Professional Responsibility: Outline

Table of Contents
1. PROFESSIONAL RESPONSIBILITY: OUTLINE...............................................................3 1.1 Model Rules..........................................................................................................................3

Philip Larson

Page 2

Professional Responsibility: Outline

1. PROFESSIONAL RESPONSIBILITY: OUTLINE

1.1 Model Rules

A. Rule 1.1: Competence a lawyer must provide competent representation which requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation. a. Legal Knowledge and Skill i. C1: Factors include 1) relative complexity and specialized nature of the matter, 2) lawyers general experience, 3) the lawyers training and experience, 4) the preparation and study the lawyer is able to give the matter, 5) whether it is feasible to refer the matter to someone competent in the field. ii. C2: lawyer need not have special training or prior experience. A newly admitted lawyer may be just as competent as a practitioner with lots of experience. iii. C3: a lawyer may give advice or assistance in an emergency if it is reasonably necessary. b. Thoroughness and Preparation i. C5: Competence requires inquiry into and analysis of the factual and legal elements of the problem as well as adequate preparation. c. Maintaining Competence i. C6: A lawyer must keep abreast of changes in the law and its practice.

B. Rule 1.2: Scope of Representation a. Lawyers control the means, the client controls the ends. A lawyer shall abide by a clients
decisions concerning the objectives of representation and shall consult with the client as to the means by which they are pursued. A lawyer shall abide by a clients decision to settle a matter. Rule 1.2(a) In a criminal case, the lawyer shall abide by the clients decision as to a plea to be entered, whether to waive a jury trial, and whether the client will testify. Rule 1.2(a) b. A lawyers representation of a client does not constitute an endorsement of the clients political, economic, social or moral views. c. A lawyer may limit the scope of the representation. d. A lawyer shall not counsel a client to engage, or assist, in conduct the lawyer knows to be criminal or fraudulent, but a lawyer may discuss legal consequences of any proposed course of conduct. Rule 1.2(d) i. C2: if lawyer and client have fundamental disagreement about objectives and means, lawyer can withdraw - Rule 1.16(b)(4) or the client can fire the lawyer Rule 1.16(a)(3). ii. C3: Client may authorize lawyer to take some action on clients behalf w/o consultation. iii. C4: If client is suffering from diminished capacity, lawyers duty to abide by clients decisions is guided by Rule 1.14. iv. C9: there is a critical distinction between presenting analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud is committed. v. C10: If the lawyer discovers he is assisting a client in a crime he must withdraw. Rule 1.16(a)

C. Rule 1.3: Diligence a lawyer shall act w/ reasonable diligence and promptness in representing a client. a. C1: lawyer must pursue a matter for a client despite opposition and personal inconvenience. b. c.
Must act with zeal in advocacy of the client. This does not preclude a lawyer from treating all people involved with courtesy and respect. C2: Lawyers workload must be controlled. C3: A lawyer should prevent unreasonable delay b/c it undermines clients confidence.

Philip Larson

Page 3

Professional Responsibility: Outline

d. C4: A lawyer should carry through to conclusion all matters undertaken for client, unless the e.
relationship is terminated per Rule 1.16. Lawyers employment terminates when the matter has been resolved. C5: To prevent neglect, a lawyer may need to prepare a plan designating another competent lawyer if he dies.

D. Rule 1.4: Communication - a lawyer shall 1) promptly inform the client of matters in which his informed
consent is required, 2) reasonably consult the client about the means used to obtain the clients objectives, 3) keep the client reasonably informed about the status of the matter, 4) promptly comply w/ reasonable requests for info. Rule 1.4(a). A lawyer shall explain the matter to the extent reasonably necessary for the client to make an informed decision. Rule 1.4(b). a. C2: if a lawyer gets a settlement offer or a plea bargain he must promptly inform client. b. C4: if a prompt response is not feasible (a)(4), lawyer should acknowledge receipt of request and let client know when a response will be coming. c. C5: negotiation if possible, a lawyer should review all provisions w/ client. Litigation lawyer should explain general strategy and consult on tactics. Trial/negotiation lawyer does not have to describe entire strategy in detail. d. C6: if client is a group it is impossible to inform every member. Lawyer should inform appropriate officials of the organization. (Rule 1.13. e. C7: a lawyer may delay transmission of info if the client is likely to react imprudently. A lawyer may not withhold information to serve the lawyers own interest.

E. Rule 1.5: Fees a lawyer cannot charge unreasonable fees. Factors considered include 1) time and
labor required, 2) opportunity cost to lawyer, 3) fee typical in locality for similar services, 4) results obtained, 5) time limitations imposed by circumstances, 6) length of relationship w/ client (longer relationships are more likely to have established fees C:2), 7) experience, reputation of lawyer, 8) if fee is fixed or contingency. Rule 1.5(a). a. Changes in fees: should be communicated to client. Rule 1.5(b). b. Contingent fees: must be in writing and signed by client. It must clearly define any expenses the client is responsible for. Rule 1.5(c). i. Prohibited for: continency fees in domestic relations and criminal cases. Rule 1.5(d). c. Splitting fees: b/w lawyers not in the same firm can only be made if division is proportional to services performed, the client agrees to the arrangement in writing, and fee is reasonable. Rule 1.5(e). d. Comments i. C4: advance payment of fees is allowed, but lawyer must return any unearned portion. A lawyer may receive property as a fee as long as it is not interest in the subject matter of litigation Rule 1.8(i). However, this is subject to the business transaction requirements of Rule 1.8(a). ii. C5: fees should not be structured such that a client should has to bargain for further assistance in the middle of a proceeding or transaction. A lawyer cannot exploit the client.

