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I. Lawyer discipline A. Grievances – anyone can file a grievance against you to take disciplinary action 1. No statute of limitations when it comes to grievances B. Process 1. Complaint filed against you 2. Grievance agency receives complaint 3. Agency conducts an investigation a. If allegations COULD constitute misconduct 4. Complaint sent to a lawyer for answer a. If you don’t respond (even if anything was false) that is substantive misconduct – in Michigan b. If suspended – EVERYONE must be informed by certified mail (judges, clients, opposing counsel, etc.) 5. Once you respond – they investigate a. Number one grievance is – failure to communicate 6. Decision is made a. No merit – dismissed b. Merit - Admonishment - Formal lawsuit charging you with professional misconduct i. If found guilty: - Probation – still allowed to practice - Reprimand – written warning that is published (publicly read) - Suspension o In Michigan: 30 days to 5 years 3 years of more: Have to take bar again - Disbarment o In Michigan: it means 5 year suspension and you can file a petition for reinstatement In Re Mountain – lawyer was disbarred for engaging in gross conflict of interest
and lying to disciplinary authorities - Mountain found new family with more money Gross conflict of interest – must represent one or the other can’t represent both II. Securing Clients A. Reputation 1. Factors that damage to reputation a. Lying b. Neglect c. Failure to keep word d. Engaging in misconduct e. Discourtesy/lack of civility f. Unprofessional appearance g. Incompetence h. Crimes i. Substance abuse j. Writing k. Promiscuity B. Advertising 1. Constitutionality a. Lawyers may constitutionally advertise their services and prices - Bates v. Arizona – the failure to advertise creates public disillusionment i. Bar arguments: - Ad has negative effect on professionalism - Commercializes the practice of law - Lawyers will appear as though motivated by profit as opposed to the public good - Will tarnish rep of profession - Advertising is inherently misleading - Each case is different – fixed prices are impossible – misleading ii. Court arguments: - Necessary to find out what lawyers charge to find legal services - No reasonable support for argument - Likely to reduce costs by virtue of
competition in the market place - People should know about their legal rights; ignorance is not bliss iii. SC held legal advertising is commercial speech that was protected by the 1st amendment iv. As long as it’s true and not misleading – you can say it 2. Central Hudson Test – sets forth the current 1st amendment standard for legal restrictions on commercial speech a. Restriction/regulation upheld only if: - Substantial state interest –asserted governmental interest (behind the regulation) is substantial - Restriction directly and materially advances that interest – regulation directly advances that interest - Restriction narrowly drawn – no more extensive than necessary to serve that interest 3. RMJ (Missouri) – Attorney ran ads in yellow pages/newspapers and mailed announcement cards – ads deviated from precise listing of areas of practice included in state’s rule governing lawyer advertising – ad words “real estate” instead of “property” a. Advertisements allowed so long as NOT misleading b. RMJ also invalidated prohibiting against lawyer mailing announcement cards to persons other than lawyers, former clients, personal friends, and relatives C. Solicitation 1. In-person solicitation a. Ohralik v. Ohio Bar – Ohralik confronted girls who were in a car accident, both girls were confronted in a hospital while Ohralik concealed a tape recorder. Court rejected respondents claim that his conduct was protected under the 1st amendment - State could prohibit in-person solicitation i. Don’t have to prove actual harm - Cannot engage in face to face solicitation i. Can’t use an agent to engage ii. Can’t use chat room iii. Can’t use telephone 2. Exceptions to in-person solicitation a. In Re Primus - Respondent lawyer was reprimanded for extending offer of free legal help by ACLU to group of women who were forced to agree to sterilization as condition of receiving medical benefits - Case involved political free speech – political free speech is more precious than commercial speech - Must show actual abuse
i. Overreaching ii. Misrepresentation iii. Invasion of privacy 3. General motive rule to solicitation: a. If primary motive is money – NO SOLICITATION b. If primary motive is NOT money – you can solicit 4. Target Audiences a. Zauderer – newspaper ad directed at users of Dalkon Shield – ad was not non-deceptive: - Case allowed lawyers to advertise in the newspaper- as long as not false and misleading i. Newspaper ads don’t invade reader’s privacy ii. Much less risk of overreaching and undue influence 5. Target Mail a. Shapiro – letters to people whose homes were known to be in foreclosure - Permissible as long as not false or misleading i. No coercive pressure ii. Strong possibility of improper lawyer conduct is not present in Shapiro iii. Improbability of effective regulation is not present in Shapiro D. Restrictions 1. Went for it – targets direct mail solicitations sent to prospective clients soon after accidents a. Holding that 30-day restriction is ok – Florida MAY ban targeted mail by P attorney’s for 30 days III. Lawyer Duties A. 1.1 Competence 1. Must possess: a. Legal knowledge (keeping abreast of law) b. Skill c. Thoroughness d. Adequate preparation 2. Must consider the type of matter AND the client a. If not competent – ethical violation 3. Not required to have experience – if you can render yourself competent with a reasonable amount of preparation a. Unless you can associate with someone who is competent 4. Factors determining competence: a. Relative complexity b. Specialized nature of matter c. Lawyer’s general experience - Not required BUT a factor
Experience in field f. Lawyer SHALL not counsel client to engage or assist client in crime or fraud a. Reasonable diligence . if reasonable and have informed consent of client 7.2d C.Make sure you have the time to devote to the case 2. Unless otherwise stated in rules. Association with competent lawyer B. Whether to waive right to speedy trial f. 1. Lawyer may limit scope of representation.3 Diligence – required to represent diligent and promptly 1. Must possess: a. Lawyer SHALL consult with client about how to achieve objectives 3. Keep client reasonably informed about status 5. social or moral views 6.Diligent even if the client owes you money b. Study and preparation g. Lawyer decides: a. Whether to call a witness even if client insists b. or personal inconvenience to lawyer . Client decides: a.2 Scope of representation 1.4 Communication 1. Strategic/tactical matters 5. What witnesses to call d. Whether to plead guilty b. Promptly comply with reasonable requests for information . lawyer shall abide by client’s decision regarding objectives of representation 2. Whether to testify d. Whether to conduct cross-examination e. Representation of client does not constitute endorsement of client’s political. Promptness . Whether to settle civil suit c. Whether to plea bargain e. obstruction. Whether to appeal 4. 1. Whether to waive late filing or extend time c. economic. 1. Reasonably consult with client about means of achieving client objectives 4. 1.Lawyer shall pursue matter despite opposition. Lawyer’s training e. Promptly inform client of any circumstances requiring informed consent 3. Lawyer shall: 2.d. Lawyer must act with commitment and zeal to client D.
All contingency fees shall: . 1. Basis/rate of fee c.6.Nature/length of professional relationship . lawyer shall provide settlement statement .Encouraged to reduce misunderstandings 3. Not required to be in writing b. Scope of representation b.Property settlement and other side .Must notify client of expenses for which responsible . reputation. Division of fees between lawyers NOT in the same firm only allowed if: .Time limitations imposed by client .If recovery.In writing . Division of fees a.Whether fee is fixed or contingent 2. skill . Costs for which client is responsible d.Likelihood that acceptance of case will preclude other employment.Not permitted in divorce or criminal cases i. Before/within reasonable time of starting representation. Preferably in writing .Experience. difficult. if apparent to client .Shall state method by which fee to be determined. or collect an unreasonable fee a.Time. Exception – if person is ALREADY divorced . A lawyer SHALL not make an agreement for.Fee customarily charged in locality .Client agrees as to each lawyer’s share and agreement confirmed in writing .Amount involved/results obtained . novelty. charge. Determining reasonableness: . ability .5 Fees 1. including percentage . labor.Division is proportional to services provided OR each lawyer assumes joint responsibility . lawyer shall communicate to client: a. Contingency Fees a. Consult with client about relevant limitations on lawyer’s conduct explain matter to extent reasonably necessary to permit client to make informed decisions E.Total fee is reasonable 4.Signed by the client .
