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Legal Ethics
Quimbee Outlines
Table of Contents
Quickline
I.
Regulation of the Legal Profession
Development of an Ethical Code of
Conduct
1
19
19
Powers of Courts and Other Bodies
to Regulate Lawyers
20
Admission to the Profession
22
Regulation After Admission—Lawyer
Discipline
28
Mandatory and Permissive
Reporting of Professional
Misconduct
32
Unauthorized Practice of Law—by
Lawyers and Nonlawyers
34
Multijurisdictional Practice of Law
36
Fee Division with a Nonlawyer
37
Law Firms and Other Forms of
Practice
38
Responsibilities of Partners,
Managers, Supervisory and
Subordinate Lawyers
39
Restrictions on the Right to Practice 42
Sale of a Law Practice
II.
The Client-Lawyer Relationship
Formation of the Client-Lawyer
42
43
Relationship
43
Scope, Objectives, and Means of
Representation
46
Decision-Making Authority—Actual
and Apparent
48
Counsel and Assistance within the
Bounds of the Law
49
Termination of the Client-Lawyer
Relationship
50
Client-Lawyer Contracts
53
Civil Liability to Nonclients
Communications with the Client
54
Limiting Liability for Malpractice
Fees
56
Malpractice Insurance and Risk
III. Client Confidentiality
59
Attorney-Client Privilege
59
The Work-Product Doctrine
64
Broad Duty of Confidentiality
66
Other Exceptions to the
Confidentiality Rule
68
IV. Conflicts of Interest
Current-Client Conflicts: Multiple
Clients and Joint Representation
69
69
Prevention
VI. Litigation and Other Forms of
Advocacy
99
101
102
103
Meritorious Claims and Contentions 103
Expediting Litigation
105
Candor to the Tribunal
106
Fairness to Opposing Party and
Counsel
109
Impartiality and Decorum of the
Tribunal
111
Trial Publicity
112
Lawyer as Witness
114
Current-Client Conflicts: Lawyer’s
Personal Interest or Duties
75
Former-Client Conflicts
77
Prospective-Client Conflicts
78
Imputed Conflicts
80
Acquiring an Interest in Litigation
82
Truthfulness in Statements to
Others
Business Transactions with Clients
82
Communications with Represented
Third-Party Compensation and
Influence
Persons
116
84
Lawyers Currently or Formerly in
Government Service
Communications with
Unrepresented Persons
118
85
Respect for Rights of Third Persons 118
Former Judge, Arbitrator, Mediator,
or Other Third-Party Neutral
87
V. Competence, Legal Malpractice, and
Other Civil Liability
88
Competence Defined
88
Maintaining Competence
89
Competence Necessary to
Undertake Representation
90
Exercising Diligence and Care
91
Civil Liability to Client, Including
Malpractice
VII. Transactions and Communications
with Persons Other Than Clients
VIII.Different Roles of the Lawyer
115
119
Lawyer as Advisor
119
Lawyer as Evaluator
120
Lawyer as Negotiator
122
Lawyer as Arbitrator, Mediator, or
Other Third-Party Neutral
122
Prosecutors and Other Government
Lawyers
Lawyer Appearing in a
Nonadjudicative Proceeding
92
115
122
123
Lawyer Representing an Entity or
Other Organization
IX. Safekeeping Client Funds and Other
Property
124
127
Establishing and Maintaining Client
Trust Accounts
127
Safekeeping Funds and Other
130
Disqualification
157
130
Extrajudicial Activities
161
Political and Campaign Activity
170
131
Services
131
Solicitation: Direct Contact with
Prospective Clients
133
Referrals
136
XI. Lawyers’ Duties to the Public and
Legal System
136
137
Voluntary Pro Bono Service
138
Accepting Appointments
139
Serving in Legal-Services
Organizations
139
Law-Reform Activities Affecting
Client Interests
141
Criticism of Judges and
Adjudicating Officials
142
Political Contributions to Obtain
Engagements or Appointments
142
Improper Influence on Government
Officials
143
Assisting Judicial Misconduct
144
XII. Judicial Conduct
Performing the Duties of Judicial
Office Impartially, Competently, and
155
Disputed Claims
of Practice and Specialization
Maintaining the Independence and
Impartiality of the Judiciary
146
Ex Parte Communications
Safekeeping Funds and Other
Property of Third Persons
Communications Regarding Fields
145
149
129
Public Communications about Legal
Overview of the Model Code of
Judicial Conduct
Diligently
Property of Clients
X. Communications about Legal
Services
State and Federal Judicial Systems 144
144
Legal Ethics | 1
I. Regulation of the Legal Profession
The American Bar Association’s (ABA) Model Rules of Professional Conduct (MRPC) provide an ethical
framework for states to fashion codes of conduct and rules to which lawyers must adhere. The ABA
cannot discipline a lawyer for failing to comply with the MRPC. Instead, disciplinary authority lies with
the states, based on the rules they have adopted to govern lawyers in their respective jurisdictions.
The admission and regulation of lawyers is generally performed by state supreme courts. Lawyers
and legal practice in a given jurisdiction might also be regulated by state or federal statutes, state or
federal administrative agencies, or general court rules such as the rules of evidence and procedure.
Admission to the Profession
Each state establishes its own requirements for admitting lawyers to the practice of law; these
standards must be rationally related to the applicant’s fitness to practice law.
Regulation after Admission—Lawyer Discipline
Upon admission to a state bar, a lawyer is subject to the jurisdiction’s ethical rules and
regulations. Lawyer misconduct may result in discipline including private reprimand, public
reprimand or censure, suspension, disbarment, or other sanctions.
Mandatory and Permissive Reporting of Professional Misconduct
Under some circumstances, a lawyer must report the serious professional misconduct of another
lawyer if the reporting lawyer knows that another lawyer has committed such misconduct A
lawyer may report another lawyer’s minor violations of the ethics rules if the lawyer determines in
her professional judgment that the offense is serious enough to report or if the reporting lawyer
reasonably believes that another lawyer has committed such misconduct.
Unauthorized Practice of Law—by Lawyers and Nonlawyers
A person engages in the unauthorized practice of law by practicing within a jurisdiction without
having the proper credentials and authorization to do so or by helping another lawyer or a
nonlawyer to violate the jurisdiction’s requirements regarding the practice of law.
Multijurisdictional Practice of Law
The rules of professional conduct recognize limited circumstances in which a lawyer who is
admitted to practice and in good standing in one jurisdiction may render legal services on a
temporary or non-temporary basis in a jurisdiction in which she is not formally admitted to
practice.
Fee Division with a Nonlawyer
Legal Ethics | 2
Lawyers and law firms must not share legal fees with nonlawyers, except in limited circumstances.
Law Firms and Other Forms of Practice
The MRPC define a law firm as (1) one or more lawyers in a law partnership, a sole proprietorship,
a professional corporation, or some other association authorized to practice law; (2) lawyers
working for a legal-services entity; or (3) lawyers employed in-house by a corporation or other
organization.
1. Partnerships with Nonlawyers
A lawyer may not enter into a partnership with a nonlawyer if the business of the partnership
will include the practice of law.
2. Direction of Lawyers by Nonclients
If a third party recommends, employs, or pays the lawyer to provide legal services to someone,
the lawyer must not allow the third party to direct or regulate the lawyer’s professional
judgment in rendering those services.
3. Management or Ownership of Law Firms
If a lawyer practices with or as a professional corporation or other for-profit entity, the ethical
rules restrict the role of nonlawyers in the management or ownership of that entity.
Responsibilities of Partners, Managers, Supervisory and Subordinate
Lawyers
In some circumstances, lawyers with managerial or supervisory authority in a law firm have
responsibility for the ethical conduct of lawyers and staff within the firm. Additionally, a lawyer
with direct supervisory authority over another lawyer must make reasonable efforts to ensure
that the supervised lawyer conforms to the ethical rules.
Restrictions on the Right to Practice
Generally, a lawyer may not participate in offering or making a business, employment, or other
agreement that restricts a lawyer’s right to practice law after the underlying relationship has
ended. This does not apply to practice restrictions arising as part of the sale of a law practice or
as a condition of a lawyer’s retirement from a law firm.
II. The Client-Lawyer Relationship
Legal Ethics | 3
A lawyer owes duties to a client that begin when, or sometimes even before, a client-lawyer
relationship is formed.
Formation of the Client-Lawyer Relationship
Generally, a client-lawyer relationship is formed by mutual agreement of the lawyer and the client.
This occurs when (1) the client expresses to the lawyer that the client intends to engage the
lawyer’s legal services, and (2) the lawyer agrees to provide those services.
Scope, Objectives, and Means of Representation
A lawyer may limit the scope of services provided to a client, as long as (1) the limits are
reasonable under the circumstances, and (2) the client gives informed consent to the limitation. In
general, a lawyer must abide by the client’s determination of the objectives of the lawyer’s
representation. The lawyer must reasonably consult with the client about the means of achieving
the client’s goals or objectives. However, in carrying out a client’s objectives, the lawyer may take
an action on behalf of the client without advance consultation if the action is impliedly authorized
to carry out the representation.
Decision-Making Authority—Actual and Apparent
A lawyer may have reserved authority, actual authority, or apparent authority to make certain
decisions in the course of the representation. A client in a civil matter always has the authority to
decide whether to accept a settlement offer. In a criminal matter, the client must decide what
plea to enter, whether to waive a trial by jury, whether to testify on his own behalf, and whether
to appeal.
Counsel and Assistance within the Bounds of the Law
A lawyer may not counsel or assist a client to engage in or perpetuate activity that the lawyer
knows to be fraudulent or criminal. However, a lawyer may discuss with a client the legal
consequences of a proposed action and assist the client in a good-faith effort to determine the
meaning or application of the law.
Termination of the Client-Lawyer Relationship
In general, a lawyer’s representation of a client ends when the assistance agreed upon by the
lawyer and the client has been fully rendered or otherwise concluded. A client has an absolute
right to terminate the representation anytime and for any reason.
1. Withdrawal by Lawyer
Legal Ethics | 4
A lawyer must withdraw from representing a client if (1) the representation will result in a
violation of the law or the rules of professional conduct, (2) the lawyer’s mental or physical
condition materially interferes with his ability to represent the client, or (3) the client
terminates the lawyer’s services. A lawyer who is not required to withdraw from
representation may nonetheless withdraw in some circumstances.
Client-Lawyer Contracts
Contracts between a lawyer and client are often called engagement letters or retainer agreements.
With the exception of a contingent-fee arrangement, a written contract is not required in the
course of a representation.
Communications with the Client
In general, a lawyer must keep the client reasonably informed about the status of the matter that
is the subject of the representation.
Fees
The rules of professional conduct impose requirements regarding the reasonableness of fees and
the communication of fees to the client. There are certain limits on the use of contingent-fee
agreements (e.g., they are permitted in criminal cases).
III. Client Confidentiality
The attorney-client privilege, work-product doctrine, and a lawyer’s broader duty of confidentiality
restrict or prevent disclosure of the vast majority of information about a client or the client’s matter
without consent.
Attorney-Client Privilege
The attorney-client privilege is a common-law evidentiary rule used to exclude from evidence
certain communications between lawyers and clients. The attorney-client privilege applies to (1)
communications (2) between privileged persons, made (3) in confidence (4) for the purpose of
obtaining or providing legal assistance.
The Work-Product Doctrine
Attorney work product encompasses (1) documents or other tangible things, or their unwritten
equivalents, (2) prepared in anticipation of litigation or for pending litigation (3) by a lawyer.
Opinion work product consists of a lawyer’s opinions and mental impressions formed in
anticipation of litigation or for trial. All work product that is not opinion work product is
considered to be ordinary work product.
Legal Ethics | 5
1. Protections for Work Product
One party may obtain another party’s ordinary work product only if the first party can
establish that it has a substantial need for the materials to prepare its case and cannot obtain
their substantial equivalent without undue hardship. One party may obtain another party’s
opinion work product only in extraordinary circumstances or if the opposing party has
demonstrated a compelling need for its discovery.
Broader Duty of Confidentiality
A lawyer has a duty to protect confidential information relating to the client-lawyer relationship.
Confidential information for purposes of the ethical rules is any information relating to the
representation of a client, regardless of the source of the information. There are several
exceptions to this broad duty.
IV. Conflicts of Interest
A conflict of interest is a conflicting loyalty between a client and some other interest of the lawyer
that might compromise the lawyer’s ability to provide loyal and independent legal advice to that client.
Nonetheless, in some circumstances a client may consent to the representation despite a conflict of
interest.
Current-Client Conflicts: Multiple Clients and Joint Representation
A concurrent conflict of interest is a conflict that exists if (1) the representation of one client will
be directly adverse to another current client, or (2) there is a significant risk that the
representation of a client will be materially limited by the lawyer’s responsibilities to another client,
a former client, or a third person, or by the lawyer’s personal interest.
1. General Rule of Disqualification
In general, and subject to exceptions, a lawyer may not represent a client if that
representation would cause a concurrent conflict of interest (i.e., the lawyer is disqualified).
2. Permissible Representation Despite Concurrent Conflict of Interest
Most concurrent conflicts of interest can be overcome if (1) the lawyer reasonably believes
that she will be able to represent each affected client competently and diligently, (2) the
representation is not prohibited by law, (3) the representation does not involve one client
asserting a claim against another client represented by the lawyer in the same litigation or
other proceeding, and (4) each affected client gives written informed consent. A client who
has given informed consent to a conflict of interest may revoke that consent at any time.
Legal Ethics | 6
Current-Client Conflicts: Lawyer’s Personal Interest or Duties
A lawyer’s own personal interests or duties may create a conflict of interest between a lawyer
and a current or prospective client.
Former-Client Conflicts
After a client-lawyer relationship has ended, the lawyer or law firm retains conflict-of-interest
obligations toward former clients.
Prospective-Client Conflicts
The ethical rules limit a lawyer’s ability to use or reveal information learned from a prospective
client. In consulting with a prospective client, a lawyer can structure the initial consultation in
ways that can avoid or waive potential conflicts of interest.
Imputed Conflicts
When multiple lawyers associate in a law firm, one lawyer’s conflicts generally are imputed to the
other lawyers in the firm. In general, no lawyer in a firm may knowingly represent a client if any
one of them alone would be prohibited from doing so because of a duty to former or current
clients. This prohibition does not apply if the disqualification is based on a lawyer’s personal
interest and does not present a significant risk of materially limiting representation by the firm’s
other lawyers. It also does not apply when a conflict concerns a lawyer’s duty to a former client
and arises out of the lawyer’s association with a prior firm and that lawyer is properly screened.
Acquiring an Interest in Litigation
In general, a lawyer who represents a client in litigation is prohibited from acquiring a proprietary
interest in the cause of action or the subject matter of the litigation. There are two exceptions: (1)
a lawyer may acquire an attorney’s lien as authorized by law to secure the lawyer’s fee or
expenses, and (2) a lawyer and client in a civil case may form a contract for a reasonable
contingent fee.
Business Transactions with Clients
In general, a lawyer may not (1) enter into a business transaction with a client or (2) knowingly
acquire an ownership or other pecuniary interest adverse to a client. This prohibition does not
apply if (1) the terms of the transaction are fair and reasonable to the client and are fully disclosed
to the client; (2) the client is advised in writing of the importance of obtaining advice from
independent counsel and is given a reasonable opportunity to obtain that advice; and (3) the
client gives informed consent, in a signed writing, to the transaction’s essential terms and the
lawyer’s role in the transaction. Additionally, this prohibition does not apply to a standard
Legal Ethics | 7
commercial transaction between the lawyer and a client for products or services that the client
generally markets to others.
Third-Party Compensation and Influence
In general, a lawyer may not accept compensation for a representation from someone other than
the client. This prohibition does not apply if (1) the client gives informed consent, (2) the fee
arrangement does not interfere with the lawyer’s independent professional judgment or other
aspects of the client-lawyer relationship, and (3) the lawyer protects all information related to the
representation as required by the rules of client confidentiality.
Lawyers Currently or Formerly in Government Service
The MRPC provide specific additional rules for lawyers currently or formerly employed in
government positions. In general, concerning conflict-of-interest obligations, it is less onerous for
a government attorney to switch to a private firm, and vice versa, than it is for a private attorney
to switch from one firm to another firm. A current or past government lawyer may also be subject
to state or federal statutes and regulations governing the lawyer’s actions.
Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
A lawyer generally may not represent a client in a matter in which the lawyer personally and
substantially participated as:
 a judge or other adjudicative officer;
 a law clerk to a judge or other adjudicative officer; or
 a third-party neutral, e.g., an arbitrator or mediator.
This prohibition does not apply if all parties to the proceeding give written, informed consent to
the representation.
V. Competence, Legal Malpractice, and Other Civil Liability
A lawyer has a duty to provide competent representation to a client and to remain competent as the
law evolves. Competent representation is representation employing the knowledge, skill,
thoroughness, and preparation that are reasonably necessary to meet the client’s needs.
Competence Necessary to Undertake Representation
A lawyer may accept a representation only if he is competent or can become competent through
reasonable preparation. In an emergency, a lawyer may give limited advice or assistance in a
Legal Ethics | 8
matter in which the lawyer does not ordinarily possess competence, if referral to or consultation
with another lawyer would be impractical.
Exercising Diligence and Care
A lawyer must act with reasonable diligence and promptness in representing a client. However, a
lawyer need not seek every possible advantage or use offensive tactics to advance the client’s
cause. Furthermore, a lawyer may agree to a reasonable postponement or extension of a deadline,
as long as the agreement will not prejudice the client.
Civil Liability to Client, Including Malpractice
A lawyer’s failure to provide competent and diligent representation may give rise to a civil
malpractice action initiated by the client.
1. Civil Liability
Legal malpractice encompasses malpractice claims based on either (1) professional negligence
or (2) breach of fiduciary duty.
a. Professional Negligence
A lawyer is liable for professional negligence (1) to a client or other person to whom the
lawyer owes a duty of care, (2) if the lawyer fails to exercise due care toward that person,
and (3) that failure is a legal cause of injury, (4) unless the lawyer has a defense.
b. Breach of Fiduciary Duty
A lawyer is liable for breach of fiduciary duty if (1) the lawyer breaches a fiduciary duty to
the client, and (2) that failure is a legal cause of the client’s injury, (3) unless the lawyer
has a defense.
2. Breach of Contract
A lawyer may be liable for breach of contract under normal contract-law principles in an
appropriate case.
3. Vicarious Liability
Under principles of vicarious liability, both a law firm and individual lawyers within the firm
may be liable for wrongs committed by other lawyers. The extent of vicarious liability may
depend on what type of legal entity a law firm is (e.g., a traditional partnership versus a
modern limited-liability partnership).
Legal Ethics | 9
Civil Liability to Nonclients
In some instances, a lawyer may owe a duty of care to nonclients. If a lawyer violates this duty,
the nonclient may have a claim for malpractice against the lawyer.
Limiting Liability for Malpractice
The rules of professional conduct limit a lawyer’s ability (1) to prospectively limit malpractice
claims and (2) to settle malpractice claims.
Malpractice Insurance and Risk Prevention
In most states, lawyers are not required to maintain malpractice insurance as a condition of
practicing law. Some states require that a lawyer provide a disclosure statement indicating
whether the lawyer has malpractice insurance.
VI. Litigation and Other Forms of Advocacy
A lawyer has special ethical obligations to the client, opposing counsel, and the court in the conduct
of litigation and other forms of advocacy.
Meritorious Claims and Contentions
A lawyer must not file suit, defend a proceeding, or assert or contest an issue, unless there is a
nonfrivolous legal and factual basis for doing so. This rule does not prohibit a claim made in good
faith and for the purpose of seeking an extension, modification, or reversal of existing law.
Expediting Litigation
A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the
client. Generally, a lawyer breaches this obligation if a competent lawyer acting in good faith
would believe that the tactics and strategy employed serve no substantial purpose other than
delay. A lawyer may request that a court issue a continuation or extension of a pending matter
and may seek a postponement for personal reasons. However, a lawyer may not routinely fail to
expedite litigation merely for the convenience of the lawyers in the case.
Candor to the Tribunal
A lawyer must be forthcoming and honest in dealing with a tribunal. A lawyer’s duty of candor to
the tribunal includes matters conducted outside of the courtroom but in connection with the
tribunal’s authority (e.g., depositions).
Fairness to Opposing Party and Counsel
Legal Ethics | 10
Generally, a lawyer should act with integrity toward other legal professionals and must not
engage in dishonest or deceitful behavior toward an opposing party or opposing lawyer.
Impartiality and Decorum of the Tribunal
A lawyer has specific duties to refrain from compromising the impartiality and decorum of a
tribunal. A lawyer may not attempt to influence a judge, juror, prospective juror, or other official
by any unlawful means. Nor may a lawyer do anything intended to disrupt a court or other tribunal.
Trial Publicity
The ethical rules address both permissible and impermissible types of public statements by
lawyers about the investigation or adjudication of a matter.
1. Prohibited Extrajudicial Statements
A lawyer is prohibited from making extrajudicial statements about the investigation or
litigation of a matter in which the lawyer is participating or has participated if the lawyer
knows or reasonably should know that the statement will (1) be communicated to the public
and (2) have a substantial likelihood of materially prejudicing an adjudicative proceeding.
These prohibitions also apply to any lawyer in the same firm or government agency as the
restricted lawyer or a nonlawyer agent thereof.
2. Permissible Extrajudicial Statements
The MRPC expressly permit several types of extrajudicial statements by a lawyer who is
participating or has participated in the adjudication or investigation of a matter (e.g., truthful
statements about a claim, a criminal offense, or a defense involved in the investigation or
matter and statements that an investigation of the matter is in progress). Additionally, the
MRPC expressly allow a lawyer who is participating or has participated in a criminal case to
make additional types of extrajudicial statements, in addition to those allowed in other matters
(e.g., statements about an accused person’s identity, residence, occupation, and family
status).
3. Special Duties of Prosecutors
The MRPC impose special duties on prosecutors regarding extrajudicial statements.
Specifically, a prosecutor must (1) refrain from extrajudicial comments that are likely to
heighten public condemnation of the accused, unless those comments serve a legitimate
public-information or law-enforcement purpose, and (2) take reasonable care to prevent lawenforcement and other personnel assisting or associated with the prosecutor from making
extrajudicial statements that would be prohibited to the prosecutor.
Legal Ethics | 11
4. Communication to Protect a Client
A lawyer may make a statement or provide information that a reasonable lawyer would believe
is necessary to protect a client from the substantial undue prejudicial effect of recent publicity
that the lawyer or the client did not initiate.
Lawyer as Witness
In general, a lawyer may not act as an advocate on behalf of a client in a proceeding in which the
lawyer will likely be a necessary witness. However, a lawyer may act as both an advocate and a
witness if (1) the testimony relates to an uncontested issue, (2) the testimony relates to the
nature or value of legal services rendered in the case, or (3) disqualification of the lawyer would
pose a substantial hardship on the client.
VII. Transactions and Communications with Persons Other Than
Clients
A lawyer’s ethical duties include a duty of truthfulness in communicating with persons who are not
clients, as well as duties regarding communications with represented and unrepresented parties and
certain other persons (e.g., a witness) in the course of a representation.
Truthfulness in Statements to Others
In the course of representing a client, a lawyer must not knowingly make a false statement of
material fact or law to a third person (e.g., a witness) Additionally, a lawyer may not knowingly fail
to disclose a material fact if disclosure is required to avoid assisting a client’s crime or fraud.
However, the lawyer need not make a disclosure if disclosure would be prohibited by the rules of
client confidentiality. The lawyer’s duty of honesty and truthfulness is not limited to statements
made in the course of representing a client.
Communications with Represented Persons
A lawyer representing a client may not communicate about the subject of the representation with
a person whom the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer:
 has the consent of the represented person’s lawyer,
 is authorized to do so by law or court order, or
 is otherwise justified in doing so in exceptional circumstances.
This rule applies even if a represented person initiates or consents to the communication. A
lawyer may not avoid this rule by communicating with a represented person through a third party.
Legal Ethics | 12
Communications with Unrepresented Persons
When a lawyer deals on behalf of a client with a person who is not represented by counsel, the
lawyer may neither state nor imply that the lawyer is disinterested or neutral. If a lawyer knows or
reasonably should know that an unrepresented person misunderstands the lawyer’s role, the
lawyer must make reasonable efforts to correct the unrepresented person’s misunderstanding.
1. Conflicts of Interest
A lawyer who is representing a client may not provide legal advice to an unrepresented person
if the lawyer knows or reasonably should know that the unrepresented person’s interests are
or have a reasonable possibility of being in conflict with the client’s interests. However, the
lawyer may advise the unrepresented person to obtain her own counsel.
2. Negotiating Terms
A lawyer may negotiate the terms of a transaction or settlement with an unrepresented person
if the lawyer explains that he represents the client and not the unrepresented person. The
lawyer may prepare documents for the unrepresented person’s signature and explain the
lawyer’s view of the law or the unrepresented person’s obligations.
Respect for Rights of Third Persons
A lawyer must respect the rights of third persons during the course of a client’s representation. In
representing a client, a lawyer must not employ tactics meant to have no other substantial
purpose than to harass, embarrass, delay, or burden a third person. Additionally, a lawyer may not
employ methods to obtain evidence that violate a third person’s legal rights.
VIII. Different Roles of the Lawyer
In providing legal services, lawyers may act in various roles, including as advisors, advocates,
negotiators, evaluators, and third-party neutrals. Each role has corresponding ethical obligations.
Lawyer as Advisor
As an advisor, a lawyer must exercise independent professional judgment and render candid
advice. In providing legal advice, the lawyer may refer not only to the law, but also to other
considerations, such as moral, economic, social, and political factors that may be relevant to the
client’s issue.
Lawyer as Evaluator
Legal Ethics | 13
A lawyer might function as an evaluator by investigating someone on a client’s behalf. Generally,
if a lawyer investigates a person on behalf of a client, the lawyer does not establish a clientlawyer relationship with the investigated person. Additionally, a lawyer might function as an
evaluator by evaluating a client’s matter for the benefit of a third person, as long as the lawyer
reasonably believes that the evaluation is compatible with other aspects of the lawyer’s
relationship with the client.
Lawyer as Negotiator
As a negotiator, a lawyer must seek a result that is advantageous to the client. Even in
negotiating, a lawyer must adhere to the duty of truthfulness and maintain honest dealings with
others. Certain conventional puffery during negotiations is permitted.
Lawyer as Arbitrator, Mediator, or Other Third-Party Neutral
A lawyer acts as a third-party neutral if the lawyer assists two or more persons, who are not
clients of the lawyer, to resolve a dispute. A lawyer acting as a third-party neutral owes a duty to
inform an unrepresented person that he is not that person’s lawyer and that the unrepresented
person has no client-lawyer relationship with the lawyer. The most common types of third-party
neutrals are arbitrators and mediators.
Prosecutors and Other Government Lawyers
A prosecutor must adhere to special ethical duties, including duties regarding charging decisions,
evidentiary decisions (including the disclosure of favorable evidence), the treatment of criminal
defendants, the handling of possible wrongful convictions, and extrajudicial statements.
Lawyer Appearing in a Nonadjudicative Proceeding
A lawyer who appears in a nonadjudicative proceeding (e.g., a legislative hearing) in the course of
a representation must disclose that she is appearing in a representative capacity and not for
some other purpose. Additionally, the lawyer must adhere to the ethical rules related to candor,
fairness to an opposing party, and decorum.
Lawyer Representing an Entity or Other Organization
In representing an organization, a lawyer represents the organization acting through its duly
authorized constituents, i.e., through its authorized directors, officers, or employees. A lawyer
representing the organization does not, for that reason alone, also represent the organization's
constituents in their individual capacities.
1. Duty to Report Matters within the Organization
Legal Ethics | 14
A lawyer might have a duty to report the actions of an officer, employee, or other constituent
to a higher authority within the organization if (1) the lawyer knows the constituent is
committing or intends to commit a violation of a legal obligation to the organization or a
violation of law that might be imputed to the organization, (2) the violation is likely to cause
substantial harm to the organization, and (3) the violation relates to a matter within the scope
of the lawyer’s representation.
2. Organization Adverse to Constituents
If a lawyer who is representing an organization is dealing with the organization’s directors,
officers, employees, or other constituents, and the lawyer knows or reasonably should know
that the organization’s interests are adverse to the constituents’ interests, the lawyer must
make sure the constituents understand that the lawyer is representing the organization and
not the constituents. The lawyer should also explain that (1) the lawyer cannot represent the
constituents, (2) discussions between the lawyer and the constituents may not be privileged,
and (3) the constituents may wish to seek independent counsel.
IX. Safekeeping Client Funds and Other Property
If a lawyer is entrusted with funds and other property of clients and third parties, the lawyer must
properly safeguard the property or be subject to professional discipline and possible civil liability.
Establishing and Maintaining Client Trust Accounts
A client trust account is a bank account, separate from the lawyer’s personal or business
accounts, in which the lawyer deposits money belonging to clients or third parties. In many cases,
a lawyer may use one client trust account for multiple clients, as long as she keeps detailed
records of who owns which funds.
Safekeeping Funds and Other Property of Clients
A lawyer should exercise the care of a professional fiduciary in safeguarding a client’s funds and
other property. Among other requirements, the lawyer may not commingle a client’s funds or
property with the lawyer’s own. Additionally, the lawyer must keep complete records of the funds
or property in the lawyer’s possession and retain the records after the representation ends. A
lawyer must promptly deliver to the client any funds or property to which the client is entitled,
either upon request or otherwise. Also, upon the client’s request, the lawyer must promptly give a
full accounting of all of the client’s funds or property held by the lawyer.
Safekeeping Funds and Other Property of Third Persons
Legal Ethics | 15
The ethical rules for safeguarding funds or property of third persons in the lawyer’s possession
are the same as those that apply to funds or property of clients.
Disputed Claims
A lawyer has specific ethical duties regarding property in the lawyer’s possession as to which
there is an ownership dispute.
1. Fee Disputes
In a fee dispute, the lawyer must keep disputed funds in a trust account and should suggest to
the client ways to resolve the dispute promptly. Any undisputed funds must be promptly
distributed.
2. Property Ownership
If a lawyer representing a client possesses property or funds in which two or more persons
claim an interest, and the claims are not frivolous, the lawyer must keep the property or funds
separate until the dispute is resolved. The lawyer must promptly distribute any undisputed
funds or property.
X. Communications About Legal Services
Lawyers are subject to ethical rules that apply to communications about themselves and their
services.
Public Communications about Legal Services
A lawyer may engage in communications about herself and her legal services through any media.
A lawyer may not make a false or misleading communication about herself or her services.
Solicitation: Direct Contact with Prospective Clients
Under the MRPC, a solicitation is a communication (1) initiated by or on behalf of a lawyer or law
firm and (2) directed to a specific person whom (3) the lawyer knows or reasonably should know
needs legal services in a particular matter and that (4) offers or can reasonably be understood to
offer to provide legal services for that matter. A lawyer generally must not solicit professional
employment by live, person-to-person contact if a significant motive for doing so is the lawyer’s
or law firm’s professional gain. However, a lawyer generally may use other types of
communications to solicit employment from a person known to need legal services in a particular
matter.
Group Legal Services
Legal Ethics | 16
Under some circumstances a lawyer may participate in and pay fees to a legal-service plan (e.g.,
a prepaid or group plan that assists people in finding or obtaining legal representation) or a
lawyer-referral service (i.e., a service that holds itself out as providing referrals to lawyers for
persons who need legal services).
Referrals
As a general rule, and subject to exceptions, a lawyer may not pay or give anything of value to a
person for recommending the lawyer’s services. A lawyer may enter into a nonexclusive
reciprocal-referral agreement with another lawyer or with a nonlawyer professional (e.g., an
accountant) if referred clients are informed of the existence and nature of the agreement.
Communications Regarding Fields of Practice and Specialization
A lawyer may communicate to the public that he does or does not accept certain types of cases,
that he is a specialist, or that he specializes in a particular area of law. A lawyer may not state or
imply that he is certified as a specialist in a particular area of law unless (1) he has been certified
by an organization approved by an appropriate state authority or accredited by the ABA, and (2)
he clearly includes the name of the certifying organization in the communication.
XI. Lawyers’ Duties to the Public and Legal System
Lawyers have duties to the public and the legal system stemming from lawyers’ roles as officers of
the court and public citizens who have special responsibilities to the community.
Voluntary Pro Bono Service
Under the MRPC, a lawyer should aspire to provide at least 50 hours of pro bono legal services
every year. No jurisdiction requires mandatory pro bono representation (with a partial exception
for certain court appointments), yet some jurisdictions require mandatory reporting of pro bono
hours (including if an attorney did zero hours).
Accepting Appointments
A lawyer might be appointed by a court to represent someone for a fee set by the court or on a
pro bono basis. A lawyer may not avoid a court’s appointment unless the lawyer can show good
cause why she should not be appointed.
Serving in Legal-Services Organizations
A lawyer may simultaneously engage in private practice at a law firm and serve as a director,
officer, or member of a legal-services organization. However, the lawyer must not knowingly
participate in a decision or action of the organization if the decision or action (1) would violate the
Legal Ethics | 17
lawyer’s obligations regarding conflicts of interest or (2) might adversely affect the organization’s
representation of a client whose interests are adverse to one of the lawyer’s clients.
Criticism of Judges and Adjudicating Officials
A lawyer generally is free to express an honest opinion on the professional or personal fitness of
judges, candidates for judicial office, and other adjudicative officials. However, a lawyer may not
make a statement regarding the qualifications or integrity of a judge, adjudicatory officer, public
legal officer, or a candidate for election or appointment to judicial or legal office if (1) the lawyer
knows the statement to be false or (2) the lawyer acts with reckless disregard of whether the
statement is true or false.
Political Contributions to Obtain Engagements or Appointments
A lawyer may participate in the political process by financially supporting candidates for public
office and asking others to do so. However, a lawyer or a law firm may not accept a government
legal engagement or a court appointment by a judge if the lawyer or the firm has made or solicited
political contributions for the purpose of obtaining or being considered for that type of
engagement or appointment.
Improper Influence on Government Officials
A lawyer commits misconduct if he suggests or implies that he can influence a government
agency or official through means that violate the law or a rule of professional conduct.
Assisting Judicial Misconduct
A lawyer commits misconduct if he knowingly assists a judge in violating a law or ethical rule of
judicial conduct. Moreover, a lawyer who knows that a judge committed a violation of a law or
ethical rule that raises a substantial question as to the judge’s fitness for office has a duty to
report the activity to the appropriate authority.
XII. Judicial Conduct
An independent, reasonable, and impartial judiciary is vital to the administration of justice. Judicial
ethics are governed by judicial codes of conduct largely based on the ABA Model Code of Judicial
Conduct (MCJC).
Maintaining the Independence and Impartiality of the Judiciary
A judge must uphold and comply with the law and promote the independence, integrity, and
impartiality of the judiciary, while avoiding impropriety or the appearance of impropriety.
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Performing the Duties of Judicial Office Impartially, Competently, and
Diligently
A judge must perform all official duties impartially, competently, and diligently. A judge’s duties to
his position take priority over all personal or extrajudicial activities. A judge must not be swayed
by public clamor or fear of criticism and must avoid conveying or allowing others to convey that
the judge is subject to influence by any person or organization.
Ex Parte Communications
Ex parte communications are oral or written communications with a judge regarding a pending or
imminent matter, usually not on the public record, that occur without reasonable notice to all
interested parties. Ex parte communications are largely prohibited because in general, all
communications between a party and the judge must occur with notice to, or in the presence of,
all interested parties. However, ex parte communications may be permissible in some
circumstances (e.g., a rescheduling of a court proceeding where notice to opposing counsel is
impractical).
Disqualification
If a judge’s impartiality might reasonably be questioned in any proceeding in which the judge is
involved, the judge must disqualify, or recuse, himself from the matter. A judge should disclose on
the record any information the judge believes the parties or their lawyers might reasonably
consider relevant to a motion for disqualification, even if disqualification is likely not warranted.
Extrajudicial Activities
A judge may engage in outside, extrajudicial activities that are not part of a judge’s official
responsibilities, unless barred by law or an ethical rule.
Political and Campaign Activity
In running for an elected judicial office, judges and judicial candidates must appear to be free
from political influence and pressure.
Legal Ethics | 19
I. Regulation of the Legal Profession
The regulation of lawyers’ conduct is largely based on a set of rules of professional conduct
established by the ABA. All states have adopted at least substantial portions of the ABA’s Model Rules
of Professional Conduct (Model Rules or MRPC), which were originally promulgated in 1983.
Development of an Ethical Code of Conduct
In 1908, the ABA drafted the very broad Canons of Professional Ethics to govern the ethical
conduct of its member lawyers and articulate certain mandatory and aspirational rules for lawyers
to follow when interacting with clients, lawyers, and the courts.
1. Promulgation of the Model Code of Professional Responsibility
By 1969, the ABA promulgated the more comprehensive Model Code of Professional
Responsibility, which replaced the Canons of Professional Ethics. However, many lawyers
complained that the rules contained in the code were too complex to understand and focused
too much on litigation. In response, the ABA replaced the Model Code with the MRPC in 1983.
2. Adoption of the MRPC
The ABA replaced the Model Code with the MRPC, which the ABA has since amended from
time to time. The MRPC are outlined in a format similar to most of the American Law Institute’s
Restatements, with black-letter rules followed by comments. The MRPC are periodically
amended to address new and evolving concerns confronting the legal profession. Although
ethical rules may vary from state to state, every state has either adopted the vast majority of
the MRPC or patterned its rules closely after the MRPC. The Multistate Professional
Responsibility Exam includes many questions based on the MRPC.
a. Structure of the MRPC
The MRPC begin with a preamble that outlines a lawyer’s responsibilities to the profession,
the legal system, and the public. The preamble is followed by a section on scope, which
outlines the parameters and applicability of the MRPC. The MRPC then set out numbered
rules, each of which has corresponding comments meant to provide further guidance on
the appropriate interpretation of the rule.
Preamble and Scope
The MRPC’s Preamble and Scope sections provide a high-level overview of what is
expected of practicing lawyers.
The Rules
Legal Ethics | 20
The MRPC’s Rules section contains eight groups of rules addressing (1) issues that
could arise in the course of representing a client—whether as a counselor or
advocate—and (2) general rules on a lawyer’s obligation to contribute to public service
and maintain the integrity of the profession.
b. “Person”
For purposes of the MRPC, the term person refers to both a natural person (i.e., an
individual) and an artificial entity (i.e., a legal or commercial entity). The term person is also
used to mean both the singular and the plural.
c. The ABA’s Comments on the MRPC
The comments accompanying the MRPC provide specific guidance about how to interpret
the rules, and they explain the ABA’s intentions in using particular language. The comments
are updated regularly to reflect evolving social and ethical norms.
3. Mandatory Versus Permissive Language of the Rules
Mandatory rules use language requiring a lawyer to adhere to specific conduct and use terms
such as shall or must. A violation of a mandatory rule may result in disciplinary action.
Permissive rules are more suggestive in nature and use terms such as may and should. A
violation of a permissive rule will not result in discipline. [Model Rules of Prof’l Conduct Scope
[14] (Am. Bar Ass’n 2020).]
Powers of Courts and Other Bodies to Regulate Lawyers
Ultimately, the courts are vested with the authority to govern the legal profession. The admission
and regulation of lawyers is generally performed by state supreme courts. As for lawyers
admitted to practice, the state’s bar association may help the courts regulate their conduct and
administer disciplinary actions. [See Model Rules of Prof’l Conduct Preamble [10] (Am. Bar Ass’n
2020).]
1. American Bar Association
The ABA has no direct, legal authority to regulate the conduct of lawyers. Rather, the MRPC
provide an ethical framework for states to fashion both codes of conduct and rules to which
lawyers must adhere. Thus, the ABA cannot discipline a lawyer for failing to comply with the
MRPC. Instead, disciplinary authority lies with the states based on the rules that they have
adopted to govern lawyers in their respective jurisdictions. [See Model Rules of Prof’l Conduct
Comm’n on Eval. of Prof’l Standards, Chair’s Introduction (Am. Bar Ass’n 2020).]
2. State Judiciaries
Legal Ethics | 21
Typically, a state’s highest court promulgates the rules that govern a lawyer’s conduct. These
rules usually include some version of the MRPC, and they may contain additional rules and
ethical norms. Some states then delegate both the enforcement of the rules and disciplinary
actions to state bar associations. Other states establish special regulatory or disciplinary
committees to perform these tasks. Because of the judiciary’s leading role in regulating
lawyers, the legal profession is sometimes said to be self-governing. This means that the rules
of the legal profession are generally established and administered by lawyers, i.e., by judges
or lawyer administrators, instead of by nonlawyers. [Model Rules of Prof’l Conduct Preamble
[10] (Am. Bar Ass’n 2020); 7 Am. Jur. 2d Attorneys at Law § 2, Westlaw (database updated
May 2022).]
3. Legislatures, Agencies and Court Rules
In addition to being regulated by the state judiciaries, lawyers and legal practice in a given
jurisdiction might also be regulated by state or federal statutes, state or federal administrative
agencies, or general court rules such as the rules of evidence and procedure. For instance,
state statutes may create state bar associations or address matters of licensure. In addition,
each of the 94 federal district courts have adopted some version of a state’s ethics rules
and/or the MRPC for attorneys practicing in federal court. Federal statutory law provides
standards of conduct for lawyers appearing before the Securities and Exchange Commission
and other federal agencies. Likewise, the Federal Rules of Civil Procedure include standards
of diligence and good faith for lawyers who act as advocates in the federal courts. [See Keller
v. State Bar of Cal., 496 U.S. 1 (1990); Lathrop v. Donohue, 367 U.S. 820 (1961); Fed. R. Civ. P.
11; Model Rules of Prof’l Conduct Scope [15] (Am. Bar Ass’n 2020).]
4. State Bar Associations
Acting upon authority given by the state’s highest court, a state bar association or other
established administrative body administers the bar exam and often requires lawyers to
engage in continuing legal education (CLE) after licensure. Further, the bar association or
administrative body frequently administers lawyer discipline and acts as the first point of
contact when a complaint is submitted by a client or someone else regarding a lawyer’s
behavior. Membership in bar associations may be mandatory or optional. [See Keller v. State
Bar of Cal., 496 U.S. 1 (1990); 7 Am. Jur. 2d Attorneys at Law §§ 7, 13-14, 20, Westlaw
(database updated May 2022).]
a. Integrated Bar
An integrated bar is one that a lawyer is required to join upon being admitted to practice law
in the state. The majority of states have integrated bars. Bar-association membership
generally requires the lawyer to pay annual mandatory dues, and lawyers’ attempts to be
released from these dues typically fail in integrated-bar states.
Legal Ethics | 22
b. Permissive Bar
A permissive bar is one that is a lawyer may join, but which is not mandatory upon licensure.
A permissive bar performs some of the same functions as an integrated bar. In most states
with permissive bar associations, the state’s highest court administers the rules of lawyer
admission and discipline.
5. The Federal Courts
Federal courts, including the United States Supreme Court, are responsible for promulgating
their own ethical rules for lawyers who appear before them. In general, each federal district
court adopts its own standards of professional conduct through its local court rules. In doing
so, a federal district court will sometimes adopt for itself the ethical rules of the state in which
the court is located. In addition, each federal court has its own bar to which any lawyer who
appears before it must be admitted. [See 28 U.S.C. § 1654 (2012); Cakebread v. Berkeley
Millwork & Furniture Co., Inc., 218 F. Supp. 3d 1040 (N.D. Cal. 2016).]
Admission to the Profession
Each state establishes its own requirements for admitting lawyers to the practice of law in that
state. Admission to practice is sometimes called admission to the bar. The states have great
latitude in setting their standards, but those standards must be rationally related to the
applicant’s fitness to practice law. An individual applying for admission to a state bar must be
truthful in the admissions process and be psychologically and morally fit to practice law. The
burden of proving the required characteristics is on the applicant.
1. State Requirements
States have an interest in assuring the minimum competence of the lawyers who practice in
their courts and provide counsel. The Supreme Court has held that although a state’s
requirements for bar admission may not be completely arbitrary, they generally need only be
rationally related to an applicant’s fitness to practice law. This means that the state’s criteria
will usually be upheld unless they have no conceivable relationship to an applicant’s fitness to
practice. This is a forgiving standard that leaves the states significant control over bar
admissions. [Frazier v. Heebe, 482 U.S. 641 (1987); Supreme Court of N.H. v. Piper, 470 U.S.
274 (1985); 7 Am. Jur. 2d Attorneys at Law §§ 13-14, Westlaw (database updated May 2022).]
a. Permissible Requirements
Examples of permissible requirements for bar admission include ensuring that an applicant:
 possesses good moral character,
 is a graduate of an accredited law school and completes ongoing legal education,
Legal Ethics | 23
 has successfully passed a bar examination, and
 takes an oath to uphold state and federal laws and constitutions.
Examples of impermissible state requirements include (1) requiring that an applicant be a
resident of the state in which she seeks admission or (2) allowing denial of admission to a
state’s bar based upon an applicant’s political beliefs. [Frazier v. Heebe, 482 U.S. 641
(1987); Supreme Court of N.H. v. Piper, 470 U.S. 274 (1985); Law Students Civil Rights
Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971); Schware v. Bd. of Bar Exam’rs,
353 U.S. 232 (1957); Cline v. Supreme Court of Ga., 781 F.2d 1541 (11th Cir. 1986); 7 Am.
Jur. 2d Attorneys at Law §§ 13-16, Westlaw (database updated May 2022).]