F. Rule 1.6: Confidentiality of Information a lawyer cannot reveal information relating to the
representation of a client w/o informed consent. Rule 1.6(a). However, a lawyer may break the A/C privilege to: a. MR 1.6(b)(1) Preventing Death or SBH the lawyer may break the AC privilege to prevent death or serious bodily harm to ANYONE. (in VA it is must for crimes). b. MR 1.6(b)(2) Preventing Crime or Fraud the lawyer may break the AC privilege to prevent his client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another.

Philip Larson

Page 4

Professional Responsibility: Outline

c. MR 1.6(b)(3) Prevent Substantial Financial Injury the lawyer may break the AC privilege to
prevent, mitigate or rectify substantial injury to financial interests or property of another reasonably certain to result from clients commission of crime or fraud. This does not apply when the client is employing the lawyer concerning the crime or fraud itself. C8. d. MR 1.6(b)(4) Securing Legal Advice the lawyer may break the AC privilege to secure legal advice about compliance w/ ethics rules. e. MR 1.6(b)(5) Self-Defense the lawyer may break the AC privilege to establish a claim or defense in a controversy b/w the lawyer and the client, to establish a defense in a criminal or civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyers representation of the client. Moreover, the lawyer can break the AC privilege if necessary to collect the lawyers fee. MR 1.6(b)(5). This gives attorneys liberal authority to violate confidentiality in order to defend themselves. It does not even require the lawyer to await the commencement of a cause of action so the lawyer can respond directly to a third party making the assertion. f. MR 1.6(b)(6) Compliance with the Law a lawyer may break the AC privilege to comply with a court order. g. Comments i. C1: Prospective clients are governed by Rule 1.18. Former clients governed by Rule 1.9(c)(2). Rule 1.8(b) and 1.9(c)(1) say lawyers cant disadvantage clients and former clients. ii. C3: rule applies to any information related to the representation, regardless of the source. iii. C4: lawyer cant even provide information that could reasonably lead to the discovery of protected information. iv. C5: lawyers in the same firm may disclose information, unless client forbids. v. C7: while b(2) does not require lawyer to reveal the information, he may not assist in wrongful conduct. Rule 1.2(d). Moreover, Rule 1.16 may require lawyer to withdraw. vi. C10: a lawyer need not wait for a cause of action to be brought to claim defense under b(5), he may respond upon even an assertion by a third party. vii. C11: b(5) also applies if necessary for a lawyer to collect a fee. viii. C14: disclosing information adverse to client should be no greater than the lawyer believes is reasonably necessary. ix. C15: Rules that DONT override 1.6: Rule 1.2(d) counseling fraud, 4.1(b) failure to disclose to avoid assisting in fraud, 8.1 correcting a misapprehension in bar application and 8.3 reporting professional misconduct. Rules that DO override 1.6: 3.3(c) candor to tribunal, 1.13(c) whistleblowing in company. x. C16: lawyer must act competently to prevent disclosure by lawyer or others under his supervision. Rule 1.1 - competence, 5.1 supervising lawyers, 5.3 nonlawyer assistants xi. C17: lawyer must take reasonable precautions to prevent info from going to unintended recipients. Factors for reasonableness include 1) sensitivity of information, 2) if there is a confidentiality agreement. xii. C18: confidentiality continues after C/L relationship is over. Rule 1.9(c)(2). xiii. MR 4.4 - Inadvertent Disclosure the client may lose the privilege of confidentiality by inadvertently disclosing otherwise privileged communications to non-privileged recipients. Moreover, if a client voluntarily reveals a portion of his privileged communications, courts typically find that he may not withhold the remainder. If a document relating to the representation of the lawyers client was inadvertently sent to the lawyer, he must promptly notify the sender. MR 4.4(b).

G. Rule 1.7: Conflict of Interest: Current Clients a lawyer cant represent a client if there is a concurrent
conflict of interest which occurs if 1) representation would be directly adverse to another client, 2) there is significant risk the representation will be materially limited by lawyers responsibilities to another. Rule

Philip Larson

Page 5

Professional Responsibility: Outline

1.7(a). However, a lawyer can represent a client even if there is a conflict if 1) he reasonably believes he can provide competent and diligent representation, 2) the representation is not prohibited by law, 3) it is not client 1 vs. client 2, AND 4) each client gives informed consent, confirmed in writing. Rule 1.7(b). a. C1: Rule 1.8 deals with specific concurrent conflicts. Rule 1.9 deals w/ former client conflicts. Rule 1.18 deals w/ prospective clients. b. C2: Resolution of conflict requires lawyer to: 1) clearly identify the clients, 2) determine if a conflict exists, 3) decide whether representation can still be made, 4) if so, consult the clients to get informed consent. c. C4: if conflict arises after representation is undertaken, lawyer ordinarily must withdraw. A lawyer may, potentially, still represent one of the clients. d. C6: competing firms are not typically considered adverse, and therefore probably are not a conflict. e. C10: lawyers personal interests cannot be adverse to a client. Rule 1.8 describes some of the personal interests, such as business transactions. Rule 1.10 says that personal interest conflicts under Rule 1.7 typically are not imputed to other lawyers in the firm. f. C11: lawyers related to each other cannot represent opposing clients. g. C12: lawyers cannot have sex with a client. Rule 1.8(j). h. C21: Revoking consent a client can revoke informed consent at any time. i. C24: a lawyers advocating a legal position in one case that may create precedent adverse to another case is not a conflict. j. C25: Class actions unnamed members of the class need not provide consent. k. C26/27 Conflicts outside litigation conflicts in estate planning, joint ventures, etc. l. C29: If Common Representation Fails lawyer probably must withdraw. If clients relationship is already antagonistic, common representation is a bad idea. m. C30/31: A/C privilege does not apply b/w commonly represented clients. Continued common representation is almost certainly inadequate if one client asks the lawyer not to disclose something to the other client. n. C32: Limitations on Scope any limitations on scope as a result of common representation should be explained to clients at the outset per Rule 1.2(c). o. C34: Affiliates in Business a lawyer for a company is not necessarily a lawyer for all affiliates. Therefore, lawyer is not barred from representing adverse affiliates in unrelated matters. p. C35: Lawyer on Board of Directors may be a problem if dual role compromises lawyers independence of professional judgment.

