Outline of the Law Governing Lawyers
John Steele
JOHN STEELE, ATTORNEY AT LAW
2225 E. BAYSHORE ROAD; SUITE 200
PALO ALTO, CA 94303
WWW.JOHNSTEELELAW.COM
JOHN.STEELE@JOHNSTEELELAW.COM
© John Steele (2012)
ABOUT THE AUTHOR: John Steele is a solo practitioner, representing clients on matters of legal ethics,
professional liability, risk management, and the law of lawyering. For over fifteen years, he served as
the top internal ethics lawyer at an AmLaw 100 firm, where he was Special Counsel for Ethics, and at
an AmLaw 200 firm, where he was a trial lawyer and litigation partner. He has taught professional
responsibility for over thirty semesters at UC-Berkeley School of Law, Stanford Law School, Santa
Clara University, Golden Gate University, and Indiana University – Maurer School of Law. The Second
Circuit recently cited and relied upon a law review article authored by Mr. Steele in a case of first
impression on an important conflict of interest issue. (GSI Commerce Solutions v. BabyCenter, LLC,
618 F.3d 204 (2nd Cir. 2010)) He has served on a variety of professional committees, including the
State Bar of California’s standing Committee on Professional Responsibility and Conduct (COPRAC),
and serves an arbitrator in fee disputes. He speaks widely to professional audiences, including
providing CLE credits, on issues of legal ethics and risk management, elimination of bias in the legal
profession, substance abuse, and law practice management, and is a co-founder of a leading blog on
legal ethics, LEGAL ETHICS FORUM (www.legalethicsforum.com).
ABOUT THE ILLUSTRATIONS ON THE COVER: The two illustrations symbolize the same concept: the
lawyer’s duties to the client are balanced against the lawyer’s duties to society in general and to
particular social systems (e.g., courts, the public markets, etc.) with which the lawyer is interacting.
FUNDAMENTAL AXIOM OF LEGAL ETHICS: In criminal prosecutions, the prosecutor owes fair process and
a fair result to the accused and to society; in all other matters, the lawyer owes fair process to society
and owes to the client as advantageous a result as the relevant legal process provides; in particular,
in criminal defense representations, the relevant legal process permits criminal defense lawyers to
present and contest issues in ways that other lawyers may not.
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TABLE OF CONTENTS
I. Regulation of the Legal Profession ................................................................................................ 7
A. Who Regulates the Profession? ..................................................................................................... 7
1. State Courts (Administrative Governance) .......................................................................................... 7
2. State Bar Associations .................................................................................................................................. 7
3. State Legislatures ........................................................................................................................................... 7
4. State Law (Substantive Law) ..................................................................................................................... 7
5. Federal Law....................................................................................................................................................... 7
6. The American Bar Association (ABA) .................................................................................................... 8
B. Admission to the Profession .......................................................................................................... 8
1. Truthfulness in the Admissions Process ................................................................................................ 8
2. Character & Fitness (C&F) Requirements ............................................................................................ 8
3. Valid and Invalid C&F Requirements ..................................................................................................... 9
C. Regulation after Admission ............................................................................................................ 9
1. Bar Discipline ................................................................................................................................................... 9
2. Professional Discipline: Substantive Violations .............................................................................. 10
3. Professional Discipline: Procedures and Law.................................................................................. 10
D. Peer Responsibility for Regulation of Lawyers ................................................................... 11
1. Supervisors and Subordinates ............................................................................................................... 11
2. Law Firms ....................................................................................................................................................... 11
3. Mandatory Reporting ................................................................................................................................. 12
E. Legal Regimes Governing Lawyers .......................................................................................... 12
1. Criminal Law.................................................................................................................................................. 12
2. Disciplinary Law .......................................................................................................................................... 12
3. Civil Law .......................................................................................................................................................... 12
4. Disqualification Law ................................................................................................................................... 12
5. Litigation Sanctions .................................................................................................................................... 12
II. Lawyers’ Over-Arching Duties to the Legal Profession...................................................... 13
A. Obey the Law .................................................................................................................................... 13
1. Criminal Law.................................................................................................................................................. 13
2. Fraudulent Conduct .................................................................................................................................... 13
3. Exceptions to the Duty to Obey the Law ............................................................................................ 13
B. Maintain Professional Boundaries; Who May Practice Law & Where ........................ 13
1. Do Not Engage in or Assist Unauthorized Practice of Law (UPL)............................................ 13
2. Law-Related Services by Lawyer .......................................................................................................... 14
3. Geographic Limitations on Practice ..................................................................................................... 14
C. Maintain Prof’l Boundaries: Financial Participation in the Legal Profession ........... 15
1. Maintain Independence of the Profession......................................................................................... 15
2. Sharing Legal Fees with Non-lawyers ................................................................................................. 15
3. Non-Client Payers of Legal Fees ............................................................................................................ 16
4. Practice of Law with Non-Lawyers ...................................................................................................... 16
5. Contractual Restrictions on Practice ................................................................................................... 16
6. Sale of Law Practice .................................................................................................................................... 16
D. Pro Bono and Public Service ...................................................................................................... 17
1. General Duty .................................................................................................................................................. 17
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2. Types of Public Service.............................................................................................................................. 17
III. Getting Clients: Communications, Advertising, Solicitation, and Referrals ............. 17
A. The Constitutional Limitations on Regulation of Lawyer Speech .................................. 18
1. Commercial Speech and Intermediate Protection ......................................................................... 18
2. Bans on False or Misleading Speech .................................................................................................... 18
3. Bans on Coercive Speech .......................................................................................................................... 18
B. Definitions and Rules .................................................................................................................... 18
1. “Communications”....................................................................................................................................... 18
2. “Advertising” ................................................................................................................................................. 18
3. “Solicitation” .................................................................................................................................................. 19
C. Firm Names and Letterheads...................................................................................................... 19
1. False or Misleading ..................................................................................................................................... 19
2. Trade Names.................................................................................................................................................. 19
3. Geographic Limits on Names .................................................................................................................. 19
4. Lawyer Holding Public Office ................................................................................................................. 20
D. Referrals by Others ........................................................................................................................ 20
1. Basic Prohibition on Paying for Referrals ......................................................................................... 20
2. Forbidden Referrals.................................................................................................................................... 20
3. Permitted Referrals .................................................................................................................................... 21
IV. Duties between Lawyers and Clients during the
Attorney Client Relationship (ACR) ............................................................................................... 21
A. Lawyerly Rights and Duties before ACR is Created............................................................. 21
1. Rules on Communications, Advertising, and Solicitation ........................................................... 21
2. Meetings with Prospective Clients ....................................................................................................... 21
B. Accepting and Rejecting ACRs .................................................................................................... 22
1. “Must Accept” ACRs .................................................................................................................................... 22
2. “Should Accept” ACRs ................................................................................................................................ 22
3. “May Not Accept” ACRs ............................................................................................................................. 22
C. Creation of the ACR......................................................................................................................... 23
1. Tests for Creation of ACR ......................................................................................................................... 23
2. Definition of the ACR .................................................................................................................................. 23
D. Client Identity .................................................................................................................................. 23
1. Natural Person Clients ............................................................................................................................... 23
2. Organizations as Clients............................................................................................................................ 24
3. Multiple Clients............................................................................................................................................. 26
E. Scope of the Engagement.............................................................................................................. 27
F. Duties Flowing from Lawyer to Client during ACR (Fiduciary Duties) ........................ 27
1. Decision-making (“Abide &Consult”) .................................................................................................. 27
2. Communication ............................................................................................................................................. 28
3. Competence..................................................................................................................................................... 28
4. Diligence/Zeal ................................................................................................................................................ 30
5. Confidentiality, Privilege & Work Product Protection .................................................................. 30
6. Loyalty ............................................................................................................................................................... 34
7. Independent Judgment ............................................................................................................................... 44
8. Safeguarding Property................................................................................................................................ 44
G. Duties related to Attorneys Fees ............................................................................................... 46
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1. Nature of the Duty ....................................................................................................................................... 46
2. Ethical Duties related to Fees ................................................................................................................. 46
H. Termination of the ACR ................................................................................................................ 47
1. Tribunal’s Permission Needed after Appearance .......................................................................... 47
2. Termination by Client ................................................................................................................................ 47
3. Termination by Lawyer: Shall Withdraw .......................................................................................... 48
4. Termination by Lawyer: May Withdraw............................................................................................ 48
5. Termination by Completion of Work .................................................................................................. 48
6. Termination by Operation of Law ........................................................................................................ 49
7. Procedure for Withdrawal ....................................................................................................................... 49
8. Duties Pertaining to Termination ......................................................................................................... 49
I. Duties after ACR is terminated.................................................................................................... 50
1. Confidentiality .............................................................................................................................................. 50
2. Forwarding Information/Correspondence....................................................................................... 50
3. Loyalty Tied to Confidentiality............................................................................................................... 50
4. Loyalty Not Tied to Confidentiality ...................................................................................................... 50
V. Lawyers’ Duties to Third Parties & Social Systems during the Attorney Client
Relationship ........................................................................................................................................... 50
A. Duties to Non-Clients during the ACR...................................................................................... 50
1. Duties to All Third Parties ........................................................................................................................ 50
2. Duties to Represented Parties ................................................................................................................ 52
3. Duties to Unrepresented Parties ........................................................................................................... 52
B. Role-based Duties to Social Systems during the ACR ........................................................ 53
1. Litigator/Advocate...................................................................................................................................... 53
2. Evaluator ......................................................................................................................................................... 55
3. Counselor/Advisor...................................................................................................................................... 56
4. Negotiator ....................................................................................................................................................... 56
VI. Judicial Ethics ................................................................................................................................. 56
A. Canon 1: Independence, Integrity, and Impartiality; Avoiding Impropriety and the
Appearance of Impropriety). ........................................................................................................... 56
B. Canon 2: Impartiality Competence, and Diligence. ............................................................. 57
C. Canon 3: (Personal and Extrajudicial Activities).................................................................. 60
D. Canon 4: Political or Campaign. ................................................................................................. 62
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Appendix A: Concise Summary of Consents under ABA Model Rules ....................................................... 64
Appendix B: Detailed Summary of Consent, Disclosure, and Notification
in the ABA Model Rules and the California Rules of Professional Conduct ........................ 65
Appendix C: Principal Differences between California and ABA Ethics Rules ........................................ 70
Appendix D: List of Ethics Issues on Recent California Bar Examination Essay Questions ................. 73
Appendix E: Index by Rules (MR and CRPC) .................................................................................................... 76
Appendix F: A Mnemonic Driven Model for PR Essay Questions on the Bar Exam ................................ 77
Appendix G: Glossary............................................................................................................................................. 82
Appendix H: Spotting Issues of Fee Sharing, Fee Splitting, and Referral Fees......................................... 83
Appendix I: Summary of Exceptions to the Duty of Confidentiality ........................................................... 84
Appendix J: Chronology of Ethics Codes and Other Major Developments in Legal Ethics ................... 85
Appendix K: List of Various Ethics Standards/Codes .................................................................................... 86
Appendix L: List of Various Types of Clients ................................................................................................... 87
NOTE ABOUT FORMATS:
ABA Model Rules are designated: (x.x)
Superscripts refer to Appendices that may provide further information.
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I.
Regulation of the Legal Profession
A. Who Regulates the Profession?
1. State courts (especially state supreme courts).
a. State supreme courts oversee the legal profession in that state and manage the
state bars and discipline process.
b. State trial and appellate courts regulate lawyers appearing before them. This
includes rules of procedure, discovery rules, and, in federal courts, Federal Rule of
Civil Procedure 11, which forbids frivolous and baseless litigation and tactics.
2. State bar associations.
a. Mandatory bars. (All lawyers who wish to practice law in that state must join the
bar association; majority approach in the US.)
b. Voluntary bars. (Lawyers decide if they wish to join the bar association; minority
approach in the US.)
3. State legislatures.
a. When a state legislature attempts to regulate the bar, there is a potential
separation of powers issue under that state’s constitution. States vary in how
aggressively they protect the state supreme court’s control over the bar.
b. California has extensive legislative control over the bar. In the State Bar Act (Cal.
Bus. &Prof. Code §6000, et seq.), the legislature has pervasively regulated the
formation and operation of the bar.
(1) Fee agreements are regulated in the State Bar Act.
(2) Due to historical accident, the lawyer’s duty of confidentiality was
defined by the legislature in the State Bar Act, rather than in the ethics rules
(i.e., the California Rules of Professional Conduct). Today, the ethics rules
mirror the State Bar Act regarding the duty of confidentiality.
(3) The State Bar of California is a public corporation created by statute,
and all licensed lawyers are members of the corporation.
4. Substantive state law.
a. Criminal law governs lawyers.
b. Civil law governs lawyers. This includes the law of legal malpractice, breach of
fiduciary duty, and fraud.
5. Federal law:
a. Agency ethics codes. Most federal agencies have promulgated ethics codes for the
lawyers appearing and practicing before the agency. For examples, pursuant to the
Sarbanes-Oxley Act, the Securities and Exchange Commission, which regulates
publicly traded companies, has issued an ethics code for lawyers appearing and
practicing before the SEC.
b. Legislation. Increasingly, Congress has passed legislation that appears to apply to
activity commonly undertaken by lawyers. Because the regulation of lawyering has
traditionally been a matter of state law, the ABA and lawyers have asked the federal
courts to interpret such laws not to include lawyers. But the current US Supreme
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Court seems inclined to interpret those laws of general applicability to include
lawyers.
Example: Congress passed a law forbidding all persons from advising
people to load up on additional debt just before filing for bankruptcy. The
United States Supreme Court held that the law applied to lawyers.
c. Agency regulation. Increasingly, federal agencies are seeking to substantively
regulate the practice of law. For example, the FTC has attempted to regulate
lawyers to the extent that they are creditors of clients.
d. Court rules and procedures. Codes of civil procedure often regulate the advocacy
of the lawyers appearing before the court. Perhaps the best known example is Rule
11 of the Federal Rules of Civil Procedure, which limits frivolous advocacy.
e. Federal treaty obligations. Increasingly, the federal government is entering into
trade agreements and other international commitments that regulate legal practice.
Because federal law is the supreme law of the land, these regulations may preempt
traditional, state-based regulations.
Example: Suppose that during a round of international trade talks, the
United States agrees that Australian lawyers may represent Australian
citizens on legal matters even when the Australian lawyers are located in
the United States. Such a federal law would preempt state regulation of the
practice of law and the states would not have the power to forbid the
Australian lawyers from doing what the federal law permits.
6. The American Bar Association (ABA) does not formally regulate the legal profession. Its
ethics rules are simply a model code that states are free to adopt, modify, or reject. But the
ABA does exert enormous influence over the regulation of the legal profession at the state
and federal level by promulgating standards that are adopted by courts, agencies, and bar
associations.
B. Admission to the Profession.
1. Truthfulness in admission process.
a. When applying for admission to the bar, a strong duty of candor is required.
b. Applicants can make no false statements when applying for admission. (8.1(a)).
c. Applicants have an affirmative duty to respond to questions from admissions
authorities. (8.1(b))
d. Applicants have an affirmative duty to correct any factual misapprehension of the
authorities (8.1(b)).
e. This strong duty of truthfulness also applies when lawyers are being disciplined.
Example: Applicant realizes that the state bar’s admissions committee
mistakenly believes that applicant has no prior arrests. Even if applicant did
not create the confusion, lie about arrests, or conceal arrests, applicant has
a duty to dispel the committee’s misapprehension.