Charge fee before goes to trial and a different if it does go to trial d. Pooled client trust account F.Rule 1. Expenses a. Reverse contingency fee – When your fee is based on amount of money you save your client . No fabrication of fees 6.Rule 1. Lawyer shall NOT make an agreement for. No double billing – working on another case while paid for time for another client 9. No churning – do the same thing over and over again to extend the time 7. May require advance payment b.6 Confidentiality of Information (ethical duty of confidentiality) 1. Static contingency fees . Payment a.In house services 11. 1.No general overhead . No padding – don’t pad your bills 8.Proper to use in post judgment of divorce matters b. unless fully explained to client at outset . charge.Difficult to calculate 5.Lawyer should not enter into agreement whereby services provided to certain point when foreseeable more services required.didn’t pay – you can charge a contingency fee for any post judgment use .Stays the same – must determine how the fee will be computed c.8(i) applies – (no proprietary interest in subject of litigation) . Rule encourages clients to communicate fully and freely with lawyer . Sliding contingency fee . or collect an unreasonable amount of expenses . The duty of confidentiality embodies the fundamental principle that a lawyer is NOT to reveal client confidences/secrets a. denoted as such a. Client trust accounts – a bank account where client funds held by lawyers are to be deposited and maintained. May accept property in payment for services .Lawyer should not use wasteful procedures to churn fee 10.Disbursements .8(a) applies – (business transactions with clients) .
or rectify substantial financial harm that is reasonably certain or has resulted from client’s crime or fraud in furtherance of which used lawyer’s services (prevent. Duty survives death of client c. Prevention of a crime . Informed consent b.(3) Prevent.(6) Comply with other law or court order 5. Lawyer shall NOT reveal information relating to the representation. Details when a lawyer MAY disclose information otherwise protected .(1) Prevent reasonably certain death or substantial bodily harm .3 – you have an affirmative duty that all employees understand all the rules 4. WHATEVER THE SOURCE a. DUTY LASTS FOREVER 3. Lawyer may seek the advice of legal counsel regarding the lawyer’s compliance with the rules . Applies to non-lawyer employees in firm a. Duty applies to all information obtained in the course of the attorney-client relationship. Implied Authority – must disclose some information to carry out objectives . Duty survives the termination of the attorney-client relationship b.6b . UNLESS: a.(5) Establish claim or defense in controversy between lawyer and client i. mitigate. for example) . Establish defense to criminal charge ii.2. Respond to allegations in any proceeding regarding lawyer’s representation of client (disciplinary proceedings.(2) Prevent client from committing crime or fraud reasonably certain to result in substantial harm and in furtherance of which used lawyer’s services (prevent future crime/fraud and financial harm) i. mitigate or rectify consequences of past) i. After a crime has been committed . Exception 1.(4) Secure legal advice about lawyer’s compliance with rules i. Establish defense to civil claim based upon conduct in which client involved (fee collection/malpractice) iii. Under 5.Must give info in a complaint c.
Prevents lawyer/agent from acting as witness against client revealing client info 4. ACP is narrower than ethical duty of confidentiality 2. Court order 10.Person making or receiving communication was within control group that had managerial responsibility for taking action in matter relating to particular legal problem 9. Disclosure adverse to client’s interest should be no greater than lawyer believes is reasonably necessary to the purpose G. Not Privileged: a. Subpoena b.Made for purpose of assisting lawyer in rendering legal services to corporate personnel. Attaches to materials prepared in ANTICPATION of litigation or FOR TRIAL c. Safeguard files. Communication may be stripped of its privilege if client/lawyer’s agent discloses protected information 7. Attorney-Client Privilege 1. Communication must occur in confidential setting (avoid public conversations) 5. Corporate privilege a. Whereabouts of alleged fugitive e. ACP does not attach to communication if third-person is present 6. Issues of ACP arises in context of litigation a. Only applies to communications between client/agent and lawyer/agent 3. Location of client with unauthorized physical custody of child d.Communication relates to person’s employment b. Applies principally to written material and tangible things . Work product Doctrine – a.. confidential records and documents (appropriately shred documents) 11. Location of father/child in custody dispute 8. Control Group Test – limits privilege to those communications made to corporate lawyer for purposes of rendering legal services to corporation if: . Duty to safeguard and preserve confidentiality a. Location of defendant whose testimony sought in civil case c.Requires some judgment 6. Subject matter test – any communication to corporate lawyer by a person assisting with the corporation is privileged if: . and . Whereabouts of client for purposes of serving complaint b. Only can be invoked by the lawyer b.
Identify the client(s) b. but common representation is permissible where the clients are generally aligned in interest even though there is some different in interest among them b.Third party . OR b. Lawyer may NOT represent multiple parties whose interests are fundamentally antagonistic to each other.d. If so. Representing Multiple Parties a. 1. or conflict and yourself at the same time.9) . a lawyer shall NOT represent a client if the representation involves a concurrent conflict of interest. Lawyer reasonably believes that you can provide competent and diligent representation to each client b. There is a significant risk that the representation you intend to take would be materially limited by your responsibilities to: .Personal interests or lawyer 3.8(a) Business transactions . Analyzing Conflicts a. Determine whether the representation may be undertaken. 1. consult with client(s) to obtain informed consent.Former client (go to 1. Determine whether a conflict exists c. confirmed in writing 2. The representation is directly adverse (against) another client.7 (a) Except as provided in paragraph (b). a lawyer may represent a client if: (must satisfy all) a.Another client .7 (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a). ordinarily the lawyer will be forced to withdraw from representing all of the clients c. Each client gives informed consent confirmed in WRITING 4.7 Conflict of Interest: Current Clients (2 conflicting clients at same time. If the common representation fails because a potential conflict is realized. In determining whether to undertake multiple representation. lawyer must always consider duty of confidentiality and duty of loyalty I. Representation does not involve both sides of a claim in the same case (absolute ban) d. Representation is not prohibited by law c. A court can defeat work product immunity if circumstances justify disclosure H. 1. 1. notwithstanding a conflict d. concurrent) 1. A concurrent conflict interests exists if: a.
c. A lawyer shall not accept compensation for representing a client from one other than the client. May advance court costs and expenses of litigation. Information relating to the representation of a client is protected as required by Rule 1. A lawyer shall not SOLICIT any substantial gift from client including a testamentary gift or prepare instrument giving lawyer or person related to lawyer any substantial gift unless lawyer or recipient of gift is related to client 1. K. There is no interference with the lawyer’s independent professional judgment. The client is advised in writing of the desirability of seeking independent counsel and is given a reasonable opportunity to seek the advise of independent legal counsel. M. Lawyer representing indigent client may pay court costs and expenses of litigation 2. The client gives informed consent. b. Prior to the conclusion of representation of a client. The client gives informed consent b. which repayment may be contingent on outcome b. 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 than can be reasonably understood. O. possessory. N. Lawyer SHALL not provide financial assistance to client in connection with pending or contemplated litigation. L.6 1.8(g) Aggregate Settlements 1. A lawyer shall not use information relating to the representation of a client to the disadvantage of the client unless the client gives informed consent 1.J. Lawyer who represents more than one client shall not participate in making an aggregate settlement of the claims of or against . No exception for family members 1. and c. unless: a. AND.8(f) Third Party Compensation 1. in writing to the essential terms of the transaction 1. EXCEPT: a.8(c) Gift Instruments 1. 1. security or other pecuniary interest adverse to a client unless: a.8(d) Media Rights 1. A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership.8(e) Financial Assistance to Clients 1.8(b) Use of client information 1. lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based substantially on representation 1.
