Professional Responsibility

I. How does the bar regulate attorneys?

a. Who regulates?
i. States regulate all aspects of the practice of law
1. Every state has its own bar
2. Every state has its own criteria for admission to the bar
3. Every state has its own disciplinary system for lawyers
4. No national regulation or licensing
ii. Attorneys have an ethical obligation to aid in regulating lawyers
1. Lawyers are required to report serious ethical violations of other
lawyers and judges
2. Serious only
a. Must raise substantial questions about other lawyers
honesty, trustworthiness, or fitness
b. Who may practice law in a state?
i. A state may restrict the practice of law to those who are members of the
bar of that state
1. Exception pro hac vice
a. A lawyer may appear in court in a state in which he is not
admitted, with permission of the court
b. Discretionary with the court
c. No client has the right to insist that a lawyer be granted that
status
d. Usually requires the lawyer to associate with local counsel
2. What are the permissible standards for admission to a states bar?
a. General Rule: Criteria must have a rational relationship to
the fitness to practice law
b. Educational and testing qualifications are allowed
i. States can require whatever educational background
it wants
ii. Can impose whatever testing requirements it wants
iii. Constitutional challenges to this have always failed
c. Citizenship qualifications not allowed
i. States cannot limit admission to U.S. citizens
ii. States cannot deny citizens of other states admission
to the state bar
d. May limit admission to those with good moral character
i. Acts of moral turpitude shows a person lacks the
moral character to be a lawyer
e. A person cannot be denied admission based on political
beliefs
i. Exceptions
1. Can refuse for refusal to swear allegiance to
the constitution and laws of the U.S.
2. May be denied admission for actively affiliating
with an organization, knowing of its illegal
objectives, and with the specific intent to
further those objectives
f. A state may deny admission for making false statements, for
concealing information, or for failing to answer legitimate bar
questions
c. The bar has the duty to prevent the unauthorized practice of law (Rule 5.5)
i. What is the unauthorized practice of law?
1. Only an attorney can appear in court
a. Exceptions
i. Students may appear in court under state student
practice laws
ii. Pro se representation
1. A person may represent himself in a civil or
criminal matter
2. A corporation must always be represented by a
lawyer in court
2. Only a lawyer can draft legal documents
a. Exceptions
i. Pro se drafting of documents
ii. A lawyer may draft a form, where non lawyers fill in
the blanks
3. Only a lawyer can give legal advice
a. Apply with common sense
i. If theyre getting paid, likely the unauthorized practice
of law
b. Advice traditionally given by lawyers that is given by
someone who is not a lawyer is the unauthorized
practice of law
ii. What are the responsibilities of an attorney in preventing the unauthorized
practice of law
1. An attorney cannot aid a non lawyer in activities that constitute the
unauthorized practice of law
a. Distinction
i. A lawyer can help a non lawyer represent himself
ii. But a lawyer cannot help a non lawyer represent
someone else
2. Attorneys cannot practice in jurisdictions where they are not
admitted
a. Exceptions
i. Pro hac vice
ii. A lawyer may engage in practice in a jurisdiction
where he is not admitted, if it arises out of practice in
a jurisdiction where he is admitted
3. Attorneys cannot share legal fees with non lawyers
a. Exceptions
i. Lawyers can pay non lawyer employees
ii. Lawyers can make payments to the estates of
deceased lawyers
iii. Lawyers can share court awarded attorney fees with a
nonprofit that employed or recommended the attorney
4. An attorney cannot enter into a partnership with non lawyers if any
of the partnerships business is the practice of law
d. How can the bar ensure compliance with its rules
i. Attorney conduct which can give rise to discipline
1. Violation of a rule of professional responsibility
2. A criminal act reflecting adversely on a lawyers honesty or
trustworthiness
a. Not every criminal act
b. Only those calling into question honesty or trustworthiness
3. Conduct reflecting dishonesty, fraud, or deceit
a. Doesnt have to be illegal
b. Doesnt have to be in the conduct of the practice of law
4. Conduct prejudicial to the administration of justice
a. Example
i. Stating or implying an ability to improperly influence a
tribunal
5. Assisting a judge in a violation of the judicial code
ii. Duty to make reasonable efforts to supervise subordinates (lawyers and
non lawyers) and make sure subordinate lawyers and non lawyers comply
with codes of professional responsibility
1. A lawyer in a supervisory position must do everything reasonable
that those supervised comply with the laws of professional
responsibility
iii. Duty to make independent judgments
1. Cannot be excused for following orders
a. Exception
i. A lawyer may follow instructions from a superior on
debatable ethics questions, so long as the conduct is
reasonable
iv. Responsibility for ethical violations of another attorney or non-
lawyer subordinate
1. When can a lawyer be disciplined for ethical violations of a
subordinate?
