Vous êtes sur la page 1sur 35

PR Outline I. Sources of Professional Responsibility Authority: A. State Ethics Codes i.

Primary Rules: guide behavior and provide basis for discipline B. ABA Model Rules of Professional Conduct i. Only authoritative to the extent adopted by the supreme court of the state which you are licensed ii. There is a huge overlap in most jurisdictions between A and B C. Court decisions dealing with ethical issues D. ABA and state bar ethics opinions i. Not formally binding, but cited E. ALI Restatement of the Law Governing Lawyers F. Federal Agencies (SEC and IRS, etc.) i. These are binding Investigative triggers for character and fitness portion of the bar exam on pg 51-52 Personal ethical violations can lead to a denial of admission even if professional ethics are not directly implicated (cases pg 52-54) Doctoring your resume can result in (a) expulsion (preclude bad admission), (b) citation of violation, letter in the students file (make bar admission more difficult), or (c) unofficial warning (impact on bar admission depends on the schools reporting to bar with students application) Bar Admission: A. Generally, the examiners are more worried about (i) patterns vs. single instances; (ii) recent vs. long ago events; (iii) felonies vs. misdemeanors; (iv) legal problems reflecting moral character vs. technical violations Professional Discipline: A. In most states the highest court runes the disciplinary system chart pg 76 B. Trend toward expanding and placing more emphasis on lawyer discipline (historically majority of complaints not investigated) C. A lawyer can be disciplined for behavior that: i. Has nothing to do with the practice of law ii. Does not result in criminal prosecution iii. Is committed outside of the bar jurisdiction iv. Is discriminatory in nature (8.4 Com. 3) v. Deals strictly with morality (8.4 Com. 2) vi. Is committed by another on the lawyers behalf D. ABA enumerates four factors that should be considered when imposing a sanction: i. Whether the duty violated involved a client, the public or the profession. ii. Whether the lawyer acted intentionally, knowingly, or negligently. iii. The actual or potential injury caused by the lawyers misconduct; and iv. The existence of aggravating or mitigating factors.

II. III. IV.

V.

VI.

VII.

E. Sanctions include disbarment, suspension, reprimand, admonition, probation, restitution and or other sanctions deemed appropriate. Confidentiality: A. Sources of a lawyers confidentiality obligations: i. Law of evidence: attorney-client privilege ii. Civil procedure: work product immunity iii. Law of Agency: agents fiduciary duty to keep the principals secrets and not to injure the principal iv. Professional ethics rules B. If a client is being represented by a law firm, a lawyer MAY discuss confidential information relating to that client with other people (lawyers and nonlawyers) in the firm, and with others who are not employed by the firm but are assisting in the representation of the client. C. Sarbanes-Oxley requires lawyers to report securities fraud to management even when the lawyers services have not been used in the commission of the fraud. D. Similarly, even if the lawyer is prohibited by his or her state ethics rules from revealing information about a fraud (e.g. because the lawyers services were not used), the lawyer MAY report the fraud to the SEC under SOX because federal law preempts contrary state law. E. Unlike SOX, however, (b)(2) and (3) are not limited to public companies, securities fraud, or to lawyers practicing before the SEC. F. Attorney-Client Privilege vs. Ethics Rules i. Attorney-client privilege is a set of evidence rules that protect lawyers and clients from being compelled to testify about certain communications. ii. The MR duty to protect client confidences, on the other hand, is an ethical duty imposed on lawyers to protect certain information as confidential. The lawyer is not merely required to refuse to testify about client confidences, but is required to avoid disclosure of the information to anyone. iii. Privilege MAY be invoked when someone else seeks to compel disclosure of the information, while confidentiality is a central aspect of a lawyers duty to a client. iv. A-C privilege protects: 1. All communications, oral and written 2. Between a client and lawyer (including communication among clients lawyers/investigators, etc) 3. In confidence 4. In the course of seeking professional legal advice v. A-C privilege only protects the actual communication, not the underlying facts vi. A-C privilege belongs to the client, waived if the client (or the lawyer at the clients request) reveals the information to a nonprivileged person

vii. When the A-C privilege does not apply to cover otherwise protected communications: 1. Furtherance of crime or fraud services sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud 2. Claimants through same deceased client relevant to an issue between parties who claim through the same deceased client 3. Breach of duty by lawyer or client relevant to an issue of a breach of lawyer-client or client-lawyer duty 4. Document attested by lawyer relevant to issue concerning attested document to which lawyer attested 5. Joint clients relevant to matter of common interest between two jointly represented clients viii. Upjohn Co. v. US 1. Privilege extends to communications with any management or lower-echelon employee or agent so long as the communication relates to the subject matter of the representation. 2. Encourages employees who have engages in wrongdoing to be candid G. Work Product Immunity i. Ordinary work product: Work done in preparation for current or reasonably anticipated future litigation 1. Can be tangible or intangible equivalent (but doesnt include facts must be work) 2. Can extend to transaction materials where it is possible that someone MAY later challenge the transaction. 3. In order for protection to extend to materials prepared by third parties, they must be hired by the lawyer, not the client. 4. Subject to discovery only if substantial need is demonstrated and party is unable without undue hardship to obtain the substantial equivalent ii. Opinion work product: 1. legal opinions, theories, conclusions or mental impressions of a lawyer 2. Subject to discovery only under extraordinary circumstances iii. Limited to communications made in anticipation of litigation (as opposed to A-C privilege) iv. Includes materials prepared by persons other than the attorney and materials prepared by attorney for his own use (as opposed to A-C privilege) v. Different standard for disclosure than A-C privilege

VIII.