Rebuttal presumption that head is full . Paragraphs (a) through (i) imputed to everyone in firm. Acquire a lien authorized by law to secure the lawyer’s fee or expenses.8(i) Proprietary interest in cause of action 1. Same matter a.P. Q. In writing signed by client 2. Client must be represented by a second lawyer .8(k) Imputation Rule 1. EXCEPT: a.9 Conflict of interest: Former Client 1. EXCEPT 1. clients. T. Lawyer shall not acquire a proprietary interest in the cause of action or subject matter of the representation.8(h) Prospectively Limiting Lawyer Malpractice 1. Where you represented multiple clients in a matter and . UNLESS: a. Contract with a client for reasonable contingent fee in a civil case 1. Lawyer who has formerly represented a client in matter shall not thereafter represent another person in the same matter or a substantially related matter in which that person’s interest are materially adverse UNLESS the former client gives informed consent. confirmed in writing a. Lawyer shall NOT make an agreement prospectively limiting lawyer’s liability for malpractice UNLESS client is independent represented in making agreement a. R.8(j) Sexual relations with client 1. Situations involving same litigation.Regarding the wisdom of entering into such an agreement 1.Must demonstrate head is empty i. pockets will be full . Lawyer’s disclosure shall include existence and nature of all claims or pleas involved and participation of each person in settlement 1. Smaller firm harder to prove that head is empty 2. or in criminal case an aggregated agreement as to guilty or nolo contender pleas. S. b. Allowed to do this b.If head is empty. proceeding or transaction b. When you leave a law firm – even if you never worked on their cases – still former clients b.8(j) 1. Each client gives informed b. Lawyer shall NOT have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced 1.
9 UNLESS: a.If there exists a reasonable probability that confidences were disclosed which could be used against client in later adverse representation. Substantial relationship test is met: . Substantial relationship test – any info in your head empty or full or any info in past representation that you could potentially lose a. Whose interests are materially adverse to that person.6 and 1. Where there is a substantial risk that confidential information that ordinarily would be passed from prior representation would be materially adverse to client’s position in subsequent matter b. and b. Reveal information relating to the representation except as these Rules would permit or require with respect to a client U.If facts of the two matters are similar whether or not lawyer received confidential info from former client. 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: a. and . Use information relating to the representation to the disadvantage of the former client except as the rules permit or require or when the information has become generally known b. About whom the lawyer had acquired information protected by Rules 1.7 or 1. a substantial relationship is presumed . A question of fact and degree 4.9(c) that is material to the matter c. 1. Substantially related matter a. CONFIRMED in writing of all of the clients 3. No lawyer in a firm shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by 1.dispute arises among them. The conflict is based on a personal interest of the prohibited .10 Imputed Disqualification: General Rule 1. A lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client a.Presumption is rebuttable if lawyer demonstrates that had no personal involvement in substantially related matters and that did not in fact receive confidential info 5. you may not represent one of them against the other(s) unless you have the informed consent. UNLESS the former client gives informed consent confirmed in writing 6.
Is subject to Rules 1.lawyer. and.7 and 1.9.No lawyer is timely screened from any participation in the matter and is apportioned no part of the fee. Firm in which lawyer is now associated may accept or continue representation only IF: . The disqualification of lawyers associated with former or current government lawyers is governed by 1. The appropriate government agency gives its informed consent. UNLESS: . . and. and b.11 V.11 Special Conflicts of Interest for Former and Current Government Officers and Employees (if you see government employee know 1. A disqualification under this rule may be waived by the affected clients under the conditions set forth in 1. 1. Government Private Practice a. UNLESS: i.Does not share in fee 2. If the lawyer is disqualified.If you are disqualified – everyone is disqualified i.7 3. . Except as otherwise expressly permitted. a lawyer who formerly served as a government officer or employee.11) 1.Is subject to Rule 1. Unless you can show that your head is empty 2. Participate in matter in which participated personally and substantially while in .9(c). Erect a “Chinese wall” c. Quarantine disqualified lawyer .Shall not: i. lawyer currently serving as public officer or employee: . Does not present a significant risk of materially limiting the representation of the client by other lawyers in the firm .The disqualified lawyer is timely screened from participation . Private Government a. confirmed in writing b. i.Shall not represent a client in a matter in which the lawyer participated personally and substantially as a public officer or employee.Written notice is promptly given to the appropriate government agency to allow it to monitor compliance with this rule i. no lawyer in the firm may KNOWINGLY represent or continue representation UNLESS: . and. Unless otherwise expressly permitted.
Except as stated in this rule.12 Former Judge or arbitrator or other third-party neutral (if you are the judge – can you step down from bench and work on defense firm – can you represent the client?) 1. mediator or other third-party neutral UNLESS: a.UNLESS the appropriate government agency gives its informed consent. Lawyer shall not: a. All parties give informed consent confirmed in writing . EXCEPT: .Lawyer serving as law clerk to a judge/adjudicative office/arbitrator may negotiate for private employment after notifying the judge/adjudicative officer 3. If lawyer is disqualified. and appropriate government agency) ii. arbitrator/mediator/third-party neutral . o You need informed consent of everyone (former client.Quarantined b. The disqualified lawyer is timely screened from participation .private practice or nongovernmental employment . and. Written notice is promptly given to parties and any . lawyer shall not represent client in matter in which lawyer participated substantially and personally as judge/other adjudicative officer or law clerk to such person. Negotiate for private employment with any person involved as party or lawyer for a party in matter in which lawyer participated personally and substantially as judge/adjudicative officer.Lawyer serving as law clerk to a judge/adjudicative officer/arbitrator may negotiate for private employment subject to requirements of 1. confirmed in writing. Does not share in fee. 1.12(b) W. Negotiate for private employment with any person involved as party or lawyer for a party in matter in which lawyer participated personally and substantially. arbitrator. no lawyer in firm in which lawyer now works may knowingly accept or continue representation UNLESS: a. c.As far as law firms go – you can erect a Chinese wall to protect firm 2.
You have obligation to create a corporate latter so that you if you come into info of wrong doing – you must start at the lowest prong and continue to move up i. Other reason 2. and. 1. Applies to: a. May have to report outside the corporate latter if reach the highest level . maintain normal attorneyclient relationship a. Lawyer shall. Mental impairment c. other constituents. Lawyer shall report up the corporate ladder.7. intends to act or refuses to act on matter related to the representation that violates legal obligations to the organization and likely to result in substantial injury to organization. If lawyer for organization KNOWS that officer. employees. or to defend organization or officer.appropriate tribunal to allow to monitor compliance X. Lawyer was needed to represent of wrong doing – regular attorney-client privilege applies 4. is able to make decision about representation .7 5.14 Client with diminished capacity 1. Minors b. If organization’s consent is required pursuant to rule 1. shareholders.Sarbanes Oxley 2. 1. after proper advice and counsel. members. Duty to report does NOT apply to information relating to lawyer’s representation of organization to investigate alleged violation of law. to the highest authority. if necessary .6 to extent lawyer believes reasonably necessary to prevent substantial injury to organization if: a. b. consent shall be given by an appropriate official other than person seeking representation Y. lawyer SHALL proceed as reasonably necessary in best interest of organization a. Lawyer representing organization may also represent directors. Lawyer may reveal information protected by Rule 1. employee or other constituent against claim arising out of alleged violation of law a.13 Organization as Client (covers all organizations) 1. officers. as much as reasonable. Lawyer reasonably believes violation reasonably certain to result in substantial injury to organization 3. subject to rule 1. Highest authority fails to address issue in timely and appropriate manner. employee or other person associated with organization is engaged in action. Normal attorney-client relationship based on assumption that client.