a. If the lawyer orders or ratifies the conduct
b. If the lawyer knows of the unethical conduct and does
not act

II. How is the formation and ending of the attorney-client relationship regulated
a. What is the attorneys duty to accept representation?
i. General Rule: there is no duty to accept representation
1. Free to pick and choose their clients
ii. Exception: Duty to accept if court appointed
1. Exceptions where it is permissible to say no
a. If representing the client will likely result in violation of a law
or disciplinary rule
b. If representation would impose an unreasonable financial
burden
c. If the cause is so repugnant, it will interfere with your
effective representation
b. What is the attorneys duty to reject representation?
i. Must reject representation which will result in violation of the law or a
disciplinary rule
ii. Must reject representation which will require filing a frivolous claim or
defense
1. A lawyer is allowed to take a case even though the law is against
the clients position, so long as the lawyer reasonably believes that
a good faith effort can be made that would change the law
iii. Must reject if the attorney is not competent to handle the matter
1. Exception
a. If through adequate study, the lawyer can become
competent
b. A lawyer can handle a case dealing with aspects in which
they are competent, and retaining co-counsel for those
aspects they are not competent in
c. Emergency situations: An attorney can handle a case until
someone more competent can take over
c. When must, or may an attorney withdraw from representation?
i. Note: once a matter is in litigation, withdrawal requires court permission
1. Even if it is a situation where the rules say the lawyer must
withdraw, they must approach the court
2. Court will balance the justifications for withdrawal, against the
hardship for the parties in allowing the withdrawal
3. Easier in the beginning of litigation, harder nearer the end
ii. Circumstances where the attorney MUST withdraw
1. It becomes obvious that the clients primary purpose is to harass
2. When representation requires violation of a law or disciplinary rule
3. When a lawyers mental or physical health makes it unreasonably
difficult to provide effective representation
4. When the client fires the lawyer
a. If in litigation, the lawyer must still get the courts consent to
withdraw
iii. Circumstances when the lawyer MAY withdraw
1. When the client pursues a course of action that the lawyer believes
is criminal or fraudulent
2. Where the client has used the attorneys services to perpetrate a
crime or fraud
3. If the client insists on pursuing an objective that the lawyer regards
as repugnant or imprudent
4. If the client disregards an agreement concerning fees or expenses,
and the attorney has given reasonable warning
5. If representation will result in an unreasonable financial burden on
the lawyer, or is rendered particularly difficult by the client
6. If the client freely assents to withdrawal
iv. Requirements when an attorney withdraws
1. The attorney must give timely notice, and the opportunity for the
client to get another lawyer
2. The attorney must return all funds not used or expended
3. The attorney must return all of the clients documents that are
necessary for future representation

III. What are the attorneys duties to the client
a. Duty to avoid conflicts of interest
i. General rules
1. An attorney may not represent a client if the representation of the
client may be materially limited by the lawyers responsibilities to
another client, or to a third person, or by the lawyers own interests
a. Exception (both must be met)
i. The lawyer reasonably believes that the
representation will not be adversely affected, and
ii. The client consents
1. Consent must be informed consent
a. Requires the lawyer to explain the
conflict of interest, outlining alternatives
2. Consent must be in writing
2. Imputed disqualification: If one attorney in an office is disqualified,
all attorneys in the office are disqualified (Rule 1.10)
a. Exceptions
i. Disqualification because of the attorneys own
personal interests, and representation would not
interfere with representation by other lawyers in the
firm, or
ii. Screening
1. A law office can avoid disqualification by
building a fictional wall around the lawyer