H. Rule 1.8: Conflict of Interest: Current Clients: Specific Rules a. Rule 1.8(a) - Business Transactions a lawyer shall not enter into a business transaction w/ a
client or knowingly acquire an ownershipinterest adverse to the client unless: 1) the terms are fair and reasonable, 2) the client is advised in writing and given opportunity to seek advice of independent legal counsel, 3) the client gives informed consent in writing. This applies even if the transaction is not closely related to the subject matter. C1. However, it does not apply to standard commercial transactions where the lawyer has no advantage in dealing w/ the client. C1. Rule 1.8(b) Disadvantage of Client A lawyer shall not use information relating to the representation to the disadvantage of the client unless the client gives informed consent. This violates the duty of loyalty. C5. Does not apply when permitted or required by Rule 1.2(d) counseling fraud, 1.6 confidentiality, 1.9(c), 3.3, 4.1(b) failure to disclose a fact and therefore assisting in fraud, 8.1 bar application and 8.3 reporting misconduct. C5. Rule 1.8(c) Soliciting Gifts a lawyer shall not solicit any substantial gift from a client. A holiday present or token of appreciation is okay. C6. Rule 1.8(d) Media Rights a lawyer cant contract for media rights associated w/ litigation.

b.

c. d.

Philip Larson

Page 6

Professional Responsibility: Outline

e. Rule 1.8(e) Financial Assistance a lawyer shall not provide financial assistance to a client in
connection with pending litigation EXCEPT: 1) a lawyer may advance court costs, 2) if client is indigent, lawyer may pay court costs and litigation expenses. Medical exams and evidence expenses are also allowed. C10. Rule 1.8(f) Other Compensation a lawyer shall not receive compensation from one other than the client unless: 1) the client gives informed consent, 2) there is no interference w/ independence of professional judgment. See also Rule 5.4(c) (prohibiting interference w/ lawyers professional judgment by someone paying lawyer to render legal services for another). This may create a conflict under Rule 1.7 if the client may be materially limited by the lawyers own financial interest in the fee arrangement. C12. Rule 1.8(i) Proprietary Interest in Cause of Action lawyer cant acquire a proprietary interest in the cause of action except as part of a contingency fee in a civil case. Rule 1.8(j) Sexual Relations with Client a lawyer shall not have sexual relations with a client unless it existed b/f the lawyer-client relationship commenced. This does not impute firm members. (NOTE: all of these conflicts except sexual relations imputes to the entire firm.) MR 1.8(k). Comments

f.

g. h. i.
j.

I. Rule 1.9: Duties to Former Clients a. Rule 1.9(a) Representation Substantially Related to that of a Former Client a lawyer
who has formerly represented a client shall not represent another person in the same or substantially related matter in which that persons interests are materially adverse to the interests of the former client unless the former client gives informed consent, in writing. b. Rule 1.9(b) Representation Substantially Related to that of the Law Firms Former Client - A lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer was associated had previously represented a client: 1) whose interests were materially adverse to that person 2) about whom the lawyer had acquired information protected by Rule 1.6 (confidentiality) or Rule 1.9(c) (disadvantaging former clients) that is material to the matter. i. C4: rule should not unreasonably hamper lawyers from moving from one firm to another or inhibit clients ability to change counsel. ii. C5: 1.9(b) only applies to disqualify the lawyer if they have actual knowledge protected by 1.6 and 1.9(c). iii. C6: the firm whose disqualification is sought must show the lawyer was not privy to the information. a. Rule 1.9(c) Using Info to Disadvantage a Former Client a lawyer who has formerly represented a client or whose former or present firm formerly represented the client shall not 1) use information relating to the representation to the disadvantage of the former client, unless the information has become generally known. b. Comments i. C2/C3: substantial relation test typically means it is the same transaction or legal dispute. Or if there is substantial risk that confidential info gained in prior representation would materially advance the new clients position. However, information disclosed to the public or to other adverse parties of the former client will not disqualify the lawyer. Regarding organizations, general knowledge of policies will not preclude later representation but specific facts related to the matter will.

J. Rule 1.10: Imputation of Conflicts General Rule While with a firm, no lawyers shall knowingly
represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9 (current and former client conflicts), unless the prohibition is based on a personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. Rule 1.10(a).

Philip Larson

Page 7

Professional Responsibility: Outline

a. Rule 1.10(b) Imputation Ends when Lawyer Leaves Firm Except when Substantially
Related When a lawyer leaves a firm, the firm is not prohibited from representing a client w/ interests materially adverse to those of a client represented by the former lawyer 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 (confidentiality) and 1.9(c) (use information to disadvantage of former client) that is material to the matter. b. MR 1.10(c) Waiver of Imputation a disqualification of lawyers through imputation may be waived by the affected client as stated in 1.7 (current client conflicts). c. Comments i. Rule 1.7, C10 a lawyers own interest cannot have an adverse affect on a clients representation. However, personal conflicts are not imputed to other lawyers in the firm. ii. Rule 1.7, C11 - Imputation within Lawyers Families If two lawyers in different firms are related or married, they may not be on opposite sides of the same case (unless the client gives informed consent). This disqualification is not imputed on other members of the same firm. iii. Use of Screening to Avoid Imputation A client may waive an imputed conflict or consent to waive the conflict on the condition that the law firm screen the affected employee from the matter (i.e. isolating the lawyer from participation through adequate procedures in the firm).