2. Character & Fitness (“C&F”) requirement.
a. This is a constitutionally permitted requirement.
b. Right to due process hearing.
c. Rehabilitation is considered. (E.g., lawyers who have suffered from mental illness
or substance abuse, or who have committed a crime, may offer evidence of
rehabilitation.)
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3. Valid and invalid considerations in C&F determinations for admission:
a. Valid considerations in C&F determinations:
(1) Criminal conduct.
(2) Concealment of bad acts.
(3) Advocating unlawful or violent overthrow of the government. (Note: a
lawyer may not advocate unlawful, violent or illegal overthrow of the
government. Lawyers may advocate peaceful or lawful changes in
government.)
(4) The applicant’s refusal/agreement to take an oath of allegiance to laws
and constitution may be considered.
(5) Acts of moral turpitude (i.e., acts showing lack of honesty), which
include:
Definition:G This unusual term, “moral turpitude,” is a key term of
art in the law of lawyering. Learn it! Although modern legal ethics
codes use the term less frequently than in the past, the term refers
to conduct that is inherently deceitful and immoral. Getting a
parking ticket isn’t an act of turpitude. But lying about getting a
ticket is. Moral turpitude includes:
(a) Dishonesty and fraud.
(b) Theft.
(c) Concealment of improper conduct.
(d) Conduct prejudicial to justice.
(e) Suggesting that you possess improper influence over judges and
officials.
(f) Assisting a judge or official violate their ethics and rules.
(g) Note: A lawyer may be disciplined for acts of moral turpitude
occurring anywhere in their life—not just for acts while lawyering.
Example: Lawyer, who is licensed to practice in Montana,
takes a vacation in Hawaii, enters a fishing contest, and lies
about his catch in order to win a trophy. Result: lawyer has
committed an act of moral turpitude and may be
disciplined by the state bar in Montana.
b. Invalid considerations in C&F determinations:
(1) Citizenship, state or federal.
(2) Residency.
(3) Political views.
C. Regulation after Admission
1. Bar Discipline. We need to distinguish the “discipline” systems from other legal regimes
that punish bad lawyers:
a. The “discipline system” is typically run by the state bar or by volunteers working
for it. (Discipline can also be administered within a federal agency or a federal
court.) Historically, it’s usually been considered quasi-criminal and punitive in
nature, because it has the power to forbid a person from pursuing his or her
occupation. (More recently, some states are trying to make state bar discipline
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more like any other administrative licensing process and less like a quasi-penal
process.) The discipline system cannot impose money damages or incarceration; it
can impose disbarment, suspension, probation, and censure (admonishment), and
fees and costs of the discipline process.
b. Other regimes. As we will discuss below, (§ I.D.) lawyers can also be subjected to
criminal prosecution; civil law suits for negligence, breach of fiduciary duty, or
breach of contract; motions to disqualify the lawyer from further participation in a
matter; and discovery sanctions for abusive positions in civil or criminal pretrial
discovery. Try to keep these regimes distinct as you discuss and analyze them.
They have different purposes and standards.
2. Professional discipline - substantive violations. Lawyers are subject to professional
discipline for:
a. Criminal conduct.
b. Non-criminal acts of “moral turpitude.”G
c. Violations of the ethics rules.
d. Secondary liability for misconduct. Lawyers may be disciplined for:
(1) Assisting other lawyers or judges to commit disciplinable offenses.
(2) Using others to commit offenses on their behalf.
3. Professional Discipline - procedures and law.
a. The process normally includes a written complaint; an opportunity to respond; a
hearing; and an appeal.
b. Lawyer owes the “duty of candor” to the disciplinary authorities. Lawyers being
disciplined have the same strong duty of candor toward the disciplinary authorities
that applies to people seeking admission to the bar, as discussed above at §IB1.
(1) The lawyer has no right to refuse to incriminate herself.
c. Lawyer has due process rights.
d. Disabilities (e.g., alcoholism) are considered and opportunities to attempt
rehabilitation should be afforded.
e. Choice of law:
(1) When the alleged violation occurred before a court or tribunal, the
ethics rules of that tribunal govern the lawyer’s conduct.
Example: Lawyer is licensed to practice in Wyoming and then is
admitted to practice pro hac viceG (“for that matter”) in Colorado,
where lawyer engages in fraud during a trial. Lawyer is subject to
discipline in both Wyoming and Colorado, and the ethics rules of
Colorado will apply in the discipline proceedings in Wyoming and
Colorado. (Note: The ethics rules of both states are probably
identical on that issue, but that’s not true for all ethical violations.)
(2) For other violations, the site of bad conduct governs. For the vast
majority of discipline matters, that will be a state where the lawyer is
licensed and practices laws.
f. Collateral use of finding of discipline violation:
(1) States make automatic collateral use of discipline imposed by other
state bars.
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Example: A lawyer is licensed in Maryland and California.
The State Bar of Maryland finds that the lawyer violated its
ethics rules. The State Bar of California would discipline
the lawyer without an independent hearing on whether
the lawyer violated Maryland’s ethics rules.
(2) Federal courts undertake independent investigations and do
not make collateral use of the discipline findings of other bars.
Example: Lawyer is licensed in Maryland and California,
including the USDC for the District of Northern California.
The State Bar of Maryland finds that the lawyer violated its
ethics rules. The USDC for the Northern District of
California would not discipline the lawyer based solely
upon the findings of the Maryland bar, but rather would
open an independent investigation of the lawyer’s conduct.
D. Peer Responsibility for Regulation of Lawyers
1. SupervisorsG and subordinatesG
a. The rules (5.1) mention two kinds of bosses:
(1) “Partners” and persons of “comparable managerial authority,” “whether
they be in law firms or law departments, must ensure that the firm has
“measures,” that is, “internal policies and procedures,” giving reasonable
assurances that the firm’s lawyers are conforming to the ethics rules. (5.1)
(a) They must also have measures to ensure that any non-lawyers
they supervise behave in a way that is compatible with the lawyer’s
ethical duties. (5.3)
(2) Lawyers with “direct supervisory authority over other lawyers” shall
take reasonable steps to ensure that the supervised lawyer is conforming to
the ethics rules. (5.1)
(a) They must also take steps to ensure that any non-lawyers they
supervise are acting in ways that are compatible with the
supervisor-lawyer’s ethical duties. (5.3)
(3) Both kinds of bosses are responsible for ethical breaches by other
lawyers or non-lawyers if the boss orders or ratifies the breach, or fails to
mitigate or avoid the breach at a time when the boss could have done so.
(5.1; 5.3)
b. Subordinates are bound by ethics rules notwithstanding a supervisor’s orders.
(5.2)
(1) Exception: In response to disciplinary charges, subordinates can raise
an affirmative defense that they were “following orders” of a supervisor if
the supervisor’s orders were a “reasonable resolution of arguable question”
of ethics (“RRAQ”). (5.2)
Example: Partner and Associate disagree on whether a request for
production of documents requires them to produce a particular
document. After debating the merits, Associate believes that the
rules of ethics and the rules of civil procedure are best read to
require production. The Associate also reasonably concludes that a
reasonable person could draw the opposite conclusion. The
Partner instructs the Associate not to produce the document and
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she therefore does not produce it. Result: Associate has not
breached her ethical duties.
Example: Partner failed to finish and serve her opposition to a
summary judgment motion by the due date. Partner instructs
Associate to backdate the proof of service to make it appear that
the opposition was served on time. Associate complies with
Partner’s instructions. Result: Associate has breached his ethical
duties, because this is not a “reasonable resolution of an arguable
question.”
2. Law firms
a. Definition: under the ABA approach, a “firm”G is any group of lawyers working
together as a unit. This would include private practice firms the in-house legal
department at a corporation, the group of lawyers working at the City Attorney’s
office, and other similar groups. (1.0(c))
b. Under the majority approach in the United States, law firms do not have ethical
duties. Only individual lawyers do! But, because law firms have partners and
“supervisory lawyers,” as discussed above, those kinds of lawyers within the firm
will have an ethical duty to regulate legal practice within the firm.
c. Firms cannot be disciplined under ABA scheme.
Example: Junior lawyers at a private practice firm are stealing money from
a client. A partner learns of the theft but does nothing to prevent it or
rectify it. The junior lawyers and the partner would be subject to discipline,
but the firm itself would not.
3. Mandatory reporting (8.3)C
a. Lawyers are required to report to the state bar any breach of the ethics rules that
raises a “substantial question” about a lawyer’s honesty, trustworthiness, or fitness
to practice.
b. Lawyers are required to report to appropriate judicial discipline authorities any
judge’s breach of the rules of judicial conduct that raises a “substantial question as
to the judge’s fitness for office.”
Example: A lawyer sees a judge park in a no-parking zone, step out of her
car, and take a bribe from a criminal accused. The lawyer has a duty to
report the bribe but has no duty to report the parking violation.
c. The reporting duty does not require revelation of client confidences. But, if
revelation would not prejudice the client, the lawyer “should” ask the client for
permission to reveal the bad conduct.
d. The reporting duty doesn’t apply to conduct that the lawyer learned through
participation in a Lawyer’s Assistance Program (such as, “Alcoholics Anonymous”
programs run by the state bar for lawyers suffering from substance abuse or related
problems).
E Legal Regimes Governing Lawyers
(The questions on the MPRE usually indicate the legal regime that is being used to govern the
lawyer’s conduct. It’s important to recognize the different regimes.)
1. Criminal Law. Questions involving criminal law often have to do with theft, bribery,
obstruction of justice, and extortion.
a. Also, because the United States Constitution guarantees a criminal accused
effective assistance of counsel, there is a category of conduct, “ineffective assistance
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of counsel,” that applies to inadequate lawyering on behalf of a criminal accused.
That category is sometimes called “IAC.”
2. Disciplinary Process. Questions involving discipline typically involve breaches of the
ethics rules and the general prohibition against acts of moral turpitude.
3. Civil Law. Questions involving civil liability often involve claims of legal malpractice,
misrepresentation, and breach of fiduciary duty.
4. Disqualification Law. Questions asking whether the lawyer is subject to disqualification
primarily involve the ethics rules and law governing conflicts of interest.
5. Litigation Sanctions. Questions involving litigation sanctions often involve discovery abuse
and violations of Federal Rule of Civil Procedure 11 (which is, in effect, a mini-code of legal
ethics for federal litigation). Such questions often involve fines, fee forfeitures,
disqualification, punishment for contempt, and similar sanctions. Note: to the extent that
MPRE questions deal with privilege or civil litigation, unless the question states otherwise,
you must assume that the governing law is given by the Federal Rules of Evidence and the
Federal Rules of Civil Procedure.
II.
Lawyers’ Over-arching Duties to the Legal Profession
A. Obey the Law
1. Do not commit, counsel, or assist criminal conduct. (1.2(d))
2. Do not commit, counsel, or assist fraudulent conduct. (1.2(d))
3. Exceptions:
a. A litigator may disobey an obligation of a tribunal, but only openly and on an
assertion that no valid obligation exists. (3.4(c))
b. A lawyer may counsel a client to break a law for purposes of obtaining standing
to challenge the legitimacy of the law, if there is a good faith basis for that challenge.
Example: In the 1950s, many municipalities still had laws requiring racial
segregation on public transportation such as buses and trains. Lawyer
meets with a client and advises her that to gain standing to challenge the
constitutionality of the laws, the client should refuse to abide by the
segregation law. Result: lawyer is not subject to discipline.
B. Maintain Professional Boundaries: Who May Practice Law & Where
1. Lawyers may not engage in or facilitate the unauthorized practice of law (“UPL”) by nonlawyers or by lawyers practicing law outside the jurisdiction where they are licensed. (5.5)
a. Definition. The practice of lawG is:
(1) Application of legal principles and judgment;
(2) Regarding a person’s particular situation;
(3) As traditionally recognized as practice of law.
b. Definition: UPL is any practice of law that is not permitted by the state or federal
regulatory scheme. Often, UPL issues involve non-lawyers or lawyers who are acting
outside the geographic scope of their license.
c. Forbidden behavior; UPL
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(1) Non-lawyers may not represent other people or organizations on their
legal matters.
(2) Disbarred or suspended lawyers may not practice law, and licensed
lawyers may not assist them to do so.
Exception/Example: Suppose a licensed lawyer, with full
disclosure to the State Bar and with full permission from the State
Bar, hires a disbarred lawyer to work in a law firm as a clerk, away
from clients and the court. If the fact pattern explicitly says that a
fully informed State Bar approved of that course of conduct, then
assume it is lawful.
d. Permitted behavior, Not UPL:
(1) Handling one’s own legal affairs.
Example: If you are a licensed lawyer and Mary Jones is not, it is
permitted for you to help her represent herself in an upcoming
legal matter. But, if Mary Jones says that she plans to represent
others in the trial, you may not assist her because that would be
assisting her UPL.
(2) Non-lawyers (e.g., paralegals, administrative assistants, and
secretaries) acting under a licensed lawyer’s supervision.
(3) Non-lawyers helping others to fill out legal forms or fill in the blanks on
legal documents; that is not UPL.
(4) Any activities by non-lawyers permitted by state or federal law.
Example: A federal law permits non-lawyers to represent other
people in hearings about certain administrative benefits. A nonlawyer, Maria, attends such a hearing where she represents her
friend Robert. Result: Maria’s conduct is not UPL.
2. Non-legal work (“Law Related Services”) by licensed lawyer.
a. Sometimes, a licensed lawyer provides services that are not the practice of law,
but seem related to the practice of law. For example, a litigation attorney might own
a copier/messenger business or a real estate attorney may run an escrow company.
In that case, the lawyer has some ethical duties. (5.7)
b. The lawyer’s ethical duties apply to the provision of law-related services if they
are not distinct from the provision of legal services, or if the lawyer fails to inform
the recipient that the services are not the practice of law and that the protections of
the attorney client relationship do not apply.
Example: A real estate lawyer owns an insurance brokerage and
informs the client that those services are not the practice of law
and that when interacting with the brokerage the normal
protections of the attorney client relationship, such as
confidentiality, do not apply. Result: the ethics rules would not
apply to the brokerage business.
c. Therefore, if the lawyer wants the law-related services not to constitute legal
practice, she should keep the services distinct from her legal services and inform the
client that the service is not the practice of law and that, for example, the attorney
client privilege does not apply.
3. Lawyers shall not practice law where not admitted. (5.5)
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a. Usually, this is an issue of geography. States license lawyers and lawyers should
not practice outside their licensed state unless an exception applies. This issue can
also arise under the rules of an agency. For example, only members of the patent
bar may prosecute patents before the U.S. Patent and Trademark Office. There are
some exceptions to the general rule.
b. A lawyer may be admitted to another jurisdiction for one matter. This is called
“pro hac vice” admission (“for this matter”).G
(1) Pro hac vice admission must be approved by the relevant tribunal.
(2) The lawyer must have a reasonable connection to the matter.
(3) The lawyer admitted pro hac vice is typically required to associate with
local co-counsel on the matter.
c. A lawyer may participate in out-of-state ADR arising from home state lawyering.
Example: Iowa lawyer with Iowa clients flies to Miami to represent
her Iowa-based client in an arbitration or mediation. This is
permitted and is not UPL.
d. A lawyer may do legal work in a non-admitted jurisdiction when such work is
reasonably related to lawyer’s practice in an admitted jurisdiction, but only so long
as the lawyer does not open an office or maintain a “systematic and continuous”
presence in the non-admitted jurisdiction. (5.5(b))
Example: Once or twice a year, lawyer visits the out-of-state office
of a corporate client for a day or two of meetings. Result: this is not
a systematic and continuous presence in the other state; the lawyer
has not committed UPL.