2. Requires
a. Disqualified lawyer is screened from
participation and apportioned no part of
the fee, and
b. Former client and opposing parties are
notified, and
c. Certification of compliance is provided
ii. Conflicts among current clients (Rule 1.7)
1. A lawyer may not sue a current client, even in an unrelated manner
2. A lawyer may represent multiple parties in a lawsuit, so long as the
lawyer can represent all effectively, and so long as all consent in
writing
3. An attorney representing multiple parties shall not participate in an
aggregate settlement or guilty plea, unless each client consents in
writing after being informed of all of the agreements
a. Avoids making agreements that may be disadvantageous to
individual clients
4. A lawyer may act as a neutral third party between adversaries
a. The lawyer must clearly explain his role
b. Must not be representing any one of the individuals
c. Must believe it is possible to represent them effectively as a
neutral, relative to the interests of all
iii. Conflicts between an attorneys interests and a clients interests (Rule 1.8)
1. An attorney shall not solicit a substantial gift from a client, or
prepare an instrument giving the lawyer, or person related to the
lawyer, a substantial gift from the client, except where the client is
related to the lawyer
a. Mostly applies to drafting wills and lawyers as beneficiaries
2. A lawyer shall not give financial assistance to a client, in connection
with contemplated or pending litigation
a. Imposed strictly, even for food, rent, etc.
b. A lawyer however, may pay court costs and litigation
expenses for an indigent client, or advance them to a client
being represented on a contingency basis
3. Business deals between lawyers and clients
a. Always suspect when a lawyer is the attorney, and a party to
a transaction, but it is ok if the following are met:
i. The terms of the transaction must be fair and
reasonable, and
ii. The terms must be disclosed in writing in a manner
the client can reasonably understand, and
iii. The client is advised in writing to seek the opinion of
another lawyer, and given the opportunity to do so,
and
iv. The client consents in writing
4. Prior to completion of representation, an attorney shall not
acquire literary or media rights to the clients story
a. Concerned about representation being altered in an attempt
to make the story more sensational
5. A lawyer shall not acquire proprietary interests in the cause of
action or the subject of litigation
a. Exceptions
i. Lien to secure the lawyers fees or exceptions
ii. A reasonable contingency fee
6. A lawyer shall not act as an advocate at a trial where the lawyer is
likely to be a witness
a. Exceptions
i. If the testimony relates to an uncontested issue
ii. If the testimony relates solely to the nature and value
of the legal services rendered
iii. Where disqualification of the lawyer would mean
substantial hardship to the client
7. A lawyer shall not have a sexual relationship with a client, unless a
consensual sexual relationship existed when the lawyer-client
relationship commenced
iv. Organizations and representation (Rule 1.13)
1. In representing an entity, the client is the entity, and not the
directors, officers, or shareholders
2. If an attorneys representation of a client is paid for by someone
other than the client, the client must consent, and the
representation must not be interfered with
a. Here, consent need not be in writing
3. In dealing with an organizations directors, officers, or employees,
an attorney shall explain the identity of the client when the lawyer
knows or should know that the organizations interests may conflict
with the individuals interests
a. Exception: An attorney can represent both if all consent
i. Consent for the entity must be from someone other
than the directors, officers, or employees the attorney
is also representing
4. If an attorney for an organization believes that someone within the
entity is violating the law, the attorney must act as is reasonably
necessary to protect the entity
a. Can ask for reconsideration of the matter
b. Can refer the matter to higher authority within the
organization
c. If the highest authority fails to take appropriate action, an
attorney may report the information to appropriate persons
