3.5, 3.6, over evidence   Additionally: atty can’t stop client testimony if
3.7, 3.8, 3.9, o Duty not to conceal begins at varying times in different atty has reasonably belief it will be false
4.1, 4.4, states, from when lawyer reasonably believes to when o Only knowledge of falsehood lets atty
8.4(c) investigation actually begins  refuse client’s testimony
 Civil Matters    Lawyer must attempt to persuade client to
o Governed by civil discovery and PR rules  correct record 
o Some states require the preservation of business records o If client refuses, must withdraw or
even if no investigation pending  report the falsehood, even if this
o If lawyer has reason to believe wrongdoing occurred, requires discloses confidential
duty to preserve varies from state to state  information 
o Once duty kicks in, duty maintains even if documents
could normally be routinely destroyed  3.4 - Fairness to Opposing Party and Counsel
Duties Responding to Discovery Requests   Other restrictions: 3.4(e) imposes further limits
o Lawyers are subject to court rules for discipline, but can particularly restricting comments that might
also be sanctioned under MPRC 3.4 if fail to meet prejudice judgment of juries  
discovery requests   Shouldn’t mention fact unless relevant  
o Lawyers often go to great lengths to hide information as  Should not evade advocate witness rule by
a result of discovery requests  providing factual info to the jury, if must state
o Some lawyers justify by most discovery requests facts within unique personal knowledge should
irrelevant  attempt to take stand under one of exceptions 
o Lawyers often blame the others in the legal system for  Should not state personal opinions as to the
systemic problems But Try to respond as narrowly as justness of a cause, credibility of a witness,
possible; delay responses as long as possible culpability of accused  
Duty to Disclose Adverse Legal Authority 3.3(a)2)  lawyer should not ask an improper or
 cannot knowingly fail to disclose adverse legal authority objectionable question to plant an idea in the
in the controlling jurisdiction  minds of the jury  
 No similar duty to disclose adverse facts (contrary to duty
of confidentiality)  3.5 - Impartiality and Decorum of the Tribunal
 (d): lawyers should refrain from abusive or
 Does not apply to other jurisdictions, dicta, non-directly obstreperous conduct , even if judge is not  
adverse, or secondary sources 
 "Knowingly" requirement 
3.6 - Trial Publicity
Ex Parte Proceedings (duty here overrides CONFIDENCE,  the rule applies only to lawyers who are, or who
but not WPD or ACP) have been involved in the investigation or
 Must inform the tribunal of all material facts known to litigation of a case, and their associates.
the lawyer that will enable to the tribunal to make an  identifies types of statements including contents
informed decision  of any confession, a statement that a D refuses to
 In non-emergency ex parte proceedings (patent confess, and any opinion as to the guilt or
proceedings, disability hearings), bar authorities are split. innocence of a D, even a statement that a D has
Jurisdictions apply these requirements differently, and been charged is listed as likely to be prejudicial
some not adopted MPRC 3.3  unless P also explains presumption of innocence
until proven guilty  
Improper Influences on Judges and Juries (3.5)
 3.5 - Cannot influence a judge or juror by means 3.7 - Lawyer as a Witness
prohibited by law   Two purposes: (1)   Avoid prejudicing the
 Ex parte communication with judges  tribunal and the opposing parties, because
o Only communications related to proceedings, not lawyers’ statements carry more weight with
personal communications  juries potentially (2) Avoid a COI between the
 Campaign Contributions  lawyer and the client by giving adverse
o Some states have limits on amount that can be donated; testimony  
judges may not be able to decide cases where one party 
has made a large contribution to a judge  3.8 - Special Responsibilities of Prosecutors
Improper Influences Juries   “discovery” refers to providing info as required
 Comments to the Press by court rules in response to requests
o free speech vs comments that can unfairly influence
juries  3.9 - Advocate in Non-adjudicative Proceedings
o Gentile case - comments made during pretrial over theft  DOES NOT apply to negotiations with or
case in LV is void because MPRC "elaboration" and inquiries to government agencies that are
"general nature" clauses were too vague about what was unconnected to an "official hearing or meeting"  
prohibited.   does not apply to representation of "client in a
 3.6 is amended to omit that clause  negotiation or other bilateral transaction with a
o 3.6 governs pretrial statements, 3.8 adds restric. for governmental agency or in connection with an
prosecutors  application for a license or other privilege or the
o 3.6© allows lawyer to make statement to respond to client's compliance with generally applicable
other publicity to defend client reporting requirements like filing income tax
o EXCEPTION: But CAN make statements a returns.
