I.
Regulation of the Legal Profession
A. Powers of Court to Regulate Lawyers
1. Track 1 Authority: Each state Sup. Ct. promulgates rules of professional conduct in their
jurisdiction and can subject lawyers to penalties for being in violation, such as disbarment,
censure, temporary suspension.
2. Track 2 Authority: All courts have inherent authority over lawyers practicing in that court, so
they can subject lawyers to penalties like removal and being held in contempt.
3. Track 3 Authority: There is background law governing what lawyers do, such as the common
law tort of malpractice, contract law governing attorney’s fees, and agency law governing
execution of fiduciary duties.
4. A single incident of misconduct can result in discipline under multiple tracks of authority.
For exam questions, always ask what source(s) of authority the question implicates and
what the available outcomes/remedies using that source of authority are.
B. Admission to Practice
1. State Requirements: States have an interest in practicing lawyers having minimal
competence and requirements to practice need only be rationally related to their fitness to
practice law.
2. Truthfulness: An applicant to the state bar must respond truthfully to all demands for
information from bar admission authorities. They may not knowingly make a false
statement or nondisclosure.
a. Knowingly-person is actually aware of false information or that it will cause a false
impression. Material- false statement was important enough to question applicants
fitness. Statements-both assertions and omissions of facts.
3. Character and Fitness: All states require the character and fitness to practice law from
applicants. The burden is always on the applicants to prove good character and fitness.
4. Other Considerations: Other Considerations: The state bar reviews several things to
determine if an applicant satisfies character and fitness and can be admitted. Relevant
considerations include time elapsed since event, applicants behavior after or remorse for
actions, or the context of the action.
a. Factors include: criminal conduct or convictions, academic misconduct, drug or alcohol
dependency, past or present mental health or emotional instability (slowly trending
away from asking about past mental health), and past
fraud/deceit/dishonesty/misrepresentation. Cannot be denied for political beliefs.
5. Right to Due process: An applicant has the right to procedural due process. At minimum an
applicant must have notice of proposed nonadmission and an opportunity to be heard
before admission is denied. An applicant who is denied may appeal by petitioning for a
hearing.
C. Regulation after Admission
1. Lawyer Misconduct: There are seven major categories of lawyer misconduct. 1. Violating or
attempting to violate an ethical rule/helping another to do so, 2. Committing a crime
suggesting a lack of trustworthiness, 3. Engaging in fraud or deceit, 4. Engaging in conduct
that is prejudicial to the administration of justice, 5. Suggesting that one can improperly
influence a government agency or official or get results for illegal conduct, 6. Knowingly help
a judge violate a law or rule of judicial conduct, and 7. Engaging in conduct that the lawyers
know or should know is harassment or discrimination. MR 8.4
2. Lawyer Discipline: A lawyer may be formally disciplined for violating or attempting to
violate the jurisdictions rule of professional conduct. They may also be disciplined for:
Violating another jurisdiction’s professional rules, willfully violating a court order imposing
discipline, failing to appear before or respond to an appropriate disciplinary authority in
course of a disciplinary proceeding.
a. Disciplinary Jurisdiction: 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 misconduct happens, 2. The lawyer provides or offers legal services in that
jurisdiction. MR 8.5
b. Multiple Jurisdictions: A lawyer subject to multiple jurisdictions by be disciplined by
multiple ones for the same conduct. If so, the authority should apply the rules 1. If the
conduct relates to a matter pending before a court or tribunal, the rule of the
jurisdiction where the tribunal sits or 2. If no tribunal involved the rules of the
jurisdiction occurred or had its primary effect. An exception is that a lawyer may not be
disciplined for conduct that complies with the rules of a jurisdiction in which the lawyer
reasonably believes the conduct will have its primary effect. MR 8.5(b)
3. Disciplinary Process: the process can vary from state to state but general follows this
pattern: 1. Filling a complaint: a client or lawyer filles a complaint with the state bar alleging
misconduct. 2. Investigation: disciplinary body conducts an investigation 3. Formal Charges:
If investigation shows cause the body issues formal charges, generally rare. 4. Right to
Hearing: if charged the lawyer has a right to a hearing with burden of proof on complaining
party, clear and convincing evidence standard. 5. Judicial Review: a reviewing court has the
discretion to review a disciplinary matter at the request of either party, usually the highest
court.
4. Duty of Truthfulness: A lawyer has a duty to respond truthfully to an inquiry. They cannot
knowingly make false statements of material fact or knowingly fail to respond to
information requests or fail to correct a misrepresentation. This is limited by lawyer-client
relationships, 5th amendment self-incrimination privilege, a lawyer representing another
lawyer in a disciplinary proceeding. MR 8.1
5. Disciplinary Forms: There are several levels of discipline 1. Private reprimands: written
admonishments provided only to the lawyer and kept on file with state bar, does not limit
ability to practice law (least serious) 2. Public reprimand/Censure: reprimand made
accessible to the public 3. Suspension: a specific period when a lawyer may not practice law,
made public 4. Disbarment: complete revocation of ability to practice law in jurisdiction 5.
Other sanctions: can include paying restitution or probationary license.
D. Mandatory and Permissive Reporting
1. Mandatory reporting: A lawyer is required to report misconduct by another lawyer or a
judge if 1. The lawyer knows that another has violated the professional rules in a way that
raises a substantial question about lawyers honesty or trustworthiness or 2 the lawyer
knows that a judge has violated the rules of judicial conduct in a similar way about their
fitness for office. MR 8.3
a. Exceptions: does not apply to info protected by lawyer-client relationship nor to info
learned through a lawyers assistance program MR 8.3
2. Permissive Reporting: a lawyer may report but is not required to report another lawyer’s
minor violations of ethics rules. MR 8.3(a)
E. Unauthorized Practice
1. Practice of Law: Generally, it’s the application of legal principles judgment, giving legal
advice, appearing before a court, negotiating settlements, and drafting legal documents.
a. Exceptions: some places hold that activities that require little or no legal judgment are
not practicing law such as filling tax forms. Also includes appearing pro se in court, filling
out standardized forms, or working as a paralegal. MR 5.5
2. Unauthorized Practice of Law: practicing law in a jurisdiction without a hearing to its
regulations of legal practice and helping another lawyer or nonlawyer to violate the
jurisdictions regulations. MR 5.5(a), 5.5(c)
3. Obtaining Authorization to Practice: Typically acquired by joining a state bar, special court
order for a single case (admission pro hac vice), a rule or grant of permission allowing
temporary practice. Must be in good standing (not under disciplinary action) MR 5.5(a),
5.5(c)
4. Presence and Affiliation: A lawyer not admitted to practice in a jurisdiction must not 1.
Establish an office or other systemic or continuous presence in the jurisdiction or 2. Hold
themselves out to the public as a lawyer admitted to practice. MR 5.5(b)
F. Multijurisdictional Practice
1. Temporary Representation: In limited circumstances a lawyer in good standing in his home
jurisdiction may provide temporary legal services to a client in a host jurisdiction. The lawyer
will be bound by the rules of both jurisdictions. MR 5.5(c)
a. Associating with local counsel: a lawyer may provide temporary legal services by
associating with a local lawyer that actively participates in the matter
b. Services Reasonable related to Pending Proceedings: a lawyer may provide temporary
legal services if they are reasonably related to a pending proceeding before a tribunal in
the lawyers home jurisdiction. Also
c. Alternative-Dispute-Resolution Proceeding: a lawyer may provide temporary legal
services that a reasonably related to an arbitration, mediation, or other alternate
dispute resolution reasonable related to the lawyer practice in their home jurisdiction.
MR 5.5(c)(3)
d. Other Instances: a lawyer may provide temporary legal services if the services are
reasonable related to the lawyers practice in their home jurisdiction.
2. Non-Temporary Representation: A lawyer in good standing may sometimes practice law
outside their home jurisdiction on a more than a temporary basis through an office or
systemic/continuous presence to 1. Their employer if it doesn’t require pro hac vice
admission, 2. As allowed by federal or other law. Example in-house counsels or government
lawyers. MR 5.5(d)
G. Fee Division with a Nonlawyer
1. General Rule: lawyers and law firms must not share legal fees with nonlawyers except in
limited circumstances. MR 5.4(a)
2. Payment on Death: A lawyer may enter into an agreement with the lawyers firm, partner,
or associate for payment of money after a layers death to their estate or specific individuals
3. Purchase of Practice: A lawyer who buys a practice of a deceased lawyer may pay the
purchased price to the lawyers estate or representatives. MR 1.17
4. Compensation or Retirement Plan: A layer of firm may include nonlawyer employees in a
compensation or retirement plan
5. Court-Awarded Fees: A lawyer may share court awarded fees with a nonprofit that
employer or retained the lawyer.
H. Forms of Practice
1. General Definition: a law firm is: 1. One or more lawyers in a law partnership, sole
proprietorship, or other association to practice law. 2. Lawyers working for a legal services
entity 3. Lawyers employer in-house by an organization. MR 1(c)
2. Partnership with Nonlawyers: A lawyer may not enter into a partnership with a nonlawyer
if he business of the partnership will include the practice of law. If it will not, then the rule
doesn’t apply. MR 5.4(b)
3. Direction of Lawyers by Nonclients: If a third party recommends, employs, or pays a lawyer
to provide legal services to someone the third party cannot direct or regulate the lawyers
professional judgment in rendering services. MR 5.4(c)
4. Management or Ownership of Law Firms: A lawyer may not practice with or as a
professional corporation or for profit entity if a nonlawyer 1. Own an interest in the entity
unless a fiduciary during administration of a deceased lawyers estate 2. Is a corporate
director or corporate officer, person of comparable authority 3.has the right in the
organization to control or direct the lawyers professional judgment MR 5.4(d)
I. Responsibilities of Supervising and Subordinate Lawyers
1. Law Firm Partners and Managers: a partner/manager must make reasonable efforts to
make sure the firm makes reasonable assurances that all lawyers comply with the rules of
professional conduct. MR 1(g), 5.1(a)
2. Supervisory Lawyers: A lawyer with direct supervisory authority make reasonable efforts to
make sure the supervised lawyer conforms to ethical rules. MR 5.1(b)
3. Violations and Accountability: One lawyer is responsible for another violation of the rules if
the responsible lawyer orders or knowingly ratifies the others conduct. Additionally a lawyer
is responsible if the lawyer is 1. A partner or manager or Directly supervises the offending
lawyer and 2. Knows of the violation when its effects can be lessened or avoided but 3, fails
to take reasonable action in light of this knowledge. MR 5.1(c)
4. Subordinate Lawyers: A lawyer is bound by the rules even if working under the direction of
another lawyer. However, a subordinate is not responsible if 1 a situation raises an arguable
question of ethics 2 and the subordinate relies on the supervisors reasonable resolution of
the question. MR 5.2(b)
5. Nonlawyer Assistants: a partner/manager must make reasonable efforts to make sure the
firm makes reasonable assurances that all nonlawyer assistants act consistent with the
lawyers ethical obligations. Same for a lawyer who directly supervises a nonlawyer assistant.