Representing a Client A. Although competent representation is required by MR 1.1, Comm 2 provides that an inexperienced lawyer can associate with an experienced lawyer and/or otherwise get up to speed in order to provide competent representation must have the time to do the necessary studying to gain the requisite knowledge in that area B. You can refuse to represent a client for any reason, subject to three restrictions: i. Court assigns you to represent an indigent criminal against your wishes ii. You should provide at least 50 hours of pro bono each year iii. You cant discriminate on the basis of any protected category C. A prospective client becomes your actual client when you consent or the client reasonably believes that the lawyer has agreed to represent him. i. This can occur once you give any kind of legal advice to a person, even in a casual setting. ii. Lawyer bears the risk of ambiguity clients reasonable belief D. Togstad v. Vesely, Otto, Millier & Keefe: attorney-client relationship is created when a person seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice. E. You owe prospective clients 3 main duties (Restatement): i. Protect confidential communications ii. Safeguard potential clients personal property iii. Any advice given must still be accurate and MAY include disclosure of relevant statute of limitations iv. MR 1.18 deals specifically with duties to prospective clients F. Because the client is the principal of the lawyer-agent the client is bound by the lawyers actions. Exceptions: i. Waiver of privilege ii. Settlement of a case G. NM SC in Neal said No lawyer should approach any task without knowledge of the applicable statutes, court rules, and case law, especially in matters with which one is not intimately familiar. H. Strickland v. Washington: D would have to prove BOTH that the lawyers assistance was unusually poor AND that there is a reasonable probability that better counsel would have made a difference in the result i. Counsels performance was not unreasonable because he made a strategic choice to rely on the Ds having accepted responsibility for his conduct ii. Probably wasnt competent under MR 1.1 I. 1.3 have to do work without undue delay, reasonably diligence i. Comment 1 clients interests take precedence over lawyers personal concerns, suggests that he must zealously represent client ii. Comment 2 have to control workload so that you can pay adequate attention to all matters

J. Have to see a matter through to the end unless you make it clear that youre no longer working on the matter i. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the clients affairs when the lawyer has ceased to do so (Comment 4) K. Candor and Communication: i. Difference between deception and lying can be deceptive by hedging, giving half truths, or omitting ii. Difference between truth an truthfulness truthful is giving the most truthful answer to your knowledge, might not be the truth iii. No direct rule that says that you cant lie to your client 1. Arguably falls under 8.4(c) It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation 2. Fraud, informed consent, fiduciary, and candor in advice rules also MAY provide some limits. iv. MR 3.3 says that you cant lie to the court, cant conceal, cant falsify v. MR 4.1 about lying to third parties L. Contractual Limitations i. A lawyer MAY limit the scope of the representation under MR 1.2 if the limitation is reasonable under the circumstances and the client gives informed consent. ii. A lawyer MAY not be able to limit certain duties, however, such as the duty of competent representation. iii. A lawyer MAY also not prospectively limit his or her malpractice liability under MR 1.8(h) unless the client is represented by separate counsel. M. Scope and Allocation of Representation of Representation between Lawyer and Client i. 1.2 says: 1. The client decides the objectives of representation 2. The lawyer must consult the client as to means used to pursue objectives 3. Client should decide whether to file a lawsuit, then the lawyer ca make some technical decisions (like whether to request a continuance on a hearing) without consulting the client 4. Doesnt provide more guidance because the proper balance of lawyer autonomy and client consultation depends very much on the context of the representation, its a matter of discretion, and because some clients hire lawyers in order to delegate much of the decision making ii. Lawyers cannot decide: 1. Whether to settle in civil cases

2. Whether to plead guilty in criminal cases 3. Whether to waive a jury trial in criminal cases 4. Whether the client will testify in criminal cases iii. If a client and lawyer disagree see comment 2, rules dont proscribe a way of settling the disagreement iv. Communication requirements in MR 1.4 v. Jones v. Barnes: Client wanted to bring up a ton of issues, and the lawyer told him what arguments were strongest arguments (fewer and only including some of clients suggestions) in order to get a strong appeal. Client is upset about this and sues. 1. The court said that the lawyer did the right thing, the client shouldnt be able to choose every single thing that they want argued on their behalf on appeal that is the lawyers job, and the judges dont want to hear all of those issues doesnt violate Constitutional rights 2. Not professionally irresponsible as long as the lawyer is actually doing their job correctly 3. Concurrence professionally irresponsible, but not violation of Constitutional rights 4. Dissent lawyer should do what the client wants effective assistance of counsel N. Terminating an attorney-client relationship i. A lawyer is required to terminate a representation MR 1.16(a): 1. the representation will result in violation of the rules of professional conduct or other law; a. Conflicts of interest; uncorrected client fraud 2. The lawyers physical or mental condition materially impairs the lawyers ability to represent the client; or 3. The lawyer is discharged (fired) a. Comment 4: a client can fire a lawyer for any reason at any time (with only obligation to pay for outstanding work) ii. When a lawyer MAY terminate a representation MR 1.16(b) 1. (1) withdrawal can be accomplished without material adverse effect on the interests of the client 2. (2) the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent 3. (3) the client has used the lawyers services to perpetrate a crime or fraud 4. (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement 5. (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given