"reasonable lawyer would believe is required to protect  ALSO does not apply to the representation of a
a client from the substantial undue prejudicial effect of client in connection with an investigation or
recent publicity"  examination of the client's affairs conducted by
 Should limit to permissible content in MPRC 3.6(b)  government investigators or examiners (this
 Extra-judicial are least likely to prejudice representation is governed by 4.1 and 4.4)  
o Lawyers sometimes send copies of court documents to 4.2
the press- generally permissible but lawyer may have  Attempts to balance (1) enable lawyers to
only a qualified privilege in these cases (usually must conduct inexpensive fact gathering before
have been filed with court) lawsuits (2) protect clients from overreaching
o In some cases, violating these rules may result in by opposing lawyers
dismissal of the case But discip. cases not common (But
see Unsafe sex article)
Impeachment of Truthful Witnesses
 Rules don't address problem about whether you can cross
ex an opposition witness in a way that suggests they are
lying if lawyer believes they are truthful  
 A lawyer defending client whom lawyer knows to be
guilty may assist the client in pleading not guilty and may
 force the state to present its evidence  
 Lawyer may object to proffered evidence that may be
inadmissible (e.g. unlawfully seized evidence)  
 4.4(a): lawyer may not use means that "have no
substantial purpose other than to embarrass, delay, or
burden a 3d person"  
o Discrediting a witness often not solely this purpose  
o No reported disciplinary cases on this  
o Rest approach: says you can, but even if legally
permissible a lawyer presumably do so only where
that would not cause the lawyer to lose
credibility w/tribunal or alienate the fact finder  
o ABA Crim Justice Standards say it is okay  
Statements by lawyers during jury trials   (3.7)
 Advocate witness rule: In general lawyers may not testify
as witnesses in cases that they are handling (3.7) "likely
to be called as a necessary witness"  
 EXCEPTIONS:
o Testimony relates to an uncontested issue  
o relates to nature and value of legal services in the case  
o Disqualification of the lawyer would work substantial
hardship of the client (book example, 678)  
 A lawyer may act as an advocate in a trial in which
another lawyer in the lawyer's firm is likely to be called as
a witness unless precluded by 1.7 or 1.9  
 Shouldn’t appeal to racial or other prej of jurors
(8.4) manifestation of prej. could be basis for discipline  
o Court dependent, could be grounds for mistrial, some
courts give lawyers latitude  e.g. tobacco case, lawyer
highlighted MLK and how companies segmented
marketing on race  
 When two Ds being tried separately for a crime they
allegedly committed together, a prosecutor may not call
one of them to the stand in the trial of the other and ask
whether he participated in the crime, knowing the witness
will invoke right not to incriminate himself  e.g. Douglas
v. Alabama (p. 681) 
 Punishments for violating? 