MR 5.3
a. Violations: A lawyer is liable for a nonlawyers violations if the lawyer orders or
knowingly ratifies the violating conduct or if 1. A partner or manager or Directly
supervises the offending lawyer and 2. Knows of the violation when its effects can be
lessened or avoided but 3, fails to take reasonable action in light of this knowledge. MR
5.3(c)
J. Restrictions on Right to Practice
1. General rule: 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 has
ended. Also prohibits restrictions on future practice connected with settlements. MR 5.6(a)(b)
2. Exception: this limit does not apply to restrictions that arise as part of the sale of a law
practice. MR 1.17, 5.6
K. Sale of a law Practice
1. General Rule: a lawyer or firm may sell or purchase a practice if 1. The seller agrees to cease
practicing law in the area 2. The entire practice is sold to a lawyer or law firm 3. The fees
charged to clients will no increase due to the sale. 4. The seller gives written notice to the
client regarding the proposed sale, clients right to retain other counsel or obtain files, and
the client will be presumed to consent to transfer if they do not object within 90 days. MR
1.17
2. Practice Restrictions Permitted: The rule prohibiting limiting a lawyers right to practice is
permissible during a sale. The agreement may limit the sellers right to 1. Engage in the
private practice of law 2. Practice a particular area of law 3. Practice in a specific geographic
area or jurisdiction for a specific period of time. MR 1.17(a)
________________________________________________________________________
II.
The Lawyer-Client Relationship
A. Formation of Relationship
1. Threshold Question: Whether an attorney client relationship exists is a threshold
question for most violations under all three tracks of authority but is most important
when determining that a lawyer owed a duty of care.
2. Express or Implied—Rest. 3d L. Governing Lawyers § 14:
a. Express: the client explicitly manifests intent to hire the lawyer, and the lawyer
explicitly accepts the offer.
b. Implied: the lawyer fails to manifest a lack of consent to represent the client; the
person reasonably relies on the lawyer to provide legal services; and the lawyer
knows or reasonably should have known that the person is relying on the lawyer
to provide the services.
3. Forbidden Representation
a. Incompetence: a lawyer may not represent a client on a matter in which he lacks
expertise unless the lawyer could study the subject matter without undue
hardship or expense for client or the lawyer associates with another lawyer who
has the expertise.
b. Crime Fraud: a lawyer may not represent someone when he knows that the
client seeks to engage in a crime or fraud and is not merely advising the client
about the possible consequences of takins such an action.
c. Conflict of Interest: a lawyer may not undertake representation that he knows
will cause a conflict of interest or some other rule to be violated.
d. Physical or Mental Condition: a lawyer may not undertake representation when
he is materially impaired.
e. Frivolity: a lawyer may not undertake representation that requires the lawyer to
knowingly assert a frivolous claim or defense.
f. Harassment: a lawyer may not undertake representation for the substantial
purpose to embarrass, delay, harass, or burden a third person.
B. Scope, Objective, and Means of Representation
1. Scope of Representation—MR 1.2(c): lawyer can limit the scope of services provide
to the client if the limits are (1) reasonable under the circumstances, and (2) client
gives informed consent.
a. Represent client only ins specific areas or law
b. Engage in one activity, but not others on client’s behalf
c. Provide a limited amount of advice in short consult
2. Objectives—MR 1.2(a): a lawyer must abide by the client’s determination of the
objectives or goals or the representation in a matter.
3. Means—MR 1.2(a): a lawyer must reasonably consult with the client about the
means of achieving the client’s goals, which may involve discussing the lawyer’s
actions in advance.
C. Actual and Apparent Authority
1. Types of Lawyer Authority
a. Express authority: an attorney acts pursuant to authority explicitly granted.
E.g., clients can grant express authority to an attorney in an engagement
letter or later instructions.
b. Implied authority: an attorney acts pursuant to authority necessarily granted
by the attorney-client relationship to affect the representation. E.g. file
pleadings, determine what wtinesses to call.
c. Reserved authority: the lawyer has the authority take actions required by
law without the clients authorization. E.g., attorneys must obey a court
order.
d. Apparent authority: Whether an attorney had the apparent authority to take
some course of action hinges on whether third party was reasonably led to
believe, through words or other acts of the principal (client), that the
principal consents to have the act done on her behalf.
2. Estoppel: Although having apparent authority is not a defense to disciplinary action
under M.R. 1.2, or to a malpractice action, the client is estopped from claiming that
it is not bound by the lawyer’s action.
3. Decisions reserved to the client— (M.R. 1.2)
a. whether to settle in a civil case
b. how to plead in a criminal case
c. whether to waive jury trial in a criminal case
d. whether to testify in a criminal case
e. whether to appeal a criminal case
D. Counsel and Assistance
4. Lawful assistance—MR 1.2(d): a lawyer cannot counsel or assist a client in
committing or perpetuate activity the lawyer knows to be a crime or fraud.
5. Good faith—MR 1.2(d): an exception to the above rule is when the lawyer is merely
making a good faith effort to counsel the client the legal consequences of a
proposed action by determining the meaning or application of the law.
E. Termination
1. Client’s right—MR 1.16(a): the client has an absolute right to terminate the
representation at any time and for any reason.
2. Mandatory Withdrawal 1.16(a)—lawyer must withdraw when:
a. Certain Illegality: the representation will result in violation of the rules of
professional conduct or other law; (e.g., aid the client in a crime or fraud if
client insists; discover a conflict of interest)
b. Incompetence: the lawyer's physical or mental condition materially impairs
the lawyer's ability to represent the client.
c. Fired or disqualified: the lawyer is discharged.
3. Permissive Withdrawal 1.16(b)—lawyer may withdraw when:
a. No harm: withdrawal can be accomplished without material adverse effect
on the interests of the client.
b. Crime Fraud Suspected: the client persists in a course of action involving the
lawyer's services that the lawyer reasonably believes is criminal or
fraudulent.
c. Crime Fraud Already Assisted: the lawyer discovers that the client has used
the lawyer's services to perpetrate a crime or fraud.
d. Repugnant: the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement.
e. Client Breach: the client fails substantially to fulfill an obligation to the
lawyer regarding the lawyer's services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is fulfilled.
f. Financial Burden and Difficulty: the representation will result in an
unreasonable financial burden on the lawyer or has been rendered
unreasonably difficult by the client.
g. Other good cause: other good cause for withdrawal exists.
4. Duties Upon Termination—MR 1.16(d): in general, the lawyer must take reasonable
steps to protect the client’s interest, such as:
a. Give client reasonable notice
b. Give client time to find other counsel
c. Give client any papers and property to which they are entitled
d. Refund any unearned legal fees in client’s trust account
5. Recovery of Legal Fees: when a client fires a lawyer or a lawyer withdraws early
under a fee contract, the lawyer may recover the lesser of (1) the prorated contract,
or (2) fees due in quantum meruit.
F. Client Lawyer Contracts
1. Generally not required: a written agreement is not required, but preferred under
MPRC because it reduces the chance of misunderstanding.
2. Except for contingency agreements: a contingent fee arrangement must be in a
writing signed by the client and must communicate:
a. how the fee will be calculated
b. what litigation expenses will be deducted and whether those will be
calculated before or after the lawyer’s fee
c. any expenses the client will still be liable for if they lose.
3. Post-rep contingency statement: the lawyer must provide a written statement
explaining the outcome, reward, payment to client, and how the payment was
calculated.
4. Enforceability & Construction Quirks
a. After Commencement: A client can avoid a contract or contract modification
if made beyond a reasonable time after the representation has commenced,
unless the lawyer shows the modification is reasonable and fair to the client.
i. Reasonableness is measured by what a reasonable person in the
client’s position would have understood, not what the lawyer
reasonably understood.
b. After Completion: A client can avoid a contract if it was made (1) after the
lawyer completed the representation and (2) the lawyer failed to inform the
client of the facts needed to evaluate the appropriateness of the lawyer’s
compensation.
5. Communications with Client—MR 1.4
1. Client reasonably informed: a lawyer must generally keep a client reasonably
informed about the status of the case, including any procedural or substantive
developments in the matter.
2. Required Communications—MR 1.4
a. Informed consent: a lawyer must promptly notify a client when a decision,
circumstance, or other matter requires the client’s informed consent.
b. Informed decision making: the lawyer must communicate information
sufficient for the client to understand relevant facts about the representation
and the relative importance of those facts so the client can intelligently
participate in making decisions about the objectives and means of
representation.
c. Means taken: the lawyer must reasonably consult the client about what
means have been or will be taken to affect the representation.
d. Upon request: a lawyer must respond promptly to a client’s reasonable
request for information or inform the client when the lawyer will be able to
respond if a prompt response is not possible.
e. Ethical limitations: if a lawyer knows that the client expects the lawyer to do
something that violates the ethical rules, the lawyer must consult the client
about the lawyer’s limitations.
3. Delayed communications: a lawyer may delay transmitting information to a client if
client would likely act imprudently in response to an immediate communication.
6. Fees
1. General reasonableness—MR 1.5: a lawyer’s fees must be reasonable accounting
for factors like time, labor and skill required.
2. Communicating About Fees
a. Communication Required: a lawyer must communicate (preferably in
writing) the basis or rate of fees and other expenses either (1) before
commencing the representation, or (2) within a reasonable time after.
b. Except in ongoing relationship: communication not required when a client is
regularly represented by the lawyer and the rate or basis is the same as in
the past.
3. Forbidden Free Agreements
a. Domestic Relations: a lawyer cannot make a contingent fee arrangement
based on the success of obtaining a divorce or the amount of alimony,
support, or property settlement won.
b. Criminal Defense: a contingent fee is impermissible when defending a client
in a criminal case (would discourage taking plea bargains in client’s best
interest).
4. Fee Splitting Allowed—MR 1.5(e)
a. Lawyers share fees in proportion to the work they did, or assume joint
responsibility for the representations (50/50).
b. Client gets full disclosure and agrees in writing to the basic fee division and
proportion that each of the lawyers is going to receive.
c. The total fee is reasonable.
________________________________________________________________________
III. Client Confidentiality
A. Attorney-client privilege
1. General Questions
a. Is the attorney being asked to testify?
b. Is it about a communication between privileged persons—(lawyer, client,
prospective client, client’s communication agent, lawyer’s agents who facilitate
the legal assistance)?
c. Is the communication in confidence?
d. Is the communication for the purpose of obtaining or providing legal assistance?
2. Collateral Aspects of Communications
a. Courts allow revelation of the client’s identity, the existence of a layer client
relationship, and the amount and source of the lawyers fees if these facts do not
expose the content of the att’y client communication.
3. Communication Not Received
a. Communications intended to reach a privileged party are privileged, even if they
do not reach the privilege part (e.g., are lost, destroyed, or intercepted).
