Professional Documents
Culture Documents
I. Competence
a. 1.1: Competence- a lawyer shall provide competent representation to a client
i. Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation
b. 2.1 Lawyer as advisor- In representing a client, a lawyer shall exercise
independent professional judgement and render candid advice
i. In rendering advice, a lawyer may refer not only to law but to other
considerations such a moral, economic, social and political factors, that
may be relevant to the client’s situation
c. 5.4 Professional Independence-
i. A lawyer or law firm shall not share legal fees with a nonlawyer
Third party or non-lawyer cannot direct or regulate a lawyer’s professional judgment
No giving legal fees/shares to non-lawyers (except to estate beneficiaries after sale of
practice, temporarily to estate administrator, to non-profit referrer, or to firm employee as
part of regular compensation or retirement plan)
No practice of law in partnerships or corporations with non-lawyers as partners,
shareholders, or directors (except for temporary estate administrator)
- A lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement
NOTE: a lawyer CAN along with non-lawyers be on the board of or own a
company whose business is not the practice of law
II. Diligence
a. 1.3- Diligence: a lawyer shall act with reasonable diligence and promptness in
representing a client
III. Care
a. 1.15- safekeeping property – a lawyer shall hold property of clients or third party
that is in the lawyer’s possession in connection with a representation separate
from the lawyer’s own property
i. Do not co-mingle the funds: must be kept in separate account
1. May deposit own funds in client trust for bank service charges
ii. Retrieve as EARNED
iii. Any dispute: take what is settled and leave the disputed amount in
separate account until settled
b. 1.17 selling a law practice –
IV. Confidentiality
a. confidentiality
i. Ethical duties : 1.6
1. Lawyer CAN’T reveal information relating to client’s
representation unless (1) informed consent; (2) disclosure
impliedly authorized; (3) disclosure permitted by (b) or required
by (c) below. STRICT rule unless fits an exception
2. Lawyer MAY reveal information to:
a. Prevent client from committing a crime;
b. Prevent client from committing a fraud reasonably certain
to result in substantial injury to another’s finances or
property in which the client used or is using the lawyer’s
services
c. Prevent, mitigate, or rectify substantial injury to another’s
financial interest or property reasonably certain to result
or has resulted from client’s crime or fraud which used
lawyer’s services;
d. Obtain legal advice about compliance with the Rules;
e. Establish a claim or defense for the lawyer in a controversy
with the client (i.e. collect fee, ARDC complaint); or
f. Lawyer SHALL reveal information relating to the
representation to the extent reasonably necessary to
prevent reasonably certain death or substantial bodily
harm. ABA SAYS MAY = THIS IS A DIFFERENCE.
i. Only 1 state out of 50 has changed this rule to
include unjustified incarceration
ii. Attorney Client Privilege
1. Client can object to the disclosure in court of communications
made between client and lawyer in confidence in course of
seeking legal advice
2. Waiver: client reveals information = privilege lost
a. Lawyer accidentally reveals info = notify the lawyer and try
to law back ( rule 4.4.b)
iii. Work Product Doctrine
1. Material is immune from discovery if it is prepared by a lawyer in
anticipation of litigation
a. Can be tangible material or intangible / oral equivalent
b. Can consist of mental impressions of the lawyer – opinion
word product
2. BEWARE: WP does not protect “underlying facts “of the world
a. “substantial need” (cannot be found otherwise) may
require disclosure of ordinary work product
b. Extraordinary circumstances may require disclosure of
opinion work product – very unlikely
b. 1.13( c) – reporting up and out – WE NEED TO FORMAT THESE EXCEPTIONS
BETTER
i. 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.
c. 1.17 (c ) – selling a law practice
d. 1.18(b) – duties to prospective client
i. 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.
V. Candor
a. 3.3 – candor to tribunal
i. An attorney must tell the court of directly adverse legal authority from
CONTROLLING JURISDICITON, even if the other side has not disclosed it
1. Two cases mere dicta: IF PURE DICTA, do not need to reveal as it
is not DIRECTLY ADVERSE, but be very very careful ( is this true
that its merely dicta, no majority has adopted my opponents
position, a dissenting opinion etc)
2. Two new cases with analogy to the case: MUST REVEAL under
3.3(a)(2) directly adverse, but are they from the controlling
jurisdiction ( state, courts, and federal circuit)
ii. HAVE TO REVEAL ALL CONTRARY LAW – but do not have to reveal all
contrary facts unless and until the opposite side makes a valid discovery
request
iii. “litigation hold” – turn off automatic deletion system (all relevant 3.4(a))
so it depends
1. Even without litigation hold from the other side you cannot delete
information or potential that will likely be material to the lawsuit,
lawyer should tell client to STOP deleting things as well.
a. Lying witness: MUST correct (3.3 b)
b. Client with lost criminal record: depends – is the court
relying on you? OR did it do all the work itself or
investigate your clients criminal record
b. 4.1 – truthfulness in statements to others
i. In the course of representing a client a lawyer shall not knowingly:
1. Make a false statement of material fact of law to a third person or
2. 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 duty of confidentiality
VI. Communication
a. 1.2 – scope of authority
o a lawyer shall abide by a client's decisions concerning the objectives of representation
and, as required by Rule 1.4, shall consult with the client as to the means by which they are
to be pursued. A lawyer may take such action on behalf of the client as is impliedly
authorized to carry out the representation.
o A lawyer may limit the scope of the representation if the limitation is reasonable under
the circumstances and the client gives informed consent.
o 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.
