PR OUTLINE
I. Competence
a. 1.1: Competence- a lawyer shall provide competent representation to a client
i. Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation
b. 2.1 Lawyer as advisor- In representing a client, a lawyer shall exercise
independent professional judgement and render candid advice
i. In rendering advice, a lawyer may refer not only to law but to other
considerations such a moral, economic, social and political factors, that
may be relevant to the client’s situation
c. 5.4 Professional Independencei. A lawyer or law firm shall not share legal fees with a nonlawyer
Third party or non-lawyer cannot direct or regulate a lawyer’s professional judgment
No giving legal fees/shares to non-lawyers (except to estate beneficiaries after sale of
practice, temporarily to estate administrator, to non-profit referrer, or to firm employee as
part of regular compensation or retirement plan)
No practice of law in partnerships or corporations with non-lawyers as partners,
shareholders, or directors (except for temporary estate administrator)
-
A lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement
NOTE: a lawyer CAN along with non-lawyers be on the board of or own a
company whose business is not the practice of law
II. Diligence
a. 1.3- Diligence: a lawyer shall act with reasonable diligence and promptness in
representing a client
III. Care
a. 1.15- safekeeping property – a lawyer shall hold property of clients or third party
that is in the lawyer’s possession in connection with a representation separate
from the lawyer’s own property
i. Do not co-mingle the funds: must be kept in separate account
1. May deposit own funds in client trust for bank service charges
ii. Retrieve as EARNED
iii. Any dispute: take what is settled and leave the disputed amount in
separate account until settled
b. 1.17 selling a law practice –
IV. Confidentiality
a. confidentiality
i. Ethical duties : 1.6
1. Lawyer CAN’T reveal information relating to client’s
representation unless (1) informed consent; (2) disclosure
impliedly authorized; (3) disclosure permitted by (b) or required
by (c) below. STRICT rule unless fits an exception
2. Lawyer MAY reveal information to:
a. Prevent client from committing a crime;
b. Prevent client from committing a fraud reasonably certain
to result in substantial injury to another’s finances or
property in which the client used or is using the lawyer’s
services
c. Prevent, mitigate, or rectify substantial injury to another’s
financial interest or property reasonably certain to result
or has resulted from client’s crime or fraud which used
lawyer’s services;
d. Obtain legal advice about compliance with the Rules;
e. Establish a claim or defense for the lawyer in a controversy
with the client (i.e. collect fee, ARDC complaint); or
f. Lawyer SHALL reveal information relating to the
representation to the extent reasonably necessary to
prevent reasonably certain death or substantial bodily
harm. ABA SAYS MAY = THIS IS A DIFFERENCE.
i. Only 1 state out of 50 has changed this rule to
include unjustified incarceration
ii. Attorney Client Privilege
1. Client can object to the disclosure in court of communications
made between client and lawyer in confidence in course of
seeking legal advice
2. Waiver: client reveals information = privilege lost
a. Lawyer accidentally reveals info = notify the lawyer and try
to law back ( rule 4.4.b)
iii. Work Product Doctrine
1. Material is immune from discovery if it is prepared by a lawyer in
anticipation of litigation
a. Can be tangible material or intangible / oral equivalent
b. Can consist of mental impressions of the lawyer – opinion
word product
2. BEWARE: WP does not protect “underlying facts “of the world
a. “substantial need” (cannot be found otherwise) may
require disclosure of ordinary work product
b. Extraordinary circumstances may require disclosure of
opinion work product – very unlikely
b. 1.13( c) – reporting up and out – WE NEED TO FORMAT THESE EXCEPTIONS
BETTER
i. Except as provided in paragraph (d), if
1. despite the lawyer's efforts in accordance with paragraph (b)
the highest authority that can act on behalf of the organization
insists upon or fails to address in a timely and appropriate
manner an action, or a refusal to act, that is clearly a violation
of law, and
2. the lawyer reasonably believes that the violation is reasonably
certain to result in substantial injury to the organization, then
the lawyer may reveal information relating to the
representation whether or not Rule 1.6 permits such
disclosure, but only if and to the extent the lawyer reasonably
believes necessary to prevent substantial injury to the
organization.
c. 1.17 (c ) – selling a law practice
d. 1.18(b) – duties to prospective client
i. Even when no client-lawyer relationship ensues, a lawyer who has
learned information from a prospective client shall not use or reveal that
information, except as Rule 1.9 would permit with respect to information
of a former client.