4. Third Party Presence
a. Presence of an non-privileged third party breaks the privilege.
b. An eavesdropper does not break the privilege if attorney and client took
reasonable steps to maintain confidentiality and did not know about the third
person’s presence.
c. Presence of another person bound by the attorney client privilege, or another
privilege (e.g. spousal privilege) does not break the privilege.
5. Exceptions
a. Crime-Fraud: the client communicates with the lawyer with the purpose of
committing or obtaining assistance to commit a crime or fraud and the client
accomplishes that purpose; or the client uses the communication to commit or
assist a crime or fraud regardless of the client’s intent at the time or knowledge
that the act is unlawful.
1) NOTICE that the crime fraud exception only applies if the client succeeds in
accomplishing the unlawful act, no harm occurs if the client does nothing.
2) In Camera Review: To obtain an in camera review for a determination on the
applicability of the crime-fraud exception to the attorney-client privilege, the
requesting party must show a factual basis adequate to support a good faith
belief by a reasonable person that an in camera review of the materials may
reveal evidence establishing the claim that the crime-fraud exception applies.
U.S. v. Zolin
b. Lawyer-Client Dispute: the lawyer can testify about privileged information in a
dispute about the lawyer’s fees, or a dispute involving allegations of malpractice
or misconduct by the lawyer or the lawyer’s agents.
c. Lawyer as Attesting Witness: the lawyer can testify as an attesting witness (e.g.
as a witness to signing a will).
6. Waiver
a. General Rule: the client, the client’s personal representative (PR of estate,
guardian, or conservator), and the client’s successors in interest may assert or
waive the privilege.
b. Voluntary Disclosure: client, lawyer, or another agent disclose the
communication acting with the actual or apparent authority to do so.
c. Disclaimer: client, lawyer, or another agent disclaim the privilege and another
person reasonably and detrimentally relies on the disclaimer.
d. Failure to Object: lawyer fails to timely object to an attempt to introduce
privileged communications in a court proceeding.
e. Inadvertent Waiver: the privileged communication is accidentally disclosed to a
non-privileged person, but not if the client takes reasonable and prompt steps to
recover the communication and reassert the privilege.
f. Client Puts Communication at issue: the privilege is waived if the client claims
that they: (1) did something because of lawyer’s advice, or (2) received
ineffective or wrongful assistance from counsel.
g. Witness Preparation: the privilege is waived if the (1) the witness uses the
communication to assist while testifying, or (2) the communication is used to
prepare the witness to testify, and the court finds that justice demands
disclosure.
7. Organizational Client: In the corporate context, the attorney-client privilege applies
to not only those high-level employees who have the authority to act on the legal
advice of the attorney, but also to any of those employees who provide information
to the attorney so that he may give such legal advice. Upjohn.
a. Were the communications made to secure legal advice for the corporation?
b. Were the communications related to the corporate duties or work of the
employees who made them?
c. Did employees know that the communications were to be confidential or that
they were part of some legal effort?
d. Were the communications kept confidential within the corporation?
B. Work-product doctrine
1. General Rule: the work product rule protects from discovery (1) documents and
other tangible things or their unwritten equivalents, (2) prepared in anticipation of
litigation or for pending litigation.
2. Opinion v. Ordinary: Opinion work product consists of the lawyer’s opinions and
mental impressions in anticipation of litigation or trial, all other work product is
considered ordinary work product.
3. Compelling Discovery
a. Opinion: extraordinary circumstances + compelling need
b. Ordinary: substantial need + undue hardship obtaining equivalent
c. Crime Fraud: same as att’y client privilege
4. Waiver (mostly same as att’y client privilege)
a. Agreement: client or his agent agree to waive protections.
b. Disclaimer: client, lawyer, or another agent disclaim the privilege and another
person reasonably and detrimentally relies on the disclaimer.
c. Failure to Object: lawyer fails to timely object to an attempt to introduce
privileged communications in a court proceeding.
a. Disclosure: Reveal work to 3d party in such a way that the adversary will likely
obtain it.
b. Client Puts Communication at issue: the privilege is waived if the client claims
that they: (1) did something because of lawyer’s advice, or (2) received
ineffective or wrongful assistance from counsel.
c. Witness Preparation: the privilege is waived if the (1) the witness uses the
communication to assist while testifying, or (2) the communication is used to
prepare the witness to testify and the court finds that justice demands
disclosure.
C. General Duty of Confidentiality
1. General duty: attorneys must never (1) disclose or allow unauthorized access confidential
client information or (2) use confidential client information to benefit themselves or
another client.
2. Scope of duty: the duty extends to former clients and prospective clients.
3. Scope of confidential information: duty of confidentiality covers information related to the
representation gathered from any source, including sources such as third persons whose
communications are not protected by the attorney-client privilege.
D. Authorized Disclosures
1. Express authorization
a. Requires informed consent: must explain material risks or disclosure and
advise on any reasonable alternatives.
2. Implied authorization: a lawyer is impliedly authorized to disclose information if
doing so is appropriate as part of the representation (e.g. a lawyer can disclose
client confidences to other lawyers at the firm, except if client directs otherwise or a
conflict screen would be breached)
E. Exceptions to Confidentiality Rule
1. Death or SBI: prevent reasonably certain death or substantial bodily harm.
2. Prevent Crime or Fraud: prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury another person’s financial or
property interest and in furtherance of which the client has used or is using the
lawyer's service.
3. Prevent Results of Crime or Fraud: prevent, mitigate or rectify substantial injury to
the financial or property interests of another person that is reasonably certain to
result or has resulted from the client's crime or fraud in furtherance of which the
client has used the lawyer's services.
4. Secure Ethics opinion: secure legal advice about the lawyer's compliance with MRPC
5. Lawyer client controversy: establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client.
6. Self-defense: establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's representation of the client.
7. Court order: comply with other law or a court order.
8. Conflict check when moving firms: detect and resolve conflicts of interest arising
from the lawyer’s change of employment or from changes in the composition or
ownership of a firm, but only if the revealed information would not compromise the
attorney-client privilege or otherwise prejudice the client.
F. Lawyer’s Actions Before Disclosure
1. Dissuade client: attempt to dissuade the client out of doing whatever is making the
disclosure permitted or required.
2. Court order: if a court order requires disclosure the lawyer should
a. Notify and consult client for express authorization
b. If client refuses, assert all non-frivolous claims that the info cannot lawfully
be disclosed and consult client about appealing if the court rejects.
c. If no appeal allowed or sought, then make the disclosure.
________________________________________________________________________
IV. Conflicts of Interest
A. General Questions
1.
2.
3.
4.
5.
What is the source of the conflict (third-party, multiple clients, lawyer interest)?
Does the conflict meet the rules threshold requirements?
Does the conflict impute to the whole organization?
If so, can the lawyer be effectively screened or isolated?
If the conflict can be waived by the client, what must be done to effectively waive?
B. Current Client (Multiple Clients and Joint Representation)
1. Concurrent Clients
a. Directly adverse—MR 1.7(a): a lawyer cannot rep. opposite sides in the same
matter—this is NOT waivable because it is too gross a conflict to be overcome by
consent.
b. Adverse in unrelated actions—MR 1.7: a lawyer can represent adverse parties in
matters that are unrelated to each other if both affected parties waive the
conflict.
1) Waiver: (1) each affected client must give informed consent to the lawyer in
writing, (2) the lawyer reasonably believes that he/she can provide diligent
and competent representation to both and (3) there is no significant risk that
the lawyer’s representation of one client will materially limit the
representation of the other, (4) the representation is legal.
2) E.g. Lawyer represents Dr. D in divorce court. Lawyer also routinely
represents Hospital P in over-billing matters, Hospital P has such a claim
against Dr. D. If the parties’ consent, Lawyer can represent Hospital P’s billing
claim against Dr. D without disciplinary action.
3) E.g. Lawyer represents Pfizer and Moderna, although these companies are
generally adverse rivals in the market, lawyer can represent both without a
waiver if the companies are not suing each other.
2. Same Side, Multiple Clients
a. General: Joint rep. allowed in civil claims brought simultaneously by multiple
clients is permitted if both clients consent after consultation. Withdrawal from
the case may be the only remedy when a nonwaivable conflict later develop,
and a lawyer will be disqualified from representing any of the joint clients.
b. Aggregate Settlements—MR 1.8(g): in civil and criminal cases, a lawyer cannot
engage in aggregate settlements for multiple clients’ claims or charges unless all
clients give informed consent in a writing signed by the client.
1) The lawyer's disclosure shall include the existence and nature of all the
claims or pleas involved and of the participation of each person in the
settlement.
c. Special Problem for Criminal Case: If Defendant can demonstrate that an actual
conflict adversely affected Lawyer’s performance, his 6th Amend. Right to
adequate legal assistance is violated and Defendant is entitled to a new trial.
Cuyler v. Sullivan (1980).
3. Organization and Officers
1. General—MR 1.13(a): A lawyer employed or retained by an organization
represents the organization, not its officers. A lawyer can represent both the
organization subject to the provisions of Rule 1.7.
2. Waiver—MR 1.13(g): If the organization's consent to the dual representation is
required by Rule 1.7, the consent shall be given by an appropriate official of the
organization other than the individual who is to be represented, or by the
shareholders.
3. Preventing a conflict—MR 1.13(f): a lawyer shall explain the identity of the
client organization when the lawyer knows or reasonably should know that the
organization's interests are averse to those of the constituents with whom the
lawyer is dealing.
C. Former Client conflicts
1. Substantial relation—the matters undertaken for the former client are substantially
related to the matters undertaken for the current client—(i.e., involve the same
transaction/legal dispute OR there is a substantial risk that former client’s
confidential info would materially advance the current client's position in the
subsequent matter).
2. Waiver: the former client gives informed consent in writing.
D. Associational Conflicts (MR 1.10)
1. General: While lawyers are associated in a firm, none shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so by
Rules 1.7 or 1.9.
2. Exceptions
a. Personal Interest: the prohibition is based on a lawyer’s personal interest of
the disqualified lawyer and does not present a significant risk of materially
limiting the representation of the client by the remaining lawyers in the firm.
b. Association w/ prior firm: the prohibition arises out of the disqualified
lawyer’s association with a prior firm.
1) Waiver: the disqualified lawyer is (1) timely screened, (2)
apportioned no fee from the representation, (3) gives written
notice to the former client, and (4) updates the former client
periodically on compliance with screening procedures.
c. Association w/ firm terminated: when a lawyer has terminated association
with a firm, the firm is not prohibited from thereafter representing a person
with interests materially adverse to those of a client represented by the
formerly associated lawyer and not currently represented by the firm.
1) Waiver: A disqualification prescribed by this rule may be waived by
the affected client under the conditions stated in Rule 1.7.
2) Non-waivable: a conflict arising from a former client represented by
a lawyer who has terminated association with a firm is not waivable
if the matter is the same or substantially related to that in which
the formerly associated lawyer represented the former client and
any lawyer remaining in the firm has confidential information that
is material to the matter.