2. Truthfulness during the Admissions Process
An applicant for admission to a state bar must respond truthfully to all demands for information
from the bar-admission authorities. More precisely, an applicant to the bar may not:
 knowingly make a false statement of material fact,
 knowingly fail to disclose a fact necessary to correct a misunderstanding that the applicant
knows has arisen, or
 knowingly fail to respond to a lawful information request from a bar-admission authority.
If an applicant’s false statement is discovered before the applicant is admitted, the falsehood
may be grounds to deny the application. If the false statement is discovered after a lawyer
has been admitted, the falsehood may result in disciplinary proceedings. The requirement of
truthfulness in bar admissions also applies to a licensed lawyer providing information about an
applicant to the bar. This rule is unique in applying not only to licensed lawyers, but also to
nonlawyer applicants. [Attorney Grievance Comm’n of Md. v. Slate, 180 A.3d 134 (Md. 2018);
Model Rules of Prof’l Conduct r. 8.1 (Am. Bar Ass’n 2020).]
a. Knowing, Material False Statement
The truthfulness requirement in bar admissions imposes a penalty only if the applicant or
lawyer knowingly makes a material and false statement or nondisclosure.
Knowingly
Under the MRPC, a person acts knowingly in making a false statement or a
nondisclosure if she is actually aware:
 that the statement is false when she makes it,
 that the failure to provide information will perpetuate a false impression, or
Legal Ethics | 24
 that she is failing to provide requested information.
Consequently, an applicant who mistakenly provided false information on a bar
application likely would not be subject to penalty, unless the applicant later discovered
the mistake and failed to make a disclosure necessary to correct it. [Model Rules of
Prof’l Conduct r. 1.0(f), 8.1(a)-(b) (Am. Bar Ass’n 2020).]
Material
The term material means that the false statement or nondisclosure was important
enough to call into question the applicant’s fitness to practice law in the state.
Example:
An applicant for bar admission failed to disclose to the admissions committee that he
had recently declared bankruptcy for failure to pay his law-school student loans. The
applicant believed that this information was irrelevant to his application. The
admissions committee disagreed and found the bankruptcy to be a material fact that
the applicant failed to disclose. Nothing connected to the applicant’s bankruptcy
suggested that he had committed any fraud, deceit, or conduct involving moral
turpitude. Nevertheless, the applicant’s conduct prior to the bankruptcy surrounding his
financial responsibility and his default on the student loans was evidence of poor moral
character. Thus, the applicant was denied admission to the bar. [Adapted from
Application of Gahan, 279 N.W.2d 826 (Minn. 1979).]
Statements
The term statements has been interpreted to include both assertions and omissions of
facts. One example of an omission is an applicant’s failure to disclose any criminal
record. [See Model Rules of Prof’l Conduct r. 8.1 (Am. Bar Ass’n 2020).]
Exceptions
Despite the general requirement of truthfulness, a lawyer who represents a bar
applicant need not disclose information that is protected by principles of lawyer-client
confidentiality. The truthfulness requirement also does not supersede an applicant’s
right against self-incrimination under the Fifth Amendment to the United States
Constitution. However, because a bar applicant has the burden to prove she is qualified
to be licensed, her failure to answer a question on Fifth Amendment grounds may result
in her being denied admission. [U.S. Const. amend. V; Attorney Grievance Comm’n of
Md. v. Slate, 180 A.3d 134 (Md. 2018); Model Rules of Prof’l Conduct r. 1.6, r. 8.1(b) cmt.
2 (Am. Bar Ass’n 2020).]
Legal Ethics | 25
3. Character-and-Fitness Requirement
All states require a bar applicant to have the required character and fitness to practice law.
The burden is always on the applicant to prove good character and fitness. Typically, the
process begins when an applicant completes an affidavit detailing his personal and
professional history, a questionnaire submitted under oath, and other similar documents. In
addition, the applicant may also be required to submit references, fingerprints, or a
photograph of himself. The applicant may be required to respond to a committee’s requests
for additional information or appear at a hearing. [See Law Students Civil Rights Research
Council, Inc. v. Wadmond, 401 U.S. 154 (1971); In re DeBartolo, 488 N.E.2d 947 (Ill. 1986);
Marc Ratcliff, The Good Character Requirement: A Proposal for a Uniform National Standard,
36 Tulsa L. J. 487 (2013); 7 Am. Jur. 2d Attorneys at Law §§ 24-25, Westlaw (database
updated May 2022).]
a. Constitutionality of Character-and-Fitness Requirement
The Supreme Court has upheld the constitutionality of the character-and-fitness inquiry.
An applicant’s character and fitness, among other characteristics, are rationally related to
an applicant’s suitability to practice law. [Law Students Civil Rights Research Council, Inc. v.
Wadmond, 401 U.S. 154 (1971).]
4. Other Considerations for Determining Admission
A state’s bar reviews an applicant’s submitted materials to determine whether any information
indicates that the applicant should not be admitted to practice. In general, no single improper
action in a bar applicant’s past, even a felony conviction, is likely to automatically and
permanently disqualify the applicant from admission to the bar. Instead, a bar-admission
authority will tend to review adverse information in the context of an entire application to
assess an applicant’s fitness. Relevant considerations may include (1) the time elapsed since
the adverse event, (2) an applicant’s behavior or degree of contrition after the event, or (3)
the nature and context of the adverse information. [See In re Mustafa, 631 A.2d 45 (D.C. 1993);
In re DeBartolo, 488 N.E.2d 947 (Ill. 1986); 7 Am. Jur. 2d Attorneys at Law §§ 27-28, Westlaw
(database updated May 2022); Keith Swisher, The Troubling Rise of the Legal Profession’s
Good Moral Character, 82 St. John’s L. Rev. 1037 (2008).]
a. Criminal Conduct
Evidence of criminal conduct or convictions generally weighs against finding good moral
character. In considering this issue, a state authority may take into account not only
criminal convictions, but also any criminal conduct of which the applicant was merely
accused or even of which she was acquitted. Only a few jurisdictions make a felony
conviction an automatic disqualification for admission. [See Siegel v. Comm. of Bar Exam’rs,
514 P.2d 967 (Cal. 1973); In re Cassidy, 51 N.Y.S.2d 202 (N.Y. App. Div. 1944).]
Legal Ethics | 26
Example:
An applicant sought admission to a state bar, but the admissions committee refused to
certify the applicant’s character and fitness for the practice of law. The refusal was based
on the applicant’s disclosure that he had incurred 200 to 400 parking tickets during law
school and twice had falsely represented himself as a police officer to others. At a hearing,
several individuals testified to the applicant’s integrity and overall fitness to practice law.
At the time of the hearing, the applicant had no record of moving traffic violations or
criminal convictions. The committee’s refusal to certify the applicant’s character and
fitness at the time of his original application was upheld, but the committee’s decision did
not act as a complete disqualification from admission to the bar in the future if the
applicant chose to reapply after the hearing. [Adapted from In re DeBartolo, 488 N.E.2d
947 (Ill. 1986).]
b. Academic Misconduct
In assessing character and fitness, a bar-admission authority may treat academic
misconduct as behavior involving fraud, dishonesty, or deceit that will disfavor admission.
Matters reflecting on an applicant’s honesty or truthfulness are generally considered to be
highly important in assessing an applicant’s fitness to practice law. [See In re Mustafa, 631
A.2d 45 (D.C. 1993); Model Rules of Prof’l Conduct r. 8.1 cmt. 1 (Am. Bar Ass’n 2020).]
c. Drug or Alcohol Dependency
Evidence of a bar applicant’s drug or alcohol dependency may be a factor in considering
whether the applicant possesses good moral character. However, a bar-admission
committee will also take into account the applicant’s efforts at rehabilitation and the time
that has elapsed since the applicant began treatment. [In re Application of Kemp, 703
N.E.2d 769 (Ohio 1998); In re Bar Admission of Manion, 540 N.W.2d 186 (Wis. 1995).]
d. Mental Health or Emotional Instability
In assessing an applicant’s character and fitness, a bar-admission authority may consider
an applicant’s mental-health status or history. An existing mental-health condition may be a
basis for denying bar admission if that condition interferes with the applicant’s ability to
practice law competently. However, bar-admission authorities increasingly recognize that
past treatment for a mental-health condition is not by itself indicative of poor moral
character or of present unfitness to practice law. Thus, there is a trend away from asking
about past mental-health issues in the bar-admission process. An applicant’s present
mental health, however, remains relevant in assessing the applicant’s current fitness to
practice law, with due regard for the Americans with Disabilities Act. [In re Application of
Bower, 605 N.E.2d 6 (Ohio 1992); Ann Hubbard, Improving the Fitness Inquiry of the North
Carolina Bar Application, 81 N.C. L. Rev. 2179 (2003).]
Legal Ethics | 27
e. Acts Involving Dishonesty, Fraud, Deceit, or Misrepresentation
Evidence of a bar applicant’s fraud, deceit, misrepresentation, or lack of honesty (i.e., acts
of moral turpitude) is an important factor in the admissions process.
Example:
An applicant for bar admission disclosed that he had embezzled approximately $3,500
from a law-school moot-court checking account. Following a hearing, the admissions
committee found that the applicant had always intended to repay the money. The
committee also was impressed by the applicant’s honesty and candor. The committee
therefore recommended admission. However, despite this recommendation, the
authorizing court denied the applicant admission based on the previous acts of dishonesty.
[See In re Mustafa, 631 A.2d 45 (D.C. 1993).]
f. Political Beliefs
In general, a state may not deny bar admission to a person based on that person’s political
beliefs. Standing alone, even unusual or unpopular beliefs are generally not rationally
related to a person’s fitness to practice law. [In re Stolar, 401 U.S. 23 (1971); Schware v. Bd.
of Bar Exam’rs, 353 U.S. 232 (1957).]
5. Right to Due Process
A bar applicant has a right to procedural due process throughout the application proceedings.
At a minimum, procedural due process entitles an applicant to notice of any proposed grounds
for nonadmission and an opportunity to be heard before admission is denied. Although
admission procedures vary from state to state, generally, an applicant who is denied bar
admission may appeal the denial by petitioning for a hearing before either a court or a
dedicated appeals committee of the state bar. Most courts are cautious about reversing the
determinations of the bar examiners or other admissions authorities. As a result, although the
courts will exercise their powers of review, they tend to defer to the examiners’ decisions.
[Willner v. Comm. on Character & Fitness, 373 U.S. 96 (1963); 7 Am. Jur. 2d Attorneys at Law
§§ 19-20, Westlaw (database updated May. 2022).]
Example:
An applicant was denied admission to the bar because the committee on character and fitness
was not satisfied that he possessed good moral character. Despite multiple requests to the
state appellate court for an order directing the committee to review its determination and
state why it rejected the applicant, the court refused. However, the applicant was entitled to
notice of and a hearing on the grounds for his rejection either before the committee or before
the state appellate court. Because the applicant had no opportunity to ascertain and contest
Legal Ethics | 28
the bases for the denial of admission, the applicant was deprived of procedural due process.
[Willner v. Comm. on Character & Fitness, 373 U.S. 96 (1963).]
Regulation After Admission—Lawyer Discipline
Upon admission to a state bar, a lawyer is subject to the ethical rules and regulations
promulgated by that jurisdiction. Violation of the rules may subject a lawyer to disciplinary action.
1. Lawyer Misconduct
The MRPC identify seven major categories of lawyer misconduct:
 violating or attempting to violate an ethical rule or knowingly assisting another in violating an
ethical rule;
 committing a crime suggesting a lack of honesty, trustworthiness, or fitness to practice law;
 engaging in any conduct involving dishonesty, fraud, deceit, or misrepresentation;
 engaging in conduct that is prejudicial to the administration of justice;
 suggesting that one can improperly influence a government agency or official or get results by
engaging in illegal or unethical conduct;
 knowingly helping a judge violate a law or rule of judicial conduct; and
 engaging in conduct that the lawyer knows or reasonably should know is harassment or
discrimination.
[Model Rules of Prof’l Conduct r. 8.4 (Am. Bar Ass’n 2020).]
2. Lawyer Discipline
In general, a lawyer may be formally disciplined for violating or attempting to violate the
jurisdiction’s rules of professional conduct. Aside from those rules, a lawyer also may be
formally disciplined for:
 violating another jurisdiction’s rules of professional conduct,
 willfully violating a court order imposing discipline, or
 failing to appear before or respond to an appropriate disciplinary authority in the course of a
disciplinary proceeding.
[Model Rules for Lawyer Disciplinary Enforcement r. 9 (Am. Bar Ass’n 2002).]
a. Disciplinary Jurisdiction
Legal Ethics | 29
A lawyer is subject to the disciplinary authority of a particular jurisdiction if (1) the lawyer is
admitted to practice in that jurisdiction, regardless of where the misconduct occurs, or (2)
the lawyer provides or offers legal services in that jurisdiction. [Model Rules of Prof’l
Conduct r. 8.5 (Am. Bar Ass’n 2020).]
Discipline in Multiple Jurisdictions
A lawyer who is subject to the authority of multiple jurisdictions may be disciplined by
more than one jurisdiction for the same conduct. If a lawyer’s conduct is subject to
discipline in multiple jurisdictions, then the disciplining authority should apply the
following rules of professional conduct: (1) if the conduct relates to a matter pending
before a court or other tribunal, the rules of the jurisdiction in which the tribunal sits; or
(2) if no tribunal is involved, the rules of the jurisdiction in which the conduct occurred
or in which the conduct had its primary effect. [Model Rules of Prof’l Conduct r. 8.5(b)
(Am. Bar Ass’n 2020).]
Example:
A lawyer was admitted to practice law in State A and State B. During a court hearing in
State A, the lawyer improperly disclosed confidential client information in violation of
the State A rules of professional conduct. The lawyer was subject to discipline in State
A, where the violation occurred. The lawyer was also subject to discipline in State B,
even though the misconduct occurred in State A, because the lawyer was subject to
discipline by any jurisdiction in which the lawyer was licensed. [Adapted from In re
Ponds, 876 A.2d 636 (D.C. 2005).]
Exception
In general, a lawyer may not be disciplined by any jurisdiction for conduct that complies
with the rules of professional conduct of a jurisdiction in which the lawyer reasonably
believes the conduct will have its primary effect. This holds true even if the conduct
might otherwise subject the lawyer to discipline in a different jurisdiction. [Model Rules
of Prof’l Conduct r. 8.5(b)(2) (Am. Bar Ass’n 2020).]
b. Disciplinary Process
The exact procedures for lawyer discipline can vary slightly from state to state, but in most
states, the disciplinary process follows the general pattern outlined in the ABA’s Model
Rules for Lawyer Disciplinary Enforcement (MRLDE). Like the MRPC, the MRLDE are model
rules that the states may adopt, but they do not by themselves have the force of law. [See
generally Model Rules for Lawyer Disciplinary Enforcement r. 11, 18, 34 (Am. Bar Ass’n
Legal Ethics | 30
2002); 7 Am. Jur. 2d Attorneys at Law §§ 34, 106, 111, 114, Westlaw (database updated
May 2020).]
Filing a Complaint
Generally, the disciplinary process begins when a client or another lawyer files a
complaint with the state bar association or other disciplinary body alleging that a lawyer
has committed some form of misconduct.
Investigation
After a complaint is filed, the disciplinary body then conducts an investigation. The
investigators may ask the lawyer suspected of misconduct to provide documentation
and other materials, such as witness statements.
Formal Charges
If the investigation shows that discipline might be warranted, the disciplinary body
issues formal charges against the lawyer. In most jurisdictions, only a small percentage
of complaints result in formal charges.
Right to Hearing
If charges are issued, the lawyer has a right to a hearing, at which the burden of proof is
on the complaining party or the disciplinary body to show that discipline should be
imposed. The typical standard of proof is by clear and convincing evidence.
Judicial Review
In most situations, a reviewing court has the discretion to review a disciplinary matter at
the request of either the lawyer or the disciplinary authority. In most jurisdictions, a
state’s high court has ultimate appellate review over serious ethical sanctions.
c. Lawyer’s Duty of Truthfulness
A lawyer in a disciplinary matter has a duty to respond truthfully to any inquiry. This means
the lawyer may not:
 knowingly make a false statement of material fact, whether by affirmative statement or by
omission;
 knowingly fail to respond to a lawful request for information; or
 fail to disclose any fact necessary to correct a misimpression of fact that is known to the
lawyer.
Legal Ethics | 31
[Model Rules of Prof’l Conduct r. 8.1 (Am. Bar Ass’n 2020).]
Limitations
The duty of truthfulness in disciplinary proceedings does not require a lawyer to
disclose information that is subject to lawyer-client confidentiality. Nor does this duty
supersede the lawyer’s Fifth Amendment privilege against self-incrimination. However, a
lawyer who relies on the Fifth Amendment in a disciplinary proceeding should openly
assert her reliance and not use it as an after-the-fact excuse for failing to comply with
the duty to respond truthfully. Finally, a lawyer who represents another lawyer in a
disciplinary proceeding is governed by the rules applicable to lawyer-client
relationships in general, including the duty of confidentiality. This includes adhering to
principles of lawyer-client confidentiality. [Model Rules of Prof’l Conduct r. 8.1(b) cmts.
2-3 (Am. Bar Ass’n 2020); Client Confidentiality, infra.]
d. Forms of Discipline
Lawyer misconduct may result in discipline including:
 private reprimand,
 public reprimand or censure,
 suspension,
 disbarment, or
 other sanctions.
[See Model Rules for Lawyer Disciplinary Enforcement r. 10 (Am. Bar Ass’n 2002.]
Private Reprimand
Reprimands are written admonishments from the bar association or other authority
explaining the lawyer’s misconduct. Generally, a reprimand is the least serious form of
discipline that may be imposed upon a lawyer. Thus, a reprimand typically is not
available for egregious instances of misconduct or if a lawyer commits a crime. A
private reprimand, sometimes called an admonition, is provided only to the lawyer and is
placed on file with the state bar’s disciplinary department. A private reprimand may be
considered in subsequent disciplinary proceedings but does not impair the lawyer’s
right to practice law in the disciplining jurisdiction. [See In re Application of Collins, 849
N.W.2d 131 (Neb. 2014); Model Rules for Lawyer Disciplinary Enforcement r. 10(A)(4)(5), with commentary (Am. Bar Ass’n 2002).]
Public Reprimand or Censure
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A public reprimand, also called a censure, is a reprimand made accessible to the public,
often through publication in a bar journal or elsewhere. As the name suggests, a public
reprimand informs the public of the lawyer’s unethical conduct. Like a private reprimand,
a public reprimand does not limit the lawyer’s ability to practice law in the disciplining
jurisdiction. [See In re Application of Collins, 849 N.W.2d 131 (Neb. 2014); Model Rules
for Lawyer Disciplinary Enforcement r. 10(A)(4)-(5), with commentary (Am. Bar Ass’n
2002).]
Suspension
A suspension is a specified period of time during which a lawyer may not practice law in
the disciplining jurisdiction. A lawyer’s suspension is generally made public by the
disciplining jurisdiction, both to protect the public and to deter misconduct by other
lawyers. [See Model Rules for Lawyer Disciplinary Enforcement r. 10(A)(2), with
commentary (Am. Bar Ass’n 2002).]
Disbarment
Disbarment is the complete and permanent revocation of a lawyer’s ability to practice
law in the disciplining jurisdiction. A lawyer’s disbarment in one state can be considered
in determining whether the lawyer is subsequently fit to practice law in another state. A
lawyer’s disbarment is generally made public by the disciplining jurisdiction, both to
protect the public and to deter misconduct by other lawyers. [See Model Rules for
Lawyer Disciplinary Enforcement r. 10(A)(1), with commentary (Am. Bar Ass’n 2002).]
Other Sanctions
In addition to the most common forms of discipline, most jurisdictions have the power
to impose other sanctions, such as requiring the lawyer to pay restitution to someone
whom the lawyer harmed or placing the lawyer on a probationary license. [See Model
Rules for Lawyer Disciplinary Enforcement r. 10 (Am. Bar Ass’n 2002).]
Mandatory and Permissive Reporting of Professional Misconduct
Under some circumstances, a lawyer must report the serious professional misconduct of other
lawyers. The failure to report unethical behavior can itself be grounds for discipline. However, a
lawyer is under no duty to report the lawyer’s own violation of the ethical rules. [Model Rules of
Prof’l Conduct r. 8.3 (Am. Bar Ass’n 2020).]
1. Mandatory Reporting
A lawyer is required to report misconduct by another lawyer, or by a judge, to the appropriate
disciplinary authority if (1) the lawyer knows that another lawyer has violated the professional
Legal Ethics | 33
rules in a way that raises a substantial question about the lawyer’s honesty, trustworthiness,
or fitness to practice law; or (2) the lawyer knows that a judge has violated the rules of
judicial conduct in a way that raises a substantial question about the judge’s fitness for office.
[Model Rules of Prof’l Conduct r. 8.3 (Am. Bar Ass’n 2020).]
Note: The term substantial in this rule refers to the seriousness of the misconduct, not to the
amount of evidence the reporting lawyer must have to validate a misconduct claim. [Model
Rules of Prof’l Conduct r. 8.3 cmt. 3 (Am. Bar Ass’n 2020).]
Example:
Two lawyers shared office space but were not members of the same law firm. The first lawyer
asked the second lawyer to go to a hearing for him on a client-related matter, because he was
going out of town on vacation. The client consented to the substitution. The second lawyer
noticed in the client’s file that the first lawyer had written notes indicating that he had
assisted the client in lying to the court in an affidavit. The second lawyer had a duty under the
ethical rules to report the first lawyer’s dishonest and unethical conduct. [Model Rules of Prof’l
Conduct r. 8.3 (Am. Bar Ass’n 2020).]
a. Exceptions
The duty to report does not apply to information that is protected by lawyer-client
confidentiality. Nor does this duty apply to information learned while participating in a
lawyers’ assistance program, which is an official program to help lawyers address
substance abuse, mental-health issues, and other personal difficulties. [Model Rules of
Prof’l Conduct r. 8.3 cmts. 4-5 (Am. Bar Ass’n 2020).]
2. Permissive Reporting
In contrast with the requirement that a lawyer report another lawyer’s serious misconduct, a
lawyer may report, but is not required to report, another lawyer’s minor violations of the ethics
rules. Thus, the reporting requirement is limited to the most serious offenses and does not
apply to trivial violations. The ethical rules allow the reporting lawyer to determine in her
professional judgment whether an offense is serious enough to report. In addition, a lawyer
may report another lawyer if the reporting lawyer reasonably believes (but does not know)
that the other lawyer violated an ethics rule. [Model Rules of Prof’l Conduct r. 8.3(a) cmt. 3
(Am. Bar Ass’n 2020).]
Example:
Two lawyers shared office space but were not members of the same law firm. The first lawyer
asked the second lawyer to go to a hearing for him on a client-related matter, because he was
going out of town on vacation. The client consented to the substitution. In speaking with the
Legal Ethics | 34
client, the second lawyer came to suspect that the first lawyer had assisted the client in lying
to the court in an affidavit. However, the second lawyer did not actually know that the
misconduct had occurred. Because the second lawyer had only a suspicion of a violation,
rather than actual knowledge, the second lawyer had no duty to report the first lawyer’s
suspected unethical conduct. However, the second lawyer could choose to report if she
wished to do so. [Model Rules of Prof’l Conduct r. 8.3 (Am. Bar Ass’n 2020).]
Unauthorized Practice of Law—by Lawyers and Nonlawyers
A person engages in the unauthorized practice of law by practicing within a jurisdiction without
having the proper credentials and authorization to do so. Most fundamentally, a person who is
not a lawyer may not practice law. However, even a lawyer must follow each jurisdiction’s
requirements to obtain authorization.
1. Defining the Practice of Law
Each state’s law defines what constitutes the practice of law in that state. Generally, the
practice of law is the application of legal principles and judgment regarding a person’s
circumstances, including the giving of legal advice, appearing before a court, negotiating
settlements, or drafting legal documents. [See, e.g., Ala. Code § 34-3-6 (2018).]
a. Exceptions
Some courts hold that a person does not practice law by carrying out activities that require
little or no legal judgment, even if those activities are closely connected to legal
proceedings. Common examples of these activities include filling out tax forms, filling out
real estate closing forms, and adjusting insurance claims. Thus, it generally is not
considered the unauthorized practice of law for someone to:
 handle his own legal affairs, e.g., to represent himself pro se in court;
 complete standardized forms by filling in blanks on documents such as tax returns or deeds;
or
 work as a paraprofessional, e.g., as a legal secretary or paralegal, under the direct
supervision of a licensed lawyer.
The more routine a task is, such as filling out standard forms, the more likely the courts are
to find that it does not constitute the practice of law. [Model Rules of Prof’l Conduct r. 5.5.
cmts. 2-3 (Am. Bar Ass’n 2020); 7 Am. Jur. 2d Attorneys at Law §§ 123, 128-29, Westlaw
(database updated May 2022).]
2. Defining the Unauthorized Practice of Law
Legal Ethics | 35
A person, including a lawyer, engages in the unauthorized practice of law if that person (1)
practices law in a jurisdiction without adhering to that jurisdiction’s regulation of the legal
profession or (2) helps another lawyer or a nonlawyer to violate the jurisdiction’s requirements
regarding the practice of law. [Model Rules of Prof’l Conduct r. 5.5(a), 5.5.(c), with comments
(Am. Bar Ass’n 2020); 7 Am. Jur. 2d Attorneys at Law § 119, Westlaw (database updated May
2022).]
3. Obtaining Authorization to Practice
A lawyer generally may not practice law in a particular jurisdiction unless the lawyer is
explicitly authorized to practice in that jurisdiction.
a. In General
Authorization for a lawyer to practice law is typically acquired:
 by joining a state bar;
 by special court order, also called admission pro hac vice; or
 by a rule or other grant of permission allowing temporary practice in a jurisdiction in which
the lawyer is not formally admitted.
In order to practice, the lawyer must also be in good standing (e.g., a lawyer may not
practice during a period of disciplinary suspension). [Model Rules of Prof’l Conduct r. 5.5(a),
5.5.(c), with comments (Am. Bar Ass’n 2020).]
Admission Pro Hac Vice
An admission to practice pro hac vice is a court’s authorization for a lawyer who is not
licensed in that state to appear before the court for purposes of a single case or other
proceeding. An admission pro hac vice does not constitute the unauthorized practice of
law, because the lawyer has received special permission from the court to practice
before it. To appear pro hac vice, an out-of-state lawyer must:
 be in good standing in all jurisdictions in which the lawyer is admitted to practice,
 have a reasonable connection to the case for which pro hac vice admission is sought, and
 obtain the court’s permission to appear in the case.
A court has discretion whether to admit a lawyer pro hac vice. An admission pro hac
vice does not extend to any matters other than the proceeding for which the admission
is granted. [Model Rules of Prof’l Conduct r. 5.5(c)(2) (Am. Bar Ass’n 2020); 7 Am. Jur.
2d Attorneys at Law § 22, Westlaw (database updated May 2022).]
Legal Ethics | 36
4. Jurisdictional Presence and Affiliation
A lawyer who is not admitted to practice in a jurisdiction must not (1) establish an office or
other systematic or continuous presence in the jurisdiction for the practice of law or (2) hold
himself out to the public as a lawyer admitted to practice law in that jurisdiction. [Model Rules
of Prof’l Conduct r. 5.5(b) (Am. Bar Ass’n 2020).]
Multijurisdictional Practice of Law
Many lawyers represent clients whose activities cross jurisdictional lines. Moreover, a given
representation might require activities in another jurisdiction, such as interviewing or deposing an
out-of-state witness. To accommodate these types of matters, the rules of professional conduct
recognize limited circumstances in which a lawyer may render legal services in a jurisdiction in
which she is not formally admitted to practice.
1. Temporary Representation
In limited circumstances, a lawyer who is admitted to practice and in good standing in one
jurisdiction (the lawyer’s home jurisdiction) may temporarily provide legal services to a client in
another jurisdiction in which the lawyer is not admitted to practice (the host jurisdiction). The
lawyer will be bound by the ethical rules of and subject to discipline in both jurisdictions.
[Model Rules of Prof’l Conduct r. 5.5(c) cmts. 5-6 (Am. Bar Ass’n 2020).]
a. Associating with Local Counsel
A lawyer may provide temporary legal services in the host jurisdiction by associating with a
local lawyer who actively participates in the matter.
b. Services Reasonably Related to Pending Proceedings
A lawyer may provide temporary legal services in the host jurisdiction if those services are
reasonably related to a pending or potential proceeding before a tribunal in the lawyer’s
home jurisdiction. A lawyer may also provide temporary services reasonably related to a
proceeding before any tribunal if the lawyer, or a person the lawyer is assisting, is
authorized by law or court order to appear in the proceeding (e.g., by a grant of pro hac
vice admission) or reasonably expects to be so authorized. For instance, a lawyer who is
admitted pro hac vice for a proceeding in Jurisdiction A may provide temporary services in
Jurisdiction B that are reasonably related to that proceeding.
c. Alternative-Dispute-Resolution Proceeding
A lawyer may provide temporary legal services in the host jurisdiction that are reasonably
related to a pending or potential arbitration, mediation, or other alternative-disputeresolution proceeding in any jurisdiction. These services must also be reasonably related to
Legal Ethics | 37
the lawyer’s practice in his home jurisdiction and must not be services for which the host
jurisdiction requires the lawyer to be admitted pro hac vice. [Model Rules of Prof’l Conduct
r. 5.5(c)(3) (Am. Bar Ass’n 2020).]
d. Other Instances
A lawyer may provide temporary legal services in the host jurisdiction if the services are
reasonably related to the lawyer’s practice in the lawyer’s home jurisdiction.
Example:
An estate-planning lawyer represented a client in the lawyer’s home jurisdiction. The client
owned property and businesses in both the lawyer’s home jurisdiction and the neighboring
state. The lawyer drafted for the client a last will and testament and other estate-planning
documents that applied to the properties in both states. The lawyer is permitted to handle
the client’s property in the neighboring state, even though he is not licensed there,
because the services he is providing are reasonably related to his practice of estate
planning in his home jurisdiction.
2. Non-Temporary Representation
A lawyer in good standing in a jurisdiction in which she is admitted to practice, and who is not
disbarred or suspended from practice in any jurisdiction, may sometimes practice law outside
of that jurisdiction, even on more than a temporary basis. Under this rule, the lawyer may
provide legal services through an office or other systematic and continuous presence in the
state (1) to her employer, or the employer’s organizational affiliates, if those services do not
require pro hac vice admission or (2) as allowed by federal or other law. This provision often
applies to an in-house corporate lawyer or a lawyer who works for a government agency. If
legal services are provided under this rule by a foreign lawyer (i.e., a lawyer who is licensed to
practice in another country but not within any US state), then those services must be based
on the advice of a lawyer who is licensed in the jurisdiction in which the practice occurs.
[Model Rules of Prof’l Conduct r. 5.5(d) (Am. Bar Ass’n 2020).]
Fee Division with a Nonlawyer
The independent judgment of a lawyer in providing legal services should not be compromised by
relationships with nonlawyers. Thus, lawyers and law firms must not share legal fees with
nonlawyers, except in limited circumstances. [Model Rules of Prof’l Conduct r. 5.4(a) (Am. Bar
Ass’n 2020).]
1. Payment on Death
Legal Ethics | 38
A lawyer may enter into an agreement with the lawyer’s firm, partner, or associate for the
payment of money over a reasonable period of time after the lawyer’s death either to his
estate or a specified individual.
2. Purchase of a Practice
A lawyer who buys the law practice of a deceased, disabled, or disappeared lawyer may pay
the purchase price to the lawyer’s estate or representative. These purchases remain subject
to the ethical rules regarding the sale of a law practice. [See Model Rules of Prof’l Conduct r.
1.17 (Am. Bar Ass’n 2020); Sale of a Law Practice, infra.]
3. Compensation or Retirement Plan
A lawyer or firm may include nonlawyer employees in a compensation or retirement plan, even
if the plan is based on a profit-sharing arrangement.
4. Court-Awarded Fees
A lawyer may share court-awarded fees with a nonprofit organization that employed or
retained the lawyer.
Law Firms and Other Forms of Practice
The MRPC define a law firm as:
 one or more lawyers in a law partnership, a sole proprietorship, a professional corporation, or some
other association authorized to practice law;
 lawyers working for a legal-services entity; or
 lawyers employed in-house by a corporation or other organization.
[Model Rules of Prof’l Conduct r. 1.0(c) (Am. Bar Ass’n 2020).]
1. Partnerships with Nonlawyers
A lawyer may not enter into a partnership with a nonlawyer if the business of the partnership
will include the practice of law. If the business of the partnership will not include the practice
of law, then this rule does not apply. [Model Rules of Prof’l Conduct r. 5.4(b) (Am. Bar Ass’n
2020).]
2. Direction of Lawyers by Nonclients
If a third party recommends, employs, or pays the lawyer to provide legal services to someone,
the lawyer must not allow the third party to direct or regulate the lawyer’s professional
Legal Ethics | 39
judgment in rendering those services. This rule protects the lawyer from third-party
interference with her judgment in representing her client. [Model Rules of Prof’l Conduct r.
5.4(c) (Am. Bar Ass’n 2020).]
3. Management or Ownership of Law Firms
If a lawyer practices with or as a professional corporation or other for-profit entity, the ethical
rules restrict the role of nonlawyers in the management or ownership of that entity.
Specifically, a lawyer may not practice with or as a professional corporation or other for-profit
entity if a nonlawyer:
 owns any interest in the entity, unless as a fiduciary during the administration of a deceased
lawyer’s estate;
 is a corporate director, a corporate officer, or someone of comparable authority in a noncorporate entity; or
 has the right within the organization to control or direct the lawyer’s professional judgment.
[Model Rules of Prof’l Conduct r. 5.4(d) (Am. Bar Ass’n 2020).]
Responsibilities of Partners, Managers, Supervisory and Subordinate
Lawyers
In some circumstances, lawyers with managerial or supervisory authority in a law firm have
responsibility for the ethical conduct of lawyers and staff within the firm.
1. Law-Firm Partners and Managers
A partner in a law firm, or a lawyer with comparable managerial authority, must make
reasonable efforts to ensure that the firm takes measures providing reasonable assurance that
all lawyers in the firm comply with the rules of professional conduct. This duty might require
such measures as:
 ensuring proper supervision of inexperienced lawyers,
 identifying deadlines and important dates in pending matters,
 discovering and resolving conflicts of interest,
 accounting for client funds and property,
 conducting periodic compliance reviews,
 providing channels for lawyers to raise ethical issues,
 providing continuing legal education in professional ethics, and
Legal Ethics | 40
 promulgating other policies and procedures depending on the structure of the law firm and the
nature of the firm’s practice.
[Model Rules of Prof’l Conduct r. 1.0(g), r. 5.1(a) cmts. 1-3 (Am. Bar Ass’n 2020).]
a. Definition of Partner
A partner in a law firm is defined as (1) a member of the partnership and party to the
partnership agreement, (2) a shareholder in the firm’s professional corporation, or (3) a
member in an association authorized to practice law. [Model Rules of Prof’l Conduct r. 1.0(g)
(Am. Bar Ass’n 2020).]
2. Supervisory Lawyers
A lawyer with direct supervisory authority over another lawyer must make reasonable efforts to
ensure that the supervised lawyer conforms to the ethical rules. This rule does not eliminate
the duty of the supervised lawyer to ensure his own compliance with the rules of professional
conduct. [Model Rules of Prof’l Conduct r. 5.1(b) cmt. 8 (Am. Bar Ass’n 2020).]
3. Violations and Accountability
One lawyer is responsible for another lawyer’s violation of the rules of professional conduct if
the responsible lawyer orders or knowingly ratifies the other lawyer’s conduct. In addition, one
lawyer is responsible for another lawyer’s violation if the responsible lawyer (1) is a partner or
has comparable managerial authority in the other lawyer’s law firm, or if the responsible
lawyer directly supervises the other lawyer, and (2) knows of the unethical conduct at a point
when its consequences can be lessened or avoided, but (3) fails to take reasonable action in
light of this knowledge. [Model Rules of Prof’l Conduct r. 5.1(c) (Am. Bar Ass’n 2020).]
Example:
An associate lawyer was reviewing documents submitted by a client related to a lawsuit
against the client for securities fraud. The associate found a document that was clearly
adverse to the client in the litigation. The associate informed the supervising partner of the
problem and said that she would destroy the document. Destroying the document would
violate the rules of professional conduct. If the partner does not stop the associate from
taking this action, the partner, as well as the associate, will be subject to professional
discipline. [Model Rules of Prof’l Conduct r. 5.1(c) (Am. Bar Ass’n 2020).]
4. Subordinate Lawyers
A lawyer is generally bound by the rules of professional conduct even if the lawyer is acting at
the direction of another lawyer. This is based on the principle that a lawyer is independently
Legal Ethics | 41
responsible for ensuring his own compliance with the ethical rules. However, a subordinate
lawyer is not responsible for a violation of the rules of professional conduct if (1) a situation
raises an arguable question of professional ethics, and (2) the subordinate relies on the
supervising lawyer’s reasonable resolution of the question. Thus, even if the supervising
lawyer’s decision is later found to be incorrect, the subordinate lawyer’s actions will not be
subject to professional discipline. [Model Rules of Prof’l Conduct r. 5.2(b) cmt. 2 (Am. Bar
Ass’n 2020).]
Example:
A plaintiff in a civil case served a request for production of documents on the firm
representing the defendant. A first-year associate was instructed by his partner supervisor
not to provide the requested documents because the documents were harmful to the
defendant’s case. The partner’s instruction was a clear violation of the ethical rules. If the
associate carries out the partner’s instructions, both the associate and the partner will be
subject to discipline. [Model Rules of Prof’l Conduct r. 5.2(b) cmt. 2 (Am. Bar Ass’n 2020).]
Compare:
A plaintiff in a civil case served a request for production of documents on the firm
representing the defendant. Under the applicable law, it was unclear whether a certain set of
documents fell within the request. The partner supervisor instructed the first-year associate
who was responding to the request not to provide the documents, based on the partner’s
belief that the documents did not fall under the request. If a court later determines that the
questionable documents should have been provided, but that the question was an arguable
one, then the first-year associate will not be subject to discipline: the associate was acting
based on the partner supervisor’s resolution of an arguable ethical question. [Model Rules of
Prof’l Conduct r. 5.2(b) cmt. 2 (Am. Bar Ass’n 2020).]
5. Nonlawyer Assistants
A partner in a law firm, or a lawyer with comparable managerial authority, must make
reasonable efforts to ensure that the firm takes measures providing reasonable assurance that
all nonlawyer assistants (e.g., paralegals, law clerks, or administrative employees) act in a way
that is consistent with the lawyer’s own ethical obligations. Similarly, any lawyer who directly
supervises a nonlawyer assistant must make reasonable efforts to ensure that the assistant’s
actions are consistent with the lawyer’s own ethical obligations. [Model Rules of Prof’l
Conduct r. 5.3 cmt. 2 (Am. Bar Ass’n 2020).]
a. Violations and Accountability
There are two situations in which a lawyer may be held responsible for the acts of a
nonlawyer assistant that would violate the rules of professional conduct if committed by a
Legal Ethics | 42
lawyer. The first situation imposes liability if the lawyer ordered or knowingly ratified the
nonlawyer’s conduct. The second situation imposes liability if the responsible lawyer (1) is
a partner or has comparable managerial authority in the nonlawyer’s law firm, or if the
responsible lawyer directly supervises the nonlawyer, and (2) knows of the conduct at a
point when its consequences can be lessened or avoided, but (3) fails to take reasonable
action in light of this knowledge. [Model Rules of Prof’l Conduct r. 5.3(c) (Am. Bar Ass’n
2020).]
Restrictions on the Right to Practice
In general, a lawyer may not participate in offering or making a business, employment, or other
agreement that restricts a lawyer’s right to practice law after the relationship underlying the
agreement has ended. This prohibition extends to restrictions on future practice in connection
with settlement agreements. This rule is designed to preserve potential clients’ freedom to
choose a lawyer, as well as a lawyer’s right to practice her profession. [Model Rules of Prof’l
Conduct r. 5.6(a)-(b) cmts. 1-2 (Am. Bar Ass’n 2020).]
Example:
A lawyer represented a client against a company. The lawyer alleged that the company’s disposal
of toxic waste caused the client to contract several serious illnesses. The company offered to
settle all claims but stated it would do so only if the lawyer agreed not to represent clients in
future claims against the company. The lawyer may not agree to this restriction on his right to
practice. [Model Rules of Prof’l Conduct r. 5.6(a)-(b) cmt. 2 (Am. Bar Ass’n 2020).]
1. Exception: Sale of Law Practice
The prohibition-of-practice restrictions do not apply to practice restrictions that arise as part
of the sale of a law practice. In fact, the MRPC affirmatively require the sale of a law practice
to be accompanied by certain limitations on the subsequent activities of the seller. [Model
Rules of Prof’l Conduct r. 1.17, r. 5.6 cmt. 3 (Am. Bar Ass’n 2020); Sale of a Law Practice, infra.]
Sale of a Law Practice
A lawyer or law firm may sell or purchase a law practice or an area of a law practice if (1) the
seller ceases to engage in the private practice of law or practice in the geographic area in which
the practice was located; (2) the entire practice is sold to one or more lawyers or law firms; (3)
the fees charged to clients will not increase due to the sale; and (4) the seller gives written notice
to each client regarding:
 the proposed sale,
 the client’s right to retain other counsel or obtain his file, and
Legal Ethics | 43
 the fact that the client’s consent to the transfer to the new owner will be presumed if the client does
not respond within 90 days of receipt of the notice.
[Model Rules of Prof’l Conduct r. 1.17 (Am. Bar Ass’n 2020).]
1. Practice Restrictions Permitted
The rule prohibiting restrictions on a lawyer’s right to practice is inapplicable when a lawyer
sells a law practice. Rather, the sale agreement may include restrictive covenants limiting the
selling lawyer’s right to (1) engage in the private practice of law, (2) practice a particular area
of law, or (3) practice in a specific geographic area or jurisdiction for a specified period of
time. [Model Rules of Prof’l Conduct r. 1.17(a) (Am. Bar Ass’n 2020).]
II. The Client-Lawyer Relationship
A lawyer’s obligation to a client is a central aspect of legal ethics. A lawyer owes a number of duties to
a client that begin when, or even before, the client-lawyer relationship is formed. [Model Rules of
Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2020).]
Formation of the Client-Lawyer Relationship
Generally, a client-lawyer relationship is formed by mutual agreement of the lawyer and the client.
This occurs when (1) the client expresses to the lawyer that the client intends to engage the
lawyer’s legal services, and (2) the lawyer agrees to provide those services. Someone who
consults with a lawyer about the possibility of entering a client-lawyer relationship in connection
with a matter is called a prospective client. [Model Rules of Prof’l Conduct r. 1.18 (Am. Bar Ass’n
2020); Restatement (Third) of the Law Governing Lawyers § 14 cmt. b.]
1. Express and Implied Client Intent
The client’s intent to engage the lawyer may be either express, e.g., a verbal or written
request for representation, or implied, e.g., sending the lawyer documents or asking the
lawyer a legal question in a context that indicates the client’s intent. In general, the client’s
intent may be inferred from the surrounding circumstances. [Restatement (Third) of the Law
Governing Lawyers § 14 cmt. c; 7 Am. Jur. 2d Attorneys at Law § 137, Westlaw (database
updated May 2022).]
a. Requests for Nonlegal Services
The basis for the client-lawyer relationship must be the provision of legal services, not
nonlegal services. Accordingly, a client-lawyer relationship is not formed merely because a
prospective client seeks or receives nonlegal advice or services from a lawyer who does
not already represent the client. However, if a client intends to request legal services, the
Legal Ethics | 44
formation of the client-lawyer relationship is not affected if the client also intends to
request nonlegal services. [Restatement (Third) of the Law Governing Lawyers § 14 cmt. c;
7 Am. Jur. 2d Attorneys at Law § 137, Westlaw (database updated May 2022).]
2. Express and Implied Lawyer Agreement
The lawyer’s agreement to provide legal services may be either express, e.g., a verbal or
written assent to representation, or implied, e.g., performing work for a client in a context that
indicates the lawyer’s intent. In general, the lawyer’s intent may be inferred from the
surrounding circumstances. [Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn.
1980); Restatement (Third) of the Law Governing Lawyers § 14 cmt. e; 7 Am. Jur. 2d Attorneys
at Law § 137, Westlaw (database updated May 2022).]
a. Client Reliance
If a lawyer does not clearly decline a prospective client’s request to provide legal services,
the lawyer may still be deemed to represent the client if the lawyer knows, or should have
known, that the client reasonably relied on the lawyer to provide legal assistance. The
client-lawyer relationship might be imputed based on a theory of the lawyer’s implied
assent to representation or on a theory of promissory estoppel that will bind the lawyer. In
many instances, the courts take the view that the lawyer has a better understanding than
the client of what representation means, and thus the lawyer might effectively have a
greater burden than the client to avoid the unintentional formation of a relationship.
[Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980); Restatement (Third)
of the Law Governing Lawyers § 14 cmt. e; 7 Am. Jur. 2d Attorneys at Law § 137, Westlaw
(database updated May 2022).]