o Imposed mostly by judge, strike from record, sustain
objections, give corrective instructions to jury  
o If not sufficient to remedy can declare mistrial, or
appellate court might order new trial 
o If conduct repeated might order sanctions/contempt 
o State bar might bring disciplinary proceedings  
 Other limitations 
o Rule 3.5(d) lawyers should not "engage in conduct
intended to disrupt a tribunal"  
o Applies during depos and hearings  
o Substantive jx law also has impact e.g. discussing law
in closings but not opening, not really enforced that
much in practice 
 Interviewing jurors 3.5 regulates contacts between
lawyers and jurors outside court  
o Generally cant communicate or influence during
proceeding unless permitted by law or judge  
 o After case is over the jury has been discharged a
lawyer may talk to any juror who is willing to talk to
the lawyer  
o NOT allowed if barred by law or court order or if the
juror has stated that she does not want to
communicate  
o NOT allowed to mislead, coerce pressure or harass
jurors  e.g. lawyer may not pretend to be a member of
the press in order to find out what happened during
deliberation  
Lawyer's duties in nonadjudicative proceedings  (3.9)
 3.9: extends some of these rules also apply when lawyers
represent clients in legislative hearings, in rulemaking, or in
other nonadjudicative proceedings before government
agencies "in which the lawyer or the lawyer's client is
presenting evidence or argument" 
o Rationale: if presenting factual or legal material to a
decision maker, lawyer has a responsibility to the
decision maker to assure accuracy of the info presented
and to conduct himself in a manner that assists the
administration of justice   
o Adjudication: proceeding whose purpose is to decide a
case involving a specific set of persons or facts  
1. 3.3 specifically refers to proceedings before
"Tribunals  
2. 1.0(m) defines "tribunal"  
Lawyers’ Communications with lwyrs/3d persons 4.1 - Truthfulness in Statements to Others:
Duties to  Deception of third parties   generally accepted conventions in negotiation,
Adversaries o 4.1 - prohibits knowing false statements/deception ; certain types of statements ordinarily are not
and Third Only applies to material false statements  taken as statements of material fact. E.g.’s:
Persons o Clients: o Estimates of price or value placed on
L&S: 687– o If proceeding has commenced, must take remedial the subject of a transaction
719 MPRC: actions per MPRC 3.3  o a party’s intentions as to an
4.1, 4.2, 4.3, o If no proceeding, AND not using lawyer to perpetuate acceptable settlement of a claim
4.4 fraud, no rule requires lawyer to correct (but client o the existence of an undisclosed
could be charged with a crime for lying depending on principal except where nondisclosure
context)  of the principal would constitute
 Duties of truthfulness in fact investigations  fraud.
o Most often arises in testing conduct that might
warrant a lawsuit (discrimination)   Crime or Fraud by Client
o Also in ensuring judgements are being enforced o Depending on circumstances, atty
(continuing injunctions or agreements)  may need to:
o Gatti Case  Gatti broke the rule by misrepresenting  Withdraw from
his identity and purpose to deceive defendants. representation
THIS APPLIES to prosecutors as well (Oregon  Withdraw and give notice of
only), but legislature later overturns  withdrawal and disaffirm
 Court then decides all lawyers can oversee opinions, documents, or
these investigations, but cant participate affirmations
personally But can only be supervised when  Withdraw and disclose info
there is a reasonable possibility that wrongful about representation to avoid
conduct has taken place, or will happen in looking like an accomplice
future. 
 State variations (or undecided issues)  4.2 - Communication w/ Person Represented by Counsel
o Whether to exclude evidence   Need actual knowledge that other party is
o Whether to permit lawyers to friend request on represented before 4.2 violation occurs
facebook (NY committee says okay if use real name o BUT, knowledge can be inferred from
 and profile, and investigator does not need to reveal the circumstances – lawyer can’t blind
true reason for request) themselves to the obvious
o Witnesses (prob less restrictive) v. adverse parties   For adversary organizations/companies, can’t
o 4.2 Lawyer must ask if person is represented talk to a constituent of the company who
o But searching publicly available sources is usually routinely works with the organization’s counsel
OK (OK Cupid e.g.) (w/out consent)
 Duties of Truthfulness in Negotiation (4.1): Cannot o BUT, no consent required for
knowingly lie for the purposes of bargaining  communications with former
o Only applies to statements of fact (valuation of constituents
property, parties intent, etc.)   No prohibition against communication with
o Enforceability  represented person about matters unrelated to
o Some argue this is moot because negotiations are their representation
private; others argue for an exception  o Atty can also communicate with non-
o CRITICISM: Makes negotiation too adversarial by lawyer representatives of opposition
requiring evasive answers  regarding an unrelated matter