Lawyer may deposit funds in client trust account for sole purpose of paying necessary administrative fees 6. Lawyer impliedly authorized to reveal information to extent reasonably necessary to protect client’s interests 5. or elsewhere with consent of client/third person 3.Mixing client funds with non-client funds b. If you don’t = co-mingling . Complete records MUST be kept for 5 years after termination of representation 5. Lawyer SHALL hold client/third person property in connection with representation separate from lawyer’s own property a. Competent/diligent representation still required 6. but must look to client. Rule 1. lawyer SHALL promptly notify of receipt 8. Consult with individuals/protective agencies b. property shall be kept in trust account until the dispute is resolved .15 Safekeeping Property 1. Presence of family members/other persons generally does NOT affect the application of attorney-client privilege. Lawyer may act only to extent necessary to prevent imminent harm Z. Property MUST be identified and safeguarded 4. Lawyer SHALL promptly deliver funds to client or third person. unless otherwise authorized 9.Co-mingling . If lawyer reasonably believes client is at risk for physical. lawyer may take reasonably necessary protective action: a. or other harm. Lawyer SHALL promptly render full accounting to client/third person if requested 10. 1. NOT family members 7.Not subject to delegation 2. Any unearned legal fees or advance for expenses must be deposited in client trust account and only withdrawn as earned 7. lawyer may take legal action on behalf of person even though person is unable to establish an attorney/client relationship or make informed decisions about matter when another person acting in good faith on that person’s behalf has consulted with lawyer 8. If in possession of property in which there is a dispute. Misappropriation . Where health safety or financial interest threatened with imminent and irreparable harm. Seek appointment of guardian or conservator 4.6 applies a. Funds MUST be kept in client trust account in state where lawyer’s office is located. financial.3. Upon receiving funds to which client or third party has an interest.No scienter required .
Refunding any unlearning fee postponement f.Lawyer can sue under quantum meruit b. Mandatory withdrawal a. Kriegsman (1977) – complicated divorce. Kriegsman v. Representation will result in violation of the rules .16 Declining or Terminating Representation 1. Lawyer’s physical or mental condition materially impairs lawyer’s ability c. Other good cause 3.Releasing client file . 1. Upon termination of representation. Lawyer shall promptly disburse any amount not in dispute AA. lawyer MUST continue representation e. Lawyer must comply with applicable law requiring notice to or permission from court to withdraw d. Client’s right to discharge lawyer a. Client would prejudiced . Withdrawal can be accomplished without material adverse effect on client’s interest b. Client has used lawyer’s services to commit a crime/fraud d.Judges are reluctant to do this in court appointed cases – unless legitimate basis c. Optional withdrawal a. client failed to pay attorney fees .Once representation of a client in litigation has .Court held that attorney could not withdrawal i. Lawyer is discharged 2. lawyer must take steps to extent reasonably practicable to protect client’s interests: . Client fails to pay for lawyer’s services after being given reasonable warnings f. Clients persists in course of conduct involving lawyer’s services that lawyer reasonably believes in criminal or fraudulent c.Reasonable notice to client .If you violate any rules – you have to say no b. If court denies withdrawal. secondary attorney on the case.11. At any time. Representation will result in unreasonable financial burden or has been rendered unreasonably difficult by client g. Client may encounter some difficult in discharging appointed counsel .Time to obtain other counsel . Client insists upon action lawyer considers repugnant or lawyer has fundamental disagreement e. with or without cause (lawyer is still entitled to be paid for services rendered) .
The seller gives written notice regarding the proposed sale. or in area of practice. Lawyer or law firm may sell or purchase law practice. and. A prospective client is one who consults with a lawyer regarding the possibility of forming an attorney-client relationship a. Seller ceases to engage in private practice of law.commenced. Even if no attorney-client relationship is formed. Duty of competence attaches 6. In order to sell: a. 2. Termination the attorney-client relationship . Imputation rule applies . 1.If notice is returned because they are moved go to a judge and get a court order to turn information over CC. in the geographic area in which the practice conducted. or an area of law practice. Can’t practice law in that area for a reasonable time in that area 3. client’s right to retain other counsel or take possession of file. with or without cause BB. Vesely – Togstad consulted attorney about potential medical malpractice case. attorney told her did not believe she had a case.It is assumed if they don’t remark that they have consented to sale . 1. that lawyer will not be disqualified 8. The entire practice. but would check with his partner – Togstad waited 1 year before consulting another attorney SOL expired 2. Lawyer may condition conversation. lawyer should limit initial interview 4.General rule 1 – a lawyer may not quit the representation at will . with informed consent of prospective client.General rule 2 – a client can discharge a lawyer at any time. fact that client’s consent presumed if client does not take any action or object within 90 days of receipt of notice . Conflict rules apply 7. IF: a. Togstad v.17 Sale of law practice 1. Rule does NOT apply to person who communicates unilaterally with lawyer without any reasonable expectation of forming attorney/client relationship 3. is sold to one of more lawyers or law firms.18 Duties to prospective clients 1. To avoid disqualifications. b. or the entire area of practice. ethical duty of confidentiality attaches 5. counsel’s right to withdraw is not absolute g. including good will.
Counselor A.Must be merit to this particular case .1 Meritorious Claims and Contentions 1. Lawyer serving as third-party neutral shall tell unrepresented parties that lawyer is not representing them 4. When lawyer knows or reasonably should know that party does not understand lawyer’s role. May be required to do pursuant to Rule 1. economic. Lawyer shall NOT assert claim/defense UNLESS: a.Not a violation if you look at the facts and realize . information relating to the evaluation is protected by Rule 1. Advocates A. resolve a dispute 2. In representing a client. OR . 3. social and political factors as well 2.4 Lawyer serving as a third-party neutral 1. 2.Affected client and prospective gives informed consent. However.4 regarding obtaining the client’s informed consent 3. lawyer shall not give the evaluation absent client’s informed consent . who are not the lawyer’s clients. Making the evaluation is compatible with other aspects of relationship with client . 2. bank) b.Disqualified lawyer timely screened.e. confirmed in writing.You represent client NOT third party (i. There is a basis in law and fact for doing so that is not frivolous . lawyer shall use independent professional judgment and give candid advice. Except as authorized in connection with resort of evaluation.a. lawyer shall explain lawyer’s role as third-party neutral V.6 C. received no portion of fee.1 Advisor 1. but to moral. May require lawyer to inform client of less costly alternative forms of dispute resolution B. mediator 3. Includes serving as arbitrator. Lawyer serves as third-party neutral when lawyer assists people. When lawyer knows or reasonably should know that evaluation likely to materially and adversely affect client’s interests.You can’t run and tell the third-party (bank) UNLESS you have clients have informed consent c. 2. referring not only to law.3 Evaluation for use by third persons 1. law firm may accept case if: . other than the client if: a. and written notice promptly given to prospective client IV. Lawyer may provide an evaluation for someone else’s use.