Reasonableness and Unilateral Belief
Although a lawyer’s consent to a representation may be inferred from the surrounding
circumstances, a prospective client’s unilateral belief, standing alone, is not enough to
form a client-lawyer relationship. At a minimum, the prospective client’s belief that a
client-lawyer relationship exists must be reasonable under the circumstances. [7 Am.
Jur. 2d Attorneys at Law § 137, Westlaw (database updated May 2022).]
Example:
A lawyer’s website allowed anyone to submit a legal question electronically and
possibly receive an email response. An individual submitted a question about the
probate of a will. The lawyer responded with an answer that included legal advice, but
the lawyer did not clearly indicate that no client-lawyer relationship had been formed.
Based on the interaction, the lawyer may be obligated to provide representation to the
Legal Ethics | 45
client if the client reasonably relies on the lawyer’s advice. The lawyer’s invitation to
submit questions, and the lawyer’s response in the form of legal advice, could be
viewed as giving rise to implied assent or promissory estoppel that could bind the
lawyer. [Restatement (Third) of the Law Governing Lawyers § 14 cmt. e; 7 Am. Jur. 2d
Attorneys at Law § 137, Westlaw (database updated May 2022).]
3. Payment Not Required
The formation of a client-lawyer relationship requires neither payment by the client nor an
agreement to pay. All that is generally required is a mutual agreement between the lawyer and
the client. [Restatement (Third) of the Law Governing Lawyers § 14 cmts. b-c.]
4. Written Contracts and Agreements
Although lawyers and clients often enter into written agreements regarding the representation,
a writing is generally not required to form a client-lawyer relationship. However, there may be
specific situations in which the applicable law or rules of professional responsibility will
require a written agreement, depending on the jurisdiction. Thus, a lawyer should take
account of this possibility in agreeing to a representation. [Restatement (Third) of the Law
Governing Lawyers § 14 cmt. c; 7 Am. Jur. 2d Attorneys at Law § 137, Westlaw (database
updated May 2022).]
5. Fiduciary Aspects of Relationship
Once a client-lawyer relationship is formed, the lawyer becomes a fiduciary agent of the client.
The lawyer then assumes fiduciary and agency-related duties (such as competence,
confidentiality, diligence, honesty, and loyalty in the handling of the client’s affairs), as well as
all other duties imposed by applicable law and the rules of professional conduct. [Restatement
(Third) of the Law Governing Lawyers § 14 cmt. a, § 16(3), with comments; 7 Am. Jur. 2d
Attorneys at Law § 137, Westlaw (database updated May 2022).]
6. Freedom to Reject a Client
Aside from court-appointed clients, a lawyer is generally free to accept or reject an offer or
request to represent a client. However, this freedom may be restricted in some situations by
applicable law, e.g., anti-discrimination laws. [See Restatement (Third) of the Law Governing
Lawyers § 14 cmt. b; see also Accepting Appointments, infra.]
a. Representation Prohibited
In some circumstances, a lawyer is required to decline a representation. These include
situations in which the lawyer:
Legal Ethics | 46
 is not competent in the necessary field of law, unless he can become competent without
undue hardship or expense to the client, or he associates with a competent lawyer;
 knows the client seeks to engage in criminal or fraudulent conduct, except that the lawyer
may discuss the legal consequences of any conduct with a client or assist the client in
assessing the law;
 knows the representation will cause a conflict of interest or other violation of a rule of
professional conduct; or
 has a physical or mental condition that materially impairs his ability to represent the client.
Additionally, a lawyer is required to decline a representation if the representation will
require the lawyer knowingly to assert a frivolous claim or defense or if a substantial
purpose of the representation is to embarrass, delay, harass, or burden a third person.
[Model Rules of Prof’l Conduct r. 1.1, 1.2(d), 1.7-1.12, 1.16(a)(2), 3.1 (Am. Bar Ass’n 2020).]
Scope, Objectives, and Means of Representation
The lawyer and the client each have a role and certain responsibilities regarding the scope of the
representation and the means by which it will be carried out.
1. Scope of the Representation
A lawyer may limit the scope of services provided to a client, as long as (1) the limits are
reasonable in light of the circumstances, and (2) the client gives informed consent to the
limitation. These limitations might take various forms, including the lawyer agreeing to:
 represent a client only in specific areas of law;
 engage in one activity, but not others, on behalf of a client; or
 provide a limited amount of advice in a single short conversation.
These types of limitations are reasonable and permissible as long as the lawyer can provide
the client with sufficient advice or representation within the specified parameters. It is
common to lay out the scope of a representation in an engagement letter, which allows the
lawyer and client an opportunity to specify the terms of the representation in advance. [Model
Rules of Prof’l Conduct r. 1.2(c) (Am. Bar Ass’n 2020).]
a. Informed Consent Defined
Agreements about the scope of the representation and other matters sometimes require
the client’s informed consent. Under the MRPC, informed consent means consent by a
client to a proposed course of action after the lawyer has provided adequate information
and explanation to the client regarding:
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 the facts and circumstances underlying the need for consent,
 the risks of the proposed course of action, and
 the reasonable alternatives to the proposed course of action.
The exact communication necessary to obtain informed consent may depend on the
situation. In any case, however, the lawyer must make reasonable efforts to ensure that
the client has information that is reasonably adequate to make an informed decision. [Model
Rules of Prof’l Conduct r. 1.0(e) cmt. 6 (Am. Bar Ass’n 2020).]
2. Objectives of the Representation
In general, a lawyer must abide by the client’s determination of the objectives of the lawyer’s
representation. In other words, the client generally has the final say as to the goals to be
sought in the matter. [Model Rules of Prof’l Conduct r. 1.2(a) (Am. Bar Ass’n 2020).]
3. Means Used in the Representation
A lawyer must reasonably consult with the client about the means of achieving the client’s
goals or objectives in the representation. This might require either discussing the lawyer’s
actions in advance or informing the client of actions already taken by the lawyer. [Model Rules
of Prof’l Conduct r. 1.2(a), r. 1.4(a)(2) cmt. 3 (Am. Bar Ass’n 2020).]
a. Resolving Disagreements
The MRPC do not specify how to resolve a disagreement between the lawyer and the client
over the means by which to pursue the client’s objectives: the types and contexts of
potential disagreements are too varied to be resolved by a single rule. Depending on the
circumstances, other sources of law might be implicated in resolving these types of
disputes. If the lawyer and client cannot resolve a fundamental disagreement, the lawyer
may withdraw from the representation. [Model Rules of Prof’l Conduct r. 1.2 cmt. 2 (Am. Bar
Ass’n 2020); see Termination of the Client-Lawyer Relationship, infra.]
4. Advance Authorization
In seeking to carry out a client’s objectives, the lawyer is not required to obtain express
authorization from the client for each of the lawyer’s actions. The lawyer may take an action
on behalf of the client without advance consultation if the action is impliedly authorized to
carry out the representation (e.g., filing pleadings or determining which witnesses to call in a
trial). [Model Rules of Prof’l Conduct r. 1.2(a) (Am. Bar Ass’n 2020).]
5. Endorsement of Client’s Beliefs or Actions
Legal Ethics | 48
Regardless of whether the client-lawyer relationship is formed by agreement or by
appointment, a lawyer’s representation of a client does not constitute the lawyer’s
endorsement of the client’s opinions, beliefs, or actions. This rule recognizes that someone
should not be denied effective legal representation merely because he cannot afford a lawyer
or because he has an unpopular or controversial cause. [Model Rules of Prof’l Conduct r. 1.2(b)
cmt. 5 (Am. Bar Ass’n 2020).]
Decision-Making Authority—Actual and Apparent
A client and a lawyer may sometimes allocate decision-making authority between themselves.
Nonetheless, the MRPC reserve certain matters to each party.
1. Authority of the Client
A client in a civil matter always has the authority to decide whether to accept a settlement
offer. In a criminal matter, the client must decide what plea to enter (e.g., guilty or not guilty),
whether to waive a trial by jury, whether to testify on his own behalf, and whether to appeal.
The client’s authority in the criminal setting may arise not only from the rules of professional
conduct, but also from the client’s constitutional rights, such as the Fifth Amendment right to
silence and the Sixth Amendment right to counsel. The lawyer must adhere to the client’s
wishes on all of these topics. [U.S. Const. amend. VI; McCoy v. Louisiana, 584 U.S. ___, 138 S.
Ct. 1500 (2018); Model Rules of Prof’l Conduct r. 1.2(a) (Am. Bar Ass’n 2020).]
2. Authority of the Lawyer
A lawyer may have reserved authority, actual authority, or apparent authority to make certain
decisions in the course of the representation. A lawyer has special authority in representing a
client who has diminished capacity.
a. Reserved Authority
A lawyer always has the reserved authority to make decisions in the course of representing
a client that the lawyer reasonably believes to be required by law or by order of a court or
other tribunal. The client may not override this authority. [Restatement (Third) of the Law
Governing Lawyers § 23.]
b. Actual Authority
A lawyer has the actual authority to make a decision on behalf of a client if (1) the client
has expressly or implicitly authorized the lawyer to make the decision, (2) the decision is
one that the lawyer reasonably believes to be required by law or by a court order, or (3) the
client ratifies the decision by later approving or adopting it. The client generally will be
bound by the decisions of his lawyer that are made with actual authority. [Restatement
Legal Ethics | 49
(Third) of the Law Governing Lawyers § 26; 7 Am. Jur. 2d Attorneys at Law §§ 146, 149,
Westlaw (database updated May 2022).]
c. Apparent Authority
A lawyer has apparent authority to make a decision on behalf of a client if a court or a third
party reasonably believes that the lawyer is authorized to make the decision based on the
client’s manifestations that the lawyer has the authority to do so. The lawyer’s own
manifestations of authority, taken by themselves, are insufficient to create apparent
authority. If apparent authority exists, then the lawyer’s decision will be attributed to the
client. [Restatement (Third) of the Law Governing Lawyers § 27.]
d. Client’s Diminished Capacity
If a client has diminished capacity for adequately making decisions in the course of a
representation (e.g., due to minority or mental condition), the lawyer must nonetheless
conduct a normal client-lawyer relationship with the client to the extent possible. In other
words, the lawyer must act to advance the client’s interests, treat the client with attention
and respect, and, as much as possible, maintain communication with the client about the
representation and look to the client to make decisions on the client’s behalf. [Model Rules
of Prof’l Conduct r. 1.14(a) cmts. 2-3 (Am. Bar Ass’n 2020).]
Actions Permitted
If a lawyer reasonably believes that a client has diminished capacity, is at risk of serious
financial, physical, or other harm, and can no longer adequately act in her own interests,
the lawyer may take actions that are reasonably necessary to protect the client. These
actions may include (1) consulting with people who have the ability to act to protect the
client and (2) seeking the appointment of a guardian, guardian ad litem (i.e., a guardian
for a specific court action), or conservator. [Model Rules of Prof’l Conduct r. 1.14(a) (Am.
Bar Ass’n 2020).]
Counsel and Assistance within the Bounds of the Law
A lawyer’s representation of a client may not exceed the limits of what the law allows.
1. Prohibited Activities
A lawyer may not counsel or assist a client to engage in or perpetuate activity that the lawyer
knows to be fraudulent or criminal. If a lawyer discovers a client’s unlawful conduct, the lawyer
may need to withdraw from the representation if continued representation would assist the
client in the unlawful conduct. [Model Rules of Prof’l Conduct r. 1.2(d) cmt. 10 (Am. Bar Ass’n
2020).]
Legal Ethics | 50
2. Permitted Activities
Despite the prohibition on assisting clients in perpetuating crime or fraud, a lawyer may
discuss with a client the legal consequences of a proposed action and assist the client in a
good-faith effort to determine the meaning or application of the law. This rule applies even if
the lawyer determines that the client’s proposed conduct would be illegal or fraudulent. The
rules of professional conduct distinguish between good-faith counsel, which is designed to
help a client understand his legal obligations, and counsel intended to assist the client in
committing an unlawful act. [Model Rules of Prof’l Conduct r. 1.2(d) cmt. 9 (Am. Bar Ass’n
2020).]
Termination of the Client-Lawyer Relationship
In general, a lawyer’s representation of a client ends when the assistance agreed upon by the
lawyer and the client has been fully rendered or otherwise concluded. Thus, the end of the
representation may depend on how the client and the lawyer have defined the scope of the
representation. [Model Rules of Prof’l Conduct r. 1.2(c), r. 1.16 cmt. 1 (Am. Bar Ass’n 2020).]
1. Client’s Right to Terminate
A client has an absolute right to terminate the representation, or fire the lawyer, at any time
and for any reason. If the client does so, he may still owe outstanding legal fees incurred as
part of the representation. In addition, a client’s right to terminate the services of a courtappointed lawyer may be limited by other provisions of law. [Model Rules of Prof’l Conduct
r.1.16(a)(3) cmts. 4-6 (Am. Bar Ass’n 2020).]
2. Mandatory Withdrawal by Lawyer
A lawyer must withdraw from representing a client if (1) the representation will result in a
violation of the law or of the rules of professional conduct, (2) the lawyer’s mental or physical
condition materially interferes with his ability to represent the client, or (3) the client
terminates the lawyer’s services. [Model Rules of Prof’l Conduct r. 1.16(a) (Am. Bar Ass’n
2020).]
Example:
Lawyers in a law firm were accused of covering up regulatory deficiencies created by a client
who owned a savings-and-loan company. The lawyers knew that the client had committed
fraud and destroyed relevant documents. The lawyers also were aware that the client had
failed to make required corrections to address its regulatory violations. The lawyers had a
duty to clearly inform a client if its conduct violated the law and to withdraw from the
representation if the firm’s continued representation would cause the firm to violate the
Legal Ethics | 51
ethical rules. [See In re Am. Cont’l Corp./Lincoln Sav. & Loan Sec. Litig. (Jones Day), 794 F.
Supp. 1424 (D. Ariz. 1992).]
3. Permissive Withdrawal
A lawyer who is not required to withdraw from representation may nonetheless withdraw if the
lawyer can withdraw without materially harming the client’s interest. A lawyer may also
withdraw from the representation if the representation will impose an unreasonable financial
burden on the lawyer or has been made unreasonably difficult by the client. Additionally, a
lawyer may withdraw from representing a client if the client:
 uses the lawyer’s services to act in a way that the lawyer reasonably believes is criminal or
fraudulent;
 has used the lawyer's services to commit crime or fraud;
 insists on acting in a way that the lawyer finds repugnant or with which the
lawyer fundamentally disagrees; or
 substantially fails to fulfill an obligation to the lawyer regarding the lawyer's services (e.g., failing
to pay the lawyer) and has been warned that the lawyer will withdraw unless the obligation is
fulfilled.
The lawyer also may withdraw from the representation if there is other good cause for
withdrawal. [In re Franke, 55 A.3d 713 (Md. Ct. Spec. App. 2012); Model Rules of Prof’l
Conduct r. 1.16(b) (Am. Bar Ass’n 2020).]
4. Permission from the Court
If a lawyer is counsel of record in a case before a court, most courts will require the lawyer to
obtain permission from the court to withdraw. Permission is typically granted if the client
wishes to terminate the representation. If the client will not voluntarily relieve the lawyer from
continued representation, the court may deny the withdrawal, especially if the withdrawal
would cause undue delay or prejudice. In that case, the lawyer must continue representing the
client even if there is good cause for terminating the relationship. [Model Rules of Prof’l
Conduct r. 1.16(c) (Am. Bar Ass’n 2020).]
5. Duties upon Termination
After a representation terminates, a lawyer must take reasonable steps to protect the client’s
interests. This may require such actions as:
 giving the client reasonable notice,
 giving the client time to find other counsel,
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 giving the client papers and property to which the client is entitled, and
 refunding any advance payments that the lawyer has not yet earned.
[Model Rules of Prof’l Conduct r. 1.16(d) (Am. Bar Ass’n 2020).]
Example:
A lawyer agreed to represent a client in a case involving a property-line dispute but did not
enter an appearance with the court. After months of unsuccessful attempts to contact the
client to discuss the case, the lawyer decided to terminate the representation. The lawyer
mailed a certified letter to the client at the client’s last-known address stating that he was
ending the representation because he could not contact the client. Further, to safeguard the
client’s property, the lawyer informed the client that the unearned legal fees paid to the
lawyer would remain in the lawyer’s client trust account until the client contacted him and
requested the money. The lawyer has acted properly. [Model Rules of Prof’l Conduct r. 1.16(d)
(Am. Bar Ass’n 2020).]
6. Recovery of Legal Fees
Generally, a lawyer who has been discharged by the client or who withdraws from the
representation may recover outstanding legal fees owed to the lawyer. If the lawyer and client
have a fee contract, then the lawyer may recover the lesser of (1) the prorated contract
amount or (2) fees due under a theory of quantum meruit—the reasonable value of the
lawyer’s services rendered to the client at the time of discharge. Absent a contract, the fee
due will be determined by quantum meruit. However, in a matter undertaken with the
understanding that the lawyer’s fee will be contingent on the outcome of the case, the lawyer
typically is unable to recover under quantum meruit unless the contingency occurs.
[Restatement (Third) of the Law Governing Lawyers §§ 35(2), 39-40.]
Example:
A lawyer entered a contingent-fee agreement with a client in a personal-injury case. Under
the agreement, the lawyer would receive no fee unless the client’s case ended in a favorable
jury verdict or a settlement. After expending approximately 100 hours on the case, the lawyer
moved to withdraw from the representation. The lawyer provided the proper notice of his
intent to withdraw to the client, who subsequently agreed, and the court approved the motion
without objection. Later, the client retained new counsel but ultimately lost the personal-injury
action after a jury trial. The lawyer filed a claim for services rendered to the client under the
theory of quantum meruit. The lawyer could not recover, because the contingent-fee
agreement precluded payment to the lawyer unless the client reached a favorable jury verdict
or entered into a settlement agreement. [Restatement (Third) of the Law Governing Lawyers
§§ 35(2), 39-40.]
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Client-Lawyer Contracts
Contracts between a lawyer and client are often referred to as engagement letters or retainer
agreements.
1. Form and Content
Although the MRPC do not prescribe a particular form for representation agreements, these
agreements typically address:
 the scope of the lawyer’s services to the client, e.g., what the lawyer will and will not do, when
the client-lawyer relationship will begin and end, the legal problem to be addressed, the names
of any adverse parties, and the identity of the lawyers who will perform the work on the client’s
behalf;
 the payment of fees and expenses, e.g., the basis and rate of the fee, whether the fee is fixed
or contingent, and a process for handling fee disputes; and
 the duties of each party upon termination of the representation.
[Restatement (Third) of the Law Governing Lawyers § 18 cmts. c-d; Model Rules of Prof’l
Conduct r. 1.5(b) (Am. Bar Ass’n 2020).]
2. Contracts Not Required
In general, a written representation agreement is not required in the course of a
representation. The MRPC merely state, in non-mandatory language, that a written
representation agreement is preferable to a verbal agreement, because a writing reduces the
chance of a misunderstanding. [Restatement (Third) of the Law Governing Lawyers § 18 cmt. c;
Model Rules of Prof’l Conduct r. 1.5(b)-(c) cmt. 2 (Am. Bar Ass’n 2020).]
a. Exception: Contingent Fees
The major exception to this approach is a contingent-fee arrangement, which under the
MRPC must be in writing and signed by the client. A contingent fee is a fee the amount of
which depends on the outcome of the lawyer’s representation. The most common form of
contingent fee is a fixed percentage of a settlement or damages award obtained through
the representation. [Model Rules of Prof’l Conduct r. 1.5(c) (Am. Bar Ass’n 2020).]
3. Enforceability and Exceptions
Representation agreements are generally enforceable by either party under basic contract
principles. However, there are two major exceptions to this rule. First, a client may avoid a
contract or contract modification if it is made beyond a reasonable time after the
representation has commenced, unless the lawyer demonstrates that the contract or
Legal Ethics | 54
modification was reasonable and fair to the client when made. Second, a client may avoid
enforcement if (1) the contract is formed after the lawyer has finished work on behalf of the
client, and (2) the lawyer failed to inform the client of facts needed to evaluate the
appropriateness of the lawyer’s compensation or other benefits under the contract.
[Restatement (Third) of the Law Governing Lawyers § 18(1).]
4. Construction
A court assessing a contract between a client and a lawyer will use an objective standard to
construe the contract from the perspective of a reasonable person in the client’s circumstances.
In other words, the relevant inquiry is what the client reasonably understood, not what the
lawyer understood. [Restatement (Third) of the Law Governing Lawyers § 18(2) cmt. h.]
Communications with the Client
In general, a lawyer must keep the client reasonably informed about the status of the matter that
is the subject of the representation. This includes communicating with the client about any
procedural or substantive developments in the matter. [Model Rules of Prof’l Conduct r. 1.4(a)(3)
cmt. 3 (Am. Bar Ass’n 2020).]
Example:
A lawyer filed a civil case on behalf of a client to settle a property-line dispute. Despite the
lawyer actively working on the matter for approximately one year, the lawyer failed to
communicate with the client regarding the status of the case, even though the client had
telephoned the lawyer numerous times. The lawyer also failed to communicate the fact that the
case was scheduled to go to a trial in two weeks. The lawyer has violated the rules of
professional conduct. [Model Rules of Prof’l Conduct r. 1.4(a)(3) (Am. Bar Ass’n 2020).]
1. Required Communications
There are several specific situations in which a lawyer must communicate with his client.
a. Informed Consent
In general, a lawyer must inform a client promptly of any decision, circumstance, or other
matter that requires the client’s informed consent. This rule is designed to ensure that a
lawyer will consult about these matters with the client and obtain informed consent before
acting. However, the lawyer need not consult with the client if previous client-lawyer
discussions have already established what the client wants to do in the situation. [Model
Rules of Prof’l Conduct r. 1.4(a)(1) cmt. 2 (Am. Bar Ass’n 2020).]
b. Informed Participation
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A lawyer must explain a matter to a client to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation. The lawyer must
communicate the information in a manner that is likely to allow the client to understand (1)
what information is being communicated and (2) the importance of that information. In
general, a client should have enough information to participate intelligently in decisions
about the objectives of the representation and the means of pursuing those objectives, so
long as the client has the ability and desire to do so. [Model Rules of Prof’l Conduct r. 1.4(b)
cmt. 5 (Am. Bar Ass’n 2020).]
c. Means Taken
A lawyer must reasonably consult with the client regarding the means taken to carry out the
representation. This duty will sometimes require advance consultation with the client
before the lawyer acts. At other times, this duty might require informing the client of the
lawyer’s actions after the lawyer acts. The need for advance consultation can depend on
the importance of the matter and the need for prompt action under the circumstances.
[Model Rules of Prof’l Conduct r. 1.4(a)(2) cmt. 3 (Am. Bar Ass’n 2020).]
d. Requests for Information
In general, a lawyer must respond promptly to a client’s reasonable requests for information.
If a prompt response is not possible, then the lawyer or a member of the lawyer’s staff
must acknowledge the client’s request and tell the client when to expect a response.
[Model Rules of Prof’l Conduct r. 1.4(a)(4) cmt. 4 (Am. Bar Ass’n 2020).]
e. Lawyer’s Ethical Limitations
If a lawyer knows that a client expects the lawyer to engage in activities that are prohibited
by the rules of professional conduct or another law, the lawyer must consult with the client
about the relevant limitations on the lawyer’s conduct. The client often will not be aware of
the limitations placed on the lawyer by the law or ethical rules, so it is the lawyer’s
responsibility to communicate these limitations. [Model Rules of Prof’l Conduct r. 1.4(a)(5)
(Am. Bar Ass’n 2020).]
2. Delayed Communications
A lawyer may delay transmission of information to a client if the client would be likely to react
imprudently to an immediate communication, e.g., if a client is suffering from an incapacity
that prevents the client from acting rationally in response to information. However, a lawyer
may not delay or withhold information merely to serve the convenience or interests of the
lawyer or of someone else. [Model Rules of Prof’l Conduct r. 1.4(a) cmt. 7 (Am. Bar Ass’n
2020).]
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3. Communicating with Organizational Clients
In general, if a lawyer is representing an organization, the lawyer should address
communications about the representation to the appropriate officials or authorized
representatives of the organization. It is often impossible for a lawyer to communicate with
every member of an organization. Ordinarily, parties solve this problem by designating
individuals who will handle communications regarding the representation. A system of limited
or occasional reporting may be used to communicate routine matters. [Model Rules of Prof’l
Conduct r. 1.4 cmt 6 (Am. Bar Ass’n 2020).]
Fees
Historically, lawyers have employed several different methods to charge a client for legal
services: percentage and contingent fees, hourly rates, flat-fee agreements, or some
combination of these. The rules of professional conduct impose requirements regarding the
reasonableness of fees and the communication of fees to the client.
1. Reasonable Fees
A lawyer must not make an agreement for, charge, or accept an unreasonable fee or
unreasonable amount for expenses from a client. The MRPC specify that the following factors
are relevant in assessing whether a lawyer’s fee is reasonable:
 the time, labor, and skill required to render the services, including the novelty and difficulty of
the questions involved;
 the apparent likelihood that accepting the representation will preclude the lawyer from taking
other employment;
 the fee customarily charged for similar services in the same geographic area;
 the amount of money at stake and the results achieved;
 the time constraints imposed either by the client or by the circumstances;
 the nature and length of the lawyer’s professional relationship with the client;
 the lawyer’s experience, reputation, and ability; and
 whether the fee to be charged is fixed or contingent.
The MRPC’s comments caution that this is not an exhaustive list and that not all of these
factors will be relevant in every situation. [Model Rules of Prof’l Conduct r. 1.5(a) cmt. 1 (Am.
Bar Ass’n 2020).]
2. Communicating Fees
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With limited exceptions, a lawyer must communicate to a client, preferably in writing, the basis
or rate of the lawyer’s fee and other expenses for which the client will be responsible either (1)
before commencing the representation or (2) within a reasonable time after the representation
begins. In a new client-lawyer relationship, the lawyer should promptly establish agreement
about fees and expenses to avoid misunderstanding. The lawyer must also communicate to all
clients any changes in the basis or rate of the fee or expenses. [Model Rules of Prof’l Conduct
r. 1.5(b) cmt. 2 (Am. Bar Ass’n 2020).]
a. Exceptions
Although a lawyer generally must communicate the applicable fees and expenses to a
client before or within a reasonable time of commencing a representation, this is not
required if the lawyer will be charging a regularly represented client on the same basis or
rate as in the past. Lawyers and clients in this situation typically develop an understanding
about fees and expenses that renders regular communication unnecessary. [Model Rules
of Prof’l Conduct r. 1.5(b) cmt. 2 (Am. Bar Ass’n 2020).]
3. Contingent Fees
A contingent-fee arrangement is one in which the lawyer agrees to accept a fee the amount of
which depends on the outcome of the lawyer’s representation. The most common form of
contingent fee is a fixed percentage of a settlement or damages award obtained through the
representation. [Contingent Fee, Black’s Law Dictionary (11th ed. 2019).]
a. Permissible Agreements
A lawyer may enter into a contingent-fee agreement, so long as it is in writing and signed
by the client. The agreement must clearly state:
 how the fee is to be calculated, including the percentage of recovery that will go to the
lawyer depending on whether the matter ends in a settlement, trial, or appeal;
 the litigation and other expenses to be deducted from the recovery and whether those
expenses are to be deducted before or after the lawyer’s fee is calculated; and
 any expenses for which the client will be liable whether or not the client prevails.
After the matter is concluded, the lawyer must give the client a written statement that
explains the outcome, any recovery, the payment to the client, and how the payment was
determined. [Model Rules of Prof’l Conduct r. 1.5(c) (Am. Bar Ass’n 2020).]
b. Prohibited Agreements
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Contingent-fee agreements are prohibited in two primary areas: domestic-relations matters
and criminal cases.
Domestic-Relations Matters
A lawyer may not enter into a contingent-fee agreement with a client for services
related to a domestic-relations matter if the payment or amount of the fee is contingent
on (1) obtaining a divorce or (2) the amount of alimony, support, or property settlement.
This rule is in place for public-policy reasons. For example, public policy is to encourage
reconciliation, and a lawyer who gets paid only on obtaining a successful divorce would
have a pecuniary interest in discouraging the client from a reunion. [Model Rules of
Prof’l Conduct r. 1.5(d)(1) cmt. 6 (Am. Bar Ass’n 2021).]
Example:
A lawyer entered a contingent-fee agreement with a divorce client. The agreement
provided that the lawyer’s fee would increase depending upon the amount of money the
lawyer secured for the client. However, the client informed the lawyer that she simply
wanted to get out of the marriage and did not care about the money. The lawyer
negotiated with opposing counsel for nearly a year in an effort to secure a large
settlement and increase his fee, even though the lawyer could have settled sooner for a
lesser amount. During that time, the client’s mental health suffered due to the continued
uncertainty of the process. The lawyer acted adversely to the client’s best interests and
violated the rules of professional conduct by entering into a contingent-fee agreement
in a domestic-relations matter. [See Model Rules of Prof’l Conduct r. 1.5(d)(1) cmt. 6
(Am. Bar Ass’n 2021).]
Defendant in a Criminal Case
Additionally, a contingent fee is not permissible for representing a defendant in a
criminal case. A contingent-fee agreement might incentivize the lawyer to act contrary
to the client’s best interests, as by discouraging a favorable plea agreement in the hope
of securing a higher fee by taking a chance on a jury trial. [Model Rules of Prof’l
Conduct r. 1.5(d)(2) (Am. Bar Ass’n 2020).]
4. Fee-Splitting with Other Lawyers
Lawyers who are not in the same law firm are allowed to split, or share, fees only if (1) the fee
split is in proportion to the services performed by each lawyer or, alternatively, both lawyers
agree to assume joint responsibility for the client’s representation; (2) the client, after full
disclosure of the arrangement, agrees in writing to both the fee division and the proportion of
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the fee each lawyer will get; and (3) the total fee charged to the client is reasonable. [Model
Rules of Prof’l Conduct r. 1.5(e) cmt. 7 (Am. Bar Ass’n 2020).]
III. Client Confidentiality
An important ethical principle underlying the client-lawyer relationship is that all information gained
during the course of the representation is confidential and generally may not be revealed by the
lawyer without the client’s express authorization. Related doctrines that restrict or prevent disclosure
of client information include the attorney-client privilege and the work-product doctrine. Although
these three doctrines overlap, each is distinct in terms of its coverage and its function. [See Model
Rules of Prof’l Conduct r. 1.6 (Am. Bar Ass’n 2020); see also Fed. R. Civ. P. 26; Restatement (Third) of
the Law Governing Lawyers §§ 68-72.]
Attorney-Client Privilege
The attorney-client privilege is a common-law evidentiary rule used to exclude from evidence
certain communications between lawyers and clients. A person may not be compelled to reveal
the content of a communication that falls under the privilege. The privilege is intended to
encourage full and candid communications between lawyers and their clients. [See Restatement
(Third) of the Law Governing Lawyers §§ 68-72; see also Upjohn Co. v. United States, 449 U.S.
383 (1981); Fed. R. Evid. 502.]
1. Elements
The attorney-client privilege applies to (1) communications (2) between privileged persons,
made (3) in confidence (4) for the purpose of obtaining or providing legal assistance. [See,
e.g., Restatement (Third) of the Law Governing Lawyers § 68.]
a. Communications
The attorney-client privilege protects any form of communication that conveys privileged
information. Thus, oral, written, and electronic communications may be subject to the
privilege, as may nonverbal communications. The privilege applies not only to the original
communication, but also to any other communication or record that would reveal the
contents of the original communication. [Restatement (Third) of the Law Governing
Lawyers § 69 cmts. b, e, h.]
Facts Versus Communications
The attorney-client privilege extends to communications, but not to the underlying facts
contained within privileged communications. Thus, the presence of particular facts
within a privileged communication does not insulate those facts from discovery or
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production in some other way. [Restatement (Third) of the Law Governing Lawyers § 69
cmt. d.]
Collateral Aspects of Communications
The attorney-client privilege does not invariably apply to matters collateral to the
content of a communication, such as:
 the existence of a client-lawyer relationship,
 the identity of a lawyer’s clients, and
 the amount or source of the lawyer’s fee payments.
Some courts will allow disclosure of these and similar facts if they do not expose the
content of attorney-client communications. [Restatement (Third) of the Law Governing
Lawyers § 69 cmt. g.]
Communications Sent but Not Received
The attorney-client privilege applies to a communication that is intended to reach a
privileged person but does not actually do so, e.g., a communication that is intercepted
or destroyed in transit. [Restatement (Third) of the Law Governing Lawyers § 69 cmt. c.]
b. Privileged Persons
For purposes of the attorney-client privilege, the category of privileged persons includes:
 the client (or prospective client);
 the client’s lawyer;
 agents of the client or lawyer who facilitate communications between them (e.g., an assistant
or a translator); and
 agents of the lawyer who facilitate the representation, e.g., paralegals, law-office staff, or
independent contractors such as accountants or physicians who the lawyer hires to assist
the lawyer in providing legal services to the client.
[Restatement (Third) of the Law Governing Lawyers §§ 68, 70, with comments.]
c. In Confidence
Under the attorney-client privilege, a communication is made in confidence if, at the time
of the communication, the person making the communication reasonably believes that only
a privileged person will learn the contents of the communication. The matter being
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communicated does not need to be a secret to qualify as a confidential communication.
[Restatement (Third) of the Law Governing Lawyers § 71, with comments.]
Effect of Third Party's Presence during Communication
If a nonprivileged third party is present during an otherwise-privileged communication,
then the privilege is broken, and the third person may testify to what was said. However,
if the lawyer and client took reasonable steps to maintain confidentiality, and another
person eavesdrops on the conversation without their knowledge, the information
remains protected. The privilege is not broken if the third person is also subject to the
attorney-client privilege, e.g., as the attorney’s agent. In addition, the presence of a
third person who is subject to a privilege other than the attorney-client privilege, e.g.,
the spousal privilege, does not destroy the attorney-client privilege as to the
communication. [See United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D.
Mass. 1950); see also Restatement (Third) of the Law Governing Lawyers § 70, § 71 cmt.
c.]
Example:
A lawyer and her client met at a restaurant for lunch to discuss the client’s pending
criminal case. Even though the lawyer and client were in a booth in the back of the
restaurant, an off-duty police officer sitting in the next booth overheard their
conversation. The police officer may later testify to the communication that took place
between the lawyer and client, because the lawyer and client should reasonably have
known that third parties could have heard the communications in a public space. [See
Restatement (Third) of the Law Governing Lawyers §§ 70-71.]
d. Purpose of Communications
A communication is made for the purpose of obtaining or providing legal assistance if (1)
the communication is made by, to, on behalf of, or to assist a lawyer or someone who the
client or prospective client reasonably believes is a lawyer; and (2) the communication is
made for the purpose of obtaining or providing legal services. A lawyer’s assistance and
services are considered to be legal in nature if the lawyer’s professional skill and training
are valuable in the matter. Examples include giving legal advice or counseling, preparing
legal documents, assisting in litigation, or providing other assistance usually given by
lawyers. [Restatement (Third) of the Law Governing Lawyers § 72, with comments.]
Prospective Clients
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Generally, the attorney-client privilege extends to communications between a lawyer
and a prospective client before a client-lawyer relationship is formed or even if no
relationship is ever formed. [Restatement (Third) of the Law Governing Lawyers § 70.]
2. Exceptions
Two important exceptions to the attorney-client privilege are the crime-fraud exception and
the exception for attorney-client disputes.
a. The Crime-Fraud Exception
The crime-fraud exception to the attorney-client privilege provides that a communication is
not privileged if (1) the client communicates with the lawyer with the purpose of
committing or obtaining assistance in committing a crime or a fraud, and the client
accomplishes that purpose, or (2) the client uses the communication to commit or assist in
committing a crime or fraud, regardless of the client’s intent at the time of the
communication and regardless of whether the client understands that the conduct is
criminal or fraudulent. [United States v. Zolin, 491 U.S. 554 (1989); Alexander v. United
States, 201 U.S. 117 (1906); Restatement (Third) of the Law Governing Lawyers § 82.]
Communication Not Resulting in Crime or Fraud
The crime-fraud exception does not apply if the client never commits a crime or a fraud
based on the communication, regardless of the client’s intent at the time of the
communication. The purpose of this rule is to enable clients to inquire about the legality
of a proposed course of action without penalty if they are then deterred from wrongful
conduct. [Restatement (Third) of the Law Governing Lawyers § 82 cmt. c.]
In Camera Review
A court sometimes may conduct an in camera review of attorney-client communications
to determine whether they fall within the crime-fraud exception. To trigger review, the
party invoking the exception must show a factual basis to support a reasonable belief
that the review would reveal evidence to support the exception. Only if the party makes
this threshold showing may the court exercise its discretion to review the otherwiseprivileged material in camera. [United States v. Zolin, 491 U.S. 554 (1989); United
States v. Chen, 99 F.3d 1495 (9th Cir. 1996).]
b. Lawyer-Client Disputes
The attorney-client privilege does not apply to a communication that is both relevant and
reasonably necessary for the lawyer to use (1) to resolve a dispute regarding payment that
the lawyer reasonably alleges to be owed by the client to the lawyer or (2) to defend the
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lawyer, or the lawyer’s agent or associate, against an allegation made by anyone that the
lawyer, agent, or associate committed misconduct during the representation. [Restatement
(Third) of the Law Governing Lawyers § 83.]
3. Organizational Clients: Assertion and Waiver
The client, not the lawyer, holds the attorney-client privilege. Thus, the client has the right to
assert the privilege if an attempt is made to obtain privileged information or introduce
privileged information into evidence. The client may also choose to waive the privilege and
provide the privileged information, regardless of the wishes of the lawyer. [Restatement (Third)
of the Law Governing Lawyers § 86.]
a. Others Who May Assert Privilege
In addition to the client, a personal representative of an incompetent or deceased client, or
a person who succeeds to a client’s interest, may invoke or waive the privilege, either
personally or through counsel or another authorized agent. [Restatement (Third) of the
Law Governing Lawyers § 86.]
b. When Assertion of Privilege Is Required
A lawyer, a lawyer’s agent, or a client’s agent must invoke the attorney-client privilege if it
appears reasonably appropriate to do so. This requirement does not apply if the client has
already waived the privilege or has authorized the lawyer or agent to do so. [Restatement
(Third) of the Law Governing Lawyers § 86(1)(b).]
c. Waiver
The attorney-client privilege may be waived by the client, the client’s lawyer, or another
agent acting on the client’s behalf if one of these actors:
 voluntarily discloses a privileged communication while acting with actual or apparent
authority to do so;
 disclaims the privilege and another person reasonably relies on the disclaimer to that
person's detriment, or there are other reasons to prevent revocation of the disclaimer; or
 in a court proceeding, fails to object properly to an attempt to obtain or introduce privileged
material.
A lawyer generally may not waive the privilege over the client’s objections. [Restatement
(Third) of the Law Governing Lawyers § 78, § 79 cmt. c.]
Inadvertent Disclosure
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In general, the attorney-client privilege is not waived if the communication is
inadvertently disclosed to a nonprivileged person. However, once the client knows or
reasonably should know that the communication was inadvertently disclosed, the client
must take prompt, reasonable steps to recover the communication and reassert the
privilege. A failure to do so may be deemed a waiver of the privilege as to that
communication. [Restatement (Third) of the Law Governing Lawyers § 79 cmt. h.]
Placing Communication in Issue
A client waives the attorney-client privilege as to any relevant communications if, in a
court proceeding, (1) the client asserts, as to a material issue, that the lawyer’s advice
was relevant to the client’s conduct; or (2) the client asserts that the lawyer rendered
ineffective or wrongful assistance to the client. [Restatement (Third) of the Law
Governing Lawyers § 80(1).]
Witness Preparation or Assistance
The attorney-client privilege can be waived if a privileged communication is used to
prepare or assist a witness in a court proceeding. More specifically, the privilege is
waived if (1) the witness uses a privileged communication to assist the witness while
testifying; or (2) a privileged communication is used to prepare a witness to testify, and
the court finds that justice requires disclosure of the communication. [Restatement
(Third) of the Law Governing Lawyers § 80(2).]
The Work-Product Doctrine
Under the work-product doctrine, attorney work product is protected from discovery or
disclosure in litigation or other legal proceedings. Attorney work product encompasses (1)
documents or other tangible things, or their unwritten equivalents, (2) prepared in anticipation of
litigation or for trial (3) by a lawyer. The work-product doctrine sweeps more broadly than the
attorney-client privilege by protecting materials other than attorney-client communications.
However, the protections for work product generally are not as robust as those for privileged
communications. [Fed. R. Civ. P. 26(b)(3); Restatement (Third) of the Law Governing Lawyers §
87(1).]
Note: Work-product protections can also apply to materials prepared by people other than
lawyers; however, this discussion will be limited to the doctrine as it pertains to lawyers and their
agents.
1. Ordinary Versus Opinion Work Product
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The two types of work product are ordinary work product and opinion work product. Opinion
work product consists of a lawyer’s opinions and mental impressions formed in anticipation of
litigation or for trial. Opinion work product encompasses not only a lawyer's direct statements
of opinion or mental impression, but also more indirect revelations of a lawyer's thought
processes or legal opinions, such as a lawyer's index or arrangement of documents prepared
in anticipation of litigation. All work product that is not opinion work product is considered to
be ordinary work product. Examples of ordinary work product include activities like obtaining
basic factual information or interviewing potential witnesses. [Restatement (Third) of the Law
Governing Lawyers § 87 cmt. f.]
a. Protections for Ordinary Work Product
In general, one party may obtain another party’s ordinary work product only if the first
party can establish that it has a substantial need for the materials to prepare its case and
cannot obtain their substantial equivalent without undue hardship. [Fed. R. Civ. P. 26(b)(3);
Restatement (Third) of the Law Governing Lawyers §§ 87-88.]
b. Protections for Opinion Work Product
In general, one party may obtain another party’s opinion work product only in extraordinary
circumstances or if the opposing party has demonstrated a compelling need for its
discovery. The courts have not clearly defined extraordinary circumstances in this context.
However, the phrase is apparently meant to indicate that opinion work product is more
highly protected than ordinary work product, though not as highly protected as privileged
attorney-client communications. [Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573
(9th Cir. 1992); Fed. R. Civ. P. 26(b)(3); Restatement (Third) of the Law Governing Lawyers
§ 87, § 89 cmt. d.]
2. Facts Not Protected
Like the attorney-client privilege, the work-product doctrine does not apply to the facts on
which the work product is based. Thus, if those facts are otherwise discoverable or
unprotected from disclosure, they may be revealed or obtained by an opposing party without
violating the work-product doctrine. [Restatement (Third) of the Law Governing Lawyers §
87(1) cmt. g.]
3. The Crime-Fraud Exception
The crime-fraud exception to the work-product doctrine provides that the doctrine does not
apply to materials prepared if (1) the client consults the lawyer with the purpose of committing
or obtaining assistance in committing a crime or a fraud, and the client accomplishes that
purpose, or (2) the client uses the materials to commit or assist in committing a crime or fraud.
[Restatement (Third) of the Law Governing Lawyers § 93.]
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4. Waiver of Work-Product Protections
The protections of the work-product doctrine may be waived by the client, the client’s lawyer,
or another agent of the client if one of these actors:
 agrees to waive the protections;
 disclaims the protections, and another person reasonably relies on the disclaimer to that
person's detriment, or there are other reasons to prevent revocation of the disclaimer;
 in a court proceeding, fails to object properly to an attempt to obtain or introduce evidence of
work product; or
 reveals the material to third parties in a way that makes it likely that an adversary in litigation will
obtain it.
[Restatement (Third) of the Law Governing Lawyers § 91.]
a. Placing Work Product in Issue
A client waives the protections of the work-product doctrine if, in a court proceeding, (1)
the client asserts, as to a material issue, that the lawyer’s advice was relevant to the
client’s conduct; or (2) the client asserts that the lawyer rendered ineffective or wrongful
assistance to the client. [Restatement (Third) of the Law Governing Lawyers § 92(1).]
b. Witness Preparation or Assistance
The protections of the work-product doctrine can be waived if the work product is used to
prepare or assist a witness in a court proceeding. More specifically, the protections are
waived as to any relevant material if (1) the witness uses recorded work product to assist
the witness while testifying; or (2) recorded work product is used to prepare a witness to
testify, and the court finds that justice requires disclosure of the work product.
[Restatement (Third) of the Law Governing Lawyers § 92(2).]
Broad Duty of Confidentiality
A lawyer has a duty to protect confidential information relating to the client-lawyer relationship.
This duty encompasses much more information than either the attorney-client privilege or the
work-product doctrine and is designed to promote trust and candor between the lawyer and the
client. [Model Rules of Prof’l Conduct r. 1.6 cmts. 2-3 (Am. Bar Ass’n 2020).]
1. General Rule
The rule of confidentiality places several obligations on a lawyer, subject to some important
exceptions.
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a. Confidential Information Defined
Confidential information for purposes of the ethical rules is any information relating to the
representation of a client, regardless of the source of the information. [Model Rules of Prof’l
Conduct r. 1.6(a) cmts. 2-3 (Am. Bar Ass’n 2020).]
Information That May Lead to Confidential Information
A lawyer’s general obligation of confidentiality extends to information that is not itself
confidential, but which could reasonably lead a third party to discover confidential
information. A lawyer’s use of a hypothetical does not violate this principle so long as
the hypothetical is not reasonably likely to enable someone to determine the client’s
identity or the situation involved. [Model Rules of Prof’l Conduct r. 1.6 cmt. 4 (Am. Bar
Ass’n 2020).]
b. Prospective and Former Clients
A lawyer’s duty of client confidentiality extends to former clients, just as to current ones.