Example: Because lawyer’s in-state corporate client has a satellite
office out-of-state, lawyer rents an office suite near the client’s
satellite office and spends many weeks doing legal work in the
suite. Result: lawyer has committed UPL.
e. In-house, employed lawyers who have a valid license of admission from some
state may represent their employer in a non-admitted state where they do not have
a license.
Example: Lawyer is licensed only in Kentucky and works in-house
for her sole client, the Corporation. Corporation opens a new office
in Idaho and lawyer relocates to that location, still working only for
her corporate employer. Result: Lawyer’s conduct is permitted and
is not UPL. Note: if Lawyer acts unethically, she may be disciplined
in both Kentucky and Idaho.
f. A lawyer may do any legal work anywhere as permitted by state or federal law.
C. Maintain Professional Boundaries: Financial Participation in the Legal Profession
1. A lawyer must maintain the independence, including the financial independence, of the
legal profession. Often this rule is intended to prevent legal matters from becoming
commodities, from giving lawyers improper financial incentives, and from sharing legal fees
with non-lawyers. (5.4)
2. The general rule is that a lawyer may not share legal fees with a non-lawyer. (5.4) The
traditional rationale is that once a lawyer is sharing legal fees with non-lawyers, the lawyer
will have a financial incentive other than the best interests of the client.
There are some behaviors that appear to involve sharing fees with non-lawyers, but that are
permitted. Some examples:
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a. An agreement to pay a lawyer’s estate after her death is permitted.
b. An agreement to purchase another lawyer’s practice, if done appropriately under
1.17 as discussed below, often results in a permitted payment to a retired lawyer.
c. A lawyer may use her legal fees for a compensation or retirement plan including
non-lawyers, even if the plan is in whole or in part a profit-sharing arrangement.
Example. Suppose a plaintiff’s lawyer has a regularly established
compensation plan, including profit-sharing retirement benefits, for her
employees. That is permitted under 5.4(a)(3). But suppose the lawyer
wins a big fee and decides to give $50,000 of the fees to each paralegal and
secretary. That would be improper fee sharing.
d. Sharing court awarded legal fees with non-profit organization that employed or
recommended lawyer is OK.
Example. Suppose organization “Citizens for Greener Laws” recommends
that some citizens hire you, and you win a test case for them, and are
awarded statutory attorneys fees. If the organization is a non-profit, you
may turn over the court-awarded attorneys fees to the organization.
(5.4(a)(4))
3. When a non-client pays the lawyer’s fees, or when a non-client recommends that the
lawyer be hired, the lawyer must not allow that non-client to direct or regulate the lawyer’s
judgment or interfere with the attorney client relationship. (5.4(c))
4. The practice of law with non-lawyers is not permitted.
a. Forbidden: forming a for profit partnership with non-lawyers where any of the
partnership practices law (5.4(b))
Examples: Under the ABA approach, a law firm partnership may not admit
a non-lawyer partner who is, for example, a lobbyist. A lawyer may join a
real estate investment partnership with non-lawyers so long as none of the
partnership’s business is the practice of law.
b. Forbidden: forming a corporation or association where non-lawyers have
managerial responsibility over the lawyer’s professional judgment. (5.4(d))
Example: A large law firm organized as a professional corporation may
have a non-lawyer Chief Financial Officer if the CFO neither manages the
professional judgment of the lawyers nor interferes in the lawyers’ exercise
of professional judgment.
5. Contractual restrictions on practice:
a. The general rule is that a lawyer may not “contract away” her ability to practice
law unless an exception applies.
b. A lawyer may not agree to restrict her practice as part of a settlement agreement.
(5.6(b))
Example. Defendant offers plaintiff a $5 million settlement, so long as
plaintiff’s attorney agrees not to represent any clients adverse to defendant
for the next five years. That agreement is forbidden under Rule 5.6(b).
c. A lawyer may “covenant not to compete” in exchange for benefits upon
retirement. (5.6(a))
d. As discussed below, a lawyer may agree to restrict her practice as part of the
lawful sale of a law practice.
6. Selling a law practice is permitted under certain conditions. (1.17)
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a. The selling lawyer must altogether cease to practice in their current area of law
or in their current geographical area;
Example. A 65-year-old lawyer maintains a business litigation practice and
a trusts and estates practice in both San Francisco and Los Angeles. He may
sell his entire law practice; may sell just the trusts-and-estates practice or
just the litigation practice; or may sell one of his two geographical areas.
b. The entire practice (or area of practice) must be sold; And
c. Clients must be given written notice of:
(1) The proposed sale; and
(2) The client’s right to retain other counsel and/or take possession of the
client file; and
(3) The fact that the client’s consent to transfer will be presumed if the
client takes no action or does not object within 90 days of receipt of the
notice.
d. Fees may not be increased by reason of the sale.
D. Pro Bono and Public Service (6.1)
1. In general, lawyers are called to participate in efforts to improve the quality of justice and
access to justice. (I use the phrase “called to,” because as explained below, these duties are
aspirational and cannot be used as grounds for professional discipline.)
a. Lawyers are called to engage in, and to financially support, such efforts.
b. Often, a lawyer’s pro bono and public service work takes place in organizations
other than the lawyer’s law firm or place of employment. For that reason, as
discussed below in §§IV.F.6.e, special rules apply to conflicts of interest arising from
public service work.
2. Types of public service.
a. Traditional “pro bono” service: work for free or reduced fees for persons of
limited means.
(1) Lawyers “should aspire” to do 50 pro bono hours annually. Note that the
phrase “should aspire” is aspirational and failure to do so cannot result in
professional discipline.
(2) Free legal work (and reduced fees work) for the poor is the “core” of
the pro bono aspiration. In addition, a lawyer should aspire to participate
in the other kinds of public service discussed below.
b. Appointments. Sometimes the court will “appoint” a lawyer to do such work. As
discussed below at §IVB, lawyers shall accept appointments unless there are
adequate grounds for declining the work. (6.2)
c. Legal Services Organization. (6.3) Across the country, legal services organizations
provide legal services to persons of limited means. These organizations typically
have boards and staff lawyers, and other lawyers may elect to serve as volunteers.
d. Law Reform Organizations. (6.4) Lawyers may become involved in
organizations seeking the reform of law, such as tort reform, environmental reform,
etc.
e. Non-profit and Court-annexed legal service programs. (6.5) Sometimes, a court,
county bar association, or non-profit will organize programs where lawyers are
sought to participate and dispense legal advice in short-term representations. For
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example, a county bar association might run a “Tenant’s Rights Clinic” once a month
at a local community center.
III.
Getting Clients: Communications, Advertising, Solicitation, and Referrals
A. The Constitutional Limitations on Regulation of Lawyer Speech
1. Speech seeking pecuniary (i.e., for profit) employment is commercial speech and as such
it enjoys intermediate constitutional protection.
2. State governments can, and do, ban false or misleading speech by lawyers.
a. All false and misleading communications by lawyers are forbidden, regardless of
the type of communication.
b. The lawyer may truthfully communicate fields of law the lawyer practices, if the
lawyer is a “patent agent,” “proctor in admiralty,” or if the lawyer is officially a
“certified specialist” in a field.
(1) Note: California is one of the states that has extensive procedures for
becoming a “certified specialist” in certain fields.
3. State governments can, and do, ban lawyer speech likely to result in coercion, harassment,
and duress.
a. All communications by lawyers causing coercion, harassment, and duress are
banned.
b. The government’s right to ban coercive communications justifies the ban on inperson solicitations, discussed below. (§III.B.3)
Example: Lawyer is permitted to personally solicit a former client. After
telephoning the former client twice and leaving voicemails asking to be
hired, the former client asks the lawyer to stop calling her. Lawyer calls the
former client again, asking to be hired. Result: Lawyer has violated the
ethics rules because lawyer is engaging in harassing and coercive
communications.
B. Definitions and Rules
1. “Communications” is the broadest term and includes any form of exchange of information
whatsoever about the lawyer’s availability for for-profit employment.
Exception/Example: A lawyer for the NAACP wants to find a test plaintiff for a case
to enforce voting rights. The lawyer actively telephones possible plaintiffs. If the
client is successful, the NAACP will receive attorneys fees, which could amount to a
substantial sum. Result: because this form of communication is in furtherance of
first amendment rights (such as petitioning the government for redress of
grievances) the below rule prohibiting in-person solicitation of clients for for-profit
purposes will not apply.
2. “Advertising” includes broadcasted communications about the lawyer’s availability for
for-profit employment. Being broadcast means the communications are presumably heard
or seen by persons who might need the lawyer’s services and those who might not. A
television advertisement for a personal injury lawyer is a classic example. (7.2)
a. Advertising cannot be false or misleading.
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b. The advertising must include the name and address of the lawyer or firm
responsible for the content of the advertising.
c. Although the Model Rules are silent on this point, many states require lawyers to
maintain copies of their advertising for several years, so that the state bar can audit
or investigate as needed.
3. “Solicitations” include communications where the lawyer is directly communicating the
lawyer’s availability for pecuniary employment to a person who the lawyer believes might
need the lawyers’ services. Solicitations come in two types:
a. “In person” solicitations include direct communications, where the lawyer speaks
directly to the potential client in person, or on the telephone, or in real time
electronic contact (e.g., internet chats).
(1) The basic ban: lawyers shall not solicit in-person for profit professional
employment except from (i) a lawyer, or (ii) a person with whom the
lawyer has a family, personal, or professional connection.
Example: A personal injury lawyer sees a truck run a red light and
smash into a car full of people. In the car are the lawyer’s brother,
another lawyer in town, a former client, the lawyer’s best friend,
and a complete stranger. The lawyer may solicit all the victims
except the last one. (Note, however, if the solicitation is done while
the victims are still trapped and in agony, the state bar is likely to
assert that the solicitation was coercive!)
(2) The ban on in-person solicitation applies to live conversations,
telephone conversations, and real time electronic communications (e.g.,
internet chats, texting, and instant messaging). It does not apply to email
solicitations, because email is deemed not to be “in-person.”
b. Written and recorded solicitations (e.g., “robo-calls”) that are not “in person” are
often called “targeted mailings and recordings.” For example, the lawyer might
obtain a list of homeowners whose homes were recently foreclosed and then send
them a letter or a recorded phone call; that is not forbidden by the ban on
solicitation. (Note, however, that the targeted mailing cannot be false or
misleading.)
(1) The basic ban does not apply to targeted mailings and recordings. (The
recipient can always hang up or throw away the mail.)
(2) Targeted solicitations must say “Advertising Material.”
C. Firm Names and Letterheads (7.5)
1. Can’t be false or misleading.
a. May state it’s a partnership or organization, but only when true.
Example: A new lawyer, working alone, may not name her law firm “Mary
Smith and Associates” if there are no associates working with her.
b. May use the names of deceased partners.
2. Trade names are permitted, but:
a. Trade names may not imply any connection with a government agency.
b. Trade names may not imply any connection with a public or charitable legal
services organization.
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Examples: You may name your firm, “I Can’t Believe It’s a Law Firm!” or
“Lawyers for Tenants.” You may not name your private practice firm,
“Alameda County Superior Court Advocates.”
3. Geographic use of names:
a. Firms may use the same name across geographic jurisdictions.
b. The firm must indicate when lawyers in an office aren’t licensed in that
jurisdiction.
Example: If you visit the website for any major firm’s office in Washington,
D.C., you will see many lawyers’ biographies with disclaimers, “Not licensed
to practice in Washington, D.C.” or “Practice limited to federal agencies.”)
4. Lawyer holding public office:
a. The firm may not use the name of a lawyer holding public office if the lawyer is
not practicing there.
Example: Mary Jones, a partner in the firm, “Smith, Jones & Garcia,” wins an
election for a judge’s seat in the local court and leaves the firm. The firm
must drop the “Jones” from the firm’s name.
Example: Mary Jones, a partner in the firm, “Smith, Jones & Garcia,” wins an
election for district attorney in a county where DAs are part-time and are
permitted to maintain a private practice. Jones serves as DA and also works
at the firm. The firm may keep “Jones” as part of the firm’s name.
c. The firm may use the name of lawyer not practicing there if lawyer is now
providing free legal services in the public sphere.
Example: Mary Jones, a senior partner in the firm, “Smith, Jones & Garcia,”
retires from the firm and offers her services for free to the County Art
Commission. The firm may keep using “Jones” in the firm name.
D. Referrals by Others
1. Basic rule: except as otherwise provided in the rules, “lawyers are not permitted to pay
others for channeling professional work” to the lawyer. (7.2(5)) The traditional rationales
for the rule are that paying for referrals creates an incentive that steers the lawyer away
from the client’s best interests and that legal matters should not be treated as commodities
to be bought and sold.
2. Forbidden referrals:
a. Forbidden: Utilizing “cappers and runners ” or persons paid for steering clients to
the lawyer. (Most these unethical agreements include a “per head” fee for sending
personal injury clients to the lawyer).
b. Forbidden: Taking government legal engagement or appointment by a judge after
a political contribution made for the purpose of obtaining that work. This practice is
sometimes called “pay to play.” (7.6)
Example: A lawyer donates to the re-election campaign of the County
Executive for the purpose of obtaining legal work from the County. That is a
violation of the rule.
Example: A lawyer routinely donates to the reelection campaign of county
judges and challengers, including to judges who have the power to steer
work to local lawyers. If the lawyer’s donation is not for the purpose of
obtaining that work, the donation is permitted and the lawyer may still
apply for that work.
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c. Forbidden: A lawyer must not permit a person referring business to the lawyer to
direct or regulate the lawyer’s personal judgment in rendering the services. (5.4(c))
d. Forbidden: “Bare” referral feesC where the referring lawyer is paid a fee that is
not proportional to the amount of work done by the referring lawyer. (1.5(e))
(Note: in contrast, some states like California, do permit the referring lawyer to do
no work other than the referral itself and still split the fee.)
Example: A business lawyer refers a personal injury matter to a lawyer
who practices those kinds of cases. The personal injury lawyer pays the
referring lawyer $1,000. Result: under the ABA approach, both lawyers are
subject to professional discipline.
3. Permitted forms of referrals and practices akin to referrals:
a. Lawful purchase of another lawyer’s law practice is permitted. (1.17) (See
§§II.C.6 ).
b. Lawful non-profit referral.
c. Legal services plans approved by appropriate regulatory authorities (typically,
the state or county bar association) are permissible. (7.2(b)(2))
d. Non-exclusive, fully-disclosed cross-referrals with lawyers or other professionals
are permitted. (7.2(b)(4)).
(1) Cross-referral agreement cannot be exclusive.
(2) Client must be informed of existence and nature of agreement.
(3) Note: the fees are not being split; referrals are exchanged.
Example: A trusts and estates lawyer and an accountant agree to
cross-refer clients to each other. The agreement isn’t exclusive (i.e.,
each remains free to refer clients to other professionals) and the
lawyer informs her client about the arrangement. Result: the
lawyer’s conduct is permitted.
4. Note that fee splitting sometimes resembles referral fees, particularly when a lawyer
refers a matter to a specialist but retains a fee split on the matter. Fee splitting with a lawyer
in another firm is discussed below at §IVH2e.
IV.