K. Rule 1.11: Special Conflicts of Interest for Former and Current Government Officers and
Employees

L. Rule 1.12: Former Judge, Arbitrator, Mediator, or other Third-Party Neutral M. Rule 1.13: Organization as Client if a lawyer for an organization knows an officer or employee intends
to act in violation of a legal obligation putting the organization at risk, he must do what is reasonably necessary in the best interest of the organization including referring the matter to the highest authority. Rule 1.13(b). If the highest authority (CEO) doesnt do anything in violation of law AND the lawyer reasonably believes the violation will cause injury to the organization, the lawyer may reveal information regardless of Rule 1.6. Rule 1.13(c) (whistleblowing). A lawyer representing an organization may represent directors and other employees, subject to Rule 1.7 (current conflicts). If organizations consent is required, it must be given by someone other than the employee seeking dual representation. Rule 1.13(g). However, if the interests of the organization are different than the constituent the lawyer should tell the constituent he cant represent him and that he should seek independent counsel. C10. a. C2: Application of Rule 1.6 protects communication with any constituent communicating with the lawyer in their organizational capacity. b. C6: Relation to other rules this Rule does not limit or expand a lawyers responsibility under Rule 1.8, 1.16, 3.3 or 4.1. If lawyers services are being used to further crime or fraud, 1.6(b)(2) or b(3) may enable the lawyer to disclose confidential information. Rule 1.2d (forbidding counseling in fraud) will likely be applicable in which case withdrawal under Rule 1.16(a)(1) may be required.

N. Rule 1.14: Client with Diminished Capacity if a clients capacity to adequately consider decisions is
diminished, the lawyer must try to maintain a normal client-lawyer relationship. Rule 1.14(a). If the lawyer reasonably believes the client is at risk of substantial physical or financial harm, he may take reasonable protective action even if it violates Rule 1.6. Rule 1.14(b,c). These measures may include 1) consulting w/ family members, 2) using surrogate decisionmaking tools like durable powers of attorney, or 3) consulting w/ support groups, professional services, adult-protective agencies or other entities capable of protecting the client. C5. a. C2: lawyer must treat client with respect and maintain communication. b. C3: when family members are involved, lawyer must look to the client for decisions, not to the family members unless protective action under 1.14(b) is necessary.

Philip Larson

Page 8

Professional Responsibility: Outline

c. C6: Balancing Factors in deciding extent of diminished capacity, lawyer should consider 1)
clients ability to articulate reasoning for a decision, 2) variability of state of mind and ability to appreciate consequences, 3) the fairness of a decision, and 4) the consistency of the decision with long-term commitments and values of the client. C8: Disclosure of Condition is protected by Rule 1.6 unless it is necessary as part of a protection action under Rule 1.14(b). C9: Emergencies a lawyer may take legal action for the client in an emergency where health, safety or financial interest of the client are threatened with by imminent harm.

d. e.

O. Rule 1.15: Safekeeping Property a lawyer must keep client property separate from the lawyers own
property. Funds must be in separate accounts. Good records must be kept. Rule 1.15(a). A lawyer can deposit his own funds in a client trust only for paying bank service charges on the account. Rule 1.15(b). When receiving funds in which a client or third party has an interest, the lawyer must notify them promptly and deliver it promptly. Rule 1.15(d). a. C1: a lawyer holding property must use care required by a professional fiduciary.

P. Rule 1.16: Terminating Representation a lawyer cant represent a client (or, if already representing,
must withdraw) if: 1) representation will violate the MRs or other law, 2) the lawyers physical condition materially impairs the lawyers ability to represent the client, or 3) the lawyer is fired. Rule 1.16(a) a. Rule 1.16(b) - Withdrawal by Lawyer A lawyer has no general, absolute right of withdrawal. Moreover, it ordinarily requires approval of the appointing authority. Rule 6.2. A lawyer may withdraw if: 1. No Material Adverse Effect: withdrawal can be accomplished w/o material adverse effect to the interests of the client, Rule 1.16(b)(1). 2. Crime/Fraud Exception: the client persists in conduct the lawyer reasonably believes is criminal or fraudulent, Rule 1.16(b)(2) or has used the services to perpetuate a crime or fraud. Rule 1.16(b)(3). 3. Repugnant Cause: the client insists on taking action the lawyer finds repugnant or has a fundamental disagreement, Rule 1.16(b)(4). 4. Failed Obligation: client fails to fulfill an obligation to the lawyer regarding his services and has been given reasonable warning. Rule 1.16(b)(5). 5. Unreasonable Financial Burden: the representation will result in an unreasonable financial burden on the lawyer. Rule 1.16(b)(6). b. Rule 1.16(d) after termination of representation, a lawyer must reasonably protect a clients interests, including giving notice and allowing time to find new counsel, and giving papers the client is entitled to and refunding any advance payments. c. Client Fires Lawyer the client always has a right to discharge a lawyer at any time, with or without cause. If the client fires the lawyer, the lawyer must withdraw. C4. However, if the client has severe diminished capacity, the client may lack legal capacity to discharge the lawyer. C6. d. Mandatory Withdrawal: a lawyer must decline or withdraw representation if the client demands the lawyer engage in illegal conduct. C2. Typically court approval or notice to the court is required b/f a lawyer can withdraw from pending litigation. C3.