outside the organization to prevent harm to the organization
v. Conflicts with past clients (Rule 1.9)
1. A lawyer who has formerly represented a client in a matter shall not
thereafter 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, confirmed in writing
2. A lawyer shall not knowingly represent a person in the same or a
substantially related mater in which a firm with which the lawyer
was formerly associated had previously represented a client:
a. Whose interests are materially adverse to that person; and
b. About whom the lawyer acquired confidential information
that is material to the matter;
c. Unless the client gives informed consent, confirmed in
writing
3. 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 use information to the disadvantage of
the former client or reveal information relating to the representation
except as allowed by the rules
a. The duty of confidentiality is permanent
b. Duty of Competence (Rule 1.1)
i. An attorney has a duty to provide competent representation to a client
1. Failure to provide competent representation could result in
malpractice, as well as disciple by the bar
2. Competence includes reasonable diligence in representation, (Rule
1.3) and promptness in communication (Rule 1.4)
ii. An attorney is subject to discipline for attempting to contractually
limit malpractice liability
1. Exception
a. Permissible to enter into such a contract so long as the
client is represented by another lawyer in doing so
iii. An attorney cannot settle malpractice claims without advising the client in
writing to see another attorney
c. The duty to follow the clients instructions (Rule 1.2)
i. General Rule: the client controls the ENDS (objectives), the attorney
controls the MEANS (techniques)
ii. The client controls the following (lawyer MUST follow clients instructions)
1. Whether to sue in civil cases
2. Whether to accept a settlement in civil cases or whether to plead
guilty in criminal cases
3. Whether to waive a jury trial in criminal cases
4. Whether to testify in criminal cases
5. Whether to appeal
iii. Duty to keep client reasonably informed
1. The attorney is required to explain matters to the client in a matter
that will allow the client to make informed decisions
iv. An attorney may limit the objectives of representation if it is reasonable
under the circumstances and the client gives informed consent
v. Representing a client with disabilities or a child
1. In representing a client with disabilities, the lawyer must, as much
as possible, maintain a normal client relationship
2. A lawyer may seek appointment of a guardian if the lawyer believes
that the client cannot adequately represent his interests
d. Duty to protect client confidences (Rule 1.6)
i. What information is protected as confidential?
1. Any information an attorney learns, relating to and in the course of
representation, is protected as confidential
2. Includes
a. Information from a client
b. Information from a prospective client
c. Information from anyone else
3. This ethical duty is broader than the attorney-client privilege, since
this relates to anything a lawyer learns, while the privilege applies
to testimonial information
ii. What duties does an attorney have with regard to confidential information?
1. The lawyer cannot disclose or reveal confidential information,
except as appropriate in representing the client
2. The lawyer cannot use the information to his own benefit
iii. What are the exceptions to the duty of confidentiality? A lawyer MAY
reveal information relating to 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 lawyers services
3. To prevent, mitigate, or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result
or has resulted from the clients commission of a crime or fraud in
furtherance of which the client has used the lawyers services
4. To secure legal advice about the lawyers 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 lawyers
representation of the client
a. Lawyers self defense
6. To comply with other law or court order
7. If the client gives informed consent
iv. How should an attorney handle the fruits and instrumentalities of a crime?
1. The lawyer cannot keep, hide, or alter the fruits or instrumentalities
of a crime
v. How should an attorney deal with knowledge that a client will or has
committed perjury?