Duties between Lawyers and Clients during the Attorney Client Relationship
A. Lawyerly Rights and Duties Before the Attorney Client Relationship (“ACR”) is Created:
1. The lawyer is governed by the rules on advertising and solicitation (see, §III.B)
2. Meetings with prospective clients (1.18)
a. The duty of confidentiality and privilege already apply even though the lawyer
and prospective client have not yet formed an attorney client relationship.
b. Lawyer must protect the prospective client’s property (e.g., files, evidence, etc.).
c. Disqualification of lawyers who received the prospective client’s confidences:
(1) Lawyers who received confidences from the prospective client are
disqualified from taking on related matters adverse to prospective client.
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(2) The disqualification of the lawyers who received the prospective
client’s confidences is not imputed to other lawyers in that firm if:
(a) The lawyers who learned prospective clients’ confidences only
learned enough to weigh taking on the client; and
(b) The lawyers who learned prospective clients’ confidences were
timely “screened;” and
(c) The lawyers who learned prospective clients’ confidences don’t
share in the fees from the matter adverse to the prospective client;
and
(d) Written notice is given to the prospective client.
B. Accepting and Rejecting ACRs.
1. “Must” ACRs
a. Court appointments must be accepted (6.2) unless:
(1) The appointment will cause undue financial hardship to the lawyer.
Example: A lawyer is appointed to represent an indigent person
facing a mental health commitment hearing. The lawyer could
make more money doing litigation for businesses but the
appointment will not cause financial hardship. The lawyer may not
reject the appointment.
Example: A new lawyer who is having great trouble getting her
practice off the ground is appointed to handle a matter that will
take a great deal of time to complete. The lawyer may reject the
appointment.
(2) The client or matter is “repugnant” to the point of affecting the lawyer’s
performance.
Example: A lawyer is appointed to represent a child molester. The
lawyer finds the client and the matter repugnant, but is still able to
fully represent the client. The appointment may not be rejected.
(3) Representing the client likely leads to breach of ethics or law.
Example: A lawyer is appointed to represent an indigent client but
to do so she must act adversely to the interests of one of her
current clients who does not wish to waive any conflicts. This
presents a conflict of interest and the lawyer must reject the
appointment.
2. “Should” ACRs
a. Pro bono representations (see §II.D. above) (6.1).
b. Representing the “defenseless, oppressed and unpopular” is a form of pro bono
work. (Note: This is a traditional, aspirational norm.)
3. “May Not” ACRs. Lawyers may not undertake or continue representations where:
a. The representation requires unethical conduct by the lawyer, such as:
(1) Suits purely to harass. (4.4)
(2) Frivolous matters. (3.1)
(3) Unconsented conflicts (discussed further below)
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(a) Conflicts can include lawyer’s personal interests and
commitments. (1.16; 1.7)
b. The lawyer would counsel or assist the client to commit crime or fraud. (1.2)
(1) Distinction: the lawyer may assist the client to understand what’s
lawful and the consequences of breaking the law. (1.2)
c. The lawyer would be incompetent
(1) As to skill or subject matter (discussed further below, §§IV.F.3); or
(2) Mental or physical incompetence.
C. Creation of the ACR
1. Tests for creation:
a. The ABA Model Rules do not define the test for the creation of an attorney client
relationship; most states look at the “reasonable expectations” of the putative client.
b. Contract approach: Some state law provides that an ACR is formed when client
signals assent to form ACR and the lawyer agrees or doesn’t disagree.
c. Some state law provides that an ACR is formed when the lawyer should know that
the client is reasonably relying on the lawyer.
d. Court appointments (see §IV.B. above).
2. Definition of the ACR:
a. The ACR is a fiduciary relationship from lawyer to client. The client is the
principal and the lawyer is the agent.
b. Usually, the ACR is a contractual relationship from client to lawyer.
b. To properly define an ACR you must ascertain the client’s identity. (§D below)
c. To properly define an ACR you must ascertain the scope of the representation. (§E
below)
D. Client Identity
1. Having natural person clients (i.e., human beings) often raises some ethics issues:
a. Non-client payors of the legal fees (“Third party payors,” discussed further below,
§§ IV.F.6.d”)
(1) Paying the legal fees doesn’t automatically make one a client.
(2) Non-client payors create conflicts that can be waived.
(3) This issue often arises with insurers and insureds (discussed below).
b. Clients under a disability (1.14)
(1) There are various types of disability (minors, mentally ill, etc.).
(2) Lawyers must treat the client as normally as possible under the
circumstances.
(3) Disability isn’t “all or nothing.” Clients may be disabled for some
decisions and at some times, yet be fully competent for other decisions and
at other times.
(4) In extreme cases, the lawyer may reasonably protect client by seeking
appointment of conservator or guardian.C
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(a) If client has an appointed conservator, the lawyer shall take
direction from the conservator.
c. “Friends and family”
(1) Make sure to protect privilege and maintain confidentiality. The
presence of a non-client during attorney client communications may waive
privilege and breach the duty of confidentiality.
Example: Lawyer meets with a fully competent, adult client.
During the meeting with client, the client’s friend is present and
lawyer does not obtain the informed consent of the client regarding
the probable loss of privilege and breach of the duty of
confidentiality. The friend listens to what the lawyer and client
discuss. Result: The conversation is not protected by the attorney
client privilege; the lawyer has probably breached the duties of
confidentiality and competence to the client.
2. Organizations as clients. (1.13) This is a major, often-tested issue. In the real world, this
is an area where decent, good lawyers frequently make mistakes!
a. “The Entity Theory.”G A representation of an organization (e.g., a corporation) is
the representation of the entity itself and not of its constituents (officers, directors,
employees, shareholders).
(1) Lawyers should prevent and correct confusion over the lawyer’s role. If
the lawyer senses that one of the entity’s agents believes the lawyer
represents him/her personally, the lawyer must clear up the confusion.
Also, the lawyer shall explain the identity of the client when the lawyer
reasonably knows that the organization’s interests are adverse to the
constituent with whom the lawyer is dealing. (1.13(f))
Example: An in-house lawyer at Acme, Inc., is asked to interview a
Vice President who is suspected of theft from the company.
Lawyer, who knows that the organization’s interests are adverse to
the interests of the VP, must explain to the VP that the organization
is the client and that the VP is not. (This warning is sometimes
colloquially called the “Upjohn Warning,” or the “Corporate
Miranda Warning.”)
Example: An in-house lawyer for a corporation meets with a
Senior Vice President about an ordinary legal matter for the
corporation. The matter is not adverse to the interests of the SVP,
but the lawyer realizes that the SVP believes the lawyer represents
her personally on the matter. The lawyer, who represents only the
entity, has an ethical duty to dispel that confusion.
(2) Representing the entity does not always preclude the lawyer from
representing the entity’s agents, but that decision to add a second client
(e.g., the corporate Vice President) may create a conflict of interest with the
lawyer’s representation of the entity, and so undertaking to represent the
agent should be carefully considered and clearly documented, with a
conflict waiver letter if necessary.
Example: An in-house lawyer for a corporation meets with a
Senior Vice President about a legal matter for the corporation. The
SVP asks, “how does this affect me personally?” If the lawyer gives
personal advice to the SVP, the lawyer has created an ACR with the
SVP which probably conflicts with the lawyer’s representation of
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the corporation. The lawyer should either clarify to the SVP that
the SVP is not a client or should carefully consider whether to take
on the SVP as a second client, with the informed consent of the SVP
and the organization to the conflicting representations.
b. Organizational Clients--Additional Duties and Rules:
(1) When representing an organizational client, the lawyer turns to the
rules of the organization (e.g., by-laws and articles of incorporation) or to
governing law (e.g., the corporate law of that state) to determine who at the
entity client has the authority to make decisions. (1.13)
(2) When the lawyer becomes aware of legal violations that may be
attributed to the organization, the lawyer must act reasonably in the
interests of the organization. Normally, that requires the lawyer to report
the situation to appropriate authorities at the organization and, if the
matter is not resolved, to report the matter to higher authorities within the
organization, including, if appropriate, the highest authority within the
organization. (This is sometimes called reporting “up the org chart,” or
reporting “up the chain of command.”) (1.13(b))
Example: Lawyer learns that her corporate client has mislabeled a
small number of products for export. There is no substantial
penalty for the mislabeling and the situation is unlikely to re-occur.
Result: lawyer should report the situation to some appropriate
officer or employee at the corporation.
Example: Lawyer learns that some members of the sales force
have offered bribes to public officials, in violation of criminal law.
Lawyer should report this matter to high ranking authorities in the
organization (which often is the Board of Directors).
(3) As long as the lawyer is reporting the news “up the chain of command”
within the entity client, the lawyer is still fulfilling her duty of
confidentiality to the client, because the lawyer is only disclosing
information to the authorized agents of the entity client.
(4) When the lawyer is interacting with and communicating with the
organization’s agents (e.g., employees, officers, directors), attorney client
privilege applies to the communications, but the entity owns the privilege
and can decide whether to waive it or not.
Example: Lawyer representing corporation interviews a division
manager who had been involved in a disagreement with a
customer over the interpretation of a contract. Lawyer prevented
any confusion from arising about the identity of the client; the
manager knows that she is not personally the lawyer’s client. The
conversation is privileged and the entity can decide whether to
waive the privilege and disclose to the customer what the manager
said in the interviews. Manager will not be able to assert a personal
attorney client privilege and prevent the disclosure. (Note,
however, that if the lawyer handles the interview poorly and leaves
the manager with a reasonable expectation that the manager is
personally a client, then the lawyer will have created a real conflict
about what or who controls the privilege!)
(5) If, after the lawyer reports a clear violation of law “up the chain of
command,” the organization fails to address the issue in a timely and
appropriate matter, and if the lawyer believes that the violation will result
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in substantial injury to the organization, then the lawyer “may,” but is not
required to, reveal information relating to the representation to the extent
permitted by Model Rule 1.6 and as is necessary to prevent substantial
injury to the organization. (1.13(c))I
(6) The “may reveal” exception contained in 1.13(c) does not apply to
lawyers who are hired to investigate or defend an alleged violation of law.
Example: The Department of Justice informs Acme, Inc., that it is
being investigated for allegedly bribing foreign officials. In
response, Acme hires some lawyers from a white collar criminal
law boutique to investigate the allegations and defend the company
from any actions brought by the DOJ. Result: those lawyers may not
invoke the “may reveal” exception under 1.13(c). They must report
information up the corporate chain of command, but may not
reveal what they’ve learned to persons outside their client, Acme,
Inc.
(7) For publicly traded companies, the regulation of the “reporting up the
chain of command” function is governed not by rule 1.13, but rather by a
federal law called “Sarbanes-Oxley.” (Being federal law, it preempts any
state ethics code.) The provisions are similar to rule 1.13.
(a) A reporting lawyer for an organization will report a violation of
law to the Chief Legal Officer (CLO) (typically, the General Counsel
of the company) or to the CLO and the CEO of the company. If such
a report is futile—for example, if the CLO and CEO have committed
the violation and are covering it up—then the reporting lawyer
reports the matter to the Board of Directors or to an authorized
committee of the Board.
(b) As is the case with rule 1.13, if the violation of law is not
adequately addressed by the entity client, the reporting lawyer
may disclose information to the Securities Exchange Commission in
order to prevent or rectify the violation of law.
c. Government Entity as Client. The foregoing comments about organizational clients
also apply when the lawyer represents a government agency or entity. But, as
comment [9] to MR 1.13 makes clear, representation of government agencies is
complicated and can be difficult. It can be hard to define the precise government
agency that is the client (e.g., an agency, a branch of government, or the entirety of a
state or federal government). Government lawyers are more likely than other
lawyers to be governed by specific statutes, rules, and policies. And there may be
situations where the duty of confidentiality is more flexible for government lawyers,
allowing them to release client confidences to prevent malfeasance. In addition,
there are special conflict of interest rules, discussed below, dealing with current and
former government attorneys.
4. Multiple Clients
a. In some situations, a lawyer undertakes to represent two or more clients on the
same matter. These are called joint representations. Joint representations raise
some ethical issues:
(1) Conflicts of interest. If the lawyer’s representation of either jointly
represented client might materially limit the lawyer’s responsibilities to the
other jointly represented client, the lawyer has a conflict of interest and
must consider if the conflict can be waived and, if so, how it can be waived.
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(2) Confidentiality and privilege. The general rule in the United States is
that when a lawyer jointly represents multiple clients on a matter, the
lawyer must share material information with all the clients and must
protect confidentiality and assert privilege against any non-client. Further,
if the joint clients later commence a dispute between or among themselves,
none of the jointly represented clients may assert privilege against the
other(s) regarding communications that were made during the joint
representation.
b. Representation of Insurer and Insured (“Tri-partite” representations). Many
insurance policies provide for the costs of legal defense and provide that the insurer
may select counsel for the insured. Broadly speaking, there are two approaches in
the United States to the definition of the client in such cases. In some states, if there
is no conflict between the position of the insurer and the insured, the attorney client
relationship is considered “tri-partite.” That is, the lawyer represents the insurer
and the insured. In other states, the lawyer is deemed to represent only the insured.
These situations can raise subtle and complicated conflicts situations. More detail is
provided in Appendix XXX.
E. Scope of the Engagement. (1.2)
1. Lawyer and client may reasonably limit the scope of the representation or the tactics
used.
Examples: Client might forego costly tactics; might decline to utilize repugnant
tactics; might agree to limited objectives.
2. Client must give informed consent to such limitations.
Example: A family lawyer realizes that his clients often cannot afford his services.
So the lawyer draws up an engagement letter for an “unbundled” or “limited scope”
representation. The lawyer and the client go over the various tasks that must be
accomplished and assign some to the lawyer and rest to the client. Client signs the
letter. For most hearings, the lawyer advises the client on what arguments to make
and does some role playing to help the client make an appropriate argument. Result:
if the limitations inherent in the unbundled representation are reasonable (and
these are reasonable) and if the client gives informed consent to the limitation, the
lawyer has complied with the ethics rules.
F. Duties Flowing from Lawyer to Client during ACR (Fiduciary Duties) (1.x)
1. Decision-making and power sharing. (“Abide & Consult”) (1.2)
a. Client decides lawful & ethical “objectives.” That is, the lawyer must “abide” by
the competent client’s choice of lawful objectives.
(1) The objectives must be lawful and ethical.
(2) In civil cases, whether to settle is a choice that belongs to the client, not
to the lawyer.
(3) In criminal cases, the client controls:
(a) The plea to be entered;
(b) Whether to waive jury trial; and
(c) Whether to testify.
Exception: as discussed below, if the client intends to
commit perjury, the lawyer may not permit the client to
take the stand. (3.3)
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(4) As noted above (§IV.D.2.b.), with organizational clients, the right to
determine the objectives of the representation lies with the authorized
agents of the client (e.g., officers, directors).
b. The lawyer decides the “tactics” or “means” after client consultation (1.2).
(1) The lawyer must still “consult” about the means and tactics to be used.
(2) The lawyer may take whatever steps the lawyer is impliedly authorized
to take.
(3) Tactics, or means, include what witnesses to call, exhibits to use,
arguments to make, etc.
2. Communication (1.4)
a. The lawyer must communicate so client can make informed decisions that belong
to the client.
b. The lawyer must keep client reasonably informed about the status of the matter.
c. The lawyer must respond timely to reasonable requests for information.
d. Answer those phone calls!
e. If the lawyer is too busy to respond immediately to the client, the lawyer may
have a subordinate (secretary, paralegal) inform the client that the lawyer will
respond once she has an opportunity to do so.
f. The lawyer must inform the client about limitations on the lawyer’s conduct when
the lawyer knows that the client expects assistance that is unethical or illegal.