V. Candor
a. 3.3 – candor to tribunal
i. An attorney must tell the court of directly adverse legal authority from
CONTROLLING JURISDICITON, even if the other side has not disclosed it
1. Two cases mere dicta: IF PURE DICTA, do not need to reveal as it
is not DIRECTLY ADVERSE, but be very very careful ( is this true
that its merely dicta, no majority has adopted my opponents
position, a dissenting opinion etc)
2. Two new cases with analogy to the case: MUST REVEAL under
3.3(a)(2) directly adverse, but are they from the controlling
jurisdiction ( state, courts, and federal circuit)
ii. HAVE TO REVEAL ALL CONTRARY LAW – but do not have to reveal all
contrary facts unless and until the opposite side makes a valid discovery
request
iii. “litigation hold” – turn off automatic deletion system (all relevant 3.4(a))
so it depends
1. Even without litigation hold from the other side you cannot delete
information or potential that will likely be material to the lawsuit,
lawyer should tell client to STOP deleting things as well.
a. Lying witness: MUST correct (3.3 b)
b. Client with lost criminal record: depends – is the court
relying on you? OR did it do all the work itself or
investigate your clients criminal record
b. 4.1 – truthfulness in statements to others
i. In the course of representing a client a lawyer shall not knowingly:
1. Make a false statement of material fact of law to a third person or
2. Fail to disclose a material fact to a third person when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by duty of confidentiality
VI. Communication
a. 1.2 – scope of authority
o
o
o


a lawyer shall abide by a client's decisions concerning the objectives of representation and,
as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to
carry out the representation.
A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good
faith effort to determine the validity, scope, meaning or application of the law.
 The lawyer's duty to act with reasonable diligence does not require the use of
offensive tactics or preclude the treating of all persons involved in the legal
process with courtesy and respect.
Exceptions;
o Lawyer makes decisions if client gives prior authority
o Lawyers makes trial advocacy decisions
o Lawyer can act reasonably in emergencies
-lawyer merely discusses and guides decisions but must ultimately abide by
clients choice.
o Be there a fundamental disagreement about the representation strategy
may BE GROUNDS FOR WITHDRAWL
-
b. 1.4- communications
A lawyer shall:
-
Promptly inform the client of any decision or circumstance with respect to which
the client's informed consent
-
Reasonably consult with the client about the means by which the client's objectives are to be
accomplished;
-
-
Keep the client reasonably informed about the status of the matter
promptly comply with reasonable requests for information, consult with the client about any
relevant limitation on the lawyer's conduct when the lawyer knows that the client expects
assistance not permitted by the Rules
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation
i. California Version is the Same Plus This
-
-
-
-
A lawyer may delay transmission of information to a client if the lawyer reasonably believes*
that the client would be likely to react in a way that may cause imminent harm to the client or
others.
A lawyer’s obligation under this rule to provide information and documents is subject to any
applicable protective order, non-disclosure agreement, or limitation under statutory or
decisional law.
A lawyer shall promptly communicate to the lawyer’s client:
o all terms and conditions of a proposed plea bargain or other dispositive offer made to
the client in a criminal matter; and
o all amounts, terms, and conditions of any written* offer of settlement made to the
client in all other matters.
An oral offer of settlement made to the client in a civil matter must also be communicated if it is
a “significant development” under rule 1.4.