Q. Rule 1.17: Sale of Law Practice a lawyer or law firm may purchase a law practice if: a) seller ceases to
engage in private practice in the area of practice sold, b) the entire practice, or area of practice is sold, c) the seller gives written notice to each client of the proposed sale, the right to retain counsel, and that the clients consent to transfer the clients files will be presumed if they dont take action in 90 days. a. C1: clients are not commodities to be purchased and sold at will. b. C10: fees cannot be increased in order to finance the purchase of the practice. c. C11: seller must ensure the buyers competence under Rule 1.1, ability to avoid conflicts under Rule 1.7, and obligation to protect information under Rule 1.6 and 1.9.

Philip Larson

Page 9

Professional Responsibility: Outline

R. Rule 1.18: Duties to a Prospective Client - a person who discusses with a lawyer the possibility of
forming a client-lawyer relationship wrt a matter is a prospective client. Rule 1.18(a). However, a person who communicates information unilaterally to a lawyer w/o a reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship is not a prospective client. C2. a. Confidentiality: Moreover, even if no client-lawyer relationship ever develops, the lawyer that has discussions with a prospective client must keep that information confidential in the same way the lawyer must keep the confidences of a former client. Rule 1.18(b). b. Disqualification: This means the lawyer may be disqualified from representing the opponent of the would-be client if it could be significantly harmful to the client. Rule 1.18(c). However, the lawyer need not disqualify if both the affected client and prospective client give informed consent, in writing or if the lawyer took reasonable measures to avoid exposure to more qualifying information that was reasonably necessary to determine whether to represent the client and the disqualified lawyer is timely screened and written notice is promptly given to prospect. Rule 1.18(d). This would prevent imputation. C7. c. C1: basically, prospective clients receive some but not all of the protection afforded clients. d. C3: duty exists no matter how brief the initial conference is. e. C4: lawyer should limit the initial interview to only information reasonably necessary to determine whether to take the case. f. C5: a lawyer may condition the conversation w/ a prospect on the persons informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter.

S. Rule 2.1: Advisor - The lawyer must give candid advice, and provide independent professional judgment.
including the lawyers opinion of what the court is likely to do and the practical effects of such a ruling. The lawyer may also advise the client on economic, political, social and moral considerations. MR 2.1. Lawyers should make referrals to competent professionals in other fields. C4. a. C1: a lawyer should not be deterred from giving advice he believes will be unpalatable to the client. Technical legal advice can sometimes be inadequate C2. b. C4: a lawyer may recommend consultation w/ a professional in another field. c. C5: in some cases, Rule 1.4 may require the lawyer to offer advice even when it is not asked for.

T. Rule 2.3: Evaluation for Use by Third Persons a lawyer can provide an evaluation of a matter
affecting the client for use by a third party if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the client relationship. Rule 2.3(a). However, if the lawyer knows the evaluation is likely to adversely and materially affect the clients interests, he cant provide the evaluation w/o the clients informed consent. Rule 2.3(b). a. C5: information relating to an evaluation is protected by Rule 1.6.

U. Rule 2.4: Lawyer Serving as Third-Party Neutral a lawyer is a third-party neutral when he assists two
or more people not clients to reach a resolution of a dispute. This includes arbitration, mediation, etc. Rule 2.4(a). A lawyer acting as a third-party neutral must inform the parties that he is not representing them. Rule 2.4(b). A lawyer acting as an arbitrator cannot then represent a client in the same matter Rule 1.12.

V. Rule 3.1: Meritorious Claims and Contentions a lawyer cant bring frivolous claims or defenses
without a basis in law. The lawyer cannot abuse legal procedure. C1. Lawyers must make good faith arguments in support of their clients positions. C2.

W. Rule 3.2: Expediting Litigation a lawyer must make reasonable efforts to expedite litigation consistent
w/ the clients interests. Realizing financial benefits from improper delays is NOT a legitimate interest. C1.

Philip Larson

Page 10

Professional Responsibility: Outline

X. Rule 3.3: Candor Toward the Tribunal a lawyer shall not knowingly 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 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, 3) offer evidence the lawyer knows to be false. Rule 3.3(a). Note: this only applies when the lawyer knows the evidence is false. Reasonable belief that it is false does not preclude its presentation. C8. (Note: per Rule 3.3(c), this trumps Rule 1.6) a. Rule 3.3(b) - Duty to Disclose a Clients Intended Crime of Fraud a lawyer must take reasonable remedial measures, including potentially disclosing to the tribunal, if she knows that her client intends to engage in, is engaged in, or was previously engaged in criminal or fraudulent conduct related to the proceeding. Rule 3.3(b). (Note: per Rule 3.3(c), this trumps Rule 1.6) b. Comments i. C1: also applies to ancillary proceedings conducted per tribunals authority. ii. C2: purpose is to prevent lawyers from undermining the integrity of the adjudicative process. Lawyer cannot let the court be misled by flase statements of law. iii. C3: typically, court documents represent assertions of the client, not of the lawyer. If the lawyer asserts it on his own knowledge, it must be true or the lawyer must believe it to be true after reasonably diligent inquiry. Rule 1.2(d) (no counseling client to commit fraud) applies to litigation. iv. C4: Narratives if the jurisdiction allows narrative statements, this is fine. v. C9: Criminal Trial Where D Wants to Testify - In a criminal trial, a lawyer must honor Ds decision to testify. vi. C13: obligation to rectify false evidence and false statements of law and fact end at the conclusion of the proceeding. (e.g. final judgment affirmed on appeal). vii. C15: Withdrawal typically if a lawyer discloses client information under Rule 3.3, the relationship will deteriorate to a point where the lawyer must withdraw under Rule 1.16(a).

Y. Rule 3.4: Fairness to Opposing Party and Counsel a lawyer shall not a) obstruct a partys access to
evidence having potential evidentiary value, b) falsify evidence, c) knowingly disobey an obligation under the rules of the court, d) make frivolous discovery requests or fail to make a diligent effort to comply with a discovery request, e) in trial, allude to a matter the lawyer does not reasonably believe is relevant or supported by evidence, f) request a person other than a client refrain from giving relevant information, unless the person is 1) an agent of the client, and 2) the lawyer reasonably believes the persons interests will not be adversely affected by refraining.