(1.4(a)(5))
Example: Client hires lawyer in a marital dissolution proceeding. Client
asks lawyer how they can “hide” financial documents from the other side
and asks lawyer to use tactics designed to harass the other side. Result:
Lawyer has an ethical duty to communicate to client that the lawyer may
not engage in those behaviors.
g. Withholding information from the client.
(1) Lawyers may sometimes delay communications to the client if the client
is likely to act imprudently. (1.4, cmt. [7])
Example: The court issues a major ruling in a case, but the lawyer
knows that the client’s mother has just undergone emergency
surgery. The lawyer feels that the client is not emotionally
prepared to handle the news of the court ruling. The lawyer may
delay telling the client until the crisis has passed – but must still
inform the client of the ruling.
(2) Lawyer may be under a court order not to share certain information
with the client. If so, the order trumps the duty of communication.
Example: In a commercial litigation, the judge rules that certain
business information of the parties is subject to discovery but may
not be shared with the business people at the opposing party. The
lawyer may not share that information in violation of the judge’s
order.
h. Lawyers must communicate reasonably with disabled clients. (see §IV.D.b.)
3. Competence (1.1)
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a. Lawyers are required to exhibit/possess legal knowledge, skill, thoroughness,
and preparation.
b. Lawyer may acquire competence through study or associating co-counsel. (Note:
the concept of the incompetent “newbie” is often tested; know the two ways to
acquire competence!)
c. In an emergency, a lawyer may give assistance as needed and then either gain
competence or turn the matter over to a competent lawyer.
Example: Lawyer, who has little or no criminal defense experience,
receives a call late Friday night from a friend who has been arrested.
Lawyer unsuccessfully tries to reach several criminal practitioners by
phone. Lawyer may assist the client in the emergency over the weekend,
but should transfer the matter to a competent criminal lawyer on Monday.
d. Lawyers must maintain competence. (e.g., CLE and study)
e. Malpractice claims against lawyer:
(1) Can be based on any substandard lawyering (not just incompetence)
(2) Tort elements: duty, breach, causation, damages
(a) Use of Rules to Determine Duty and Breach. Under the
majority approach in the United States, and under the approach on
the MPRE, the ethics rules are relevant to defining duty and breach
but do not absolutely define them. (Under the two minority
approaches, the ethics rules are (i) irrelevant and excluded from
the malpractice trial, or (ii) are absolutely determinative of duty
and breach and the jury is so instructed.)
(b) “But for” causation. To succeed, the plaintiff must show what
would have happened if the lawyer had performed competently
and ethically. This is called proving the “case within a case.” For
example, the plaintiff might try to prove what contract she would
have entered into had her lawyer performed competently. It is not
enough for the plaintiff to show that some substandard lawyering
had some substantial effect on the negative outcome.
(c) In a case for malpractice in a criminal defense matter, the
majority approach in the United States provides that the client
must prove actual innocence before proceeding against the lawyer.
(d) A client who agrees to settle a matter may still allege
malpractice against the lawyer who represented her. The fact that
she agreed to the settlement does not bar her from alleging, for
example, that the lawyer’s malpractice prompted her to settle the
case on bad terms.
(3) A lawyer may ask the client to prospectively waive negligence and
malpractice claims if the client is advised by an independent lawyer while
agreeing to waive those claims.A, C (1.8) (Note: although this is permitted in
the Model Rules, it is rarely permitted in the real world.)
(4) A lawyer may negotiate a release of a client’s malpractice claims against
the lawyer after the malpractice has occurred if the lawyer advises the
client to seek independent advice of counsel regarding the release.A (1.8)
f. The duty of competence is owed to the client and, in rare situations, to intended
third party beneficiaries of the legal services.
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(1) Clients and a narrow class of intended third party beneficiaries of the
legal work are the only persons who can sue the lawyer for malpractice.
(2) The classic case of the intended third party beneficiary is the person to
whom the client wanted to leave her money in a will or trust.
Example: Ms. Smith hires Lawyer to draft a will that leaves Smith’s
money to Ms. Jones, and the Lawyer commits malpractice resulting
in Ms. Jones not receiving the inheritance, Ms. Jones may sue
Lawyer for malpractice even though she is not a client. Note: this is
an exception to the general rule that only clients can sue lawyers
for malpractice.
4. Diligence/Zeal. (1.3)
a. The lawyer must timely pursue client’s objectives and fight obstacles.
b. No procrastination!
c. Personal crises are irrelevant.
Example: The lawyer is suffering from mental anguish because his father is
dying from cancer. If the anguish causes the lawyer to fail to act diligently,
the lawyer has breached his ethical obligation. The lawyer should have
overcome the anguish or transferred the matter to another lawyer.
d. Unless relationship is terminated, the lawyer must actively carry on the
relationship.
e. Solo practitioners should have contingency plan for disability or death (e.g.,
referrals to other lawyers).
5. Confidentiality, Privilege, and Work Product Protection (1.6; common law)C
a. Privilege defined: communications between a client (or client’s agent) and a
lawyer (or lawyer’s agent) made in confidence, for the purpose of securing legal
advice, and not for the purpose of furthering a crime or fraud, are privileged from
compulsory testimony or production.
(1) Crime-fraud exception defined: If the communication was for the
purpose of furthering a crime or fraud, the communication is not privileged,
even if the lawyer was unaware of the client’s nefarious purpose and if the
lawyer’s advice took the form of perfectly legal advice.
Example: Corporate client is secretly running an ongoing stock
fraud and asks Lawyer for some advice about Delaware corporate
law so that the client can send out some routine (but false)
business notices to the investors who are being defrauded. Lawyer
assumes that Client is lawful. Lawyer’s advice is routine and
appears to be perfectly lawful. Result: because the Client is using
the communication to further the fraud, the communications are
not privileged ab initio (from the start). Notice that Lßawyer’s good
intentions and lack of fraudulent intent do not prevent the crimefraud exception from applying.
(2) The presence of non-agent, third party destroys the privilege.
Example: Lawyer wants to interview client, but client does not
speak English well. At the client interview, lawyer is accompanied
by her administrative assistant, a paralegal, and a translator.
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Result: privilege is not lost, given that the others in the room are
agents for the lawyer.
(3) Privilege applies to communications with prospective clients.
(4) As discussed above, §§IV.D.2, privilege applies to communications with
organizational clients, but the organization holds the privilege and controls
the decision to waive or not waive privilege.
(5) Waiver of privilege.
(a) Client’s choice generally. Note that in representations of an
entity client, the decision to waive would belong to the entity and
not to, for example, the Senior VP who had the privileged
communication with the entity’s lawyer.
(b) Waiver by raising issues (e.g., if client alleges as an affirmative
defense that it relied upon the advice of counsel, then the privilege
is waived as to that advice).
(c) Waiver by claim against lawyer. If the client sues the lawyer
for malpractice or other grounds that implicate the lawyer’s work
for the client, the privilege is waiver to the extent that the lawyer
needs to defend herself.
(6) Joint Privilege. When a lawyer represents two clients on the same
matter, it is called a “joint representation.” In those situations, the lawyer’s
communications with each client are privileged as against non-clients.
(a) Either client may assert the privilege as to its own
communications with the lawyer and as to the other client’s
communications as well (unless the other client has waived its
privilege regarding its communications with the lawyer).
(b) If the two clients later having a falling out and commence legal
proceedings against each other regarding that matter, then neither
of the former co-clients may assert privilege against the other
regarding communications made during the course of the joint
representation.
Example: Plaintiff sues Ann and Betty, who jointly hire
Lawyer to represent them. Each of the co-clients engages
in privileged communications with Lawyer. Plaintiff seeks
to learn what Betty told Lawyer. Unless Betty has waived
privilege as to her communications with the lawyer, both
Ann and Betty can assert privilege as to Betty’s
communications with the jointly retained lawyer. Later,
Ann and Betty begin to squabble and they each fire Lawyer
and hire new, independent lawyers. Ann’s new lawyer
seeks to learn the content of all of Betty’s communications
with the prior lawyer when Ann and Betty were joint
clients. Betty’s new lawyer tries to assert privilege as to
those communications, but the judge correctly rules that
Betty may not assert privilege against Ann for those
communications. (Note, however, that Betty is now a
single client with her own independent lawyer and hence
Betty may assert privilege against Ann regarding Betty’s
communications with her new lawyer.)
(7) Privilege survives death of client.
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b. Confidentiality defined. The duty of confidentiality has a very broad scope! It
pertains to all information relating to the representation. It’s not limited to the
client’s secrets; it can include publicly available information. California emphasizes
that it includes all information that could be “embarrassing or detrimental” to the
client.
Example: Plaintiff sues defendant and defendant hires lawyer. Plaintiff’s
lawyer tells defendant’s lawyer some information about the defendant.
Although the conversation between the two lawyers was not a privileged
conversation, and although the information transmitted to the defendant’s
lawyer is already known by the plaintiff and the plaintiff’s lawyer, that
information is still a “confidence” under the ethics rules because it is
information relating to the representation of a client.
(1) The duty of confidentiality applies to information learned from
prospective clients. (1.18)
(2) Under 1.6(a), a lawyer may disclose confidences to the extent the lawyer
is expressly or impliedly authorized to do so.
(3) The ABA and MPRE approaches provide for certain exceptions to the
duty of confidentiality C, I under which the lawyer may reveal a client
confidence even when the client has not given express or implied
authorization. Indeed, the rules sometimes permit the lawyer to reveal
client confidences even over the objection of the client.
(4) The following exceptions are found under MR 1.6(b) and when they
apply, the lawyer “may” reveal client confidences:
(a) Under 1.6(b)(1), to prevent reasonably certain death or
substantial bodily harm.C
Example: Lawyer represents Husband in a marital
dissolution matter. Lawyer learns that Husband has
obtained a handgun and is driving to his spouse’s house
with the intent of shooting her. Lawyer “may” reveal client
confidences as is reasonably necessary to prevent the
death or substantial bodily harm to the spouse.
Example: In the course of a representation of a corporate
client, Lawyer learns that her client has just purchased a
piece of land that is polluted with toxins that over time are
likely to cause death or substantial bodily harm. Even if the
client did not create the situation, the lawyer may reveal
client confidences to the extent reasonably necessary to
prevent death or substantial bodily harm to others. (Note:
the comments to the rule suggest that in these situations,
the lawyer should first raise the issue with the client
before the lawyer decides to reveal the confidence.)
(b) To prevent or rectify substantial financial injury through the
client’s crime or fraud where the lawyer’s services were used in
furtherance of the crime or fraud.C (1.6(b)(2-3))
Example: A corporate lawyer has helped a client make
private offerings in a real estate investment partnership.
After nine months of working for the client, the lawyer
realizes that the client is really a “ponzi scheme” that is
defrauding the existing partners and is seeking to defraud
new partners. Because the client has used the lawyer’s
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services in carrying out the fraud, and because disclosure of
client confidences would help the existing partners
“rectify” the fraud and help the potential partners prevent
being defrauded, the lawyer may reveal client confidences
for those purposes.
Example: Similar facts to the prior example, except that
the person running the investment partnership (i.e., the
person conducting the fraudulent scheme) retains a lawyer
because the he is now being investigated by state and
federal authorities for financial fraud. He needs to hire a
“white collar criminal defense lawyer.” Note that in this
case, the lawyer’s services have not been used in the
carrying out of the fraud. They are being sought only for
defensive purposes. In this case, there is no “may reveal”
exception under 1.6(b)(2-3).
Exception/Distinction: California’s ethics rules do not
permit a lawyer to reveal a client confidence to prevent or
rectify a financial fraud. A California-licensed lawyer who
discovered that the client was committing fraud would
“remonstrate” with the client to stop committing fraud and
would withdraw from representation of the client. (CRPC
3-100)
(c) When the lawyer seeks legal advice about the scope of her
ethical duties. (1.6(b)(4))
Example: Lawyer faces a difficult conflict of interest issue
and seeks legal advice from an ethics specialist. Lawyer
may reveal client confidences in order to obtain that legal
advice.
(d) When the lawyer needs to reveal the confidence to defend the
lawyer from civil or criminal claims against lawyer or in a dispute
between the lawyer and the client.C (1.6(b)(5))
Examples: If the client sues the lawyer for malpractice or
if the District Attorney files criminal charges against the
lawyer, the lawyer may defend herself including by
revealing client confidences to the extent necessary to
mount the defense. But note that the comments to MR 1.6
provide that even if the lawyer is accused less formally, for
example in an accusation made by telephone or in a letter
before the filing of any complaint or charges, she may still
defend herself by revealing client confidences.
Example: Lawyer concludes a business transaction for
client. One month later, during a phone call, the opposing
party in the transaction accuses lawyer of having
committed a fraud during the transaction. Lawyer may
reveal client confidences to defend herself. (Note: this
exception may not strike you as intuitive, because of how
informal the accusation against the lawyer is. (See 1.6,
comment [10].))
(e) If a court order or other law requires disclosure. (1.6(b)(6)).
Specifically, three other rules provide that if a lawyer “may reveal”
a confidence under 1.6(b), then the lawyer “must reveal” the
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confidence under the other rule. That is, there are three rules
where a 1.6(b) “may reveal” becomes a “must reveal.”
[1] As discussed below in the sections on the ethics of
dealing with third parties and on the ethics of negotiations,
because a lawyer must prevent assisting in a criminal or
fraudulent act by a client, in some situations the lawyer
must reveal client confidences by “disaffirming” prior
representations and in rare situations must reveal client
confidences to third parties.C, I (See, §§ IV.G ) (MR 1.2(d) &
4.1)
[2] Under MR 8.1, if the lawyer “may reveal” under 1.6(b),
then the lawyer must reveal as required by 8.1. (1.6[15].
[3] Under MR 8.3, if the lawyer “may reveal” under 1.6(b),
then the lawyer must reveal as required by 8.3.
(f) As noted above, when a lawyer representing an organization has
reported a violation of law all the way up to the highest authority,
the lawyer may reveal client confidences to prevent harm to the
client. (See §§§§IV.D.2.b)(1.13(c))C
(g) As discussed below in the section about the ethics of litigators, a
lawyer must remedy any false testimony she has offered to a
tribunal, including, if necessary, revealing client confidences to the
tribunal. (3.3)(See §§V.A.1)C
c. Work Product defined: A series of court cases has created a right by which a
lawyer may withhold certain materials that were created in anticipation of litigation
(i.e., work product).
(1) “Core Work Product” or “Opinion Work Product.” Depending on the
jurisdiction, the lawyer’s mental thoughts, impressions, strategies, etc., are
either absolutely immune from discovery or can be compelled only upon a
showing of extraordinary need. (Jurisdictions vary on whether
core/opinion work product may be withheld from the client itself.)
(2) Qualified Work Product. Other forms of work product, such as a list of
witnesses generated by the lawyer, may be subject to discovery if the party
seeking the work product can establish a “substantial need” for the
information or that obtaining it in other ways will cause “undue hardship.”
Example: Lawyer meets with a group of witnesses who saw an
accident, generates a list of the witnesses’ names, and also includes
the lawyer’s mental impressions about which witnesses would
make good witnesses at trial. The list of names is qualified work
product and may be ordered to be produced if the other side can
show “substantial need” or “undue hardship”. The lawyer’s mental
impressions are core work product and, depending on the
jurisdiction, cannot be ordered to be produced or will be ordered
to be produced only upon a showing of extraordinary need.