 Receipt of Inadvertently Transmitted  The parties in a matter can communicate with
Information (4.4) If you inadvertently get each other w/out counsel permission
information from opposing party you may use it, but o BUT, atty can’t communicate in a
you must disclose to them you obtained it  forbidden way through another person
o Metadata   “authorized by law" exception may cover
o States vary, ranging from full use w/o disclosure to no communications that occur prior to filing of
use at all charges  
o ABA Rule now requires disclosure but does not
address whether the info can be used)  4.3 - Dealing with Unrepresented Person
o Some permit software to scrub for metadata   Can't give advice EXCEPT for advice on
o Data sent from employee email accounts is usually not obtaining counsel
o Atty may negotiate the terms of a
"inadvertent" in the context of the employer 
transaction or settlement SO LONG AS
 Obligation of Disclosure to Third Parties (4.1(b)):
the lawyer has explained their own
This is subordinate to the duty to protect confidential
adversarial role
information 
 Given good explanation, atty
can communicate the terms of
Restrictions on Contact w/ Represented Persons 
an agreement, create docs
 4.2 - Cannot communicate with a person represented by
requiring adversary’s
counsel about the subject of the representation without
signature, and can explain own
consent 
view on interpretations
o Applies to all parties with representation, not just those
in litigation  4.4 - Respect for Rights of Third Persons
o Applies to comms initiated by either side 
 Rules on mis-sent documents applies equally to
 BUT if represented client calls a 2nd lawyer for document meta-data
second opinion/change lawyers, this is OK 
 Rule only requires notifying sender of mis-sent
o If lawyer believes person is unrepresented, must end the
document – any further requirement of return of
conversation as soon as they realize they have documents is governed by other laws
representation 
o Cannot get around this rule using non-attorneys on staff
o People represented can talk to each other
o Goal is to avoid end runs by lawyers 
 Government: DOES NOT apply to contacting
government agencies (First amendment protection to
petition government), ABA ethics opinion urges
lawyer must first notify gov. lawyer of intent to talk
directly with policy officials to give lawyer a chance
to advise them not to talk to lawyer or advise them
what to say
 Corporations 
o ACP(Upjohn)= trying to compel documents prepared
 by corps lawyer; corp may deny access if within scope
of ACP
o 4.2= interview employees to learn info without
permission from corps lawyer BUT cant interview
employee who (1) supervises, directs or regularly
consult with orgs lawyer wrt matter (2) has auth. To
obligate org wrt to matter; or (3) act or omission in
connection w/matter may be imputed to org for purpose
of civil or crim liability
o Messing Case (Mass) contact with Harvard employees
with some authority over P, This is permissible; only
contact banned is with managing authorities with
managing authority to give them the right to speak for
and bind the corporation 
o Edits in 2002 change this to those with "managerial
authority over the matter at issue" 
o Cronin Case: "neither a client's interest nor an
opponent's conduct justify communication with an
adverse party that a lawyer knows is represented by
counsel" 
o Disclosures should make w/unrep party 4.3: (1) To
correct, lawyer should advise person of their role, (2)
Explain that lawyer may share information with others
(including employer if representing an organization)
and (3) Periodically assess whether there is a risk of
criminal liability for said person, and if so counsel
towards hiring their own lawyer 
Restrictions on Contact w/ Unrepresented Persons (4.3)
 Cannot mislead the person into thinking lawyer doesn't
represent client, or imply that lawyer is looking out for
interest of both parties 
o Applies to general counsel and employees of
organizations 
o Lawyer must correct any misimpression of lawyers role 
o Fact specific, situational inquiry 
 Lawyer must refrain from giving any legal advice except
to seek counsel if a conflict of interest exists 
o But Lawyer can negotiate deals or settle with
unrepresented persons 
o Varies state by state for prosecutors negotiating plea
bargains 
 Talking to Opposing Counsel 
o Lawyer can advise witness they have a right not to talk
to opposing counsel (defense lawyer can advise witness
they don't have to talk to prosecutor) 
o BUT can’t request witness not talk to opposing counsel 
o EXCEPTION in MPRC 3.4 (f) precludes lawyer from
asking person other than own client to refrain from
giving relevant info to another party unless unrep
person is relative, employee, or other agent of lwyrs
client (so if friend such advices is NOT permitted)
 Secretly recording conversations is not ok if in violation
of state law and secretly recording one's own client is
inadvisable ABA opinion
o Respect for Rights of Third Persons 
o MPRC 4.4 - Cannot use means to embarrass, delay, or
 burden a third party. Also cannot obtain evidence that
violates rights of such a person 
o Can be liable criminally or civilly for not respecting
these rights. 
