Ethics Outline

Introduction

1. Definitions
a. Ethics – critical reflection on your moral intuitions
i. Reasons for and understanding of you moral intuitions
b. Moral Intuitions – feelings about what is right and wrong
c. Virtue – a moral good
d. Telos – a moral end, goal, or purpose for human existence
e. Duty – obligation; what is right
i. Imperative – reason dictates what out obligations ought to be
2. Preamble
a. A lawyer is, as a member of the legal society,
i. A representative of clients
ii. An officer of the legal system
iii. And a public citizen
3. Admission to Practice Law
a. Rule 8.1 Bar Admission and Disciplinary Matters
i. 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:
1. knowingly make a false statement of material fact; or
2. 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 from an admissions or disciplinary
authority, EXCEPT that this rule does not require disclosure of
information otherwise protected by Rule 1.6.
ii. this duty of disclosure applies to both applicants and current lawyers
iii. basically, you can not lie or fail to correct a misapprehension dealing with
admission to the bar or if you are a lawyer in a disciplinary investigation
b. Almost every state requires bar applicants to demonstrate good moral character and
fitness before they can be admitted
i. Therefore if the bar determines that you lack good moral character, admission
can be denied
ii. One way to show a lack of good character is
1. flagrant disregard of the rights of others and default on serious
financial obligations (such as student loans), if the default is
neglectful, irresponsible
2. the only way that filing bankruptcy and defaulting on your loans can
be excused is of there is a compelling hardship that is reasonably
beyond the control of the applicant
a. hardships include – unusual misfortune, catastrophe, an
overriding financial obligation, or unavoidable unemployment
c. Admission pro hac vice
i. Courts will allow a lawyer who is licensed in another state to handle a single
case before the court
 ii. Pro hac vice – for this turn only
d. Reciprocity Admission
i. Most states will admit a lawyer to practice if that lawyer has practiced for a
period of years in another state that extends that privilege to lawyers of the
admitting state
1. usually must practice for five years
e. Unauthorized practice
i. If a lawyer practices in state in which he is not admitted, the lawyer is subject
to criminal sanctions in the state in which he engages in the unauthorized
practice and to discipline in the state in which he is admitted
ii. RULE 5.5
1. generally, a lawyer may not practice in a jurisdiction where he is not
admitted to the bar
2. However, a lawyer may provide temporary services in another state if
a. The services are taken in association with another lawyer
admitted to the bar in that state,
b. Is authorized by law to do so
3. There is also an exception for in house counsel to represent their
clients in other states.
4. Sanctions for Lawyer Misconduct
a. Lawyers who engage in professional misconduct (Rule 8.4) are subject to discipline
i. However, notice, that another lawyer does not have to report all misconduct to
the bar if he has knowledge of it
ii. Only violations of the rules that raise a substantial question
b. Malpractice Liability and procedural sanctions
i. In order to prevail in an action for legal malpractice, a client must show
1. that the attorney had a duty to the client
a. the existence of a duty is established by showing the attorney
client relationship
b. this is determined by asking whether it was reasonable for
the person asserting client status to believe that an attorney
client relationship existed
2. that the duty was breached through the attorney’s negligence, and
a. a lawyer must act with the skill and knowledge ordinarily
possessed by attorneys under similar circumstances
b. this can sometimes be shown by a violation of the Rules of
Professional Conduct
3. that the breach proximately caused
a. must show actual and legal causation
i. actual causation – “but for” the negligence of the
attorney, the initial case would have had a different
result
ii. legal causation – that the lawyer’s negligence was the
proximate cause of the client’s injuries
4. injures to the client
 ii. Some states allow attorneys to be held liable to non-clients for negligence if
the non-client can show that they were in privity of contract
iii. On top of liability for negligence, the bar can punish the lawyer for his
professional misconduct
1. but must meet one of the ways under Rule 8.4
c. Rule 8.2 Judicial and Legal Officials
i. A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications of a
judge, adjudicatory officer or public legal officer, or of a candidate for
election or appointment to judicial or legal office
ii. A lawyer who is a candidate for judicial office shall comply with the
applicable provisions of the code of Judicial Condcut
iii. Do not make statements that you do not know are true regarding the
qualifications of judges or legal officers.
1. this is to keep public confidence in the administration of justice
d. Rule 8.3 Reporting Professional Misconduct
i. A lawyer who knows that another lawyer has committed a violation of the
Rules of Professional Conduct that raises a substantial questions as to that
lawyers honesty, trustworthiness or fitness as a lawyer in other respects,
shall inform the appropriate professional authority
ii. 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
iii. 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 lawyer’s assistance program
iv. This rule emphasizes the self-regulation of the profession
1. the rule does not require a lawyer to report every violation of the rules
2. only those violations that raise a “substantial question”
3. thus, it must be a serious enough violation as to raise a substantial
question as to the lawyer’s honesty, trustworthiness or fitness or the
judge’s fitness
v. if there is a serious violation, and you have knowledge of it and don’t report it,
you can be subject to sanctions
vi. Ethics Opinions
1. reporting unethical conduct that stems form mental impairment
(including substance abuse)
a. must one report substance abuse
i. you do not have to report it since this is not a violation
of a rule, but you can report it in your discretion
b. what if the substance abuse has led to the violation of a rule
(maybe makes them incompetent under rule 1.1)
i. then a lawyer MUST report the violation if it raises a
substantial question as to that persons’ honesty, fitness,
etc.
ii.
e. Rule 8.4 Misconduct
i. It is professional misconduct for a lawyer to:
1. Violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induct another to do so, or do so through acts of
another;
2. commit a criminal act that reflects adversely in the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects;
3. engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation
4. engage in conduct that is prejudicial to the administration of justice
5. 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
6. knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law
ii. as far as criminal offenses, it is only misconduct if the offense reflects
adversely upon the lawyer’s honesty, fitness, etc,
1. usually crimes of moral turpitude
2. a pattern of repeated minor offenses can also indicate indifference to
legal obligation
3. assault, DUI are not really offenses that reflect upon the lawyer’s
honesty, trustworthiness, etc
iii. examples of client misconduct
1. encouraging concealment of material facts; forgery; fraud; perjury;
stealing client funds; threatening an adverse party; lying to a
disciplinary committee; contacting a juror; etc
f. Rule 8.5 Disciplinary Authority; Choice of Law
i. Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is
subject to the disciplinary authority of this jurisdiction regardless of where
the lawyer’s conduct occurs
1. A lawyer not admitted in this jurisdiction is also subject to the
disciplinary authority of this jurisdiction if the lawyer provides or
offers to provide any legal services in this jurisdiction
2. A lawyer may be subject to the disciplinary authority of both this
jurisdiction and another jurisdiction for the same conduct
ii. Choice of Law. In any exercise of the disciplinary authority of this
jurisdiction, the rules of professional conduct shall be applied as follows:
1. for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, unless the rules of
the tribunal provide otherwise; and
2. for any other conduct, the rules of the jurisdiction in which the
conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to
the conduct.
a. A lawyer shall not be subject to discipline if the lawyer’s
conduct conforms with the rules of a jurisdiction in which the
 lawyer reasonably believes the predominant effect of the
lawyer’s conduct will occur
iii. Whatever state you are admitted to practice in is rules that you must abide by
1. the rules of the state also extend to other lawyers that are not admitted
to the state, if they are offering there legal services in the state
iv. A lawyer will be subject to the laws of the jurisdiction where is case is
pending
1. if a case is not pending, where the conduct occurred, or if the
predominant effect of the conduct is in another jurisdiction, then that
jurisdiction’s rules will apply
v. if a lawyer’s conduct involves contact with more than one jurisdiction, as long
as the lawyer’s conduct conforms with the rules of the jurisdiction in which
the lawyer reasonably believes the predominant effect will occur, the lawyer is
OK