VII. Fairness
a. 1.5- fees
i. A fee split between lawyers not at the same firm is permitted ONLY if:
1. The lawyers share responsibility for the case and split the fee
proportionally
2. The client agrees in writing
3. The total fee is reasonable ( e.x. the fee total is not increased by
the split)
ii. CA rule 5.1- shall not divide a fee for legal services unless:
1. The lawyers enter into a written agreement to divide the fee
2. The client consented in writing * either at the time the lawyer
enters into the agreement to divide the fee or as soon thereafter
as reasonably practicable, after a full written disclosure to the
client:
a. The fact that a division of fees will be
b. The identity of the lawyers or law firms that are parties to
the division
c. And the terms of the division
3. And the total fee charged by all lawyers is not increased solely by
reason of the agreement to divide fees
b. 1.17- selling a law practice
c. 1.18 – duties to prospective client
i. Prospective client is someone “who consults with lawyer about possibility
of forming a client- lawyer relationship with respect to a matter
1. Response to lawyer’s invitation or request for information about a
specific representation ( chat- room, matter specific advertising
without warnings)
ii. No a prospective client: MERE unilateral response to “general” lawyer
advertising with warnnings
1. Tony soprano rule: cannot meet for the purpose of disqualifying
lawyer
iii. Duties to prospective clients: conflicts
d. 2.3- evaluations for third parties
i. A lawyer A lawyer may provide an evaluation of a matter affecting a
client for the use of someone other than the client if the lawyer
reasonably believes that making the evaluation is compatible with other
aspects of the lawyer's relationship with the client.
ii. When the lawyer knows or reasonably should know that the evaluation is
likely to affect the client's interests materially and adversely, the lawyer
shall not provide the evaluation unless the client gives informed consent.
iii. Except as disclosure is authorized in connection with a report of an
evaluation, information relating to the evaluation is otherwise protected
by Rule 1.6.
e. 2.4- lawyer as third- party neutral
i. A lawyer serves as a third party neutral when the lawyers assists two or
more persons who are not clients of the lawyer to reach a resolution of a
dispute or other matters that has arisen between them
f. 3.1 – meritorious claims
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. 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.
g. 3.2 – expediting litigation
i. A lawyer shall make reasonable efforts to expediate litigation consistent
with the interests of the client
h. 3.4 – fairness to opposing party
i. Lawyer cannot unlawfully obstruct or falsify evidence
ii. Lawyer cannot make witnesses available
iii. if the unrepresented person is an employee, relative or agent of the
client the attorney can request the person not to talk to the other side, if
it will not adversely affect the persons interests
i.
j.
4.2 – represented persons
i. a lawyer cannot talk to a represented person about a matter without
permission of the persons lawyer
4.3 – unrepresented persons
i. a lawyer can talk about a matter to an unrepresented person, but there
are limits to what you can say
1. lawyer cannot pretend to be disinterested
2. lawyer cannot let persons misunderstanding about the lawyers
role go uncorrected
3. lawyer cannot give person legal advice ( besides go get a lawyer) if
lawyer sees possible conflict with her own client interest
ii. always explain who you represent and ask if they wish to continue
speaking to you
1. if they say no, get a subpoena and do not HARASASS
2. can tell them that the person does not need to talk to the other
side, the same way they don’t have to talk to you.
3. If party is an employee, relative, or agent of client lawyer can
request the person not to talk to the other side if it will not
adversely affect the person’s interests.
k. 4.4 respecting third persons
i. a lawyer cannot harass a third party or violate law to get evidence from
third party
1. If you get sent a document by accident, must notify the sender
promptly
VIII. Conflicts/ Loyalty
CONFLICTS: underlying principle – lawyer has an equal duty of loyalty to all clients
 Step 1: which kind of conflict does this raise?
o Current clients – 1.7a
o Client and lawyer – 1.8
o Former clients 1.9
o Imputed to a firm- 1.10
o Prospective clients – 1.18
o Legal services program- 6.5
 Step 2: if current client conflict, do the current clients have a
concurrent conflict of interest( interests are directly adverse OR the
there is a significant risk that represntaion of one client will be
materially limited by lawyers responsibilities to the other client
o Yes- 1.7(b)
o No- may represent both
 Step 3: May the lawyer still represent the conflicting clients?