IX.

reasonable warning that the lawyer will withdraw unless the obligation is fulfilled 6. (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or 7. (7) other good cause for withdrawal exists iii. If a lawyer is permitted to withdraw under 1.16(b) they have additional conditions to satisfy: 1. If a lawyer has made an appearance in court, must obtain courts permission 1.16(c) 2. A lawyer must withdraw in a way so as not to injure the case under 1.16(d) including: a. Giving reasonable notice to client, allowing time for employment of other counsel b. Surrendering papers and property to which the client is entitled (the lawyer MAY retain papers relating to the client to the extent permitted by other law for purposes of obtaining fees) c. Refunding any advance payment of fee or expense that has not been earned or incurred iv. Retaining lien CL holding clients files or work product hostage until fees are paid 1. MR 1.16(d), Comment 9: Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer MAY retain papers as security for a fee only to the extent permitted by law. Conflicts of Interest: A. 1.7 Current Clients B. Under 1.7 a lawyer MAY not represent a client if one of the conflicts in 1.7(a) exists, unless the conflict is consentable (i.e. satisfies (b)(1)-(3)) and the client gives informed consent. C. Directly Adverse On behalf of one client the lawyer acts directly against the interest of another client i. Lawyer represents Client A in one matter and sues Client A in a second matter on behalf of Client B ii. Lawyer acts adversely to a client in litigation (e.g. cross examination) iii. Lawyer undertakes adversarial negotiation against another client D. Comment 6 why these conflicts are so problematic to both clients E. Even when there is no direct adversity, what other responsibilities MAY materially limit the lawyers representation? i. Someone else paying the attorney bills ii. Someone else to whom the lawyer owes a duty iii. Lawyers own interests

F. Comment 8: Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. G. Questions going to ask about whether there is material limitation: i. How likely is it that a difference in interests will eventuate? ii. If there likely is such a divergence, would it materially interfere with the lawyers advice to or representation of a client? H. A good way to approach this problem is to ask if your loyalty to one might compromise your representation of the other, and then to ask whether you might receive confidences from one that could be used adversely to the other I. To get informed consent must give information: i. Must communicate to a client all the information needed to understand the possible adverse effects that might befall the client if she waive the conflict ii. Must orally explain to the client the risks, advantages, and possible alternatives to the lawyer going forward with the representation iii. Must be confirmed in writing client must sign a waiver OR oral waiver and within a reasonable time send the client a document memorializing the oral communication iv. Client must expressly indicate consent to the conflict J. When will a conflict be nonconsentable? i. Representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation. 1. Have to see what the underlying relationship is, and if it will affect things 2. Factors to consider are whether the conflicting representations are related or unrelated, joint representation is involved, if one of the clients is a former client, there is a really strong friendship or bond on one side, and whether the client is sophisticated ii. Representation is prohibited by law iii. Suing one client on behalf of another client 1. A lawyer MAY not represent opposing parties in the same litigation regardless of the clients consent Comment 23 K. Will a lawyer potentially have to divulge confidential information about the representation of the other client in order to gain informed consent? i. Has to ask permission from the person whose information is confidential to disclose ii. If he declines to allow disclosure then you have to decline the representation of the second client because you cant get informed consent because you cant inform them L. A clients consent is revocable:

i. A client always has the right to fire a lawyer and MAY also revoke their consent at any time. ii. If a client revoked consent, MAY the lawyer continue to represent the other client? 1. MAY need to withdraw from representing both, or MAY be able to continue to represent one of them 2. Depends on the nature of the conflict, what if any circumstances have changed, and what harm might result from continuing to represent one of the clients iii. During the informed consent process a lawyer MAY ask the client whether, if a conflict arises, the lawyer could continue to work with one of the clients, and is so, which one? 1. More than likely in this case that the lawyer MAY continue to represent one of them if a conflict arises M. What if a conflict between two clients is nonconsentable or one of the clients refuses to give consent? i. If the conflict is identified before the representation is undertaken, the representation must be declined (comment 3) ii. If the conflict arises after the representation has been undertaken, the lawyer must withdraw from the conflicting representation iii. If more than one current client is involved, ,whether the lawyer MAY continue to represent any of the clients is determined both by the lawyers ability to comply with the duties owed to the former client and by the lawyers ability to represent adequately the remaining client or clients, given the lawyers duties to the former client. It MAY be necessary for the lawyer to give up both clients (comment 4) N. If a party is sophisticated then it is highly likely that they can waive all possible future conflicts in advance i. MR 1.7 Comment 22: Advance waivers are fine if ether exists effective informed consent (in writing) and the conflict is a consentable conflict ii. Restatement 122: Advance waivers are permissible so long as they cover events that can be foreseen and client is sophisticated and has opportunity to consult independent counsel. iii. Conflict waivers, however, do not eliminate the lawyers duty of nondisclosure and confidentiality with respect to the clients information iv. The lawyer must also still obtain consent from the later client O. Co-Ps or Co-Ds i. 1.7 Comment 23: Simultaneous representation of parties whose interests in litigation MAY conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2) [i.e. material limitation] 1. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that

P.