(3) Sometimes the lawyer plays the role of “evaluator” and factually evaluates the
client for the benefit of a non-client. The most common situation is when an
acquiror in a merger demands that the acquiree’s lawyer provides an opinion letter
that makes factual representations about the acquiree. That role is discussed in
section V below. When a lawyer evaluates a client for the benefit of a non-client, the
lawyer is likely to reveal client confidences. The lawyer must obtain proper consent,
after proper disclosure to the client, before doing so. (2.3)
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6. Loyalty. (1.7-1.12)
a. Definition: Conflicts of interest.G Conflicts of interest include any incentive or
interest that might substantially impede the lawyer’s discharge of her duty to the
client. (These are found in rules 1.7 – 1.12.)
b. General analysis:
(1) Is it a conflict?
(2) What lawyers in a firm are affected by the conflict (“imputation” of the
conflict)?
(3) Can the conflict be waived?
(4) How can the conflict be waived?
c. Conflicts with other current clients (1.7)
(1) Conflict: direct adversity to current client
(a) Classic “direct adversity”: suing or negotiating against current
client.
Example: Lawyer represents both Acme and Bravo on
different matters. Acme asks lawyer to draft and file a
lawsuit against Bravo. Result: undertaking that
representation would create a direct adversity conflict
under 1.7.
Example: Lawyer represents both Acme and Bravo on
different matters. Acme asks lawyer to represent it in
friendly contract negotiations against Bravo. Result:
undertaking that representation would create a direct
adversity conflict under 1.7(a)(1).
(2) Conflict: lawyer’s representation of current client will be “materially
limited” by lawyer’s duty to someone else. (1.7(a)(2))
Example: Lawyer represents several persons forming joint venture
and hence cannot represent any one of them on how to structure
the corporation to maximize his or her ownership vis-à-vis the
other founders.
Example: Lawyer is asked by Acme to file a suit against Bravo
(which is not a client.) But a key witness for Bravo is a close friend
of the lawyer. Result: undertaking the representation would be
materially limited by the lawyer’s relationship to the key witness
and hence is a conflict of interest under 1.7(a)(2).
(3) It’s a conflict to be adverse to a current client even if the adversity is
unrelated to what you do for the client. That is, “the matters are unrelated!”
is not a defense to current client conflicts!
(4) Representing two economic competitors in non-adverse matters is not
by itself a conflict. Representing one economic competitor on how to
compete against the other is a conflict if both are current clients.
Example: Lawyer represents Coca-Cola on some real estate lease
matters and represents Pepsi regarding its foreign tax liabilities.
Result: Although the two companies are economic competitors,
because it appears that neither representation entails adversity
toward the other client, there is no conflict of interest.
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(5) In some situations, taking inconsistent positions for two different
clients may raise a conflict of interest.
(a) Conflict exists if conduct for one client will “materially limit the
lawyer’s effectiveness in representing another client in a different
case.” (1.7[24])
(6) Consent -- “Current Client Rule”
(a) There is a small category of “always non-consentable” conflicts:
representing opposing sides in same litigation.
Example: Acme sues Bravo and both companies ask
Lawyer to represent. Lawyer may not represent the
opposing sides in the same litigation.
Example: Acme sues Bravo and Charlie as co-defendants.
Result: If the defenses of Bravo and Charlie are compatible
and if both companies consent to the joint representation,
Lawyer may represent the co-defendants.
(b) The lawyer must reasonably believe she can competently
represent each client.
(c) Each affected client must give informed consent, confirmed in
writing .A,G (ICCW; discussed below)
(7) “Hot Potato Rule.” A lawyer may not “fire” a client or terminate an ACR
for the purpose of taking on a matter adverse to the client. The act of
“dropping a client like a hot potato” for that purpose does not negate the
conflict.
Example: Client represents Acme, Inc., on some small matters.
Bravo, Inc., asks the lawyer to represent it on a huge lawsuit
against Acme. Lawyer may not terminate the ACR with Acme for
the purpose of taking on the matter adverse to Acme.
d. Conflicts with lawyer’s own interests.
(1) Liens and other “doing business with client” issues. (1.8(a))A
(a) Liens. A lien is a property right to possess something that the
lien holder does not own. When lawyers obtain liens, they are
usually liens against the recovery in the case or liens against the
client’s assets (e.g., the client’s house) to ensure payment of the
legal fees.
Example: To protect her interest Lawyer asks client to
agree that the lawyer may have a lien on any recovery in
the case. Result: if lawyer complies with the technicalities
of 1.8(a), the lien is permitted.
Example: To protect her interest in recovering fees from
the client, lawyers add a provision to the fee agreement by
which lawyer takes a lien on the client’s house. Result: if
the lawyer complies with the technicalities of 1.8(a), the
lien is permitted.
(b) “Business transaction with client.” If the lawyer will be
entering into a business relationship with the client, the provisions
of 1.8(a) apply.
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Example: Lawyer advises client on real estate investment
partnerships. Client offers to let lawyer join one of the
partnerships. Result: lawyer may do so if the lawyer
complies with 1.8(a).
Example: Lawyer represents start-up companies and
offers that in lieu of cash payments, the client may pay the
lawyer with shares of stock in the client. Result: lawyer
may do so if the lawyer complies with 1.8(a).
(c) All of these relationships are prohibited unless (i) the
transaction is “fair and reasonable”; (ii) is disclosed in writing; (iii)
the client is advised of the desirability of seeking independent
counsel about the relationship; (iv) client is given a reasonable
opportunity to seek the advice of independent counsel; and (v)
client gives informed consent in a writing signed by the client (IC,
WSC). A,G
(2) Gifts and inheritances from clients (1.8(c)).
(a) A lawyer should not solicit any substantial gift from a client
unless the client is related to the lawyer. (Note: the rule bars
solicitation of gifts. It does not absolutely bar lawyers from
accepting unsolicited gifts from non-related clients. )
Example: Lawyer asks elderly client to give lawyer a silver
vase that lawyer has long admired. Client is not a relative
of lawyer. Result: Lawyer has violated 1.8(c).
Example: As a token of appreciation, Client gives Lawyer a
silver vase that Lawyer in no way solicited from client.
Lawyer may accept the vase without violating 1.8(c). Note,
however, that most states have common law rules
providing that the client may rescind such gifts or that if
the client wishes the gift returned then the lawyer bears
the burden of proving that the gift was not obtained
through undue influence.
(b) The lawyer may not prepare on behalf of a non-relative client
any instrument (e.g., will or trust) that gives the lawyer or any
related persons to the lawyer any substantial gift. (“Related
persons” include spouses, children, grandparents, grandchildren or
other person or relative with whom the lawyer maintains a close,
familial relationship.)
Example: Lawyer writes a will for client leaving an
antique car to Lawyer. Client is not related to Lawyer.
Result: lawyer has violated 1.8(c).
Example: Lawyer writes a will for client leaving $10,000
to the lawyer’s child. The client is not a relative of Lawyer.
Result: Lawyer has violated 1.8(c).
Example: Lawyer’s mother asks lawyer to draft a will by
which lawyer and her two sisters will equally share the
mother’s estate. Result: lawyer has not violated 1.8(c).
(Note, however, that under most states’ common law, it
may be possible to void the inheritance by the lawyer if it
can be proven that the inheritance was obtained through
coercion or undue influence.)
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(3) Literary rights from client (1.8(d)). Prior to the conclusion of the
matter, a lawyer shall not make or negotiate an agreement giving the
lawyer literary rights in the client’s matter.
Example: A criminal defense lawyer is engaged by a client who
lacks money. Because the case is sensational and has been in the
news, the lawyer bargains with the client at the outset of the matter
to obtain the right to literary rights about the case. Result: lawyer
has violated 1.8(d).
(4) Financial assistance to clients (1.8(e)). Generally, lawyer shall not
provide client financial assistance (e.g., pay rent, medical bills).
(a) Rationale: gives lawyer too much power and influence over
client.
(b) Lawyer may advance court costs and litigation expenses and
repayment may be contingent on litigation success.
(c) Lawyer may outright pay court costs and expenses of indigent
clients.
(5) Third party payors. (1.8(f)) If someone other than the client is paying
the legal fees, lawyer must obtain the client’s informed consent; must
prevent interference with lawyer’s independent judgment for the benefit of
the client; and must protect client confidences.
(a) Frequently tested fact pattern: Lawyer represents the insured
but the legal fees are paid by the insurer. Lawyer must serve only
the interests of the client-insured, must protect the client’s
confidences, and must obtain the client’s informed consent to the
payments by the insurer non-client.
(6) Aggregate settlements. (1.8(g))A Lawyer shall not participate in making
an aggregate settlement unless (i) each client gives informed consent in a
signed writing and (ii) lawyer’s disclosure states existence and nature of
the claims and settlements for all participants.
(a) Exception: where aggregate settlement in criminal case doesn’t
involve guilt or nolo contendere.
(7) Malpractice liability, limiting liability, and settlements. (1.8(h))A
(a) Lawyer shall not prospectively limit malpractice liability unless
client is independently represented by counsel regarding the
limitation.
(b) Lawyer shall not settle malpractice liability unless the client is
advised in writing of the desirability of seeking independent
counsel regarding the settlement and is given a reasonable
opportunity to obtain independent counsel regarding the
settlement.
(8) Acquiring proprietary interest in litigation. (1.8(i)) This is forbidden,
except that lawyer may obtain lien (discussed above) or reasonable
contingency fee (discussed below).
(9) Sexual relationship with clients. (1.8(j)) Sexual relationships with
clients are forbidden unless the relationship pre-existed attorney client
relationship.
e. Conflicts arising from public service. (6.1 – 6.5)
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(1) For lawyers involved with a Legal Services Organization, the lawyer
shall not knowingly participate in decisions that involve adversity to the
lawyer’s client. (6.3)
Example. Lawyer sits on the board of a legal services organization
deciding whether to sue a residential landlord in town. The
landlord is a client of Lawyer’s firm. Lawyer shall not participate in
the decision.
(2) For lawyers involved with law reform activities, if the organization is
making a decision that might materially benefit a client, the lawyer shall
disclose that fact, but does not need to identify the client, and may
participate in the decision. (6.4)
Example. Lawyer sits on the board of “Riverside Environmental
Alliance,” which is involved in lobbying, legal reform, etc. The
Alliance is considering a proposal that, if passed, would benefit
several of Lawyer’s clients. Lawyer shall disclose that fact, but
need not identify the particular clients, and may then participate in
the decision without violating the ethics rules.
(3) For lawyers involved in non-profit and court-annexed limited legal
services, the lawyer shall abide by the conflicts rules to the extent the
lawyer actually realizes that there is a conflict issue while participating in
the service, and if the representation will be continued the lawyer will do a
full conflicts check. (6.5)
Example. Associate participates in a court-annexed program
called “Tenant’s Rights Clinic,” that educates tenants about their
legal disputes. As Associate fields questions from tenants, if the
Associate realizes that the question is adverse to a firm client the
Associate should not participate—but Associate does not have to
run a conflicts check and if it turns out that the question was
adverse to a firm client the Associate has not breached the ethics
rules. If the legal representation does not terminate at the end of
the conversation, the Associate will run a full conflicts check.
f. Conflicts with former clients.
(1) Adversity by lawyer who “formerly represented” a client. (1.9(a))
(a) It’s a conflict if the new matter adverse to the former client is
the “same or substantially related to the matter” the lawyer
previously handled for the former client. (“SOSRM”).G
(b) The term of art, “same or substantially related to the matter”
(SOSRM) enables the court to weigh the danger that the former
client’s confidences will now be used against the client.
(c) SOSRM can be based on the similarity of legal issues in the
previous matter for the former client and the new adversity to the
client. But SOSRM can also be present if the facts disclosed in the
previous matter are the kinds of facts that would be useful in the
adversity to the former client.
(2) Adversity by lawyer whose prior firm represented a client (1.9(b))
(a) It’s a conflict for a lawyer to undertake a matter adverse to
prior firm’s client if the matter is SOSRM to what the prior firm did
for client and if the lawyer acquired material confidences from
prior firm’s client.
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Example: While Lawyer was at the firm of Able & Baker, lawyers at
that firm represented Consolidated, Inc., on securities law issues.
Lawyer did not represent Consolidated on those matters. Lawyer
then moves to firm of Delta & Echo. Financial Services, Inc., wants
to hire Lawyer and Delta & Echo to sue Consolidated Inc. for
securities law fraud. If Lawyer acquired any material confidences
of Consolidated while at prior firm, then it would be a conflict for
Lawyer to undertake the adversity to Consolidated, even if Lawyer
herself did not represent Consolidated while at Able & Baker.
(1.9(b))
(3) Use or revelation of information relating to the lawyer’s prior
representation of a client, or relating to the lawyer’s firm’s representation
of a client. (1.9(c))
(a) Cannot use such information to the disadvantage of the former
client except as permitted in the rules or when such information
has become generally known.
(b) Cannot reveal such information except as permitted by the
rules.
(c) Notice how broad that definition of information is: any
information relating to the representation.
(d) Example: Lawyer helps Real Estate Investors, Inc., plot
strategy for the purchase and redevelopment of land in various
parts of town. In doing so, Lawyer learns (i) how the zoning
process works in that town; and (ii) which properties the client
thinks are undervalued in the market. Both are “information
relating to the representation.” Lawyer can make use of (i) for
other clients and to build her book of business, so along as the
matters are not to the detriment of Real Estate Investors, Inc.
Lawyer cannot make use of (ii) to purchase the land that Lawyer
knows that Real Estate Investors wants to buy.
(4) Special case: government lawyer.
(a) Must follow government’s own conflicts rules and statutes
(b) Current government lawyer cannot participate in matter in
which lawyer “personally and substantially” worked before
government service. (1.11(d))
(c) Current government lawyer cannot negotiate for private
employment with party or lawyer in matter in which government
lawyer is participating “personally and substantially.” (1.11(d))
Example: Government lawyer is personally and
substantially negotiating for City a lease on City property
under which Acme Inc., may become be a lessee. The law
firm of Able & Baker is representing Acme on the lease
negotiations across from Government lawyer. Government
lawyer may not negotiate for employment with Able &
Baker while the matter is ongoing.
(d) Former government lawyer can’t participate in matters in
which she participated “personally and substantially” as a
government lawyer. (1.11 (a))
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(1) Former government lawyer’s disqualification is
imputed to others at the firm unless lawyer is timely
screened, prompt written notice is given to government
agency so it can ascertain compliance, and the former
government lawyer receives no part of the fees in the
matter. (1.11(b))
(e) Former government lawyer cannot be adverse to person when
lawyer obtained material confidences about that person while as a
government lawyer (1.11(c))
(1) Former government lawyer’s disqualification under
this rule is imputed to others at firm unless lawyer is
timely screened, the former government lawyer enjoys no
portion of fees from matter, and the former client is given
notice. (1.11(c))
(5) Special case: former judges, neutrals, and law clerks.
(a) Special rules apply to judges & adjudicative officers (and their
law clerks); and to third party neutrals (arbitrators and mediators)
(“Neutrals”). (1.12(a))
(c) Former neutral shall not represent anyone in connection with a
matter in which they participated “personally and substantially” in
neutral role.
(1) But may do so if all parties consent, confirmed in
writing.
(b) A neutral shall not negotiate for employment with party or
lawyer appearing in a matter in which the Neutral is “personally
and substantially” participating. (1.12(b))
(1) Exception: law clerks can, after notice to supervisor
Neutral.
(d) Former Neutral’s disqualification is imputed to other lawyers
at firm unless timely screened, enjoys no portion of fees; timely
notice is given to parties and the appropriate tribunal.
g. Conflicts with third parties. Conflicts can arise out of the lawyer’s relationships
with persons other than clients.