o Yes only if lawyer reasonable believes can be competent and
diligent with both
o Not prohibited by law
o Each client gives informed written consent
o Clients do not assert claims against each other in the same
proceeding
a. 1.7 – current client conflicts
i. Rule 1.7(a) concurrent conflict of interest exists if directly adverse and
significant risk that representation will be materially limited by
competing responsibilities to clients
ii. Rule 1.7 (b): represents both if lawyer reasonable believes can be
competent and diligent in representing both
1. Allowed by law
2. No party asserts claim against the other in same litigation
3. Informed written consent
b. 1.8 – conflict with lawyers interests
c. 1.9 – former client conflicts
i. lawyer shall not represent a client against a former client in the same or
substantially related matter
1. Former client can give informed, written consent if the matters
are substantially related
2. Substantially related matters?- rule 1.9 comment 2/3
a. Substantial risk that lawyer would have obtained
confidential information in the old matter that can be used
against the former client in the new matter?
b. The lawyer was so involved in the former matter that the
subsequent representation can be justly regarded as a
changing of sides
3. The playbook- comment 3
a. Generally known background knowledge of a clients
personalities and policies ( the playbook) is not
confidential for the purposes of disqualifying lawyers
d. 1.10 – imputation of conflicts ( if lawyer has a conflict, entire firm is imputed
with the conflict
i. Maintain the regular A/C relationship as far as reasonably possible
ii. If lawyer reasonably believes client cannot act for herself, the lawyer may
take reasonable steps to protect the clients interests, including seeking a
guardian
iii. Lawyer may reveal confidential info ( including mental state) to take
protective action, to extent reasonably necessary
e. 1.11 – government lawyer conflicts
i. A former government lawyer is subject to rule 1.9) c) and cannot
represent a client in a matter in which the lawyer personally and
substantially participated while in the government, unless the
government agency gives informed written consent
1. It doesn’t matter what side the lawyer later is on, helping or
hurting the former person in the matter- it’s a lifetime ban on
working on the specific matter in any capacity
f. Rule 1.12 1.12- judge and arbitrator conflicts – DO WE NEED TO KNOW THIS??
i. a lawyer shall not represent anyone in connection with a
matter in which the lawyer participated personally and
substantially as a judge or other adjudicative officer or law
clerk to such a person or as an arbitrator, mediator or other
third-party neutral, unless all parties to the proceeding give
informed consent, confirmed in writing.
ii. If a lawyer is disqualified by ^, no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue
representation in the matter unless:
1. the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the
fee therefrom; and
2. written notice is promptly given to the parties and any
appropriate tribunal to enable them to ascertain compliance
with the provisions of this Rule.
g. 1.13 – organizational client – YOU ARE THE LAWYER FOR THE ENTITY, and its
best interests ( not the officers, directors, employees)
i. if you encounter someone you reasonable know has interests adverse to
the entity, you must inform that person of the indemnity
ii. 1.13 ANALYSIS
1. Are violations ones that might cause substantial injury to the
entity?
a. If it’s a innocent misunderstanding and acceptance of
lawyers advice- don’t need to report up ( not necessary for
best interest of the entity)
2. If the violations are serious enough, and if not an emergency,
inform constituents of your duty to the entity and try to change
the constituents mind
a. If an emergency, referral to highest authority may be
necessary without conferring with the constituent
3. If unsuccessful, report as high up the ladder as you need to under
the applicable law ( likely the board of directors)
4. If stonewalled despite best efforts, lawyers may reveal
confidential information reasonably necessary to protect entity
from incurring substantial injury from clear violation of law
a. CANNOT reveal information related to defense of alleged
violation
5. If lawyer fired or withdraws because of actions, inform highest
authority ( best practice is to document everything )
h. 1.14 – duties to client with diminished capacity
i. Maintain the regular A/C relationship as far as reasonable possible
ii. If a lawyer reasonably believes client cannot act for herself the lawyer