Claims. May not postpone/adjourn proceedings: a. defenses. Lawyer for defendant in criminal case that could result in incarceration MAY defend client so as to require every element of case be proven a. To unnecessarily delay proceedings C. 3. Federal Rule of Civil Procedure (Rule 11) a.Factual allegations have evidentiary support or likely to have evidentiary support after further investigation/discovery .3 Candor Towards the Tribunal 1.3 and another rule! b. Malice (can be shown by showing claim based on improper purpose or lacked probable cause) iv. Lack of probably cause iii. Criminal lawyer’s obligations under this rule are subordinate to federal/state constitutional law that entitles criminal defendant to assistance of counsel 3. modification or reversal of existing law 2. By signing your name you are certifying: . Initiation of continuation of underlying action ii.2 Expediting Litigation 1. other legal contentions warranted by existing law or non-frivolous argument for change of law .you probably will not win the case – not a violation – as long as you have some factual and legal support of your claim b. To frustrate opposing party c. 3. Good faith argument for extension. Consistent with client’s wishes 3. Proved innocent till proven guilty – not a violation even if YOU know they are guilty b.Factual denials have evidentiary support B.No improper purpose (harassment or to run up costs) . Favorable termination of underlying cause of action 4. .Elements of malicious prosecution i. Anytime there is a conflict between 3. Applies to ancillary proceedings – it applies to depositions. Lawyer has duty not to abuse legal process a. If abused – malicious prosecution . Lawyer shall make reasonable efforts 2. Governs conduct of lawyer in litigation a. Solely for convenience of clients b.
permits refusal . Prohibition against offering false evidence ONLY applies if lawyer knows that evidence is false ii. Lawyer has no responsibility to correct false testimony/other evidence offered by opposing party or adversarial witness v. In a criminal case if you KNOW witness is going to lie then you are prohibited from asking questions where they will lie . Ways of dealing with lying criminal defendant: .Must let criminal defendant take the stand .Disclosure to the court i. other than the testimony of a defendant in a criminal matter. Confidentiality maintained at all costs .Right to counsel d.A lawyer may NOT refuse to offer testimony of criminal defendant client on basis of reasonable belief that testimony will be false i.chamber communications 2.Full representation i. Make a false statement of fact or law to a tribunal b. (a) Lawyer shall not KNOWINGLY: (knowledge can be inferred) a. May elicit testimony from adversarial witness known to be false .No court has endorsed this view .Required to disclose law NOT facts c. should be resolved in favor of client iv. Full disclosure to court . A reasonable belief as to falsity may not preclude offer of evidence. Lawyer shall not knowingly: . that the lawyer reasonably believes is false i.Due process .A lawyer may refuse to offer evidence. Where doubts.Offer evidence that the lawyer KNOWS to be false i. Special constitutional considerations for criminal defendants: . Shall not knowingly fail to disclose legal authority in the controlling jurisdiction known the lawyer to be DIRECTLY adverse to the position of the client and not disclosed by opposing counsel .Allowed in CIVIL cases for lawyer to make the call o Your discretion iii.
(b) A lawyer who represents a client in an adjudicative proceeding and know knows that a person intends to engage.Evaluate whether to withdraw . If that fails. see nothing .Refusing to permit defendant to testify i. If attorney not allowed to withdraw or withdrawal will seriously harm client. whether or not the facts are adverse a. has offered material evidence and the lawyer comes to know of its falsity.Remonstrate with client to persuade to correct falsehood .Narrative Testimony i. a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision. if necessary.Withdrawal without disclosure i. Hear nothing. Lawyer may NOT ask any questions that will elicit false testimony . May only disclose what is reasonably necessary 4. (d) In an ex parte proceeding.Avoidance of knowledge i. the lawyer’s client. attorney may put client on witness stand and allow client to testify in NARRATIVE fashion iv. the lawyer shall take reasonable remedial measures. is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures. Unconstitutional 3. attorney may seek to withdraw iii. Remedial measures: . disclosure to the tribunal a. disclosure to the tribunal a. (c) If a lawyer. Lasts until the case is concluded (time for appeal has lapsed and all of the appellate proceedings have been extinguished) 5. including. Problem passed to next lawyer .Advise client of lawyer’s duty of candor to court . Lawyer should first try to dissuade client from giving perjured testimony ii.Client has right to counsel but no constitutional right to assistance of counsel in submitting perjury to court . Misleading advocacy constitutes dishonest toward tribunal - . or a witness called by the lawyer.Determine whether disclosure to tribunal is necessary i. including if necessary.
Called an appeal b. Prosecutor may call informants to testify notwithstanding fact that informant was paid for information b.b.Credibility of witness . Witness coaching a. No bribery 2. Lawyer shall NOT: a.Allude to any inadmissible evidence e. State a personal opinion: . APPLIES TO ANCILLARY PROCEEDINGS D. Assert personal knowledge (unless testifying as witness) f. Grade one – lawyer overtly/openly suggests lie b. Counsel or assist a witness to testify falsely f.Unless there is an open refusal based on an assertion that no valid obligation exists i. 3. Prosecutor exception for inducements a. Knowingly disobey an obligation under the rules of a tribunal .Guilt or innocence of accused 5. Unlawfully alter.Culpability of civil litigant .4 Fairness to opposing party and counsel 1.Allude to any irrelevant evidence . In pretrial procedure. destroy or conceal documents or other material having potential evidentiary value c. Unlawfully obstruct another party’s access to evidence b. Fail to make reasonably diligent effort to comply with a legally proper discovery request by an opponent d. Falsify evidence e. Grade two – lawyer covertly suggests lie c. Grade three – lawyer’s conversation causes witness to lie 3. Offer an inducement to a witness that is prohibited by law g. Request another person other than a client to refrain from voluntarily proving relevant information to another party unless: . Prosecutor may induce criminal defendants to testify by offering immunity or possibility of lighter sentence 4. In trial: . Lawyer shall not: a. make a frivolous discovery request c. Object of rule is to obtain a substantially just result=justice 6. Counsel of assist anyone else in same d. Lawyer shall NOT: a.The person is a relative or an employee or other . Lawyer may argue any position or conclusion based on analysis of evidence 6.Justness of cause .
6 Trial Publicity 1.Not limited to communications about merits of case . Request assistance in gathering evidence/information g. prospective juror during proceeding. lawyer MAY state: . Lawyer shall NOT communicate with juror after discharge if: a. Schedule or result of any step in litigation f. Includes depositions F. In criminal case. 3. . Juror had made known to lawyer desire to not communicate c. Communication involved misrepresentation. Communication prohibited by law or court order b. Fact that investigation in progress e. Claim. Lawyer MAY advise witness is not required to volunteer information. coercion. Identity of persons involved. Will have substantial likelihood of material prejudicing adjudicative proceeding 2. Lawyer shall NOT: a. Lawyer does NOT need the permission of the other side to talk to a willing witness c. UNLESS authorized by law . 3. juror. Information from public record d. and. Lawyer who is participating or has participated in investigation or litigation of matter: a. duress. b. May NOT obstruct an opponent’s ability to gather evidence d.agent of client. unless prohibited by law c. Communicate ex parte with judge. Additional responsibility to tell of adverse facts b. Ex parte proceeding: a. Lawyer shall NOT engage in conduct intended to disrupt a tribunal a. Give a warning of danger is reason to believe likelihood of substantial harm to an individual or public 3.Witness does NOT belong to the party who plans to call the witness at trial b. Shall NOT make statements OUTSIDE of court that lawyer KNOWS or REASONBLY SHOULD KNOW will be disseminated to media. offense or defense b.There should be NO communication 3. or harassment 4. and. Lawyer MAY state: a. No pretrial contact with jurors/prospective jurors allowed 2. may force subpoena 7.Lawyer reasonably believes that person’s interest will not be adversely affected by not proving such information .5 Impartiality and decorum of the tribunal 1. E.