1. Special duty when it comes to clients who will or have committed
perjury, since it goes against the integrity of the court proceedings
2. Three step approach for lawyers to use if perjury has been
committed
a. Lawyer must urge the client to rectify the fraud and admit to
the court they committed perjury
b. If the client does not rectify, the lawyer must seek to
withdraw
c. If the withdrawal is denied, the lawyer must disclose
confidential information as necessary to rectify the fraud
3. Not ineffective assistance of counsel for a criminal defense lawyer
to reveal that his client committed perjury (Nix v. Whiteside)
4. No client has the right to commit perjury, or require that the lawyer
must stay silent in the face of perjury
5. If an attorney reasonably believes a client will commit fraud in the
future, a similar test is followed
a. Tell client not to do it
b. Tell client if they do it, they must withdraw
c. Tell them if they still do it, they must disclose confidential
information to the court to rectify the fraud

IV. How is the integrity of the system protected?
a. Duty to prevent abuse of the system
i. An attorney shall not bring or defend a proceeding or assert or controvert
an issue unless the attorney believes that there is a basis for doing so that
is not frivolous
1. Exception
a. A lawyer can take a position, even though the law is adverse
to that position, so long as the lawyer believes a reasonable
effort could change the law
ii. An attorney shall make reasonable efforts to expedite litigation consistent
with the interests of the client
iii. An attorney shall not seek to influence a judge or a jury in a manner
prohibited by law
iv. An attorney shall not engage in conduct intended to disrupt a tribunal
b. Duty of candor and honesty to a tribunal
i. An attorney shall not make a false statement of material fact or law to a
tribunal, or fail to correct a false statement of material fact or law
previously made to the tribunal
1. If a lawyer made a statement that they believed to be true, and then
came to know that it was false, the lawyer has the affirmative duty
to correct that error
ii. An attorney shall not fail to disclose a material fact when disclosure is
necessary to avoid assisting a criminal or fraudulent act by the client
iii. An attorney shall not offer evidence that the lawyer knows to be false
iv. An attorney shall disclose adverse legal authority that is on point and is
from the controlling jurisdiction
1. Required to put cases against our side in our briefs
2. Viewed from the perspective of what a reasonable lawyer would
consider adverse
v. In ex parte proceedings, the attorney shall inform the tribunal of all
material facts
1. Ex parte: where the other side is not present
2. Lawyer has the duty to make sure all material facts are told to the
tribunal
c. Fairness to the opposing party
i. An attorney shall not obstruct another persons access to evidence or
unlawfully alter, destroy, or conceal a document or other material having
potential evidentiary value
ii. An attorney shall not falsify evidence or counsel a witness to testify falsely
iii. An attorney shall not make a frivolous discovery request or fail to comply
with discovery in good faith
1. Basis for sanctions, and discipline by the rules
iv. An attorney shall not make a false statement of material fact or law to a
third party
v. A lawyer who receives a document relating to the representation of the
lawyers client and knows or reasonably should know the document was
inadvertently sent shall promptly notify the sender
1. If you get it, and you know you werent supposed to, you must
promptly notify the sender
d. Trial tactics
i. An attorney shall not allude to any matter that is not supported by
admissible evidence
ii. An attorney may not assert personal knowledge about the justness of a
cause or personal knowledge of facts, except when testifying as a witness
iii. Special duties of prosecutors
1. Only to prosecute where there is probable cause
2. To make timely disclosure of all potential exculpatory evidence
3. To be sure that an accused has been advised of the right to
counsel, and given a reasonable opportunity to obtain counsel
4. Not to seek a waiver of rights from an unrepresented person
a. Unless the person refuses representation
5. Not to subpoena another lawyer before grand jury or other criminal
proceeding unless all these requirements are met:
a. The prosecutor must reasonably believe the information
sought is not privileged or protected from disclosure
b. The evidence is essential to the successful completion of the