The Lawyer Client Relationship

1. Establishing the lawyer-client relationship
a. Rule 1.2 Scope of Representation and Allocation of Authority Between Client
and Lawyer
i. (a) Subject to (c) and (d), a lawyer shall abide by a client’s decisions
concerning the objectives of representation and, as required by Rule 1.4, shall
consult with the client as to the means by which they are to be pursued
1. A lawyer shall take such action on behalf of the client as is impliedly
authorized to carry out the representation
2. A lawyer shall abide by a client’s decision whether to settle a matter
3. In a criminal case, the lawyer shall abide by the client’s decision,
after consultation with the lawyer, as to a plea to be entered, whether
to waive jury trial and whether the client will testify
ii. (b) A lawyer’s representation of a client, including representation by
appointment, does not constitute endorsement of the client’s political,
economic, social, or moral views, or activities.
iii. (c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent
iv. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the
legal consequences of any proposed course of conduct with a client and may
counsel or assist a client to make a good faith effort to determine the validity,
scope, meaning or application of the law
v. Allocation of authority between client and lawyer
1. the client has the ultimate authority to determine the purposes to be
served by legal representation and the lawyer must abide by the
client’s decisions
a. Rule 1.4 looks at the lawyer’s duty to communicate with the
client regarding his decisions
2. Implied authorization
 a. The client may give the lawyer express authority at the
beginning to make certain decisions regarding the
representation
b. Apparent authority – where client represents that you have
authority to take some action.
c. Customary or implied authority – authority to do which is
normally authorized to lawyers to do in the course of litigation
manifested by the client’s act in hiring an attorney
3. where a client appears to be suffering from diminished capacity, the
lawyer’s duty to abide by the client’s decisions is to be guided by Rule
1.14
vi. Agreements Limiting Scope of Representation
1. the scope of the services provided by the lawyer may be limited by
agreement
a. however, the limitation must be reasonable under the
circumstances
vii. Criminal, Fraudulent, and Prohibited Transactions
1. although a lawyer cannot participate in or assist in the commission or a
crime or fraud, the lawyer can give an honest opinion about the
consequences that will result from the client’s conduct
2. if the criminal or fraudulent conduct has already been undertaken by
the client, the lawyer must be extra careful to ensure that he doesn’t
assist in the furtherance of the crime
3. once the lawyer finds out that the client is doing something criminal,
the lawyer should withdraw from representation (Rule 1.16(a))
b. Rule 1.16 Declining or Terminating Representation
i. (a) Except as stated in (c), a lawyer shall not represent a client, or where
representation has commenced, 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;
2. the lawyer’s physical or mental condition materially impairs the
lawyer’s ability to represent the client; or
3. the lawyer is discharged
ii. (b) Except as stated in (c), a lawyer may withdraw from representing a client
if:
1. withdrawal may be accomplished without material adverse affect on
the interests of the client;
2. the client persists in a course of action involving the lawyer’s services
that the lawyer reasonably believes is criminal or fraudulent;
3. the client has used the lawyer’s services to perpetuate 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 lawyer’s 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
iii. (c) A lawyer must comply with the applicable law requiring notice to or
permission of a tribunal when terminating a representation.
1. When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good case for termination the
representation
iv. (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.
1. The lawyer may retain papers relating to the client to the extent
permitted by other law.
v. A lawyer should not accept representation unless it can be performed
competently, promptly, without improper conflict of interest, and to
completion
vi. Mandatory Withdrawal
1. must withdraw if the client demands that the lawyer engage in conduct
that is illegal or violated the professional rules of conduct.
2. normally, withdrawal requires approval by the court
a. there could be problems with confidentiality when the judge
asks for a reason why you are withdrawing and the reason is
that the client is engaged in illegal conduct and is trying to get
the lawyer to assist
b. the statement that “professional considerations require
termination of the representation” should be sufficient
3. Discharge
a. A client has a right to discharge a lawyer at any time
vii. Optional Withdrawal
1. (b)(3) looks at when the client has previously misused the lawyer’s
services to perpetuate a crime or fraud
a. This is different from (a)(1) because it refers to when the
present representation would result in a violation of a law
2. look at list for examples of when lawyer has the option
viii. Assisting the client with withdrawal
1. no matter the reason for the withdrawal, the layer must take all
reasonable steps to mitigate the consequences of the withdrawal to the
client
2. the lawyer cannot condition the release of the client’s file on the
payment of fees
c. Refusing Court Appointment
i. Rule 1.2(b) makes it clear that just because a lawyer represents a client, it
doesn’t mean that they take on the client’s views on the world
ii. What if you are appointed a client that has views so different than yours that
you don’t believe that you can represent him fairly
iii. Rule 6.2 Accepting Appointments
1. A lawyer shall not seek to avoid appointments by a tribunal to
represent a person except for good cause, such as:
a. Representing the client is likely to result in violation of the
Rules of Professional Conduct of other law
b. Representing the client is likely to result in an unreasonable
financial burden on the lawyer; or
c. The client or the cause is so repugnant to the lawyer as to be
likely to impair the client-lawyer relationship or the lawyer’s
ability to represent the client
2. A lawyer does not have to take a court appointed client if the client’s
character or cause is repugnant to the lawyer
a. Or any other reason, as long as it is good cause
i. Competency (Rule 1.1)
ii. Or improper conflict of interest
d. Rule 1.1 Competence
i. A lawyer shall provide competent representation to a client
1. Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation
ii. Legal Knowledge and Skill
1. Factors to determine whether a lawyer has the requisite knowledge and
skill in a particular matter
a. relative complexity and specialized nature of the matter
b. the lawyer’s general experience
c. the lawyer’s training and experience in the field in question
d. the preparation and study the lawyer is able to give the matter
2. a lawyer does not need special training or prior experience to handle
legal problems with which the lawyer is unfamiliar
a. a lawyer may accept representation where the requisite level of
competence can be achieved by reasonable preparation
iii. Thoroughness and Preparation
1. competent handling of a case includes inquiry into and analysis of all
the legal and factual elements of the problem
2. the required attention and preparation are determined in part by what is
at stake
iv. A lawyer should maintain competence by keeping up with changes in the law,
etc.
v. Just b/c a lawyer is found to be competent to represent the client, it does not
shield him from liability for malpractice
 1. a good faith effort to be prepared and thorough will generally shield
you from sanction from the bar, but not from negligence
e. Rule 1.18 Duties to a Prospective Client
i. (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. (b) Even when no client-lawyer relationship ensues, the 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
iii. (c) A lawyer subject to (b) shall not represent a client with interest materially
adverse to those of a prospective client in the same or substantially related
matter if the lawyer received information from the prospective client that
could be significantly harmful to that person in the matter, except as provided
in (d)
1. If a lawyer is disqualified from representation under this paragraph,
no lawyer in a firm with which the lawyer is associated may knowingly
undertake or continue representation in such a matter, except as
provided in (d)
iv. (d) When a lawyer has received disqualifying information as defined in (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 measure to
avoid exposure to more disqualifying information than was necessary
to determine whether to represent the prospective client; and
a. the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the
fee therefrom; and
b. written notice is promptly given to the prospective client.
v. Not all persons who communicate info to a lawyer are entitled to protection
under this rule
1. a person who communicates info 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” as defined in (a)
vi. If a lawyer does receive info from a prospective client, but the attorney-client
relationship is not formed, the attorney cannot use or reveal the information
except as allowed in Rule 1.9.
1. Rule 1.9 looks at duties to former clients
vii. (c) prohibits a lawyer who has obtained info from a prospective client to
represent a client with an interest materially adverse to the prospective client
if it is substantially related to the same matter
viii. The prohibition in (c) is imputed to other lawyers in the firm as provided in
Rule 1.10
1. imputation may be avoided if the lawyer gets informed consent from
both the client and prospective client
 2. it may also be avoided if the lawyer is properly screened from the
action and informed consent is given to the prospective client
2. The Lawyer-Client relationship
a. The attorney-client relationship is a fiduciary one
i. A fiduciary relationship exists when one has special confidence in another so
that the latter, in equity and good conscience, is bound to act in good faith
b. The authority of the attorney to bind his client is governed by the law of agency
i. Hence, the client as principal is bound by the acts of the attorney within the
scope of his actual authority (express or implied) or his apparent or ostensible
authority
ii. The attorney is authorized by virtue of his client to bind the client in
procedural matters arising during the course of the action
1. apparent authority – the authority to do that which attorney’s normally
do in the course of litigation manifested by the client’s act of hiring an
attorney
iii. attorney has no implied or apparent authority to impair a client’s substantial
rights
1. such as entering into an arbitration agreement
2. the attorney must actually receive express authority to do this
iv. Rule 1.2 looks at implied authority and Rule 1.4 requires that the lawyer give
the client info such that they can make an informed decision
c. Rule 1.0(e) Terminology
i. “informed consent” denotes the agreement by a person to a proposed course
of conduct after the lawyer has communicated adequate info and explanation
about the material risks of and reasonably available alternatives to the
proposed course of conduct
d. Also look at Rule 1.2 above
e. Rule 1.3 Diligence
i. A lawyer shall act with reasonable diligence and promptness in representing
a client
ii. A lawyer shall pursue a matter on behalf of a client despite any personal
inconvenience
iii. A lawyer must also act with commitment and dedication to the interests of the
client and with zeal in advocacy upon the client’s behalf
iv. Unless the relationship is terminated under 1.16, the lawyer should carry
through to the conclusion of all matters
v. Conduct that may constitute professional negligence, does not mean that there
is violation of this rule
1. if an attorney misses a filing date and therefore the case is lost, he is
definitely liable for malpractice
2. however, to receive punishment under this rule, there must be a pattern
of delay or lack of diligence
f. Rule 1.4 Communication
i. 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 the client about the means 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.
ii. A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation
iii. Communicating with the Client
1. a lawyer should fully explain the consequences of any decisions that
the client is required to make
2. a lawyer should also explain the course of action that will be taken to
accomplish the objectives of the client and keep the client reasonably
informed about the progress of this action
3. any reasonable request for info should be promptly complied with
iv. Explaining Matters
1. the lawyer must explain what is going on sufficiently such that the
client can make informed decisions
a. however, this does not mean that the lawyer must explain his
trial strategy
g. Rule 1.14 Client with Diminished Capacity
i. (a) When a client’s capacity to make adequately considered decisions in
connection with a representation is diminished, whether because of minority,
mental impairment, or for some other reason, the lawyer shall, as far as
reasonably possible, maintain a normal client-lawyer relationship with the
client
ii. (b) When the lawyer reasonably believes that the client has diminished
capacity, is a risk of substantial physical, financial, or other harm unless
action is taken and cannot adequately act in the client’s own interest, the
lawyer may take reasonably necessary protective action, including consulting
with individuals or entities that have ability to take action to protect the client
and, in appropriate cases, seeking the appointment of a guardian ad litem,
conservator, or guardian.
iii. Information relating to the representation of a client with diminished capacity
is protected by Rule 1.6. When taking protective action pursuant to (b), the
lawyer is impliedly authorized under Rule 1.6(a) to reveal info about the
client, but only to the extent reasonably necessary to protect the client’s
interests.
iv. Just b/c a person has diminished capacity, the lawyer does not have an excuse
to treat them differently
v. If a representative has already been appointed for the client, the lawyer should
look to the representative for decisions on behalf of the client
 vi. Taking Protective Action
1. if the lawyer reasonably believes that the client is at risk of harm and a
normal attorney-client relationship cannot be maintained, the lawyer
may take protective measures
a. this includes consulting with family members
b. and appointing a guardian
vii. Disclosure of the Client’s Condition
1. normally, info relating to the representation is protected under Rule 1.6
and therefore unless authorized to do so, the lawyer may not reveal the
info
2. If the lawyer is taking protective action under (b), the lawyer is
impliedly authorized under 1.6(a) to make the necessary disclosures,
even when the client directs the lawyer to the contrary
a. However, the lawyer can only reveal info reasonably necessary
to protect the client
viii. A lawyer may not make a will for a person he believes is incompetent to make
one
h. Rule 2.1 Advisor
i. In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice
1. In rendering advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social, political factors, that
may be relevant to the client’s situation
ii. A lawyer may give the client honest advice to the client
1. this could include the lawyer telling the person to seek counseling
iii. moral and ethical considerations can go into the advice