Testimony relates to nature/value of legal services in case. Existence or contents of confession. absent statement that mere allegation or innocent until proven guilty 5. No lawyer associated with law firm or government agency (where lawyers works) shall make statements prohibited by this rule G. residence. Information lawyer knows or reasonably should know is likely inadmissible at trial that would create substantial risk of prejudicing impartial trial h. Identity of investigating and arresting officers/agencies and length of investigation 4. admission or statement by defendant or suspect c. unless precluded by 1. No imputation . occupation and family status of accused. 3. Lawyer may make statement. PLUS b. Refusal or failure of person to submit to exam/test f. The possibility of a guilty plea b. Fact.7 (concurrent conflict) or 1.7 Lawyer as a Witness 1. All of above.9 (former client) 3. otherwise prohibited. OR c. Allows lawyer to take remedial action if client is harmed by an improper extrajudicial statement 7. MATERIAL prejudicial effect on CRIMINAL TRIAL: a. to refute recent adverse publicity about client. Defendant or suspects’ refusal or failure to make statement 6. time and place of arrest e. Identity. Lawyer shall not act as advocate at trial in which lawyer likely to be necessary witness. Can’t saying anything likely to have MATERIAL prejudicial effect on proceeding a. Expected testimony of party or witness d. Opinion as to guilt or innocence of criminal defendant/suspect or where defendant faces incarceration g. Testimony relates to uncontested issue b. UNLESS: a.a. Character. Identity of witness c. Information to aid in capture of accused d. credibility. reputation or criminal record of party b. Performance/results of exam/test e. Disqualification of lawyer would result in substantial hardship to client 2. c. Fact that defendant charged with crime. Lawyer MAY act as witness in trial in which another lawyer or lawyer’s firm likely to be called as witness. NOT LEAKED BY LAWYER OR LAWYER’S CLIENT a.
In connection with sentencing. Maryland) . 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: .Statements necessary to inform public of nature and extent of actions . or impeaches .Procedure for obtaining counsel .Right to counsel .Good faith belief is NOT sufficient b. 3. all unprivileged mitigating information known to the prosecutor (unless there is a protective order) e.There is no other feasible way to get the information f.H.Statements that serve a legitimate law enforcement purpose 2. Make reasonable efforts to assure that accused has been advised of: . Refrain from making statements outside of court that have a substantial likelihood of heightening public condemnation of an accused.Prosecutor has duty to preserve evidence from loss or destruction . Prosecutor has burden of showing . Three areas in which prosecutor can influence fairness of criminal trial a.The requested info is NOT protected by any applicable privileges i. such as a right to preliminary hearing d. and. eliminates.Exculpatory evidence – evidence that mitigates. Make timely disclosure to defense of all evidence or information known to prosecutor that tends to: (Brady v.Given reasonable opportunity to get counsel c. Prevent evidence by fact-finder to relevant evidence . unless: .Negate guilt of accused . . Not seek to obtain from an unrepresented accused a waiver of an important pretrial right.8 Special responsibilities of a prosecutor 1. Prosecutor in a criminal case shall: a.The evidence sought is essential to the successful completion of an ongoing investigation or prosecution.Mitigate offense . Refrain from prosecuting a charge prosecutor knows is not supported by probable cause .
executive and administrative agencies. Withdrawn guilty pleas iii.Must NOT express personal opinions/endorsements . house sub-committee. Ex: Shall NOT display gun with no connection to case . Appeals to law and order iii. Make false statement of material fact or law to third person. misleading.Must NOT disparage defense counsel I. 3. lawyer shall not knowingly: (knowledge can be inferred) a. References to privileges or religious beliefs c.Must refrain from: i. zoning boards. 4. Present false.Must NOT predict consequences of verdict .Prosecutor shall not interfere with defendant’s access to witnesses b.Shall NOT refer to: i. Significant distortion of fact-finder evaluation of evidence . Name calling .Can’t relate criminals to other criminals ii. Lie detector tests ii.Must NOT make comments infringing upon defendant’s constitutional rights . Holds lawyer acting as lay person in representation – allows rules to apply 2.Has duty NOT to mislead such as eliciting false evidence i. Appeals to racial prejudice v. irrelevant evidence . Transactions with Persons Other than Client A. etc a. Covers lawyer appearing in representative capacity before legislatures.Must NOT make statements/insinuations that invite jury to consider affirmative exercise of constitutional right as evidence of guilt . city councils. Non-lawyers may appear before these bodies VI. OR - .1 Truthfulness in Statements to Others (duty to third persons) 1. Appeals to public safety iv.Must refrain from inflammatory conduct (such as continuous) use of bloody crime scene photo) . Convictions/guilty pleas of co-defendants iv.Shall NOT ask questions without factual basis .9 Advocate in non-adjudicative proceedings 1. While representing client. Appeals to national or religious prejudice/patriotism .
if after commencing conversation. CEOs . Fail to disclose a material fact when disclosure is necessary to avoid assisting a crime or fraud by client.Ex: In Rainmaker. Lawyer may NOT communicate with: .Low level employees whose conduct or scope of employment is not involved in disputed events . Anti-contact rule 3. Communicate about subject matter of representation b.UNLESS: i. UNLESS disclosure prohibited by 1.2 Communicating with persons represented by counsel 1. Authorized by law or court order 4. In representing a client.Former officers and employees even if they were in one of the protected categories while employed for the organization . leans that person is represented by counsel a.Ex: Client convicted of crime to make sentencing recommendation. Representing organizations/corporations a. VPs ii. you know client has record. when Danny Devito and claimed that he was the girls brother (that was a material fact) b.Employees whose acts or omissions may impute liability to organization b. By another lawyer in matter . Lawyer must immediately terminate communications with person. Lawyer MAY communicate with: .Employees of organization with managerial responsibility i. 4. With person lawyers knows to be represented c.Employees whose statements may constitute admission on part of organization . lawyer shall not: a. Other lawyer consents ii. probate officer asks client about the record and client lies – you have a duty to say something B.6 .Employees that direct and supervise or regularly consults with organization’s lawyer concerning matter .Parties may communicate directly with each other without consent of lawyers (IMPORTANT) - . Rule does NOT apply to matters outside of representation 5. If you know that a person is represented by a lawyer – must deal with a lawyer – protects from overreaching 2.
delay. other modes of electronic transmission VII. a lawyer shall NOT STATE OR IMPLY THAT THE LAWYER IS DISINTERERESTED 2. Whether lawyer is required to take additional steps. burden a third person. with knowledge of specific conduct. Lawyer is a partner or has comparable managerial duties and knows of conduct at time when its consequences can be avoided or mitigated but fails to take reasonable remedial action B. ratifies conduct. If lawyer knows or has reason to know that person misunderstands lawyer’s role. is a matter of law b. 4. Shall not give legal advice to an unrepresented person. Law Firms and Associations A. or use methods of obtaining evidence that violate the legal rights of such person 2. In dealing on behalf of a client with a person who is NOT represented by counsel.4b .3 Dealing with unrepresented persons 1.Ratifies conduct finds out about errant conduct and doesn’t take remedial action b. 4. Lawyer orders or. email. 5. AND that you are not looking out for the interests of the unrepresented person D. Partner.1 Responsibilities of supervisory lawyers and law firms 1. In representing a client. managers. lawyer MUST take reasonable efforts to correct the misunderstanding 3. a lawyer shall not use means that have no substantial purpose other than to embarrass. 5. Lawyer is responsible for another lawyer’s violation of the Rules if: a. Rule does NOT prohibit seeking to resolve a dispute with unrepresented person as long as: a. such as returning the original document. OR . Unrepresented person has been advised of your represented of the adverse party b.C.4 Respect for rights of third persons 1.A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender (that you received the document in error) a. 4. supervisory lawyers shall make reasonable efforts to ensure that firm takes measures to ensure that all lawyers in firm comply with Rules of PR 2. other than the advice to secure counsel 4. Includes faxes.2 Responsibilities of a subordinate lawyer .