The lawyer's duty to act with reasonable diligence does not require the use of
offensive tactics or preclude the treating of all persons involved in the legal
process with courtesy and respect.
Exceptions;
o Lawyer makes decisions if client gives prior authority
o Lawyers makes trial advocacy decisions
o Lawyer can act reasonably in emergencies
-lawyer merely discusses and guides decisions but must ultimately abide by
clients choice.
o Be there a fundamental disagreement about the representation strategy
may BE GROUNDS FOR WITHDRAWL
-
b. 1.4- communications
A lawyer shall:
- Promptly inform the client of any decision or circumstance with respect to which the
client's informed consent
- Reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
- Keep the client reasonably informed about the status of the matter
- promptly comply with reasonable requests for information, 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
- A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation
i. California Version is the Same Plus This
- A lawyer may delay transmission of information to a client if the lawyer reasonably believes*
that the client would be likely to react in a way that may cause imminent harm to the client or
others.
- A lawyer’s obligation under this rule to provide information and documents is subject to any
applicable protective order, non-disclosure agreement, or limitation under statutory or
decisional law.
- A lawyer shall promptly communicate to the lawyer’s client:
o all terms and conditions of a proposed plea bargain or other dispositive offer made to
the client in a criminal matter; and
o all amounts, terms, and conditions of any written* offer of settlement made to the
client in all other matters.
- An oral offer of settlement made to the client in a civil matter must also be communicated if it is
a “significant development” under rule 1.4.
VII. Fairness
a. 1.5- fees
i. A fee split between lawyers not at the same firm is permitted ONLY if:
1. The lawyers share responsibility for the case and split the fee
proportionally
2. The client agrees in writing
3. The total fee is reasonable ( e.x. the fee total is not increased by
the split)
ii. CA rule 5.1- shall not divide a fee for legal services unless:
1. The lawyers enter into a written agreement to divide the fee
2. The client consented in writing * either at the time the lawyer
enters into the agreement to divide the fee or as soon thereafter
as reasonably practicable, after a full written disclosure to the
client:
a. The fact that a division of fees will be
b. The identity of the lawyers or law firms that are parties to
the division
c. And the terms of the division
3. And the total fee charged by all lawyers is not increased solely by
reason of the agreement to divide fees
b. 1.17- selling a law practice
c. 1.18 – duties to prospective client
i. Prospective client is someone “who consults with lawyer about possibility
of forming a client- lawyer relationship with respect to a matter
1. Response to lawyer’s invitation or request for information about a
specific representation ( chat- room, matter specific advertising
without warnings)
ii. No a prospective client: MERE unilateral response to “general” lawyer
advertising with warnnings
1. Tony soprano rule: cannot meet for the purpose of disqualifying
lawyer
iii. Duties to prospective clients: conflicts
g. 1.13 – organizational client – YOU ARE THE LAWYER FOR THE ENTITY, and its
best interests ( not the officers, directors, employees)
i. if you encounter someone you reasonable know has interests adverse to
the entity, you must inform that person of the indemnity
ii. 1.13 ANALYSIS
1. Are violations ones that might cause substantial injury to the
entity?
a. If it’s a innocent misunderstanding and acceptance of
lawyers advice- don’t need to report up ( not necessary for
best interest of the entity)
2. If the violations are serious enough, and if not an emergency,
inform constituents of your duty to the entity and try to change
the constituents mind
a. If an emergency, referral to highest authority may be
necessary without conferring with the constituent
3. If unsuccessful, report as high up the ladder as you need to under
the applicable law ( likely the board of directors)
4. If stonewalled despite best efforts, lawyers may reveal
confidential information reasonably necessary to protect entity
from incurring substantial injury from clear violation of law
a. CANNOT reveal information related to defense of alleged
violation
5. If lawyer fired or withdraws because of actions, inform highest
authority ( best practice is to document everything )
j. 8.5 – discipline
i. Disciplinary authority
1. lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the
lawyer's conduct occurs.
2. A lawyer not admitted in this jurisdiction is also subject to the
disciplinary authority of this jurisdiction if the lawyer provides or
offers to provide any legal services in this jurisdiction.
3. A lawyer may be subject to the disciplinary authority of both this
jurisdiction and another jurisdiction for the same conduct.