Confidentiality and the attorney Client Privilege

1. the attorney-client privilege is different from confidentiality

a. the privilege is an evidentiary rule under which a client can prevent a lawyer from
testifying as to communication of the client
b. The duty of confidentiality is a rule of professional responsibility which generally
prohibits an attorney from revealing information concerning representation of a client
to anyone
i. confidentiality will apply even though privilege does not apply
ii. attorney-client privilege and work product doctrine apply in judicial
proceedings where a lawyer may be called to produce evidence, but
confidentiality applies in many more situations
2. An attorney client relationship is deemed to exist if the conduct between an individual and an
attorney is such that the individual subjectively believes such a relationship exists and that
subjective belief is objectively reasonable based upon the attending circumstances, including
the attorney’s words and actions
3. The attorney client privilege does not apply to a client’s remarks concerning the furtherance
of a crime or fraud or to conversations regarding the contemplation of a future crime
4. Applicability of the privilege to corporations
 a. Two rules have evolved
i. Control group test – communications are protected if they are between the
corporation’s lawyer and its senior management
1. this would include the board of directors and officers
2. the supreme court expressly rejected this test
ii. Subject matter test – communications between attorney and employees are
protected if the subject matter of the communication is within the scope of the
employer’s corporate duties
b. Basically, the privilege applies to all communication from corporate employees to the
corporate lawyer
i. However, you could always bring the employee in to testify – he cannot claim
the privilege for himself on for the communication to the lawyer
5. One problem with allowing disclosure to be discretionary is that others can get hurt
a. Attorneys can be liable to non-clients on the basis of fraud or misrepresentation
i. In order to prevail, the plaintiff must show that the attorney made a material
misrepresentation which was known to be false, with the intention of inducing
the plaintiff to act, which the plaintiff did to his detriment
b. Attorneys can also be liable to non-clients for negligent misrepresentation when the
lawyer or the lawyer’s client invites the non-client to rely upon the attorney’s opinion
or legal advice

6. Rule 1.6 Confidentiality of Information

a. (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 (b).
b. (b) A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary:
i. To prevent reasonably certain death or substantial bodily harm;
ii. 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;
iii. To prevent, mitigate, or rectify a 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;
iv. To secure legal advice about the lawyer’s compliance with these rules;
v. 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
vi. To comply with other law or a court order
c. This governs a lawyer’s duty of confidentiality to clients
i. Rule 1.18 governs the duty to prospective clients
ii. Rule 1.9(c)(2) governs the duty to former clients
 d. The confidentiality rule applies not only to matters communicated, but also
information relating to the representation, whatever its source
i. This rule prohibits disclosure of even information that could reasonably lead
to the discovery of such information in a third party
ii. Thus, a lawyer’s use of a hypothetical to discuss issues relating to the
representation is permissible only if there is no reasonably likelihood that the
listener will be able to ascertain the identity of the client
e. Authorized Disclosure
i. A lawyer is impliedly authorized to make disclosures about a client when
appropriate in carrying out the representation
f. Disclosures Adverse to the Client
i. (b)(1) Can disclose info if harm will be suffered imminently or of there is a
present and substantial threat that a person will suffer such harm at a later date
if the lawyer does not take action
ii. (b)(2) can disclose to prevent client from committing crime or fraud that is
reasonably certain to cause substantial injury and in furtherance of which the
client has used or is using the lawyer’s services
1. attorney may also withdraw under Rule 1.16
iii. (b)(3) addresses the situation where the attorney does not learn of the client’s
crime until after it has been committed and further injury can be prevented,
rectified or mitigated
iv. (b)(4) allows disclosure to get advice to be able to comply with the Rules
v. (b)(5) allows the lawyer to disclose when he is being charged as an
accomplice with his client in a criminal or civil action
vi. (b) only permits disclosure that the lawyers believes reasonably necessary to
accomplish one of the purposes specified
1. when practicable, the lawyer should first seek to persuade the client to
take suitable action to remove the need for disclosure
g. notice this rule permits the lawyer to disclose info in some circumstances, it does not
require it
i. the lawyer can still exercise discretion in determining whether to disclose
h. The lawyer must act competently to preserve confidentiality
i. This includes taking reasonable precautions when transmitting the info that it
will not come into the hands of unintended recipients

7. Attorney Client Privilege

a. This is a rule of evidence and not a rule of professional responsibility
b. Confidentiality is broader in two respects
i. It applies in all situations, and not only when the lawyer is called to testify
ii. It applies to information relating to the representation of a client where the
privilege only covers communications from the client
c. The privilege applies only if
i. The asserted holder of the privilege is or sough to become a client;
ii. The person to whom the communication was made
1. is a member of the bar of a court, or his subordinate and
2. in connection with this communication is acting as a lawyer
 iii. the communication relates to a fact of which the attorney was informed
1. by his client
2. without the presence of strangers
3. for the purposes of securing primarily either
a. an opinion on law or
b. legal services or
c. assistance in some legal proceeding, and
4. and not for the purpose of committing a crime or tort; and
5. the privilege has been
a. claimed and
b. not waived by the client
8. Work Product – protects some info that an attorney learns during legal representation
a. Under this doctrine, materials prepared by a lawyer in anticipation of litigation are
immune from pretrial discovery