 Respect for 3d parties (4.4(a))
o Civil or crim consequences e.g. violates privacy or
takes possession of stolen property from 3d party
 Stolen Documents: excluded by some courts, when
excluded may DQ lawyer or not, some allow reliance on
docs on theory disco would have found anyway
Lawyers’ Duties of Prosecutors  3.8 - Special Responsibilities of a Prosecutor
Duties to  Extra Responsibilities of Prosecutors "Ministers of  negative position on waiving preliminary
Adversaries Justice"  hearings does NOT apply to an accused
and Third o 3.8(a) - Bars prosecuting only when it is one the
Persons prosecutor knows is not supported by probable cause 
appearing pro se with the approval of the
L&S: 719– o Prosecutorial Discretion permits them to dismiss more tribunal.
743 MPRC: cases But many will be overzealous to get high o Nor does it forbid the lawful
3.8, 8.4 conviction rates  questioning of an uncharged
o Also requires prosecutors to make reasonable efforts to suspect who has knowingly
assure that an accused has been advised of the right to waived the rights to counsel and
counsel and has had reasonably opportunity to obtain
counsel  silence.
o Bar prosecutors from seeking waivers of important  Prosecutors should refrain from making
rights from unrepresented person  public statements that have no law
o Directs prosecutors to refrain from issuing subpoenas to enforcement purpose or would cause
lawyers about their clients "unless the prosecutor increased public disdain of the convicted
reasonably believes " that a lawyer's evidence is not
privileged and is essential   When prosecutor must disclose evidence
 Two biggest problems with Pros   that a conviction was wrong, should seek
1. Concealed evidence   court appointed lawyer for the
2. Presentation of evidence know to be false    wrongfully convicted individual
 Undercover Investigations  Little caselaw interpreting
whether investigations violate 4.1 
8.4 - Misconduct
o Book paradigm= before charged okay, after, not
o 4.2, some states hold the state may not have any  No particular misconduct rules for
communication with a represented criminal defendant Prosecutors, but 3.8’s
unless (1) state gets lawyers consent, (2) requirements/suggestions add
communication is authorized by law, or (3) state prosecutorial obligations
obtains a court order 
 Misconduct in positions of public office
o Post-arraignment interviews with a defendant without
the consent of a lawyer have been found to violate can create more-than-normal distrust in
4.2  the profession
o But pre-arraignment has been found to be OK in at
least one state  Interpretation really varies by state 
 McDade Amendment - "An attorney for the government
shall be subject to state laws and rules, and local federal
court rules, govrerning attorneys in each state where such
attorney engages in that attorney's duties." ALL ETHICS
RULES APPLY 
o DOJ says case law recognizes this distinction  that
authorized by law" exception may cover
communications that occur prior to filing of charges  
o 4.2 may be interpreted in favor of allowing
prosecutors to have contact with suspects before they
are charged (or allowing them to direct investigations
involving contact with such suspects), but it may be
 held to prohibit such contact, without the consent of
the Ds lawyer once a charge is filed  
 Required Investigation Before Charges are filed 
o 3.8(a) requires some level of investigation (analogous
to MPRC 3.1, similar to FRCP 11); Pretty low
standard (more likely guilty than not) ; Can be based
on 1 sided information 
o Prosecutors are rarely disciplined for this, so long as
some evidence supports a criminal charge, but
somewhat more on the rise. 

 Concealment of Exculpatory Evidence  

o Brady v. Maryland: suppression by the prosecution of
evidence favorable to an accused upon request violates
DP where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith
of the prosecution  
o SCOTUS later says that Pros. Must disclose
exculpatory evidence to the defense even if D has not
requested   Codified in 3.8(d)  
o Duke LAX :Lawyer withholds DNA evidence,
disbarred and convicted of contempt, this is very rare  
 Fail to disclose by accident? 
o It happens, one possible way to be disciplined
here is violation of 1.3 lack of diligence  
 Unreliable evidence  (studies show big prob)
o Proposal (Moriarty): amend rules to require prosecutor
to make reasonable efforts to assure that only reliable
expert evidence is admitted into evidence and to
prohibit them from using evidence that they know or
reasonably should know is unreliable  
 What if prosecutor obtains conviction but later learns of
evidence that suggests D may be innocent? 