proceeding
c. There is no alternative source for information
i. Concern is that the prosecutor will have the lawyer
testify, and then seek to have them removed as
counsel
6. Not to make public statements that have a substantial likelihood of
heightening public condemnation of the accused
7. If a prosecutor knows of new credible evidence that creates a
reasonable likelihood that the defendant did not commit the crime,
the prosecutor shall undertake further investigation, and disclose
the information to the court and defendant
e. Voluntary pro bono work
i. An attorney shall aspire to perform at least 50 hours of pro bono service
per year
ii. An attorney may serve as an officer, director, or member of a legal
services organization, even if it has interests adverse to the lawyers
clients
f. Attorney as Advisor
i. An attorney shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows to be criminal or fraudulent
1. Can never advise the client to break the law
ii. An attorney may discuss the legal consequences of any proposed course
of conduct with a client and may assist a client to determine the meaning
and application of the law
1. It is ok to state that no one has ever been prosecuted for breaking a
law
2. you cannot advise the client to then break the law
iii. An attorney shall give candid advice and may refer not only to the law, but
also to moral, economic, social, and political considerations
g. What is the permissible nature of communications with those other than the client
i. Communications with adversaries
1. An attorney shall not communicate directly to someone the attorney
knows is represented by a lawyer in the matter, unless that lawyer
consents, or the court permits it
2. An attorney may communicate with a person that is not represented
by counsel, but cannot give legal advice or represent that he is
disinterested in the matter
ii. Communication with witnesses
1. An attorney may contact all witnesses, even witnesses for the
opposing party, unless theyre represented by a lawyer in the
matter
2. An attorney cannot harass any witness or prospective witness
3. An attorney cannot encourage a witness to leave the jurisdiction to
avoid testifying
4. A non expert witness may be paid only expenses incidental to
testifying
5. Expert witnesses may be paid a reasonable fee in addition to
expenses
6. No witness may be paid on a contingency basis
iii. Communication with jurors
1. Before trial, no communication is allowed with a member of the
panel from which the jury will be selected
2. During trial, no communication with jurors is allowed except in
official court proceedings
3. After trial, a lawyer may contact a juror, unless prohibited by law, or
unless the juror indicates a desire not to be communicated with.
There must be no misrepresentation or harassment
iv. Communications with the court
1. Except in emergencies, ex parte communications are not allowed
a. Only one side is present
2. No gifts to court personnel allowed
v. Communications about judges and adjudicatory officers
1. Lawyers cannot make statements that they know to be false, or that
are with reckless disregard of the truth about judges or adjudicatory
officers
vi. Communications with the press
1. A lawyer cannot make a statement to the press, that is reasonably
likely to be publicly disseminated, if there is a substantial likelihood
of materially prejudicing an adjudicatory proceeding
V. How should the market for legal services be regulated
a. Advertising and solicitation
i. Attorneys must not make false or misleading statements
1. A lawyer may communicate that he practices or doesnt practice in
a specific field
2. A lawyer may communicate that he is a certified specialist, only if
certified by an accredited body, and that body is identified
ii. Solicitation
1. Attorney in-person solicitation of clients for profit is prohibited
a. In-person also includes telephone, or real time electronic
communication
i. Does not include letters
b. Exceptions
i. Business can be solicited from other lawyers
ii. Lawyers can solicit family members, or those with
which they have close personal relationships
iii. A prior professional relationship
2. An attorney shall not solicit if prospective clients make it known that
he does not want to be solicited
iii. Advertising
1. Lawyer advertising is allowed, so long as it is truthful and not
deceptive
2. All lawyer advertising or solicitations must say advertising material
on the envelope, and at the beginning and end of the soliciation
b. How may the practice of law be structured?