Conflicts of Interest

1. Three Types of Conflicts

a. 1.7(a) – adverse interests
b. 1.7(b) – material limitation rule
i. Catch-all conflict rule
c. 1.9 – former clients
i. The representation must be “substantially related” to the past representation
ii. Duty of loyalty and confidentiality for you life
iii. This rules also regulates the confidentiality requirements for prospective
requirements
2. A Conflict can be waived
a. To get a conflict waived, you must have informed consent and it must be confirmed
in writing
b. The waiver can be rescinded by the client at any time
c. The court will also not enforce the waiver if the conflict is non-waivable
i. Rule 1.7 lists several ways that a conflict can be non-waivable
ii. If not under one of the ways – ask whether a reasonable lawyer who had
nothing to gain from the representation would have though that this was a
permissible conflict and waiver
3. Interesting application to attorneys hired by insurance companies to represent an insured
a. Such an attorney owes the same type of unqualified loyalty as if he had been
originally employed by the insured
b. If a conflict arises between the interests of the insurer and the insured, the attorney
owes a duty to the insured to immediately advise him of the conflict
c. Therefore if the lawyer learns something about the insured that could make him not
covered in the accident, the lawyer must immediately inform both parties of the
conflict
d. Look at Rule 1.8(f)
i. This rule requires that when someone else pays the lawyer, the client must
consent to such payment, there must not be interference with the client-lawyer
 relationship, and information relating to the representation must remain
confidential
4. Constitutional Considerations in Criminal Cases
a. What must a defendant show in order to demonstrate a Sixth Amendment violation
when the trial court fails to inquire into a potential conflict of interest of which it
knew or reasonably should have known
i. Sixth amendment provides that a criminal defendant shall have the right to
assistance of counsel for his defense
ii. G/R – a defendant must demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different
1. there is an exception when assistance of counsel has been denied
entirely
2. one such situation exists when the defendant’s attorney has a
conflict of interest regarding representation of multiple defendants
and the lawyer fails to make an objection or the court fails to
inquire into the representation
b. in criminal cases, the defense counsel’s conflict of interests can be raised by the
counsel, the defendant, the prosecutor, or the judge
c. of course, a defendant in a criminal case can waive a conflict of interest – and the
court’s will uphold the waiver
5. Rule 1.7 Conflicts of Interest: Current Clients
a. (a) Except as provided in (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest.
i. 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 lawyer’s responsibilities to another
client, a former client, or a third person or by personal interest of the
lawyer
b. (b) Notwithstanding the existence of a concurrent conflict of interest under (a), a
lawyer may represent a client if:
i. The lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation of each affected client;
ii. The representation is not prohibited by law;
iii. 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
iv. Each affected client gives informed consent, confirmed in writing
c. Resolution of a conflict of interest requires a lawyer to:
i. Clearly identify the client or clients;
ii. Determine whether a conflict of interest exists;
iii. Decide whether the representation may be undertaken despite the existence of
the conflict; and
1. aka - whether the conflict is consentable
 iv. if so, consult the clients affected under (a) and obtain their conformed consent
in writing
d. If a conflict of interest exists before representation is undertaken, the representation
must be declined unless the lawyer obtains informed consent and meets the
requirements of (b)
e. If a conflict arises after representation has been undertaken, the lawyer usually must
withdraw from the reputation, unless the lawyer obtains informed consent from the
clients and meets the requirements of (b)
f. Directly Adverse conflicts of interest
i. The lawyer may not take a client that has an action directly against a client
that he is representing in another matter, even if the matters are completely
unrelated
1. except if the lawyer meets the requirements of (b)
ii. a directly adverse conflict may also arise when a lawyer is required to cross-
examine a client who appears as a witness in a lawsuit involving another
client, as when the testimony will be damaging to the client who is
represented in the lawsuit.
iii. Also arises when a lawyer is asked to represent a seller in negotiations with a
buyer represented by the lawyer, not in the same transaction but in another,
unrelated matter.
g. Material Limitation conflicts of interest
i. Even when there is not 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.
h. Responsibilities to Former Clients
i. A lawyers duties of independence and loyalty may be materially limited by
responsibilities to former clients under Rule 1.9
i. Personal Interest Conflicts
i. Ex – when the lawyer is in discussions concerning possible employment with
an opponent of the lawyer’s client
ii. A lawyer may not allow related business interests to affect representation
1. ex – referring clients to an enterprise in which the lawyer has an
undisclosed financial interest (Rule 1.8 lists several of these)
iii. this could also arise when lawyers representing different clients are closely
related by blood or marriage there is a risk that the lawyer’s family
relationship may interfere with his loyalty to his client
1. when lawyers are going against each other and are related
2. this type of conflict is ordinarily not impute to the rest of the lawyers
in the firm
iv. this is also why a lawyer is prohibited from engaging in sex with a client
unless the sexual relationship predates the formation of the client-lawyer
relationship
j. Prohibited Representations
i. Some conflicts are nonwaivable
ii. (b) lists ways in which a conflict is nonwaivable
 1. representation is prohibited if in the circumstances the lawyer cannot
reasonably conclude that he will be able to provide competent and
diligent representation (b)(1)
2. representation is prohibited by law (b)(2)
3. representation prohibited when the clients are directly aligned against
each other in the same litigation or other proceeding before a tribunal
a. this does not include mediation b/c not before a tribunal
k. Informed Consent
i. Each client must be aware of the relevant circumstances and of the material
and reasonably foreseeable ways that the conflict could have adverse effects
on the interests of that client
ii. The informed consent must be confirmed in writing
1. can be a writing executed by the client or one that the lawyer promptly
records and transmits to the client following oral consent
iii. a client may revoke consent at any time
6. Rule 1.8 Conflict of Interest: Current Clients: Specific Rules
a. (a) A lawyer shall not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security, or other interest adverse to a client
unless:
i. 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;
ii. The client is advised in writing of the desireability of seeking and is given a
reasonable opportunity to seek advice of independent legal counsel on the
transaction; and
iii. 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 the in transaction
b. (b) A lawyer shall not use information relating to representation of the client to the
disadvantage of the client unless the client gives informed consent, except as
permitted or required by these rules
c. (c) 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 a substantial gift, unless the lawyer or other recipient
of the gift is related to the client.
i. For purposes of this paragraph, related person include a spouse, child,
grandchild, parent, grandparent or other relative or individual with whom the
lawyer or the client maintains a close, familial relationship
d. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or
negotiate an agreement giving the lawyer literary or media rights to a portrayal or
account based in substantial part on information relating to the representation
i. This outlaws life-story fee contracts
e. (e) A lawyer shall not provide financial assistance to a client in connection with
pending or contemplated litigation, except that:
i. A lawyer may advance court costs and expenses of litigation, the repayment
of which may be contingent on the outcome of the matter; and
 ii. A lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of a client.
f. (f) A lawyer shall not accept compensation for representing a client from one other
than the client unless:
i. The client gives informed consent;
ii. There is no interference with the lawyer’s independence of professional
judgment or with the client-lawyer relationship; and
iii. Information relating to the representation of a client is protected as required
by Rule 1.6
g. (g) A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients, or in a criminal case an
aggregated agreement as to guilty or nolo contendere pleas, unless each client gives
informed consent, in a writing signed by the client.
i. The lawyer’s disclosure shall include the existence and nature of all claims or
pleas involved and of the participation of each person in the settlement.
h. (h) A lawyer shall not:
i. 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
ii. 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 desireability of
seeking and is given reasonable opportunity to seek the advice of independent
legal counsel in connection therewith
i. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except that the lawyer may:
i. Acquire a lien authorized by law to secure the lawyer’s fee or expenses; and
ii. Contract with a client for a reasonable contingent fee in a civil case
j. (j) A lawyer shall not have sexual relations with a client unless a consensual
relationship existed between them when the client-lawyer relationship commenced
k. (k) While lawyers are associated with a firm, a prohibition in the foregoing
paragraphs (a) though (i) that applies to one shall apply to all of them.
l. Business Transactions Between Client and Lawyer
i. (a) applies when a lawyer participated in a business, property or financial
transaction with a client
ii. The requirements of (a) must be met even when the transaction is not closely
related to the subject matter of the representation
iii. This applies, for example, when a lawyer encourages clients to buy title
insurance from his title insurance company.
iv. This does not cover fee agreements, unless the lawyer is receiving something
non-monetary in return for his services
v. So for the lawyer to enter into such a transaction with the client
1. the transaction must be fair to the client and its essential terms must be
communicated to the client in writing in a manner that can be
understood by him
 2. the client must also be advised of the desireability of seeking the
advice on independent counsel and given reasonable opportunity to
obtain such advice
3. the lawyer must obtain the client’s informed consent, in a writing, to
both the essential terms of the transaction and the lawyer’s role
m. Use of Information relating to the representation
i. (b) applies when information relating to the representation is used to benefit
the lawyer or a third party
1. ex – lawyer finds out client is going to buy land to develop it
2. lawyer cannot use info to go buy the land and become the competitor
of the client
ii. The rule does not prohibit uses of this information for uses that do not
disadvantage the client
n. Gift to Lawyers
i. (c) only applies to substantial gifts
ii. This rule does not prohibit a lawyer from accepting a substantial gift from a
client, only from suggesting that a substantial gift be made to the lawyer
iii. There is an exception if the lawyer is related to the client
o. Literary Rights
i. (d) does not prohibit a lawyer representing a client concerning literary
property from agreeing that the lawyer’s fee shall consist of a share in
ownership in the property
1. however, the arrangement must conform with Rule 1.5 and paragraphs
(a) and (i) of this rule
p. Financial Assistance
i. (e) refers mostly to living expenses, loans, etc,
ii. The lawyer can advance court costs and litigation expenses
1. if you advance them, however, put it in the contract and state that the
client is going to pay you back
iii. A lawyer can also pay court costs and litigation expenses of the indigent,
regardless of whether these funds will be repaid
q. Person paying for a lawyer’s services
i. (f) In order for a lawyer to accept money from a third party with regard to the
fees owed to him,
1. the lawyer must determine that there will be no interference with the
lawyer’s independent professional judgment and
2. there is informed consent from the client
r. Aggregate Settlements
i. (g) this looks at the problems of representing multiple clients in a settlement
agreement b/c of the parties differing interests
1. some might want to settle, some may not
ii. in order to represent multiple clients in this context, the lawyer must inform
the clients about all of the material terms of the settlement
s. Limiting Liability and Settling Malpractice Claims
i. (h) Agreements limiting a lawyer’s liability for malpractice are prohibited
unless the client is independently represented in making the agreement
 ii. A lawyer can settle a claim for malpractice, but only after advising the client
in writing of the appropriateness of independent representation and giving the
client reasonable opportunity to find independent counsel
t. Acquiring Proprietary Interest in Litigation
i. (i) lawyers are prohibited from acquiring a proprietary interest in litigation
unless
1. the lawyer has merely acquired a lien to secure payment of fees and
expenses; or
2. the lawyers has entered a contract with a client for a reasonable
contingent fee in a civil case
u. Sexual Relationships
i. (j) a lawyer can not have a sexual relationship with a client unless the
relationship predated the client-attorney relationship
v. Imputation of Prohibitions
i. Conduct prohibited by (a) through (i) applies to all lawyers in the firm

7. Duties to Former Clients

a. There is a continuing duty to former clients – of both confidentiality and conflict of
interest
b. When is there a “substantially related matter”
i. It partly turns on the possibility that confidential information might have
been given to the attorney in relation to the subsequent matter in which
disqualification is sought
ii. Ask whether it could be reasonably said that during the former
representation the attorney might have acquired information related to
the subject matter of the subsequent representation
c. Three step analysis to determine whether there is a disqualifying conflict of interest
i. First make a factual reconstruction of the scope of the prior legal
representation
ii. Second, it must be determined whether it is reasonable to infer that the
confidential info allegedly given would have been given to a lawyer
representing a client in those matters
iii. Thirdly, it must be determined whether that information is relevant to the
issues raised in the litigation pending against the former client