make take reasonable steps to protect the clients interests, including
seeking a guardian
iii. Lawyer may reveal confidential info (including mental state) to take
protective action, to extent reasonably necessary
i. 1.16 – withdrawing from representation
i. Shall withdraw
1. Representation will result in violations of rules of law
2. Physical or mental condition materially impairs ability to
represent client
3. Lawyer is fired
a. Client can fire lawyer for any reason (comments 4-6)
i. Possible limits: appointed counsel and diminished
capacity
ii. May withdraw
1. If withdrawal can be accomplished without material adverse
effects on clients interests
2. Client persists in course of action involving lawyer’s services that
lawyer reasonably believes is criminal or fraudulent
3. Client has used lawyers services for crime or fraud
4. Client insists on action that lawyer considers prepugnant or with
which lawyer has fundamental disagreement
5. Client fails to fulfill obligation to lawyer and has been given
reasoble warning lawyer will withdraw
6. Unreasonable financial burden on lawyer or fclient unreasonably
difficult
7. Other good cause
iii. To withdraw, lawyer MUST
1. Comply with any law requiring surrender of papers and property
2. Give notice/permission to any tribunal
a. Tribunal can order to you to stay in case
iv. Upon termination, lawyer must still protect clients interests
1. Give reasonable notice to client of withdrawl
2. Allow client time to hire new lawyer
3. Refund un earned fees
4. Can keep copy of file if permitted by law
j. 1.17 – selling a law practice and client matters
k. 1.18 – duties to prospective client – SEE ABOVE
l. 2.3- evaluation for use by third persons – SEE ABOVE
m. 2.4 – lawyer as third party neutral
i. A lawyer serves as a third-party neutral when the lawyer assists two or
more persons who are not clients of the lawyer to reach a resolution of a
dispute or other matter that has arisen between them
1. Service as a third-party neutral may include service as an
arbitrator, a mediator, or in such other capacity as will enable the
lawyer to assist the parties to resolve the matter
ii. A lawyer serving as a third party neutral shall inform unrepresented
parties that the lawyer is not representing them
1. When the lawyer knows or reasonably should known that a party
does not understand the lawyer’s role in the matter, the lawyer
shall explain the difference between the lawyer’s role as a thirdparty neutral and a lawyer’s role as on who represents a client
2. Arbitrators lawyer must inform parties: neither side is a client/
explain role  no legal advice to a party
a. A/C privilege does not apply (some arbitration codes
require confidentiality)
3. Arbitrator lawyer cannot later represent a party in the same
matter absent informed written consent of both parties
a. Attorneys in arbitrator lawyer’s firm cannot later
represent a party in the same matter absent timely screen
n. 6.3 – legal services organization
i. A lawyer serve as a directors, officer, or member of a legal services
organization, apart from the law firm in which the lawyer practices,
notwithstanding that the organization serves persons having interests
adverse to a client of the lawyer
ii. The lawyer shall not knowingly participate in a decision or action of the
organization
1. If participating in the decision or action would be incompatible
with the lawyer’s obligations to a client under rule 1.7 OR
2. Where the decision or action could have material adverse effect
on the representation of a client of the organization whose
interest are adverse to a client of the lawyer
iii. An officer or a member of such organization does not thereby have a
client- lawyer relationship with persons served by the organization
1. However, there is potential conflict between the interests of such
persons and the interest of the lawyers clients
o. 6.4 – law reform activities
i. A lawyer save serve as director, officer, or member or an organization
involved in reform of the law or its administration notwithstanding that
the reform may affect the interests of a client of the lawyer
ii. When the lawyer knows that the interests of a client may be materially
benefitted by the a decision in which the lawyer participates, the lawyer
shall disclose that fact but need not identify the client
iii. Generally do not have a client-lawyer relationship with the organization
iv. In determining the nature and scope of participation in such activities, a
lawyer should be mindful of obligations to clients under other rules
particularly rule 1.7 ( conflict of interests)