(1) Third party payors. When a non-client pays the client’s legal fees, the
conflict is that the lawyer may reveal client confidences to the payor or may
let the payor make decisions that belong to the client. (1.7; 1.8; 5.4)
(2) Opposing lawyer. The lawyer may have a personal or professional
relationship with the lawyer on the opposing side. If that relationship is
likely to materially limit the lawyer’s representation of the client, it is a
conflict of interest. (1.7)
(3) Witnesses..
h. What lawyers are affected by the conflict (“imputation”)? Once we determine
that any lawyer has a conflict of interest, we must ask if that conflict applies to other
lawyers—that is, if the conflict is “imputed” to other lawyers.
(“Imputation” is the ABA term of art, and it’s discussed mostly in MR 1.10. Under
the California approach, we ask if there is a “vicarious” imputation of other lawyers.
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As of Fall 2011, California has no ethics rule that directly addresses the issue; the
issue is addressed by California case law.)
(1) Definition: “Firm.”G When applying imputation rules, it’s important to
remember that the term “firm” includes a wide variety of scenarios where
lawyers are working in a cohesive work setting, including private practice
firms, in-house corporate law departments, legal services organizations, etc.
(1.0(d))
(2) Conflicts arising under MR 1.8: imputation is governed by 1.8(k)
(a) You will recall that 1.8 regulates a series of specific conflicts
scenarios. (§§IV.f.6.d.) Rule 1.8(k) provides that whenever a
lawyer in a firm has a conflict under 1.8-- except for the prohibition
regarding sexual relations with a client--then the conflict is
imputed to all the lawyers at the firm,.
(3) Rule 1.10(a) governs imputation of conflicts arising under 1.7 (current
client conflicts) and 1.9 (former client conflicts).
(4) “Old Rule 1.10(a).”
(a) Rule 1.10(a) was amended in August 2009. Under the old
version of rule 1.10(a), which is still the dominant approach in
most states, when a lawyer in a firm has a conflict under 1.7 or 1.9
arising from the private practice of law, then the conflict is imputed
to all the lawyers at the firm.
(b) Under the old 1.10(a), and under the current rule as well, when
a lawyer has a conflict arising from previously serving as a
government lawyer or third party neutral (judge, arbitrator,
mediator), imputation is regulated by 1.11 (government lawyers)
or 1.12(former third party neutrals).
(5) “New Rule 1.10(a)” (As of August 2009)
(a) A lawyer’s conflict is not imputed to others at the firm if it
arises from a personal interest of the disqualified lawyer and does
not present a significant risk of materially limiting the
representation of the client by the other members of the firm.
(1.10)(a)(1)).
Example: Suppose that a partner at Able & Baker formerly
served on the board of directors of a local college where
she is a loyal and devoted alum. Her firm is asked to file a
suit against that college. The individual partner may well
have a personal interest conflict under 1.7(a)(2), but that
conflict probably will not be imputed to other lawyers at
her firm.
(b) A lawyer’s conflict arising under 1.9(a) or (b), resulting from
legal work at a pervious place of employment will not be imputed to
others at the lawyer’s current firm if these conditions are met:
(1) The disqualified lawyer is timely “screened” from
participation in the matter, including from participating in
the fee; and
(2) Written notice is promptly given to any affected
former client, including a description of the screen, a
statement that the lawyer and firm are complying with the
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screen, a statement that review may be available before a
tribunal, and an agreement to respond to written inquiries
about the screen. (1.10(a)(ii)); and
(3) Certificates of compliance are provided to the former
client upon request and at the conclusion of the screen.
Example: Lawyer formerly worked at the firm
Able & Baker, where she represented Cargo, Inc.
on a patent litigation matter. Lawyer moved to the
firm of Delta & Echo, which wants to undertake a
patent litigation matter adverse to Cargo on the
very same subject matter that Lawyer worked on
for Cargo. Lawyer clearly has a former client
conflict under 1.9 and cannot work on the matter
without the consent of Cargo—which is unlikely to
give consent. But, if her new firm complies with
all the provisions of the new version of 1.10, then
Lawyer’s disqualification is not imputed to the
other attorneys at her new firm and other lawyers
at her new firm can undertake the matter adverse
to Cargo.
(c) If a lawyer leaves a firm, and the departed lawyer’s client is no
longer a client of the firm, then under 1.10(b) the firm may
commence representations adverse to the former client unless:
[1] The new matter is the same or substantially related to
that in which the firm formerly represented the client; and
[2] Any lawyer remaining in the firm has confidential
information material to the new matter.
Example: While at the firm of Able & Baker,
Lawyer represented Cargo, Inc. Then she left that
firm and Cargo was no longer a client of Able &
Baker. Six months later, a potential new client
wants to hire Able & Baker to sue Cargo. Result:
Able & Baker can ethically take on the new matter
adverse to Cargo unless the new matter is the
same or substantially related to the matter in
which the firm represented Cargo and any lawyer
at Able & Baker has confidential information
material to the new matter.
(d) Imputed conflicts may be waived as provided in 1.7 (Informed
Consent, Confirmed in Writing, “ICCW”).
(e) The imputation of the conflicts of a lawyer who formerly
worked in a government setting is governed by 1.11; imputation of
conflicts of former third party neutrals (including former judges) is
governed by 1.12.
i. What conflicts are consentable:
(1) Only if the lawyer reasonably believes she can fulfill her duties to the
client.
(2) Cannot represent opposing parties in the same lawsuit (automatically
not reasonable).
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j. How can consent be obtained (“basic waiver”).
(1) “Informed consent, confirmed in writing.”A, G
(2) Informed consent requires informing the client of implications,
disadvantages, etc. of the waiver
(3) “Confirmed in writing.”C
(a) The consent may be confirmed in writing by obtaining the
client’s signature (or other writing) on a consent waiver.
(b) The consent may be confirmed in writing by having the lawyer
obtain an oral consent and then promptly sending the client a
written confirmation of the consent. (Note: when the lawyer uses
this option for confirming the consent in writing, there is no writing
obtained from the client.)
(4) This formula works for current client (1.7) and former client conflicts
(1.9) but some of the sub-paragraphs of MR 1.8 do require specific
disclosures and writings signed by the client.A
7. Independent Judgment. (2.1)
a.
Lawyer must give candid assessment.
b.
Advice must be independent of outside influences.
c.
Lawyer may, but is not required to, refer to social factors such as morality
in addition to providing legal analysis.
d.
Lawyer may seek out advice from other specialists.
8. Safeguarding Property
a.
Trust Fund Account
(1)
Must keep lawyer’s money and client’s money separate! To the
penny!
(a) Advance fees. When the client pays the lawyer fees in advance
(what lawyers sometimes call “advance retainers”), the fees remain
in the trust account until they are earned, after which they must be
promptly moved out of the trust account.
(b) Advanced costs. When the client pays the lawyer costs in
advance (e.g., a $25,000 check for the anticipated costs of an expert
witness) the advance costs remain in the trust account until they
are incurred, after which they must be promptly used to pay the
costs incurred.
(c) Distinguish: non-refundable retainers
(2)
IOLTA (Interest on Lawyers Trust Account) vs. Interest-bearing
account:
(a) When to use IOLTA or separate trust account:
[1] If the money is so little and will be in the account for so
short of a time that it will not generate interest that can
cover the costs of opening the account and then paying
interest to that client, then the lawyer must deposit the
money in an IOLTA account. The interest goes to the state
bar and is typically used to fund legal services for the poor.
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[2] If the interest on the money will exceed the cost of the
setting up the account (because the amount is large or will
be in the trust account for a loner period of time), then the
funds should be set up in a separate trust account so that
the interest can be paid to the client.
Example: Lawyer asks client for $1,000 in
advance costs that lawyer expects to spend in the
first three weeks of the engagement. The $1,000
should be placed in an IOLTA trust account.
Example: In preparation for a major patent
infringement and antitrust suit, law firm asks
client to pay advance fees of $1,000,000 and
advance costs of $500,000. Firm expects that most
of these fees and costs will not be incurred for
several months. Result: the money should go in a
separate account that bears interest that is paid to
the client.
(b) Requirements that lawyer place certain funds in IOLTA
accounts are constitutional. (It is a “taking,” but because there
would be no interest paid on such small, short-term accounts, no
compensation is owed.)
(3)
Disputed funds
(a) Disputed funds remain in the trust account. The lawyer must
get the dispute resolved promptly and if necessary initiate a legal
proceeding to determine who owns the funds.
(b) This is a commonly tested fact pattern! Even if the client
unfairly and unreasonably contests ownership of funds that appear
to clearly belong to the lawyer, the lawyer shall not pay out the
disputed funds to herself.
Example: Lawyer enters into a contingency fee agreement
with client-plaintiff by which lawyer earns 33% of all
recovery. Defendant pays $300,000 to settle the matter.
Lawyer places the $300,000 in the IOLTA trust account
because she expects the funds to be paid out in the next
few days. Client unexpectedly and unfairly reneges on the
fee agreement and asserts that lawyer deserves only
$5,000 in fees. The lawyer promptly pays the client
$200,000 from the trust account because there is no
dispute as to the client’s ownership of 66% of the money.
Lawyer promptly withdraws $5,000 from the trust account
and pays herself because there is no dispute over her
ownership of that money. Lawyer leaves the remaining
money ($95,000) in the trust account, because they are
disputed funds. Lawyer promptly initiates negotiations
and if necessary a legal process to determine if she or the
client is entitled to the remaining funds. Result: lawyer has
correctly handled the situation.
b.
Other property not belonging to the lawyer.
(1) The lawyer must keep the property “safe and separate” from the
lawyer’s own property.
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(2) Placing the property in a safe deposit box or a safe is a classic method
for keeping property “safe and separate.”
(3) If the lawyer undertakes to act as an escrow agent, the lawyer assumes a
fiduciary duty to others, possibly including non-clients. The lawyer’s desire
to benefit a client does not permit the lawyer to violate her duties as escrow
agent.
G. Duties Related to Attorneys Fees
1. Clients may owe lawyers contractual duties, whereas lawyers owe clients fiduciary duties.
2. FeesC
a. Under the ABA approach, all fees must be “reasonable.” Reasonableness turns on
time and labor required; novelty required; skill required; customary fees in that
market; results obtained, experience, reputation and the ability of the lawyer.
(1.5(a))
(1) California uses a test of “unconscionability” rather than
“reasonableness” for legal fees. But the factors are similar. (CRPC 4-200)
b. Under the ABA approach, the scope of the representation and basis for fee shall
be communicated to client, “preferably in writing.” (1.5(b))
(1) The lawyer may charge regularly represented clients the same rate as
was charged on previous matters.
(2) Changes in the basis or the rate shall be communicated as well.
c. In California, the State Bar Act (Cal. Bus. & Prof. Code §6000, et seq.) extensively
regulates fee agreements (Cal. Bus. & Prof. Code §6146, et seq.).
(1) When it’s foreseeable that fees and expenses to the client will exceed
$1,000, the lawyer is required to obtain a written fee agreement signed by
the lawyer and the client.
(2) Among other things, the fee agreement shall contain the nature of the
services to be rendered, the rates, fees, and charges.
(3) Bills must state the basis for the charges.
(4) Failure to comply with the rules about fee agreements and bills renders
the agreement voidable at the client’s choice; whereupon the lawyer is
entitled to a “reasonable fee” (i.e., quantum meruit).
d. Fees may be contingent upon the result obtained.
(1) Shall be in writing and signed by client. (1.5)
(2) Shall state basis for fee; shall state if expenses deducted before or after
the contingent fee calculated
(3) At conclusion of the representation a writing shall set forth the final
dispersal of fees and recovery.
(4) No contingent fees permitted for representing defendant in criminal
matters; or in domestic relations matters for securing divorce or upon the
amount of alimony or the property settlement. (1.5(d))
(5) Note: California has extensive regulation of contingency fee agreements
in the State Bar Act (at Cal. Bus. & Prof. Code §6146, et seq.)
e. “Division” of fees (“Fee splitting”): ABA and California approaches.
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(1) When we discussed “fee splitting” we usually mean that the fees paid to
one lawyer will be shared (or split) with another lawyer at a different firm.
(2) As discussed above (§§II.C) lawyers shall not split fees with a nonlawyer.
(3) Under the ABA approach, a lawyer can split fees with another lawyer in
a different firm if client agrees; the client’s agreement is confirmed in
writing; total fee is reasonable; and each lawyer’s fee is in proportion to the
services performed or if each lawyer assumes joint responsibility for the
representation. (1.5(e))
Example: Lawyer (“first lawyer”) is retained in a personal injury
matter and quickly realizes that it requires legal skills she does not
possess. She decides to have a lawyer who is experienced in that
field work on the matter (“second lawyer”). First lawyer and
second lawyer agree that first lawyer will do very little work on the
matter and will not assume responsibility for the entire matter and
that first lawyer will split the fees 50/50 with the second lawyer.
Result: both lawyers have violated 1.5.
Example: Same as the prior example, except that first lawyer will
split the fees with second lawyer in a way that reflects the amount
of work each has done on the matter. Result: if the client’s consent
is properly obtained, the two lawyers have not violated 1.5.
Example: Same as the prior example, except that first lawyer and
second lawyer agree that first lawyer is jointly responsible for the
representation. Result: if the client’s consent is properly obtained,
the two lawyers have not violated 1.5.
(4) Under the California approach, a lawyer may split fees with a lawyer in
another firm if (i) the client has consented in writing after a full disclosure
in writing that a division of fees will be made and the terms of the division,
and if (ii) the total fee charged by all lawyers is not increased solely by the
division and is not unconscionable.
Note that California’s rule does not require that lawyers be compensated in
accordance to the work they perform or that all lawyers receiving a division
assume responsibility for the matter. California therefore follows the
minority approach in allowing “bare” referral fees or “raw” fee splitting.
Example: Same as the prior examples, except that California law
governs. First lawyer and second lawyer agree that first lawyer will
do no work on the matter but will receive 1/3 of all the fees that
the second lawyer earns on the matter (i.e., “a third of a third”).
Result under California law: if the client’s consent is properly
obtained, the two lawyers have not violated California’s ethics
rules. This arrangement is one that is often called a “bare” referral
fee.
H. Termination of the ACR
1. Tribunal’s permission needed after appearance:
a. Once a lawyer has made an appearance before a tribunal, the tribunal’s
permission is needed before the lawyer can withdraw. (1.16(c))
b. A competent client’s right to terminate an ACR is so strong that a tribunal will
ordinarily prohibit a client’s request to terminate the ACR only if the matter is in
mid-trial. (case law)
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c. If the tribunal orders a lawyer to continue the ACR, the lawyer shall obey the
order even if the ethics rules otherwise suggest that the lawyer must withdraw.
(1.16(c))
2. Termination by Client:
a. Subject to any requirement that a tribunal approve the termination of the ACR, a
competent client has a nearly absolute right to terminate the ACR.
b. Termination of the ACR generally terminates the lawyer’s authority to bind the
client. However, the lawyer may have continuing duties to the client and the court
upon termination. (See below)
b. There is a body of case law to determine what compensation, if any, the client
owes the lawyer following termination.
c. Government lawyers may be protected from termination by various laws (e.g.,
whistle-blower statutes) or by collective bargaining agreements.
d. Corporate employee lawyers may or may not have the right to seek damages for
wrongful termination. This is an emerging issue under state law.