8. Rule 1.9 Duties to Former Clients

a. (a) A lawyer who has formally 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, in writing.
b. (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
i. Whose interests are materially adverse to that person; and
ii. About whom the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter.
 c. (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:
i. 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
ii. Reveal information relating to the representation except as these rules would
permit or require with respect to a client.
d. After termination of the attorney-client privilege, the lawyer has certain continuing
duties with respect to confidentiality and conflicts of interests
i. A lawyer may not represent a client against one of his former clients in the
same or a substantially related matter where the person’s interests are
materially adverse to that of the former clients
1. exception – if the former client gives informed consent in writing
e. Matters are “substantially related” if they involve the same transaction or legal
dispute or if there otherwise is a substantial risk that confidential factual information
as would have normally been obtained in the prior representation would materially
advance the client’s position the subsequent matter
f. Lawyers moving between firms
i. The lawyer is only disqualified from representing the client in (b) if the new
client has a materially adverse interest to that of the old firm’s former client
and the lawyer obtained information protected by Rules 1.6 and 1.9(c)
1. so if the lawyer did not obtain any information, then he or his new firm
is allowed to represent the new client
g. Confidentiality
i. There is a continuing duty to preserve confidentiality of information about a
client formerly represented by the lawyer or any firm for which he is or has
worked.
9. Rule 1.10 Imputation of Conflicts of Interest: General Rule
a. (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 or 1.9, unless the prohibition is based on personal interest of the prohibited
lawyer and does not present a significant risk of materially limiting the
representation of the client by the remaining lawyers in the firm.
b. (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:
i. The matter is the same or substantially related to that in which the formerly
associated lawyer represented the client; and
ii. Any lawyer remaining in the firm has information protected by Rules 1.6 or
1.9(c) that is material to the matter
c. (c) A disqualification prescribed by this rule may be waived by the affected client
under the conditions stated under Rule 1.7
d. (d) The disqualification of lawyers associated in a firm with former or current
government lawyers is governed by Rule 1.11.
e. (a) only applies when the lawyer is still associated with the firm
 i. Conflicts of interests recognized by Rule 1.7 and Rule 1.9 are imputed to the
entire firm
1. the one exception is for personal interest conflicts
a. however, there must not be a significant risk of materially
limiting the representation of the client
f. when the lawyer moves from one firm to another, the situation is governed by Rule
1.9(b) and 1.10(b).
i. (b) allows a firm to represent a person with interests directly adverse to those
of clients represented by a lawyer who formerly associated with the firm.
1. however, if there is someone remaining in the firm that knows
information protected by Rule 1.6 or 1.9(c), then the firm may not
represent the client
ii. However, the law firm may not represent a person with interests adverse to
those of a present client of the firm – b/c it would violate Rule 1.7
g. (c) removes the imputation with the informed consent of the affected or former client
under the conditions stated in Rule 1.7
h. Rule 1.11 governs the situation where a person represented the government before
coming to the private firm
i. If there is a Rule 1.8 conflict, (k) in that rule determines whether the conflict is
imputed to the firm.
10. Rule 1.11 Special conflicts of interests for former and current government officers and
employers
a. If a lawyer is disqualified b/c he was a former gov’t employee and represented a
client in connection with the same matter, this does not necessarily mean that the new
firm he is working for is disqualified from representing the client
i. As long as the disqualified lawyer is properly screened and written notice is
given to the appropriate government agency
11. Rule 1.12 Former Judge, Arbitrator, Mediator, or other third-party neutral
a. Look at rule
12. Rule 1.13 Organization as a client
a. Lawyer hired by an organization represents the organization
b. If the lawyer knows that an employee is doing or intends to do something that will
harm the organization or is illegal, the lawyer tell the highest authority in the
company, as long as he thinks it is reasonably necessary
i. If the highest authority fails to act and the lawyer reasonably believes that
certain substantial injury will result to the organization, the lawyer may reveal
the info relating to the representation, whether or not Rule 1.6 permits