E. Current Client and Lawyer’s Personal Interest
1. Source—MR 1.7(a)(2): a conflict of interest exists when a lawyer’s rep. of a client will
be materially limited but the lawyer’s personal interests.
2. General Waiver—MR 1.7(b): Waivable if (1) the lawyer reasonably believes that the
lawyer will be able to provide competent and diligent representation and (2) the
client gives informed consent in writing.
3. Business transactions w/ client—MR 1.8(a): waivable if (1) client gives consent in
writing, (2) client advised in writing and given opportunity to seek independent
counsel, (3) the transaction is objectively reasonable, and (4) the transaction is in
writing and understood by client.
a. Exception—MR 1.8(a): bus. transaction restrictions apply only when the client
expects the lawyer to exercise legal judgment regarding the transaction, not an
ordinary transaction (e.g. lawyer pays for an eye exam from client doctor).
4. Literary rights—MR 1.8(d): lawyers cannot negotiate for literary, or media rights
based on their clients’ stories until the conclusion of a representation—this conflict
is NOT waivable.
a. The existence of a literary K does not per se demonstrate ineffective assistance
of counsel. The lawyer is subject to discipline, but D cannot appeal on these
grounds. Maxwell v. Superior Ct., 639 P.2d 248 (Cal. 1982).
5. Instruments that benefit the lawyer—MR 1,8(c): lawyers cannot draft a document
that makes a substantial gift to themselves or their close relatives, unless the donee
is related to the donor.
a. E.g. A lawyer can write his parent’s will, although he is the main beneficiary.
6. Sex—MR 1.8(j): lawyers cannot have an amorous relp. with a client, unless the relp.
predates the beginning of the lawyer-client relp. In addition to MR 1.8(j), it is also
clearly prohibited by the general lawyer interest rule.
a. E.g. A lawyer can do legal work for wife, who stated dating in law school.
7. Agreements limiting lawyer’s liability—MR 1.8(h): lawyers cannot enter a K w/ a
client that prospectively limits liability for malpractice. MAY BE waivable if state law
permits and client is independently represented as to the agreement.
8. Settling claims with unrepresented clients—MR 1.8(h): lawyers cannot settle
malpractice claims with unrepresented clients or former clients UNLESS the lawyer
advises the client or former client that independent counsel is advisable.
9. Advancing funds to client—MR 1.8(e): lawyers cannot advance financial assistance
to clients when there is pending or contemplated litigation, except that the lawyer
may advance court costs—this is NOT waivable.
a. It does not matter if the advancement is consistent or inconsistent w/ the
clients’ interest (i.e. intended to be charitable or humanitarian), the rule
prevents a lawyer from procuring an interest in the litigation, but it is not
required that there is be proof of such intent or effect. Iowa SBA v. Bitter, 279
N.W.2d 521 (Iowa 1979).
10. Acquiring an interest in the litigation or its subject matter—MR 1.8(i): lawyers
cannot acquire and interest in the litigation or its subject matter, whether that
interest is consistent or inconsistent w/ the client’s interest—the rule is NOT
waivable.
a. E.g., lawyer represents client in a dispute over ownership of some property,
lawyer is not allowed to acquire interest in the property in exchange for the rep.
F.
Third-party Compensation and Influence
1. Source: someone who is not in the lawyer-client relp. seeks to affect or becomes
positioned to affect the independence of the lawyer’s judgement on behalf of the
client.
a. Payment of fees— (MR 1.8(f): a third-party conflict commonly occurs when a
third party pays the lawyer’s fees the lawyer’s representation of the client.
1) Waiver: (1) Client gives informed consent; (2) there is no interference with
the lawyer’s independence of professional judgment or with the clientlawyer relp; and (3) information relating to representation of a client is
protected under MR 1.6.
b. Lawyer for Organization— (MR 1.13): the lawyer who reps. an organization
represents the organization, not the individual directors or managers of the
organization. When directors and manager interpose their personal interests
between the lawyer and organization-client, a third-part interference exists
c. Legal servs. practice—(MR 6.3): the lawyer provides free legal services to clients
but is compensated by the legal services or legal aid office.
1) Board of Directors are not lawyers for the purpose of the lawyer-client relp.
w/ the organization’s clients. Bd. member may rep. clients who are adverse
to the organization’s client, but cannot participate in decisions of the
organization that materially affect the interests of the organization’s client
(MR 6.3).
d. Insurance defense: When a lawyer is paid by an ins. co. to represent the insured
and the ins. co. is not also a part to the matter, the ins. co. is a potential thirdparty interference.
G. Former judge, arbitrator, or mediator
1. Successive representation in the same matter—MR 1.12: a former judge cannot
engage in private rep. in a matter in which the judge participated personally and
substantially as a judge UNLESS all parties the matter consent after consultation.
a. Personal participation is key: the mere fact that a judge was a member of a
group of judges who variously hear cases individually for a particular ct. does not
disqualify the judge from all matters heard in the ct.
b. Substantialness is key: if the judge did not hear the case on the merits, there is
not conflict (e.g. J is a member of the Trial Court bench, as the judge on call J
granted P’s motion for an extension of time to respond to D’s interrogatories. J
J’s participation was not substantial.
2. Negotiating for employment—MR 1.12(b): judges cannot negotiate employment
with lawyers who are currently representing parties before the judge’s ct. if the
judge is personally and substantially participating in the matter before the ct.
3. Special Imputation—MR 1.12(c): To prevent disallowing judges from private-firm
participation wholesale, more relaxed imputation rules apply to former judges.
Effective screening procs. and notice to parties and the judge’s former ct. are
enough to let the law firm continue w/ the representation.
H. Lawyer in Government Service
1. General—MR 1.11: a former gov’t lawyer cannot represent a client in connection
with a matter in which the lawyer participated personally and substantially as a gov’t
lawyer without regard to whether the lawyer has changes sides on the matter.
2. Personal and substantial participation: Similar to former judges, the rule only
applies when the lawyer has participated personally and substantially.
3. Exceptions
1. Law otherwise permits: the agency itself will sometimes have regulation
authorizing later private practice in various instances.
2. Not a “matter”—MR 1.11(e): a matter is later private representation in
connection with the gov’t service matter, the rule excludes broadly applicable
actions like general rulemaking,
3. Agency Consent: the agency may waive the conflict and all future conflicts for
the departing lawyer by giving its informed consent.
4. Use of Gov’t Info—MR 1.11(c): a former gov’t lawyer cannot rep. private parties
who are adverse to parties about whom the lawyer has confidential info gained in
gov’t practice that could be used against the adverse party.
d. Private party, not agency waiver: the private party about whom the lawyer
has confidential information must consent, obviously this sort of waiver is
unlikely to happen.
3. Special imputation rules—MR 1.11(b)
a. When a former gov’t lawyer is disqualified from representation, no lawyer in
a firm with which that lawyer is associated may knowingly undertake or
continue representation in such a matter unless:
1) the disqualified lawyer is timely screened from any participation in
the matter and is apportioned no part of the fee therefrom; and
2) written notice is promptly given to the appropriate government
agency to enable it to ascertain compliance with the provisions of
this rule.
I. Lawyer as Witness
1. Generally Forbidden—MR 3.7: lawyers are generally disqualified from representing
a party in a matter where the lawyer will likely be called on as a witness.
2. Exceptions
a. Uncontested matter—MR 3.7(a)(1): where the lawyer’s testimony is
uncontested there is no real issue w/ the lawyer having a dual role as witness
and advocate.
1) E.g., lawyer testifies that testator executed a will at lawyer’s office and
appeared sound of mind; the validity of the will and the testator’s capacity
are not in question.
b. Representation is at issue—MR 3.7(a)(2): the testimony relates to the nature
and value of legal services rendered in the case.
c. Substantial hardship—MR 3.7(a)(3): disqualification of the lawyer would be a
substantial hardship for client—this requires a balancing of the interests of the
client with the interest of the opposing party and the tribunal.
d. Another lawyer at the firm is a witness—MR 3.7(b): A lawyer may act as
advocate in a trial in which another lawyer in the lawyer's firm is likely to be
called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9— (i.e.
there would be a conflict imputed to advocating lawyer if the testifying lawyer
were to advocate for client and the conflict has not been waived).
________________________________________________________________________
V.
Competence, legal malpractice, other civil liability
A. Maintaining Competence
1. Definition—MR 1.1.: the lawyer uses the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation.
a. Distinct from malpractice: competency is supposed to ensure an acceptable
level of general performance by a lawyer, so normally a single breach of a
malpractice duty will not make the lawyer subject to discipline on grounds of
incompetence. An honest mistake in handling a legal matter normally is not a
basis for disciplinary action but repeated and egregious conduct is.
b. Not all knowing: a lawyer does not have to know everything about the
client’s legal claim before undertaking the representation, it is not a breach
of the competence duty diligently acquire the necessary knowledge.
c. Basic-cross cutting skills required—MR 1.1: the lawyer must understand
using precedent, legal research skills, identify and evaluate a client’s
problem, and have writing and drafting skills.
d. Emergency: in an emergency, a lawyer may provide limited assistance to a
client in a matter on which the lawyer ordinarily requires further study or
search, but this must be limited to what’s necessary.
2. Continuing competence: most states impose some kind of CE requirements that are
tied to the lawyer’s permission to practice.
B. Diligence and Care
1. Definition—MR 1.3: A lawyer shall act with reasonable diligence and promptness in
representing a client. Diligence requires a persistent pursuit of the client’s matter
and expediting the matter when in the client’s interest.
a. E.g. starting and stopping, misleading client about progress, failing to meet
important deadlines,
2. Inadequate Excuses
a. Illness without remediation: a lawyer w/ health issues that prevent them
from pursuing a client’s matter should communicate courses of action w/ the
client, such as arranging for a substitute lawyer to work for the client.
b. Personal feelings: animosity for a client does not excuse delay.
c. Blaming underlings: the lawyer cannot blame employees to excuse a lack of
diligence, the lawyer bears the responsibility.
d. Overwork: lawyer’s must evaluate their workload, taking on more
responsibilities is not an excuse to neglect particular client’s matter.
C. Civil Liability to Clients
1. Existence of an attorney-client relationship: fiduciary duties begin when the client
reasonably expects that the lawyer has undertaken to provide legal service.
2. Breach of a legal duty
a. Professional standard: a lawyer is held to the standard of an ordinary lawyer,
but a specialist in a particular field (e.g. tax) will be held to the standard of a
specialist.
b. No guaranteed outcome: Failure to obtain a certain result using reasonable
means is not necessarily negligent. If a lawyer chose a professionally
reasonable strategy to achieve the client’s goal, but the strategy failed she
has not breached her duty of care.
c. Not omnipotence: Lawyers are expected to have general knowledge of the
law and familiarity with research techniques, but there is no duty to know
every possible nuance of law that may apply to a client’s situation.