Q.

R.

S.

T.

U.

ordinarily a lawyer should decline to represent more than one codefendant. 2. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met. Keeping confidences learned from one co-client from the other: i. Remember privilege rules do not apply vis a vis other co-clients ii. Confidentiality rules typically do not support keeping secrets from co-clients Comment 31 1.7: [C]ontinued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. A lawyer for a corporation can provide legal services to its individual employees as long as the interests are aligned i. But the lawyer doesnt have a duty to keep confidential disclosures made to him by employees of the corporation because the client is the corporation Culyer v. Sullivan: a trial court doesnt need to inquire into propriety of co-representation of criminal Ds is no objection is raised unless the TC knows or reasonably should know that a particular conflict exists i. Defense counsel has an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial ii. If the lawyer proceeds in the face of conflict and no one objects the resulting conviction can be overturned if the conflict actually significantly affected the representation (prejudice not needed) iii. If the D waives a conflict he is foreclosed from challenging a subsequent conviction on the basis of the conflict Wheat v. US: the court can disqualify a lawyer on the basis of an actual or potential conflict even if the D parties prefer to waive the conflict doesnt violate a Ds 6th amendment right to counsel of his choice i. The provision of waivers by all affected parties will not necessarily cure any problems, since the courts have an independent interest in assuring compliance with ethical standards and the appearance of fairness. Representing both spouses in Divorce

X.

i. If there is no disagreement about child custody or division of assets then perhaps there will only be technical adversity but future problems can always arise ii. Some states allow it in an uncontested divorce iii. Others forbid it, but permit a lawyer to assist both parties in preparing a settlement agreement so long as both agree and resulting settlement seems fair. iv. Others completely forbid it V. Representing Both Spouses in Estate Planning i. Under normal circumstances it is permissible (and quite common) W. Positional Conflicts: 1.7 comment 24 i. Ordinarily a lawyer MAY take inconsistent legal positions in different tribunals at different times on behalf of different clients. ii. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. iii. A conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case. 1. For example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. iv. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters. v. Factors to consider in determining whether a positional conflict is problematic and requires informed consent: 1. What stages the issues are at in litigation 2. Whether the issue is substantive or procedural 3. The temporal relationship between the matters 4. The significance of the issue to the immediate and longterm interests of the clients involved 5. The clients reasonable expectations in retaining a lawyer Duties to Prospective Clients: A. 1.18 provides that even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client SHALL not use or reveal information learned in the consultation (except as permitted in MR 1.9). B. Who is a prospective client? i. 1.18(a): A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. ii. Comment 2: Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who

communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a). C. If a prospective client has a potential conflict with a current client: i. 1.18(c) a lawyer (and any other lawyer in the lawyers firm) SHALL not represent a client with interests materially adverse to those of a prospective client IF: 1. Its in the same or substantially related matter and 2. The lawyer received information from the prospective client that could be significantly harmful, unless 3. Both affected and prospective client give informed consent or 4. (i) Disqualified lawyer took reasonable measures to avoid exposure to unnecessary disqualifying information; (ii) the disqualified lawyer is timely screened and (iii) written notice is promptly given to the prospective client. XI. Duties to Former Clients A. Conflict between current client and former client: i. Impact on the current client must be evaluated under 1.7(a)(2) reasonably believe that you can provide good representation ii. Prior client is analyzed under 1.9 Situation Possible Interests Can this Conflict Be Applicable MRs Harmed Waived? Lawyer knows (or - Breach of Yes, by informed 1.9 might have access commitment to keep consent of former to) info from former confidences of client client that can be former client used adversely against former client New client wants to - Possible adverse Yes, by informed 1.9 sue lawyers former use of confidences consent of present 1.7 client of former client and former client if - Lawyers ca provide diligent advocacy for new representation as client might be required by 1.7(b) compromised B. MR 1.9(a): Former Clients Rule (a) A lawyer who has formerly represented a client In a matter SHALL not thereafter represent another person in the same or a substantially related matter

Questions - Is a party in the conflict at issue a former client? - Is the situation at issue the same matter as the one on which you represented the former client? - Is the matter substantially related?

In which that persons interests are materially adverse to the interests of the former client Unless the former client gives informed consent, confirmed in writing

- What is a matter? - Are the present clients interests materially adverse to the former client? - If same or substantially related and materially adverse, has the lawyer sough and obtained informed consent from the former client? - Has the lawyer confirmed the clients informed consent in writing?

XII.

C. Matter i. Substantially related: 1. Same facts 2. Same parties 3. Same legal issues 4. See MR 1.9, Comment 3 D. Regardless of the level of adversity, MR 1.9(a) conflicts are always consentable E. When you move firms you are in MR 1.9(b) territory i. A lawyer SHALL not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client 1. (1) whose interests are materially adverse to that person, and 2. (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter 3. unless the former client gives informed consent, confirmed in writing ii. The lawyers/firm trying to overcome the presumption of conflict have the burden of proof for determining whether a lawyer who has changed firms acquired confidential information. Ways to do that: 1. Affidavit saying that you havent 2. Once someone has sought your disqualifications you have to prove that you dont know anything a. That is harder than checking beforehand and signing an affidavit that you dont have conflicts F. Former Client Confidences: MR 1.9(c) i. General ban on telling former client confidences ii. 1.9(c) governs iii. This duty is only waived if the information has become generally known, otherwise you just keep it to yourself Imputed Disqualifications:

XIII.