Z. Rule 3.5: Impartiality and Decorum of the Tribunal - a lawyer shall not a) seek to influence a judge,
juror, or prospective juror by means prohibited by law, b) communicate ex parte (w/o notice to other party) with such a person during the proceeding unless authorized, c) communicate with a juror after discharge of the jury if 1) the communication is prohibited, 2) the juror does not want to communicate, and 3) the communication involves misrepresentation, coercion, duress or harassment. a. C1: a lawyer should not improperly influence the tribunal.

AA.

Rule 3.6: Trial Publicity a lawyer shall not make extrajudicial statements the lawyer knows or reasonably should know will be disseminated to the public in a manner that will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Rule 3.6(a). a. Exception: A lawyer may state i. 1) the claim, offense or defense involved and the identity of the persons, ii. 2) info in the public record, iii. 3) that an investigation is in progress. iv. 4) the result of any step in litigation. v. 5) a request for assistance in obtaining evidence

Philip Larson

Page 11

Professional Responsibility: Outline

vi. 6) a warning of danger regarding the behavior of a person involved if there is reason to
believe there exists a likelihood of substantial harm to a person or the public interest. vii. 7) In a criminal case, the lawyer may also state: 1) the identity, residence, occupation, and family status of the accused, 2) information necessary to aid in apprehension, 3) fact, time and place of arrest, 4) the identity of investigating and arresting officers. Rule 3.6(b). viii. Adverse Publicity: a lawyer may also make a statement to counter adverse publicity not initiated by the lawyer or the lawyers client. The statement must be limited to the degree necessary to mitigate the adverse publicity. b. Comments i. C1: right to a fair trial requires curtailment of some right of free expression. However, the public has a right to know about threats to its safety. ii. C5: subjects relating to the character, credibility, reputation or criminal record of a party are more likely than not to have a material prejudicial effect. Similarly, results of a test or examination could prejudice. Anything that would likely be inadmissible is likely to prejudice. The fact that a D has been charged w/ a crime should include a statement explaining that this is just an accusation. iii. C6: criminal trials are MOST SENSITIVE to extrajudicial speech.

BB.

Rule 3.7: Lawyer as Witness a lawyer shall not represent a client in a trial in which he will likely be a necessary witness unless 1) his testimony is uncontested, 2) testimony relates to the nature and value of legal services rendered in the case, 3) disqualification of the lawyer would result in substantial hardship on the client. Rule 3.7(a). A lawyer may act as an advocate in a trial in which another lawyer in the firm is likely to be a witness unless precluded by Rule 1.7. Rule 3.7(b). a. C3: (a) prohibits a lawyer from being both an advocate and a witness b. C6: if the testimony is likely to conflict with the testimony of the client, Rule 1.7 is an issue. If a conflict exists, lawyer must secure informed consent of client in writing.

CC.Rule 3.8: Special Responsibilities of a Prosecutor DD. Rule 3.9: Advocate in Nonadjudicative Proceedings

EE.

Rule 4.1: Truthfulness in Statements to Others - In the course of representing a client, a lawyer shall not a) make a false statement of material fact or law to a third person, or b) fail to disclose a material fact when necessary to avoid assisting in a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 (confidentiality). When not representing a client, dishonesty is governed by Rule 8.4 (misconduct by lawyers). a. C1: generally no affirmative duty to inform opposing party of relevant facts. Dishonest conduct that does not constitute a false statement is handled by Rule 8.4. b. C2: estimates of price or value placed on a subject of transaction and a partys intentions are material facts. c. C3: lawyer cant counsel client to commit fraud. Rule 1.2(d).

FF. Rule 4.2: Communication w/ Person Represented by Counsel - A lawyer may not communicate with
another person about the subject of the representation whom the lawyer knows to be represented by counsel unless that persons lawyer consents or the communications are authorized by law or court order. Rule 4.2. This rule applies even if the represented party initiates the communication. C3. In the case of a represented organization, this rule prohibits communication with constituents that supervise, direct or regularly consults w/ the organizations lawyers concerning the matter or who has the authority to obligate the organization wrt the matter but not former consituents. C7. Note: this does not prohibit communication with a represented person concerning matters outside the representation. a. C2: this applies to any person represented by counsel in the matter, not just parties. b. C4: parties to a matter can communicate directly w/ each other, and a lawyer may advise c. C7: a lawyer may communicate w/ former employees of a firm involved in the litigation.

Philip Larson

Page 12

Professional Responsibility: Outline

d. C8: lawyer must have actual knowledge the person is represented by counsel. In this case, the
lawyer is governed by Rule 4.3 (dealing w/ unrepresented persons)

GG.

Rule 4.3: Dealing w/ Unrepresented Person - A lawyer may not imply he is disinterested and must make sure the person understands the lawyers role in the matter. The lawyer must make reasonable efforts to correct a misunderstanding. A lawyer cant give legal advice to an unrepresented person, other than the advice to secure counsel, if he knows the interests of the person have a reasonable possibility of being in conflict w/ those of his client. a. C1: Rule 1.13(f) says a lawyer for a company must make clear his role is understood by those he communicates with. b. C2: the lawyer may negotiate terms of a transaction or settle a dispute w/ the unrepresented party. Rule 4.4: Respect for Rights of Third Persons a lawyer may not use means that have no purpose but to embarrass, delay or burden a third person. Rule 4.4(a). A lawyer who receives a document related to the representation he knows was inadvertently sent should promptly notify the sender. Rule 4.4(b). Whether the lawyer must return the document is a matter of law. a. C2: document includes e-mail and other electronic modes of communication.