3. Factual & Proximate Causation of Harm
a. The client must prove that the lawyer’s breach of duty actually caused and
foreseeably caused a worse outcome from the perspective of a reasonable
attorney.
4. Actual damages
a. Plaintiff can only recover actual damages, and damages that were reasonably
foreseeable by the defendant. Consequently, the plaintiff must prove the
number of damages, and cannot recover speculative damages.
D. Civil Liability to Nonclients
1. Generally not liable: a lawyer usually does not owe a duty that supports a
negligence action to third person, especially not opposing parties.
2. Intended beneficiaries: a lawyer’s work for a client may be intended to benefit a
third person, in that case the lawyer owes duty of care to such third person.
3. Invited reliance: when a lawyer’s work for a client specifically invites reliance of a
third person, the lawyer owes a duty of care to the third person.
4. Breaching fiduciary duties: when a lawyer does work for a client who is a fiduciary,
the lawyer owes duty to the beneficiary to refrain from acts that assist the client in
breaching client’s fiduciary duties.
E. Limiting Liability for Malpractice
1. Agreements limiting lawyer’s liability—MR 1.8(h): lawyers cannot enter a K w/ a
client that prospectively limits liability for malpractice, but this is waivable if the
client is independently represented as to the agreement.
2. Settlement—MR 1.8(h): a lawyer cannot settle a malpractice claim with a former
client or unrepresented person unless the client has been advised in writing to seek
independent counsel and has time to do so.
a. Rescission: a client can rescind a settlement when: (1) the lawyer exerted
improper pressure in the settlement, or (2) the client was not independently
represented, and the settlement terms are unfair or unreasonable to the
client.
3. Arbitration—MR 1.8(h): nothing prevents a lawyer from arbitrating a malpractice
claim under an otherwise enforceable agreement if the client gives informed
consent.
F. Malpractice Insurance and Risk Prevention
1. Required by some states: some states require a lawyer to purchase malpractice
insurance and/or disclose to the government and/or client whether the lawyer has
malpractice insurance.
2. Coverage: malpractice plans cover negligence-based liability and vicarious
negligence-based liability but NOT willful torts.
________________________________________________________________________
VI. Litigation and Other Forms of Advocacy
A. Meritorious Claims and Contentions
1. Non-frivolous claims in general—Fed. R. Civ. P. 11: A lawyer must assert claims
based on a good-faith understanding of the facts of the case and the pertinent or
applicable law.
a. Proof of crime: requiring the prosecution to prove every element of a crime,
even if those elements seem obvious is not frivolous— counsel for defendant
need not concede anything.
b. Claims made before discovery: a lawyer is not prevented from making claims
that she expects will be substantiated by facts as the case develops.
c. Claims not supported by law: a good-faith argument for an extension,
modification or reversal of an existing law is not necessarily frivolous.
2. Signature Requirement—Fed. R. Civ. P. 11
a. A lawyer must sign each document submitted to the court to certify that:
b. (1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
c. (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
d. (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity
for further investigation or discovery; and
e. (4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information.
B. Expediting Litigation
1. General Rule—MR 3.2: a lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client, a lawyer has breached this
duty when a competent lawyer acting in good faith would understand the
strategy being used as having no substantial purpose but to cause delay.
2. Client’s benefit not legitimate: the fact that a delay may financially or otherwise
benefit a client is not a legitimate purpose for delaying litigation, the duty is to
the legal system not the client.
3. Continuance or Extension: nothing prevents a lawyer from seeking a
continuance, extension, or even postponement for a substantial reason other
than simply frustrating the opponent with delay.
C. Candor to the Tribunal
1. General Rule: cannot (1) make a false statement of fact, (2) fail to a false
statement of material fact previously made, (3) offer evidence know is false.
a. Knowingly: this means actual knowledge (very high standard), not enough
for lawyer to reasonably believe something is false.
2. Scope of Duty: extends to matters outside the court room but in connection w/
the authority of the tribunal (e.g. preparing depositions, affidavits, and so on).
3. Disclose Adverse Authority: a lawyer must disclose controlling legal authority
that the lawyer knows is directly adverse to his client’s position and has not
been disclosed by opposing counsel.
4. False Testimony or Evidence: a lawyer may not knowingly present false
testimony or evidence (knowledge includes both the fact of the presentation
and its content).
b. Refusal to offer evidence: a lawyer may refuse to present evidence that they
reasonably believe to be false, even if the client instructs the lawyer to
present it.
c. Criminal defendant’s testimony: a lawyer may not refuse to offer a criminal
defendant’s testimony unless the lawyer actually knows (most jxds) that the
testimony is false.
d. Remedial measures: if a lawyer comes to know that he, a witness he called,
or the client offered false material evidence to the tribunal he shall take
reasonable measures to remedy the false hood:
1) Discuss ethical duties w/ client and see if client agrees to
withdrawing the evidence
2) If necessary, withdraw from representation
3) If necessary disclose to the tribunal whatever info is needed to
correct the falsehood, including confidential info to the extent
necessary.
5. Criminal or fraudulent conduct: if the lawyer knows that the client plans to or
does engage in fraudulent conduct related to an adjudicative proceeding (e.g.,
tampering with evidence, bribery, unlawfully concealing evidence) the lawyer
must take reasonable remedial measures up to and including disclosure to the
tribunal.
6. Ex Parte Proceedings: in an ex parte proceeding (non-adverserial), a lawyer must
inform the court of all material facts known to a lawyer to help the tribunal
make an informed, even if the facts are adverse.
7. Duration of Remedial Period: the duty continues until the conclusion of the
proceeding (final disposition affirmed on appeal or time for other review has
expired).
D. Fairness to Opposing Party and Counsel
1. Obstructing access to evidence: a lawyer must not unlawfully obstruct access to
evidence or advise or assist a person in doing so (i.e., alter, destroy or conceal a
document or material of potential evidentiary value).
2. Falsifying evidence: a lawyer must not falsify evidence on instruct or assist a
witness in testifying falsely.
e. Witness inducement or compensation: a lawyer may not offer any incentive
to testify except for a reasonable fee of an expert witness or the reasonable
expenses of a layperson or expert witness testifying.
3. Obedience to tribunal: if a tribunal instructs a lawyer to adhere to a specific rule of
the court, the lawyer must do so unless the lawyer openly and expressly argues that
no such obligation exists.
4. Frivolous discovery: a lawyer must not make a frivolous discovery request or fail to
take diligent steps to comply with a valid discovery request from opposing counsel.
5. Forbidden statements at trial
a. Refer to any matter that the lawyer reasonably believes is unsupported by
relevant or admissible evidence.
b. Assert personal knowledge of facts in issue when not as witness.
c. State own opinion about the justness of a cause, credibility of a witness, guilt
or innocence of a defendant, or culpability of a civil litigant.
6. Influencing provision of info: a lawyer cannot instruct another person to withhold
information except for a client, the client’s family, the client’s agent, or the client’s
employee.
a. Reasonable belief: the lawyer must reasonably believe that the person they
are instructing to keep quite will not come to harm or have their interests
adversely impacted by withholding the information.
E. Trial Publicity
1. General Prohibited: lawyer cannot make a statement when he or she reasonably
should know that the statement (1) will be communicated to the public and (2)
will have a substantial likelihood of materially prejudicing a judicial
proceeding.
2. General Permissible
a. The claim, offenses, and defenses involved in the matter, and the
identity of the persons involved to the extent allowed by law.
b. That an investigation is in progress.
c. The scheduling or any result of a step in the litigation.
d. A request for assistance in obtaining evidence.
e. A warning about the danger presented by the person involved, if there
is reason to believe that substantial harm will likely come to a person or
to the public interest.
3. Criminal Permissible
a. An accused persons, identity, residence, occupation and family status.
b. Information necessary to aid the apprehension of the accused.
c. The fact, time and place or arrest
d. The identity of the investigating and arresting officers or agencies and
the length of the investigation
4. Prohibited for Prosecutors Only
a. Refrain from statements that are likely to heighten public
condemnation of the accused, unless for a legitimate public
information or law enforcement purpose.
b. Take care to prevent law enforcement and other personnel assisting
the prosecution from making statements the prosecution would not be
allowed to make.
5. Protect Client: a lawyer may make an extrajudicial statement or provide
information that a reasonable lawyer would believe is necessary to protect a
client from a substantial undue prejudice effect of a recent publicity that the
lawyer or client did not initiate.
________________________________________________________________________
VII. Transactions and Communications with Non-clients
A.
Truthfulness in statements to others (MR 4.1)
6. False: a false statement is one that does not subjectively conform to the lawyer’s
knowledge of the facts.
7. Material: a statement is material if it bears on the merits of the discussion or is
one upon which the recipient’s further action of consequence may be based.
8. Fraudulent statements and silences: a lawyer cannot make a statement that is
fraudulent or remain silent when the statement or silence would amount to a
fraud (conduct having a purpose to deceive and induces reasonable reliance).
9. Negotiation Setting—MR 4.1
a. Parties: statements made to other lawyers in negotiations are regarded
differently from statements made to nonlawyers. Lawyers may not
legitimately rely on vague misleading statements.
b. Facts: some statements in a negotiation setting are too nebulous to be
regarded as facts or are accepted parts of negotiation that ought to be
evaluated for what they are worth by the other side (e.g., “my client is intent
on pursuing this matter in court).
c. Reduce Agreement to Writing
3) Alterations: the intentional alteration of the agreed to terms in the
process of reducing the agreement to writing is fraud.
4) Matters not expressly covered: some matters are inevitably not
discussed or agreed on, so the document preparer has some
latitude to insert reasonable terms, particularly customary terms of
a trade (e.g. a choice of law term).
5) Disclosing a scrivener’s error: when a non drafting lawyer’s
examination of a document reveals an error in the recording of the
parties’ agreement, the non drafting lawyer is obligated to reveal
the error to the drafting lawyer.
B. Communications with represented persons (MR 4.2)
1. Did a lawyer communicate or direct someone else to communicate another person
involved in the matter of a client’s representation (counterparty, co-party, nonparty agent, class member)?
a. Yes → next
b. No → n/a
2. Is the other person represented in the matter?
a. Yes → next
b. No → n/a
3. Did the lawyer know, or have reason to know, that the other person was
represented?
a. Yes → next
b. No → n/a
4. Was communication the about the subject of the representation? (Note that the
attorney is allowed communicate with represented people about subjects other
than the matter of the representation.)
a. Yes → next
b. No → n/a
5. Does the lawyer have the consent of the other lawyer or is authorization to by
court order?
a. Yes → permissible communication
b. No → impermissible communication
C. Communications w/ Represented Persons Cases
1. Zaug v. State Bar: When must a lawyer terminate a forbidden communication if the
represented person initiates or consents to the communication?
a. Immediately after the lawyer learns that the person is one with whom
communication is not permitted.