Thus, even after a client-lawyer relationship has ended, the lawyer is generally prohibited
from revealing information relating to the representation of the client. In addition, the duty
of confidentiality extends to a prospective client (i.e., a person who consults with the
lawyer about the possibility of forming a lawyer-client relationship) to the same extent as
to the lawyer’s current and former clients. This is true even if the prospective client does
not ultimately become the lawyer’s client. The protection for prospective-client information
recognizes that a prospective client might reveal information about her affairs in an initial
consultation with a lawyer, including information necessary for the lawyer to decide
whether to undertake the representation. [Model Rules of Prof’l Conduct r. 1.6 cmt. 20, r.
1.9(c)(2), r. 1.18(a)-(b) cmt. 3 (Am. Bar Ass’n 2020).]
c. Protecting Confidential Information
A lawyer must make reasonable efforts to prevent the accidental disclosure of confidential
information, the unauthorized disclosure of confidential information, and unauthorized
access to confidential information. Some of the factors in determining reasonableness are:
 the sensitivity of the information,
 the likelihood of disclosure without additional safeguards,
 the cost of additional safeguards,
 the difficulty of using the safeguards, and
 the extent to which the safeguards interfere with the lawyer’s ability to represent clients.
[Model Rules of Prof’l Conduct r. 1.6(c) cmt. 18 (Am. Bar Ass’n 2020).]
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d. Disclosures Expressly or Impliedly Authorized by Client
In general, and subject to limited exceptions, a lawyer may reveal confidential information
only if (1) the client expressly gives informed consent, or (2) the disclosure is impliedly
authorized to carry out the representation. [Model Rules of Prof’l Conduct r. 1.6(a) (Am. Bar
Ass’n 2020).]
Express Authorization: Informed Consent
A client may give express informed consent to the lawyer’s disclosure of information
relating to the representation of the client. Giving informed consent means the client
agrees to a proposed course of conduct after the lawyer has communicated adequate
information and explanation about (1) the material risks of the proposed course of
conduct and (2) any reasonably available alternatives to the proposed course of
conduct. [Model Rules of Prof’l Conduct r. 1.0(e), r. 1.6 cmt. 2 (Am. Bar Ass’n 2020).]
Implied Authorization
A lawyer is impliedly authorized to use or disclose confidential client information if it is
appropriate to do so as part of the lawyer’s representation. The MRPC do not provide a
single, comprehensive definition of when disclosure is appropriate under this rule.
However, the MRPC suggest that disclosure may be allowed in situations such as (1) a
lawyer admitting a fact that cannot be disputed before a tribunal and (2) a lawyer
making a disclosure that contributes to a satisfactory resolution of a matter within the
representation. In addition, lawyers within a firm may disclose a client’s confidential
information to one another as part of the representation, unless the client has given
instructions that information should be shared only with specific lawyers, or the ethical
rules require that some lawyers be screened from the representation to avoid conflicts
of interest. [Model Rules of Prof’l Conduct r. 1.6(a) cmt. 5 (Am. Bar Ass’n 2020); see
Screening, infra.]
Other Exceptions to the Confidentiality Rule
Aside from client authorization, there are other exceptions to the confidentiality rule. A lawyer
may reveal information related to the representation that the lawyer reasonably believes
necessary to:
 prevent reasonably certain death or bodily harm;
 prevent a crime or fraud that is reasonably certain to cause financial or property-related harm, as to
which the client has used or is using the lawyer’s services;
 prevent or rectify a financial or property-related injury that has resulted or is reasonably certain to
result from a crime or fraud furthered by the client’s use of the lawyer’s services;
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 obtain legal advice about the lawyer’s own compliance with the ethical rules;
 comply with a law or court order;
 establish claims or defenses in a formal controversy between the lawyer and the client or against
the lawyer based on the client’s conduct;
 respond to allegations in a legal claim or disciplinary proceeding concerning the representation; or
 detect and resolve conflicts of interest.
[Model Rules of Prof’l Conduct r. 1.6(b) (Am. Bar Ass’n 2020).]
1. Lawyer’s Actions before Disclosure
If possible, before disclosing information under an exception to the general confidentiality rule,
a lawyer should attempt to convince the client to act in a way that makes the disclosure
unnecessary. This procedure both protects client confidentiality and encourages clients to
comply with the law. [Model Rules of Prof’l Conduct r. 1.6(b) cmt. 16 (Am. Bar Ass’n 2020).]
2. Responding to a Court Order
In responding to a court order requiring disclosure of confidential information, a lawyer must
make a reasonable effort to notify the client of the order and consult with the client to obtain
informed consent to the disclosure. If the client does not consent, the lawyer should assert on
behalf of the client all nonfrivolous claims that the court’s order is not authorized or that the
information sought is protected against disclosure by the attorney-client privilege or other law.
If the court rejects these arguments, the lawyer must consult with the client about appealing
the ruling. If no appellate review is sought, the lawyer may then make the disclosure. [Model
Rules of Prof’l Conduct r. 1.6(b)(6) cmt. 15 (Am. Bar Ass’n 2020); ABA Comm’n on Ethics &
Prof’l Responsibility, Formal Op. 473 (2016) (discussing obligations upon receiving a subpoena
or other compulsory process for client documents or information).]
IV. Conflicts of Interest
A conflict of interest exists if there is an actual or potential incompatibility between (1) the interests
of two or more clients, including prospective, current, or former clients, or (2) the personal interests
of the lawyer and the interests of the client. One danger of a conflict of interest is that it might
compromise the lawyer’s ability to provide loyal and independent legal advice to the client.
Nonetheless, in some circumstances a client may consent to the representation despite a conflict of
interest.
Current-Client Conflicts: Multiple Clients and Joint Representation
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A concurrent conflict of interest is a conflict that 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 a
client will be materially limited by the lawyer’s responsibilities to another client, a former client, or
a third person, or by the lawyer’s personal interest. The second of these two types of conflicts of
interest is sometimes called a material-limitation conflict. [Model Rules of Prof’l Conduct r. 1.7 (Am.
Bar Ass’n 2020).]
1. General Rule of Disqualification
In general, and subject to exceptions, a lawyer may not represent a client if that
representation would cause a concurrent conflict of interest. In this situation, a lawyer is said
to be disqualified from the representation. If the conflict is known before the lawyer begins to
represent a client, then the lawyer generally must decline the representation. If the conflict
arises during the representation, then the lawyer generally must withdraw from the
representation. [Model Rules of Prof’l Conduct r. 1.7 cmts. 4-5, r. 1.9 (Am. Bar Ass’n 2020).]
2. Representation Directly Adverse to Another Client
A conflict of interest exists if the legal interests of one client are directly adverse to those of
another client, even if the lawyer does not represent both clients in the same matter. This rule
applies to both litigation and transactional representation. A lawyer who wishes to undertake
representation that is directly adverse to another client must either obtain informed consent or
withdraw from the representation. [Model Rules of Prof’l Conduct r. 1.7(b) cmts. 6-7 (Am. Bar
Ass’n 2020); see also Informed Consent, infra.]
Example:
A lawyer represented a restaurant in general litigation matters. The lawyer also represented a
baker, who happened to sell bread to the restaurant, in general litigation matters. Eventually, a
dispute arose between the restaurant and the baker, and the baker asked the lawyer to
represent him in a suit against the restaurant. The lawyer may not undertake the
representation unless informed consent is obtained from the baker and the restaurant,
because representing the baker would put the lawyer in a posture directly adverse to a
client—the restaurant. [Model Rules of Prof’l Conduct r. 1.7(b) cmts. 6-7 (Am. Bar Ass’n 2020).]
a. Representing Adversaries in the Same Matter
Although client consent might allow a lawyer to undertake some forms of adverse
representation, a lawyer may not represent multiple adverse parties in the same matter, e.g.,
both a plaintiff and a defendant in the same case. A conflict of that type cannot be waived
by either client, because the conflict is considered too serious and too fundamental to be
overcome. [Model Rules of Prof’l Conduct r. 1.7(b)(3) cmt. 23 (Am. Bar Ass’n 2020).]
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3. Material-Limitation Conflicts
A material-limitation conflict exists if there is a significant risk that the representation
provided to one or more clients is materially limited by the lawyer’s duties and responsibilities
to another client, a former client, or a third person or by a personal interest of the lawyer.
[Model Rules of Prof’l Conduct r. 1.7(a) (Am. Bar Ass’n 2020); see Current-Client Conflicts:
Lawyer’s Personal Interest or Duties, infra.]
a. Taking Inconsistent Legal Positions
A lawyer is not always prohibited from taking inconsistent legal positions in different cases.
The mere risk of creating adverse precedent for a different client in a separate matter is
not inherently a conflict of interest. However, a conflict could arise if a lawyer’s advocacy
on behalf of one client materially limits the lawyer’s ability to effectively represent another
client, e.g., if the lawyer’s advocacy creates precedent that is not merely adverse to
another client, but rather seriously weakens the other client’s legal position. To assess
these types of potential conflicts, the lawyer should consider factors such as:
 the significance of the issue to the clients,
 the clients’ reasonable expectations of the lawyer, and
 the nature of the relationship between the matters involved.
If a conflict does exist, the lawyer must either obtain informed consent or withdraw from
the representation. [Model Rules of Prof’l Conduct r. 1.7(b)(3) cmt. 24 (Am. Bar Ass’n
2020).]
b. Joint Representation
A lawyer who provides representation to more than one client in a single matter or
proceeding is said to engage in a joint representation of those clients. Even if the clients
are not formally adverse, joint representation can raise potential material-limitation
conflicts.
Potentially Divergent Client Interests
A lawyer might seek in a single matter to represent multiple clients whose interests are
not directly opposed, but which may diverge in the course of the representation. A
conflict of interest exists if there is a significant risk that the lawyer’s representation of
any client will be materially limited by the lawyer’s responsibilities to another client. In
evaluating potential conflicts in this situation, the lawyer should consider factors such
as:
 the duration and depth of the relationship with each client;
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 the lawyer’s function in the matter (e.g., advisor, negotiator, or advocate);
 the likely prejudice to one client from conflict with others;
 the likelihood that the clients’ interests will diverge; and
 whether a divergence in client interests will interfere with the lawyer's professional
judgment in considering reasonable alternatives or courses of action for each client.
Any potential conflicts of this type can be overcome by the clients’ informed consent.
[Model Rules of Prof’l Conduct r. 1.7 cmts. 8, 26, 28, 30, 32 (Am. Bar Ass’n 2020).]
Example:
A baker and a restaurateur had a longstanding positive working relationship. They
decided to enter into a partnership with each other to open a restaurant featuring
specialty baked goods on the menu. The baker and restaurateur approached a lawyer
to represent both parties and draw up partnership agreements related to the new
restaurant. Joint representations such as this one raise concerns about potential
concurrent conflicts of interest that must be explained to the parties. However close
the parties may be initially, their interests might diverge regarding the division of
finances, the process of resolving later disputes, and other matters. After a complete
explanation of the risks involved, the lawyer may undertake the representation if both
parties provide their informed consent. [Model Rules of Prof’l Conduct r. 1.7 cmts. 8, 26,
28, 30, 32 (Am. Bar Ass’n 2020).]
Joint Representation of Criminal Defendants
Under the MRPC, a lawyer ordinarily should not agree to represent multiple defendants
in a criminal case. Although representation of this type is not absolutely prohibited, the
potential for conflicts of interest is so great, and so fundamental to the representation,
that the MRPC counsel strongly against it. In particular, a criminal case against multiple
defendants often raises the possibility that one codefendant will strike a bargain with
prosecutors to testify against other codefendants in exchange for leniency or a reduced
sentence. Clients in that position are too fundamentally adverse to one another to
permit joint representation. [Model Rules of Prof’l Conduct r. 1.7(b) cmt. 23 (Am. Bar
Ass’n 2020).]
Settlements and Plea Agreements
If a lawyer agrees to settle a case on behalf of multiple clients, the lawyer may have
difficulty in ensuring that the best interests of each client are met. Often, one individual
may tend to benefit more than another. Additionally, each client must have knowledge
that the settlement agreement applies to all clients involved and agree to the
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transaction. Consequently, a lawyer who represents multiple clients in a matter may
participate in arranging a collective settlement of civil claims or a collective plea
agreement to criminal charges only if (1) each client gives informed consent in a signed
writing, and (2) the lawyer discloses all claims or pleas involved, as well as the
participation of each person in the arrangement. This rule applies both to an individual
lawyer and to all lawyers in that lawyer’s firm. Regardless of any conflict or waiver, each
client retains the right to decide for herself whether to settle the matter on the terms
arranged. [Model Rules of Prof’l Conduct r. 1.2(a), 1.8(g), (k) (Am. Bar Ass’n 2020).]
4. Permissible Representation Despite Concurrent Conflict of Interest
The general rule is that a conflict of interest disqualifies a lawyer from the representation.
However, most concurrent conflicts can be overcome, allowing the representation to continue,
if (1) the lawyer reasonably believes that she will be able to represent each affected client
competently and diligently, (2) the representation is not prohibited by law, (3) the
representation does not involve one client asserting a claim against another client represented
by the lawyer in the same litigation or other proceeding, and (4) each affected client gives
written informed consent.
Note: The third factor above is concerned with a lawyer representing opposing sides in a
formal adversary proceeding, such as a court case. It does not refer to a situation in which a
lawyer takes a legal position on behalf of one client that is inconsistent with another client’s
interests. The latter situation can lead to a conflict of interest, but it is not a conflict in every
case. [See Taking Inconsistent Legal Positions, supra; see also Model Rules of Prof’l Conduct r.
1.7(b) cmt. 18 (Am. Bar Ass’n 2020).]
a. Informed Consent
To obtain informed consent, the lawyer must make each affected client aware of the
relevant circumstances and the material, reasonably foreseeable ways in which the conflict
of interest could adversely affect the client’s interests. A conflict of interest that can be
waived by a client’s informed consent is said to be consentable.
Note: The law of informed consent is discussed here in the context of multiclient
representations. However, the law of informed consent is the same as applied to virtually
any conflict of interest. [Model Rules of Prof’l Conduct r. 1.0(e), 1.7(b) cmt. 18 (Am. Bar
Ass’n 2020).]
Special Considerations in Joint Representation
If a conflict arises from joint representation, the lawyer must explain that the conflict
may impact the lawyer’s duties of loyalty and confidentiality and possibly the attorney-
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client privilege. If a client is made aware of the potential risks related to a conflict, the
client may determine to withhold consent, which will prohibit the lawyer from taking on
the potentially conflicted representation. [Model Rules of Prof’l Conduct r. 1.7 cmt. 18
(Am. Bar Ass’n 2020).]
Revocation of Consent
A client who has given informed consent to a conflict of interest may revoke that
consent at any time. Whether the revocation would require a lawyer to stop
representing another party will depend on the circumstances, including any possible
detriment to the other client as a result. The client may also terminate the lawyer’s
services at any time, notwithstanding that the client previously consented to the
conflict. [Model Rules of Prof’l Conduct r. 1.7(b) cmt. 21 (Am. Bar Ass’n 2020).]
Consent to Future Conflicts of Interest
In general, a lawyer may properly ask a client to waive potential future conflicts of
interest. However, whether a waiver is effective will depend largely on the extent of the
client’s understanding of the potential consequences of the prospective waiver. Broadly
speaking, a waiver by a sophisticated client is more likely to be deemed effective than a
waiver by an unsophisticated client or a waiver by a client who has little experience
with legal services. Similarly, a specific, detailed waiver is more likely to be deemed
effective than a vague and open-ended waiver. [Model Rules of Prof’l Conduct r. 1.7(b)
cmt. 22 (Am. Bar Ass’n 2020).]
Confirmation in Writing
Once informed consent is obtained, the consent must be confirmed in writing. The
writing may be a document signed by a client, but it may also be a document that is
promptly recorded by the lawyer and transmitted to the client after oral consent has
been given. [Model Rules of Prof’l Conduct r. 1.7(b) cmt. 20 (Am. Bar Ass’n 2020).]
5. Conflicts of Interest and the Duty of Confidentiality
The evaluation and resolution of conflicts of interest can raise special problems regarding the
lawyer’s duty of confidentiality.
a. Conflicts Evaluation
A lawyer may disclose information relating to the representation of a current or former
client to detect and address conflicts of interest arising from changes in the lawyer’s
employment or changes to the composition of a law firm. However, the lawyer may do so
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only to the extent that the disclosure would not violate the attorney-client privilege or
prejudice the client. The disclosure typically should include, at most:
 the identity of the client and other parties;
 a brief, general summary of the issues; and
 whether the matter has concluded.
[Model Rules of Prof’l Conduct r. 1.6(b)(7) cmt. 13 (Am. Bar Ass’n 2020).]
b. Withdrawing from Joint Representation
If a lawyer withdraws from a representation involving multiple clients, but the lawyer
wishes to continue to represent any of those clients, the lawyer must evaluate whether he
can continue the representation consistent with his obligations to the clients he will no
longer be representing, such as the continuing obligation of confidentiality. [Model Rules of
Prof’l Conduct r. 1.7 cmts. 4-5, r. 1.9 (Am. Bar Ass’n 2020).]
Current-Client Conflicts: Lawyer’s Personal Interest or Duties
A lawyer’s own personal interests or duties may create a conflict of interest between a lawyer
and a current or prospective client.
1. Gifts
In general, a lawyer may not (1) solicit a substantial gift from a client or (2) prepare on the
client’s behalf any document giving a substantial gift to the lawyer or any person related to the
lawyer, unless the lawyer or recipient of the gift is related to the client. For purposes of this
rule, a relation is a spouse, child, grandchild, parent, grandparent, or other person with whom
the lawyer or client has a close and familial relationship. This rule applies both to an individual
lawyer and to all lawyers in that lawyer’s firm. [Model Rules of Prof’l Conduct r. 1.8(c), (k) cmts.
6-8 (Am. Bar Ass’n 2020).]
a. Exceptions
The rule limiting gifts does not prohibit simple or insubstantial gifts so long as the situation
is generally fair to the client. Nor does this rule prohibit a lawyer from seeking appointment
as an executor of the client’s estate or other paying fiduciary position, subject to the
general rules regarding conflicts of interest. [Model Rules of Prof’l Conduct r. 1.8(c), (k) cmt.
8 (Am. Bar Ass’n 2020).]
2. Lawyer’s Family Relationships
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In general, a blood or marital relationship between lawyers who represent potentially adverse
clients is considered to be a conflict of interest that requires each client’s informed consent to
the representation. Such a close relationship between lawyers increases the risk of revealing
confidential information and may compromise each lawyer’s loyalty to the client and
independent professional judgment. [Model Rules of Prof’l Conduct r. 1.7 cmt. 11 (Am. Bar
Ass’n 2020).]
3. Literary Rights
While a lawyer is still representing a client, the lawyer may not make or negotiate an
agreement giving the lawyer literary or media rights to a story based substantially on
information relating to the representation. A lawyer’s acquisition of these rights creates a risk
that the lawyer’s professional judgment will be compromised by the lawyer’s desire to make
decisions that create a more salable story. A lawyer may not put herself in a situation where
she is tempted to choose between those two concerns. However, this rule does not prevent a
lawyer from accepting as a fee a share of literary property if the lawyer represents the client
in a transaction involving that property. This rule applies both to an individual lawyer and to all
lawyers in that lawyer’s firm. [Model Rules of Prof’l Conduct r. 1.8(d) cmt. 9 (Am. Bar Ass’n
2020).]
4. Sexual Relations with Clients
In general, a lawyer may not have sexual relations with a client unless a consensual sexual
relationship with the client predated the client-lawyer relationship. However, a lawyer should
consider whether a preexisting sexual relationship might materially interfere with the lawyer’s
ability to represent the client, which would create a material-limitation conflict of interest.
[Model Rules of Prof’l Conduct r. 1.8(j) cmt. 18 (Am. Bar Ass’n 2020).]
5. Financial Assistance to Clients
Generally, a lawyer is prohibited from providing financial assistance to a client in connection
with pending or contemplated litigation, except in two circumstances. First, a lawyer may
advance court costs and litigation expenses and make repayment contingent on the outcome
of the matter. Second, a lawyer representing an indigent client may pay court costs and
litigation expenses on the client’s behalf regardless of whether the funds will be repaid.
Allowing lawyers to subsidize their clients’ lawsuits or lend clients money for living expenses
during litigation could encourage clients to pursue frivolous lawsuits and give lawyers too
large a financial stake in the litigation. However, advancing court costs and litigation expenses
subject to repayment does not present the same dangers, because these advances are similar
to contingent-fee arrangements and help ensure access to the courts. [Model Rules of Prof’l
Conduct r. 1.8(e) cmt. 10 (Am. Bar Ass’n 2020).]
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Former-Client Conflicts
After a client-lawyer relationship has ended, the lawyer or law firm retains conflict-of-interest
obligations toward former clients.
1. Lawyer’s Former Clients
A lawyer who has formerly represented a client in a matter must obtain written informed
consent from the former client to later represent another person in the same or a substantially
related matter in which that person’s interests are materially adverse to the former client’s
interests. [Model Rules of Prof’l Conduct r. 1.9(a) cmt. 3 (Am. Bar Ass’n 2020); see Informed
Consent, supra.]
a. Substantially Related Matters
One matter is substantially related to another when (1) it involves the same transaction or
legal dispute, or (2) there is a substantial risk that confidential client information the lawyer
obtained in a prior representation would materially benefit or advance a new client’s
position in a subsequent matter. [Model Rules of Prof’l Conduct r. 1.9(a) cmt. 3 (Am. Bar
Ass’n 2018).]
Example:
A lawyer represented a husband and wife in the acquisition of a restaurant. Later, the
lawyer represented the husband in a divorce action against the wife but did not obtain the
wife’s consent to act as counsel for the husband. The lawyer was prohibited from
undertaking a representation that was materially adverse to a former client unless the
matter was not substantially related to the prior representation, or the former client
consented to the present representation. Here, the restaurant business was a marital asset,
and its ownership was at issue in the divorce. Thus, the lawyer violated state ethics rules
by agreeing to represent the husband without the wife’s consent. [Adapted from Fla. Bar v.
Dunagan, 731 So. 2d 1237 (Fla. 1999).]
2. Clients of Former Law Firm
If a lawyer’s former law firm represented a client in a matter, the lawyer must not knowingly
represent a person in the same or a substantially related matter if (1) the interests of the prior
firm’s client are materially adverse to that person; and (2) the lawyer knows material,
confidential information about the prior firm’s client. These restrictions may be waived if the
prior firm’s client gives written, informed consent. [Model Rules of Prof’l Conduct r. 1.9(b) cmt.
9 (Am. Bar Ass’n 2020); see Informed Consent, supra.]
a. Actual Knowledge Required
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This rule disqualifies a lawyer only if she has actual knowledge of confidential information
about the prior firm’s client. Thus, if a lawyer acquired no knowledge or information about a
particular client, these restrictions do not apply. [Model Rules of Prof’l Conduct r. 1.9(b)
cmt. 5 (Am. Bar Ass’n 2020).]
Example:
While a lawyer was employed at a law firm, the firm represented a hospital. During the
course of her employment, the lawyer learned confidential information about the hospital
while attending a deposition with a senior partner. Later, the lawyer switched employment
to become a partner at a different law firm. A prospective client of the new law firm wanted
to bring suit against the hospital in a substantially related matter. The lawyer may not
represent the prospective client unless the hospital gives its informed consent to the
representation. [Model Rules of Prof’l Conduct r. 1.9(b) cmt. 9 (Am. Bar Ass’n 2020).]
3. Use of Former Client’s Information
A lawyer is restricted from using information relating to the representation of a former client in
the representation of a new client. More specifically, 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, must not (1) use information relating to that representation to the former client’s
disadvantage, unless the rules of professional conduct permit or require it, or the information
has become generally known or (2) reveal information relating to the representation, except as
permitted or required by the rules of professional conduct. The former client may waive these
provisions by giving written, informed consent. [Model Rules of Prof’l Conduct r. 1.9(c)(1)-(2)
cmt. 9 (Am. Bar Ass’n 2020); see Informed Consent, supra.]
Example:
A criminal-defense law firm represented a famous athlete accused of murdering his wife.
During the trial, it became publicly and generally known that the athlete had a mental-health
condition that made him especially prone to bouts of intense anger. After the trial had
concluded, and the athlete was acquitted, the lawyers in the firm were interviewed by several
television news programs on which they discussed the athlete’s mental-health condition. The
lawyers have not violated the rules of professional conduct, because the information they
discussed pertaining to the legal representation was generally known. [Model Rules of Prof’l
Conduct r. 1.9(c)(1) (Am. Bar Ass’n 2020).]
Prospective-Client Conflicts
A prospective client is one who consults with a lawyer about potentially engaging the lawyer in
providing legal services with respect to a particular matter. [Model Rules of Prof’l Conduct r.
1.18(a)-(b) cmt. 2 (Am. Bar Ass’n 2020).]
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1. Consultation
Whether a communication is a consultation will depend on the circumstances. In broad terms,
a person who communicates with a lawyer about a matter at the lawyer’s invitation, and
without clear advance warnings about any restrictions on the potential relationship, has
consulted the lawyer. On the other hand, a person who unilaterally sends information to a
lawyer in response to general lawyer advertising has not consulted the lawyer. [Model Rules
of Prof’l Conduct r. 1.18(a)-(b) cmt. 2 (Am. Bar Ass’n 2020).]
2. Protection and Use of Prospective Client’s Information
A lawyer who has learned information from a prospective client may not use or reveal that
information except to the same extent allowed with respect to a former client’s information. In
other words, the lawyer may not use that information to the disadvantage of the prospective
client, unless (1) the rules of professional conduct would permit or require it with respect to a
client, or (2) the information has become generally known. Nor may the lawyer reveal that
information except to the extent authorized by the rules of professional conduct. [Model Rules
of Prof’l Conduct r. 1.9(c), 1.18(b) cmt. 3 (Am. Bar Ass’n 2020).]
3. Representation Adverse to Prospective Client
In general, if a lawyer receives information from a prospective client that could be significantly
harmful to that person in a matter, the lawyer may not represent a client with materially
adverse interests to that prospective client in the same or a substantially related matter. This
rule also applies to the lawyer’s firm. [Model Rules of Prof’l Conduct r. 1.18(c)-(d) cmts. 7-8
(Am. Bar Ass’n 2020).]
a. Exceptions
The general prohibition above does not apply if (1) both the affected client and the
prospective client give written, informed consent to the representation; or (2) the lawyer
who received the potential client’s information took reasonable steps to limit the information
to what was reasonably necessary to decide whether to represent the prospective client,
the lawyer is screened from the matter and receives no part of the fee, and written notice is
given to the prospective client with a description of the subject of the consultation and the
screening measures used. [Model Rules of Prof’l Conduct r. 1.18(c)-(d) cmts. 7-8 (Am. Bar
Ass’n 2020); see Informed Consent, supra.]
Screening
To screen a lawyer from a matter means that the law firm will isolate the lawyer from
any involvement with the matter to prevent the screened lawyer from revealing client
confidences or other protected information. Effective screening requires the firm to use
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timely procedures that are reasonably adequate to protect information possessed by
the isolated lawyer. The exact procedures needed for screening may vary, but at a
minimum the screened lawyer and any lawyers in the firm who are working on the
matter should be informed of the need for screening and the procedures that will be
applied. [Model Rules of Prof’l Conduct r. 1.0(k) cmts. 8-10 (Am. Bar Ass’n 2020).]
4. Conducting the Initial Consultation
When consulting with a prospective client, a lawyer can structure the initial consultation in
ways that can avoid or waive potential conflicts of interest.
a. Limiting the Initial Consultation
A lawyer who is considering whether to take on a representation should limit the initial
consultation with the prospective client to the information reasonably needed to assess
whether the lawyer wishes to undertake the representation or would have a conflict of
interest. As soon as it appears that the lawyer will not take on the representation, the
lawyer should either inform the prospective client of the reason for declining or simply
decline the representation. [Model Rules of Prof’l Conduct r. 1.18(c) cmt. 4 (Am. Bar Ass’n
2020).]
b. Placing Conditions on Consultation
A lawyer is permitted to place a condition on a consultation with a prospective client
requiring the prospective client to give informed consent that no information the
prospective client provides during the consultation will restrict the lawyer from
representing a different client in the matter. The lawyer may also request the prospective
client’s express informed consent for the lawyer’s subsequent use of information received
from the prospective client, even though use of that information is otherwise prohibited by
the rules of professional conduct. If the prospective client does not want to agree to the
lawyer’s conditions, the prospective client may choose not to have the consultation with
the lawyer. [Model Rules of Prof’l Conduct r. 1.18 cmt. 5 (Am. Bar Ass’n 2020).]
Imputed Conflicts
When multiple lawyers associate in a law firm, one lawyer’s conflicts may be imputed to the other
lawyers. Concurrent conflicts of interest and conflicts of interest as a result of one’s duty to a
former client are often imputed in this way.
1. Lawyer in a Law Firm
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In general, no lawyer in a firm may knowingly represent a client if any one of them alone would
be prohibited from doing so because of a duty to former or current clients. [Model Rules of
Prof’l Conduct r. 1.10(a) (Am. Bar Ass’n 2020).]
a. Exceptions
The general rule above does not apply if (1) the disqualification is based on a lawyer’s
personal interest and does not present a significant risk of materially limiting representation
by the firm’s other lawyers, or (2) the basis of the disqualification is a lawyer’s duty to a
former client and arises out of the lawyer’s association with a prior firm. If the second
exception applies, the firm must screen the disqualified lawyer from participation in the
matter and ensure that he receives no part of the corresponding fee. In addition, affected
former clients must be provided written notification of these steps and certifications of
compliance with the ethical rules and screening procedures. [Model Rules of Prof’l Conduct
r. 1.10(a) (Am. Bar Ass’n 2020); see also Screening, supra.]
Contents of Notification
If a law firm takes on a matter that one of the firm’s lawyers would be prohibited from
taking because of that lawyer’s duty to a current or former client, the written notice
provided to any affected former client must include:
 a description of the procedures used to screen the disqualified lawyer from participating
in the matter,
 a statement of the firm’s and of the screened lawyer’s compliance with the rules of
professional conduct,
 a statement that review may be available before a tribunal, and
 an agreement by the firm to respond promptly to any written inquiries or objections by
the affected former client about the screening procedures.
This written notice is intended to demonstrate to any affected former clients that the
representation will not harm their interests. [Model Rules of Prof’l Conduct r. 1.10(a)(2)(ii)
(Am. Bar Ass’n 2020).]
2. Leaving a Law Firm
After a lawyer has terminated an association with a firm, the firm is not prohibited from
representing a client with interests materially adverse to those of a client represented by the
formerly associated lawyer and not currently represented by the firm unless (1) the matter is
the same as or substantially related to the matter in which the formerly associated lawyer
represented the client, and (2) any lawyer remaining in the firm has information material to the
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matter that is protected by the lawyer’s duty to maintain confidentiality. [Model Rules of Prof’l
Conduct r. 1.10(b) (Am. Bar Ass’n 2020).]
3. Waiver of Imputed Conflicts
An imputed conflict may be waived by the affected client if (1) the lawyer reasonably believes
that she can provide competent and diligent representation to each client, (2) the
representation is not barred by law, (3) the representation does not involve a claim by one
client against the other client being represented in the same proceeding, and (4) each
affected client gives informed consent, confirmed in writing, to the representation. [Model
Rules of Prof’l Conduct r. 1.10(c) (Am. Bar Ass’n 2020); see Informed Consent, supra.]
Acquiring an Interest in Litigation
In general, a lawyer who represents a client in litigation is prohibited from acquiring a proprietary
interest in the cause of action or the subject matter of the litigation. This rule prevents the lawyer
from acquiring too great an interest in the matter, which could create a conflict of interest for the
lawyer and make it difficult for the client to fire the lawyer if the client wishes. This rule applies
both to an individual lawyer and to all lawyers in that lawyer’s firm. [Model Rules of Prof’l Conduct
r. 1.8(i), (k) cmt. 16 (Am. Bar Ass’n 2020).]
1. Exceptions
There are two exceptions to the rule above: (1) a lawyer may acquire an attorney’s lien as
authorized by law to secure the lawyer’s fee or expenses, and (2) a lawyer and client in a civil
case may form a contract for a reasonable contingent fee. [Model Rules of Prof’l Conduct r.
1.8(i), (k) cmt. 16 (Am. Bar Ass’n 2020).]
Example:
A lawyer agreed to represent a client who was seriously injured when his vehicle was struck
by a truck driver who was asleep at the wheel. The lawyer and the client signed a contingentfee agreement providing that the lawyer would receive 33 percent of any amount recovered in
the suit if the matter went to trial or which resulted from a settlement agreement. A
contingent-fee agreement of this kind is commonplace in personal injury lawsuits and is
permissible under the ethical rules. [Model Rules of Prof’l Conduct r. 1.8(i), (k) cmt. 16 (Am. Bar
Ass’n 2020).]
Business Transactions with Clients
When it comes to the legal requirements, parameters, and prohibitions involving business
transactions, such as the purchase of real estate or a company, lawyers frequently have more
knowledge and skill than nonlawyers. Consequently, there is the possibility of overreaching if a
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lawyer participates as an interested party in a business, property, or financial transaction with a
client. The potential for a conflict of interest also exists if a lawyer develops a pecuniary interest
adverse to a client.
1. Prohibited Transactions
In general, a lawyer may not (1) enter into a business transaction with a client or (2) knowingly
acquire an ownership or other pecuniary interest adverse to a client. This rule also applies to
all lawyers in that lawyer’s firm. [Model Rules of Prof’l Conduct r. 1.8(a), (k) (Am. Bar Ass’n
2020).]
a. Exceptions
The prohibition above does not apply if (1) the terms of the transaction or acquisition are
fair and reasonable to the client and are fully disclosed to the client in writing in a manner
that the client can reasonably understand; (2) the client is advised in writing of the
importance of obtaining advice from independent counsel and is given a reasonable
opportunity to obtain that advice; and (3) the client gives informed consent, in a signed
writing, to the transaction’s essential terms and the lawyer’s role in the transaction,
including whether the lawyer is representing the client in the transaction. [Model Rules of
Prof’l Conduct r. 1.8(a), (k) (Am. Bar Ass’n 2020); see Informed Consent, supra.]
Example:
A lawyer had provided long-term legal representation to a farmer. The farmer owned land
that he wanted to develop into a residential neighborhood, but the farmer lacked the
financial capital to do so. The lawyer, the farmer, and a local architect formed a company
to develop the land with third-party financing. The lawyer’s interests were directly and
materially adverse to the interests of the farmer in the formation of the company, yet the
lawyer failed to advise the farmer to seek independent legal advice regarding the
transaction. Nor did the lawyer obtain written informed consent from the farmer.
Accordingly, the lawyer was reprimanded. [Adapted from Comm. on Prof’l Ethics & Conduct
of Iowa State Bar Ass’n v. Mershon, 316 N.W.2d 895 (Iowa 1982).]
2. Business and Representation in Same Transaction
The rules of professional conduct impose heightened responsibilities on a lawyer who enters a
business transaction with a client while simultaneously representing the client in that
transaction. In this situation, the lawyer must obtain the client’s informed consent after
disclosing the risk of conflict associated with the lawyer’s dual role as legal adviser and
participant in the transaction (e.g., that the lawyer may structure the transaction or give legal
advice in a way that favors the lawyer’s interests over the client’s). In some situations, the
conflict of interest may be so severe as to be nonconsentable.
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3. Ordinary Commercial Transactions Not Prohibited
The general prohibition on a lawyer transacting business with a client does not apply to a
standard commercial transaction between the lawyer and a client for products or services that
the client generally markets to others. In that case, the lawyer has no advantage in dealing
with the client, and the restrictions on the lawyer are unnecessary. [Model Rules of Prof’l
Conduct r. 1.8(a) cmt. 1 (Am. Bar Ass’n 2020).]
Third-Party Compensation and Influence
In general, a lawyer may not accept compensation for a representation from someone other than
the client. This arrangement presents the danger that the lawyer will be influenced in her
professional judgment and loyalty by the person paying the fee instead of by the client. If a
lawyer determines that a third party who is paying for the representation of a client has interests
that differ from those of the client, then the lawyer must either ignore the third party’s wishes
and follow the client’s instructions or withdraw from the representation. This rule applies both to
an individual lawyer and to all lawyers in that lawyer’s firm. [Model Rules of Prof’l Conduct r. 1.6, r.
1.7(a), r. 1.8(f) cmts. 11-12, r. 1.8(k), r. 5.4(c) (Am. Bar Ass’n 2020-); see Direction of Lawyers by
Nonclients, supra.]
1. Exceptions
The prohibition against accepting third-party payment does not apply if (1) the client gives
informed consent, (2) the fee arrangement does not interfere with the lawyer’s independent
professional judgment or other aspects of the client-lawyer relationship, and (3) the lawyer
protects all information related to the representation as required by the general rules of client
confidentiality. [Model Rules of Prof’l Conduct r. 1.6, 1.8(f), 1.8(k), 5.4(c) (Am. Bar Ass’n 2020);
see Informed Consent, supra.]
2. Insurance Companies
Conflicts involving third-party payment commonly arise if an insurance company provides a
lawyer for its insured under the terms of an insurance policy. In these cases, the insurance
company’s lawyer may not have the insured’s best interests in mind when providing the
representation. Rather, the lawyer may be more concerned with protecting the interests of the
insurance company. This issue is further complicated by the fact that as a matter of state law
or under the terms of the insurance policy, the lawyer may be jointly representing the insured
and the insurance company, rather than representing the insured alone. [Model Rules of Prof’l
Conduct r. 1.6, r. 1.7(a), r. 1.8(f) cmts. 11-12, r. 1.8(k), r. 5.4(c) (Am. Bar Ass’n 2020).]
Example:
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An insured driver was at fault in a car accident in which the victim was injured. The victim
sued the driver. The driver’s insurance policy required the insurance company to provide him
with a lawyer. The victim’s lawyer offered to settle for $100,000. This offer was favorable to
the driver, because damages might have been substantially higher if he lost at trial. However,
the insurance policy had a maximum payout of $100,000. The insurance company had little
incentive to settle, because a trial could not expose the company to greater liability than the
settlement offer. However, a trial posed a risk that the driver could be held liable in excess of
the policy limits. Thus, the insurance company’s interests diverged from the driver’s, and the
lawyer might have felt compelled to try the case to best serve the insurance company, despite
the risk to the driver.
Lawyers Currently or Formerly in Government Service
A lawyer currently or formerly employed by a government is sometimes in a unique situation as
compared to other lawyers. A government lawyer might be situated to utilize the power of the
government to benefit a former or current private client. A government lawyer might also have
unique access to information in the course of government service, some of which could raise
conflicts of interest in later representations. Thus, although the general conflict-of-interest rules
apply to government lawyers just as they do to private lawyers, the MRPC provide some
additional rules for lawyers currently or formerly employed in government positions. In addition to
these ethical rules, a government lawyer may be subject to state or federal statutes and
regulations governing the lawyer’s actions. [Model Rules of Prof’l Conduct r. 1.11 (Am. Bar Ass’n
2020).]
1. Current Government Employment
In general, a lawyer who is serving as a public officer or government employee may not
participate in a matter on which the lawyer personally and substantially participated before
entering government. This prohibition applies unless the appropriate government agency
gives its informed consent, in writing, to the lawyer’s participation. Under the general conflictof-interest rules, the former client’s consent might also be required. [Model Rules of Prof’l
Conduct r. 1.11(d)(2)(i) (Am. Bar Ass’n 2020).]
Example:
A lawyer working for a law firm filed suit against a federal agency on behalf of a client
challenging an agency determination under an environmental statute. Over the course of the
representation, the lawyer became a subject-matter expert in this area of law, and he decided
to leave private practice and work for the agency. At this time, the client’s litigation against
the agency was ongoing. The lawyer generally may not participate in the litigation on behalf of
the agency, because as a private lawyer he participated personally and substantially in the
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matter. However, he may do so if the federal agency and former client provide informed
consent. [Model Rules of Prof’l Conduct r. 1.9, 1.11(d)(2)(i) (Am. Bar Ass’n 2020).]
a. Personal and Substantial Participation
The term personally and substantially is used to distinguish a lawyer who actually worked
on a matter from one who did not, e.g., a lawyer who had administrative responsibility for
the office in which a matter was pending but who did not take a role in the matter itself.
[Model Rules of Prof’l Conduct r. 1.12 cmt. 1 (Am. Bar Ass’n 2020).]
b. Client Confidentiality
In general, a lawyer who is serving as a public officer or government employee is subject to
the normal duties of confidentiality regarding former and prospective clients. These rules
are not altered by the lawyer entering government service. [Model Rules of Prof’l Conduct r.
1.11(d)(1) (Am. Bar Ass’n 2020).]
c. Negotiating for Employment
Additionally, the lawyer may not negotiate for private employment with anyone involved as
a party or a lawyer in a matter in which the lawyer is participating personally and
substantially. An exception to this rule is if a lawyer is employed as a law clerk for a judge
or other adjudicative officer or arbitrator. In those instances, the lawyer may negotiate for
private employment provided that the clerk notifies the judge or other officer of the
negotiations. [Model Rules of Prof’l Conduct r. 1.11(d)(2)(ii), 1.12(b) (Am. Bar Ass’n 2020).]
2. Former Government Employment
In general, a lawyer who formerly served as a public officer or government employee is
prohibited from representing a client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee. This prohibition
applies unless the appropriate government agency gives its informed consent, in writing, to
the representation. [Model Rules of Prof’l Conduct r. 1.11(a), 1.12 cmt. 1 (Am. Bar Ass’n 2020);
see Informed Consent, supra; Personal and Substantial Participation, supra.]
a. Client Confidentiality
In general, a lawyer who has served as a public officer or government employee is subject
to the normal duties of confidentiality regarding former clients. These rules are not altered
by the lawyer leaving government service. For example, the lawyer must not use
information obtained from his representation of the government agency to the
disadvantage of the agency unless otherwise permitted by law or ethical rule, or if the
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information becomes generally known. [Model Rules of Prof’l Conduct r. 1.11(a)(1) (Am. Bar
Ass’n 2020).]
b. Confidential Government Information
If a lawyer acquires confidential government information about a person while working as a
government employee or public officer, the lawyer is prohibited from later representing a
client who is adverse to that person in a matter in which the information could be used to
the material disadvantage of that person. The term confidential government information
means information obtained under governmental authority that (1) the government may not
legally disclose to the public, or (2) the government is privileged to withhold from the
public and which in either case (3) is not otherwise available to the public. [Model Rules of
Prof’l Conduct r. 1.11(c) (Am. Bar Ass’n 2020).]
c. Imputed Conflicts
Normally, if a former government lawyer is disqualified from representing a client in
connection with a matter that the lawyer worked on while in government, the lawyer’s law
firm is likewise disqualified. However, this disqualification may be avoided if (1) the lawyer
is screened from participating in the matter and receives no part of the fee, and (2) the firm
gives prompt written notice to the relevant government agency to enable the agency to
determine compliance with this rule. [Model Rules of Prof’l Conduct r. 1.11(b) (Am. Bar Ass’n
2020); see Screening, supra.]
Example:
A lawyer left his position as assistant general counsel for a federal agency to take a
position with a private law firm. While at the agency, the lawyer helped draft regulations
involving security along the US-Mexican border. The regulations significantly restricted the
ability of many companies to transport goods into Mexico. Several companies filed a
federal lawsuit to challenge the regulations. The lawyer’s new law firm generally cannot
represent any plaintiff in the lawsuit due to the lawyer’s direct involvement in drafting the
regulations. However, the firm may represent the plaintiffs if the former government lawyer
is screened from participation in the matter and excluded from any portion of the fee, and
written notice is promptly provided to his former government employer. [Model Rules of
Prof’l Conduct r. 1.11(b) (Am. Bar Ass’n 2020); see Screening, supra.]
Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral
A lawyer generally may not represent a client in a matter in which the lawyer personally and
substantially participated as:
 a judge or other adjudicative officer;
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 a law clerk to a judge or other adjudicative officer; or
 a third-party neutral, such as an arbitrator or mediator.
However, this prohibition does not apply if all parties to the proceeding give written, informed
consent to the representation. [Model Rules of Prof’l Conduct r. 1.12(a) (Am. Bar Ass’n 2020); see
Personal and Substantial Participation, supra.]
Example:
A law clerk working for a federal judge researched and wrote extensive memoranda pertaining to
an intellectual-property matter that was pending before the judge. The plaintiff company
prosecuting the patent case was impressed with the law clerk’s work product and hired the clerk
when her clerkship ended. At that time, the litigation on which the clerk had worked was still
pending. The clerk may not work on that matter as a lawyer at the firm unless all parties give
written, informed consent. [Model Rules of Prof’l Conduct r. 1.12(a) (Am. Bar Ass’n 2020).]
1. Imputed Conflicts
In general, the disqualification of a lawyer due to the lawyer’s prior work as a judge,
adjudicative officer, third-party neutral, or law clerk extends to the lawyer’s firm. Thus, no
lawyer in the firm may knowingly continue or undertake representation in the matter. However,
this prohibition may be avoided if (1) the disqualified lawyer is screened from participating in
the matter and receives no part of the fee, and (2) prompt written notice is given to the parties
and to any relevant tribunal to enable them to determine compliance with this rule. [Model
Rules of Prof’l Conduct r. 1.12(c) (Am. Bar Ass’n 2020); see Screening, supra.]