HH.

II. Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers they must make
reasonable efforts to ensure lawyers conform to the Model Rules. A supervising lawyer must make reasonable efforts to ensure other lawyers conform to the Rules. A lawyer is responsible for anothers violation if the lawyer 1) orders the conduct, 2) has direct supervisory authority over the other lawyer and knows of the conduct at a time when the consequences could be avoided.

JJ. Rule 5.2: Responsibilities of a Subordinate Lawyer a lawyer is bound by the Rules even if he is
acting at the discretion of another.

KK.

Rule 5.3: Responsibilities Regarding Nonlawyer Assistants when nonlawyers are employed, the firm must make reasonable efforts to ensure they follow the Rules, particularly when a direct supervisor. A lawyer is responsible for their conduct if 1) he orders the conduct, or 2) he has direct supervisory authority over the person and knows of the conduct at a time when the consequences could be avoided. Rule 5.4: Professional Independence of a Lawyer a lawyer shouldnt share legal fees w/ a nonlawyer Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law Rule 5.6: Restrictions on Right to Practice Rule 5.7: Responsibilities Regarding Law-Related Services

LL.

MM.

NN.
OO.

PP. Rule 6.1: Voluntary Pro Bono Publico Service QQ. Rule 6.2: Accepting Appointments

RR.

Rule 6.3: Membership in Legal Services Organizations a lawyer may serve as a director of a legal services organization, apart from the law firm in which the lawyer practices, even if they serve persons having adverse interests to a client of the lawyer.

SS. Rule 7.1: Communication Concerning a Lawyers Services a lawyer cant make false or misleading
communications about the lawyer or the lawyers services. A communication is false or misleading if it

Philip Larson

Page 13

Professional Responsibility: Outline

contains a misrepresentation of fact or law, or omits a fact necessary to make the whole statement not materially misleading. a. C1: this includes advertising permitted under 7.2. b. C2: even truthful statements are prohibited if they are misleading (e.g. if it omits a material fact or there is a substantial likelihood it will lead a reasonable person to formulate an incorrect conclusion). c. C3: ads that report a lawyers achievements on behalf of clients is misleading if it creates an unjustified expectation that the same results could be obtained for other clients in similar circumstances, w/o reference to the specific factual and legal circumstances. Comparing rates may also be misleading if they cant be substantiated.

TT.

Rule 7.2: Advertising Subject to Rule 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication. Rule 7.2(a). However, a lawyer cant give anything of value to a person for recommending the lawyers services except 1) to pay reasonable costs of ads, 3) to pay for a law practice per Rule 1.17, 4) in referral agreements with a nonlawyer where the agreement is i) not exclusive, and ii) the client is informed of the referral agreement. Rule 7.2(b). However, these arrangements should not be indefinite and should be reviewed periodically. C8. Any advertisement must also include the name and address of at least one lawyer responsible for the content. Rule 7.2(c). a. C3: Rule 7.3(a) prohibits solicitation of a prospective client through real-time electronic exchange not initiated by the prospect. b. C5: a lawyer can pay publicists, PR people, bus-dev staff, and website designers. c. C7: a lawyer that accepts referrals must act reasonably to ensure the activities of the referrer are compatible with Rule 7.1, 7.3, etc. (advertising cant be false, misleading, etc.). d. C8: referral arrangements cannot affect the lawyers professional judgment as to making referrals or as to providing legal services, per Rule 2.1 (advisor must have independent professional judgment). Conflicts are governed by Rule 1.7. Rule 7.3: Direct Contact w/ Prospective Clients a lawyer shall not by in-person, live telephone, or real-time electronic contact solicit employment from a prospect when a significant motive is the lawyers pecuniary gain, unless the person contacted: 1) is a lawyer, 2) has a family or close personal or prior professional relationship w/ the lawyer. Rule 7.3(a). Even if allowed under (a), a lawyer cant solicit employment from a prospect using written, recorded or electronic communication or by in-person, telephone or electronic contact if: 1) the prospect has made known to the lawyer he does not want the solicitation, 2) the solicitation involves coercion, duress or harassment. Rule 7.3(b). Moreover, every written, recorded or electronic communication from a lawyer soliciting employment must contain the words Advertising Material on the outside of the envelope and at the beginning of any recorded communication, unless it is with a lawyer, family member or someone the lawyer has a close personal relationship with. Rule 7.3(c). A lawyer can participate in a group legal service plan operated by an organization not owned or directed by the lawyer, even if they use in-person solicitation of memberships or subscriptions. Rule 7.3(d). However, the lawyers should be reasonably sure the plan sponsors comply w/ Rules 7.1, 7.2 and 7.3(b). C8. a. C1: prospects may feel overwhelmed and lawyers should not use undue influence, intimidation or over-reaching. b. C3: balance b/w free flow of information and using undue influence means that direct in-person solicitation is prohibited b/c it is likely a clients may be overwhelmed. c. C4: it is less likely the lawyer would use abusive practices with a family member, former client or someone he is close with or if the person contacted is a lawyer. d. C7: the requirement of Advertising Material does not apply to communications sent in response to requests by potential clients or their spokespersons. General announcements such as changes in office location also are not covered.

UU.

VV. Rule 7.4 Communication of Fields of Practice and Specialization

Philip Larson

Page 14

Professional Responsibility: Outline

WW.

Rule 7.5: Firm Names and Letterheads a lawyer cant use a firm name, letterhead or other designation in violation of Rule 7.1 (false or misleading advertising). XX. Rule 7.6 Political Contributions to Obtain Government Legal Engagements or Appointments by Judges

YY.