2. Niesig v. Team: Which employees of a corporate party also considered “parties,”
thereby prohibiting a lawyer from communicating directly with them ?
a. Employees whose acts or omissions in the matter under inquiry are binding
on the corporation or imputed to the corporation for purposes of its liability;
and employees implementing the advice of counsel.
b. All other employees may be interviewed informally. A blanket ban would
overly impede access to information, but a ban on communicating with just
the “control group” of the corporation would nullify the benefit of the ex
parte communication ban for corporations.
3. In re Disciplinary Proceeding Against Haley: Can a lawyer who is acting pro se
contact a party who is represented by counsel?
a. No. As the comment to model rule 4.2 explains, the rule aims to protect
those represented by counsel “against possible overreaching by other
lawyers who are participating in the matter, interference by those lawyers
with the client-lawyer relationship and the uncounseled disclosure of
information relating to the representation.” The policies underlying the rule
are better served by extending the restriction to lawyers acting pro se.
D. Communications with unrepresented persons (MR 4.3)
10. Affirmative duty: lawyers are under an affirmative duty not to state or imply
that the lawyer is disinterested in the matter about which the lawyer is
communicating.
11. Clarifying duty: when a lawyer should reasonably know that the unrepresented
person misunderstands the lawyer’s interest, in the matter the lawyer is
obligated to clarify.
12. Giving advice: lawyers are prohibited from giving legal advice to unrepresented
persons, except they may give advice to obtain counsel.
13. Fact gathering lawyers must be permitted to gather facts from unrepresented
persons provided the lawyer does so w/o giving advice.
E. Respect for rights of third persons
1. General Rules—MR 1.2(d): a lawyer cannot engage in or procure unlawful acts
on behalf of clients, or advise a client in committing an unlawful or fraudulent
act (or assisting in an ongoing act in which a client is already engaged).
2. General Harassment—MR 4.4(a): a lawyer cannot use “means that have no
substantial purpose other than embarrass, delay or burden a third person.”
3. Witnesses
a. In general—MR 4.4(a): cross-exam, being subpoenaed, and waiting in court
to testify are all unpleasant, but do not violate the rules except when the
lawyer has no substantial purpose but to “embarrass, delay or burden” the
witness.
b. Investigation—MR 4.4(a): lawyers may not use unlawful means to gather
evidence from witnesses.
4. Jurors
a. General: lawyers cannot engage in live contact investigations of jurors and
other harassing conduct (see duty to legal system rules).
b. Investigation—MR 4.4(a): lawyers can investigate a juror’s background by
means of public records w/o contact jurors directly or through agents.
c. Post-verdict: lawyers cannot engage in conduct that will cause jurors to
question the justice system’s use of the verdict but may contact jurors for the
sole purpose of inquiring about the lawyer’s trial performance.
5. Opposing Counsel
a. Notification of Mistake—MR 4.4(b): a lawyer who is the mistaken recipient
of a communication from another lawyer must promptly notify the sender of
the mistake.
________________________________________________________________________
VIII. Different Roles of the Lawyer
A. Advisor
1. Candid and independent: a lawyer must give candid and independent advice (i.e.
not minimize consequences or guarantee and outcome), incorporating the law and
other considerations (e.g., economic, social, moral political).
2. Incorporate non-legal expertise: a lawyer should be willing to incorporate non-legal
expertise when giving advice, especially by encouraging the client to get professional
help from other experts to achieve the goals of the representation (e.g. psychologist,
tax advisor, accountant).
3. Unsolicited advice: a lawyer is not required to give a client unsought advice but
should do so if it appears to be in the client’s best interest (e.g., inform client about
matters that could adversely affect the client’s interest).
B. Evaluator
4. Investigator: if a lawyer is hired to investigate a third-person no lawyer-client
relationship forms between the lawyer and the third person, and the lawyer should
make clear to the third-person that the relationship does not exist.
5. Evaluation for benefit of a third person: a lawyer may provide an evaluation of their
own client for the use of a third person.
a. Compatibility w. duties: if the lawyer reasonably believes that the
evaluation is compatible w/ other aspects of the lawyer client relationship
(i.e., not conflict or breach of duties).
i. E.g., to facilitate a real estate contract, seller’s lawyer inspects seller’s
title to the property for buyer’s assurance, neither lawyer or seller have
any reason to believe seller’s title is defective.
b. Informed consent required: if the lawyer knows that the evaluation is likely
to have a material adverse impact on the clients interest, the lawyer must
obtain the client’s informed consent.
1) E.g., the SEC asks lawyer to report on the legality of securities issued
by lawyer’s client X Corp., lawyer suspects that SEC will fine X Corp.
based on the report, lawyer needs X Corp’s informed consent to
give SEC the report.
c. Confidentiality: except to the extent authorized by the client, the lawyer
must not disclose a client’s confidences for the purpose of an evaluation.
d. Scope of Evaluation: the lawyer and client may agree to limit the scope of an
evaluation to a certain timeframe or limit the information accessed, but
these limits must be described in the lawyer’s report to the third party.
C. Negotiator
1. Truthfulness: although a negotiating lawyer has duty to pursue the client’s goals, the
lawyer still has duty to maintain honest dealings w/ others.
2. Mere puffery: a lawyer does not breach the duty of honesty by engaging in puffery
or salesmanship about immaterial matters like price, value, the client’s intent, or the
client’s resolve.
3. Hidden principal: a lawyer is not required to disclose the principal they are
negotiating for unless not doing so would amount to fraud (induce detrimental
reliance).
D. Neutral Third Party
1. A lawyer acting as a third-party neutral between two or more clients is subject to
local rules on mediation or arbitration in addition to the MPRC.
2. Duty to unrepresented persons: when a lawyer should reasonably know that the
unrepresented person misunderstands the lawyer’s interest, in the matter the
lawyer is obligated to clarify.
E. Prosecutor or Government Lawyer
1. Charging Decisions, Evidentiary Decisions, Treatment of Defendant—MR 3.8
a. No prosecuting when know there is likely no probable cause.
b. Make sure accused knows about right and procedure to obtain counsel and
has an opportunity to do so.
c. Not seek waiver of important rights from unrepresented person, unless the
person is appearing pro se w/ the court’s permission.
d. Disclose exculpatory evidence before trial and mitigating evidence before
sentencing.
e. Not subpoena a lawyer to present evidence about a current or former client
unless info is unprivileged, essential to prosecution, or otherwise
unobtainable.
2. Possible wrongful convictions
a. Disclose to authorities: if a prosecutor learns of new, credible and material
evidence that creates a reasonable likelihood of wrongful conviction the
prosecutor most report that info to the appropriate authorities
b. Disclose to defendant: if the wrongful conviction was in the prosecutor’s
own district, then she must disclose the evidence to the defendant and open
an investigation into the conviction.
c. Get the real perpetrator: if the prosecutor knows of clear and convincing
evidence that establishes the actual wrongful conviction of another person
in the prosecutor’s district, the prosecutor must seek remediation for the
wrongful conviction
F. Non-adjudicative Proceeding
3. Disclosure required: a lawyer appearing in a representative capacity to present
argument and evidence for an non-adjudicative proceeding must disclose that he is
there in a representative capacity (e.g. as a lobbyist for a client)
4. Matters not included:
a. a negotiation with gov’t agency
b. a licensing application
c. a client’s compliance w/ reporting requirements
d. an investigation of the client by agency investigators or examiners
G. Representing an Entity
1. Legal interests of organization: a lawyer represents the interests of an organization,
not its constituents even if the lawyer’s actions are directly supervised or directed by
the constituents.
2. Confidentiality: if an organizational constituent discloses confidential info in their
organizational capacity, the duty of confidence attaches to the info.
3. Shareholder derivative actions: although the corp. is nominally the plaintiff in these
actions, a lawyer can defend the organization and its constituents against its own
shareholders.
a. Serious wrongdoing alleged: if a shareholder derivative action alleges
serious wrongdoing by the organizations controlling constituents, the lawyer
should consult the conflict rules and (1) represent only the org., (2) get
informed consent of constituents and org. if conflict is waivable, or (3)
withdrawal entirely if conflict is unwaivable.
4. Report matters within organization
a. General rule: must report actions of constituents to a higher authority in the
organization if: (1) know that constituent has or intends to commit breach of
legal obligation to org. or other illegal act that could be imputed to the org.,
(2) violation likely to cause substantial harm to the org., and (3) is a matter
within the scope of the representation.
b. Reasonably necessary: the lawyer does not need to report the conduct if it is
not reasonably necessary (e.g., talking to the actor would solve the problem).
c. Disclosure following inaction: if the lawyer (1) reports a clear violation of the
law within the organization, (2) a higher organizational authority fails to act,
(3) the lawyer reasonably believes the violation will result in a substantial
injury to the org. then the lawyer can reveal confidential information to
prevent the violation to law enforcement unless the violation is the subject
of the lawyer’s representation of the org.
d. Withdrawal or discharge: if the lawyer is (1) required or permitted to
withdraw under circumstances requiring reporting to a higher authority or
(2) reasonably believes that he was discharged for reporting to a higher
authority, the lawyer must take reasonable steps to inform the organization’s
highest authority about the discharge or withdrawal.
5. Organization Adverse to Constituents: a lawyer can represent an organization
whose interests are adverse to its constituents but must disclose to the constituents
that:
a. The lawyer does not represent the constituents.
b. Discussion between the lawyer and constituents may not be privileged.
c. The constituents may wish to seek outside counsel.
6. Dual Representation Permissible: A lawyer can represent an organization and its
officers simultaneously unless their interests create an unwaivable conflict.
________________________________________________________________________
IX. Safekeeping Funds and Other Property
A. Establishing Client Trust Accounts—MR 1.15
1. A lawyer cannot commingle the client’s money or property w/ the lawyer’s own
money or property, so the lawyer must establish a trust account for the client’s
funds until the lawyer has earned the fees or expenses are incurred.
B. Exception for Bank’s Fees
1. A lawyer may deposit the lawyer’s own funds in a client trust account for the sole
purpose of paying bank service charges on that account, but only in an amount
necessary for that purpose.
C. Safekeeping Funds and Other Property
1. Once a lawyer receives funds or other property in which a client or third person has
an interest a lawyer shall: (1) promptly notify the client or third person that the
lawyer is in possession, and (2) promptly deliver to the client or third person any
funds or other property that the client or third person is entitled to receive.
2. Upon request of the client or third person, render a full accounting of the property.
D. Disputed Claims
1. When a lawyer is in possession of property in which two or more persons (one of
whom may be the lawyer) claim interests, the property shall be kept separate by
the lawyer until the dispute is resolved.
2. The lawyer shall promptly distribute all portions of the property as to which the
interests are not in dispute or after the dispute is resolved.
________________________________________________________________________
X.
Communications About Legal Services
A. Constitutional Protections
1. Commercial Speech: Commercial speech gets some protection under the First
Amend. Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc. (U.S. 1976).