2. Negotiating for Employment
A lawyer may not negotiate for employment with a party or a lawyer in a matter in which the
lawyer is personally and substantially participating as a judge, adjudicative officer, or thirdparty neutral. However, this prohibition does not apply to a law clerk to a judge or other
adjudicative officer, provided that the clerk first notifies the judge or officer of the
negotiations. [Model Rules of Prof’l Conduct r. 1.12(b) (Am. Bar Ass’n 2020).]
V. Competence, Legal Malpractice, and Other Civil Liability
A lawyer has a duty to provide competent representation to a client and to remain competent as the
law evolves. A lawyer’s failure to act competently may lead not only to ethical violations, but also to
civil liability to the client or even to third parties.
Competence Defined
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Competent representation is defined as representation employing the knowledge, skill,
thoroughness, and preparation that are reasonably necessary to meet the client’s needs. [Model
Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2020).]
1. Knowledge and Skill
Under the MRPC, relevant factors to consider in assessing a lawyer’s knowledge and skill
include:
 the complexity and specialized nature of the matter,
 the lawyer's general training and experience in the relevant field of law,
 the preparation the lawyer can give the matter, and
 the lawyer’s ability to consult with a more experienced or competent lawyer.
[Model Rules of Prof’l Conduct r. 1.1 cmt. 1 (Am. Bar Ass’n 2020).]
2. Thoroughness and Preparation
Under the MRPC, adequate thoroughness and preparation require that a lawyer must, at a
minimum, (1) assess and analyze the factual and legal elements of the matter using methods
used by other competent lawyers and (2) prepare adequately for all aspects of the
representation. There is no fixed standard for the amount of preparation a lawyer must
undergo to provide competent representation. Rather, the necessary level of preparation will
vary by case and client (e.g., a major litigation may require more extensive preparation than a
routine, small matter). In addition, an agreement between a lawyer and a client that limits the
scope of the representation might also determine how much work the lawyer must do on the
matter. [Model Rules of Prof’l Conduct r. 1.1 cmt. 5 (Am. Bar Ass’n 2020).]
Maintaining Competence
To maintain the knowledge and skill necessary for competent representation, a lawyer must keep
up with changes in the law and its practice. Among other things, this requires the lawyer to:
 comply with jurisdictional requirements for continuing legal education,
 engage in other continued study as necessary to keep up with developments in the law that are
relevant to the lawyer’s practice, and
 keep up with technological developments and be aware of both the benefits and risks arising from
technology relevant to the lawyer’s practice.
[Model Rules of Prof’l Conduct r. 1.1 cmt. 8 (Am. Bar Ass’n 2020).]
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Competence Necessary to Undertake Representation
Before taking on a client or a matter, a lawyer must assess her own ability to provide competent
representation. The lawyer may accept the representation only if she is competent or can
become competent through reasonable preparation. [Model Rules of Prof’l Conduct r. 1.1 cmt. 4
(Am. Bar Ass’n 2020).]
1. Factors in Determining Competence
To determine whether a lawyer possesses the requisite competence in a particular matter,
several factors may be considered, including:
 the complexity and specialized nature of the matter,
 the lawyer’s general experience,
 the lawyer’s training and experience in the relevant field of law,
 the preparation and time the lawyer can devote to the matter, and
 whether the lawyer can consult or affiliate with a more experienced lawyer.
[Model Rules of Prof’l Conduct r. 1.1 cmts. 1-2 (Am. Bar Ass’n 2020).]
2. Gaining Competence
Some situations may require the lawyer to have previous experience or expertise to be
competent. In many cases, however, competent representation may be provided by a lawyer
who does not have previous experience in similar matters, so long as the lawyer possesses
applicable legal skills (e.g., identifying legal issues, legal drafting, and analyzing precedent)
and is willing to undertake the study needed to learn new material. An inexperienced lawyer
may also affiliate with a lawyer who is already competent to handle the matter. If a lawyer can
achieve the necessary level of knowledge to provide competent representation, then the
lawyer may agree to take on the matter. If not, then the lawyer should decline the
representation. [Model Rules of Prof’l Conduct r. 1.1 cmt. 2 (Am. Bar Ass’n 2020).]
3. Emergencies
In the event of an emergency, a lawyer may give limited advice or assistance in a matter in
which the lawyer does not ordinarily possess competence, if referral to or consultation with
another lawyer would be impractical. However, to protect the client from the possibility of bad
advice, the lawyer should provide the least amount of assistance that is reasonably needed to
respond to the emergency. [Model Rules of Prof’l Conduct r. 1.1 cmt. 3 (Am. Bar Ass’n 2020).]
4. Affiliating with Other Counsel
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In affiliating with another lawyer to provide competent representation, a lawyer should
reasonably believe that the additional lawyer will enhance the provision of competent
representation to the client. Factors affecting the reasonableness of the affiliation may include:
 the other lawyer’s education, reputation and experience;
 the nature and scope of the work assigned to the other lawyer; and
 the rules of professional conduct, including rules of confidentiality, that apply in the jurisdiction
in which the additional lawyer will render services.
[Model Rules of Prof’l Conduct r. 1.1 cmt. 6 (Am. Bar Ass’n 2020).]
a. Client Consent
In affiliating with another lawyer, a lawyer should obtain the client’s informed consent and
discuss with the client how responsibility for the representation will be allocated among
the lawyers. This is especially important if the affiliated lawyers will provide services in
other jurisdictions that might have different ethical rules from those that apply to the
original lawyer. [Model Rules of Prof’l Conduct r. 1.1 cmts. 6-7 (Am. Bar Ass’n 2018).]
Exercising Diligence and Care
A lawyer must act with reasonable diligence and promptness in representing a client. Some
important aspects of diligence and promptness include:
 taking whatever lawful and ethical measures are necessary to accomplish the client’s goals,
regardless of opposition, obstruction, or personal inconvenience to the lawyer;
 acting with dedication, commitment, and zeal on the client’s behalf;
 controlling the lawyer’s own workload to allow sufficient time for each matter;
 avoiding procrastination and needless delay; and
 following through to their conclusion all matters involved in a representation.
[Model Rules of Prof’l Conduct r. 1.3 cmts. 1-3 (Am. Bar Ass’n 2020).]
1. Unduly Seeking Advantage
A lawyer’s duty of diligence and promptness does not mean that a lawyer must seek every
possible advantage or use offensive tactics to advance the client’s cause. The lawyer may use
her professional discretion to decide how to pursue the matter while still treating everyone
involved with courtesy and respect. [Model Rules of Prof’l Conduct r. 1.3 cmt. 1 (Am. Bar Ass’n
2020).]
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2. Reasonable Postponements or Extensions
A lawyer’s duty of diligence and promptness does not prevent a lawyer from agreeing to a
reasonable postponement or extension of a deadline. However, the lawyer may do so only if
the agreement will not prejudice the client. [Model Rules of Prof’l Conduct r. 1.3 cmt. 3 (Am.
Bar Ass’n 2020).]
3. Concluding the Representation
Unless a client-lawyer relationship is terminated, the lawyer should carry through to
conclusion all matters that the lawyer has undertaken for the client. However, if a lawyer has
served a client over a substantial period of time in a variety of matters, the client may assume
that the lawyer will continue to serve the client unless the lawyer gives notice of withdrawal
from the representation. The lawyer should clarify any doubts about the state of the
relationship, preferably in writing, so the client will not mistakenly believe that the lawyer is
handling a matter when in fact the lawyer is not. [Model Rules of Prof’l Conduct r. 1.3 cmt. 4
(Am. Bar Ass’n 2020).]
4. Sole Practitioners and Contingency Planning
A lawyer’s duty of diligence might require a sole practitioner to establish a plan under which
another competent lawyer, in the event of the sole practitioner’s death or disability, will:
 review the sole practitioner’s client files,
 notify each client of the sole practitioner’s death or disability, and
 decide whether there is a need for any immediate action to protect the client’s interests.
This process is designed to fulfill the duty of diligence by making sure that no client’s interests
are compromised by delay or inattention. [Model Rules of Prof’l Conduct r. 1.3 cmt. 5 (Am. Bar
Ass’n 2020).]
Civil Liability to Client, Including Malpractice
A failure to provide competent and diligent representation may give rise to a civil malpractice
action initiated by the client. This liability is in addition to any professional discipline that may
result from an ethical violation.
1. Professional Discipline Versus Civil Liability
Professional discipline of lawyers under the rules of professional conduct typically does not
include an award of damages in favor of a client who was harmed by the lawyer’s actions,
although restitution is sometimes ordered as part of a disciplinary proceeding. In general,
professional discipline is a matter between the lawyer and the state bar authority or the courts,
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and not between the lawyer and the client. Thus, clients who seek to recover damages
against their lawyers must look to the laws of malpractice or other civil liability, and not to the
rules of professional conduct. [Model Rules of Prof’l Conduct Scope [20] (Am. Bar Ass’n 2020).]
2. Civil Liability
The term legal malpractice is used to encompass malpractice claims based on either (1)
professional negligence or (2) breach of fiduciary duty. Although negligence and fiduciary
breach are technically distinct legal theories, the theories will often overlap factually and
legally, depending on the law in a particular jurisdiction. Likewise, the requirements of proof
and the allowable damages may overlap substantially. [Restatement (Third) of the Law
Governing Lawyers § 49 cmt. c, § 54(1) cmt. a.]
a. Professional Negligence
A lawyer will be civilly liable for professional negligence (1) to a client or other person to
whom the lawyer owes a duty of care, (2) if the lawyer fails to exercise due care toward
that person (i.e., breaches the duty of care), and (3) that failure is a legal cause of injury,
(4) unless the lawyer has a defense. In general, the defenses available to a lawyer are the
same defenses that apply elsewhere in the law of negligence. [Restatement (Third) of the
Law Governing Lawyers § 48, § 54(1) cmt. a.]
Standard of Care
Under the professional-negligence standard of care, a lawyer must deploy the
competence and diligence normally used by lawyers in similar circumstances to pursue
the client’s lawful objectives within the scope of the representation. [Restatement
(Third) of the Law Governing Lawyers §§ 50, 52(1).]
Assessing Competence
In evaluating whether a lawyer has acted competently under the standard of care, the
fundamental question is whether the lawyer has acted reasonably under the
circumstances. Some of the most important factors in assessing reasonableness are:
 time pressures within the representation,
 whether the law or the facts are uncertain,
 the possibility that competent lawyers may choose different methods to accomplish the
same goal, and
 the fact that not all representations succeed in achieving the client’s goals.
[Restatement (Third) of the Law Governing Lawyers § 52 cmt. b.]
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Assessing Diligence
In evaluating whether a lawyer has acted diligently under the standard of care, the
fundamental question is whether the lawyer has acted reasonably under the
circumstances. Some of the most important factors in assessing reasonableness are:
 the scope of the representation,
 the client’s instructions to the lawyer,
 the importance of the matter to the client,
 the cost of undertaking particular activities within the representation, and
 the time available within the representation.
[Restatement (Third) of the Law Governing Lawyers § 52 cmt. c.]
Geographic Scope of Comparison
In evaluating whether a lawyer has complied with the standard of care, a court will
generally compare the lawyer’s actions to those of other lawyers within the state in
which the lawyer practices, as opposed to those within the lawyer’s more immediate
locality. However, a lawyer may sometimes be held to a national standard if a national
practice exists in the relevant field, e.g., federal litigation or patent law. [Restatement
(Third) of the Law Governing Lawyers § 52 cmt. b.]
Lawyer’s Assertions or Disclaimers
The standard of care can be affected by the lawyer’s assertions or disclaimers of
expertise or ability, which in turn shape the client’s reasonable expectations of the
lawyer. A lawyer who holds herself out as an expert in a field of law, or as an especially
capable or diligent lawyer, will usually be held to a higher standard of care than a
lawyer who disclaims particular expertise or does not claim special ability. [Restatement
(Third) of the Law Governing Lawyers § 52 cmt. d.]
Duties to Prospective Clients
A lawyer owes a duty of care to a prospective client (i.e., a person who consults with a
lawyer about forming a client-lawyer relationship), even if that person never becomes
an actual client. The lawyer’s standard of care in fulfilling this duty includes acting
competently and diligently in observing the applicable rules of confidentiality and
conflicts of interest, as well as in providing any legal advice or services to the
prospective client notwithstanding the absence of a full client-lawyer relationship.
[Restatement (Third) of the Law Governing Lawyers § 51(1) cmt. d.]
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Duties to Former Clients
A lawyer owes a duty of care to a former client. The lawyer’s standard of care in
fulfilling this duty includes acting competently and diligently in appropriately returning
papers and property to the former client, preserving confidentiality, and avoiding
prohibited conflicts of interest. [Restatement (Third) of the Law Governing Lawyers §
50 cmt. c.]
b. Breach of Fiduciary Duty
In addition to professional-negligence liability, a lawyer is civilly liable to a client for breach
of fiduciary duty if (1) the lawyer breaches a fiduciary duty to the client, and (2) that failure
is a legal cause of the client’s injury, (3) unless the lawyer has a defense. In general, the
defenses available to a lawyer are the same defenses that apply elsewhere in the law of
fiduciary duty. [Restatement (Third) of the Law Governing Lawyers § 49 cmt. c, § 54(1) cmt.
a.]
c. Special Malpractice Defenses
Legal-malpractice actions are subject to the same defenses normally found in the law of
negligence or fiduciary duty. However, there are other special defenses unique to these
claims.
Effect of Lawyer’s Reasonable Belief
A lawyer generally is not liable for malpractice if she reasonably believed that her
actions were required by law or by a rule of professional conduct. In other words, this
reasonable belief is a complete defense to a plaintiff’s malpractice claim. [Restatement
(Third) of the Law Governing Lawyers § 54(1) cmt. a.]
Following Client’s Lawful Instructions
In general, a lawyer does not commit malpractice by following the lawful instructions of
a properly informed client. In other words, if the client understands the circumstances,
risks, and rewards involved in a decision, the lawyer may follow the client’s instructions
without fear of malpractice liability, even if the lawyer disagrees with the instructions.
[Restatement (Third) of the Law Governing Lawyers § 52 cmts. b, d, § 54 cmt. h.]
d. Proof in Malpractice Cases
Legal-malpractice actions raise special issues of proof.
Expert Testimony Required
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A plaintiff in a legal-malpractice action usually must introduce expert testimony
regarding the duty of care (or the relevant fiduciary duty) and the defendant’s breach in
order to prove the claim. Expert testimony is usually required because in most cases, a
jury, and perhaps a judge, will not be familiar with the applicable field of law and the
usual conduct of lawyers in the relevant circumstances. However, expert testimony is
not required if the defendant’s duty and breach would be apparent to a layperson
without expert testimony. [Restatement (Third) of the Law Governing Lawyers § 52 cmt.
g.]
Lawyer’s Violation of Statutes or Ethical Rules
In general, a lawyer’s violation of a statute regulating lawyer conduct or a rule of
professional conduct does not give rise to an implied cause of action for malpractice.
Instead, the plaintiff must establish the elements of duty and breach without relying
solely on the statute or rule. By contrast, some statutes that regulate lawyer conduct
may expressly provide a cause of action for breach. Those causes of action are express,
not implied, and thus are not affected by this general rule.
1) Additional Proof Allowed
Proof of a lawyer’s violation of a rule or statute does not preclude the plaintiff from
offering other proof of the lawyer’s malpractice. [Restatement (Third) of the Law
Governing Lawyers § 52(2)(a)-(b) cmt. f; Model Rules of Prof’l Conduct Scope [20]
(Am. Bar Ass’n 2020).]
2) Relevance of Violation
In deciding whether a lawyer has committed malpractice, a trier of fact may consider
the lawyer’s violation of a statute or ethical rule if (1) the statute or rule was
designed to protect someone in the plaintiff’s position, and (2) proof of the content
and interpretation of the statute or rule is relevant to the plaintiff’s claim. The
content and interpretation of the statute or rule might be relevant if they illustrate
how lawyers in the relevant jurisdiction either do or should behave. In other words,
the statute or rule may itself illustrate the relevant duty or standard of care and
allow a comparison of that standard to the defendant's conduct. [Restatement (Third)
of the Law Governing Lawyers § 52(2)(c) cmt. f.]
e. Causation and Damages
The elements of causation and damages in a legal-malpractice case generally are
governed by the relevant jurisdiction’s standard laws of causation and damages. These
principles will often be enunciated in the tort or contract law of the relevant jurisdiction.
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However, a few special rules have evolved for situations unique to legal-malpractice claims.
[Restatement (Third) of the Law Governing Lawyers § 53 cmt. a.]
Loss of Favorable Judgment
A plaintiff in a legal-malpractice case might allege that but for the lawyer’s misconduct
she would have obtained a more favorable judgment in a civil trial. In that case, the
plaintiff must relitigate the evidence from the original trial as part of the case against the
lawyer. In other words, the plaintiff must essentially retry the original case for the trier
of fact in the malpractice action. If the trier of fact in the malpractice action concludes
based on this evidence that the lawyer’s malpractice caused the plaintiff to receive a
different or lesser judgment than she should have, then the plaintiff may recover the
difference between the amount actually obtained and the amount the plaintiff would
have obtained but for the lawyer’s fault. [Restatement (Third) of the Law Governing
Lawyers § 53 cmt. b.]
Forfeiture of Attorney’s Fees
If a plaintiff recovers against a lawyer for the loss of a more favorable judgment in a
prior case, the lawyer may sometimes, but not always, deduct the lawyer’s fees in the
prior case from the malpractice award. A lawyer who has clearly violated a duty to the
client and caused serious harm might be required to forfeit some or all of the fees
incurred in rendering the inadequate representation. This would prevent the lawyer
from deducting the lawyer’s fees from a later malpractice award. Whether fee forfeiture
is required will depend on factors including:
 the egregiousness of the lawyer’s malpractice,
 the importance of the matter to the plaintiff,
 the magnitude of the harm to the plaintiff,
 whether the plaintiff gained any benefit from the lawyer’s representation, and
 the adequacy of other remedies to compensate the plaintiff.
[Restatement (Third) of the Law Governing Lawyers § 37, § 53 cmt. c.]
Improper Criminal Conviction
In general, a convicted criminal defendant has a cause of action against his lawyer if,
but for the lawyer’s malpractice, the defendant would not have been convicted. Most
jurisdictions require proof that the client was actually innocent of the crime to support
this type of malpractice action, though the Restatement (Third) of the Law Governing
Lawyers does not require proof of innocence. In addition, in many jurisdictions the
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defendant must first have the conviction set aside on direct appeal or by collateral
attack before bringing a malpractice claim. [Restatement (Third) of the Law Governing
Lawyers § 53 Reporter’s Note cmt. d.]
Equitable Relief Permitted
In holding a lawyer liable for malpractice, a court generally may award equitable
remedies instead of, or in addition to, money damages. A court generally may award
whatever remedies are provided for under the general law of remedies in the relevant
jurisdiction. Thus, in addition to money damages, a client may be able to recover
restitution, declaratory relief, or injunctive relief, as warranted. [Restatement (Third) of
the Law Governing Lawyers § 55(2).]
3. Breach of Contract
A lawyer is subject to liability for breach of contract under normal contract-law principles in an
appropriate case. Thus, contract law provides a source of lawyer liability in addition to the
malpractice claims of professional negligence and breach of fiduciary duty. [Restatement
(Third) of the Law Governing Lawyers § 55(1).]
4. Vicarious Liability
Under principles of vicarious liability, both a law firm and individual lawyers within the firm
may be liable for wrongs committed by other lawyers.
a. Law-Firm Liability
In general, a law firm is vicariously liable for the civil wrongs of its principals and employees
committed while acting in the ordinary course of the firm’s business. This is an application
of the general rules of respondeat superior and enterprise liability to lawyers and their
firms. [Restatement (Third) of the Law Governing Lawyers § 58(1).]
b. Personal Liability
The extent of a lawyer’s personal vicarious liability may depend on the organization of the
law firm in which she practices. A partner in a law firm that is organized as a general
partnership will usually be jointly and severally liable for any acts for which the firm itself is
liable, including malpractice. Thus, the general-partnership form provides the greatest
personal-liability exposure for an individual lawyer. In many states, a lawyer can limit her
personal liability by practicing as part of a limited-liability partnership, a limited-liability
professional corporation, or a similar organizational form permitted by state law. These
entities do not eliminate vicarious liability, but they are specifically designed to limit the
exposure of each partner or member. The precise extent of personal vicarious liability in
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these organizations will depend on state law but will generally be less than that of a
general partnership. [Restatement (Third) of the Law Governing Lawyers § 58(2)-(3), with
comments.]
Civil Liability to Nonclients
In some instances, a lawyer may owe a duty of care to nonclients. If a lawyer violates a duty of
care owed to a nonclient, the nonclient may have a claim for malpractice against the lawyer.
[Restatement (Third) of the Law Governing Lawyers §§ 51-52.]
1. Reliance on Lawyer’s Opinion or Services
A lawyer owes a duty of care to a nonclient who relies on the lawyer’s opinion or legal services
if (1) the lawyer, or the lawyer’s client with the lawyer’s acquiescence, invites reliance by the
nonclient; (2) the nonclient actually relies on the lawyer’s opinion or legal services; and (3) the
nonclient is not too remote from the lawyer to be protected under applicable tort law or other
law. [Restatement (Third) of the Law Governing Lawyers § 51(2) cmt. e.]
2. Work That Benefits Nonclient
A lawyer owes a duty of care to a nonclient if (1) the lawyer knows that one of a client’s
principal goals in the representation is to benefit a nonclient; (2) the recognition of a duty to
the nonclient would not significantly interfere with the lawyer’s duties to the client; and (3) the
absence of a duty to the nonclient would make enforcement of the lawyer’s obligations to the
client unlikely (e.g., if the client has died). [Restatement (Third) of the Law Governing Lawyers
§ 51(3) cmt. f.]
3. Representing Nonclient’s Fiduciary
A lawyer owes a duty of care to a nonclient if (1) the lawyer’s client is a fiduciary, trustee,
executor or guardian for the nonclient; (2) the lawyer knows of the need for the lawyer to act
on a matter within the scope of the representation to prevent or correct the client’s breach of
fiduciary duty if the breach is criminal or fraudulent, or if the lawyer has assisted the client in
the breach; (3) the nonclient cannot reasonably protect her rights; and (4) a duty to the
nonclient would not significantly interfere with the lawyer’s duties to the client. [Restatement
(Third) of the Law Governing Lawyers § 51(4) cmt. h.]
Example:
A lawyer represented an investment advisor who had been appointed as the guardian of a
mentally incompetent woman. Over several years, the advisor converted the majority of the
woman’s assets to his own use. The lawyer knew about the advisor’s misconduct but did
nothing to prevent or to stop it. The lawyer therefore breached a duty owed to the woman.
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The advisor was the lawyer’s client, the lawyer knew of the need to act to prevent the
advisor’s wrongdoing, and the incompetent woman could not reasonably protect her own
interests. Further, imposing a duty on the lawyer would not significantly interfere with the
lawyer’s duty to the adviser, because a lawyer has no duty to assist a client in perpetrating a
crime or fraud. Thus, the lawyer may be liable to the woman. [Restatement (Third) of the Law
Governing Lawyers § 51(4).]
4. Duties toward Opposing Parties
In general, a lawyer does not owe a duty of care to an opposing party in litigation or in an
arm’s-length transaction. However, a duty of this kind might arise if the lawyer induces
reliance on the lawyer’s opinions or services, e.g., by providing an opinion letter as part of a
settlement or a transaction. [Restatement (Third) of the Law Governing Lawyers § 51 cmt. c.]
5. Intentional Interference with Contractual Relations
Typically, if a lawyer assists a client in breaking or refusing to enter into a contract, the lawyer
cannot be held liable for intentional interference with contractual relations, provided that the
lawyer is acting to fulfill the goals of the representation without using unlawful means. This
rule recognizes that contracting parties need legal advice and assistance. It also recognizes
that a refusal to perform might not be a breach, and that even an actionable breach of a
contract might sometimes be legally defensible. [Restatement (Third) of the Law Governing
Lawyers § 57(3) cmt. g.]
6. Court Proceedings
Questions of liability sometimes arise if a lawyer initiates a criminal prosecution or civil court
proceedings against a nonclient, or if a lawyer publishes statements about a nonclient in the
course of the proceedings. However, a lawyer’s liability in these situations is very limited.
a. Initiating Criminal Proceedings
A lawyer who initiates court proceedings to obtain criminal prosecution is not liable to a
nonclient for malicious prosecution if the lawyer acts (1) with probable cause (i.e., if the
lawyer has a reasonable belief that the facts underlying the claim can be proven
satisfactorily and are sufficient to establish the validity of the claim) or (2) primarily for the
purpose of bringing an offender to justice. The existence of probable cause and the
lawyer’s motivation for obtaining prosecution are evaluated independently of the client’s
motivation in the matter. [Restatement (Third) of the Law Governing Lawyers § 57(2) cmt.
e.]
b. Initiating Civil Proceedings
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A lawyer who initiates court proceedings to obtain civil redress is not liable to a nonclient
for the wrongful use of civil litigation if the lawyer acts (1) with probable cause (i.e., if the
lawyer has a reasonable belief that the facts underlying the claim can be proven
satisfactorily and are sufficient to establish the validity of the claim) or (2) primarily to help
the client obtain a proper resolution of the client’s civil claim. The lawyer’s purpose of
assisting the client in obtaining redress is evaluated independently of the client’s
motivation in the matter. [Restatement (Third) of the Law Governing Lawyers § 57(2) cmt.
d.]
c. Publication
In general, a lawyer is not liable to a nonclient for publishing material about the nonclient
(i.e., making written or verbal statements) if (1) the publication is made in communications
about a reasonably anticipated court proceeding or during the course of a court
proceeding, (2) the lawyer participates in that proceeding as a lawyer, (3) the material is
published to someone who may be involved in the proceeding, and (4) the material is
related to that proceeding. This rule is designed to protect clients and the legal process
from what might otherwise be a chilling effect on vigorous advocacy. Moreover, the rule
recognizes that court rules, rules of professional conduct, and other controls exist to limit
improper conduct by lawyers in litigation. [Restatement (Third) of the Law Governing
Lawyers § 57(1) cmt. b.]
Limiting Liability for Malpractice
The rules of professional conduct place important limitations on a lawyer’s ability to limit and
settle malpractice claims.
1. Prospective Limitations
The prospective limitation of legal-malpractice claims is highly disfavored. The MRPC provide
that a lawyer may not make any agreement with a client that prospectively limits the lawyer’s
liability for malpractice, unless the client is independently represented in negotiating and
entering the agreement. Under the Restatement (Third) of the Law Governing Lawyers, by
contrast, any agreement prospectively limiting a lawyer’s malpractice liability is unenforceable.
[Model Rules of Prof’l Conduct r. 1.8(h) cmt. 14 (Am. Bar Ass’n 2020); Restatement (Third) of
the Law Governing Lawyers § 54(2), (4).]
Example:
A lawyer represented a client in providing a title opinion pertaining to a tract of commercial
real estate. However, the lawyer committed an error, making the title opinion incorrect and
worthless. Without informing the client of his error, the lawyer provided the client with an
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agreement that would have prohibited the client from filing a legal-malpractice claim against
the lawyer. The lawyer’s actions violated the ethical rules, because he has improperly
attempted to limit his prospective liability for malpractice. [Model Rules of Prof’l Conduct r.
1.8(h) cmt. 14 (Am. Bar Ass’n 2020); Restatement (Third) of the Law Governing Lawyers §
54(2), (4).]
2. Settlement of Malpractice Claims
Generally, a lawyer may not settle a pending or potential malpractice claim with an
unrepresented client or former client, unless that person is advised in writing that he should
seek the advice of independent legal counsel and is given a reasonable time to do so. [Model
Rules of Prof’l Conduct r. 1.8(h) cmt. 14 (Am. Bar Ass’n 2020); Restatement (Third) of the Law
Governing Lawyers § 54(4)(b).]
a. Rescission of Settlements
A client or former client may rescind a settlement that was meant to resolve a malpractice
claim against the lawyer in two circumstances: (1) if the lawyer exerted improper pressure
over the client or former client when reaching the settlement or (2) if the client or former
client was not independently represented by counsel in negotiating the settlement, and the
settlement terms are unfair or unreasonable to the client or former client. [Restatement
(Third) of the Law Governing Lawyers § 54(3).]
3. Arbitration Agreements
Neither the MRPC nor the Restatement (Third) of the Law Governing Lawyers prohibit
otherwise-enforceable agreements to arbitrate legal-malpractice claims, so long as the client
gives informed consent to the agreement. [Model Rules of Prof’l Conduct r. 1.8(h) cmt. 14 (Am.
Bar Ass’n 2020); Restatement (Third) of the Law Governing Lawyers § 54, cmt. b.]
Malpractice Insurance and Risk Prevention
In most states, lawyers are not required to maintain malpractice insurance as a condition of
practicing law. However, some states require that a lawyer provide a disclosure statement
indicating whether the lawyer has malpractice insurance. In some states this disclosure must be
made to clients, while in others the disclosure must be made to the state licensing authorities.
[Restatement (Third) of the Law Governing Lawyers § 2 Reporter’s Note cmt. b; Am. Bar Ass’n
Standing Comm. on Client Protection, State Implementation of ABA Model Court Rule on
Insurance Disclosure (chart),
https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/chart_i
mplementation_of_mcrid.authcheckdam.pdf (last visited Aug. 29, 2018).]
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1. Insurable Conduct
Although malpractice insurance is not always required, lawyers are permitted to obtain
insurance to protect themselves from negligent conduct committed by themselves or by their
agents. Typically, insurable conduct is limited to negligent conduct; willful actions are not
coverable. It is against public policy to obtain insurance against liability for certain willful torts,
because this could encourage lawyers to engage in tortious behavior. Additionally, a law firm
and its principals may insure against vicarious liability arising from acts or omissions of a firm
principal or employee or others. Insurance may also cover vicarious liability for some willful
torts. [Restatement (Third) of the Law Governing Lawyers § 54 cmt. b, § 58 cmt. h.]
VI. Litigation and Other Forms of Advocacy
A lawyer has special ethical obligations to the client, opposing counsel, and the court in the conduct
of litigation and other forms of advocacy.
Meritorious Claims and Contentions
A lawyer must not file suit, defend a proceeding, or assert or contest an issue, unless there is a
nonfrivolous legal and factual basis for doing so. A lawyer is not only subject to discipline by the
state for a violation of this rule but may be subjected to sanctions by the court under the Federal
Rules of Civil Procedure or a comparable state rule. However, this rule does not prohibit a claim
made in good faith and for the purpose of an extension, modification, or reversal of existing law.
[See Fed. R. Civ. P. 11; Model Rules of Prof’l Conduct r. 3.1 cmt. 2 (Am. Bar Ass’n 2020).]
1. Frivolous Claims
A claim or assertion is frivolous if the lawyer is unable to make a good-faith argument on the
merits of the case under existing law or a good-faith argument for modifying, reversing, or
extending existing law. A good-faith argument is one that is based on an understanding of the
facts of the case and the pertinent or applicable law. [Fed. R. Civ. P. 11; Model Rules of Prof’l
Conduct r. 3.1 cmt. 2 (Am. Bar Ass’n 2020).]
2. Particular Nonfrivolous Claims
In addition to the general rule regarding nonfrivolous claims, the ethical rules identify several
specific types of claims as nonfrivolous.
a. Requiring Proof in Criminal Cases
A lawyer representing a criminal defendant does not violate the rule against making
frivolous assertions by requiring the prosecution to establish every element of the case. In
other words, the lawyer is not required to concede elements or claims brought against a
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criminal defendant, even if those elements seem obvious or if the lawyer does not believe
the client will prevail. In fact, this kind of zealous advocacy may be required as part of the
defendant’s constitutional right to assistance of counsel. The rules of professional conduct
are subordinate to a defendant’s constitutional rights in this situation. Nonetheless, a
lawyer assigned to represent a criminal defendant on an appeal is not required to raise
every possible nonfrivolous claim. [Jones v. Barnes, 463 U.S. 745 (1983); Model Rules of
Prof’l Conduct r. 3.1 cmt. 3 (Am. Bar Ass’n 2020).]
b. Claims Made before Substantiation or Discovery
If a lawyer files an action or asserts a defense before fully substantiating the facts, or if the
lawyer expects to develop the facts through discovery, the lawyer has not necessarily
acted frivolously. Lawyers typically expect to develop evidence during discovery, and the
law allows some leeway in making assertions subject to further proof. However, to avoid
making frivolous allegations, the lawyer must inform herself about the facts of the case
and the applicable law and determine that she can make a good-faith argument in support
of her client’s position. [Model Rules of Prof’l Conduct r. 3.1 cmt. 2 (Am. Bar Ass’n 2020).]
c. Claims Not Supported by Existing Law
A lawyer does not necessarily violate the rule against making frivolous allegations if the
lawyer brings a claim or makes an assertion that is unsupported by existing law. Rather, a
claim or assertion is nonfrivolous if it is supported by a good-faith argument for an
extension, modification, or reversal of existing law. [Fed. R. Civ. P. 11; Model Rules of Prof’l
Conduct r. 3.1 cmt. 2 (Am. Bar Ass’n 2020).]
d. Claims Not Expected to Succeed
A lawyer does not necessarily violate the rule against making frivolous assertions if the
lawyer brings a claim or makes an assertion that she believes will not succeed. So long as
the lawyer has a good-faith argument in support of the claim or assertion, she may make
the claim or assertion even if she does not anticipate success. [Model Rules of Prof’l
Conduct r. 3.1 cmt. 2 (Am. Bar Ass’n 2020).]
3. Signature Requirement
The Federal Rules of Civil Procedure require a lawyer to sign every pleading, motion, or other
document to certify that the lawyer has undertaken a reasonable inquiry and that (1) the
document is not being presented for harassment or some other improper motive; (2) all claims,
defenses, or assertions are supported by existing law or a good-faith argument for changing
the law; (3) all factual claims are supported by the evidence or are likely to be supported after
discovery; and (4) any denials of fact are based on evidence or reasonable belief. Many state
courts have similar requirements. [See Fed. R. Civ. P. 11.]
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4. Sanctions
A lawyer who brings a frivolous claim or makes frivolous assertions may be subject to
professional discipline under the ethical rules and may also be subject to sanctions imposed
by the court pursuant to court rules. In the federal courts, sanctions may include nonmonetary
court orders, monetary penalties to be paid to the court, or even payment of the other party’s
reasonable attorney’s fees and expenses. [See Fed. R. Civ. P. 11(c); Model Rules of Prof’l
Conduct r. 8.4 (Am. Bar Ass’n 2020).]
Expediting Litigation
A lawyer is obligated to make reasonable efforts to expedite litigation consistent with the
interests of the client. This means staying on schedule and not seeking postponements unless
absolutely necessary. Generally, a lawyer breaches this obligation if a competent lawyer acting in
good faith would believe that the tactics and strategy employed serve no substantial purpose
other than delay. The fact that a client may benefit financially or otherwise from a lawyer’s delay
in litigation is not a legitimate interest of the client that will justify the lawyer’s actions. [Model
Rules of Prof’l Conduct r. 3.2 cmt. 1 (Am. Bar Ass’n 2020).]
1. Delay to Frustrate Opposing Party
A lawyer may not fail to expedite litigation if the reason is to frustrate an opposing party’s
attempt to obtain a lawful remedy or delay the resolution of a conflict. This is true even
though sometimes other lawyers might engage in this conduct, and courts might tolerate it.
The relevant question is whether a competent lawyer acting in good faith would consider the
lawyer’s course of action to have some substantial purpose other than mere delay. [Model
Rules of Prof’l Conduct r. 3.2 cmt. 1 (Am. Bar Ass’n 2020).]
2. Continuations and Extensions
A lawyer is not prohibited from requesting that a court issue a continuation or extension of a
pending matter. The lawyer may even, on occasion, seek a postponement for personal
reasons, such as a vacation or a family emergency. However, it is not proper for a lawyer to
routinely fail to expedite litigation merely for the convenience of the lawyers in the case.
[Model Rules of Prof’l Conduct r. 3.2 cmt. 1 (Am. Bar Ass’n 2020).]
Example:
A criminal-defense lawyer was scheduled to defend a client accused of capital murder. The
lawyer was contacted by a potential witness who had previously been unwilling to talk but
claimed to have information that could exonerate the lawyer’s client. The lawyer’s request for
a continuation of the trial in order to speak to the potential witness and to ascertain the
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validity of the information gained would be proper. [Model Rules of Prof’l Conduct r. 3.2 cmt. 1
(Am. Bar Ass’n 2020).]
Compare:
A criminal-defense lawyer was scheduled to defend a client accused of capital murder. The
trial had been delayed for nearly one year at the request of the lawyer, who had a variety of
personal matters that required attention. The lawyer requested a continuance because the
scheduled trial date conflicted with his son’s birthday party. The request based on the
convenience of the lawyer would be an improper purpose for seeking postponement of the
proceeding, especially considering the lawyer’s previous delays. [Model Rules of Prof’l
Conduct r. 3.2 cmt. 1 (Am. Bar Ass’n 2020).]
Candor to the Tribunal
A lawyer must be forthcoming and honest in dealing with a tribunal. This includes correcting any
false statements of material fact or law formerly presented. A tribunal is typically defined as (1) a
court; (2) an arbitrator in a binding arbitration proceeding; or (3) a legislative, administrative, or
other government body acting in an adjudicative capacity. A body acts in an adjudicative capacity
if it is situated to issue a legally binding judgment about a party’s rights after hearing evidence or
legal arguments. [Model Rules of Prof’l Conduct r. 1.0(m), 3.3(a) (Am. Bar Ass’n 2020).]
1. General Rule
The basic rules of candor provide that a lawyer must not knowingly:
 make a false statement of fact or law to a tribunal,
 fail to correct a false statement of material fact or law previously made by the lawyer to a
tribunal, or
 offer evidence if the lawyer knows that the evidence is false.
[Model Rules of Prof’l Conduct r. 3.3(a)(1), (3) cmt. 7 (Am. Bar Ass’n 2020).]
a. Knowingly
Under the MRPC, a lawyer acts knowingly if the lawyer has actual knowledge of the fact in
question. Thus, a lawyer knowingly makes a false statement if the lawyer is actually aware
that the statement is false when made. Similarly, a lawyer knowingly fails to correct a false
statement if the lawyer is actually aware that the lawyer has not corrected a previous
statement that was false. [Model Rules of Prof’l Conduct r. 1.0(f) (Am. Bar Ass’n 2020).]
2. Scope of Duty of Candor
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A lawyer’s duty of candor to the tribunal extends to matters conducted outside of the
courtroom but in connection with the tribunal’s authority. This includes activities such as
depositions, preparing affidavits, and other litigation-related matters. [Model Rules of Prof’l
Conduct r. 3.3 cmt. 1 (Am. Bar Ass’n 2020).]
3. Duty to Disclose Adverse Legal Authority
As part of the duty of candor, a lawyer has an affirmative duty to disclose to a tribunal any
legal authority (1) that is controlling in the jurisdiction, if (2) the lawyer knows the authority to
be directly adverse to her client’s position, and (3) the authority has not been disclosed by
opposing counsel. [Model Rules of Prof’l Conduct r. 3.3(a)(2) (Am. Bar Ass’n 2020).]
a. Unfavorable Arguments
A lawyer in an adversarial proceeding is not required to present arguments that disfavor
the lawyer’s position; that responsibility lies with the opposing party. However, this rule
extends only to the presentation of facts and arguments and does not supersede the
lawyer’s duty to disclose adverse controlling legal authority. [Model Rules of Prof’l Conduct
r. 3.3 cmts. 4, 14 (Am. Bar Ass’n 2020).]
4. False Testimony or Evidence
A lawyer must not knowingly offer any evidence that the lawyer knows to be false. The
requirement of knowledge under this rule extends to both the fact of the presentation and the
falsity of its content.
a. Refusal to Offer Evidence: Reasonable Belief of Falsity
A lawyer may refuse to offer evidence, other than a criminal defendant’s testimony, if the
lawyer reasonably believes that the evidence is false. This rule applies even if the client
instructs the lawyer to present the evidence. [Model Rules of Prof’l Conduct r. 3.3(a)(3)
cmt. 9 (Am. Bar Ass’n 2020).]
b. Criminal Defendant’s Testimony
A special case is presented by the testimony of a criminal defendant. A lawyer may not
refuse to offer a criminal defendant’s testimony based merely on the lawyer’s reasonable
belief that the testimony will be false. Rather, in most jurisdictions, the lawyer may refuse
to offer the testimony of a criminal defendant only if the lawyer actually knows the
testimony will be false. A few jurisdictions go further still and always require a lawyer to
offer the defendant’s testimony if the defendant insists, even if the lawyer knows the
testimony to be false. In those jurisdictions, this type of requirement supersedes the rules
of professional conduct. The more stringent rules for a defendant’s testimony acknowledge
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the unique importance of a person’s right to testify in a criminal case. [Model Rules of Prof’l
Conduct r. 3.3(a)(3) cmts. 7, 9 (Am. Bar Ass’n 2020).]
c. Remedial Measures
If a lawyer learns that the lawyer, a witness called by the lawyer, or the lawyer’s client has
offered false material evidence to a tribunal, then the lawyer must take reasonable
measures to remedy the falsehood. Among other measures, a lawyer should:
 first discuss with the client, in confidence, the lawyer’s ethical duties and seek the client’s
cooperation in withdrawing or correcting the evidence;
 if necessary, withdraw from the representation; or
 if necessary, disclose to the tribunal whatever information is reasonably needed to address
the situation, even if this requires the lawyer to reveal confidential information.
[Model Rules of Prof’l Conduct r. 3.3(a)(3) cmt. 10 (Am. Bar Ass’n 2020).]
Example:
A lawyer represented a client seeking to remove custody of his child from his ex-spouse.
The client told the lawyer he intended to fabricate a story that his ex-spouse had engaged
in drug use and had consistently placed the child in dangerous situations. The lawyer tried
to talk the client out of presenting the false story. Nevertheless, the client insisted that it
was the only way he would be able to obtain custody of his son. The lawyer then informed
the client that the lawyer intended to withdraw from the representation if the client
insisted on offering the false story. The lawyer has acted properly under the rules of
professional conduct. [Model Rules of Prof’l Conduct r. 3.3(a)(3) cmt. 10 (Am. Bar Ass’n
2020).]
5. Criminal or Fraudulent Conduct
If a lawyer knows that a client plans to engage in, or does engage in, criminal or fraudulent
conduct related to an adjudicative proceeding, e.g., bribery, witness tampering, or unlawfully
concealing evidence, the lawyer must take reasonable measures to remedy the client’s
conduct, up to and including disclosure to the court or tribunal. [Model Rules of Prof’l Conduct
r. 3.3(b) cmt. 12 (Am. Bar Ass’n 2020).]
6. Candor and the Duty of Confidentiality
A lawyer’s duty of candor to the tribunal applies even if compliance would require the lawyer
to disclose matters that would otherwise be subject to the lawyer’s duty of confidentiality.
Thus, a lawyer may disclose confidential information to the extent necessary to avoid or
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remedy the presentation of false evidence or other lack of candor. [Model Rules of Prof’l
Conduct r. 3.3(c) cmts. 10-11 (Am. Bar Ass’n 2020).]
7. Ex Parte Proceedings
An ex parte proceeding is a proceeding in a dispute or other matter before a tribunal that is
conducted without reasonable notice to or the presence of all interested parties (e.g., an
application for emergency relief such as a temporary restraining order). Unlike a more usual
adversary proceeding, in which all adverse parties are present, an ex parte proceeding does
not feature competing presentations by opposing advocates. In an ex parte proceeding, a
lawyer must inform the court of all material facts known to the lawyer that will aid the court in
rendering a proper and informed decision, even if the facts disclosed are adverse to the
lawyer’s case. This is an exception to the general rule that ordinarily a lawyer is under no
obligation to disclose adverse facts to the court (unlike the lawyer’s duty to disclose to the
court controlling adverse legal authority). [Model Rules of Prof’l Conduct r. 3.3(d) cmt. 14 (Am.
Bar Ass’n 2020).]
8. Duration of Remedial-Measures Obligation
A lawyer’s duty to take remedial measures to correct false statements or false evidence
continues until the conclusion of the proceeding. The conclusion of the proceeding means that
either the final judgment has been affirmed on appeal or the time for any other review has
expired. [Model Rules of Prof’l Conduct r. 3.3(c) cmt. 13 (Am. Bar Ass’n 2020).]
Fairness to Opposing Party and Counsel
Generally, a lawyer should act with integrity toward other legal professionals and must not
engage in dishonest behavior with an opposing party or opposing lawyer.
1. Obstructing Access to Evidence
A lawyer must not unlawfully obstruct another party’s access to evidence, nor may a lawyer
advise or assist another person in doing so. Among other things, this prohibition precludes a
lawyer from carrying out or assisting in the unlawful alteration, destruction, or concealment of
a document or other material that has potential evidentiary value. A violation of this rule may
result not only in discipline by a state bar, but also in civil or criminal penalties. [Model Rules
of Prof’l Conduct r. 3.4(a) (Am. Bar Ass’n 2020).]