Lawyer Advocacy and Its Limits

1. Advocacy and Moral Responsibility
a. Look at Rule 1.16 (see above)
i. (a) Gives situations where a lawyer is required to withdraw his representation
ii. (b)Also gives situations where the lawyer in his discretion may withdraw from
representation
b. Look at Rule 2.1 (see above)
 i. States that a lawyer should give candid advice to a client and can take into
account moral, ethical, even political consideration in order to be the best
counselor for your client.
2. Litigation and Other Proceedings
a. Rule 3.1 Meritorious Claims and Contentions
i. A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis in law and fact for doing so that is not
frivolous, which includes a good faith argument for an extension,
modification, or reversal of existing law.
1. A lawyer for the defendant in a criminal proceeding, or the respondent
in a proceeding that could result in incarceration, may nevertheless so
defend the proceeding as to require that every element of the case be
established [by prosecution]
ii. The advocate has a duty to use legal procedure for the fullest benefit of his
client’s cause, but he must not abuse legal procedure
iii. A filing of an action or defense is not frivolous merely because the facts have
not been first fully substantiated or because the lawyer expects to develop
vital evidence by discovery
1. an action is not frivolous even though the lawyer believes that the
client’s position ultimately will not prevail
2. however, it is frivolous if the lawyer is unable to either make a good
faith argument on the merits of the action taken or to support the
action taken by a good faith argument for an extension, modification,
or reversal of existing law
b. Rule 3.2 Expediting Litigation
i. A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.
ii. Although a lawyer may properly seek postponement for personal reasons, it is
not proper for a lawyer to routinely fail to expedite litigation solely for the
convenience of advocates
iii. The question is whether a competent lawyer acting in good faith would regard
the course of action as having some substantial purpose other than to delay
c. Rule 3.4 Fairness to Opposing Party and Counsel
i. A lawyer shall not:
1. (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. A lawyer shall not counsel or assist another person to do any
such act;
2. (b) falsify evidence, counsel, or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by law;
3. (c) knowingly disobey an obligation under the rules of a tribunal,
except for an open refusal based on an assertion that no valid
obligation exists;
 4. (d) in pretrial procedure, make a frivolous discovery request or fail to
make a reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
5. (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
6. (f) request a person other than a client to refrain from voluntarily
giving relevant information to another party unless:
a. The person is a relative or an employee or other agent of a
client; and
b. The lawyer reasonably believes that the person’s interests will
not be adversely affected by refraining from giving such
information
ii. This rule is to allow a fair adversarial system
iii. Ex – prohibits a lawyer from destroying or altering discoverable evidence or
falsifying evidence
iv. Rule 37 of the Federal Rules of Civil Procedure allows sanctions against a
party or attorney for failure to disclose pursuant to discovery rules
v. When lawyers come into the possession of the fruits or instrumentalities or
other physical evidence of a crime, they have a duty to turn them over to the
prosecutor
1. however, if the source of the evidence is the client, information
concerning the source is generally treated by the courts as protected by
the attorney-client privilege
d. Rule 3.3 Candor Toward the Tribunal
i. (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.
a. If a lawyer, the lawyer’s 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.
b. A lawyer may refuse to offer evidence, other than the testimony
of the defendant in a criminal matter, that the lawyer
reasonably believes to be false
ii. (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.
iii. (c) The duties stated in (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.
iv. (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.
v. This rule sets forth the special duties of lawyers as officers of the court to
avoid conduct that undermines the integrity of the adjudicative process
vi. Although a lawyer must zealously represent his client, this is qualified by the
duty of candor to the tribunal
1. a lawyer must not allow the tribunal to be misled by false statements
of law or fact or evidence that the lawyer knows to be false
vii. Representations of a lawyer
1. an assertion purporting to be on the lawyer’s own knowledge may be
properly made only when the lawyer knows the assertion is true or
believes it to be true on the basis of a reasonably diligent inquiry
viii. Legal Argument
1. a lawyer must recognizes the existence of pertinent legal authorities
a. as such, the lawyer has a duty to disclose directly adverse
authority in the controlling jurisdiction that has not been
disclosed by the opposing party
ix. Offering Evidence
1. a lawyer must refuse to offer evidence that he knows to be false
2. if a lawyer knows that a client intends to testify falsely, the lawyer
should seek to persuade the client that the evidence should not be
offered
a. if this is ineffective, and the lawyer does not withdraw
representation, the lawyer must refuse to offer the false
evidence.
3. the prohibition against offering false evidence applies only if the
lawyer knows that the evidence is false
a. if the lawyer has a reasonable belief that the evidence is false,
it can still be presented to the trier of fact
b. however, this rule gives the lawyer the option to refuse to offer
evidence that he reasonably believes is false
c. in criminal cases, a lawyer may not refuse to offer testimony of
a client where the lawyer reasonably believes that the
testimony is false, but does not know that the testimony is false
x. Remedial Measures
1. if the lawyer comes to find out about the falsity of evidence or knows
of the falsity of evidence, the lawyer must take reasonable remedial
measures
a. first ask the client to cooperate in withdrawing or correct the
false statements
 b. if the client refuses, it is probably best to withdraw from
representation
c. if withdrawal is not permitted, the lawyer must make such
disclosure to the tribunal that is reasonably necessary to
remedy the situation, even if this requires revealing info
protected by Rule 1.6
2. remedial measures can also be taken if the lawyer knows that a person
intends to engage, is engaging or has engaged in criminal or fraudulent
conduct related to the proceeding
3. after the conclusion of the proceeding, the lawyer’s duty to rectify
false evidence is terminated
xi. Ex parte proceedings
1. since ex parte proceedings are one sided, the lawyer has a duty to
make disclosures of material facts known to the lawyer and that the
lawyer reasonably believes are necessary to make an informed
decision
xii. Withdrawal
1. a lawyer may be required by Rule 1.16(a) to seek permission of the
tribunal to withdraw if the lawyer’s compliance with this Rule’s duty
of candor results in extreme deterioration of the client-lawyer
relationship.
2. also under Rule 1.16(b), where the lawyer may seek permission to
withdraw
e. Rule 3.5 Impartiality and Decorum of the Tribunal
i. A lawyer shall not:
1. seek to influence a judge, juror, or prospective juror or other official
by means prohibited by law;
2. communicate ex parte with such a person during the proceeding
unless authorized to do so by law or court order
3. communicate with a juror or prospective juror after discharge of the
jury if:
a. the communication is prohibited by law or court order; or
b. the juror has made known to the lawyer a desire not to
communicate; or
c. the communication involves misrepresentation, coercion,
duress, or harassment
4. engage in conduct intended to disrupt a tribunal
ii. a lawyer should not communicate ex parte with persons serving in an official
capacity in the proceeding, unless authorized by law or court order
iii. a lawyer is allowed to talk to a juror after they have been discharged
1. the lawyer can do so unless
a. the communication is prohibited by law or court order
b. the juror does not want to talk to the lawyer
c. the communication involves improper conduct
iv. a lawyer also has a duty to refrain from disruptive conduct
f. Rule 3.6 Trial publicity
 i. (a) A lawyer who is participating or has participated in the investigation or
litigation of a matter shall not make an extrajudicial statement that the lawyer
knows or reasonably should know will be disseminated by means of public
communication and will have a substantial likelihood of materially
prejudicing an adjudicate proceeding in the matter
ii. (b) Notwithstanding (a), a lawyer may state:
1. the claim, offense or defense involved and, except when prohibited by
law, the identity of the persons involved;
2. information contained in the public record;
3. that an investigation of a matter is in progress;
4. the scheduling or result of any step in litigation;
5. a request for assistance in obtaining evidence and information
necessary thereto;
6. a warning of danger concerning the behavior of a person involved,
when there is reason to believe there exists the likelihood of
substantial harm to an individual or to the public interest; and
7. in a criminal case, in addition to (1) through (6)
a. the identity, residence, occupation, and family status of the
accused;
b. if the accused has not been apprehended, information
necessary to aid in apprehension of that person;
c. the fact, time and place of arrest; and
d. the identity of investigating and arresting officers or agencies
and the length of the investigation.
iii. (c) notwithstanding (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue
prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s
client.
1. A statement made pursuant to this paragraph shall be limited to such
information is necessary to mitigate the recent adverse publicity.
iv. (d) No lawyer associated in a firm or government agency with a lawyer
subject to (a) shall make a statement prohibited by (a).
v. This rule sets out the basic prohibition against a lawyer making statement that
the lawyer knows or should know will have a substantial likelihood of
materially prejudicing a proceeding.
1. the rule, however, only applies to lawyers that are or have been
involved in the case or their associates
vi. paragraph (b) identifies specific things that are not usually going to present a
substantial likelihood of material prejudice.
1. this list is not exhaustive
vii. There is also an exception when another person (the other party, his lawyer or
a third party) makes a public statement and a reasonable lawyer would believe
a public response was required in order to avoid prejudice to that lawyer’s
client
1. the response must be limited to what is necessary to mitigate the
prejudice created by the previous statements
g. Rule 3.7 Lawyer as a Witness
i. A lawyer shall not act as advocate at a trial the lawyer is likely to be a
necessary witness unless:
1. the testimony relates to an uncontested issue;
2. the testimony relates to the nature and value of legal services
rendered in the case; or
3. disqualification of the lawyer would work substantial hardship on the
client
ii. A lawyer may act as an advocate in which another lawyer in the lawyer’s firm
is likely to be called as a witness unless precluded by Rule 1.7 or Rule 1.9.
iii. A lawyer cannot be an advocate and a necessary witness unless
1. his testimony is about an uncontested issue
2. his testimony relates to the value of his legal fees
3. where disqualification of the lawyer (b/c he is testifying) would work a
substantial hardship on the client
a. this is a balancing test between the hardship on the client and
the confusion of the jury when the lawyer testifies
iv. Another lawyer in the lawyer’s firm may act as a witness as long as there is
not a conflict of interest
v. The lawyer’s testimony could also create a conflict of interest under Rule 1.7,
especially if his testimony conflicts with his client’s testimony
h. Rule 3.8 Special Responsibilities of a Prosecutor
i. The prosecutor in a criminal case shall:
1. refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause;
2. make reasonable efforts to assure that the accused has been advised of
the right to, and the procedure for obtaining, counsel and has been
given reasonable opportunity to obtain counsel;
3. not seek to obtain from an unrepresented accused a waiver of
important pretrial rights, such as right to a preliminary hearing;
4. make timely disclosure to the defense of all evidence of information
known to the prosecutor that tends to negate the guilt of the accused
or mitigates the offense, and, in connection with sentencing, disclose
to the defense and to the tribunal all unprivileged mitigating
information known to the prosecutor, except when the prosecutor is
relieved of this responsibility by a protective order of the tribunal;
5. not subpoena a lawyer on a grand jury or other criminal proceeding
to present evidence about a past or present client unless the
prosecutor reasonably believes:
a. the information sought is not protected from disclosure by any
applicable privilege;
b. the evidence sought is essential to the successful completion of
an ongoing investigation or prosecution; and
c. there is no other feasible alternative to obtain the information;
6. except for statements that are necessary to inform the public of the
nature and extent of the prosecutor’s action and that serve a
 legitimate law enforcement purpose, refrain from making extrajudicial
comments that have a substantial likelihood of heightening public
condemnation of the accused and exercise reasonable case to prevent
investigators, law enforcement personnel, employees or other persons
assisting or associated with the prosecutor in a criminal case from
making an extrajudicial statement that the prosecutor would be
prohibited from making under Rule 3.6 or this Rule
ii. a prosecutor should not attempt to seek waiver of preliminary hearings with a
defendant who is unrepresented
iii. a prosecutor may seek a protective order such that he will not have to disclose
evidence that tends to negate the guilt of the defendant, however he can only
seek this protective order if disclosure of the information could result in
substantial harm to an individual or the public
i. Rule 3.9 Advocate in Nonadjudicative Proceedings
i. A lawyer representing a client before a legislative body or administrative
agency in a nonadjudicative proceeding shall disclose that the appearance is