v. A lawyer is professionally obligated to protect the integrity of the
program by making an appropriate disclosure within the organization
when the lawyer knows a private client might be materially benefitted
p. 6.5- non-profit legal programs
i. Knowledge
1. In these programs, such as legal-advice hotlines, advice-only
clinics, or pro se counseling programs, a client- lawyer relationship
is established, but there is no expectation that the lawyer’s
representation of the client will continue beyond the limited
consultation
2. Not feasible for a lawyer to systematically screen for conflicts of
interest generally required before undertaking a representation
ii. Screening
1. A lawyer’s participation in a short term limited legal services
program doesn’t preclude the lawyer’s firm from undertaking or
continuing the representation of a client with interests adverse to
a client being represented under the program auspices
2. Nor will the personal disqualification of a lawyer participating in
the program be imputed to other lawyers participating in the
program
iii. On going representation
1. If after commencing a short-term limited representation in
accordance with this rule, a lawyer undertakes to represent the
client in a matter on an ongoing bases, rules 1.7, 1.9(a), and 1.10
becomes applicable
IX. Public Professionalism
a. 3.6- trial publicity
i. No extrajudicial statements that lawyer reasonably knows will be
disseminated and will have substantial likelihood of materially prejudicing
proceeding
1. CAN STATE:
a. Claim and defense
b. Public record ( so you can read the complaint)
c. Investigation is in progress
d. Scheduling or results of step in litigation
e. Request for assistance for public/ warning of danger
f. In criminal cases
i. Identity ,residence, occupation, family status of
accused
ii. Information to help apprehension
iii. Fact time and place of arrest
iv. Identity of investigating officer
v. Reasonable MITIGATION of negative publicity. If
prosecutor, CANNOT raise public condemnation of
accused
b. 3.9- lawyer in front of non adjudicative body
i. A lawyer representing a client before a legislative body or administrative
agency in a non adjudicative proceeding shall disclose that the
appearance is in a representative capacity and shall conform to the
provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
1. Candor/ decorum to tribunal/ fairness to opposing counsel
c. 5.5- unauthorized practice of law
i. The “practice of law” is personalized, specifically applied professional
legal judgement
ii. A lawyer shall not practice law or setup a “continuous and systematic”
presence in jurisdiction where the lawyer is not authorized to practice, or
help anyone else do so
iii. Usually authorization means passing the bar in the jurisdiction or
“waiving in”, paying dues, fulfilling CLE requirements, and staying in good
ethical standing
iv. Lawyers in good standing can temporarily practice in another jxn in which
they are not barred:
1. with court permission ( pro hac vice)
2. doing tasks in matters which they reasonably expect to obtain pro
hac vice status
3. matters that are reasonably related to the lawyer’s practice in an
authorized jxn and for which pro hac vice status is not necessary (
arbitration )
4. laywers can work on matters “reasonably related” to their jxn (
this is mostly for transactional lawyers) 5.5. c(4)
5. in house and government lawyers can practice if they are barred
anywhere, so long as any jxn specific advice they give s based on a
lawyers advice from that jxn
6. patent lawyers can work in any jurisidciton without needing to be
authorized in that jxn
d. 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 of agreement that restricts the right of a lawyer to
practice after termination of the relationship, except an
agreement concerning benefits upon retirement.
a. An agreement restricting the right of lawyers to practice
after leaving a firm not only limits their professional
autonomy but also limits the freedom of clients to choose
a lawyer
b. Para 1 prohibits such agreements except for restrictions
incident to provisions concerning retirement benefits for
service with the firm
2. An agreement in which the a restriction on the lawyer’s right to
practice is part of the settlement of a client controversy
a. Para 1 prohibits a lawyer from agreeing not to represent
other persons in connection with settling a claim on behalf
of a client
e. 5.7 – providing law -related services
i. A lawyer can run or help run a business that is “ law- related”: real estate,
trust services, lobbying, financial services, accounting, tax services, etc.