A. 1.10(a) Imputation of Conflicts of Interest: While lawyers are associated in a firm, none of them SHALL knowingly represent a client when any one of them practicing alone would be prohibited form doing so by Rules 1.7 or 1.9 unless i. (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; OR ii. (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyers association with a prior firm, and proper screening is implemented B. 1.10(c) a disqualification prescribed by this rule MAY be waived by the affected client under the conditions states in 1.7 C. Comm 1: the term firm denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. D. Concern is about both the adequacy of physical separation and whether there is a shared financial interest. E. Comment 4: The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did as a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. F. 1.0(k) "SCREENING" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. Conflicts of Interest, Misc. A. Fee agreement: i. Contingent fee MUST be in writing MR 1.5(c) ii. All other fees writing preferable 1.5(b) B. Hourly fee arrangement is by far the most popular C. You dont have to discuss fee arrangements before helping the client, as long as the reason that you are working before arrangement is because it is necessary still has to be done in a reasonable time from start of work D. Charges have to be reasonable 1.5(a) E. Things you cant charge for: overhead see 1.5 comment 1 F. Brobeck, Phleger & Harrison v. Telex Corporation

i. Telex hires Brobeck to represent them against IBM. They agreed to a contingent fee with a maximum and a possible minimum (depending on who you were asking). Brobeck filed for certiorari with the SC and filed a memo with them to. Before the certiorari was decided Telex and IBM settled for a wash no one owed anyone anything. Brobeck say that they deserve $1mil, and Telex wont pay (argues unconscionable) ii. The court concludes that the $1mil minimum fee for filing a petition for certiorari was neither excessive nor unconscionable. 1. They couldnt hire any lawyer for this they needed the best lawyer out there when they were going to the Supreme Court against the strong team at IBM 2. Also both parties were sophisticated parties iii. Its not just about weighing the fee paid with the amount of work done 1. You have to take other things into account 2. Reputation, ability, etc. G. In the Matter of Fordham: pg 496 i. Timothy faced OUI charges and the father is doing a job for Fordham and decides to hire him even though he knows that he has no experience with these type of cases (had already talked to other lawyers that would charge $3k-$10k flat fee) ii. Fordham tells him that he has no experience with this type of case, but that he is a great lawyer with a lot of experience iii. Billing $200/hr, and he and his other lawyers worked 227 hours on the case which equaled over $50k in charges iv. Won the case on a novel argument, was very diligent v. Charges were excessive - Expert witnesses (lawyers) came in and said that for a case like this the normal amount of hours would be a mere fraction of how many hours were actually done vi. Public reprimand vii. Court says that it wont work to just say that you told the client and billed correctly thats not going to get you immunity 1. You still have a duty to ask yourself if the bill is reasonable H. Things you cant do in billing: i. Cant charge for overhead or markup costs on services ii. Cant double bill or bill for recycled work I. A lawyer can consider the clients ability to pay in setting a reasonable fee i. 1.5 Comment 5 ii. 6.1 (pro bono) - encouraging delivery of legal services at no fee or substantially reduced fee to those unable to pay full fees iii. There can be reasons why you charge more for a wealthy client because they are more demanding for example, but cant gouge iv. You can charge less if the person is on limited income though no problem

J. Contingent fees are PROHIBITED in: (1.5(d)) i. Criminal cases ii. Divorce alimony/property settlement K. No specific percentage cap on contingent fees i. Up to 50% has been considered reasonable depending on the situation XIV. Handling Client Property A. If you get a retainer you need to set that money aside and then draw from it as the expenses accrue you cant just take it and put it in your account and then keep good records B. Minimum accounts that you need as a lawyer is two one for your business and one for clients money C. MR 1.15 D. You need to keep really good records, and keep them for at least 5 years E. A lawyer can only put their own money in an account with the clients money to pay for bank fees, and stuff like that F. If the clients interests and the lawyers interests conflict the clients interests should come first G. The law doesnt prohibit lawyers from transacting any business with their clients, but there are a lot of rules you have to look at to make sure that it is kosher i. 1.8(a) H. The rules are concerned because: i. Lawyers legal advice and judgment MAY be affected by greed ii. Client MAY assume the lawyer is more objective about the transaction than he/she really is (abusing their position of trust) iii. Lawyer MAY be improperly using confidential information of the client I. Good rules of thumb to follow: i. Dont borrow money from or lend money to you clients unless carefully follow MR 1.8 ii. Dont sell anything to your clients iii. Dont ask clients to invest in your business J. 1.8(a) does not apply as long as it is a standard commercial transaction K. Lawyers can accept gifts from clients as long as they are not excessive, and you are not drawing up the documents for the gift (cant draft a will where you are getting an interest) 1.8(c) i. Does not bar lawyers from receiving unsolicited gifts from clients XV. Personal Interests A. Sexual Relationships i. 1.8(j) - dont have sex with a client unless you were before they became your client ii. This cant be consented away 1. Comment 17 iii. If the sexual relationship already existed: 1. Potentially ok under 1.8(j) BUT still subject to 1.7(a)(2)