in a representative capacity and shall conform to the provisions of 3.3(a)-(c),
3.4(a)-(c), and 3.5
ii. A lawyer appearing before such a body must deal with it honestly and in
conformity with the applicable rules of procedure
3. Transactions with those other than the client
a. Don’t make fraudulent misrepresentations to the opposing party
i. Most malpractice policies do not insure against fraudulent acts or omissions or
intentional torts
b. Rule 4.1 Truthfulness in statements to others
i. In the course of representing a client a lawyer shall not knowingly:
1. make a false statement of material fact to a third person; or
2. fail to disclose a material fact to a third person when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a client,
unless disclosure is prohibited by Rule 1.6
ii. A lawyer has a duty to be truthful when dealing with other’s on the client’s
behalf, but has not affirmative duty to disclose relevant facts
1. basically, the lawyer cannot lie or create a misrepresentation
iii. a lawyer also has a duty to disclose a material fact to a third person when the
disclosure is necessary to avoid in assisting a criminal or fraudulent act by the
client
1. unless the disclosure is prohibited by Rule 1.6
iv. How is the second part of this rule different than 1.2(d)
1. 1.2(d) – “attorney may not assist client in committing a fraud”
2. 4.1(b) – “attorney must disclose material fact to avoid assisting a client
in committing fraud, unless the information is confidential”
3. How can these be rationalized if one is never, and one is only if not
confidential
a. Basically, you should just withdraw from the representation
 c. Rule 4.2 Communication with person represented by counsel
i. 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 consent of the other
lawyer or is authorized to do so by law or a court order
ii. This rule applies to communications with any person who is represented by
counsel concerning the matter to which the communication relates
1. even applies when the represented person initiated the communication
2. if this happens, the lawyer must immediately terminate the
communication
iii. the communication is only prohibited if it relates to the matter for which the
client hired the lawyer
d. Rule 4.3 Dealing with Unrepresented persons
i. 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.
1. when the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer’s role in the matter,
the lawyer shall make reasonable efforts to correct the
misunderstanding
2. 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.
ii. The lawyer cannot act like he is disinterested in representing his client
1. a lawyer should typically identify who his client is and explain that the
client has interest opposed to the unrepresented person
e. Rule 4.4 Respect for the Rights of Third Persons
i. In representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or use
methods of obtaining evidence that violate the legal rights of such a person
ii. A lawyer who receives a document relating to the representation of the
lawyer’s client and knows or reasonably should know that the document was
inadvertently sent shall promptly notify the sender
iii. Basically, a lawyer must respect the rights of the opposing party
1. therefore, don’t do anything that is intended to embarrass, delay or
burden a third person
2. or use methods of obtaining evidence that violate the persons legal
rights
iv. when a lawyer receives a document that he knows that he shouldn’t have, he
should immediately notify the sender
4. Business Problems and the Practice of Law
a. These rules try to make sure that everyone follows the rules in the firm
i. This makes it somewhat easier to be the associate who knows that a senior
partner is violating the rules
 ii. Remember 8.3 requires a lawyer to report violations that raise a substantial
question as to the lawyers, honesty, trustworthiness, etc.
b. When you do have to report a violation, hope that you work in a firm
i. Apparently, courts are much more willing to allow you to sue for wrongful
discharge if you are fired for reporting a violation if the rules if you work at a
firm
ii. If you work in house and you report that the corporation is doing something
against the law and then get fired, then courts are usually not willing to
support an action for wrongful discharge
c. Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
i. A partner in a law firm, and a lawyer who individually or together with other
lawyers possesses a comparable managerial authority in a law firm, shall
make reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that all lawyers in the firm conform to the Rules of
Professional Conduct.
ii. A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Rules of
Professional Conduct.
iii. A lawyer shall be responsible for another lawyer’s violation of the Rules of
Professional Conduct if:
1. the lawyer orders or, with knowledge of the specific conduct, ratifies
the conduct involved; or
2. the lawyer is a partner or has comparable managerial authority in the
law firm in which the other lawyer practices, or has direct supervisory
authority over the other lawyer, and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.
iv. Partners and Supervisors in firms must make reasonable efforts to create
internal policies designed to provide assurance that all the lawyers in the firm
will apply with the rules
v. This rule also makes it clear that another lawyer can be held responsible for
the acts of another
1. there are two situations when the lawyer can be held responsible (see
above)
a. when the other lawyer knows of the conduct and ratifies it
b. where a partner or a supervisor knows of the conduct and fails
to take remedial action to avoid or mitigate the consequences
d. Rule 5.2 Responsibilities of a Subordinate Lawyer
i. A lawyer is bound by the Rules of Professional Conduct notwithstanding that
the lawyer acted at the direction of another person
ii. A subordinate lawyer does not violate the Rules of Professional Conduct of
that lawyer acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty.
iii. Just because a subordinate does something at the direction of another that
violates the rules does not mean that he can be held liable
 1. the subordinate must have the knowledge required to render conduct a
violation of the rules
iv. If a supervisory authority reasonably resolves a question about a possible
violation, the subordinate can follow that decision without being worried
about being held liable if that other person was wrong
e. Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
i. With respect to a nonlawyer employed or retained by or associated with a
lawyer
1. a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm
shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that the person’s conduct is
compatible with the professional obligations of the lawyer;
2. a lawyer having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the person’s conduct is
compatible with the professional obligations of the lawyer; and
3. a lawyer shall be responsible for conduct of such person that would be
a violation of the Rules of Professional Conduct if engaged by a
lawyer if:
a. the lawyer orders or, with knowledge of the specific conduct,
ratfies the conduct involved; or
b. the lawyer is a partner or has comparable managerial
authority in the law firm in which the person is employer, or
has direct supervisory authority over the person, and knows of
the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.
ii. Lawyers should take reasonable precautions to make sure that there
secretaries, clerks, etc, abide by the rules
iii. A lawyer can be held responsible for the conduct of his employee if he
1. orders the actual conduct or with knowledge of it ratifies it
2. if a partner or a supervisor, knows of the conduct, and fails to take
remedial action to mitigate or avoid the consequences
5. Fees and Client Property
a. Rule 1.5 Fees
i. (a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount of 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.
ii. (b) The scope of the representation and the basis or rate of the fee and
expenses for which the client will be responsible shall be communicated to the
client, preferably in writing, before or within a reasonable time after
commencing the representation. Except when the lawyer will charge a
regularly represented client on the same basis or rate.
1. Any change in basis or rate of the fee or expense shall be
communicated to the client
iii. (c) A fee may be contingent on the outcome of the matter for which the service
is rendered, except in a matter in which a contingent fee is prohibited by (d)
or other law.
1. A contingent fee agreement shall be in a writing signed by the client
and shall state the method by which the fee is to be determined,
including the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal; litigation and other
expenses to be deducted from the recovery; and whether such
expenses are to be deducted before or after the contingent fee is
calculated.
2. the agreement must clearly notify the client of any expenses for which
the client will be liable whether or not the client is the prevailing
party
3. upon conclusion of a contingent fee matter, the lawyer shall provide
the client with a written statement stating the outcome of the matter
and, if there is recovery, showing the remittance to the client and the
method of its determination
iv. (d) A lawyer shall not enter into an arrangement for, charge, or collect:
1. any fee in a domestic relations matter, the payment or amount of
which is contingent upon the securing of a divorce or upon the amount
of alimony or support, or property settlement in lieu thereof; or
2. a contingent fee for representing a defendant in a criminal case
v. (e) A division of a fee between 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.
vi. A lawyer must charge reasonable fees
1. look at the factors in (a) to determine if the fee was reasonable
vii. If the client is new, you must inform the client of the fee arrangements.
viii. Contingent fees are subject to the reasonableness requirement
ix. A lawyer may accept property for payment of services, but he must still
conform with the requirements of 1.8
1. this could be seen as a business transaction with the client
 x. A lawyer may not take a contingent fee in
1. a domestic relations matter, where the fee is contingent on divorce, the
amount of alimony or property received
2. defense of a criminal defendant
xi. A fee can be split up between lawyers of different firms if the requirements of
(e) are met
1. must be in proportion to the services performed by each lawyer, unless
they decide to split evenly
2. the client must agree to the arrangement in writing
3. the total fees charged must be reasonable
b. Rule 1.15 Safekeeping Property
i. 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 lawyer’s
own property.
1. Funds shall be kept in a separate account maintained in the state
where the lawyer’s office is situated, or elsewhere with the consent of
the client or third person
2. other property shall be identified as such and appropriately
safeguarded
3. Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for the period of 5 years
after termination of the representation.
ii. A lawyer may deposit the lawyer’s 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
iii. 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.
iv. Upon receiving funds or other property in which a client or third person has
an interest, a lawyer shall promptly notify the client or their person.
1. Except as stated in this rule or otherwise permitted by law or
agreement with the client, a lawyer shall promptly deliver to the client
or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding such
property
v. When in the court of representation a lawyer is on possession of property in
which two or more persons (one of whom may be the lawyer) claim interests,
the property shall be kept separate by the lawyer until the dispute is resolve.
The lawyer shall promptly distribute all portions of the property as to which
the interests are not in dispute.
vi. A lawyer should hold property of others with the care required of a
professional fiduciary
1. you must be VERY VERY careful with this whole deal
vii. Main thing is to keep your funds separate from the client’s funds
 1. and do not touch the account until you have earned the money or it can
be dispersed to someone else properly
viii. The lawyer must also keep adequate records of the accounts
1. as well as notify the clients when they receive money that belongs to
the client
ix. When a lawyer receives money that belongs to the client, they should
immediately place it in a client trust account - this account MUST be separate
from the lawyer’s and the firm’s funds
6. Provision of Legal Services
a. Rule 6.1 Voluntary Pro Bono Public Service
i. Every lawyer has a professional responsibility to provide legal services to
those unable to pay.
ii. A lawyer should aspire to render at least (50) hours of pro bono publico legal
services per year. In fulfilling this responsibility, the lawyer should:
1. provide a substantial majority of the (50) hours of legal services
without fee or expectation of fee to:
a. persons of limited means or
b. charitable, religious, civic, community, governmental and
educational organizations in matters that are designated
primarily to address the needs of persons of limited means;
and
2. provide any additional services through:
a. delivery of legal services at no fee or substantially reduced fee
to individuals, groups or organizations seeking to secure or
protect civil rights, civil liberties or public rights, or
charitable, religious, civic, community, governmental and
educational purposes, where the payment of standard legal
fees would significantly deplete the organization’s economic
resources or would be otherwise inappropriate
b. delivery of legal services at a substantially reduced fee to
persons of limited means; or
c. participation in activities for improving the law, the legal
system, or the legal profession.
3. In addition, a lawyer should voluntarily contribute financial support
to organizations that provide legal services to persons of limited
means.
iii. This rule recommends that a lawyer provide at least 50 hours of pro bono
services every year
1. lawyers are recommended to give this 50 hours to poor persons or
charitable organizations for no fees
2. if you don’t do all the 50 hours for free, the rules recommend that you
do the remainder for a reduced fee
3. if there are times where it is not feasible for a lawyer to participate in
pro bono services, he can discharge is pro bono responsibility by
providing financial support to organizations that provide legal services
to poor persons
 iv. the comments provide that this Rule is not intended to be enforce through the
disciplinary process