(see cmt 9)
ii. If a lawyer provides the non-legal services in a way not “distinct” from
her legal services, then the rules of professional responsibility apply both
to her law services and her law-related services
iii. If the lawyer provides the law-related services in a way distinct from the
law services, the rules do NOT apply IF the lawyer takes reasonable steps
to assure the customers know that the Rules do not apply
1. But the rules do apply if the lawyers does not take those steps
2. Ex: the lawyer who also does people’s taxes distinctly form the
law practice must make reasonably clear to clients that ACP does
NOT apply to the tax work, or else the duty of confidentiality WILL
apply to tax work
a. No fee splitting with non-lawyers
b. No practice of law in partnership with non-lawyers
c. No practice of law with non-lawyers as directors
d. No taking direction from non-lawyers
f. 6.1 – pro bono
i. Every lawyer should aspire to 50 hours a year of pro bono work
ii. Every lawyer should “in addition” contribute financially to legal services
organizations
g. 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 a violation of the rules
of PR or other law
2. Representing the client is likely to result in an unreasonable
financial burden on the lawyer OR
3. The client 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
h. 6.3 – legal services organizations – SEE ABOVE
i. 6.4- law reform – SEE ABOVE
j. 7.1 – truth in advertising
i. Advertising cannot be false or misleading by asserting or omission
1. Ex: per se false or misleading advertising
a. Creating unjustified expectation of same results as in other
cases- need disclaimer
b. Not being upfront about fees, costs, and expenses- need
disclaimer
c. Unsubstantiated comparison of fees to those of other
lawyers
d. Inclusion of locality name that might sound like a
government agency – need disclaimer
e. Including name of unrelated lawyers in a firm name (
unless dead former partners)
k. 7.2 – advertising rules
i. Lawyers can pay for advertising
ii. Lawyers can join and pay for qualified legal service referrals plans
1. The referrals are not exclusive
2. The client is informed
3. Lawyers can give gifts of nominal value to referrers
iii. Lawyers can buy practices
iv. Lawyers can make referral arrangements with lawyer/ nonlawyer
professionals if:
1. The referrals are not exclusive
2. The client is informed
3. Lawyers can give gifts of nominal value to referrers
l. 7.3- solicitations for business
i. Solicitation = hope of getting hired for pecuniary gain
ii. NO live, in-person solicitation of someone in need of services in a
particular matter
iii. Live, in person extends to telephone and real-time electronic contact
iv. No harassment or coercion
v. Written solicitation (posters and direct email or mailings) OK – but most
states require disclaimers
vi. Ok to solicit other lawyers, close business relationships, former or regular
clients, or family
m. 8.3 – reporting misconduct
i. A lawyer who knows that another lawyer has committed a violation of
the Rules of professional conduct that raises a substantial question as to
that lawyer’s honesty, trustworthiness or fitness as lawyer in other
respects, shall inform the appropriate professional authority
1. NO CA EQIVALENT – no snitch rule
X. Decorum
a. 3.5 -impartiality and decorum
i. Can talk to juror after trial if:
1. Court order or law doesn’t forbid it
2. The juror agrees
3. You don’t lie and harass the juror
ii. A lawyer who knows that a person intends to engage or has engaged in
criminal or fraudulent conduct in the proceeding (especially intimidating,
bribing, or communications with jurors) SHALL take “reasonable remedial
measures, including if necessary, disclosure to the tribunal”
1. This duty supersedes the ACP
iii. Ex parte communications with jurors before or during trial = NOT OKAY
iv. Private investigators (jury consultants)= OK if no contact
v. Social medial profile staking = OK (any maybe even required by
competence and diligence)
1. Friend requests= communications = NOT OKAY
2. Continued public social media monitoring during trial = ok (maybe
even required)
vi. You cannot pay experts on contingency
vii. Cannot pay witnesses for giving specific testimony
1. Can fact witnesses for reasonable time and incidentals
viii. You can pay experts only for their time ( and incidental expenses such as
travel)
b. 3.7 – lawyer as witness
i. Principle: it would confuse or mislead jurors to listen to a lawyer who is
both a fact witness and an advocate. So we set limits on what lawyers can
do as witnesses in cases where they are advocates
1. Lawyer cannot testify and be an advocate at the same time
unless:
a. The issue is uncontested
b. The testimony is about legal services
c. OR the disqualification would work “substantial hardship”
on the client
2. The lawyer can act as advocate if another lawyer in the firm is
going to be called as a witness, unless a conflict of interest will
arise
c. 8.2 – statements about judges – DO WE NEED TO KNOW THIS??