iv. Things like non-sexual relationships or relationships with a clients spouse arent covered by 1.8 but they fall under 1.7(a)(2) B. Family Members Representing Adverse Interests: i. 1.7 Comment 11: ii. There MAY be a significant risk that client confidences will be revealed and that the lawyers family relationship will interfere with both loyalty and independent professional judgment iii. Each client is entitled to know of the existence and implications of the relationship between lawyers that are closely related by blood or marriage before the lawyer agrees to undertake the representation and each client must give informed consent XVI. Candor Toward the Tribunal: A. See 3.3 XVII. Catchall Misconduct Provision A. See 8.4(c): It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation B. Nix v. Whiteside: pg 609 i. D wants to lie and say that he saw a gun and so it was self defense ii. Lawyer tells him that he cant and that he doesnt have to all that he needed was a reasonable belief that his life was in danger. Lawyer says that if he lies that he would tell the court) iii. SCOTUS overrules the 6th circuit (who said that you cant blackmail your client into telling the truth on the stand) iv. The Court held that whatever the scope of the Constitutional right to testify, it is elementary that such a right does not extend to testifying falsely v. You dont have a right to lie to defend yourself vi. MR 1.0 allows for an inference of knowledge C. Lying and Misleading i. False statements are not allowed (ethical rules and perjury) ii. If a lawyer knowingly puts on perjured testimony they might be disbarred or even convicted for the crime of subornation of perjury. iii. Partial truths fall into a gray area iv. Some jurisdictions (such as DC) allow a criminal D to give testimony in the narrative, such that the lawyer is not eliciting false testimony, but the D gets to testify 1. The lawyer MAY not reference the believed to be false testimony in closing arguments or otherwise v. While this MAY be a signal to the judge and the opposing lawyer it MAY not be to the jury XVIII. Fairness to Opposing Party and Counsel A. 3.4 B. Coaching witnesses is also covered under 3.4(b) and Restatement: i. Witness preparation MAY include rehearsal of testimony. A lawyer MAY suggest choice of words that might be employed to

make the witnesss meaning clear. However, a lawyer MAY not assist the witness to testify falsely as to a material fact. XIX. Negotiation A. 4.1(a) In the course of representing a client a lawyer SHALL not knowingly make a false statement of material fact or law to a third person B. Comment 2 statements of fact, whether a particular statement should be regarded as one of fact can depend on the circumstances C. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a partys intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. XX. Communications with Third Persons A. MR 3.3(a) prohibits a lawyer from knowingly making any false statement of law or fact, but only applies in proceedings before tribunals. B. MR 4.1(a) applies (no material misstatement of law or fact) whenever a lawyer is representing a client, whether the lawyer is talking to opposing counsel or to a potential witness. C. MR 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. D. Apple Corps said as to identity or purpose for the purpose of gathering evidence its okay E. Gatti disagrees cant misrep identity or purpose F. 8.4(a) says that if a lawyer MAY not violate the rules, nor MAY a lawyer violate the rues through the act of another person G. Inadvertent Communications i. MR 4.4(b): A lawyer who receives a document relating to the representation of the lawyers client and knows or reasonably should know that the document was inadvertently sent SHALL promptly notify the sender. ii. Comments 2 and 3: Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these RulesSome lawyers MAY choose to return a document unread Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. H. Contact with Represented and Unrepresented Persons i. Represented Person 1. 4.2 : In representing a client, a lawyer SHALL not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of

the other lawyer or is authorized to do so by law or a court order. 2. Comment 8 only applies where the lawyer has actual knowledge of the representation, but such knowledge can be inferred from the circumstances 3. 4.2 applies whether the lawyer or represented person initiates the conversation ii. Unrepresented Person 1. 4.3: A lawyer SHALL not state or imply that the lawyer is disinterested. a. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer SHALL make reasonable efforts to correct the misunderstanding. b. The lawyer SHALL not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. 2. Comment 4: Parties to a matter MAY communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. 3. However, if a lawyer cannot do something ethically, then the lawyer cannot assist or induce his client to do so either. MR 8.4(a). 4. If the opposing party contacts you directly 4.2 you have to tell them you cant discuss it and to have their lawyer contact you

Rules to Print Out: 8.1 Bar Admission and Disciplinary Matters o An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, SHALL not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. o Pleading the Fifth in response to a question will usually result in inquiry and continued asking until they probably deny you not a good option 8.4 Maintaining the Integrity of the Profession (what can justify professional discipline) o It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (CATCH ALL) (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. 8.3: Reporting Professional Misconduct o (a) A 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, trustworthiness or fitness as a lawyer in other respects, SHALL inform the appropriate professional authority. Objective standard would a reasonable person have known that this had happened? o (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office SHALL inform the appropriate authority. o (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. 5.1: Responsibilities of Partners, Managers and Supervisory Lawyers