Client-getting speech is protected, too. Bates v. State Bar of Arizona (U.S. 1977). The
public’s right to receive information is the key rationale, so there are limits on client
getting that a bar association can impose when the speech does not serve the public
interest. Central Hudson Gas & Electric Co. v. Pub. Serv. Comm’n of NY.
2. Intermediate scrutiny: regulations on speech must be narrowly tailored for a
substantial gov’t interest, the main category of permissible restrictions is disallowing
false, misleading, coercive, or promotes illegal transactions.
3. No matters of taste: regulating speech based on dignity or test is impermissible.
B. Key Cases
4. In re RMJ: states cannot discipline a lawyer for advertising truthful and nonmisleading statements about his area of practice concentration (e.g. personal injury,
healthcare, real estate).
5. Zauderer (Dalkon Shield): states cannot discipline a lawyer merely for showing
(truthful and nondeceptive) images in an advertisement; however, expressing that
no fees are owed unless the client recovers is not constitutional b/c it misleads the
client that they will not be liable for any fees or court costs.
6. Ohralik: states can restrict in-person solicitation for pecuniary gain due to its
potential to generate coercion and overreaching.
7. Shapero: direct mailings to prospective clients who are known to be in need of
services advertised are protected (written solicitation less likely to produce coercion
and overreaching).
8. Peel: states may not ban statements of certification or specialization by bona fide
organizations, but a state may approve a list of organizations that can be advertised.
9. Went For It, Inc.: a state may place reasonable and narrow restrictions on directmail advertising to prospective clients who are accident victims or a victims family
member.
C. General Restrictions (MR 7.1)
10. False or misleading—MR 7.1: false, misleading, and unverifiable statements are
generally prohibited, even if they are true but can potentially mislead a layperson
about the lawyer’s qualifications, the affiliation of a firm w/ the government, or fees
and costs.
11. Communications Regarding Specialization—MR 7.2: a lawyer can claim an area of
practice as their speciality if true, but must be certified by an ABA approved agency
and identify that organization in the communication.
12. Testimonials: lawyer ads that use client testimonials are considered inherently
misleading in some states, states that allow testimonial ads require a disclaimer that
the testimony does not amount to a guarantee of a particular outcome for the
prospective clients.
13. Post Event Waiting: to guard against overreaching of accient victims and their
families, some states have imposed waiting periods before any targeted
communications can be made for victims and family members of victims in a mass
disaster or accident.
D. Advertising Particular Restrictions (MR 7.2)
14. Record Keeping: a lawyer must retain a copy of any advertisement for two years
after its last publication (now deleted from model rules but many states retain).
15. Name of Lawyer: all advertisements must include the name and address of at least
one lawyer or law firm responsible for the ad.
16. Solicitation Particular Restrictions(MR 7.3)
1. General Prohibition: a lawyer cannot offer to provide or be reasonably understood
as offering to provide legal services to a specific person or group of persons who the
lawyer knows needs legal services in a particular matter
a. Rejection: a lawyer cannot solicit a person who made known to the lawyer a
desire not to be solicited by the lawyer, even if the lawyers solicitation falls
under one of the exceptions
b. Too much: solicitation cannot involve coercion, duress or harassment.
2. Exceptions
a. Pro-bono: a lawyer can solicit if they were not significantly motivated by the
pecuniary gain of herself or of the law firm (e.g. offering pro-bono service).
b. Non-live: a lawyer can make a solicitation that is not through live and
person-to-person (e.g., email, letter, online post).
c. Known Persons: a lawyer cannot solicit a stranger but can solicit another
lawyer, a family member, friend, prior business or professional associate, or
person who routinely uses the type of legal services offered.
E. Group Legal Services
F. Referrals (MR 7.2)
1. General—A lawyer shall not compensate, give or promise anything of value to a
person for recommending the lawyer’s services.
2. Exceptions
a. Reasonable costs: a lawyer can pay the reasonable costs of advertisements
or communications permitted by this Rule (7.2).
b. Legal service plan: a lawyer can pay the usual charges of a legal service plan
or a not-for-profit or qualified lawyer referral service.
c. Law practice: a lawyer can purchase a law practice under Rule 1.17 w/ good
will or referrals as consideration for the purchase.
d. Referral agreement: a lawyer can refer clients to another lawyer or a
nonlawyer professional pursuant to an agreement that provides for the other
person to refer clients or customers to the lawyer if:
i. the reciprocal referral agreement is not exclusive; and
ii. the client is informed of the nature of the agreement.
b. Nominal gifts: a lawyer can give nominal gifts as an expression of
appreciation that are neither intended nor reasonably expected to be a form
of compensation for recommending a lawyer’s services.
________________________________________________________________________
XI. Duties to the Public and Legal System
A. Pro Bono Service—MR 6.1
7. Guidelines not obligations: the MPRC does not require that a lawyer do pro bono
service for at least 50 hours per year or donate money to organizations that provide
such services equivalent to the dollar value of services the lawyer would otherwise
provide.
8. Limited Means: a substantial majority of pro bono work should be for individuals of
limited means or organizations that serve such people.
9. Statutory attorney’s fees: a lawyer who receive attorney’s fees awarded by statute
while representing someone pro bono still works pro bono and is encouraged to
donate the fees.
B. Accepting Appointments
10. Must accept w/o good cause: a lawyer cannot avoid a court’s appointment to
represent a client w/o showing a good cause like:
a. The representation will likely require the lawyer to violate the laws or the
rules of professional conduct.
b. The representation will be unreasonably burdensome financially for the
lawyer (e.g. matter is very complex, will prevent lawyer from doing other
client’s work).
c. The client or client’s goals are so repugnant to the lawyer that the lawyer’s
ability to represent the client would be impaired.
C. Serving in Legal Aid Organizations
3. Compatible w/ private practice: a lawyer can participate in a legal aid organization
in any capacity, even if the organizational clients’ interests are adverse to the
lawyer’s clients.
a. No conflicts: a lawyer cannot participate in an organization’s decisions or
actions that would (1) create a conflict of interest or (2) adversely impact
the organizations ability to represent a client whose interests are adverse
to one of the lawyer’s clients.
b. No relationship: merely participating in an organization as a director, officer
or member does not constitute a lawyer-client relationship with the
individuals who the org. serves.
4. Limited Engagement: a lawyer can provide short-term services w/ the clients
informed consent and there will be no expectation that the relationship will exceed
the limited consultation.
a. Relationship forms: the rules of confidentiality apply.
b. Lenient Conflicts: all general conflict rules (concurrent, former client,
imputed) only apply to the extent that the lawyer actually knows about the
conflict at the time of the short-term representation.
c. If representation continues: the conflicts rules come back into full force if
the legal representation exceeds the quick-advice session.
D. Law Reform Activities—MR 8.4
1. No relationship created: a lawyer can lend their opinion to an organization
advocating to change a law or regulation w/o forming an attorney-client relationship
with the org.
2. No conflict: a lawyer can serve in this capacity even if the reform being sought
would negatively affect the lawyer’s clients’ interests.
3. Disclose benefits: if a client would materially benefit by the lawyer’s participation in
the decision, the lawyer must disclose that w/o having to reveal the client’s identity.
E. Criticism of Judges—MR 8.2
1. Falsehood or Recklessness: a lawyer is free to opine about the personal or
professional fitness of an adjudicating official unless:
a. The lawyer knows the statement is false
b. The lawyer is aware the statement is probably false
c. The lawyer has serious doubts that the statement is true.
F. Political Contributions—MR 7.6
2. General rule: a lawyer is allowed to make political contributions (i.e., give something
of monetary value) and encourage others to do so.
3. No quid pro quo: a lawyer cannot accept a judicial appointment or gov’t legal
engagement if the lawyer or firm has made or solicited contributions for that entity.
4. Exceptions: a lawyer may accept the appointment if
a. The services will be substantially uncompensated
b. The appointment is merit or expertise-based
c. The lawyer is part of a rotation w/ reference to contributions
G. Improper Influence—MR 8.4(e)
1. A lawyer cannot state or imply that he can influence a government agency or
official through means that violate the law or rules of professional conduct.
a. Good: as former general counsel for FDA, I have the special knowledge of the
NDA process that will help my clients get their drugs approved.
b. Bad: as a former D.A., I have contacts in the prosecutor’s office that I can
leverage to obtain a favorable result for clients.
H. Assisting Judicial Misconduct—MR 8.3 and 8.4
1. General prohibition: a lawyer cannot knowingly assist a judge in violating the law or
an ethical rule of judicial conduct.
2. Reporting mandate: a lawyer has an affirmative duty report a judge when he knows
the judge has committed an act that violates the law or an ethical rule that raises a
substantial question about the judge’s fitness.
________________________________________________________________________
XII. Judicial Conduct
A. Scope of CJC
1. General—CJC§I(B): a judge is an officer of the judicial system who decides cases.
2. Need not be a lawyer—CJC§I(A): most judges are also lawyers, so the PRs governing
lawyers apply to judges as well, but nonlawyers are judges in various lower courts
(e.g., magistrates, referees, commissioners, special masters).
3. Not just fulltime—some rules in the CJC apply only to full-time judges but the CJC’s
provisions are relevant to retired judges, continuing part time judges, periodic parttine judges, and pro tempore judges.
B. Judicial Duties
1. Impartiality—CJC 2.5: most central attribute of judges’ role, no bias regarding
parties because of personal, fiduciary, or economic interests in the party or subject
matter of the litigation.
2. Competence—CJC 2.5: judges must maintain competence in law and decision
making. In some jurisdictions, this requirement has been interpreted to require
judges to attend CE.
3. Diligence—CJC 2.5: judges are required to be diligent in the discharge of duties by
processing and resolving cases and motions filed in their court without unnecessary
delay.
4. Decorum—CJC 2.8: judges are required to maintain court room decorum and have
the power to discipline those in their courtrooms, subject to an abuse of discretion
standard.
5. Patience—CJC 2.8: a judge must exhibit patience, even when maintain decorum and
diligence.
6. Avoid Bias and Prejudice—CJC 2.3(A)
a. In judicial function: in addition to racial, gender, and ethnic biases, judges
must avoid bias in favor of friends or associates and against particular causes
or groups of lawyers.
b. Restraining lawyer bias: judges are required to restrain lawyer bias, although
no to the extent of prohibiting legitimate argument.
c. Making appointments—CJC 2.13(A): judges are required to make
appointments that their office permits on the basis of merit and not based
on nepotism or favoritism.
C. Ex Parte Communications
1. Definition: an ex parte communication, whether written or oral, is one that involves
fewer than all the parties or their counsel to a matter, that is about a pending or
impending matter, and that is made by the judge presiding in the matter.
a. Rationale: ex parte communications undermine the premise of the
adversarial system by affording some parties opportunities to influence the
judge’s decision making in the absence of other parties.
b. Good faith not an excuse: even when a judge engages in ex parte
communications for good but not authorized-by-law reasons, the judge is
subject to discipline.
c. Pending matter discussion presumed: In the absence of evidence ot the
contrary, a private communication between a judge and a lawyer with a
metter pending before the judge will be presumed to have been about the
pending matter. Kennick v. Comm’n on Judicial Performance (Cal. 1990).
d. Timing: a case continues to be a pending matter until its final disposition.