No defense – no “good solider defense” b. except as fiduciary representative of estate during a reasonable time during . EXCEPT: a.17. Lawyer or law firm shall not share fees with non-lawyer. Lawyer shall not practice with or in form of professional corporation or association authorized to practice law if: a.1. pay estate/representative 2. even though plan based in whole or in part on profit-sharing arrangement a. Non-lawyer owns any interest. 5. disabled. Lawyer is bound by the rules notwithstanding that acted at direction of another a. Partner or lawyer with managerial responsibility shall take reasonable efforts to ensure that non-lawyers act in compliance with Rules 2. with knowledge of specific conduct. employs. OR b. You can have a compensation package from attorney fees 3. or disappeared lawyer may. Lawyer shall not form a partnership with a non-lawyer if any of the activities consist of the practice of law 5. Lawyer or law firm may include non-lawyer employees in compensation or retirement plan. pursuant to Rule 1. Agreement may provide for payment of money. Lawyer may share court-awarded legal fees with non-profit organization that employed.4 Professional Independence of a lawyer 1. ratifies conduct. Lawyer is a partner or has comparable managerial duties and knows of conduct at time when its consequences can be avoided or mitigated but fails to take reasonable remedial action D. over reasonable period of time after lawyer’s death. retained or recommended employment 4. Unless close question: . 5.If partner dies – party that is deceased is still entitled to share of some fees b.Subordinate lawyer does not violate rule if lawyer acts in accordance with supervisory lawyer’s reasonable resolution of an arguable question of professional duty C.3 Responsibilities regarding non-lawyer assistants 1. Lawyer shall not permit a person who recommends. Partner or lawyer with managerial duties shall be responsible for non-lawyer’s violation of rules if: a. Lawyer who purchases practice of deceased. Lawyer orders or. to lawyer’s estate or specified person(s) . or pays the lawyer to render legal services for someone else to direct or regulate the lawyer’s professional judgment 6.
Lawyer not admitted to practice in jurisdiction shall NOT: .Undertake representation reasonably related to pending/potential arbitration or other ADR proceeding if matter arises out of matter pending in jurisdiction in which lawyer admitted . Example – tax lawyer (legal service) also a CPA and file .7 Responsibilities regarding law-related services 1.administration b. establish an office or other systematic and continuous presence in jurisdiction .Undertake representation reasonably related to pending/potential proceeding before tribunal in this or another jurisdiction. Multi-jurisdictional Practice a. Lawyer shall NOT practice in jurisdiction in violation of laws of that jurisdiction – satisfies all jurisdictional requirements b.Undertake representation in association with lawyer admitted in that jurisdiction who is actively involved in legal matter .Sign agreement = guilty b. in good standing MAY: . An agreement in which restriction on lawyer’s right to practice is part of settlement of client controversy .Undertake representation reasonably related to lawyer’s practice in jurisdiction in which lawyer admitted F. Non-lawyer has right to direct or control professional judgment of lawyer E.Hold out to public or represent that admitted to practice there c. except concerning retirement benefits. if authorized by law or order to do so .Except as allowed by rules. OR c. An agreement that restricts lawyer’s right to practice after termination of relationship. 5. Lawyer shall not participate in offering or making: a. Non-lawyer is a corporate director or officer or occupies position of similar responsibility. 5. OR .5 Unauthorized Practice of Law 1. 5. Law-related services – denotes services that might reasonably be performed in conjunction with an in substance are related to legal services provided a.Ask to sign agreement = guilty G. Lawyer admitted to practice in jurisdiction in U.S.6 Restrictions on right to practice (anti-compete rule) 1.
Every lawyer has a professional responsibility to provide legal services to those unable to pay 2. If you don’t explain to client – rules apply to law-related service 2.False and misleading if: i. Advertising Rules A. Limitations – must be truthful a. Rule permits lawyer advertising through ANY medium (including the internet) – Arizona v.Rate/basis for attorney fees . giving out pens.Fees for specific services .Must make sure services are separate and distinct i. 6. Lawyer shall not seek to avoid appointment except for good cause: a.tax returns (rules don’t pertain to CPA’s) . i. Client or cause is so repugnant to lawyer as to likely client lawyer relationship or lawyer’s ability to represent client IX. Public Services A.1 – Communications concerning a lawyers services 1. General rule governs ALL communications about a lawyer’s services – including advertising a. Rule 7. 7.1 Voluntary Pro Bono 1. 6.1 and 7. It contains a material misrepresentation of a fact or law.2 Accepting appointments – only applies if you put yourself on the list 1.e. Lawyers should aspire to render 50 hours of pro bono work B.2 B. Representing the client is likely to result in unreasonable financial burden on lawyer c. In other circumstances by an entity controlled by lawyer if lawyer fails to take reasonable measures to assure that person obtaining law-related services knows that services are not legal services and that protections of client-lawyer relationship does not exist VIII. or omits a fact necessary to make the statement considered as a whole not materially misleading b. OR b.2 – Advertising Rule 1. Representing the client is likely to result in violation of the rules of professional conduct b. business cards. By lawyer in circumstances not distinct from lawyer’s legal services to client. Communication must NOT be false and misleading . Bates a. Lawyer is subject to Rules of professional conduct regarding lawrelated services if law related services are provided: a. but NOT limited 2. letter heads. If ad is false or misleading always cite 7. includes advertising. Rule permits communication about their services: .
. Exceptions . Knowledge that someone is being paid iv.Lawyers are NOT permitted to pay others for channeling professional work i. Lawyer referral service – any organization that holds itself out to public as lawyer referral service .Costs of print directory listings . Paying others to recommend a lawyer .Group advertising .References .Banner ads .List of lawyers who are on a list that cycles ii.Other information. Qualified lawyer referral service – one approved by appropriate regulatory authority as proving adequate protections to prospective clients . Rule says you cannot pay a person to refer ii.More stringent that LRS – make sure you are checked out d.Sponsorship fees .With consent names of clients regularly represented .If you do some work – then you can charge . But. if true and not misleading b.TV/radio air time .Can pay usual charge of legal service plan or qualified lawyer referral service i.Can pay for advertising . YOU CAN UNDER NO CIRCUMSTANCES PAY FOR RECOMMENDATION c.On-line directory listings . You can’t pay to recommend you – if you know its an advertisement iii.Foreign language ability .Newspaper ads .Payment/credit arrangements .A lawyer receiving referrals from a lawyer or nonlawyer must NOT pay anything for the referral i. Referrals . lawyer can refer clients to lawyer/nonlawyer professional as long as reciprocal agreement is not exclusive and the client is informed .