b. Rule 6.2 Accepting Appointments
i. A lawyer shall not seek to avoid appointment by a tribunal to represent a
person except for good cause, such as:
1. representing the client is likely to result in violation of the Rules of
Professional Conduct or other law;
2. representing the client is likely to result in an unreasonable financial
burden on the lawyer; or
3. the client or the cause is so repugnant to the lawyer as to be likely to
impair the client-lawyer relationship or the lawyer’s ability to
represent the client
ii. A lawyer must have good cause in order to decline a court appointed client
iii. A lawyer does not have to accept a client whose character or cause the lawyer
finds repugnant
iv. However, a lawyer has a responsibility to do pro bono work under Rule 6.1,
which may include accepting unpopular or indigent clients
c. Rule 6.3 Membership in Legal Services Organization
i. An attorney can be a member of a legal services organization
1. however, a lawyer shall not participate in the organization if
a. it would be incompatible with the lawyer’s obligations to a
client under Rule 1.7; or
b. where the action could have a material adverse effect on the
representation of a client of the organization whose interests
are adverse to a client of the lawyer
d. Rule 6.4 Law Reform Activities Affecting Client Interests
i. A lawyer may be a member of an organization involved in reform of the law
even if the reform may affect the interests of a client of the lawyer
1. If the lawyer knows that the interests of a client may be materially
benefited by a decision in which the lawyer participates, the lawyer
shall disclose the fact, but need not identify the client.
e. Mandatory Pro Bono
i. Arguments for
1. it is unfair to make the lawyers currently shouldering the burden to
continue alone
2. lawyers would respond to the compulsory service not as lawyers, but
as citizens – there may be some initial resentment, but most people
will place their personal attitudes aside
3. there is a HUGE need for legal services for the indigent, especially
regarding family law matters
4. gives lawyers the chance to represent the lower class and gain insight
into the problems of the poor
ii. Arguments Against
1. it is a violation of individual liberty to compel a lawyer to giver her
time to particular activities
2. compelling pro bono work spoils the basic choice we should all make
 a. these choices embody what it is to be a good lawyer
3. mandatory pro bono requirements tend to make a significant economic
impact to smaller, economically marginal firms
4. will result in higher fees for clients because the lawyers will pass on
the costs of the pro bono work to its clients
iii. Alternative Suggestion
1. increase in public funding to organizations who provide basic legal
services to the poor
f. Rule 5.4 Professional Independence of a Lawyer
i. A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
1. an agreement by a lawyer with the lawyer’s firm, partner, or associate
may provide for the payment of money, over a reasonable period of
time after the lawyer’s death, to the lawyer’s estate or to one or more
specified persons;
2. a lawyer who purchases the practice of a deceased, disabled, or
disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay
to the estate or other representative o the lawyer the agreed-upon
purchase price;
3. a lawyer or law firm may include nonlawyer employees in a
compensation or retirement plan, even though the plan is based in
whole or in part in a profit-sharing arrangement; and
4. a lawyer may share court awarded legal fees with a nonprofit
organization that employed, retained, or recommended employment of
the lawyer in the matter.
ii. A lawyer shall not form a partnership with a nonlawyer if any of the activities
of the partnership consist of the practice of law.
iii. A lawyer shall not permit a person who recommends, employs, or pays the
lawyer to render legal services for another to direct or regulate the lawyer’s
professional judgment in rendering such legal services.
iv. A lawyer shall not practice with or in the form of a professional corporation
or association authorized to practice law for a profit, if:
1. a nonlawyer owns any interest therein, except that a fiduciary
representative of the estate of a lawyer may hold the stock or interest
of the lawyer for a reasonable time during administration;
2. a nonlawyer in a corporate director or officer thereof or occupies the
position of similar responsibility in any form of association other than
a corporation; or
3. a nonlawyer has the right to direct or control the professional
judgment of a lawyer.
v. These rules on sharing fees are to protect a lawyer’s professional judgment
g. Rule 5.5 Unauthorized Practice of Law; Multijurisdictional practice of law
i. (a) A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in
doing so
ii. (b) A lawyer who is not admitted to practice in this jurisdiction shall not:
 1. except as authorized by these Rules, establish an office or other
systematic and continuous presence in this jurisdiction for the practice
of law; or
2. hold out to the public or otherwise represent that the lawyer is
admitted to practice law in this jurisdiction
iii. (c) A lawyer admitted in another US jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction that:
1. are undertaken in association with a lawyer who is admitted to
practice in this jurisdiction and who actively participates in the
matter;
2. are in or reasonably related to a pending or potential proceeding
before a tribunal in this or another jurisdiction, if the lawyer, or a
person the lawyer is assisting, is authorized by law or order to appear
in such proceeding or reasonable expects to be so authorized;
3. are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or
another jurisdiction, if the services arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is
admitted to practice and are not services for which the forum requires
pro hac vice admission; or
4. are not within paragraphs (c)(2) or (c)(3) and arise out of or are
reasonably related to the lawyer’s practice in a jurisdiction in which
the lawyer is admitted to practice.
iv. (d) A lawyer admitted in another US jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services in this
jurisdiction that
1. are provided to the lawyer’s employer or its organizational affiliates
and are not services for which the forum requires pro hac vice
admission; or
2. are serviced that the lawyer is authorized by federal or other law to
provide in this jurisdiction.
v. A lawyer can only practice in a jurisdiction in which the lawyer is authorized
to practice
1. this is violated if the lawyer established an office or has systematic and
continuous presence in a jurisdiction for the practice of law, if he is not
authorized to practice law in this jurisdiction
2. or if the lawyer represents that he is authorized to practice law in a
jurisdiction in which he really is not
vi. A lawyer may provide temporary services in a jurisdiction in which he is not
authorized to practice
1. if he associates with another lawyer or gets permission by the courts
(pro hac vice admission)
2. may conduct services as part of a pending litigation such as interviews
 3. may provide temporary services if related to a pending arbitration,
mediation, etc. if the serviced arise out of the lawyer’s practice in the
other jurisdiction
vii. A lawyer may provide permanent legal services in a jurisdiction where he is
not authorized if
1. if the lawyer is a salaried employee of her only client
a. in house corporate lawyer
2. if federal law or other statute provides that the lawyer may provide
services
viii. Each state will have their own definition of what it means to practice law
1. PMBR defines practice of law as activities
a. Involving legal knowledge and skill
b. Which constitute advice concerning binding legal rights
c. Traditionally performed by lawyers
h. Rule 5.6 Restrictions on Right to Practice
i. A lawyer shall not participate in offering or making:
1. a partnership, shareholders, operating, employment, or other similar
type agreement that restricts the right of a lawyer to practice after
termination of the relationship, except an agreement concerning
benefits upon retirement; or
2. an agreement in which a restriction on the lawyer’s right to practice is
part of the settlement of a client controversy.
ii. Non-compete clauses in contracts violates this rule
iii. Also, a lawyer cannot agree not to represent other persons in connection with
settling a claim on behalf of a client
7. Advertising and Solicitation
a. Bates v. State Bar of Arizona
i. Lawyer was barred from advertising his prices for his services
ii. SC held that this was protected commercial speech
iii. Held that ads which are truthful and not misleading were protected by the first
amendment
1. would have to apply central Hudson to determine if it could be
regulated
b. Rule 7.1 Communications Concerning a Lawyer’s Services
i. A lawyer shall not make a false or misleading communication about the
lawyer or the lawyer’s services.
ii. A communication is false or misleading if it contains a material
representation of fact or law, or omits facts necessary to make the statement
considered as a whole not materially misleading.
iii. An advertisement about a lawyer’s services must not be misleading
1. a statement is misleading if it contains a material misrepresentation of
fact or law or omits a fact necessary to make the statement considered
as a whole not materially misleading
iv. A truthful statement is misleading if there is a substantial likelihood that it
will lead a reasonable person to formulate a specific conclusion about the
 lawyer of the lawyer’s services for which there is no reasonable factual
foundation.
1. ex – advertise about how you won a client so much
a. it may be truthful, but it is also misleading if a reasonable
person would assume that the same results would be reached
for them
c. Rule 7.2 Advertising
i. Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise
services through written, recorded or electronic communication, including
public media,
ii. A lawyer shall not give anything of value to a person for recommending the
lawyer’s services except that a lawyer may
1. pay reasonable costs of advertisements or communications permitted
by this Rule;
2. pay the usual charges of a legal services plan or a not-for-profit a
qualified lawyer referral service program.
a. A qualified lawyer referral service is a lawyer referral service
that has been approved by an appropriate regulatory authority
3. pay for a law practice in accordance with Rule 1.17; and
4. refer clients to another lawyer or a nonlawyer professional pursuant
to an agreement not otherwise prohibited under these Rules that
provides for the other person to refer clients or customers to the other
lawyer, if
a. the reciprocal referral agreement is not exclusive, and
b. the client is informed of the existence and the nature of the
agreement
5. Any communication made pursuant to this rule shall include the name
and office address of at least one lawyer or law firm responsible for
its content.
iii. Lawyers may advertise using written or electronic communication
iv. G/R – Lawyers are not permitted to pay others for channeling professional
work
1. Exceptions
a. A lawyer may pay the costs of advertising
b. A lawyer may pay the fees required as part of a lawyer referral
service
c. A lawyer may agree to refer clients to another lawyer in return
for that person to refer clients to the other lawyer
d. Rule 7.4 Communication of Fields of Practice and Specialization
i. A lawyer may communicate the fact that the lawyer does or does not practice
in particular fields of law
ii. A lawyer is admitted to engage in patent practice before the United States
Patent and Trademark Office may use the designation “Patent Attorney” or a
substantially similar designation.
iii. A lawyer engaged in Admiralty practice may use the designation
“Admiralty”, “Proctor of Admiralty”, or a substantially similar designation
 iv. A lawyer shall not state or imply that a lawyer is certified as a specialist in a
particular field of law, unless:
1. the lawyer has been certified as a specialist by an organization that
has been approved by an appropriate state authority or that has been
accredited by the American Bar Association; and
2. the name of the certifying organization is clearly identified in the
communication
v. A lawyer may indicate what type of practice that he does or does not do
e. Rule 7.5 Firm Names and Letterheads
i. A lawyer shall not use a firm name, letterhead, or other professional
designation that violates Rule 7.1.
1. A trade name may be used by a lawyer in private practice if it does not
imply a connection with a government agency or with a public or
charitable or charitable legal services organization and is not
otherwise in violation of Rule 7.1
ii. A law firm with offices in more than one jurisdiction may use the same name
or other professional designation in each jurisdiction, but identification of the
lawyers in an office of the firm shall indicate the jurisdictional limitations on
those not licensed to practice in the jurisdiction in which the office is located.
iii. The name of a lawyer holding public office shall not be used in the name of a
law firm, or in communications on its behalf, during any substantial period in
which the lawyer is not actively and regularly practicing with the firm
iv. Lawyers may state or imply that they practice in a partnership or other
organization only when that is the fact.
v. Trade names in the law practice are acceptable as long as they are not
misleading
f. Ohralik v. Ohio State Bar Association
i. SC held that a state could prohibit a lawyer from making face-to-face
solicitations for a profit
ii. In person solicitations can often be coercive and pressuring
1. they also give the prospective client no time to make an informed
decision
g. In re primus
i. SC held that person to person solicitations by a lawyer not for pecuniary gain
were protected by the first amendment
h. Rule 7.3 Direct Contact with Prospective Clients
i. (a) A lawyer shall not by in-person, live telephone, or real time electronic
contact solicit professional employment from a prospective client when a
significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain,
unless the person contacted:
1. is a lawyer; or
2. has a family, close personal, or prior professional relationship with
the lawyer
ii. (b) A lawyer shall not solicit professional employment from a prospective
client by written, recorded, or electronic communication or by in-person,
telephone, or real-time electronic contact even when not otherwise prohibited
by (a),if:
1. the prospective client has made known to the lawyer a desire not to be
solicited by the lawyer; or
2. \the solicitation involves coercion, duress, or harassment