 2008 ABA Amends 3.8 to add new obligations  
o Pros who obtains "new, credible and material evidence
creating a reasonable likelihood that a convicted
defendant did not commit an offense of which the
defendant was convicted" must disclose the evidence
to an "appropriate court or authority"  
o If prosecuted locally, the prosecutor must make a
reasonable effort to investigate whether an innocent
person was convicted  
o Pros with clear and convincing evidence of the
innocence of a convicted person must seek to remedy
the conviction  
 Pretrial Publicity  
o Must abide by 3.6 which also
prohibits extrajudical statements that the prosecutor
reasonably could know will have a substantial
likelihood of prejudicing a proceeding  
 Enforcement  Yaroshefsky says state bar discipline
cannot be relied upon  
o Secrecy of these proceedings prevents deterrent effect
of prosecutorial misconduct  
o State bar needs significant additional resources  
o Proposes independent commission made up of peer
 review by experienced criminal justice professionals  
 Conduct Prejudicial to the administration of justice  
o 8.4(d) acts as a catchall  
o Challenged as unconstitutionally void for vagueness
many times and failed (Examples of conduct on 739)
o Rewriting might be appealing but maybe
broadness = strength
 Other general rules  
o 8.4(e) prohibits lawyers from suggesting to clients that
they have improper influence with government agencies
or official or that they can get away with conduct that
would violate the ethical code  
o 8.4(f) bars lawyers from assisting judges to violate rules
of judicial conduct or any other law  
 Schneyer says criminal D lawyers are actually not zealous
refuting the popular notion, for structural reasons–
because they represent their clients on a one-shot basis
and are paid by 3d party: Fairness > winning 

The Criminal Defendants  6.1 - Public Service

Provision of  Constitution Requires counsel for indigent defendants  services rendered cannot be considered pro bono
Legal (See Johnson v. Zerbst; Gideon v. Wainwright)  if an anticipated fee is uncollected,
Services o Extends to juveniles and those facing >12mo  o but the award of statutory attorneys'
L&S: 753–  How States Meet this requirement  fees in a case originally accepted as pro
758, 761-775, o Fund a municipal/public defender office (criticism: bono would not disqualify such services
776-795  When not feasible to represent clients pro-bono,
Too many cases!) 
MPRC: 6.1, lawyers can discharge their ethical responsibility
o Contract with private lawyers to provide defense
6.2 by contributing funds
services (criticism: Sacrifice quality for cheap cost) 
o Wait to assign a public defendant until indicted by o Amount should roughly equal billed
grand jury (Criticism: lack of representation at early amount had lawyer repped the client
stage 
Ability to Accept Indigent Clients  6.2 - Accepting Appointments
 6.2 says lawyer cannot "avoid appointment by a tribunal"  unreasonably burdensome:
except:  o for example, when it would impose a
1. Would result in a violation of financial sacrifice so great as to be
MPRC  unjust.
2. Unreasonable financial burden on
lawyer 
3. Client cause is so repugnant as to
impair lawyer 
 Assignments are not random; usually need to compensate
lawyer 
o Court cannot force lawyer to serve w/o compensation
(this is a taking) 
 Policy rationale: Don't make access to legal counsel
dependent on wealth 

Civil Litigants : Generally, no right to receive court-

appointed counsel 
o Includes deportation proceedings 
o Some argue Due Process clause should provide this
right; BUT this argument always loses 
o SCOTUS: Even when faced with incarceration for a
substantial period of time, they enjoy no automatic right
to counsel (Turner v. Rogers) 
  Exception: Appointment of counsel required when
proceeding without counsel is "fundamentally unfair" 
o Usually this doesn't apply so long as other safeguards are
available 
 Exception: Some states permit Due Processes appointed-
counsel 
 “civil Gideon” : require government to provide lawyers
for indigents where basic human needs are at stake like
shelter, sustenance, safety, healt, or child custody.
o California applies "Civil Gideon" to pro bono
services for tenants facing eviction, and funds
with court fees
Fee Shifting 
 American Rule generally says no fee shifting 
 EXCEPTION: Statutes permitted by Congress for
"prevailing parties" (notably 1983 claims; ADA, etc.) to
allow P’s attny fees to be paid by losing parties
 policy goal behind this is to encourage enforcement of
certain laws (e.g. civil rights or consumer protection
statutes).