Example:
Two criminal-defense lawyers were appointed to represent a criminal defendant charged with
first-degree murder. The lawyers’ investigator retrieved the stock of a rifle that was used in
the killing but concealed the evidence from the prosecution until the defendant’s trial, acting
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with the lawyers’ approval. However, a criminal-defense lawyer in possession of physical
evidence incriminating the client must deliver the unaltered evidence to the prosecution.
Accordingly, the lawyers acted improperly in failing to turn over the evidence. [Adapted from
Commonwealth v. Stenhach, 514 A.2d 114 (Pa. 1987).]
2. Falsifying Evidence
A lawyer must not falsify evidence. Further, a lawyer may not counsel or assist a witness to
testify falsely. [Model Rules of Prof’l Conduct r. 3.4(b) (Am. Bar Ass’n 2020).]
a. Witness Inducements and Compensation
To avoid the possibility of improper influence or false testimony, a lawyer may not offer a
witness any inducement or incentive that is prohibited by law. This rule does not prohibit a
lawyer from paying a witness’s expenses or paying a fee to an expert witness to the extent
permitted by law. However, in most jurisdictions, a lawyer may not pay an expert witness a
contingent fee based on the results of the trial. Nor may a lawyer pay a nonexpert witness
a fee, as opposed to reasonable expenses, for testifying. [Model Rules of Prof’l Conduct r.
3.4(b) cmt. 3 (Am. Bar Ass’n 2020).]
3. Obedience to the Tribunal
If a tribunal instructs a lawyer to adhere to specific rules of the court, the lawyer must do so
unless the lawyer openly and expressly argues that no valid obligation exists. An open
assertion makes the lawyer’s behavior transparent and enables an appropriate authority to
adjudicate whether the order or obligation is legally proper. [Model Rules of Prof’l Conduct r.
3.4(c) (Am. Bar Ass’n 2020).]
4. Frivolous Discovery Requests
A lawyer must not make a frivolous discovery request. Additionally, a lawyer is subject to
discipline for failing to take reasonably diligent steps to comply with any valid discovery
request made by opposing counsel or an opposing party. These obligations may also exist
under applicable court rules governing discovery. [Fed. R. Civ. P. 26(g); Model Rules of Prof’l
Conduct r. 3.4(d) (Am. Bar Ass’n 2020).]
5. Statements at Trial
The rules of professional conduct forbid several kinds of statements by a lawyer at trial. A
lawyer at trial may not:
 refer to any matter that the lawyer does not reasonably believe to be relevant or supportable by
admissible evidence;
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 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.
A lawyer may present arguments based on the law and the facts. However, the lawyer may
not deliberately cloud the evidence, personalize the controversy, or make his own credibility
an issue in a way that might improperly influence the trier of fact. [Model Rules of Prof’l
Conduct r. 3.4(e) (Am. Bar Ass’n 2020).]
6. Influencing Provision of Information
A lawyer may not tell anyone other than a client not to give relevant information to another
party. However, there is an exception to this rule if (1) the person is a relative, employee, or
agent of a client; and (2) the lawyer reasonably believes that withholding the information will
not harm or otherwise adversely affect that person’s interests. [Model Rules of Prof’l Conduct
r. 3.4(f) (Am. Bar Ass’n 2020).]
Impartiality and Decorum of the Tribunal
A lawyer has specific duties to refrain from compromising the impartiality and decorum of a
tribunal. A lawyer may not attempt to influence a judge, juror, prospective juror, or other official
by any unlawful means. Nor may a lawyer do anything intended to disrupt a court or other tribunal,
including collateral proceedings under a tribunal’s authority, such as depositions. [Model Rules of
Prof’l Conduct r. 3.5(a) cmt. 4, r. 3.5(d) cmt. 5 (Am. Bar Ass’n 2020).]
1. Responding to Judicial Abuses
If a lawyer believes a judge is being abusive, the lawyer may not reciprocate in an effort to
zealously represent her client. The misconduct of a judge does not excuse or justify abusive
conduct by the lawyer. A lawyer fulfills her duties as an advocate by presenting the case and
protecting the record for subsequent review; belligerent or theatrical behavior is unnecessary.
The lawyer must preserve professional integrity at all times and should remember that the
function of an advocate is to present evidence and arguments so that the case may be
decided according to the law. [Model Rules of Prof’l Conduct r. 3.5 cmt. 4 (Am. Bar Ass’n
2020).]
2. Ex Parte Communications
Ex parte communications are oral or written communications regarding a matter, usually not on
the public record, that occur without reasonable notice to all interested parties. In general, a
lawyer is prohibited from engaging in ex parte communications with a judge, juror, prospective
juror, or other official during a proceeding before a tribunal. This rule is intended to prevent
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improper influence, or even the appearance of improper influence, by the lawyer. However, ex
parte communications are permitted if authorized by law or court order. For instance, many
jurisdictions allow a lawyer to seek a temporary restraining order or other emergency relief ex
parte. [Model Rules of Prof’l Conduct r. 3.5(b) (Am. Bar Ass’n 2020).]
3. Posttrial Communication with Jurors
A lawyer is prohibited from communicating with a juror or prospective juror after discharge of
the jury if (1) the communication is prohibited by law or court order; (2) the juror has informed
the lawyer that the juror does not desire to communicate; or (3) the communication involves
misrepresentation, coercion, duress, or harassment. Otherwise, a lawyer may communicate
with a juror or prospective juror after the jury is discharged. Lawyers sometimes find these
communications useful in understanding the case or the verdict. [Model Rules of Prof’l
Conduct r. 3.5(c) cmt. 3 (Am. Bar Ass’n 2020).]
Trial Publicity
The ethical rules attempt to strike a balance between potential prejudice arising from adverse
publicity on the one hand and acknowledging the vital social interests in information about legal
matters in the community on the other. Consequently, the rules address both permissible and
impermissible types of public statements by lawyers.
1. Prohibited Extrajudicial Statements
A lawyer is prohibited from making extrajudicial statements about the investigation or
litigation of a matter in which the lawyer is participating or has participated if the lawyer
knows or reasonably should know that the statement will (1) be communicated to the public
and (2) have a substantial likelihood of materially prejudicing an adjudicative proceeding.
These prohibitions also apply to any lawyer in the same firm or government agency as the
restricted lawyer. [Model Rules of Prof’l Conduct r. 3.6(a), (d) cmts. 3, 5 (Am. Bar Ass’n 2020).]
a. Examples
The MRPC specify that the following topics are especially likely to prejudice a proceeding
when addressed in extrajudicial statements:
 the character, credibility, reputation, or criminal record of a party, suspect, or witness;
 a witness’s identity;
 a witness’s expected testimony;
 the possibility of a guilty plea or the contents of a confession;
 the results of a test or the refusal to submit to a test;
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 the identity or nature of expected physical evidence;
 an opinion as to a defendant’s guilt or innocence;
 information that the lawyer knows or should know will be inadmissible as evidence; and
 the fact that a defendant has been charged with a crime, without an explanation that a
charge is merely an accusation.
[Model Rules of Prof’l Conduct r. 3.6 cmt. 5 (Am. Bar Ass’n 2020).]
2. Permissible Extrajudicial Statements: In General
Several types of extrajudicial statements are expressly made permissible under the MRPC.
Thus, a lawyer who is participating or has participated in the adjudication or investigation of a
matter may make the following types of extrajudicial statements:
 the claim, offense, or defense involved in the investigation or matter and, except as prohibited
by law, the identity of the persons involved;
 that an investigation of the matter is in progress;
 the scheduling or result of any step in the litigation;
 a request for assistance in obtaining evidence and information necessary for that request; and
 a warning about the danger presented by a person involved, if there is reason to believe that
there is a likelihood of substantial harm to an individual or to the public interest.
The MRPC specify that this is not intended as an exhaustive list of permissible extrajudicial
statements. [Model Rules of Prof’l Conduct r. 3.6(b)(1)-(6) cmt. 4 (Am. Bar Ass’n 2020).]
3. Permissible Extrajudicial Statements: Criminal Cases
The MRPC expressly allow a lawyer who is participating or has participated in a criminal case
to make the following types of extrajudicial statements, in addition to those allowed in other
matters:
 an accused person’s identity, residence, occupation, and family status;
 information necessary to aid in the apprehension of the accused if the accused has not yet been
apprehended;
 the fact, time, and place of arrest; and
 the identity of the investigating and arresting officers or agencies and the length of the
investigation.
[Model Rules of Prof’l Conduct r. 3.6(b)(7) (Am. Bar Ass’n 2020).]
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4. Special Duties of Prosecutors
The MRPC impose special duties on prosecutors regarding extrajudicial statements.
Specifically, a prosecutor must (1) refrain from extrajudicial comments that are likely to
heighten public condemnation of the accused, unless those comments serve a legitimate
public-information or law-enforcement purpose, and (2) take reasonable care to prevent lawenforcement and other personnel assisting or associated with the prosecutor from making
extrajudicial statements that would be prohibited to the prosecutor. These limitations apply in
addition to the limitations on extrajudicial statements in criminal cases imposed elsewhere in
the MRPC. [Model Rules of Prof’l Conduct r. 3.6(b)(7), 3.8(f) (Am. Bar Ass’n 2020).]
5. Communication to Protect a Client
Notwithstanding other restrictions on extrajudicial statements, a lawyer may make a
statement or provide information that a reasonable lawyer would believe is necessary to
protect a client from the substantial undue prejudicial effect of recent publicity that the lawyer
or the client did not initiate. The information provided must be limited to what is necessary to
mitigate the recent adverse publicity. [Model Rules of Prof’l Conduct r. 3.6(c) (Am. Bar Ass’n
2020).]
Lawyer as Witness
In general, a lawyer may not act as an advocate on behalf of a client in a proceeding in which the
lawyer will likely be a necessary witness. The lawyer’s dual role creates the possibility of
prejudicing the tribunal and the opposing party. Additionally, this situation can create a conflict of
interest between the lawyer and client. [Model Rules of Prof’l Conduct r. 3.7(a) cmts. 1-2 (Am. Bar
Ass’n 2020).]
1. Exception: When a Lawyer May Be Both Advocate and Witness
A lawyer may act as both an advocate and a witness if (1) the testimony relates to an
uncontested issue, (2) the testimony relates to the nature or value of legal services rendered in
the case, or (3) disqualification of the lawyer would be a substantial hardship on the client.
Determining whether a substantial hardship would be imposed requires a balancing of the
interests of the client with the interests of the tribunal and opposing counsel. [Model Rules of
Prof’l Conduct r. 3.7(a) cmts. 1-2, 4 (Am. Bar Ass’n 2020).]
2. Representation if Colleague May Be Witness
In general, a lawyer may represent a client in a trial in which another lawyer in the lawyer's
firm is likely to be called as a witness. However, if the testifying lawyer would be disqualified
from acting as an advocate due to a conflict of interest, then that conflict will be imputed to
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the firm’s other lawyers unless the client gives proper informed consent. [Model Rules of Prof’l
Conduct r. 3.7(b) cmt. 7 (Am. Bar Ass’n 2020).]
VII. Transactions and Communications with Persons Other Than
Clients
A lawyer’s ethical duties include a duty of truthfulness in communicating with persons who are not
clients, as well as duties regarding communications with represented and unrepresented parties in
the course of a representation.
Truthfulness in Statements to Others
A lawyer has a duty to be truthful in communicating with persons other than clients.
1. False Statements of Fact
In the course of representing a client, a lawyer must not knowingly make a false statement of
material fact or law to a third person. A lawyer knowingly makes a false statement if the lawyer
is actually aware that the statement is false when made. A lawyer’s partially true but
misleading statement that is effectively an affirmative false statement is considered to be a
false statement. [Model Rules of Prof’l Conduct r. 1.0(f), r. 4.1(a) cmt. 1 (Am. Bar Ass’n 2020).]
a. No Affirmative Duty to Communicate Facts
A lawyer’s duty of truthfulness does not include an affirmative duty to inform an opposing
party of relevant facts. In a legal matter, each party generally is responsible for
ascertaining relevant facts for itself. Although a lawyer must comply with lawful requests
for discovery and disclosure, a lawyer generally is not required to do another party’s work.
[Model Rules of Prof’l Conduct r. 4.1(a) cmt. 1 (Am. Bar Ass’n 2020).]
b. Adopting Another Person’s False Statement
A lawyer makes a misrepresentation by affirming or adopting another person’s statement if
the lawyer knows the statement to be false. In this circumstance, a lawyer may not avoid
professional responsibility by claiming that he was merely repeating what someone else
has said. [Model Rules of Prof’l Conduct r. 4.1(a) cmt. 1 (Am. Bar Ass’n 2020).]
2. Failure to Disclose: Crime or Fraud
In the course of representing a client, a lawyer may not knowingly fail to disclose a material
fact if disclosure is required to avoid assisting a client’s crime or fraud. However, the lawyer
need not make a disclosure if disclosure would be prohibited by the rules of client
confidentiality. The confidentiality rules permit, but do not require, the disclosure of
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confidential information to prevent some crimes or frauds. If an ethical rule forbids disclosure
of information by the lawyer, the lawyer instead may have an obligation to withdraw from the
representation. [Model Rules of Prof’l Conduct r. 1.2(d), 1.6(b)(1)-(3), 4.1(b) (Am. Bar Ass’n
2020).]
3. Material Facts
Determining whether a particular fact is material depends on the person to whom the
statement is made and the circumstances surrounding the communication. Further, facts
generally refer to things that are objectively true. If a lawyer is negotiating on behalf of a client,
the lawyer’s statements about price, value, or the amount a client will accept in settlement are
not considered to be material facts to which a duty of truthfulness applies. Instead, these
statements are often considered to be mere salesmanship or puffery. [Model Rules of Prof’l
Conduct r. 4.1 cmt. 2 (Am. Bar Ass’n 2020).]
Example:
A lawyer represented a chef who wanted to sell her restaurant. During negotiations with
counsel representing an out-of-town buyer, the lawyer intimated that the restaurant was one
of the best and most highly regarded restaurants in the area. In reality, there was no objective
standard on which the lawyer could base his statement. Because the statement consisted of
mere puffery during negotiations, the statement was likely not a false statement of fact.
[Model Rules of Prof’l Conduct r. 4.1 cmt. 2 (Am. Bar Ass’n 2020).]
4. Duty of Truthfulness in Other Contexts
A lawyer’s duty of honesty and truthfulness is not limited to statements made in the course of
representing a client. Accordingly, a lawyer might also commit misconduct by, among other
things, engaging in conduct that involves dishonesty, fraud, misrepresentation, or deceit,
regardless of the context. [Model Rules of Prof’l Conduct r. 4.1(a) cmt. 1, r. 8.4(c) (Am. Bar
Ass’n 2020).]
Communications with Represented Persons
A lawyer representing a client may not communicate about the subject of the representation with
a person whom the lawyer knows to be represented by another lawyer in the matter. This rule
protects represented persons from interference with their client-lawyer relationships and from
possible overreaching by other lawyers.
1. Exceptions
Despite the general rule, a lawyer may communicate with a represented person if the lawyer:
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 has the consent of the represented person’s lawyer,
 is authorized to do so by law or court order, or
 is otherwise justified in doing so in exceptional circumstances.
A lawyer who is uncertain whether communication with a represented person is permissible or
who has an exceptional need to communicate with a represented person may seek a court
order authorizing the communication. [Model Rules of Prof’l Conduct r. 4.2 cmts. 4, 6 (Am. Bar
Ass’n 2020).]
2. Consensual or Unsolicited Communications
The rule against a lawyer communicating with represented persons applies even if a
represented person initiates or consents to the communication. A lawyer who receives a
communication from a represented person must end the communication immediately upon
learning that the person is represented by counsel. [Model Rules of Prof’l Conduct r. 4.2 cmt.
3 (Am. Bar Ass’n 2020).]
3. Communications through Intermediaries
A lawyer may not avoid the rule against communicating with a represented person by
communicating with that person through a third party. This rule stems from the broader
principle that a lawyer may not evade the rules of professional conduct by committing
unethical acts through third persons. [Model Rules of Prof’l Conduct r. 4.2 cmt. 4, r. 8.4(a) (Am.
Bar Ass’n 2020).]
4. Topics outside the Representation
The rule against a lawyer communicating with represented persons does not apply to
communications about topics outside of the subject of the representation. The dangers of
overreaching or interference with the person’s client-lawyer relationship are not present if the
communication does not relate to the communicating lawyer’s representation of another party.
[Model Rules of Prof’l Conduct r. 4.2 cmts. 1, 4 (Am. Bar Ass’n 2020).]
5. Communications with Represented Corporations
If a corporation or other organization is represented by a lawyer in a matter, the rule
prohibiting a lawyer’s communication with represented persons applies to anyone within the
organization:
 who supervises, directs, or regularly consults with the organization’s lawyer about the matter;
 who has authority to obligate the organization regarding the matter; or
 whose act or omission may be attributed to the organization for purposes of liability.
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A lawyer does not need the consent of an organization’s lawyer to communicate with persons
who were formerly part of the organization. [Model Rules of Prof’l Conduct r. 4.2 cmt. 7 (Am.
Bar Ass’n 2020).]
Communications with Unrepresented Persons
When a lawyer deals on behalf of a client with a person who is not represented by counsel, the
lawyer may neither state nor imply that the lawyer is a disinterested or neutral person. This
prevents a lawyer from deliberately or inadvertently taking advantage of someone who might
misconstrue the lawyer’s role. [Model Rules of Prof’l Conduct r. 4.3 (Am. Bar Ass’n 2020).]
1. Duty to Correct a Misunderstanding
If a lawyer knows or reasonably should know that an unrepresented person misunderstands
the role of a lawyer who is representing a client in a matter, the lawyer must make reasonable
efforts to correct the unrepresented person’s misunderstanding. The lawyer generally should
identify her client and explain that the client may have interests opposed to those of the
unrepresented person. [Model Rules of Prof’l Conduct r. 4.3 cmt. 1 (Am. Bar Ass’n 2020).]
2. Conflicts of Interest
A lawyer who is representing a client is prohibited from providing legal advice to an
unrepresented person if the lawyer knows or reasonably should know that the unrepresented
person’s interests are or have a reasonable possibility of being in conflict with the interests of
the client. However, the lawyer may advise the unrepresented person to obtain counsel.
[Model Rules of Prof’l Conduct r. 4.3 cmt. 2 (Am. Bar Ass’n 2020).]
3. Negotiating Terms
A lawyer may negotiate the terms of a transaction or settlement with an unrepresented person
if the lawyer explains that he represents the lawyer’s client and is not representing the person.
The lawyer may prepare documents for the unrepresented person’s signature and explain the
lawyer’s view of the law or the unrepresented person’s obligations. [Model Rules of Prof’l
Conduct r. 4.3 cmt. 2 (Am. Bar Ass’n 2020).]
Respect for Rights of Third Persons
A lawyer must respect the rights of third persons during the course of a client’s representation.
1. Legal Rights of Third Persons
In representing a client, a lawyer must not employ tactics meant to have no other substantial
purpose than to harass, embarrass, delay, or burden a third person. Additionally, a lawyer may
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not employ methods to obtain evidence that violate the legal rights of a third person. This rule
prohibits conduct including trying to obtain evidence from a third person in a burdensome or
embarrassing manner or attempting to intrude upon privileged relationships (e.g., a
relationship between a person and his therapist, priest, spouse, or his own lawyer). [Model
Rules of Prof’l Conduct r. 4.4(a) cmt. 1 (Am. Bar Ass’n 2020).]
Example:
A lawyer represented a client in a child-custody dispute. The client informed the lawyer that
the client’s spouse had been seeing a therapist. The lawyer approached the spouse’s therapist
and attempted to pressure her into turning over the spouse’s session notes. The lawyer was
attempting to find embarrassing information about the spouse that could be used to pressure
the spouse into withdrawing his attempt to obtain custody of the child. The lawyer violated
the rules of professional conduct, because the spouse had a legal right to maintain
confidentiality with his therapist. [Model Rules of Prof’l Conduct r. 4.4(a) cmt. 1 (Am. Bar Ass’n
2020).]
2. Documents and Electronically Delivered Information
If a lawyer receives a document or electronically stored information that relates to the
representation of the client, and the lawyer knows or reasonably should know that the
document or information was inadvertently sent, the lawyer shall promptly notify the sender.
This notification will allow the sender to take appropriate protective measures. The MRPC do
not specify whether the lawyer must return the documents or information to the sender. That
question is left instead to the lawyer’s professional judgment or to any applicable law in the
relevant jurisdiction. In addition, it is important to note that whether the receipt of the
document results in waiver of privileged information contained in the document is beyond the
scope of the ethical rules. [Model Rules of Prof’l Conduct r. 4.4(b) cmts. 2-3 (Am. Bar Ass’n
2020).]
VIII. Different Roles of the Lawyer
In providing legal services, lawyers may act in various roles, including as advisors, advocates,
negotiators, evaluators, and neutral parties. Each role has corresponding ethical obligations.
Lawyer as Advisor
In the lawyer’s role as an advisor, the lawyer must exercise independent professional judgment
and render candid advice (even when that advice is hard to hear). For example, a lawyer should
not minimize the client’s circumstances, alter an opinion to make the client feel better, or offer a
guaranteed outcome. In providing legal advice, the lawyer may refer not only to the law but also
to other considerations, such as moral, economic, social, and political factors that may be
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relevant to the client’s issue. Advice that considers nonlegal factors can often be more helpful to
the client in understanding the practical effect or likely application of the law. [Model Rules of
Prof’l Conduct r. 2.1 cmts. 2-3 (Am. Bar Ass’n 2020).]
Example:
A woman contacted a lawyer about getting a divorce, but the woman told the lawyer that she was
unsure about whether she wanted to give the marriage another chance, especially for the sake of
the children. In advising the woman, the lawyer may not only counsel her on the legal implications
of a divorce, but also discuss the financial, social, and child-rearing implications. [Model Rules of
Prof’l Conduct r. 2.1 cmts. 2-3 (Am. Bar Ass’n 2020).]
1. Incorporating Nonlegal Expertise
In advising a client, a lawyer should be willing to incorporate expertise from fields other than
the law. At times, a competent lawyer should advise a client to consult a professional in
another field (e.g., a psychiatrist or an accountant) if that person’s expertise will help a client
to understand and achieve the goals of the representation. Moreover, if experts in other fields
give conflicting recommendations to a client, a lawyer is often well-suited to evaluate these
different opinions and recommend a course of action to the client in light of the applicable law.
[Model Rules of Prof’l Conduct r. 2.1 cmt. 4 (Am. Bar Ass’n 2020).]
2. Unsolicited Advice
In general, a lawyer is not expected to give unsought or unsolicited advice to a client. A lawyer
may nonetheless do so if the advice appears to be in the client’s best interests. Moreover, in
matters related to a representation, a lawyer’s duty to communicate with a client might require
the lawyer to advise the client proactively about (1) matters that could adversely affect the
client’s interests or (2) the availability of alternative dispute resolution if litigation appears
likely. [Model Rules of Prof’l Conduct r. 2.1 cmt. 5 (Am. Bar Ass’n 2020).]
Lawyer as Evaluator
A lawyer might function as an evaluator either by investigating someone on a client’s behalf or
evaluating a client’s matter for the benefit of a third person.
1. Lawyer-Client Relationship with Subject of Investigation
In general, if a lawyer investigates a person on behalf of a client, the lawyer does not establish
a client-lawyer relationship with the person who is investigated. Rather, the lawyer’s clientlawyer relationship is with the party who retained the lawyer to perform the investigation. This
is true even if the person being investigated agrees to cooperate in the investigation. In
conducting an investigation, a lawyer should make clear to the person being investigated that
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a client-lawyer relationship does not exist. [Model Rules of Prof’l Conduct r. 2.3 cmt. 2 (Am.
Bar Ass’n 2020).]
2. Evaluation for Benefit of Third Person
A lawyer may provide an evaluation of a matter affecting a client for use by a third person as
long as the lawyer reasonably believes that the evaluation is compatible with other aspects of
the lawyer’s relationship with the client. Examples include:
 information for the benefit of a third person, e.g., an opinion about title to a client’s property to
give to a purchaser;
 information required by a government agency, e.g., an opinion about the legality of securities
issued by the client; or
 an evaluation required by a third person, e.g., an opinion required by the purchaser of a client’s
business.
[Model Rules of Prof’l Conduct r. 2.3(a) cmt. 1 (Am. Bar Ass’n 2020).]
a. When Informed Consent Is Required
A lawyer must obtain a client’s informed consent to provide an evaluation for the use of
someone else if the lawyer knows or reasonably should know that the evaluation is likely to
have a material, adverse effect on the client’s interests. To obtain informed consent, the
lawyer must adequately inform the client about the potential effects on the client’s
interests and the information that the evaluation will contain. [Model Rules of Prof’l
Conduct r. 2.3(b) cmt. 5 (Am. Bar Ass’n 2020).]
b. Confidentiality
If a lawyer performs an evaluation of a client’s matter for the benefit of a third person,
information relating to the evaluation is generally protected by the lawyer’s duty of
confidentiality, except to the extent authorized in connection with the evaluation. [Model
Rules of Prof’l Conduct r. 2.3(b)-(c) cmt. 5 (Am. Bar Ass’n 2020).]
c. Scope of Evaluation
If a lawyer evaluates a client’s matter for the benefit of a third person, the client and the
lawyer may agree in advance on the scope of the evaluation. Questions of scope may
include limits on the time available to the lawyer, the information to be accessed by the
lawyer, or other factors. Any material limitations on the scope of the evaluation should be
specified in the lawyer’s report of the evaluation. [Model Rules of Prof’l Conduct r. 2.3 cmt.
4 (Am. Bar Ass’n 2020).]
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d. Duties to Third Persons
If a lawyer gives a third person an evaluation of a matter related to a client’s representation,
it is possible that the lawyer will owe a legal duty to that third person as a result (e.g., the
lawyer might take on a duty of care to the third person in preparing and presenting the
evaluation). The MRPC do not specify when this type of duty may arise. Instead, the
existence of a duty will be a matter of the applicable law in the relevant jurisdiction. [Model
Rules of Prof’l Conduct r. 2.3 cmt. 3 (Am. Bar Ass’n 2020).]
Lawyer as Negotiator
In the lawyer’s role as a negotiator, the lawyer must seek a result that is advantageous to the
client. Nonetheless, even in negotiating, a lawyer must adhere to the duty of truthfulness and
maintain honest dealings with others. The lawyer may not make false statements of material fact,
although salesmanship or puffery as to matters such as price, value, or a client’s intentions as to
an acceptable settlement of a claim are not considered material facts. Similarly, the existence of
an undisclosed principal is often considered to be immaterial and therefore is not subject to the
duty of truthfulness (though disclosure of the principal may be required if nondisclosure would
constitute fraud under applicable law). [Model Rules of Prof’l Conduct Preamble [2], r. 4.1 cmt. 2
(Am. Bar Ass’n 2020).]
Lawyer as Arbitrator, Mediator, or Other Third-Party Neutral
A lawyer acts as a third-party neutral if the lawyer assists two or more persons, who are not
clients of the lawyer, to resolve a dispute. This might include serving as an arbitrator, as a
mediator, or in some other neutral role. A lawyer who serves as a third-party neutral might be
subject to ethical rules in addition to the rules of professional conduct for lawyers. These
additional rules might be contained in court rules or in state codes of conduct for mediators or
arbitrators. [Model Rules of Prof’l Conduct r. 2.4(a) cmts. 1-2 (Am. Bar Ass’n 2020).]
1. Duty to Unrepresented Persons
A lawyer acting as a third-party neutral owes a duty to inform an unrepresented person that
he is not that person’s lawyer and that the unrepresented person has no client-lawyer
relationship with the lawyer. If the lawyer knows or reasonably should know that an
unrepresented person does not understand the lawyer’s neutral role, the lawyer must explain
the difference between the lawyer’s role in the matter and a lawyer’s role in representing a
client. [Model Rules of Prof’l Conduct r. 2.4(b) cmt. 3 (Am. Bar Ass’n 2020).]
Prosecutors and Other Government Lawyers
Unlike a lawyer engaged in private practice, a prosecutor in a criminal case is a representative of
the surrounding community, the general public, and the state. A prosecutor’s job is to seek justice,
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not merely to secure convictions. Consequently, a prosecutor must adhere to a number of special
ethical duties.
1. Charging Decisions, Evidentiary Decisions, and Treatment of Defendants
The MRPC impose special duties on prosecutors regarding charging decisions, evidentiary
decisions, and the treatment of criminal defendants. Specifically, a prosecutor must:
 refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
 make reasonable efforts to ensure that an accused has been advised of the right to and
procedures for obtaining counsel and has been given a reasonable opportunity to obtain counsel;
 not seek a waiver of important pretrial rights from an unrepresented person, except one who is
appearing pro se with the court’s approval;
 disclose exculpatory evidence before trial and mitigating evidence before sentencing; and
 not subpoena a lawyer to present evidence about a current or former client unless the
prosecutor reasonably believes the information is unprivileged, essential to the prosecution, and
otherwise unobtainable.
[Model Rules of Prof’l Conduct r. 3.8(a)-(e) (Am. Bar Ass’n 2020).]
2. Possible Wrongful Convictions
The MRPC also impose special duties on prosecutors regarding possible wrongful convictions.
If a prosecutor knows of new, credible, and material evidence that creates a reasonable
likelihood that a defendant was convicted of a crime that he did not commit, the prosecutor
must (1) promptly disclose that evidence to the appropriate authority and (2) if the conviction
was obtained in the prosecutor’s own jurisdiction, promptly disclose the evidence to the
defendant and start an investigation into whether the defendant was wrongfully convicted. If
a prosecutor knows of clear and convincing evidence that establishes the actual wrongful
conviction of someone in the prosecutor’s own jurisdiction, the prosecutor must seek to
remedy the conviction. The procedures for remediation will vary from one jurisdiction to
another and are not prescribed by the MRPC. [Model Rules of Prof’l Conduct r. 3.8(g)-(h) (Am.
Bar Ass’n 2020).]
3. Extrajudicial Statements
Prosecutors also have special duties regarding extrajudicial statements. [See Special Duties of
Prosecutors, supra.]
Lawyer Appearing in a Nonadjudicative Proceeding
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Lawyers often appear in nonadjudicative proceedings, such as legislative committee meetings,
administrative hearings, and city council meetings. A lawyer who appears before this type of
body in the course of a representation must disclose that she is appearing in a representative
capacity and not for some other purpose. For example, a lawyer who is lobbying for a particular
organization or entity must disclose that fact. Additionally, the lawyer must adhere to the ethical
rules related to candor toward a tribunal, fairness to an opposing party, and decorum of the
tribunal. [Model Rules of Prof’l Conduct r. 3.9 cmt. 1 (Am. Bar Ass’n 2020).]
1. Matters Not Included
This rule applies only when a lawyer is representing a client in connection with an official
hearing or meeting in which the lawyer is presenting evidence or argument. It does not apply
to the representation of a client in (1) a negotiation with a governmental agency, (2) a
licensing application, (3) the client’s compliance with general reporting requirements, or (4) an
investigation of the client by government investigators or examiners. [Model Rules of Prof’l
Conduct r. 3.9 cmt. 3 (Am. Bar Ass’n 2020).]
Lawyer Representing an Entity or Other Organization
A lawyer’s legal duties and obligations can often become blurred when he is employed by a
corporation or other organization. Perhaps the most challenging ethical issue is distinguishing the
interests of the entity from those of the individuals through whom the entity acts.
1. Legal Interests of Organization
In representing an organization, a lawyer represents the organization acting through its
constituents, i.e., through its authorized officers, directors, employees, and shareholders, or
their equivalents. Thus, a lawyer who represents the organization does not, for that reason
alone, also represent the organization's constituents in their individual capacities. This is true
even if a constituent of the organization supervises or directs the lawyer’s work. [Model Rules
of Prof’l Conduct r. 1.13(a) cmt. 1 (Am. Bar Ass’n 2020).]
Example:
A lawyer, employed by a hospital, was approached by a physician who sought the lawyer’s
help in reviewing a contract that the physician was entering in an individual capacity and not
as a hospital employee. The contract contained a clause that might have been adverse to the
best interests of the hospital. The lawyer should not provide legal services to the physician,
because the lawyer’s duty is to represent the potentially adverse interests of the hospital as
an entity. Thus, the lawyer should advise the physician to seek outside counsel to review the
contract on his behalf. [Model Rules of Prof’l Conduct r. 1.13(a) cmt. 1 (Am. Bar Ass’n 2020).]
2. Confidentiality
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If an organization’s constituent communicates in his organizational capacity with the
organization’s lawyer, that communication is normally protected by the lawyer’s duty of
confidentiality. However, the constituent’s communication does not make the constituent the
lawyer’s client in the constituent’s individual capacity. Therefore, the lawyer may not disclose
confidential information to the constituent except as otherwise provided by the rules of
professional conduct. [Model Rules of Prof’l Conduct r. 1.13(a) cmt. 2 (Am. Bar Ass’n 2020).]
3. Shareholder Derivative Actions
A shareholder derivative action is a lawsuit brought by a corporation’s shareholders against
the corporation’s officers or directors, alleging mismanagement of the corporation. A
derivative action is nominally brought on behalf of the corporation itself, though in reality
these lawsuits often reflect disputes over the management of the organization rather than
harms or breaches of duty by officers or directors. In many cases, a corporation’s lawyer may
defend the corporation against a shareholder derivative action. Although the corporation is
nominally the plaintiff in the action, derivative suits are often a normal incident of the
corporation’s business, and the lawyer may defend the corporation against those suits just as
the lawyer may defend against other suits. [Model Rules of Prof’l Conduct r. 1.13 cmts. 13-14
(Am. Bar Ass’n 2020).]
a. Serious Wrongdoing Alleged
If a derivative suit alleges serious wrongdoing by the board of directors or officers who
control the organization, the lawyer must consult the ethical provisions on conflicts of
interest to determine whether there is a true conflict between the organization and its
controlling constituents. If there is a true conflict of interest, the lawyer may need to (1)
represent only the corporation, (2) obtain the informed consent of both the constituents
and the corporation to represent both, or (3) withdraw from the representation if the
ethical rules would require it. The answer in each case will depend on the specific facts,
including the lawyer’s past relationships with the parties and other factors that inform a
conflicts analysis. [Model Rules of Prof’l Conduct r. 1.13 cmts. 13-14 (Am. Bar Ass’n 2020).]
4. Duty to Report Matters within the Organization
A lawyer might have a duty to report the actions of an officer, employee, or other constituent
to a higher authority within the organization if (1) the lawyer knows the constituent is
committing or intends to commit a violation of a legal obligation to the organization or a
violation of law that might be imputed to the organization, (2) the violation is likely to cause
substantial harm to the organization, and (3) the violation relates to a matter within the scope
of the lawyer’s representation. Under these conditions, the lawyer must act as is reasonably
necessary in the best interests of the organization. This means that unless the lawyer
reasonably believes that the organization’s best interests can be served without reporting
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(e.g., if talking to the actor would solve the problem), the lawyer must report the matter to a
higher authority within the organization. In making the reporting decision, the lawyer should
consider the seriousness of the violation, its consequences, and the motivation of the
individual involved, among other factors. [Model Rules of Prof’l Conduct r. 1.13(b) cmt. 4 (Am.
Bar Ass’n 2020).]
a. Government Agencies
A lawyer’s duty to report violations of law or legal duties within an organization to a higher
authority applies if the lawyer represents a government agency. However, a government
setting may implicate additional rules, regulations, or statutes outside the rules of
professional conduct that would not apply to analogous situations in a nongovernment
organization. [Model Rules of Prof’l Conduct r. 1.13(c) cmt. 9 (Am. Bar Ass’n 2020).]
b. Mere Disagreement Distinguished
A lawyer does not have a duty to report a matter merely because the lawyer disagrees with
a decision, even if the decision seems unwise or risky. Rather, the duty to report extends
to known violations of legal duties to the organization or known violations of law that could
be imputed to the organization. Absent one of these violations, a lawyer normally must
accept management or operational decisions made by or on behalf of the organization.
[Model Rules of Prof’l Conduct r. 1.13(b)-(c) cmt. 3 (Am. Bar Ass’n 2020).]
c. Disclosure of Information Following Inaction
If (1) a lawyer reports a clear violation of law within the organization as required by the
rules of professional conduct, (2) the highest authority within the organization fails to
address the violation, and (3) the lawyer reasonably believes the violation will result in
substantial injury to the organization, the lawyer may reveal information relating to the
representation to the extent the lawyer reasonably believes necessary to prevent
substantial injury to the organization. The lawyer may do so regardless of whether the
information is otherwise confidential. This rule does not apply if the violation is the subject
of the lawyer’s representation of the organization or its officers, employees, or other
constituents. [Model Rules of Prof’l Conduct r. 1.13(c) cmt. 7 (Am. Bar Ass’n 2020).]
Example:
A lawyer representing a bank learned that several members of the board of directors were
engaged in a conspiracy to steal from the organization. The lawyer informed a senior
executive of what he had learned and showed the executive documentation of the illegal
conduct. The executive, fearing potential controversy, told the lawyer to forget about the
information, because the sum involved was not significant. The lawyer then informed
several higher-ranking executives, also to no avail. The lawyer reasonably believed that
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the organization was facing substantial injury as a result of the conspiracy. Accordingly,
after no further action was taken by the senior leadership of the organization, the lawyer
informed federal law-enforcement officials of the situation. The lawyer’s conduct was
proper. [Model Rules of Prof’l Conduct r. 1.13(c) cmt. 7 (Am. Bar Ass’n 2020).]
d. Lawyer Forced to Withdraw or Discharged for Reporting
If a lawyer is (1) required to withdraw from representing a company under circumstances
that require or permit reporting a matter to a higher authority within the organization or (2)
reasonably believes that he was discharged for reporting a matter to a higher authority
within the organization, the lawyer must take whatever steps the lawyer reasonably
believes are necessary to inform the organization’s highest authority of his discharge from
the entity. [Model Rules of Prof’l Conduct r. 1.13(e) (Am. Bar Ass’n 2020).]
5. Organization Adverse to Constituents
If a lawyer who is representing an organization is dealing with the organization’s officers,
directors, employees, or other constituents, and the lawyer knows or reasonably should know
that the organization’s interests are adverse to the constituents’ interests, the lawyer must
make sure the constituents understand that the lawyer is representing the organization and
not the constituents. The lawyer should also explain that (1) the lawyer cannot represent the
constituents, (2) discussions between the lawyer and the constituents may not be privileged,
and (3) the constituents may wish to seek independent counsel. [Model Rules of Prof’l
Conduct r. 1.13(f) cmt. 10 (Am. Bar Ass’n 2020).]
6. Dual Representation Permissible
A lawyer who is employed by an organization may also represent the legal interests of any of
the entity’s directors, officers, employees, members, shareholders, or other constituents, so
long as the lawyer follows the ethical rules pertaining to conflicts of interest. [Model Rules of
Prof’l Conduct r. 1.7, 1.13(g) (Am. Bar Ass’n 2020).]
IX. Safekeeping Client Funds and Other Property
Lawyers are often entrusted with funds and other property of clients and third parties. A lawyer who
fails to properly safeguard this property is subject to professional discipline and possible civil liability.
[Model Rules of Prof’l Conduct r. 1.15(a) cmt. 1 (Am. Bar Ass’n 2020).]
Establishing and Maintaining Client Trust Accounts
Client trust accounts are required as a way for lawyers to maintain client funds separate from the
lawyer’s own funds.
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1. Trust Accounts Defined
A client trust account is a bank account, separate from the lawyer’s personal or business
account, in which the lawyer deposits money belonging to clients or third parties. In many
cases it is permissible for a lawyer to use one client trust account for multiple clients, as long
as she keeps detailed records of who owns which funds. However, it may be appropriate to
establish separate client trust accounts if a lawyer is administering an estate or acting in some
other fiduciary role. Although the MRPC do not specify in great detail how client trust
accounts are to be maintained, many states have detailed requirements for trust-account
maintenance. [Model Rules of Prof’l Conduct r. 1.15(a) cmt. 1 (Am. Bar Ass’n 2020).]
2. Recordkeeping Requirements
Under the MRPC, a lawyer must (1) keep complete records of client-trust-account funds and
(2) preserve those records for five years after the end of the representation. Other more
detailed recordkeeping requirements are imposed under applicable law or the rules of
professional conduct in each state. The ABA has promulgated a set of Model Rules for Client
Trust Account Records, as well as model standards regarding trust-account audits and
overdrafts. These standards are representative of the types and varieties of trust-account
regulations that a lawyer may encounter. [Model Rules of Prof’l Conduct r. 1.15(a) cmt. 1 (Am.
Bar Ass’n 2020); Model Rules for Client Trust Account Records (Am. Bar Ass’n 2010); see also
Am. Bar Ass’n Ctr. for Prof’l Responsibility, Client Protection Information,
https://www.americanbar.org/groups/professional_responsibility/committees_commissions/sta
ndingcommitteeonclientprotection/clientprotectioninformation (last visited July 8, 2022).]
3. Trust Accounts and Fee Advances
If a client advances funds to a lawyer to pay for future fees or expenses, the lawyer must
deposit the money in a client trust account. The lawyer may withdraw the client’s funds to
cover fees and expenses only as they are incurred. [Model Rules of Prof’l Conduct r. 1.15(c)
cmt. 3 (Am. Bar Ass’n 2022).]
4. Deposit of Lawyer’s Personal Funds in Trust Account
A lawyer may deposit her own money into a client trust account only for the purpose of paying
bank service charges on the account. The lawyer’s personal deposits must be limited to the
amount necessary to cover those charges. A lawyer may not use a client trust account for
personal reasons. [Model Rules of Prof’l Conduct r. 1.15(b) cmt. 2 (Am. Bar Ass’n 2022).]
5. Interest on Lawyers Trust Accounts (IOLTA)
An IOLTA (Interest on Lawyers Trust Accounts) account is an interest-bearing account into
which a lawyer places client funds that are either too small or will be held for too short a time
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to generate interest greater than the expense of maintaining the funds in a separate account.
An IOLTA account pools these funds into a larger account that will generate interest. That
interest is then paid to the state bar or other professional governing body and is used for civic
or charitable purposes. Every state has an IOLTA program, most of which are mandatory for
lawyers practicing in that state. [Iolta.org, IOLTA Basics, https://iolta.org/what-is-iolta/ioltabasics/ (last visited July 8, 2022).]
Safekeeping Funds and Other Property of Clients
In general, a lawyer should exercise the care of a professional fiduciary in safeguarding a client’s
funds and other property. Fiduciary standards will vary from state to state and from one situation
to another. However, in general, a lawyer’s fiduciary care regarding property requires taking
reasonable measures to protect property from loss or damage, considering the portability of the
property, its fragility, its value to the client, its market value, and the cost of specific protective
measures. [Model Rules of Prof’l Conduct r. 1.15 cmt. 1 (Am. Bar Ass’n 2020); Restatement (Third)
of the Law Governing Lawyers § 16(3), § 44 cmt. e, § 49.]
1. Commingling Prohibited
If a lawyer is holding a client’s funds or property in the course of a representation, the lawyer
must keep the funds or property separate from the lawyer’s own funds or property. In other
words, the lawyer may not commingle a client’s funds or property with the lawyer’s own. Client
funds must be kept in a separate account, which will usually be a client trust account. This
account must be maintained in the state in which the lawyer’s office is located, unless the
client consents to keeping the account elsewhere. Client property must be identified as client
property and appropriately safeguarded, e.g., securities should be kept in a safe-deposit box,
and tangible property should be stored in accordance with fiduciary responsibilities. [Model
Rules of Prof’l Conduct r. 1.15(a) (Am. Bar Ass’n 2020); see Establishing and Maintaining Client
Trust Accounts, supra.]
2. Recordkeeping
If a lawyer holds a client’s funds or property in the course of a representation, the lawyer must
keep complete records of the funds or property in the lawyer’s possession. In addition, the
lawyer must retain these records for five years after the representation ends. Most or all of
the recordkeeping requirements regarding client funds will be fulfilled by complying with the
recordkeeping requirements imposed on client trust accounts. [Model Rules of Prof’l Conduct r.
1.15(a) cmt. 1 (Am. Bar Ass’n 2020); see Establishing and Maintaining Client Trust Accounts,
supra.]
3. Receipt and Notification
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A lawyer who receives funds or other property in which a client has an interest must promptly
notify the client. The client may then provide further instructions to the lawyer regarding the
delivery or other disposition of the funds or property. [Model Rules of Prof’l Conduct r. 1.15(d)
(Am. Bar Ass’n 2020).]
4. Disposition and Accounting
Unless the law provides or the client agrees otherwise, a lawyer must promptly deliver to the
client any funds or property to which the client is entitled, either upon request or otherwise. In
addition, a lawyer must, upon the client’s request, promptly give a full accounting of all of the
client’s funds or property held by the lawyer. [Model Rules of Prof’l Conduct r. 1.15(d) (Am. Bar
Ass’n 2020).]
5. Duties Limited to Course of Representation
The MRPC’s provisions about safeguarding funds and property apply only when a lawyer holds
funds or property in the course of rendering legal services. A lawyer who holds funds or
property in some other capacity, e.g., as an escrow agent, is not subject to these rules.
However, the lawyer will likely be subject to other rules or obligations, depending on the
situation and the applicable law. [Model Rules of Prof’l Conduct r. 1.15 cmt. 5 (Am. Bar Ass’n
2020).]