o (a) Lawyers with managerial authority within a firm must make and establish internal compliance policies and procedures. o (b) A lawyer having direct supervisory authority over another lawyer must make reasonable efforts to ensure that the other lawyer conforms to the Rules. o (c) Lawyers are responsible for a subordinates violation if they order or ratify the conduct or have direct supervisory authority and know of the conduct but fail to take remedial action. 5.2: Responsibilities of a Subordinate Lawyer o (a) A lawyer is bound by the Rules notwithstanding that the lawyer acted at the direction of another person. o (b) A subordinate lawyer does not violate the Rules that lawyer acts in accordance with a supervisory lawyers reasonable resolution of an arguable question of professional duty. 1.1: Competence o A lawyer SHALL provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. o Comment 5: Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake o Comment 2: provides that an inexperienced lawyer can associate with an experienced lawyer and/or otherwise get up to speed in order to provide competent representation. 1.6: Confidentiality of Information o (a) A lawyer SHALL not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). o (b) A lawyer MAY reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (plans to commit) (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (committed in the past) For 2 & 3: There must be a reasonable certainty that the clients conduct will result in substantial financial or property injury

The client is/has used the lawyers services in committing the act The purpose of revealing is to prevent the crime or fraud or to prevent, mitigate or rectify harm resulting therefrom (examples pg 194) (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (6) to comply with other law or a court order. o Even if one of these exceptions apply, you can only reveal what is necessary to comply with the exception o Comment 3: The confidentiality ruleapplies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. o Comment 4: Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. o Comment 18/MR 1.9(c) confidentiality obligations endure even after representation ends o Comment 6: (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Reasonably certain to occur: If it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. 1.2(d): A lawyer SHALL not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. o Comment 10: The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer MAY not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. o Omissions and half truths can constitute fraud if they are intended to deceive

o A lawyer MAY contractually limit the scope of the representation under 1.2 if the limitation is reasonable under the circumstances and the client gives informed consent o Comment 2: On occasion, however, a lawyer and a client MAY disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question MAY implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, MAY be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer MAY withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client MAY resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3). 4.1(b) o In the course of representing a client a lawyer SHALL not knowingly 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 MR 1.6. o Comment 3: explains that if a lawyer can avoid assisting a clients crime or fraud under substantive law only by disclosing the information, then under 4.1(b) the lawyer is required to do so. o Note: the ethics rules do not give lawyers protection from civil or criminal liability if they fail to reveal the client fraud (only professional). 1.8(a): o (a) A lawyer SHALL not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

o Comment 1: 1.8(a) does not apply as long as it is a standard commercial transaction 1.8(b): o A lawyer SHALL not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. o A lawyer MAY use information relating to the representation of a client without his/her consent, so long as it is not to the disadvantage of the client. o Comment 5: Paragraph (b) applies when the information is used to benefit either the lawyer or a third person, such as another client or business associate of the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer MAY not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. The Rule does not prohibit uses that do not disadvantage the client o However, if the client is truly not being disadvantaged, it is best for the lawyer to obtain the clients consent because the burden of proving absence of disadvantage will fall on the lawyer. 1.8(c): o A lawyer SHALL not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship. 1.8(h): o (h) A lawyer SHALL not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. 1.8(j): Sexual Relationship o A lawyer SHALL not have sexual relations with a client unless a consensual sexual relationship existed between them when the clientlawyer relationship commenced. o Comment 17: Because of the significant danger of harm to client interests and because the client's own emotional involvement renders it unlikely that the client could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether

the relationship is consensual and regardless of the absence of prejudice to the client. 1.13: o (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer SHALL proceed as is reasonably necessary in the best interest of the organization. o Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer SHALL refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. o 1.13(a) Comment 1 in the corporate setting the lawyers client is the corporation o Comment 4: In determining how to proceed under paragraph (b), the lawyer should give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Ordinarily, referral to a higher authority would be necessary. o (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer MAY reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. 1.18: Duties to Prospective Clients o (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. o (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client SHALL not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. o (c) A lawyer subject to paragraph (b) SHALL not represent a client with interests materially adverse to those of a prospective client IF: Its in the same or substantially related matter AND

The lawyer received information from the prospective client that could be significantly harmful, unless Both affected and prospective client give informed consent OR (i) Disqualified lawyer took reasonable measures to avoid exposure to unnecessary disqualifying information, (ii) the disqualified lawyer is timely screened AND (iii) written notice is promptly given to the prospective client o (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. o Comment 2: Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of paragraph (a). 1.3: o A lawyer SHALL act with reasonable diligence and promptness in representing a client. o This duty is violated if the lawyer fails to return phone calls or file court papers on time or otherwise procrastinates. The opposite of diligence is neglect! It is the basis for many disciplinary complaints. o Comment 1: A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or person inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor A lawyer is not bound, however, to press for every advantage that might be realized for a client. o Comment 2 requires a lawyer to control his or her workload such that the lawyer is able to pay adequate attention to all of his or her matters o Comment 4 Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the clients affairs when the lawyer has ceased to do so 3.3: Candor Toward the Tribunal you cant life to the court, cant conceal, cant falsify o (a) 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 to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyers client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer SHALL take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer MAY refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. o (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding SHALL take reasonable remedial measures, including, if necessary, disclosure to the tribunal. o (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. o (d) In an ex parte proceeding, a lawyer SHALL inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. 4.1: Truthfulness in Statements to Others o In the course of representing a client a lawyer SHALL not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. 2.1: Advisor. o In representing a client, a lawyer SHALL exercise independent professional judgment and render candid advice. In rendering advice, a lawyer MAY refer not only to law but to other considerations such as moral, economic, social and political factors, that MAY be relevant to the clients situation o Comment 1: A client is entitled to straightforward advice expressing the lawyers honest assessment. Legal advice often involves unpleasant facts and alternatives that a client MAY be disinclined to confront, In presenting advice, a lawyer endeavors to sustain the clients morale and MAY put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. 1.4: o (a) A lawyer SHALL:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. o (b) A lawyer SHALL explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 1.16(a): Declining or Terminating Representation o (a) a lawyer SHALL withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; Conflicts of interest; uncorrected client fraud (2) the lawyers physical or mental condition materially impairs the lawyers ability to represent the client; or (3) the lawyer is discharged. Comment 4 - A client can fire lawyer for any reason at any time (with only obligation to pay for outstanding work). o (b) Except as stated in paragraph (c), a lawyer MAY withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client (2) the client persists in a course of action involving the lawyers services that the lawyer reasonably believes is criminal or fraudulent the client has used the lawyers services to perpetrate a crime or fraud (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists

o (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer SHALL continue representation notwithstanding good cause for terminating the representation. o (d) Upon termination of representation, a lawyer SHALL take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer MAY retain papers relating to the client to the extent permitted by other law. Comment 9: Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer MAY retain papers as security for a fee only to the extent permitted by law. 1.7 Conflict Of Interest: Current Clients o (a) Except as provided in paragraph (b), a lawyer SHALL not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. o (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer MAY represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; AND (4) each affected client gives informed consent, confirmed in writing. o Comment 6: The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken reasonably MAY fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., that the representation MAY be materially limited by the lawyer's interest in retaining the current client. o Comment 8: Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to

consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. Comment 23: Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation MAY conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2) [i.e. material limitation]. What kinds of conflicts could exist?. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met. Comment 31: [C]ontinued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. Comment 24: Ordinarily a lawyer MAY take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case. For example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters. Comment 11: When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or

marriage, there MAY be a significant risk that client confidences will be revealed and that the lawyer's family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily MAY not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10. 1.10: Imputation of Conflicts of Interest: General Rule o (a) While lawyers are associated in a firm, none of them SHALL knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 unless (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm, OR (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualifies lawyers association with a prior firm, and [proper screening is implemented] A 1.9 conflict will not be imputed (and no client informed consent under 1.7 is required) if: (i) ) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule; and (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures. o (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. o (c) A disqualification prescribed by this rule MAY be waived by the affected client under the conditions stated in Rule 1.7.

o Comment 1: the term firm denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. o Comment 2: These rules should be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. o Comment 4: The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did as a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. 1.9: Duties to Former Clients o (a) A lawyer who has formerly represented a client in a matter SHALL not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. o (b) A lawyer SHALL not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. o (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter SHALL not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. o Comment 3: Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally

have been obtained in the prior representation would materially advance the client's position in the subsequent matter. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation MAY have been rendered obsolete by the passage of time, a circumstance that MAY be relevant in determining whether two representations are substantially related. 1.0(k) o "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. 1.5: Fees o A lawyer SHALL not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1)the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. o Comment 1: A lawyer MAY seek reimbursement for the cost of services performed in house, such as copying, or for other expenses incurred in house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer 6.1: Pro Bono o Encouraging delivery of legal services at no fee or substantially reduced fee to those unable to pay full fees 1.15: Safekeeping Clients Property o (a) A lawyer SHALL hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyers own property. Funds SHALL be kept in a separate account maintained in the state where the lawyers office is situated, or elsewhere

with the consent of the client or third person. Other property SHALL be identified as such and appropriately safeguarded. Complete records of such account funds and other property SHALL be kept by the lawyer and SHALL be preserved for a period of [five years] after termination of the representation. o (b) A lawyer MAY deposit the lawyers own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose. o (c) A lawyer SHALL deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. 3.4: Fairness to Opposing Party and Counsel o A lawyer SHALL not (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer SHALL not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or 4.1(a) Negotiation I. In the course of representing a client a lawyer SHALL not knowingly make a false statement of material fact or law to a third person J. Comment 2 statements of fact, whether a particular statement should be regarded as one of fact can depend on the circumstances o Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a partys intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. 4.4(b) Inadvertent Communications o A lawyer who receives a document relating to the representation of the lawyers client and knows or reasonably should know that the document was inadvertently sent SHALL promptly notify the sender. o Comments 2 and 3: Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these RulesSome lawyers MAY choose to return a document unread Where a lawyer is not required by applicable law to

do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. 4.2: Contact with Represented Persons o In representing a client, a lawyer SHALL not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. o Comment 8: only applies where the lawyer knows actual knowledge required, but such knowledge can be inferred from the circumstances o Comment 4: Parties to a matter MAY communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make (but the lawyer cant induce his client to do so) 4.3: Contact with Unrepresented Persons o In dealing on behalf of a client with a person who is not represented by counsel A lawyer SHALL not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer SHALL make reasonable efforts to correct the misunderstanding. The lawyer SHALL not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. o