 Buckhannon Bd. v. Care Home Inc. - "prevailing party" is
one who obtains relief from a court, not from settlement
or intervening change in law 
 EXCEPTION: Settlements (Evans v. Jeff D); party can
offer waiver for right to pay attorney's fees as settlement;
waiver of statutory fees are bargaining chip, and
sometimes good for civil rights 
o Even though attorney has conflict between duty to
client and right to be compensated 

Pro Bono Representation 

 6.1 "suggests" 50 hours of pro bono /lawyer/year
including to 
o Persons of limited means or organizations
designed to assist persons of limited needs 
o Groups seeking to secure/protect civil rights,
liberties, or public rights 
o Participation in activities for improving the law 
The Lay Advocacy  **New version of 7.1
Provision of  Lawyers can hire staff that can assist in routine activities
Legal under supervision  7.5: pay-per-lead services and promotions are permissible,
Services:  Some court rules, statutes, agencies permit lay advocacy  but can’t pay a lead gen like GroupOn that creates
The  Law students under supervision of professor)  impression of endorsement
American  Lawyers should not assist or offer advice to lay advocates
Legal unless they are willing to take responsibility for their 5.4 - Lawyer’s Professional Independence
Profession actions   Where someone other than the client pays the
L&S: 795-  Washington has implemented "legal technicians" lawyer's fee or salary, or recommends
809, 822–851 permitted to offer limited services after formal training in employment of the lawyer, that arrangement does
MPRC: 1.7, specified categories (but cannot appear in court) not modify the lawyer's obligation to the client.
5.4, 7.1
Multidisciplinary Practice 
 Cannot share profits and responsibilities with nonlawyers
at a multifaceted firm (except: DC) 
o But can hire them to work for them 
o 5.4 prohibits this conduct and profit sharing -- "to
 protect professional independence of judgement" 
 Lawyers with training in two areas (law, accounting,
engineering) CANNOT practice both simultaneously 
 May be intended to protect small firms from being
swallowed by one stop shops 
 CRITICISM: Doesn't optimize resources, less
comprehensive resources, isn't in public's best interest,
prevents access to law for low-income individuals 
Advertising 
 Bates v. State Bar of AZ (US 1977): Allowed advertising,
potential for more litigation is better than people suffering
without knowing
o NOT allowed: false and misleading
 Ads are now widespread 
o Still cannot post information about legal advice (may
create lawyer-client relationship) 
 ABA Formal Opinion: lawyers may use websites to
advertise the qualifications of lawyers and clients of the
firm, and may post accurate information about the law
 New issues arising with law-client matching services
Solicitation
 Ohralik v. Ohio State Bar Assn (US 1978) - States may
ban in-person solicitation by lawyers, to avoid
overreaching, undue influence, and protect privacy 
 Sapero v. Kentucky Bar Assn (US 1988) - Mail
solicitations are ok, these aren't as coercive as in-person
solicitation. But can require identification as an
advertisement 
 In re Primus : lawyer sending letters to potential clients
offering free representation in a case challenging their
involuntary sterilization was engaging in communication
protected by the first amendment
 Florida Moratorium Law Ok by the Ct.
 States are free to enact more strict measures, subject to 1st
amendment 
 Internet Issues 
o Paying companies for pay-per-lead services (such as
pop up ads) or running promotions does not violate
the MPRC 5.4 regarding fee sharing; BUT cannot
pay a lead generator who creates an impression that it
is recommending the lawyer 
o Innovations are constantly changing (text message
advertising, offer of tablet computers, etc.) 
 Solicitation still subject to other state rules and laws
(Privacy laws, data laws, etc.)
 7.3(b): “sophisticated party, don’t have to be a lawyer
but might depend on type of services and regular use