Safekeeping Funds and Other Property of Third Persons
The ethical rules for safeguarding funds or property of third persons are the same as those that
apply to funds or property of clients. Thus, among other obligations, a lawyer:
 may not commingle third-party funds or property with the lawyer’s own,
 must strictly account for funds or property, and
 must otherwise safeguard the funds and property as if they belonged to a client.
[Model Rules of Prof’l Conduct r. 1.15, with comments (Am. Bar Ass’n 2020).]
Disputed Claims
A lawyer has specific ethical duties regarding property in the lawyer’s possession as to which
there is an ownership dispute.
1. Fee Disputes
In a dispute over fees, a lawyer need not immediately return to the client any funds from a
trust account that the lawyer reasonably believes are owed as a fee. Instead, the lawyer must
keep the disputed funds in a trust account and should suggest to the client ways to resolve
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the dispute promptly, such as mediation or arbitration. Nonetheless, any funds that are not in
dispute must be promptly distributed. Thus, the lawyer may not hold undisputed funds as a
way to force the client to accept the lawyer’s contentions regarding the fee. [Model Rules of
Prof’l Conduct r. 1.15(e) cmt. 3 (Am. Bar Ass’n 2020).]
Example:
A client retained a lawyer to represent him in a criminal matter involving several felonies. The
two executed a contract for legal services that provided for a non-refundable “minimum fee”
of $30,000 to defend the charges. Because the payment was characterized as a nonrefundable minimum amount, the lawyer considered this payment to be his own property and
not a fee advance. Thus, the lawyer placed the $30,000 into his office operating account. The
lawyer held client conferences, prepared for a preliminary hearing, and did other work on the
case. Thereafter, the client terminated the representation and asked for the “unearned
portion” of the $30,000 payment. The lawyer refused. However, once the fee was in dispute,
the lawyer should have transferred the amount from his operating account to a separate trust
account until the dispute was resolved. [Adapted from In re Disciplinary Action Against
Hoffman, 834 N.W.2d 636 (N.D. 2013).]
2. Property Ownership
If a lawyer representing a client possesses property or funds in which two or more persons
claim an interest, and the claims are not frivolous, the lawyer must keep the property or funds
separate until the dispute is resolved and may not immediately distribute the disputed funds
or property. However, the lawyer must promptly distribute any funds or property that are not
in dispute. The lawyer should not unilaterally try to resolve the competing claims, but if the
dispute is substantial, the lawyer may file a lawsuit or other court action to initiate a resolution.
These requirements apply even if the lawyer is one of the persons asserting an interest in the
funds or property. A lawyer should also be aware that applicable law may impose a duty to
protect third-party claims against interference from the client or someone else. [Model Rules
of Prof’l Conduct r. 1.15(e) cmt. 4 (Am. Bar Ass’n 2020).]
X. Communications about Legal Services
Historically, lawyers were prohibited from soliciting clients or advertising their legal services to the
public. That prohibition has since disappeared, though lawyers are still subject to ethical rules that
apply to communications about themselves and their services. Modern ethical rules encompass
advertising and solicitation, whether through print media, written correspondence, oral statements, or
electronic means.
Public Communications about Legal Services
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A lawyer may engage in communications about herself and her legal services, subject to ethical
limitations.
1. Truthful Information
A lawyer may not make a false or misleading communication about herself or her services. A
false or misleading communication is one that:
 contains a material misrepresentation of law or fact,
 omits a fact necessary to keep the communication from being materially misleading,
 is likely to lead a reasonable person to draw a conclusion about the lawyer or the lawyer’s
services that has no reasonable factual basis, or
 is likely to lead a reasonable person to think that he must take further action even if no action is
actually required.
A statement might be misleading, and therefore prohibited, even if it is truthful on its face.
[Model Rules of Prof’l Conduct r. 7.1 cmts. 1-2 (Am. Bar Ass’n 2020).]
a. Statements about Past Results for Clients
A lawyer’s truthful statement about his past results for clients might be considered
misleading if it could lead a reasonable person to believe that the lawyer can achieve the
same result for other clients without reference to the particular facts and circumstances of
each client’s case. However, a lawyer might be able to prevent this kind of statement from
being misleading by including an appropriate disclaimer or other qualifying language, such
as a statement that prior results are not a guarantee of a similar outcome and that every
case must be considered on its own merits. [Model Rules of Prof’l Conduct r. 7.1 cmt. 3 (Am.
Bar Ass’n 2020); see also, e.g., Mo. Supreme Court Rules r. 4-7.1(c).]
b. Comparisons of Fees or Services
An unsubstantiated claim about the lawyer’s fees or services might be misleading if it is
specific enough to lead a reasonable person to conclude that the claim can be
substantiated. The same is true for an unsubstantiated claim comparing the lawyer’s fees
or services to those of other lawyers. However, a lawyer might be able to prevent these
kinds of statements from being misleading by including an appropriate disclaimer or other
qualifying language. [Model Rules of Prof’l Conduct r. 7.1 cmt. 3 (Am. Bar Ass’n 2020).]
2. Communications Regarding a Lawyer’s Services
A lawyer may communicate information regarding his services through any media.
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a. Required Content
Every communication regarding a lawyer’s services must include the name and contact
information of at least one lawyer or law firm responsible for its content. [Model Rules of
Prof’l Conduct r. 7.2(d) (Am. Bar Ass’n 2020).]
b. Permitted Content
A lawyer is permitted to communicate information regarding her services through any
media. Generally, the ethical rule permits the lawyer to communicate basic information, like
her name, law firm name, address, email address, website, and telephone number. In
addition, the lawyer may communicate the legal services she provides, how fees are
determined, the prices for specific services, the lawyer’s foreign-language ability, names of
references, and names of regularly represented clients, so long as the clients consent to
the use of their names. Note that some states place more stringent limitations on the
content of these communications. [Model Rules of Prof’l Conduct r. 7.2(a) cmt. 1 (Am. Bar
Ass’n 2020).]
Solicitation: Direct Contact with Prospective Clients
Under the MRPC, a solicitation is a communication (1) initiated by or on behalf of a lawyer or law
firm and (2) directed to a specific person whom (3) the lawyer knows or reasonably should know
needs legal services in a particular matter and that (4) offers or can reasonably be understood to
offer to provide legal services for that matter. Communications directed to the general public,
e.g., a billboard or television commercial, are not solicitations. In addition, a lawyer’s response to
a request for information is not a solicitation, because the communication is not initiated by the
lawyer. [Model Rules of Prof’l Conduct r. 7.3(a) cmt. 1 (Am. Bar Ass’n 2020).]
1. No Live, Person-to-Person Solicitation
A lawyer must not solicit professional employment by live, person-to-person contact if a
significant motive for doing so is the lawyer’s or law firm’s pecuniary gain. This prohibition
includes in-person and face-to-face contact, as well as live telephone calls and other realtime visual or auditory communications in which the person solicited has direct personal
contact with the lawyer without time for reflection. This prohibition does not extend to chat
rooms, text messages, or other forms of written communication that could be easily
disregarded by the recipient. [Model Rules of Prof’l Conduct r. 7.3(b) cmts. 2-3 (Am. Bar Ass’n
2020).]
Example:
A lawyer read in the newspaper that a deceased firefighter’s family was facing eviction from
an apartment complex. The family did not have the money to hire a lawyer. The lawyer went to
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the family and offered to provide them with representation pro bono. The lawyer’s solicitation
did not violate the ethical rules, because there was no pecuniary motive on the part of the
lawyer. [Model Rules of Prof’l Conduct r. 7.3 (Am. Bar Ass’n 2020).]
Compare:
A lawyer spent many hours each day in a hospital emergency room, seeking potential clients
who may have been injured in accidents. If the lawyer initiated personal contact with a patient
in the emergency room, with the intent of securing the patient as a paying client, his actions
would be considered a wrongful solicitation. [Model Rules of Prof’l Conduct r. 7.3 (Am. Bar
Ass’n 2020).]
a. Reasoning
When a lawyer solicits his services in real time to an individual, there is the potential for
intimidation and overreaching by the lawyer. The potential client may feel overwhelmed
and intruded upon during a vulnerable moment. In that situation, the lawyer has the
superior legal knowledge to make preliminary conclusions regarding the individual’s
circumstances and effectively persuade the person that hiring the lawyer is necessary.
b. Exception
The rule prohibiting live, person-to-person solicitations does not apply if the person
solicited:
 is also a lawyer,
 is related to the lawyer,
 is a close personal friend of the lawyer,
 has a prior professional relationship with the lawyer or law firm, or
 (added in August 2018 amendments) routinely uses for business purposes the type of legal
services the lawyer offers.
[Model Rules of Prof’l Conduct r. 7.3(b) cmt. 5 (Am. Bar Ass’n 2020).]
2. Other Solicitation Methods
In general, a lawyer may use communications other than live, person-to-person
communications to solicit employment from a person known to need legal services in a
particular matter. These other types of communication do not present the same dangers of
overreaching as live person-to-person communication because the recipient is not subject to
immediate personal influence by the lawyer. [Model Rules of Prof’l Conduct r. 7.3(b) cmt. 3
(Am. Bar Ass’n 2020).]
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3. Desire Not to Be Solicited
Regardless of the method used, a lawyer may not solicit professional employment if the target
of the solicitation has made it known to the lawyer that he does not want to be solicited. Nor
may a lawyer solicit anyone if the solicitation involves coercion, duress, or harassment. [Model
Rules of Prof’l Conduct r. 7.3(c) (Am. Bar Ass’n 2020).]
4. Group Legal Services
Despite the general prohibition against solicitation, under some circumstances a lawyer may
participate in and pay fees to a legal-service plan or a lawyer-referral service.
5. Legal-Service Plans Defined
A legal-service plan is a prepaid or group plan, or a similar delivery system, that assists people
in finding or obtaining legal representation. These plans are often analogous to medicalinsurance plans in providing legal representation to their members or subscribers. [Model
Rules of Prof’l Conduct r. 7.2 cmt. 6, r. 7.3 cmt. 7 (Am. Bar Ass’n 2020).]
a. Participation Allowed
Despite the general rule against live, person-to-person solicitation of clients, a lawyer may
participate in a prepaid or group legal-service plan that uses real-time contact to solicit
memberships or subscriptions. However, the lawyer may only do so if the lawyer does not
own or direct the plan. In addition, the lawyer may not personally solicit anyone in
connection with the plan. A lawyer may also contact representatives of an existing or
potential prepaid or group legal-service plan to inform them of the lawyer’s availability to
participate in the plan. [Model Rules of Prof’l Conduct r. 7.3(e) cmts. 7, 9 (Am. Bar Ass’n
2020).]
b. Payment of Fees by Lawyer
In addition to participating in a legal-service plan, a lawyer may pay the usual charges for
participating in the plan. [Model Rules of Prof’l Conduct r. 7.2(b)(2) cmt. 6 (Am. Bar Ass’n
2020).]
6. Qualified Lawyer-Referral Services Defined
A lawyer-referral service is a service that holds itself out as providing referrals to lawyers for
persons who need legal services. Qualified lawyer-referral services are those that are
consumer-oriented, provide unbiased referrals of appropriately skilled lawyers, maintain client
protections such as malpractice-insurance requirements and complaint procedures, and are
approved by an appropriate regulatory authority. [Model Rules of Prof’l Conduct r. 7.2 cmt. 6
(Am. Bar Ass’n 2020).]
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a. Payment of Fees by Lawyer
A lawyer may pay the usual charges for participating in a not-for-profit or qualified lawyerreferral service. Conversely, a lawyer may not pay these types of fees if the lawyer-referral
service is for-profit or if it is not qualified. [Model Rules of Prof’l Conduct r. 7.2(b)(2) cmt. 6
(Am. Bar Ass’n 2020).]
Referrals
As a general rule, a lawyer may not pay or give anything of value to a person for recommending
the lawyer’s services. A recommendation is any communication that endorses a lawyer’s abilities,
credentials, or other professional characteristics.
1. Exceptions
Despite the general rule against payment for referrals, a lawyer may:
 pay the reasonable costs of advertising and other permissible communications;
 pay the normal charges of a legal-services plan, a nonprofit lawyer-referral service, or a lawyerreferral service that has been approved by an appropriate regulatory body;
 purchase and pay for a law practice in the manner provided by the rules of professional conduct;
and
 (added in August 2018 amendments) give a nominal gift to express appreciation for a referral, if
the gift is neither intended nor reasonably expected to serve as compensation for
recommending the lawyer’s services.
[Model Rules of Prof’l Conduct r. 1.17, 7.2(b)(1)-(5) cmts. 5-6 (Am. Bar Ass’n 2020).]
2. Reciprocal-Referral Agreements
A reciprocal-referral agreement is an arrangement in which a lawyer and another person refer
clients to one another. A lawyer may enter into a reciprocal-referral agreement with another
lawyer or with a nonlawyer professional, as long as (1) the reciprocal-referral agreement is
nonexclusive (i.e., the parties must not be required to refer clients solely to one another), and
(2) the client is informed of the existence and nature of the agreement. [Model Rules of Prof’l
Conduct r. 7.2(b)(4) (Am. Bar Ass’n 2020).]
Communications Regarding Fields of Practice and Specialization
Consistent with the ethical rules requiring that a lawyer provide truthful information to the public
regarding the legal services the lawyer provides, the ethical rules also regulate the content of the
communications by the lawyer describing his areas of practice.
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1. Permitted Designations
A lawyer may communicate to the public that she does or does not accept certain types of
cases, that she is a “specialist,” or that she “specializes” in a particular area of law. However,
these statements must not be false or misleading. In particular, a lawyer making statements
like these must keep in mind the prohibition against misleading statements that would lead a
reasonable person to draw a false or unverifiable conclusion about the lawyer or her services.
Note: Although the MRPC permit a lawyer to claim that she is a “specialist” in a particular area,
the MRPC impose additional restrictions on a lawyer’s claim to be certified as a specialist.
[Model Rules of Prof’l Conduct r. 7.1, 7.2(c) cmt. 9 (Am. Bar Ass’n 2020).]
2. Restricted Designations
A lawyer may not state or imply that he is certified as a specialist in a particular area of law
unless (1) he has been certified by an organization approved by an appropriate state authority
or accredited by the ABA, and (2) he clearly includes the name of the certifying organization in
the communication. Thus, the requirements for claiming specialized certification are more
stringent than the requirements for merely claiming to be a specialist. [Model Rules of Prof’l
Conduct r. 7.2(c) cmts. 9, 11 (Am. Bar Ass’n 2020).]
Example:
A lawyer’s television advertisement stated that he was a “specialist” in criminal law, that he
was one of the top criminal-defense lawyers in the country, and that he was board-certified
by the state’s Board of Legal Specialization in Criminal Law, which was approved by the state
bar association to confer certifications. All of the statements in the communication were
truthful and did not violate the ethical rules regarding specializations and certifications.
[Model Rules of Prof’l Conduct r. 7.2(c) cmt. 11 (Am. Bar Ass’n 2020).]
3. Patent and Admiralty Designations
A lawyer who is admitted to practice before the United States Patent and Trademark Office
may refer to herself as a “Patent Attorney” or other substantially similar designation. Similarly,
a lawyer who practices admiralty law may refer to herself as a “Proctor in Admiralty” or use
“Admiralty” or other substantially similar designation. These rules recognize the long historical
tradition of special designations for lawyers practicing in these fields. [Model Rules of Prof’l
Conduct r. 7.2 cmt. 10 (Am. Bar Ass’n 2020).]
XI. Lawyers’ Duties to the Public and Legal System
Lawyers have duties not only to their clients, but also to the public and the legal system. These
duties stem from lawyers’ unique roles as officers of the court and public citizens who have special
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responsibilities to the community. [Model Rules of Prof’l Conduct Preamble & Scope (Am. Bar Ass’n
2020).]
Voluntary Pro Bono Service
Pro bono legal services are free or reduced-cost legal services, which may include services to
individuals of limited means and services to civic or charitable groups. The MRPC state that a
lawyer should aspire to provide at least 50 hours of pro bono legal services every year. However,
each state may set a higher or lower number of hours of pro bono service, depending upon local
needs and conditions. Under the MRPC, a lawyer is not subject to professional discipline for
failing to fulfill her responsibility to provide pro bono services. The MRPC rules on pro bono
service are recommended guidelines, not strict professional obligations. [Model Rules of Prof’l
Conduct r. 6.1 cmts. 1, 12 (Am. Bar Ass’n 2020).]
1. Recipients of Lawyer’s Services
A lawyer should provide the substantial majority of her annual pro bono services by serving,
without a fee or expectation of a fee, either individuals of limited means or organizations that
serve the needs of those individuals. The individuals served may be (1) those who formally
qualify for low-income legal-assistance programs or (2) those who do not qualify for free
services based on income but who nonetheless cannot afford legal counsel. The lawyer
should provide any additional pro bono services to:
 religious, civic, or charitable groups, especially those that cannot afford standard legal fees;
 individuals of limited means based on a reduced fee; or
 activities or organizations dedicated to improving the law, the legal system, or the legal
profession.
[Model Rules of Prof’l Conduct r. 6.1(a)-(b) cmt. 3, 6-8 (Am. Bar Ass’n 2020).]
a. Monetary Donations in Lieu of Time
If a lawyer is unable to contribute pro bono services for a period of time, the lawyer may
satisfy his pro bono responsibilities by making monetary donations to organizations that
provide legal services to individuals of limited means. The amount of the donations should
be reasonably equivalent to the dollar value of the hours of service that the lawyer would
otherwise provide. [Model Rules of Prof’l Conduct r. 6.1 cmt. 9 (Am. Bar Ass’n 2020).]
2. Receipt of Statutory Attorney’s Fees
If a lawyer is awarded statutory attorney’s fees in connection with pro bono litigation, the
lawyer’s work nonetheless qualifies as pro bono work. However, lawyers who receive these
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fees are encouraged to donate a suitable portion to organizations that assist individuals of
limited means. [Model Rules of Prof’l Conduct r. 6.1(a) cmt. 4 (Am. Bar Ass’n 2020).]
3. Lawyer’s Financial Contributions
In addition to providing annual pro bono services, a lawyer should make voluntary financial
contributions to organizations that provide legal services to individuals of limited means. This
ethical guidance recognizes that lawyers’ individual pro bono service hours might not be
sufficient to meet the needs of individuals with limited means and therefore encourages
additional support to governmental and private programs established to provide legal services
to those individuals. [Model Rules of Prof’l Conduct r. 6.1 cmt. 10 (Am. Bar Ass’n 2020).]
Accepting Appointments
A lawyer might be appointed by a court to represent someone, often in a criminal case, for a fee
set by the court. Typically, the person being represented is indigent or has limited financial
means. Lawyers have a responsibility to take on pro bono cases, which may include representing
indigent or unpopular clients. Thus, a lawyer may not avoid a court’s appointment unless the
lawyer can show good cause why she should not be appointed. Good cause might exist if the
representation:
 would likely require the lawyer to violate the rules of professional conduct,
 would likely place an unreasonable financial burden on the lawyer, or
 involves a client or a client’s goals that are so repugnant to the lawyer that the lawyer’s relationship
with or ability to represent the client would likely be impaired.
[Model Rules of Prof’l Conduct r. 6.2 cmts. 1-2 (Am. Bar Ass’n 2020).]
Example:
A criminal-defense lawyer with a solo practice was ordered by a court to represent a man in a
gang-related Racketeer Influenced and Corrupt Organizations Act (RICO) prosecution. The case
was complex and would be very costly to defend. The lawyer argued to the court that taking the
case would be unfair to the client, because the lawyer had no experience handling RICO matters.
In addition, the lawyer said that the case would be unfair to his existing criminal-defendant
clients because it would take up so much of his time, could bankrupt him, and would likely
threaten the viability of his law practice. If the lawyer can successfully demonstrate the hardship
he would face if he represented the individual, the court should allow the lawyer to decline the
representation. [Model Rules of Prof’l Conduct r. 6.2 cmts. 1-2 (Am. Bar Ass’n 2020).]
Serving in Legal-Services Organizations
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A legal-services organization is an organization that provides free or low-cost legal services to
individuals who could not otherwise afford legal representation. Legal-services organizations are
commonly or generically referred to as legal aid. These organizations are typically nonprofits
established for civic or charitable purposes. A legal-services organization may choose to provide
general services to a particular population, such as the homeless, or to provide services in
connection with particular causes, such as voting rights or child welfare. [See Kim Schroer &
Alexa Shabecoff, Harvard Law School, Legal Services Guide: A Guide to Pursuing Work in Legal
Services/Legal Aid (2013), https://hls.harvard.edu/content/uploads/2008/06/2013-legal-servicesguide.pdf.]
1. Compatibility with Private Practice
A lawyer may simultaneously engage in private practice at a law firm and serve as a director,
officer, or member of a legal-services organization. This is permissible even if the legalservices organization serves individuals whose interests are adverse to the lawyer’s clients.
However, the lawyer must not knowingly participate in a decision or action of the organization
if the decision or action (1) would violate the lawyer’s obligations regarding conflicts of
interest or (2) might adversely affect the organization’s representation of a client whose
interests are adverse to one of the lawyer’s clients. [Model Rules of Prof’l Conduct r. 6.3 (Am.
Bar Ass’n 2020).]
2. Client-Lawyer Relationship Not Formed
A lawyer who is a director, officer, or member of a legal-services organization does not for
that reason alone have a client-lawyer relationship with the individuals whom the organization
serves. A contrary rule would deter lawyers from serving in legal-services organizations.
However, a lawyer must be alert to potential conflicts of interest that may arise, and the
organization will benefit from written policies to ensure that the organization’s services are
not affected by any conflicting interests of its members. [Model Rules of Prof’l Conduct r. 6.3,
with comments (Am. Bar Ass’n 2020).]
3. Limited-Legal-Services Programs
Some legal-services organizations have established short-term, limited-legal-services
programs through which lawyers answer specific legal questions from individuals, raised
typically via telephone or walk-in clinic. Often, these types of programs are utilized in the
aftermath of devastating natural disasters, such as hurricanes and earthquakes, or as part of
clinics designed to help individuals represent themselves. The session is usually brief. The
lawyer must obtain the client’s informed consent to the short-term representation. However,
there is no expectation that the lawyer’s representation of the client will continue beyond the
limited consultation. Nevertheless, a client-lawyer relationship is formed, and the rules
pertaining to client confidentiality apply.
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a. Conflicts of Interest
Due to the lack of time and limited lawyer-client interaction in these programs, the ethical
rules requiring the lawyer to screen for conflicts of interest are relaxed.
Lawyer’s Own Conflicts
A lawyer in a limited-legal-services program is not subject to the general conflict-ofinterest rules for current clients or the rule prohibiting adverse representation against
former clients, unless the lawyer knows of the conflict. Further, the lawyer is not
disqualified merely because another member of the lawyer’s firm is disqualified, unless
the lawyer knows of the other lawyer’s disqualification. In other words, the lawyer will
be disqualified only if the lawyer actually knows about the conflict at the time of the
short-term representation. [Model Rules of Prof’l Conduct r. 6.5(b) cmt. 4 (Am. Bar
Ass’n 2020).]
Conflicts Imputed to the Lawyer’s Firm
A lawyer’s participation in a limited-legal-services program will not trigger the conflictof-interest rules regarding other lawyers within a law firm, because the representation
is not considered substantial enough to raise a significant risk of conflict with the firm’s
other clients. Thus, the firm will not be disqualified from representing a client who is
adverse to the lawyer’s short-term client, nor will the lawyer’s participation be imputed
to the other lawyers in the firm for conflicts purposes. The only exception to this rule is
if the participating lawyer knows that another lawyer within the firm would be
disqualified from representing the short-term client. In that case, the lawyer may not
undertake the short-term representation. [Model Rules of Prof’l Conduct r. 6.5(b) cmt. 4
(Am. Bar Ass’n 2020).]
Conflicts if Representation Continues
If the lawyer and the client agree to continue the legal representation beyond the
quick-advice session, the conflicts rules come back into full force, and the lawyer must
systematically screen for conflicts of interest as would be generally required for any
other representation by the ethical rules. [Model Rules of Prof’l Conduct r. 6.5(b) cmt. 4
(Am. Bar Ass’n 2020).]
Law-Reform Activities Affecting Client Interests
A lawyer might be asked to lend her expertise to an organization or committee reviewing or
making changes to statutes or regulations in some area of law. A lawyer serving in this capacity
does not have a client-lawyer relationship with the organization, but simply provides advice and
opinions regarding proposed changes. In addition, a lawyer may serve in this capacity even if the
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reform being sought would negatively affect the interests of one of the lawyer’s clients. However,
if the lawyer knows that a client’s interests may be materially benefitted by a decision in which
the lawyer participates, the lawyer must disclose the fact but does not need to identify the client.
[Model Rules of Prof’l Conduct r. 6.4 (Am. Bar Ass’n 2020).]
Criticism of Judges and Adjudicating Officials
A lawyer generally is free to express an honest opinion on the professional or personal fitness of
judges, candidates for judicial office, and other adjudicative officials. However, a lawyer may not
make a statement regarding the qualifications or integrity of a judge, adjudicatory officer, public
legal officer, or a candidate for election or appointment to judicial or legal office if (1) the lawyer
knows the statement to be false or (2) the lawyer acts with reckless disregard of whether the
statement is true or false. A lawyer acts with reckless disregard of truth or falsity if (1) the lawyer
is aware that the statement is probably false, or (2) the lawyer has serious doubts as to whether
the statement is true. [Model Rules of Prof’l Conduct r. 8.2 cmt. 1 (Am. Bar Ass’n 2020).]
Example:
A lawyer announced that he was a candidate for a local judicial office. The lawyer was known
within the legal community to have engaged in questionable legal tactics and even fraud, both
inside and outside of the courtroom. A rival lawyer was interviewed on television by a local news
station about his thoughts concerning the candidate. The rival lawyer stated that he believed the
candidate lacked the integrity required to serve as a judge. The rival lawyer did not know the
statement to be false, nor did he have doubts as to the truth of the statement. Thus, the rival
lawyer’s comments are permissible under the ethical rules. [Model Rules of Prof’l Conduct r. 8.2
cmt. 1 (Am. Bar Ass’n 2020).]
Political Contributions to Obtain Engagements or Appointments
A lawyer may participate in the political process by financially supporting candidates for public
office and asking others to do so. However, a lawyer or a law firm may not accept a government
legal engagement or an appointment by a judge if the lawyer or the firm has made or solicited
political contributions for the purpose of obtaining or being considered for that type of
engagement or appointment. The exchange of contributions for appointments, or the appearance
of such an exchange, undermines the integrity of the legal profession and may lead the public to
question whether the lawyer was truly qualified to hold the position. [Model Rules of Prof’l
Conduct r. 7.6 cmt. 1 (Am. Bar Ass’n 2020).]
1. Political Contributions
A political contribution is any gift, loan, or other thing of value granted to a political candidate,
a political party, or a campaign committee to influence or support a candidate’s election to
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government office. The term does not include uncompensated services. Thus, a lawyer may
serve as a campaign volunteer or render other unpaid political services without violating this
rule. [Model Rules of Prof’l Conduct r. 7.6 cmt. 2 (Am. Bar Ass’n 2020).]
2. Government Legal Engagement and Appointment
The term government legal engagement means any position that provides legal services that a
public official has direct or indirect power to award. The term appointment by a judge means
an appointment to a position such as a special master, receiver, or guardian when made by a
judge. [Model Rules of Prof’l Conduct r. 7.6 cmt. 3 (Am. Bar Ass’n 2020).]
a. Exceptions
For purposes of this ethical rule, a government legal engagement or appointment by a
judge does not include engagements or appointments made:
 to perform substantially uncompensated activities or services;
 after a merit-based process, independent of political contributions and based on expertise,
experience and cost; or
 in rotation from a list compiled without reference to political contributions.
These types of engagements or appointments do not carry the same risks of impropriety or
the appearance of impropriety as those made on some other basis. [Model Rules of Prof’l
Conduct r. 7.6 cmt. 3 (Am. Bar Ass’n 2020).]
Improper Influence on Government Officials
A lawyer commits misconduct if he suggests or implies that he can influence a government agency
or official through means that violate the law or a rule of professional conduct. [Model Rules of
Prof’l Conduct r. 8.4(e) (Am. Bar Ass’n 2020).]
Example:
An assistant district attorney left government service and opened a criminal-defense practice.
Shortly thereafter, she mailed letters to potential clients informing them of her newly opened
practice. The letter stated, “I know everything that goes on in the D.A.’s office, and I can leverage
my contacts there to help clients get a favorable result.” The lawyer’s letter implies that she can
obtain results by effectively blackmailing her contacts at the district attorney’s office. Not only is
this possibly illegal, but it also violates the rules of professional conduct to use information
relating to the representation of a former client against that client. Thus, the lawyer has
committed professional misconduct by claiming an ability to influence a government agency
through illegal or unethical means. [Model Rules of Prof’l Conduct r. 8.4(e) (Am. Bar Ass’n 2020).]
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Assisting Judicial Misconduct
A lawyer commits misconduct if he knowingly assists a judge in violating a law or ethical rule of
judicial conduct. This rule applies equally to any type of judicial officer. Moreover, a lawyer who
knows that a judge committed a violation of a law or ethical rule that raises a substantial question
as to the judge’s fitness for office has a duty to report the activity to the appropriate authority.
[Model Rules of Prof’l Conduct r. 8.3(b), 8.4(f) (Am. Bar Ass’n 2020); see Mandatory and
Permissive Reporting of Professional Misconduct, supra.]
XII. Judicial Conduct
An independent, reasonable, and impartial judiciary is vital to the administration of justice. Therefore,
judges and other judicial officials have an obligation to follow ethical rules just as lawyers must do.
However, instead of following the MRPC, judicial ethics are governed by judicial codes of conduct
largely based on the ABA Model Code of Judicial Conduct (MCJC). The MCJC applies to anyone,
whether the person is a lawyer or not, who is an officer of a judicial system and who performs judicial
functions, including full-time judges, justices of the peace, magistrates, court commissioners, special
masters, referees, and administrative-law judges. [Model Code of Judicial Conduct Application I(B)
(Am. Bar Ass’n 2020.]
State and Federal Judicial Systems
Each of the states and the federal government has its own court system with rules governing the
operation of the courts, as well as the appointment, conduct, and removal of judges. The state
and federal judicial systems are independently organized and administered.
1. Federal Judiciary
The federal judiciary consists mainly of the Supreme Court, the courts of appeals, and the
trial-level district courts. The president appoints federal judges to serve for life and can be
removed from office only by impeachment. The federal judiciary has its own set of ethical
rules, known as the Code of Conduct for United States Judges. These rules are modeled after
the MCJC and are binding on all federal judges. Note, however, that the justices of the
Supreme Court take the position that abiding by the ethical rules is voluntary, not mandatory,
for themselves.
2. State Judiciaries
Generally, the constitution of each state sets forth the structure and powers of the courts
within the state. As in the federal system, a supreme court is typically, although not always,
the highest court in the state. State-court judges are often elected to office. However, some
jurisdictions allow for appointment of judges by either the governor or the state legislature.
Each state has its own code of ethical conduct that judges must follow. Most are modeled, at
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least in part, on the MCJC. Procedures for the removal of judges are set forth in the state
constitution or statutes.
Overview of the Model Code of Judicial Conduct
The MCJC is divided into several sections, including (1) Preamble, Scope, and Terminology; (2)
Application; and (3) four canons that include specific, numbered ethical rules under each canon.
[Model Code of Judicial Conduct Scope [1] (Am. Bar Ass’n 2020).]
1. Preamble
The Preamble sets forth the ethical expectations for judges and judicial candidates. More
specifically, the preamble notes that the MCJC establishes a set of ethical standards to which
judges and judicial candidates must adhere. The rules are not an exhaustive list. Rather, they
serve as guidance for judges to utilize in seeking to attain the highest ethical standards in
carrying out judicial functions. Most importantly, a judge must respect and honor the judicial
office and work to instill confidence by the public in the judicial system. [Model Code of
Judicial Conduct Preamble [1] (Am. Bar Ass’n 2020).]
2. Scope and Terminology
The Scope and Terminology sections provide guidance in interpreting and applying the MCJC.
This guidance includes definitions of terms used within the MCJC. [Model Code of Judicial
Conduct Scope [1] (Am. Bar Ass’n 2020).]
3. Application
The Application section explains situations in which the various rules apply to a judge or a
judicial candidate. Like the MRPC, the MCJC contains both mandatory and permissive rules.
Mandatory rules use language requiring a judge or judicial candidate to adhere to specific
conduct and use terms such as shall or must. A violation of a mandatory rule may result in
disciplinary action. Permissive rules are more suggestive in nature and use terms such as may
and should. A violation of a permissive rule will not result in discipline. [Model Code of Judicial
Conduct Application, Scope [1]-[2] (Am. Bar Ass’n 2020).]
4. Canons
Each of the four canons states broad ethical principles of judicial ethics that all judges must
observe. Included within each canon are more specific, numbered ethical rules that guide a
judge or judicial candidate’s behavior. Only violations of the rules will subject a judge to
discipline. In other words, violations of a canon are not themselves grounds for discipline.
However, the canons provide guidance for interpreting and applying the rules. The broad
ethical concepts are described below. The specific ethical rules listed under each canon will
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be discussed in detail later in this section. [Model Code of Judicial Conduct Scope [2] (Am.
Bar Ass’n 2020).]
a. Canon 1
Canon 1 states, “A judge shall uphold and promote the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.” [Model Code of Judicial Conduct Canon 1 (Am. Bar Ass’n 2020).]
b. Canon 2
Canon 2 states, “A judge shall perform the duties of judicial office impartially, competently,
and diligently.” [Model Code of Judicial Conduct Canon 2 (Am. Bar Ass’n 2020).]
c. Canon 3
Canon 3 provides, “A judge shall conduct the judge’s personal and extrajudicial activities to
minimize the risk of conflict with the obligations of judicial office.” [Model Code of Judicial
Conduct Canon 3 (Am. Bar Ass’n 2020).]
d. Canon 4
Finally, Canon 4 states, “A judge or candidate for judicial office shall not engage in political
or campaign activity that is inconsistent with the independence, integrity, or impartiality of
the judiciary.” [Model Code of Judicial Conduct Canon 4 (Am. Bar Ass’n 2020).]
Maintaining the Independence and Impartiality of the Judiciary
A judge must uphold and comply with the law and promote the independence, integrity, and
impartiality of the judiciary, while avoiding impropriety or the appearance of impropriety. [Model
Code of Judicial Conduct Canon 1 (Am. Bar Ass’n 2020).]
1. Compliance with the Law
A judge must always comply with the law and the MCJC. The term law in this context includes
court rules, statutes, constitutional provisions, and case law. Additionally, a judge or judicial
candidate in a public election must adhere to all applicable laws and regulations governing
campaigns, fundraising, and elections. [Model Code of Judicial Conduct r. 1.1, 4.2(A)(2) (Am.
Bar Ass’n 2020).]
2. Promoting Public Confidence in the Judiciary
The MCJC contains several mandatory and permissive rules designed to promote public
confidence in the independence, integrity, and impartiality of the judiciary. These rules apply
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to a judge’s professional conduct and to her personal conduct. The restraints on a judge’s
personal conduct are required because a judge should expect to be subject to greater public
scrutiny than other citizens. The judge must accept both the fact of this scrutiny and the need
to respond with behavior that upholds confidence in the judiciary. [Model Code of Judicial
Conduct r. 1.2, with comments (Am. Bar Ass’n 2020).]
3. Independence, Integrity, and Impartiality
The public’s perception of and confidence in the judiciary are weakened when judges and
other judicial officials engage in illegal or improper conduct, such as criminal acts, bribes, and
violations of ethical rules. To overcome this concern, a judge must always act in a way that
promotes public confidence in the judiciary’s independence, integrity, and impartiality. [Model
Code of Judicial Conduct r. 1.2, with comments (Am. Bar Ass’n 2020).]
a. Definition of Independence
Independence means that a judge must be free to conduct matters as she sees fit and not
be influenced or controlled by factors other than those imposed by the law. Thus, to be
independent, a judge must not be influenced or controlled by other persons; by any
organizations; or by the judge’s own personal, political, or other inclinations. [Model Code
of Judicial Conduct Terminology (Am. Bar Ass’n 2020).]
b. Definition of Integrity
Integrity means probity, fairness, honesty, uprightness, and soundness of character. Thus,
a judge may show integrity by being consistently of good personal character and by being
fair and honest in all his dealings. [Model Code of Judicial Conduct Terminology (Am. Bar
Ass’n 2020).]
c. Definition of Impartiality
Impartiality means an absence of bias or prejudice for or against specific individuals or
parties. In other words, a judge acts impartially when she keeps an open mind with respect
to the issues that come before her. [Model Code of Judicial Conduct Terminology (Am. Bar
Ass’n 2020).]
d. Avoiding Impropriety and the Appearance of Impropriety
A judge is a public figure and a model of integrity in the community. Consequently, a judge
must avoid impropriety and the appearance of impropriety, either of which can undermine
the judicial system. This requirement applies to a judge’s professional conduct and to his
personal conduct. [Model Code of Judicial Conduct, r. 1.2, with comments (Am. Bar Ass’n
2020).]
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Definitions
The test for what constitutes impropriety or the appearance of impropriety is broad.
Generally, however, the question is whether the conduct would give a reasonable
person the perception that the judge violated an ethical rule or did something that calls
into question the judge’s honesty, impartiality, temperament, or fitness to serve as a
judge. [Model Code of Judicial Conduct Terminology (Am. Bar Ass’n 2020).]
e. Promotional Activities
As a way to promote public confidence in the judiciary, a judge should participate in
activities that promote legal professionalism, access to justice, and public understanding
of the legal system. In undertaking these activities, the judge must act in accordance with
the code of judicial conduct. [Model Code of Judicial Conduct r. 1.2 cmts. 4, 6 (Am. Bar
Ass’n 2020).]
4. Avoiding Abuse of the Prestige of Judicial Office
A judge must not abuse the prestige of his position to advance his own personal or economic
interests or the interests of others. Similarly, a judge must not permit anyone else to do so.
a. Seeking Personal Advantage
A judge may not attempt to use the prestige of her position to gain personal advantage or
deferential treatment, such as mentioning a judicial title to get out of traffic tickets or using
judicial letterhead for personal business correspondence. This prohibition extends to
people who have a special relationship with a judge, such as family members or employees.
[Model Code of Judicial Conduct r. 1.3 cmt. 1 (Am. Bar Ass’n 2020).]
b. References and Recommendations
A judge may provide a reference or a recommendation for someone based on the judge’s
personal knowledge by using official judicial letterhead. However, in doing so, the judge
must make clear that the reference is a personal one, and there must be no likelihood that
someone would reasonably perceive the use of the letterhead as an attempt by the judge
to exert official influence. [Model Code of Judicial Conduct r. 1.3 cmt. 2 (Am. Bar Ass’n
2020).]
c. Cooperation with Judicial-Selection Authorities
A judge may cooperate with or respond to judicial-selection authorities by providing
information about a person’s professional qualifications. Thus, a judge may participate in
the process of judicial selection without violating the prohibition against using judicial
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office for personal gain or the gain of another. [Model Code of Judicial Conduct r. 1.3 cmt.
3 (Am. Bar Ass’n 2020).]
d. For-Profit Publications
A judge may write for or contribute to a for-profit publication, whether or not the
publication is related to the law. However, a judge should not allow anyone associated with
the publication to exploit the judge’s office in a way that violates the code of judicial
conduct or the applicable law. In executing a contract regarding the publication, the judge
should retain control over any advertising associated with the judge’s writing so as to
avoid exploiting the judicial office. [Model Code of Judicial Conduct r. 1.3 cmt. 4 (Am. Bar
Ass’n 2020).]
Performing the Duties of Judicial Office Impartially, Competently, and
Diligently
A judge must perform all official duties impartially, competently, and diligently. [Model Code of
Judicial Conduct Canon 2 (Am. Bar Ass’n 2020).]
1. Giving Priority to the Duties of Judicial Office
A judge’s duties to his position take priority over all personal or extrajudicial activities. The
rationale behind this ethical rule is to minimize the risk that the judge’s personal activities will
create conflicts that would require the judge’s frequent disqualification from cases or
decisions. [Model Code of Judicial Conduct r. 2.1 cmt. 1 (Am. Bar Ass’n 2020).]
2. Impartiality and Fairness
At the core of a judge’s duties are the requirements to uphold and apply the law and to
perform all judicial duties fairly and impartially. To do so, a judge must be both objective and
open-minded and apply the law without regard to whether the judge approves or disapproves
of the law in question. The requirement of impartiality does not prevent a judge from making
reasonable accommodations to pro se litigants to enable them to present their cases fairly
and fully. In applying and interpreting the law, a judge may sometimes make good-faith errors.
These types of errors do not violate the ethical rules. [Model Code of Judicial Conduct r. 2.2
cmts. 2-4 (Am. Bar Ass’n 2020).]
3. Bias, Prejudice, and Harassment
A judge must act without bias or prejudice, including but not limited to prejudices based on
race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital
status, socioeconomic status, or political affiliation. Additionally, the judge must instruct those
under his direction, including court staff, court officials, and lawyers to do the same. However,
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a judge or others may make legitimate references to those factors if they are pertinent to an
issue in a legal proceeding. Finally, a judge and those under his supervision must not engage
in harassment, i.e., verbal or physical conduct that shows hostility toward a person on any of
the bases mentioned above. [Model Code of Judicial Conduct r. 2.3, with comments (Am. Bar
Ass’n 2020).]
Examples:
(1) A bailiff for a judge was attracted to a particular female lawyer who frequently appeared
before the judge. Whenever the lawyer had a case before the judge, the bailiff always
attempted to pull out her chair for her as she sat down, called her “sweetheart,” and
continually attempted to engage in unwanted flirtatious activity with the lawyer. Because the
bailiff serves under the direction of the judge, the judge could be subject to discipline if he
fails to rectify the bailiff’s behavior. [Model Code of Judicial Conduct r. 2.3, with comments
(Am. Bar Ass’n 2020).]
(2) A trial-court judge garnered extensive media attention when it was learned that he had
repeatedly sentenced convicted criminal defendants differently based largely on
socioeconomic and racial grounds. The judge’s official conduct was contrary to the ethical
rules and subject to remedial action. [Model Code of Judicial Conduct r. 2.3, with comments
(Am. Bar Ass’n 2020).]
4. External Influences on Judicial Conduct
Confidence in the judiciary is eroded if a judge is perceived by others to be influenced by
outside sources, such as family, media, particular organizations, or financial interests. Thus, a
judge must not be swayed by public clamor or fear of criticism. In addition, a judge must avoid
conveying or allowing others to convey that the judge is subject to influence by any person or
organization. [Model Code of Judicial Conduct r. 2.4 cmt. 1 (Am. Bar Ass’n 2020).]
5. Competence, Diligence, and Cooperation
A judge must perform all judicial and related duties with diligence and competence. Diligence
requires that the judge devote adequate time, resources, and staffing to executing official
duties; be punctual in hearing and deciding matters; and take reasonable measures to ensure
that parties are heard in a timely manner without unnecessary cost or delay. Competence
requires that the judge possess the requisite legal knowledge, skill, thoroughness, and
preparation to perform the duties of the office. Further, a judge must cooperate with other
judges and court staff in the administration of court business and supervise and monitor cases
in ways that mitigate unnecessary delays and costs. [Model Code of Judicial Conduct r. 2.5,
with comments (Am. Bar Ass’n 2020).]
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6. Ensuring the Right to Be Heard
A judge must ensure that everyone who has a legal interest in a proceeding has the right to be
heard, either personally or through their lawyers. Although a judge may encourage parties and
their lawyers to enter into settlements, a judge may not pressure or coerce anyone into doing
so. In deciding whether to insert herself into settlement negotiations between parties, a judge
must be careful not to create a perception of judicial bias. A judge also must consider whether
information obtained through the judge’s participation in settlement procedures might affect
the judge’s objectivity or appearance of objectivity in any subsequent proceedings. [Model
Code of Judicial Conduct r. 2.6, with comments (Am. Bar Ass’n 2020).]
Example:
Two parties in a contract dispute had failed to reach a settlement after eight months of
litigation. The presiding judge called both parties to a hearing at which he told the parties that
they must reach an agreement, or he would dismiss the case. The judge’s coercive instruction
violates the ethical rules by threatening to deprive the parties of the right to be heard. [Model
Code of Judicial Conduct r. 2.6, with comments (Am. Bar Ass’n 200).]
7. Responsibility to Hear and Decide
A judge has a duty to hear and decide the legal matters that are assigned to her, except when
the judge is disqualified pursuant to ethical rules or other applicable law. A judge must be
mindful of the burdens that disqualification places on the justice system and on her colleagues,
and the judge must not use disqualification as a way to avoid difficult, controversial, or
unpleasant matters. [Model Code of Judicial Conduct r. 2.7 cmt. 1 (Am. Bar Ass’n 2020).]
8. Order, Decorum, and Demeanor
A judge must require order and decorum in matters heard before the court. To effectuate this,
a judge must be, and should hold others accountable for being, patient, dignified, and
courteous to litigants, jurors, witnesses, lawyers, and court staff with whom the judge
interacts. [Model Code of Judicial Conduct r. 2.8 cmt. 1 (Am. Bar Ass’n 2020).]
9. Communications with Jurors
A judge may not commend or criticize the jurors for their verdict, other than in a court order or
a judicial opinion in a proceeding. If a judge were permitted to do so, future juries might be by
swayed by perceived expectations held by the judge. These expectations detract from a
juror’s ability to be impartial and render a fair decision. However, a judge may meet with jurors
who elect to stay after a trial to discuss matters, so long as the merits of the completed case
are not discussed. [Model Code of Judicial Conduct r. 2.8(c) cmts. 2-3 (Am. Bar Ass’n 2020).]