2. Exceptions
a. Housekeeping—CJC R. 2.9(A)(1): communications for scheduling or
administrative purposes do not violate the ex parte communication rules,
provided the judge: (1) reasonably believes that no party will gain an
advantage from the communication, (2) makes provision promptly to notify
all other parties, and (3) gives the parties an opportunity to respond.
b. Disinterested experts—CJC R. 2.9(A)(2): judges may consult with other
judges and with disinterested experts on the law if before the consultation,
the judge identifies the person to the parties and affords the parties an
opportunity to respond.
c. Court clerks—CJC R. 2.9(A)(3): judges may consult with clerks about the law
in the absence of the parties without restriction, but judicial clerks may not
do independent fact investigations and then communicate results to the
judge (e.g., clerk cannot go to Plaintiff’s factory an observe the operation of
machines that were the subject of a factual dispute and report back to judge)
Price Bros. Co. v. Phil. Gear Corp. (6th Cir. 1980).
d. Authorized by law: other law authorizes ex parte communications in various
limited circumstances, such as requests for emergency temporary restraining
orders, applications for wire taps, and when a party has been given notice of
a hearing but fails to appear.
D. Other Communications
a. Public comments—CJC Rule 2.10(A): cannot make public or private comments
about pending matters that risk the fair outcome of the matter.
b. Criticism of Jurors—CJC Rule 2.8(C): aside from expressing appreciation, judges
cannot compliment or criticize juror’s decisions in a matter.
E. Reporting Misconduct
1. Other judges: judges have an obligation to report other judges’ misconduct
a. Permissive reporting—CJC 2.15(C): judges “shall take appropriate action” (which
may in the judge’s discretion mean reporting misconduct) when a judge receives
information that raises a “substantial likelihood that another judge” has violated
the CJC.
b. Mandatory reporting—CJC R. 2.15(A): a judge “shall inform the appropriate
authority” when the judge has “knowledge” that another judge has committed
misconduct “that raises a substantial question” about the judge’s fitness for
office.
2. Lawyers: judges are required to report certain lawyer misconduct.
c. Permissive reporting—CJC 2.15(D): judges “should take appropriate action”
(which may in the judge’s discretion mean reporting misconduct) when a judge
receives information that raises a “substantial likelihood that a lawyer” has
violated the state’s ethics rules.
d. Mandatory reporting—CJC 2.15(B): a judge “shall inform the appropriate
authority” when the judge has “knowledge” that a lawyer has committed
misconduct “that raises a substantial question: about the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects.
3. Privilege: a judge’s report of misconduct is privileged from civil actions for damages.
F. Disqualification
1. Objective and subjective test: “a judge shall disqualify himself or herself when… the
judge;s impartiality might reasonably be questioned.” CJC 2.11 (A). However, a judge
must also be subjectively free from bias.
2. Rule of necessity: occasionally, an issue arises that would disqualify every judge
sitting on a court w/ jurisdiction to resolve the issue. When that occurs, the “rule of
necessity: says that judges are not disqualified. Hughes v. Oregon (Or. 1992).
3. Grounds for disqualification
a. Disqualifying Bias: disqualifying bias must be against a party and arise from a
source outside the present litigation (e.g, judge made a public statement
criticizing strikes by public employees, but judge was not disqualified from
hearing a matter about ordering Teacher’s Union to go back to work). Papa v.
New Haven Federation of Teachers. (Conn. 1982) or (e.g., judge develops a
strong dislike of Party because of Party’s disruptive conduct in court, this strong
dislike is not disqualifying).
4. Personal Sources of Bias
a. Family—CJC 2.11(A)(2): a judge is disqualified from hearing a matter involving
the judge’s spouse or a person within the third degree of relationship as a party,
lawyer, or material witness in the matter.
b. Law clerks: a judge is not disqualified when a former law clerk or intern
represents a party, except when the clerk was a clerk during the early stages of
the same matter before the court and later undertook representation of the
party or the clerk or intern was simultaneously working for the court and in
practice with a firm representing a matter pending before the court.
c. Campaign supporters: a judge is not per se disqualified when an ordinary judicial
election campaign contributor of the judge is a party or lawyer in the matter.
Nathanson v. Korvick (Fla. 1991). However, the relative size of the contribution,
timing of the contribution, and impact of the contribution is disqualifying if it
creates a serious risk of apparent or actual bias. Caperton v. Massey Coal Co.
(U.S. 2009). However, the judge is automatically disqualified when the judge’s
campaign coordinator or campaign committee member is a party or a lawyer in
the matter. Mackenzie v. Super Kids Bargain Store. (Fla. 1990).
d. Social relationships: only close social relationships between a judge, party,
lawyer or material witness are disqualifying—judges are expected to put less
important relationships aside when judging.
e. Prior relationship to the matter: judges can have prior relationships to the
matter or persons involved in the matter before them (i.e., lawyers, parties,
witnesses).
f. Judge was the lawyer: a judge is disqualified from hearing a matter or a matter
substantially related to one in which the judge was previously a lawyer.
g. Judge formerly associated with lawyer—CJC 2.11(A)(6)(a): the judge is
disqualified when a she was associated with one of the lawyers while the lawyer
was representing the party in the same matter or a substantially related matter.
h. Judge is a material witness—CJC 2.11(A)(6)(c): when a judge is a material
witness in a a matter, the judge is disqualified.
i. Prior knowledge of disputed facts—CJC 2.11(A)(1): when a judge has prior
personal knowledge of disputed evidentiary facts regarding the matter, the
judge is disqualified.
5. Economic Sources of Bias
a. Type of interest—CJC 2.11(A)(3): the disqualifying interest under this rule must
be economic; it may be in either the subject matter of the controversy or a party
to the proceeding.
b. By whom and in what capacity: the disqualifying interest may be held by the
judge personally or as a fiduciary, by a member of the judge’s family residing in
the judge’s household, or by the judge’s spouse or a person within the third
degree of relationship to the judge.
c. How affected—CJC 2.11(A)(2)(c): the interest must be one that “could be
substantially affected by the proceeding.” However large the interest might be,
minor or highly speculative effects on it are not disqualifying.
d. Magnitude of interest—CJC 2.11(A)(2)(c): a de minimis interest in the subject
matter or party to the proceeding is not disqualifying.
e. Knowledge: only interests that are known to the judge are disqualifying, but a
judge has a duty to keep informed about the judge’s and his or her spouse’s and
minor children’s economic interests. When an otherwise disqualifying interest is
divested immediately upon discovery, a judge is permitted to continue to
preside.
G.
Remittal of Disqualification
1. CJC: parties may not waive the judge’s personal bias regarding a party but may
waive any other form of disqualification.
2. Federal Law: the parties may waive disqualification only when it follows from the
general standard, that is, when the judge’s “impartiality might reasonably be
questioned”— less waivable than under the CJC.
3. Procedure—CJC 2.11(c): For the waiver to be effective, the judge must disclose the
nature of the disqualifying interest on record, and the parties must agree without
the judge’s participation that the judge should continue in the matter on record.
H. Extra-judicial activities
1. Avoid impropriety and appearance of impropriety—CJC R. 1.2: judges should avoid
conduct that “would create in reasonable minds a perception that the judge violated
this Code or engaged in other conduct that reflects adversely on the judge’s
honesty, impartiality, temperament, or fitness to serve as a judge.”
2. Comply with the law—CJC R. 1.1:
a. No conviction necessary: a judge’s contrary-to-law conduct need not result in
a conviction before judicial discipline can be imposed (e.g. judge admits to
substance abuse problem and voluntarily begins treatment) Starnes v.
Judicial Retirement Comm’n (Ky. 1984).
b. Intentional or bad faith refusal to follow precedent and other mandatory
authority can also make a judge subject to discipline for failing to follow the
law in his or her decisions. In re Hague (Mich. 1982).
3. Preserving prestige of judicial office: judges are prohibited from lending the
prestige of their offices to private interests (e.g., using ct. stationery for personal
interests or to advance private interests). See CJC R. 1.3(E) Cmmt. 1.
4. Judges as witnesses
a. As fact witness: as long as a judge is not presiding over the proceeding, a
judge may be called as a fact witness— the mere fact that a judge may be an
influential witness is insufficient to excuse the judge-witness from the
obligation to testify.
b. As character witness—CJC R. 3.3: a judge is prohibited from testifying as a
character witness except when duly summoned (i.e., the judge must be
subpoenaed and obey the subpoena).
5. Organization membership—CJC Rule 3.6(A): a judge cannot join a hate group,
6. Speaking, writing, teaching—CJC R. 3.1 Cmmt. 1: judges are generally allowed to
teach, speak and write about the law with some limitations.
a. Pending cases: judges must be cautious discussing pending cases and refrain
from making public or nonpublic comments that risk the fairness of the
proceedings.
b. Judicial duties take precedence: teaching duties must be secondary.
c. Appearance of bias: a judge must avoid creation of an appearance that the
judge would not enforce the law or decide cases fairly (e.g. judge wrote an
editorial letter opposing the death penalty in a state that has the death
penalty, giving the impression the judge will not impose the penalty when
the law calls for it).
7. Government activities: judges can engage in legislative and public hearings and
consult about legal matters with the executive or legislative branches.
8. Civic and charitable activities—CJC Rule 3.7(A): a judge may participate in activities
sponsored by a non-profit organization unless the organization is likely come before
the judge’s court or will be regularly involved in litigation in any court.
a. Fundraising: judges may not engage in direct fundraising for organizations
unless it is soliciting donations from members of the judge’s family or from
judges over whom the judge does not exercise supervisory or appellate
authority.
9. Financial activities—CJC R. 3.11(B): a judge may not be a director, officer, manager,
partner, advisor, or employee of a business except for a closely held family business.
10. Fiduciary activities—CJC R. 3.8(A): a judge cannot serve as an executor,
administrator, trustee, guardian or other fiduciary, except for when those services
are for a family member.
11. Practicing law—CJC R 3.10: a full-time judge cannot practice law, except to serve
the interests of herself or family members, as long as she does not serve as “the
family member’s lawyer in any forum.”
12. Outside Income: when judges are permitted to earn outside income (teaching,
writing, speaking, etc.), such income must be limited to reasonable amounts for the
services rendered an must not appear to compromise the judge’s integrity and
impartiality.
a. Gifts and favors: judges cannot accept gifts or favors from a person whose
interests are likely to be before the judge or are before the judge, but gifts
are appropriate for special occasions are permitted.
b. Reporting income—CJC R. 3.15(A): judges must file annually a public
document of the nature and amount of compensation received.