Rule 8.1: Bar Admission and Disciplinary Matters an applicant for admission to the bar, or a lawyer in connection with a bar admission, cannot a) knowingly make a false statement of material fact or b) fail to disclose a fact necessary to correct a misapprehension, except as covered by Rule 1.6. a. C1: therefore, a bar applicant can be disciplined later for making a false statement on the application. Moreover, the misunderstanding need not have been created by the lawyer but just one of which he becomes aware.

ZZ.

Rule 8.2: Judicial and Legal Officials a lawyer cant knowingly make a false statement or make a statement with reckless disregard for its truth regarding the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or a candidate for election to a judicial or legal office. AAA. Rule 8.3: Reporting Professional Misconduct a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, must inform the professional authority unless it is covered under Rule 1.6. Rule 8.3(a,c). A lawyer who knows a judge has committed a violation of the rules of judicial conduct that raises a substantial question as to the judges fitness for office should inform the authorities. Rule 8.3(b). a. C1: this is about self-regulation. b. C2: while a lawyer does not have to disclose conduct protected by Rule 1.6, the lawyer should encourage the client to consent to the disclosure where prosecution would not substantially prejudice the clients interests. c. C4: the duty to report does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question.

BBB.

Rule 8.4: Misconduct: it is misconduct for a lawyer to a) violate the MRs, or knowingly assist another to do so, b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer, c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, d) engage in conduct prejudicial to the administration of justice, e) state or imply an ability to improperly influence a government official, and f) knowingly assist a judge in conduct in violation of the rules of judicial conduct. Rule 8.4. a. C2: many kinds of illegal conduct reflects adversely on the lawyers fitness to practice law, such as committing fraud or willfully failing to file a tax return. Matters involving violence, dishonesty, breach of trust, or serious interference with administration of justice are in this category. A pattern of repeated offenses, even minor ones, can indicate indifference to a legal obligation. b. C3: a lawyer who manifests bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socio-economic status is engaging in conduct prejudicial to the administration of justice under Rule 8.4(d) Rule 8.5: Disciplinary Authority; Choice of Law a lawyer admitted to practice in a jurisdiction is subject to the disciplinary authority of the jurisdiction, regardless of where the lawyers conduct occurs.

CCC.

Philip Larson

Page 15

Professional Responsibility: Outline

Adverse................5, 6, 7, 8, 9, 10, 11, 12, 13, 15 Advertisements...........................................14, 15 Business Transactions....................................4, 6 Candid....................................................5, 10, 11 Competence..................................3, 4, 5, 6, 9, 10 confidential...............................................7, 8, 10 Conflict of Interest.....................5, 6, 7, 8, 12, 13 Crime or Fraud.............3, 4, 5, 6, 8, 9, 11, 12, 15 Current Clients...............................................5, 6 Delay........................................................3, 4, 13 Diligence..................................................3, 6, 11 Diminished Capacity..................................3, 8, 9 Disadvantage..........................................5, 6, 7, 8 Disinterested.....................................................13 Economic, political, social and moral..............10 Emergency.....................................................3, 9 Factors....................................................3, 4, 5, 9 Failure to Disclose.......................5, 6, 11, 12, 15 Family....................................................8, 12, 14 Fees..........................................................4, 9, 13 Fees...................................................................... Contingency..............................................4, 7 Former Clients.....................5, 6, 7, 8, 10, 12, 14 Gifts....................................................................6 Honesty, Trustworthiness, or Fitness...............15 Imputation................................................7, 8, 10 Independent Professional Judgment....6, 7, 8, 10, 13, 14 Influence...............................................11, 14, 15 Informed Consent.......................4, 6, 7, 8, 10, 12 Misleading............................................13, 14, 15 Preparation.........................................................3 Preventing Death................................................4 Promptly.........................................4, 5, 9, 10, 13 Property......................................................4, 5, 9 Prospective Clients.......................5, 6, 10, 11, 14 Referral.............................................................14 Repugnant Causes..............................................9 Rule 1.1..............3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14 Rule 1.10....................................................6, 7, 8 Rule 1.11............................................................8 Rule 1.12......................................................8, 10 Rule 1.13..................................................4, 8, 13 Rule 1.14....................................................3, 8, 9 Rule 1.15............................................................9 Rule 1.16......................................3, 4, 5, 8, 9, 11
Philip Larson

Rule 1.17......................................................9, 14 Rule 1.18..................................................5, 6, 10 Rule 1.2......................................3, 5, 6, 8, 11, 12 Rule 1.3..............................................................3 Rule 1.4........................................................4, 10 Rule 1.5..............................................................4 Rule 1.6..........................4, 7, 8, 9, 10, 11, 12, 15 Rule 1.7..................................5, 6, 7, 8, 9, 12, 14 Rule 1.8..............................................4, 5, 6, 7, 8 Rule 1.9......................................................5, 6, 7 Rule 2.1......................................................10, 14 Rule 2.3............................................................10 Rule 2.4............................................................10 Rule 3.1............................................................10 Rule 3.2............................................................10 Rule 3.3............................................................11 Rule 3.4............................................................11 Rule 3.5............................................................11 Rule 3.6......................................................11, 12 Rule 3.7............................................................12 Rule 4.1............................................................12 Rule 4.2............................................................12 Rule 4.3............................................................13 Rule 4.4............................................................13 Rule 7.1................................................13, 14, 15 Rule 7.2............................................................14 Rule 7.3............................................................14 Rule 8.1............................................................15 Rule 8.2............................................................15 Rule 8.3............................................................15 Rule 8.4......................................................12, 15 Rule 8.5............................................................15 Scope of Representation.....................................3 Substantially Related......................................7, 8 Supervisors.............................................5, 12, 13 Unrepresented Parties......................................13 Withdrawal...................................3, 5, 6, 8, 9, 11 Zealous...............................................................3

Page 16