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10. Judicial Statements on Pending and Impending Cases
Although an individual’s right to freedom of expression is protected by the First Amendment,
some restrictions on judicial speech are necessary to ensure the independence, integrity, and
impartiality of the judiciary. [Model Code of Judicial Conduct r. 2.10 cmt. 1 (Am. Bar Ass’n
2020).]
a. Public and Nonpublic Statements
In general, a judge may not comment publicly or privately on a pending or potential matter
in a way that might reasonably be expected to affect the outcome or interfere with the
fairness of any proceeding. Nor may a judge make any pledges or commitments that are
inconsistent with the impartial performance of the judge’s duties. For example, a judge
should not make a statement that commits the judge to never impose a law enacted by the
jurisdiction or to rule on behalf of one party despite the evidence that may be presented.
The judge must require the same behavior from court staff and other court officials. [Model
Code of Judicial Conduct r. 2.10, with comments (Am. Bar Ass’n 2020).]
b. Court Procedures and Judge as a Litigant
Despite the prohibition against making public and nonpublic statements, a judge may:
 make public statements in the course of her official duties,
 explain court policies and procedures, and
 comment on any case in which the judge is a litigant in her personal capacity.
[Model Code of Judicial Conduct r. 2.10, with comments (Am. Bar Ass’n 2020).]
Example:
A judge’s vehicle struck the rear of another car and injured the other car’s occupants.
When the police arrived on the scene, the judge underwent a sobriety test to determine
whether he had been drinking alcohol. The injured individuals subsequently filed suit
against the judge for negligence. Later, a local television news program aired a story about
the judge’s accident in which the judge stated, on camera, that he had not been drinking
but rather became distracted when his cell phone began ringing. The judge’s comments to
the media were permissible, because they related to a case in which the judge was a
litigant in his personal capacity. [Model Code of Judicial Conduct r. 2.10, with comments
(Am. Bar Ass’n 2020).]
Compare:
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The plaintiffs in a medical-malpractice action against a physician and a hospital
unsuccessfully sought medical records and other documents from the hospital. Thereafter,
the plaintiffs filed a motion to compel under state law to require the hospital to produce the
documents. The judge denied the motion. Thereafter, the plaintiffs filed a petition for a writ
of mandamus against the trial judge, arguing that he abused his discretion by refusing to
order the hospital to produce the documents. When interviewed by a local newspaper, the
judge stated on the record that he believed he had made the appropriate legal decision.
The judge’s comments were not permissible, because he was a litigant in the action in his
official capacity rather than his personal capacity. [Model Code of Judicial Conduct r. 2.10,
with comments (Am. Bar Ass’n 2020).]
c. Allegations of Misconduct
If anyone makes an allegation about a judge’s conduct in a legal matter, in the media or
elsewhere, the judge may respond directly or via a third party to the allegations. To better
protect the integrity and independence of the judiciary, it may be preferable for the judge
to allow a third party to respond to these types of allegations. [Model Code of Judicial
Conduct r. 2.10(E) cmt. 3 (Am. Bar Ass’n 2020).]
11. Supervisory Duties
Not only is a judge responsible for her own ethical conduct, but also the judge must ensure
that others under her direction or supervision, such as court staff and officials, conduct
themselves in a way that is consistent with the judge’s own ethical obligations. If a judge
supervises other judges, she must take reasonable measures to ensure that those judges
fulfill their judicial responsibilities, including their duty to dispose of matters promptly. [Model
Code of Judicial Conduct r. 2.12, with comments (Am. Bar Ass’n 2020).]
Example:
A judge instructed the clerk of the court to delay setting a court date for a complicated toxictort matter that the judge simply did not wish to hear, because he did not want to preside over
the case. If the clerk carries out the judge’s request, the administration of justice will be
inhibited. Thus, the judge’s actions violate the ethical rules. [Model Code of Judicial Conduct r.
2.12, with comments (Am. Bar Ass’n 2020).]
12. Administrative Appointments
In making administrative appointments, a judge must not show favoritism in selecting people
for positions nor appoint family members within the third degree of relationship of the judge or
the judge’s spouse or domestic partner. In other words, a judge should act impartially and on
the basis of merit when making appointments. Further, the compensation offered for
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administrative appointments must not be more than the fair value for the services that are
being provided. [Model Code of Judicial Conduct r. 2.13, with comments (Am. Bar Ass’n 2020).]
a. Appointments and Campaign Contributions
A judge shall not appoint a lawyer to a position if the judge knows that the lawyer or the
lawyer’s spouse or domestic partner has contributed more than a specified amount to a
judge’s election campaign within a specified time. The MCJC leaves the exact amounts and
time periods to the discretion of each jurisdiction. However, this prohibition does not apply
if (1) the appointed position is on a volunteer basis (meaning uncompensated), (2) the
lawyer was chosen from a rotation roster of qualified lawyers compiled without regard to
political contributions, or (3) the judge or other presiding official affirmatively finds that no
other lawyer is competent, willing, and able to accept the position. [Model Code of Judicial
Conduct r. 2.13, with comments (Am. Bar Ass’n 2020).]
13. Disability and Impairment
A judge must take appropriate action if she reasonably believes that a fellow judge or lawyer is
impaired by drugs or alcohol or by a mental, emotional, or physical condition. Appropriate
action means any measure intended and reasonably likely to help the judge or lawyer deal
with the issue and prevent damage to the administration of justice. The measures a judge
must take depend upon the situation. Appropriate action might include speaking with the
impaired person, notifying the individual’s supervisor, making a confidential referral to a
judge-assistance program or lawyer-assistance program, or notifying an appropriate
disciplinary authority. [Model Code of Judicial Conduct r. 2.14, with comments (Am. Bar Ass’n
2020).]
14. Responding to Judicial and Lawyer Misconduct
A judge who knows that another judge or a lawyer has violated the ethical rules in a way that
raises substantial questions about that person’s honesty, trustworthiness, or professional
fitness must inform the appropriate disciplinary authority. A judge who receives information
indicating a substantial likelihood that another judge or a lawyer has violated an ethical rule
must take appropriate action. Depending on the circumstances, appropriate action might
consist of speaking directly with the judge or lawyer, speaking to a supervising judge, or
reporting a matter to the appropriate disciplinary authority. [Model Code of Judicial Conduct r.
2.15, with comments (Am. Bar Ass’n 2020).]
15. Cooperation with Disciplinary Authorities
A judge must cooperate with judicial and lawyer disciplinary authorities and provide truthful
and candid responses to questions and requests for information. The judge’s cooperation is
necessary to ensure confidence in the judge’s commitment to the integrity of the judicial
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system and the protection of the interests of the public. Moreover, a judge shall not retaliate,
whether directly or indirectly, against anyone whom the judge knows or suspects to have
been involved in an investigation of a judge or a lawyer. [Model Code of Judicial Conduct r.
2.16 cmt. 1 (Am. Bar Ass’n 2020).]
Ex Parte Communications
Ex parte communications are oral or written communications with a judge regarding a matter,
usually not on the public record, that occur without reasonable notice to all interested parties. Ex
parte communications are largely prohibited because in general, all communications between a
party and the judge must occur with notice to, or in the presence of, all interested parties. Ex
parte communications can also include communications by a judge with lawyers, law teachers,
and other persons who are not parties to or participants in a proceeding. [Model Code of Judicial
Conduct r. 2.9 cmt. 3 (Am. Bar Ass’n 2020); Model Rules of Prof’l Conduct r. 3.3 cmt. 14 (Am. Bar
Ass’n 2020).]
1. Providing Notice
If notice to a party is required to avoid an improper ex parte communication, notice must be
given to the party’s lawyer, or to the party if the party is unrepresented. Similarly, the
presence of a represented party’s lawyer is sufficient to satisfy the requirement that the party
be present during a communication with the judge. [Model Code of Judicial Conduct r. 2.9 cmt.
2 (Am. Bar Ass’n 2020).]
2. Non-Substantive Matters
An ex parte communication regarding scheduling, administrative matters, or emergency
situations, involving non-substantive matters, is permitted when circumstances require it, so
long as the judge does not reasonably believe that the communication will benefit one side
more than the other. When these types of communications occur, the judge must promptly
notify all other parties of the substance of the ex parte proceeding and allow those parties an
opportunity to respond. [Model Code of Judicial Conduct r. 2.9(A)(1) (Am. Bar Ass’n 2020).]
3. Advice of Disinterested Expert
A judge may obtain disinterested expert advice on the law that applies to a proceeding
without violating the prohibition against ex parte communications. To do so, the judge must
give the parties:
 advance notice of the person who will be consulted,
 advance notice of the subject on which the advice will be sought, and
 a reasonable opportunity to object and respond to both the notice and the advice received.
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However, these requirements do not apply to legal counsel or expert advice obtained by a
judge concerning the judge’s own ethical obligations in a matter. [Model Code of Judicial
Conduct r. 2.9(A)(2) cmt. 7 (Am. Bar Ass’n 2020).]
4. Consulting with Court Staff
A judge may consult with court staff, court officials, and other judges about a proceeding. In
doing so, however, the judge (1) must make reasonable efforts to avoid receiving factual
information that is not part of the record and (2) must not abrogate the judge’s responsibility
personally to decide the matter or issue before the court. Additionally, a judge must ensure
that no discussions occur with a judge who has been disqualified from hearing the matter or
with judges who have appellate authority over the matter. [Model Code of Judicial Conduct r.
2.9(A)(3) cmt. 5 (Am. Bar Ass’n 2020).]
Example:
A judge was presiding over a matter involving complex financial regulations and tax laws. The
judge sought advice from a fellow judge who had heard a similar, but unrelated, case earlier in
the year. The advice consisted of lessons learned by the other judge and what to look out for
when hearing testimony. The other judge had not been previously disqualified from the matter,
had no appellate authority over the case, and had no factual information about the pending
case that might be conveyed to the presiding judge. The communication between the judges
was therefore permissible. [Model Code of Judicial Conduct r. 2.9(A)(3) cmt. 5 (Am. Bar Ass’n
2020).]
5. Settlement Discussions
A judge may confer separately with parties and their lawyers in an effort to reach a settlement
in a matter, provided that all parties consent to the communications. [Model Code of Judicial
Conduct r. 2.9(A)(4) (Am. Bar Ass’n 2020).]
6. Communications Authorized by Law
A judge may initiate, permit, or consider any ex parte communication when explicitly
authorized to do so by law. For example, judges often assume a more interactive role with
parties if they serve on special therapeutic or problem courts, such as mental-health courts or
drug courts. In that capacity, the judge often takes a more hands-on approach in aiding the
party who is appearing before her by speaking with the defendant, social workers, health care
professionals, and others. [Model Code of Judicial Conduct r. 2.9(A)(5) cmt. 4 (Am. Bar Ass’n
2020).]
7. Inadvertent Ex Parte Communications
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If a judge inadvertently receives an unauthorized ex parte communication related to the
substance of a matter, she must (1) promptly notify all the interested parties of the
communication and its contents and (2) allow each party an opportunity to respond. [Model
Code of Judicial Conduct r. 2.9(B) (Am. Bar Ass’n 2020).]
8. Independent Investigation Prohibited
A judge may not independently investigate facts in a matter that is being heard by the judge.
This prohibition extends to investigation by electronic means, such as browsing on the
internet. Rather, the judge must only consider (1) the evidence presented by the parties and (2)
facts that are judicially noticed, i.e., facts that the judge may properly take to be established
without the presentation of evidence. [Model Code of Judicial Conduct r. 2.9(C) cmt. 6 (Am.
Bar Ass’n 2020).]
Example:
A judge was presiding over a murder trial. The judge thought that the defendant seemed
familiar, and she searched for the defendant’s name online to see what she could find out. The
judge’s independent research is not permissible under the ethical rules. [Model Code of
Judicial Conduct r. 2.9(C) cmt. 6 (Am. Bar Ass’n 2020).]
9. Compliance by Others
A judge must take reasonable measures to ensure that the prohibition against ex parte
communications is followed by court staff, officials, and others subject to the judge’s direction
and control. [Model Code of Judicial Conduct r. 2.9(D) (Am. Bar Ass’n 2020).]
Disqualification
If a judge’s impartiality might reasonably be questioned in any proceeding in which the judge is
involved, the judge must disqualify, or recuse, himself from the matter. This duty applies
regardless of whether a party files a motion to disqualify the judge. Moreover, a judge should
disclose on the record any information the judge believes the parties or their lawyers might
reasonably consider relevant to a motion for disqualification, even if disqualification is likely not
warranted. The MCJC lists several specific grounds for disqualification, but the grounds listed are
not exclusive. [Model Code of Judicial Conduct r. 2.11(A) cmts. 1-2, 5 (Am. Bar Ass’n 2020).]
1. Personal Bias and Knowledge
A judge must not act with bias or prejudice toward a party or a party’s lawyer. If the judge
possesses such bias, the judge must disqualify himself from hearing the matter. Additionally, a
judge who has personal knowledge of facts that are in dispute in a proceeding must disqualify
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himself from the matter. [Model Code of Judicial Conduct r. 2.2, 2.9(C), 2.11(A)(1) (Am. Bar
Ass’n 2020).]
2. Rule of Necessity
Even when a specific circumstance dictates that a judge be disqualified from presiding over a
matter, an emergency or other necessity may supersede the disqualification. For example, a
judge may be the only judge geographically available in a matter requiring immediate judicial
action, such as an emergency hearing on probable cause or a temporary restraining order. If
the matter requires immediate action, the judge must place the basis for possible
disqualification on the record and make reasonable efforts to transfer the matter as soon as
possible to another judge. [Model Code of Judicial Conduct r. 2.11 cmt 3 (Am. Bar Ass’n 2020).]
Example:
A small-town judge on a three-judge court was asked to approve a search warrant for a local
businessman’s office. The law-enforcement officer who presented the warrant represented
that it was an emergency matter because the businessman was suspected of being in the
process of destroying evidence related to a criminal investigation. The judge had a close
personal relationship with the businessmen that ordinarily would have required disqualification.
However, the other two judges were out of town and not available to approve the warrant.
The judge may approve the warrant, but the judge must create a record of the grounds for
disqualification and seek to transfer the matter to another judge as soon as possible. [Model
Code of Judicial Conduct r. 2.11 cmt 3 (Am. Bar Ass’n 2020).]
3. Family Members
A judge may not be able to act impartially if a family member is involved or has an interest in a
legal matter pending before the judge. Therefore, the judge must disqualify himself from
hearing the matter if he knows that his spouse, domestic partner, or other family member
within the third degree of relationship to either the judge or the judge’s spouse or domestic
partner is:
 a party;
 an officer, a general partner, or similar official of a party;
 a lawyer in the proceeding;
 someone who has an interest that could be substantially affected by the proceeding and that is
significant enough to raise a reasonable question about the judge’s impartiality; or
 likely to be a material witness in the proceeding.
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A de minimis interest is typically of an amount not significant enough to raise a reasonable
question regarding the judge’s impartiality. [Model Code of Judicial Conduct Terminology, r.
2.11(A)(2) (Am. Bar Ass’n 2020).]
a. Family Affiliation with Lawyer
The fact that a lawyer in a proceeding is affiliated with a firm with which a judge’s family
member is also affiliated does not by itself require disqualification. However, this kind of
relationship might require disqualification for other reasons, such as a resulting bias or
prejudice. [Model Code of Judicial Conduct Terminology, r. 2.11(A)(2) cmt. 4 (Am. Bar Ass’n
2020).]
4. Economic Interests
A judge who knows that she individually, or as a fiduciary, has an economic interest in the
subject matter of the proceeding must recuse herself from hearing the matter. The same duty
of disqualification applies if any of the judge’s close family members, or other family members
residing in the judge’s household, have a similar economic interest in the subject matter
involved in the case. [Model Code of Judicial Conduct r. 2.11(A)(3) (Am. Bar Ass’n 2020).]
5. Campaign Contributions
A judge must disqualify himself if he knows, or later learns from a timely motion, that a party, a
party’s lawyer, or the law firm of a party’s lawyer has contributed more than a specified
amount to a judge’s election campaign within a specified time. The MCJC leaves the exact
amounts and time periods to the discretion of each jurisdiction. [Model Code of Judicial
Conduct r. 2.11(A)(4) (Am. Bar Ass’n 2020).]
6. Public Statements
A judge must disqualify herself from a proceeding if she has made public statements, other
than in a court proceeding or judicial opinion, that either commit or appear to commit her to
reach a certain conclusion or rule a certain way in the matter. This rule applies to statements
made either as a judge or as a candidate for judicial office. [Model Code of Judicial Conduct r.
2.11(A)(5) (Am. Bar Ass’n 2020).]
Example:
While running for office, a judge repeatedly made public statements to supporters that once
elected, he would make decisions that would benefit law enforcement when presiding over
criminal trials. The judge’s statements were not only improper, because they appear to commit
him to a specific result in any matter that comes before him, but likely will disqualify him from
hearing any criminal case. [Model Code of Judicial Conduct r. 2.11(A)(5) (Am. Bar Ass’n 2020).]
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7. Judge’s Roles
Often, before becoming a judge, a lawyer has spent part of her legal career in private practice,
serving as counsel for an organization, or working for the government. Consequently, conflicts
of interest or a perception of bias could arise if the same matters on which the judge worked
as an attorney were to come before her in her new capacity as a judge. Accordingly, a judge
must disqualify herself from a proceeding if she has previously:
 served as a lawyer in the matter or been associated with a lawyer who substantially participated
in the matter during the association;
 as a government lawyer or public official, participated personally and substantially in the matter
or publicly expressed an opinion on the matter;
 been a material witness in the matter; or
 presided in the matter as a judge in another court (e.g., as a trial judge who is now an appellate
judge).
This rule prevents a judge’s previous involvement in a matter from affecting or appearing to
affect her current impartiality. [Model Code of Judicial Conduct r. 2.11(A)(6) (Am. Bar Ass’n
2020).]
8. Duty to Keep Informed
To ensure compliance with judicial-disqualification requirements, a judge must keep informed
about her personal and fiduciary economic interests and make a reasonable effort to keep
informed about the personal economic interests of her spouse, domestic partner, or others
residing in the household. [Model Code of Judicial Conduct Terminology, r. 2.11(B) (Am. Bar
Ass’n 2020).]
Example:
After a judge presided over a securities-fraud case involving a particular company, a
complaint was made to the state’s ethics board alleging that the judge should have recused
himself from the matter because his wife held a significant share in the company involved in
the suit. The judge claimed he had no idea that his wife was a shareholder. Nevertheless, the
judge is subject to discipline for failure to keep reasonably informed regarding his and his
spouse’s finances. [Model Code of Judicial Conduct Terminology, r. 2.11(B) (Am. Bar Ass’n
2020).]
9. Waiver of Disqualification
Although a judge may be subject to disqualification in a matter, the parties involved may waive
the disqualification if the judge is subject to disqualification for reasons other than bias or
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prejudice. A judge who would otherwise be disqualified may disclose on the record the basis
of the disqualification and ask the parties and their lawyers to consider waiving it. The parties
should be given an opportunity to make this decision without the participation of the judge or
court personnel. If the parties and their lawyers agree that the judge should not be
disqualified, the judge may participate in the proceeding. The agreement to waive the judge’s
disqualification must be placed on the record of the proceeding. [Model Code of Judicial
Conduct r. 2.11(C) (Am. Bar Ass’n 2020).]
Extrajudicial Activities
A judge is permitted to engage in outside, extrajudicial activities that are not part of a judge’s
official responsibilities, unless barred by law or an ethical rule. These activities may include civic,
charitable, educational, religious, governmental, and social matters. Additionally, a judge may
give speeches, write articles or books, and lecture on non-law and law-related topics. However, a
judge must minimize any risk of a conflict between these activities and the judge’s official
obligations. [Model Code of Judicial Conduct Canon 3 (Am. Bar Ass’n 2020).]
1. Limitations on Extrajudicial Activities
A judge may engage in extrajudicial activities as long as those activities do not:
 interfere with the performance of the judge’s duties;
 lead to the judge being disqualified frequently;
 undermine or reasonably appear to undermine the judge’s independence, integrity, or
impartiality;
 appear to a reasonable person to be coercive, e.g., to exert pressure on others by exploiting the
power or prestige of the judge’s office; or
 use court premises, staff, stationery, equipment, or other resources, unless that use is incidental
to law-related activities or is permitted by law.
Within these restrictions, judges are encouraged to participate in extrajudicial activities to
contribute to their communities and to foster public respect for the judicial system. [Model
Code of Judicial Conduct r. 3.1 cmts. 1-2 (Am. Bar Ass’n 2020).]
Example:
Every Thursday night, a judge got together with several friends to play poker. The group
played for money, but not significant sums. However, the judge was a terrible poker player
and lost an average of $50 each week. Consequently, the judge was in a foul mood each
Friday morning when he appeared for hearings. The judge tended to take out his frustrations
on the lawyers and the parties, and the judge likely did not act as decorously or objectively as
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he would have on a different day of the week. The judge’s poker game has interfered with the
performance of his official responsibilities, and the judge has acted improperly. [Model Code
of Judicial Conduct r. 3.1 cmts. 1-2 (Am. Bar Ass’n 2020).]
2. Appearances before and Consultation with Government Bodies and Officials
A judge may not appear voluntarily at a public hearing before a legislative or executive body
or official, or otherwise consult with a legislative or executive authority, unless (1) the matter
involves the law, the legal system, or the administration of justice; (2) the matter involves
knowledge or experience acquired by the judge in the course of his judicial duties; or (3) the
judge is acting pro se or in a fiduciary capacity. A judge who is appearing pro se before a
government body or official must not refer to his judicial position and must otherwise avoid
using his judicial office to further his personal interests. [Model Code of Judicial Conduct r.
3.2, with comments (Am. Bar Ass’n 2020).]
3. Testifying as a Character Witness
Generally, a judge may not vouch for someone or testify as a character witness for someone in
any proceeding unless he has been duly subpoenaed. Further, a judge should discourage
litigants from subpoenaing him to provide testimony, unless the circumstances or justice
demand it. [Model Code of Judicial Conduct r. 3.3 cmt. 1 (Am. Bar Ass’n 2020).]
4. Appointments to Nonlegal Government Positions
A conflict of interest could arise if a judge serves on a governmental board, commission, or in
some other capacity and later is faced with presiding over a legal matter involving the
organization for which the judge serves. Therefore, a judge may not accept an appointment to
a governmental committee, board, commission, or other governmental position unless the
position relates to the law, the legal system, or the administration of justice. Even in accepting
an otherwise-proper appointment, a judge should consider how the potential demands on her
time might affect her performance of judicial duties. However, a judge may represent her
country, state, or locality on ceremonial occasions or in historical, educational, or other
cultural activities. [Model Code of Judicial Conduct r. 3.4 cmts. 1-2 (Am. Bar Ass’n 2020).]
5. Use of Nonpublic Information
Frequently, a judge learns, through the course of official duties, information that is not
available to the public. For example, a judge may acquire information pertaining to a
company’s acquisition, trade secrets, and other confidential information, or even details
regarding personal domestic matters. A judge may not intentionally use or disclose nonpublic
information obtained in the course of his judicial duties for any nonjudicial purpose. However,
this rule does not apply if the judge needs to act on nonpublic information to protect the
health or safety of himself, his family, court personnel, or other judicial officers, subject to the
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other provisions of the MCJC. [Model Code of Judicial Conduct r. 3.5, with comments (Am.
Bar Ass’n 2020).]
a. Definition
Nonpublic information is any information that is not made available to the public. Nonpublic
information includes, but is not limited to, grand jury proceedings, sealed records, and
information reviewed in camera. [Model Code of Judicial Conduct Terminology (Am. Bar
Ass’n 2020).]
Example:
While preparing for sentencing in a murder trial, a judge reviewed a psychiatric evaluation
of the defendant. The report was sealed from the public by agreement of the prosecution
and the defense. The report included statements by the defendant that he intended to hire
someone to kidnap or kill the judge’s children if he were sentenced to a long prison term.
The judge immediately informed the police of the threat. Although the psychiatric report
contained nonpublic information, the judge’s communication was permissible under the
ethical rules because it was necessary to protect the safety of the judge’s family. [Model
Code of Judicial Conduct r. 3.5, with comments (Am. Bar Ass’n 2020).]
6. Affiliation with Discriminatory Organizations
A judge is not permitted to be a member, nor use the benefits or facilities, of any group or
organization that practices invidious discrimination. A judge’s ongoing approval of, or
participation with, discriminatory groups offers the public perception that the integrity or
impartiality of the judiciary may be compromised. However, if a judge attends an isolated
event at a facility of a discriminatory organization, it is not a violation of the ethical rule, so
long as the judge’s attendance could not be fairly construed as an approval of the group or its
discrimination. Moreover, this rule does not apply to a judge’s membership in a religious
organization while exercising the judge’s lawful freedom of religion. [Model Code of Judicial
Conduct r. 3.6, with comments (Am. Bar Ass’n 2020).]
a. Invidious Discrimination Defined
Generally, an organization is said to discriminate invidiously if it arbitrarily excludes from its
membership individuals based on sex, race, gender, religion, national origin, ethnicity, or
sexual orientation. [Model Code of Judicial Conduct r. 3.6, with comments (Am. Bar Ass’n
2020).]
7. Participation in Educational, Religious, Charitable, and Other Organizations
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A judge is allowed to participate in extrajudicial activities related to educational, religious,
charitable, and other civic, government, or not-for-profit organizations. However, the judge
must always consider whether the activity detracts from the judge’s official duties or impairs
the impartiality and independence of the judiciary. [Model Code of Judicial Conduct r. 3.7,
with comments (Am. Bar Ass’n 2020).]
a. Fundraising and Investment Management
A judge may assist an organization in planning fundraising efforts and participate in the
management and investment of the entity’s funds. Additionally, a judge may allow his
official title to be used on the organization’s letterhead for fundraising and membership
solicitation if others involved are comparably designated by title. [Model Code of Judicial
Conduct r. 3.7(A)(1) cmt. 4 (Am. Bar Ass’n 2020).]
b. Solicitation of Money from Family and Judges
A judge may solicit financial contributions for an organization but only from members of the
judge’s family or from other judges over whom the judge does not have supervisory
authority. [Model Code of Judicial Conduct r. 3.7(A)(2) (Am. Bar Ass’n 2020).]
c. Solicitation of Memberships
A judge may solicit memberships for an organization, even if the dues or fees generated
are used to further the organization’s objectives, but only if the organization is concerned
with the law, the legal system, or the administration of justice. [Model Code of Judicial
Conduct r. 3.7(A)(3) (Am. Bar Ass’n 2020).]
d. Speaking or Receiving an Award
A judge is permitted to appear, speak, be recognized, or receive an award at a banquet or
other function and allow his name and title to be used in connection with the event.
However, if the purpose of the function is for fundraising, the judge may participate only if
the event concerns the law, the legal system, or the administration of justice. [Model Code
of Judicial Conduct r. 3.7(A)(4) (Am. Bar Ass’n 2020).]
e. Making Recommendations
A judge may make recommendations to a public or private fund-granting organization only
if the entity is concerned with the law or legal system. [Model Code of Judicial Conduct r.
3.7(A)(5) (Am. Bar Ass’n 2020).]
f. Serving an Organization
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A judge can serve as an officer, director, trustee, or nonlegal advisor of an organization,
unless the entity is likely to be engaged in matters that could come before the judge,
another judge in the same court, or any court subject to the appellate jurisdiction of the
court over which the judge presides. [Model Code of Judicial Conduct r. 3.7(A)(6) (Am. Bar
Ass’n 2020).]
g. Pro Bono Service
A judge may encourage lawyers to provide pro bono legal services to low-income
individuals or not-for-profit entities. [Model Code of Judicial Conduct r. 3.7(B) cmt. 5 (Am.
Bar Ass’n 2020).]
8. Serving in a Fiduciary Capacity
A judge is not permitted to accept an appointment to serve in a fiduciary position, such as an
executor, administrator, trustee, or guardian, unless for a member of the judge’s family. If the
judge does serve in this capacity for a member of her family, she may do so only if it does not
interfere with her official duties. The judge must adhere to the same restrictions on engaging
in financial activities that apply to the judge in her personal capacity. Further, a judge may not
serve in a fiduciary position if it is likely that the legal matters of the organization or individual
could come before the judge. If a person is serving in a fiduciary capacity at the time she
enters her judicial position, she has up to one year to comply with the ethical rule but should
do so as soon as is reasonably practicable. [Model Code of Judicial Conduct r. 3.8 cmt. 1 (Am.
Bar Ass’n 2020).]
9. Service as Arbitrator or Mediator
An arbitrator is an independent person who is selected or appointed to resolve a dispute in a
nonjudicial proceeding. A mediator, on the other hand, works with two or more individuals or
entities involved in a dispute to assist them in reaching a mutually agreed-upon resolution. A
judge may not act as an arbitrator or a mediator or perform other judicial functions apart from
the judge’s official duties, unless expressly authorized by law. However, a judge may
participate in an arbitration, mediation, or settlement conference as part of the judge’s official
responsibilities. [Model Code of Judicial Conduct r. 3.9 cmt. 1 (Am. Bar Ass’n 2020).]
Example:
A man who attended services at a judge’s place of worship approached the judge and asked if
the judge would serve as mediator in a property-line dispute between the man and his
neighbor. The judge agreed to do so at no charge, because he felt it was a good and
charitable thing to do. The judge has committed misconduct by accepting the offer,
regardless of the pro bono nature of the role. [Model Code of Judicial Conduct r. 3.9 cmt. 1
(Am. Bar Ass’n 2020).]
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10. Practice of Law
A judge may not practice law. However, a judge may act pro se in matters involving personal
litigation or appearances before governmental bodies. In addition, a judge is permitted to give
legal advice or draft and review documents for his family members. Note, however, that a
judge may not appear in any forum as a lawyer for a family member. [Model Code of Judicial
Conduct r. 3.10 cmt. 1 (Am. Bar Ass’n 2020).]
11. Financial Activities
A judge is permitted to hold and manage his own investments and those of his family, so long
as this does not:
 interfere with the performance of a judge’s duties,
 lead to frequent disqualification,
 involve transactions or individuals that may frequently come before the court, or
 otherwise violate an ethical rule.
[Model Code of Judicial Conduct r. 3.11(A), (C) (Am. Bar Ass’n 2020).]
12. Business Entities
In general, a judge may not serve as an officer, director, manager, general partner, advisor, or
employee of any business entity. However, a judge may do so if the business is closely held
by the judge or a member of the judge’s family or if the business is primarily engaged in
investing the assets of the judge or the judge’s family. Nevertheless, this activity must not
interfere with the judge’s performance of judicial duties, frequently require the judge to
disqualify herself, or otherwise violate the code of judicial conduct. [Model Code of Judicial
Conduct r. 3.11(B)-(C) (Am. Bar Ass’n 2020).]
13. Compensation for Extrajudicial Activities
A judge may accept reasonable compensation for extrajudicial activities, e.g., a stipend, fee,
salary, or royalty. Any compensation must be commensurate with the work performed.
However, the judge may not accept compensation if the payment would cause a reasonable
person to question the judge’s independence, integrity, or impartiality. Any compensation may
also be subject to public-reporting requirements under the code of judicial conduct. [Model
Code of Judicial Conduct r. 3.12, with comments (Am. Bar Ass’n 2020); see Acceptance of
Items with Reporting Requirements, infra.]
14. Acceptance of Gifts or Other Things of Value
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In general, a judge may not accept gifts, loans, benefits, or other things of value if doing so
would cause a reasonable person to question the judge’s independence, integrity, or
impartiality. This rule does not apply to contributions to a judge’s election campaign, which are
governed by separate ethical provisions. [Model Code of Judicial Conduct r. 3.13(A) cmt. 5
(Am. Bar Ass’n 2020).]
a. Acceptance of Items without Reporting
A judge may accept some gifts and benefits without publicly reporting the acceptance. The
MCJC specifies that these items include:
 items with little intrinsic value, such as greeting cards or plaques;
 gifts or other things of value from friends, relatives, or persons whose participation in a
matter would in any event require the judge’s disqualification;
 ordinary social hospitality;
 rewards and prizes from random drawings and contests open to persons who are not judges;
 scholarships, fellowships, special pricing, discounts, and loans, if the same benefits are made
available to similarly situated persons who are not judges;
 books and other materials supplied by publishers for official use; and
 gifts or other benefits given to a close family member, and associated with that person’s
separate activity, that incidentally benefit the judge.
[Model Code of Judicial Conduct r. 3.13(B) (Am. Bar Ass’n 2020).]
b. Acceptance of Items with Reporting Requirements
A judge may accept the following gifts or items, unless otherwise prohibited by law or by
the applicable code of judicial conduct, subject to the public-reporting requirements of the
MCJC:
 gifts related to a public testimonial;
 invitations to the judge, the judge’s domestic partner, or the judge’s guest to attend a lawrelated event without charge;
 invitations to the judge, the judge’s domestic partner, or the judge’s guest to attend without
charge an event related to the judge’s educational, religious, charitable, fraternal, or civic
activities, if the same invitation is offered to similarly situated non-judges; and
 gifts, loans, bequests, or other things of value from any person, including a lawyer, whose
interests have come or are likely to come before the judge.
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[Model Code of Judicial Conduct r. 3.13(C) (Am. Bar Ass’n 2020).]
15. Reimbursements and Fee Waivers
Often, as a part of their positions, judges attend educational, civic, charitable, legal, and
nonlegal conferences and symposia. Frequently, sponsors of these events agree to waive the
fees or costs associated with attending the event or may reimburse a judge for travel, food,
and related expenses that are incurred to attend. Unless prohibited by an ethical rule or by
law, a judge may accept reimbursement from someone other than the judge’s employing entity
of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses
associated with the judge’s extrajudicial activities. Additionally, a judge may accept a waiver
or partial waiver of fees or charges for registration, tuition, and similar items related to the
judge’s participation in acceptable extrajudicial activities. [Model Code of Judicial Conduct r.
3.14, with comments (Am. Bar Ass’n 2020).]
a. Factors Influencing Acceptance of Reimbursements or Waivers
A judge must be certain that acceptance of reimbursement or fee waivers is not likely to
appear to undermine the judge’s independence, integrity, or impartiality. The MCJC
provides a number of factors a judge should consider when deciding whether to accept
reimbursement or waivers. These include:
 whether the sponsor is an accredited educational institution or a bar association, as opposed
to a commercial entity;
 whether the funding comes from multiple contributors, as opposed to a single entity;
 whether the event is related to the subject of pending litigation or other matters likely to
come before the judge;
 whether the activity is mainly educational instead of recreational, and whether the costs of
the event are reasonable compared to similar events sponsored by law-related groups;
 whether information concerning the activity and its funding is available on request;
 whether the activity sponsors or funding providers are associated with parties likely to
appear before the judge, such that the judge risks disqualification by participating;
 whether different viewpoints are presented;
 whether a wide variety of judicial and nonjudicial participants are invited; and
 whether the event is specifically for judges.
[Model Code of Judicial Conduct r. 3.14 cmt. 3 (Am. Bar Ass’n 2020).]
b. Reimbursement Limits
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Reimbursement of reasonable expenses must be limited to the actual and reasonable costs
incurred by the judge, and when appropriate, the judge’s spouse, domestic partner, or
guest. [Model Code of Judicial Conduct r. 3.14, with comments (Am. Bar Ass’n 2020).]
c. Reporting
Reimbursements and waivers are subject to the general reporting requirements for
extrajudicial activities. [Model Code of Judicial Conduct r. 3.14(C) (Am. Bar Ass’n 2020);
see also General Reporting Requirements, infra.]
16. General Reporting Requirements
In addition to any other reporting required by the code of judicial conduct, a judge must
publicly report the amount, value, nature, and source of:
 compensation received for extrajudicial activities;
 gifts and other things of value that alone, or when aggregated from the same source in the same
calendar year, exceed a specified amount; and
 reimbursements or fee waivers that alone, or when aggregated from the same source in the
same calendar year, exceed a specified amount.
The threshold reporting amounts are not specified by the MCJC. Rather, they are left to each
jurisdiction that adopts these provisions. [Model Code of Judicial Conduct r. 3.15 (Am. Bar
Ass’n 2020).]
a. Nature of the Report
If public reporting is required, a judge must (1) report the date, place, and nature of the
activity for which he received compensation from the extrajudicial activity; (2) provide a
description of any gift, loan, bequest, benefit, or other thing of value accepted; and (3)
provide the source of any reimbursement of expenses or waiver of fees and other charges
received by the judge. [Model Code of Judicial Conduct r. 3.15(B) (Am. Bar Ass’n 2020).]
b. Timing of the Report
A judge must file a report at least annually. However, when a judge receives reimbursement
of expenses or at least a partial waiver of fees, the report must be made within 30 days
following the conclusion of the event. [Model Code of Judicial Conduct r. 3.15(C) (Am. Bar
Ass’n 2020).]
c. Location of the Report
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Reports must be filed as public documents in the office of the clerk of the court on which
the judge serves or other appropriately designated office. If feasible, the report should also
be posted on the court’s website. [Model Code of Judicial Conduct r. 3.15(D) (Am. Bar
Ass’n 2020).]
Political and Campaign Activity
In running for an elected judicial office, judges and judicial candidates have an ethical obligation
to conduct their campaigns in a manner consistent with judicial independence, integrity, and
impartiality. Consequently, during a campaign, a judge or a judicial candidate must be careful not
to express views or preferences about legal matters merely to enhance the candidate’s political
appeal. Rather, judges and candidates must remember their duty to make decisions in an official
capacity based on the facts and evidence of each particular case. Consequently, judges and
judicial candidates must appear to be free from political influence and pressure. [Model Code of
Judicial Conduct Canon 4, r. 4.1 cmt. 1 (Am. Bar Ass’n 2020).]
1. Political Activities in General
Public confidence in the judiciary as an independent and impartial body is tarnished if a judge
or judicial candidate is perceived by the public to be susceptible to political influence. Thus,
the ethical rules restrict the types of political or politically related extrajudicial activities in
which a judge or judicial candidate may participate. The MCJC lists a number of political
activities from which a judge or judicial candidate is barred, including:
 acting as a leader of or otherwise holding office in a political organization;
 making speeches on behalf of a political organization;
 publicly endorsing or opposing any candidate for public office;
 soliciting funds for or making a contribution to a political organization or a candidate for public
office;
 attending or buying tickets for dinners or events sponsored by a political organization or a
candidate for office;
 publicly identifying himself as a candidate of a political organization;
 seeking out, accepting, or otherwise using endorsements from a political organization;
 personally soliciting or accepting campaign contributions in any way other than through a
campaign committee authorized by the MCJC;
 using or allowing the use of campaign contributions for the private benefit of the judge,
candidate, or anyone else;
 using court staff, facilities, or resources in a judicial campaign;
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 knowingly, or with reckless disregard for the truth, making false or misleading statements;
 saying anything that would reasonably be expected to affect the outcome or in some way
impede the fairness of a matter pending in any court; and
 making pledges, promises, or commitments that are inconsistent with the ethical rules or the
impartiality of the court related to any pending or impending cases before the court.
[Model Code of Judicial Conduct r. 4.1 (Am. Bar Ass’n 2020).]
2. Public Elections
If a candidate runs for judicial office in a partisan, nonpartisan, or retention election, there is a
possibility that the independence and impartiality of the judiciary may be compromised as a
result of promises, pledges, and statements made by the candidate during the campaign.
Further, when a family member runs for political office, a judge must not become involved in,
or publicly associated with, the family member’s political activity or campaign, including
providing an endorsement. [Model Code of Judicial Conduct r. 4.1 cmt. 5 (Am. Bar Ass’n
2020).]
a. Actions during a Campaign for Election
If a judge or judicial candidate runs for public election, whether a partisan, nonpartisan, or
retention election, she must act at all times in a manner that assures the public that the
independence, integrity, and impartiality of the judiciary is maintained. Additionally, the
judicial candidate must comply with all campaign and election-related laws and regulations
in the pertinent jurisdiction. Prior to the distribution of campaign statements and materials
produced on the candidate’s behalf, the judicial candidate must review and approve each
item. Finally, the candidate must take reasonable measures to ensure that other persons
do not undertake impermissible activities on the candidate’s behalf. Other actions by the
candidate are permissible, within time periods set by the jurisdiction, before the first
primary election, caucus, or general or retention election. These activities include:
 the establishment of the campaign committee, according to the requirements set forth in the
ethical rules;
 the promotion of the campaign, such as by giving speeches and distributing advertisements,
flyers, and other campaign literature;
 the public endorsement of or opposition to a candidate for the same position for which the
judge or candidate is running;
 attending or purchasing tickets for dinners and events sponsored by a political organization
or a candidate for public office;
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 the solicitation, acceptance, or use of endorsements from any person or organization that is
not a partisan political organization; and
 contributions to a political organization or candidate for public office, so long as they do not
exceed an amount specified by the jurisdiction.
[Model Code of Judicial Conduct r. 4.2(B)(1)-(6) (Am. Bar Ass’n 2020).]
b. Identification as a Candidate
Despite the many limitations on judges’ participation in political activities, a minority of
states elect judges through partisan elections. Unless otherwise prohibited by law, a
judicial candidate in a partisan election may identify herself as a political-party candidate
and seek, accept, and use endorsements by the party. However, the candidate may not do
so before the date specified by the jurisdiction before the first primary, caucus, or election.
[Model Code of Judicial Conduct r. 4.2(C) (Am. Bar Ass’n 2020).]
c. Campaign Committees
In order to achieve political office, it is a necessity that candidates solicit and raise money
for advertising and other purposes. However, the ethical rules do not permit a judge or
judicial candidate to solicit funds directly. Therefore, the ethical rules permit judges to
establish campaign committees to conduct the fundraising on the candidate’s behalf.
[Model Code of Judicial Conduct r. 4.4 (Am. Bar Ass’n 2020).]
Overview of a Campaign Committee
Typically, a campaign committee manages all aspects related to the campaign of a
candidate for public or judicial office, from arranging public appearances and interviews
with media outlets to distributing materials, flyers, and related information. A judge is
responsible for ensuring that the committee complies with all ethical rules. Because a
judicial position is accompanied by special ethical rules, there are several restrictions
on the operation of a campaign committee. [Model Code of Judicial Conduct r. 4.4 (Am.
Bar Ass’n 2020).]
Solicitation of Contributions
A judicial candidate is personally prohibited from soliciting funds for a campaign or
personally accepting campaign contributions. However, the candidate may have his
campaign committee conduct the campaign, including the solicitation of money, so long
as the candidate ensures that the committee adheres to all applicable ethical rules.
Further, the candidate must ensure that the committee solicits and accepts only those
contributions that are reasonable in amount and do not exceed an amount set by the
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jurisdiction from any one individual or entity. [Model Code of Judicial Conduct r. 4.4(A),
4.4(B)(1) cmt. 1 (Am. Bar Ass’n 2020).]
Activities for Appointive Judicial Office
In some states, judges are appointed by the governor or the state legislature. A
candidate for appointment to a judicial position is also subject to certain ethical rules.
The candidate is permitted to communicate with the appointing or confirming authority
and may seek endorsements related to the appointed position. However, the candidate
may not seek endorsements from partisan political entities. In seeking support or an
endorsement, a candidate for a judicial appointment may not make promises, pledges,
or other commitments that are inconsistent with the duties of the office. [Model Code
of Judicial Conduct r. 4.3 cmt. 1 (Am. Bar Ass’n 2020).]
Timeliness of Solicitations and Campaign Contributions
A judicial candidate’s campaign committee is not permitted to solicit or accept
contributions for the current campaign of a candidate more than a set number of days
established by the jurisdiction prior to the primary election, caucus, or general retention
election. Additionally, the committee may not solicit or accept contributions more than a
set number of days established by the jurisdiction after the last election in which the
candidate participated. [Model Code of Judicial Conduct r. 4.4(B)(2) (Am. Bar Ass’n
2020).]
Compliance with Reporting Requirements
A judicial candidate must require his campaign committee to comply with all applicable
laws and regulations governing disclosure and divestiture of campaign contributions.
The candidate must also direct the committee to file with the appropriate authority a
report including the name, address, occupation, and employer of anyone who has made
campaign contributions to the committee in an aggregate amount exceeding
jurisdictional limits. The report must be filed within a specified number of days
established by the jurisdiction following an election. [Model Code of Judicial Conduct r.
4.4(B)(3) (Am. Bar Ass’n 2020).]
3. Nonjudicial Positions
On the campaign trail for elective office other than a judicial office, candidates often make
pledges, promises, or commitments and frequently provide personal opinions as to how they
will act if elected. This type of public communication is normal in most elections, but it is
nevertheless inconsistent with the role of a judge, who must remain impartial and independent.
Therefore, when a judge decides to become a candidate for a nonjudicial elective office, such
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as a state or US representative or senator, the judge must resign from judicial office, unless
otherwise permitted by law. This “resign to run” rule is meant to prevent a judge from using
the judicial office to further her candidacy for public office. However, if the judge will be a
candidate for a nonjudicial appointive office, such as US secretary of state, the judge is not
required to resign from judicial office, so long as the judge continues to adhere to all ethical
rules. [Model Code of Judicial Conduct r. 4.5, with comments (Am. Bar Ass’n 2020).]