i. Names of law firms
1. Attorneys may continue to use the names of deceased lawyers,
unless it is deceptive to do so
2. Attorneys must remove their name from the firm if they enter public
service
3. Trade names
a. Are allowed, so long as they are not misleading, and
b. Does not imply a false connection to government services
4. Cannot reflect a partnership if no partnership actually exists
ii. Law firms may incorporate if state law permits it, and all officers, directors,
and shareholders must be attorneys
iii. Buying and selling law firms
1. Rules allow buying and selling of law firms, so long as
a. The seller must stop practicing in that geographic or practice
area
b. The firm or field of practice must be sold in its entirety
c. Written notice must be given to clients
i. Must be told of proposed sale
ii. Must have an opportunity to get another lawyer
d. No immediate increase in fees
c. Fees (Rule 1.5)
i. Fees should be set as soon as possible in the course of representation,
preferably in writing (contingency fees must be in writing)
1. The burden is on the lawyer to set the fee with the client
ii. A lawyers fee must be reasonable
1. The factors used to determine reasonableness:
a. Time and skill required
b. The extent of preclusion of other legal work
c. The fee customarily charged for like work in the area
d. The amount charged
e. Experience of the lawyer.
iii. Contingency fees
1. Must be in writing.
2. Must notify the client of the clients responsibility for expenses.
3. Criminal cases cannot be handled on contingency basis
4. Domestic relations case, divorce, amount of alimony or amount of
property settlement cannot be handled on contingency basis.
iv. Fee splitting with other attorneys. A division of fees among lawyers who
are not in the same firm may be made only if
1. The division is in proportion to the services performed by each
lawyer or each lawyer assumes joint responsibility for the
representation
2. The client agrees to the arrangement, including the share each
lawyer will receive, and the agreement is confirmed in writing and
3. The total fee is reasonable.
v. Attorneys shall not enter into agreements that restrict the ability of lawyers
to practice after the termination of their employment.
1. Covenants not to compete are not permitted.
d. What is the attorneys duty to protect the clients money or property?
i. An attorney must not comingle client funds and personal funds
1. Required to place client funds in client trust accounts.
a. You can have one fund for each or one big client fund
b. You cant put your own money in or take any money out for
yourself.
c. Exception: the lawyer may put personal funds in a clients
account for the sole purpose of paying bank service charges
but only in that exact amount.
ii. An attorney must keep a record of client funds for at least five years after
the representation.
iii. An attorney must keep a clients property safely.
1. Fiduciary responsibility
iv. An attorney must pay all money owed to the client promptly
1. As soon as the settlement check arrives, the lawyer must
immediately put it in client account or pay to client
2. If there is disagreement about the fee, the lawyer may take what is
undisputed, pay client what they are owed and the disputed amount
stays in trust account.

VI. What are the ethical standards for judges?
a. When are judges disqualified?
i. Judges must avoid even the appearance of impropriety
ii. If the judge has personal knowledge of disputed evidentiary facts
iii. If the judge served as a lawyer in the matter in controversy or as a judge
in another court
1. Even if he didnt personal represent, can be disqualified even if his
firm was involved, there is no screening for judges.
2. They cant review their own work if they move up.
iv. If the judge has a financial interest in the case, including if a party or
lawyer made a campaign contribution larger than an amount designated
by law.
1. This includes the financial interest of the judge, spouse, children
parents and family members living in the home.
2. It must be a legal or equitable interest (if it is a distinct interest
different than everyone in the community i.e. Challenge to legality
of utility rate increase would be an interest that everyone in the
community has).
3. Applied to all the financials interests that the judge knows or should
know of.
v. If the judge or a family member is involved in the case
1. Disqualified if their family member is a party or an officer, director or
trustee of a party.
2. The lawyers are members of family
3. Has more than a de minimis interest than can be substantially
effected
4. Is likely to be a material witness.
5. Applied to all family members who the judge has a 3
rd
degree
relationship; anyone but cousins.
vi. Exceptions:
1. Remittal
a. Parties voluntarily allow judge to participate
i. Judge must disclose on the record the basis for
disqualification
ii. All parties must voluntarily agree on the record for the
judge to participate
iii. The judge cannot do anything to persuade or
pressure the parties into giving him permission
2. Rule of necessity
a. If all judges in that jurisdiction are disqualified than any judge
can hear the case.
b. What conduct while serving as a judge is appropriate?
i. A judge shall comply with all constitutional, statutory, and procedural law
ii. A judge shall require order and decorum in court proceedings.
iii. A judge shall be patient, dignified and courteous
iv. A judge shall perform judicial duties without bias or prejudice.