XI. Miscellaneous issues
a. 3.8 – special duties of prosecutor
i. Bring only causes based on probable cause
ii. Ensure accused has change to get counsel
iii. Do no try to get pro se defendant to waive pre-trial rights ( duty to
disclose all favorable evidence favorable to the accused)
iv. No pre-trial public statements that have substantial likelihood to
prejudice the accused
v. Have duty to disclose new credible evidence after trial that shows a
“reasonable likelihood” of innocence and investigate further
vi. Duty to try and remedy conviction if there is “clear and convincing”
evidence of innocence
b. 5.1 – firms duty of supervision
i. Partner or manager must make “reasonable efforts” to see that the firm
has ethics policies and measures
ii. Supervising lawyer must take “reasonable efforts” to see that rules are
enforced
iii. Supervising lawyer will be personally responsible for others’ breach of
rules if:
1. Orders and ratifies breach
2. Knows of conduct and doesn’t mitigate
c. 5.2 – subordinate lawyer
i. Subordinate lawyer must be ethical even if superior order unethical acts
ii. But subordinate must follow superior’s judgement on reasonably
arguable questions
d. 5.3 – supervising legal employees and agents
i. Lawyers generally employ assistants in their practice. Including
secretaries, investigators, law student interns, and paraprofessionals
ii. Such assistants, whether employees or independent contractors, act for
the lawyer in rendition of the lawyers professional services
iii. A lawyer must give such assistants appropriate instruction and
supervision concerning the ethical aspects of their employment,
particularly regarding the obligation not to disclose information relating
to representation of the client, and should be responsible for their work
product
iv. The measures employed in supervising non lawyers should take account
of the fact that they do not have legal training and are not subject to
professional discipline
e. 7.6 – political contributions
i. A lawyer or law firm shall not accept a government legal engagement or
an appointment by a judge if the lawyer or law firm makes a political
contribution or solicits political contributions for the purpose of obtaining
or being considered for that type of legal engagement or appointment.
f. 8.1 – bar admissions
i. An applicant for bar admission, or a lawyer in a bar admission application
or 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; or
3. Fail to respond to an admission or disciplinary body’s demand for
information.
ii. **Rule DOESN’T require disclosure of information protected by attorneyclient privilege.
g. 8.2 – don’t lie about a judge – do we need to know this?
h. 8.3 – reporting misconduct
i. A lawyer who knows that another lawyer has committed a violation of
the Rules of Professional Conduct that raises a substantial question as to
that lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority.
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 lawyers assistance program.
i. 8.4 – misconduct
i. It is professional misconduct for a lawyer to:
1. (a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the
acts of another;
2. (b) commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
3. (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
4. (d) engage in conduct that is prejudicial to the administration of
justice;
5. (e) state or imply an ability to influence improperly a government
agency or official or to achieve results by means that violate the
Rules of Professional Conduct or other law;
6. (f) knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law; or
7. (g) engage in conduct that the lawyer knows or reasonably should
know is harassment or discrimination on the basis of race, sex,
religion, national origin, ethnicity, disability, age, sexual
orientation, gender identity, marital status or socioeconomic
status in conduct related to the practice of law. This paragraph
does not limit the ability of a lawyer to accept, decline or
withdraw from a representation in accordance with Rule 1.16.
This paragraph does not preclude legitimate advice or advocacy
consistent with these Rules.
j.
8.5 – discipline
i. Disciplinary authority
1. lawyer admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction, regardless of where the
lawyer's conduct occurs.
2. A lawyer not admitted in this jurisdiction is also subject to the
disciplinary authority of this jurisdiction if the lawyer provides or
offers to provide any legal services in this jurisdiction.
3. A lawyer may be subject to the disciplinary authority of both this
jurisdiction and another jurisdiction for the same conduct.
ii. Choice of law
1. In any exercise of the disciplinary authority of this jurisdiction, the
rules of professional conduct to be applied shall be as follows:
a. 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
b. for any other conduct, the rules of the jurisdiction in
which the lawyer’s 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 lawyer shall not be subject to discipline if
the lawyer’s conduct conforms to the rules of a jurisdiction
in which the lawyer reasonably believes the predominant
effect of the lawyer’s conduct will occur.