3 Direct Contact with Prospective Clients-Solicitation Rule 1. At beginning and ending of any recorded or electronic communication . Former client 3. Close personal friend d. Lawyer can’t 3rd party solicit D.Unless a lawyer. duress. recorded. Lawyer can participate in prepaid or group legal service plans operated by an organization not owned or directed by lawyer which does not use in-person or telephone contact to solicit members 7. 7. Permits lawyers to advertise fields of practice .If they tell you they don’t want to be bothered you have to leave them alone b. General announcements by lawyers. close personal friend. Lawyer may contact groups who establish pre-paid legal plans to get business 9. Involves coercion. Requested not to do so . electronic communication from lawyer seeking professional employment with whom no family or prior professional relationship must include words “advertising material” = NOT SOLICITATION a. family.C. Family member c.4 Communication of fields of practice and specialization rule 1. or former client . Lawyer SHALL not CIRCUMVENT RULE BY CREATING OWN ORGANIZATION 8. Does NOT apply to communication sent in response to requests of potential clients . including changes to personnel or office location do not = solicitation a. Exceptions: (even if you solicit in-person under exception – primary goal can still be money) a. Real time electronic (chat room) solicitation 2. Prohibits: (when significant motive is lawyer’s pecuniary gain [Only applies when significant motive is money] a.Unless you are sending to an exception 5. Lawyer shall not solicit employment by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited if: a. Another lawyer b. harassment 4. Every written.Sometimes law firms send out general announcement that you have joined the firm – NOT a violation 6. In-person solicitation b. Live telephone solicitation c. 7.
Peel established that a lawyer who is certified under those circumstances may call himself a certified specialist.Peel v. A lawyer may only state that is certified as a specialist in a particular field only if: . b.a.Court found rule unconstitutional ii.He is a specialist .Subject to 7.The certifying organization is clearly identified in the communication along with any attendant disclaimers .That practices a specialty OR that specializes in a particular area v. demanding. Attorney Reg.Peel’s statement of certification had no more potential to mislead than attorney advertising that admission to practice before the U. & Disciplinary Comm – Peel’s letterhead truthfully indicated that he had been certified as specialist in trial advocacy not by bar of his state.S. Lawyers can generally say they are a specialist. but Nat’l Board of Trial Advocacy – a private organization that employs objective. Lawyer has been certified as specialist by an organization approved by appropriate state authority OR accredited by ABA. A lawyer may state: . SC . Claims are letterhead both verifiable and true .The certifying organization has been accredited by the ABA or been approved by an appropriate state .If the state is concerned that statements of private certification might be misleading. then state can require disclaimer about certifying organization iii. practices a specialty or specializes in particular fields . Lawyer shall NOT state or imply that lawyer is certified as specialist in particular fiend of law except: a.1 for false and misleading standard 2. Organization is clearly identified in communication . Whether a lawyer has a constitutional right . provided that certified him and takes attended steps to avoid misleading the public iv. rigorously-enforced standards for certification i.
5 Firm Names and Letterhead Rule 1. May use name of deceased members where a continuing succession in firm’s identify or trade name .1 (like all other communications) b. It is easier for a state to justify a regulation that requires more disclosure than one that totally prohibits speech 4. May use the name of a deceased law firms as long continuing succession . Lawyer shall NOT use firm name.Must satisfy 7. Unjustified or unduly burdensome disclosure requirements might offend 1st amendment by chilling protected commercial speech b. Use name of non-lawyer iii. Disclosure requirements ARE ok if: . May be designated by website or comparable designation . Disclosure requirements: a. Lansing Legal Clinic MAY be used by lawyer in private practice if not misleading: . SC said there cannot imagine how consumers could be misled b.1 (not false or misleading) a.Continuing succession – work till died d.A lawyer’s constitutionally protected interest in not providing info in advertisement is quire minimal b. because disclosure rule making every brief ad look as complex as Treaty of Westphalia can be functional equivalent of prohibiting advertisement 5. Zauderer made clear that disclosure requirements do implicate free speech a.Died or retired . Use name of lawyer not associated with firm ii. 7.Firm may designate some or all of names of members . letterhead or other professional designation that violates 7.- authority Says you can certify you are specialist as long as it satisfies 7. Florida had detailed disclosure rule requiring disclosure of following: E. Trade names (ABC Legal Clinic.Does not imply connection to government agency .Do not prohibit speech .4 3. Must be limits to state’s power to mandate detailed disclosures. Use name of predecessor of firm c.Can NOT: i. Ibanez – Lawyer’s designation as CPA and certified financial planner is ok a.
Lawyer or law firm shall not accept governmental legal engagement or appointment by judge if lawyer or law firm makes political contribution or solicits political contributions for purpose of obtaining or being considered for that type of case or appointment a.1 Bar admission and disciplinary matters 1. or. Applicant for admission to bar. Lawyers may state or imply that practice in a partnership or other organization ONLY when that is the fact g. Law firm with offices in more than 1 jurisdiction may use same name or professional designation in each jurisdiction. MUST include express disclaimer that is NOT public legal aid office to avoid misleading implication e. Subscription d. What is a political contribution? a. title suggests partnership.or public or charitable legal services organization .6 Political Contributions to Obtain Government Legal Engagements or appointments by judges 1. Denotes any gift b.2 Judicial and legal officials 1. Maintaining the integrity of the profession A. Lawyer shall not make a statement that lawyer knows to be false or with reckless disregard as to its truth or falsity concerning qualifications or integrity of: . Fail to disclose a fact necessary to correct a known misrepresentation B. or lawyer in connection with bar admission application. Loan c. Knowingly make a false statement of material fact. incumbent. To influence or provide financial support for election or retention in judicial or government office X. Made directly or indirectly to candidate. or in connection with a disciplinary matter shall not: a. Can’t try to get business by contributing money to political campaigns 3. Lawyers sharing office space or facilities. 8. b. 7. violates 7. but identification of lawyers in office of firm shall indicate jurisdictional limitations on those not licensed to practice in jurisdiction where office is located f. which is not true-misleading.If use geographical name. political party or campaign f. Referred to as “pay to play” rule 2. but who are in fact not partners. Advance or deposit of anything of value e.1 F. 8. may not hold themselves out as partners.
Adjudicatory officer c. Example – stealing money. Lawyer who knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty. 8.6 D. Candidate for election or appointment 2. Rules of jurisdiction in which tribunal sits. Does not require disclosure of information protected by rule 1.a.That raises substantial question to lawyers fitness c. deceit. NOT showing up for court does not raise a substantial question 3. State or imply an ability to improperly influence a government agency or official or to achieve results by means that violate the rules f. Engage in conduct prejudicial to the administration of justice e. 8. A judge b. knowingly assist or induce another to do so.CATCH ALL RULE b. Commit a criminal act that reflects adversely on the lawyer’s fitness.To violate or attempt to or use a third party to violate . 8. d. 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 a. trustworthiness or fitness as a lawyer . Violate or attempt the Rules. or do so through the acts of another . or misrepresentation. Choice of law – each state has its own version a. fraud. A lawyer who is a candidate for judicial office shall comply with applicable provisions of the code of judicial conduct C. It is professional misconduct to: a. trustworthiness or fitness as a lawyer shall inform the appropriate professional authority 2.4 Misconduct 1. unless rules of tribunal provide otherwise . Knowingly assist a judge or judicial officer in conduct that is a violation of the rules of judicial conduct E. Lawyer not admitted in a jurisdiction is also subject to the disciplinary authority of that jurisdiction 2.3 Reporting Professional Misconduct 1.5 Disciplinary Authority: Choice of Law 1. Disciplinary authority a. Lawyer is subject to the disciplinary authority of jurisdiction where admitted to practice b. Public official d. Engage in conduct involving dishonesty.
unless predominant effect of the conduct is in a different jurisdiction - . For other conduct. the rules of the jurisdiction in which lawyer’s conduct occurred. Case pending in MI – MI rules apply b.Law of particular state – apply law of that state i.
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