1. Administrative appointments (staff) must be based on merit.
v. A judge shall not engage in ex parte communications
vi. A judge shall avoid and shall require attorneys to avoid expressing bias
based on race, national origin, religion, gender, age, disability, sexual
orientation or socio-economic status.
vii. A judge shall dispose of all judicial matters promptly, efficiently and fairly.
viii. A judge shall not commend or criticize jurors for their verdict, except in a
court order or opinion.
1. JNOV; judgment as a matter of law permissible
ix. A judge shall not disclose or use any non public information gained in a
judicial capacity
x. A judge shall not make comments about any pending proceeding that can
be reasonable expected to affect its outcome.
xi. A judge shall not engage in an independent investigation of the facts
xii. If he consults with a third party, the parties must be notified.
c. What off-the-bench conduct by judges is appropriate?
i. Judges are not allowed to engage in the practice of law
1. Judges cannot serve as mediators or arbiters except in cases
properly before them
2. Judge should not accept an appointment to a government
commission other than those proven to be dedicated to the
improvement of the legal system.
ii. Judges are not allowed to serve as fiduciaries
1. Cannot be executors, administrators, trustees or guardians.
2. Exception: he may do this for his own immediate family in a matter
not likely to go before his court.
iii. Judges may serve in a charitable or civic organization so long as it does
not reflect adversely on the judges impartiality.
1. The organization cannot be for the financial or political gain of its
members
2. A judge shall not participate in fundraising or membership
solicitation or allow the prestige of the judicial office to be used for
this.
3. A judge shall not participate in an organization if it is likely involved
in litigation that might come before his court.
iv. A judge shall not hold membership in any organization that practice
invidious discrimination based on race, sex, religion or national origin.
v. A judge shall not appear as a character witness unless subpoenaed or
testify at a public hearing unless it concerns the law or the legal system.
vi. Judges shall not engage in financial transactions that risk a conflict of
interest.
1. Can manage their own financial transactions
2. Shall not serve as an officer, director or any other capacity for a
business except for a close corporation of his family.
vii. A judge shall not accept and urge family members to accept gifts from
those likely to appear before the judge.
1. Exceptions:
a. Gifts with little intrinsic value
b. Gifts incident to public testimonials, from publishers or bar
related functions
c. Ordinary social hospitality (dinner at their house, you may
bring a bottle of wine)
d. Loans from lending institutions during the regular business of
loaning money on the same terms that are available to non
judges.
viii. Judges may receive compensation for their non-judicial conduct, where
permitted.
ix. A judge shall comply with the law in all of his or activities.
d. What political activities by judges or judicial candidates are permissible?
i. Judges and candidates for judicial office may not do the following
1. Hold office in a political organization
2. Publicly endorse or oppose candidates for office unless it is for the
same court they are running
3. Make speeches on behave of a political organization
4. Attend political gatherings
5. Solicit funds or make contributions to candidates for political office
6. Seek or accept endorsements from political organizations
7. Use court staff or facilities for their campaign
8. Cannot appoint a person to a salary position if the individual gave
more to their contribution than legally allowed by law
ii. Judges must resign from the bench if running for non-judicial office
iii. In campaigning for election or retention to the bench, a judge shall not:
1. Personally solicit or receive funds
a. He can create a committee but he cannot personally solicit.
2. Make pledges or promises of conduct in office
a. Cant say, Ill be tough on drunk drivers
b. He has affirmative duty to review campaign literature for this.
3. Knowingly misrepresent own qualifications or facts concerning an
opponent.