3. Termination by Lawyer: “Shall” withdraw (1.16(a)) if:
a. Continuing the ACR would breach ethics rules or other governing law (MR
1.16(a)(1)); or
b. The lawyer’s physical or mental condition materially impairs the lawyer’s ability
to carry out the representation (MR 1.16(a)(2)); or
c. The lawyer is discharged. (MR 1.16(a)(3))
d. The CRPC on mandatory withdrawal, at 3-700(B), is substantially similar to the
ABA rules, at 1.16(a).
4. Termination by Lawyer: “May” withdraw 1.16(b)) if:
a. Can be done without material adverse effects on the interests of the client.
(1.16(b)(1))
b. Client persists in conduct the lawyer reasonably believes is criminal or fraudulent
conduct. (1.16(b)(2))
c. Client has used lawyer’s services to perpetuate a crime or fraud. (1.16(b)(3))
d. Client insists upon taking action that is “repugnant” to the lawyer and with which
the lawyer has a “fundamental disagreement.” (1.16(b)(4))
e. Client has breached an obligation or duty to the lawyer and the client was given
reasonable warning that the lawyer would withdraw if the breach was not
remedied. (1.16(b)(5))
(1) This usually involves the client’s failure to pay legal fees.
e. Representation will unduly burden the lawyer financially or the client has
rendered the ACR unreasonably difficult. (1.16(b)(6))
f. Other good grounds. (1.16(b)(7))
g. The CRPC, at 3-700 (C), provide similar grounds for permissive withdrawal, and
also provide for permissive withdrawal if an inability to work with co-counsel
renders withdrawal in the client’s best interests. (3-700(C)(6))
5. Termination by completion of assigned task
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a. If the A-C engagement contract or the client’s reasonable expectations so provide,
the ACR is terminated by the lawyer’s completion of the assigned task. (MR 1.3(4);
Rest. LGL §31)
b. If the lawyer has represented the client on a number of matters over time or if
the client’s reasonable expectations are that the ACR continues even after
completion of an assigned task, the ACR may be found to continue. (MR 1.3(4); Rest.
LGL §31)
c. The lawyer should prevent confusion, and clarify confusion, by use of a writing.
d. This is a major risk management issue for private practice lawyers. The
recommended course is to send a friendly termination letter at the conclusion of
each matter.
6. Termination by operation of law occurs upon:
a. Death or incapacity of lawyer. (Rest LGL §31(2)(d))
(1) Lawyer’s incapacity includes loss of law license.
b. Death or incapacity of client. (Rest LGL §31(2)(b))
c. Court orders terminating the ACR.
(1) Typically, this results from an order granting disqualification.
d. When a lawyer changes firms:
(1) When a lawyer representing a client changes firms, the client has the
right to decide who will continue with the ACR.
(2) Many ethics authorities recommend that the departing lawyer and the
prior firm write a joint letter asking the client to decide who will represent
client going forward.
7. Procedure for withdrawal:
a. Where no appearance has been made before a tribunal, no formal procedure is
required; provided, however, that the terminated lawyer must fulfill the duties upon
termination discussed below.
b. In cases pending before a tribunal, where the terminated lawyer and client agree
upon withdrawal, it may be sufficient under local rules to file a “substitution of
counsel.”
c. Some tribunals require a motion to substitute counsel even if the terminated
lawyer and client agree upon the withdrawal. (This is typically required in federal
courts.)
d. If the terminated lawyer and client do not agree upon withdrawal, it is generally
necessary to file a contested motion to withdraw. In doing so, the lawyer has a duty
to bring the motion in such a way as to avoid prejudicing the client’s interests.
Depending on the situation, that may include informing the court that the
withdrawal is premised upon a rule of professional responsibility but while
simultaneously omitting the specific details that led to the motion. Sometimes the
withdrawing lawyer may offer to reveal some pertinent facts under seal for in
camera review. The lawyer should carefully follow the procedures in that
jurisdiction regarding contested motions to withdraw.
8. Duties pertaining to termination:
a. The lawyer must comply with tribunal’s rules
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b. The lawyer must withdraw without prejudice to client: generally shall not
withdraw on the eve of deadlines where client cannot obtain alternative services.
(1) The duty of communication generally requires the lawyer to inform the
client of deadlines that it or successor client counsel must meet.
(2) It is prudent for the lawyer to inform the client of the consequences of
failing to meet those deadlines and of the fact that the lawyer will not be
calendaring those deadlines or further warning client of the deadlines.
c. The lawyer has a duty to return or “surrender” the client’s file:
(1) Depending upon local law, the file may actually be the property of the
client.
(2) Generally, the lawyer must promptly deliver the file to the client upon
termination of the ACR.
(a) Under California law, the file must be returned if the client
demands it.
(b) The ABA rule provides that the lawyer shall “surrender paper
and property to which the client is entitled.” (1.16(d))
(c) Increasing numbers of jurisdictions require the lawyer to
deliver any existing electronic documents in the client’s file. That
would include emails and e-copies of papers and documents in the
file.
(d) The California, ABA, and majority approach is that it is an
ethical violation to refuse to surrender the file until the client has
paid legal fees to the lawyer. (In a minority of states, this is
ethically permitted either if the lawyer contracts for a lien on the
file or if the law in that state automatically provides for a lien on
the file.)
(e) In California and many other jurisdictions, the lawyer may keep
a copy of the client file at the lawyer’s own expense. (Often,
lawyers do this when they fear that a malpractice or liability suit
may ensue from the representation.)
d. The lawyer has a duty to return unearned fees, other funds to which the client is
entitled, and any other property belonging to the client.
I. Post-Termination Duties (duties surviving termination of the ACR).
1. Rules pertaining to confidentiality survive the ACR. (e.g., MR 1.6; 1.9(a)-(c))
2. Lawyer must forward to client or successor counsel any communications the lawyer
receives pertaining to the terminated ACR. (Rest LGL §33(2)(c))
3. The duty of loyalty survives the ACR to the extent the conflict of interest rules turn on the
terminated lawyer’s receipt or possession of client confidences. (e.g., MR 1.6; 1.9(a)-(c))
Additional aspects of the duty of loyalty to former clients are somewhat vague. For example,
some cases suggest that a lawyer should not attack its prior work product, even when the
attack does not implicate the lawyer’s duty of confidentiality to terminated clients.
4. There are a few cases dealing with unusual fact patterns that suggest that a lawyer has a
continuing duty of loyalty that precludes the lawyer from attacking her own work product or
the subject matter that was the focus of her prior efforts for the former client. These cases
suggest that there may be a residual duty of loyalty to former clients that is not tied to the
former client’s confidences. (See, e.g., Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811
(2011))
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V.
Lawyers’ Duties to Third Parties and Social Systems during the Attorney Client Relationship
A. Duties to Non-clients during the ACR
1. Duties to All Third Parties
a. Lawyers have a duty not to make false statements of fact or law to third persons.
(4.1)
(1) Misrepresentations to non-clients are forbidden. Such
misrepresentations include false or misleading statements. (“Misleading”
statements include those that are partially true but intended to create in the
listener a false factual apprehension.)
(2) Under generally accepted norms of negotiation, certain statements are
deemed not to be factual representations. (4.1[2]) For example, (i)
statements about the price or value place on the subject of a transaction or
the amount that would be an acceptable settlement and (ii) the use of an
undisclosed principal are generally deemed not to be material factual
representations.
Example: Plaintiff tells her lawyer that she will accept any
settlement offer of $100,000 or greater. Plaintiff’s lawyer gets on
the phone and says to defendant’s lawyer, “My client will not accept
less than $300,000 for her claim.” Result: Lawyer has not violated
MR 4.1.
Example: The Walt Disney Company has decided to build a new
theme park in a rural region of Indiana and needs to buy several
parcels of land. Walt Disney’s lawyer fears that if she reveals that
the potential buyer is Walt Disney, the price of the land will skyrocket. So she forms a half dozen companies with non-descript
names like “Jones Family Farm Corporation,” and approaches the
farm owners to buy their land. Result: By itself, the use of
undisclosed principals is not a violation of MR 1.4. (Note, however,
that in other contexts, use of undisclosed principals and proxies
might violate substantive law and, if so, the lawyer would not be
permitted to facilitate that use.)
b. Duty to Disclose Material Facts to Avoid Assistance in a Crime or Fraud. (4.1(b))
(1) When it is necessary to prevent the lawyer from assisting a crime or
fraud, and when disclosure is permitted under MR 1.6(b), the lawyer must
prevent the assistance, even if prevention results in a disclosure of client
confidences. (Recall that “may reveal” situations under 1.6(b) can become
“must reveal” situations under the conditions set forth in MR 4.1, 8.1 and
8.3.) The comments to MR 4.1 describe three ways that the lawyer may
avoid assisting the crime or fraud.
(a) The lawyer might simply withdraw from the representation and
no longer assist the client who intends to commit a crime or fraud.
(b) The lawyer might make a “noisy withdrawal” and disaffirm any
prior express or implied representations made to the third person
or opposing party.
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Example: Lawyer is assisting client to sell a large
apartment building. Based upon representations from her
client, lawyer has told the potential purchaser during
negotiations that the building contains no asbestos.
Lawyer recently learned from her client that asbestos is
present in the building, although client hopes to have it
removed before the transaction is consummated. The
seller’s lawyer telephones the potential buyer’s lawyer,
announces that lawyer is no longer assisting the seller, and
“disaffirms” any prior representations she may have made
to the potential buyer. (Note that in this scenario, the
lawyer for the potential buyer will almost certainly deduce
that a misrepresentation has been made to the buyer.)
(c) The lawyer may reveal the specific client confidence itself when
necessary to prevent assisting a crime or fraud.
c. Respect for rights of all third persons. (4.4)
(1) The lawyer shall never use means that have no substantial purpose
other than to embarrass, delay, or burden a third person (4.4(a));
(2) A lawyer shall never use methods of obtaining evidence that violate the
legal rights of a third person (4.4(a));
(3) A lawyer who receives a document relating to the representation of the
lawyer’s client and knows or should reasonably know that the document
was inadvertently sent shall promptly notify the sender (4.4(b)).
2. Duties to Represented Persons (4.2)(the “no contact rule”)
a. In representing a client, a lawyer shall not communicate about the subject of the
representation with a “person” the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of the other lawyer or is
authorized by law to make the communication.
b. Note that the ABA version of the rule refers to “persons” represented by counsel.
That means that the rule applies even if the person is not, strictly speaking, a “party”
in the matter. This distinction often arises when a lawyer wishes to communicate
with a witness who is not a party in the matter.
c. Note that consent from the other lawyer is required. Consent from the third
person is not enough.
d. The correct application of this rule to prosecutors who wish to contact witnesses
has been a matter of debate and disagreement.
e. The correct application of this rule has been difficult when lawyer know that an
organization is represented by counsel in a matter but the lawyer nonetheless
wishes to communicate with current or former agents (officers, directors,
shareholders, employees) of that organization. (4.2[7])
3. Duties to Unrepresented Parties (4.3)
a. When dealing with unrepresented non-clients, the lawyer shall not state or imply
that the lawyer is disinterested.
Example: Lawyer, who represents a victim of a car crash, is investigating
the matter and meets with a witness. Lawyer says to the witness, “I’m just
to make sure this thing works out well for everybody.” Result: Lawyer has
violated 4.3.
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b. If the lawyer knows that the third party misunderstands the lawyer’s role, the
lawyer shall take reasonable steps to correct the misunderstanding.
Example: Lawyer is representing the victim of a car crash and meets with a
witness. The witness says, “Gee, I’ve never had my own lawyer before.”
Lawyer immediately says, “Let me explain. I am not your lawyer. I do not
represent you. I represent only my client, who was rear-ended in the crash.”
Result: Lawyer has complied with 4.3.
c. If the lawyer knows that the interests of the unrepresented non-client are possibly
adverse to the lawyer’s client, the lawyer shall not give legal advice to the
unrepresented non-client other than the advice to secure counsel.
B. Role-Based Duties to Social Systems during the ACR
1. Litigator/Advocate
a. Meritorious claims. (3.1). The lawyer may not bring frivolous claims or defenses or
assertions.
(1) In federal courts, this duty is captured in Federal Rule of Civil Procedure 11.
(2) FRCP 11 provides that a lawyer’s signature on a paper or pleading is an
affirmation that:
(a) After reasonable inquiry the asserted position is grounded in law and
facts that are known or that may develop during the litigation; and
(b) The filing is not brought for an improper purpose such as delay or to
harass.
(3) FRCP 11 does not forbid a lawyer from bringing a claim, defense or assertion
that would amount to a change in existing law if the argument for change is not
frivolous.
(4) Violation of FRCP 11 justifies the imposition of sanctions.
b. Expediting matters, consistent with client interest. (3.2) The lawyer must expedite
litigation, consistent with the client’s interests.
c. Candor to the tribunal. (3.3)C
(1) Lawyer must reveal governing law in that jurisdiction even if the law is not
favorable to the client.
(2) The lawyer shall not offer evidence that the lawyer “knows” to be false.
(a) With respect to evidence other than the testimony of the criminal
defendant client, under the ABA, California, and majority approach, the
lawyer cannot offer false evidence even for a criminal defendant client.
(b) With respect to the testimony of the criminal defendant client that the
lawyer knows to be false, the ABA takes the majority approach and
California takes the minority approach.
(1) The ABA/majority approach is that the lawyer shall not offer
false evidence even if that is the testimony of the criminal
defendant client. (3.3) (Note: the Bill of Rights does not guarantee
the criminal defendant the right to offer false testimony. Nix v.
Whiteside, 475 U.S. 157 (1986).)
(2) California takes the minority approach. The criminal defense
lawyer should “remonstrate” with the client not to commit perjury,
should attempt to withdraw if feasible (should not reveal the cause
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of the attempted withdrawal except to say that it involves duties of
professional responsibility), and then, if cannot withdraw?, offer
the testimony through narrative questioning that does not involve
or implicate the lawyer. The lawyer shall not argue the false
testimony in the closing argument.
(3) The lawyer may refuse to offer evidence that the lawyer does not “know” to be
false but does “reasonably believe” to be false.
(a) Exception: the lawyer must offer the testimony of a criminal defendant
client, even if the lawyer reasonably believes the testimony is false, if (i) the
lawyer does not know that the testimony is false, and (ii) the client chooses
to testify.
(4) Lawyer who has offered false evidence must remedy those falsehoods. (3.3)
(a) Until conclusion of tribunal.
(b) Duty to remedy trumps duty of confidentiality.
(c) Note: California does not permit revelation of client confidences except
to prevent a crime leading to death or substantial bodily harm. Hence if a
California lawyer offers false evidence the lawyer must remedy it unless it
would reveal a client confidence. If it would reveal a client confidence, the
lawyer should remonstrate with the client to grant the lawyer permission
to remedy the false evidence and, if the client refuses, the lawyer must
carefully consider the duty to withdraw from the representation. If the
lawyer does withdraw, she must be careful not to reveal the client
confidence as she withdraws.
d. General fairness to opposing party and counsel. (3.4)
(1) A lawyer shall not alter or obstruct access to evidence or “material having
potential evidentiary value.”
(2) Shall not falsify evidence, assist a witness to testify falsely, or offer witnesses
forbidden inducements.
(3) Shall not disobey the tribunal, except openly and for good cause.
(4) Shall not make or oppose discovery demands frivolously.
(5) Shall not allude at trial to matters the lawyer does not believe are supported by
admissible evidence.
(6) A lawyer shall not request a person to refrain from voluntarily giving relevant
information to another party unless (i) the person is a client, relative of a client, or
agent of a client and (ii) the lawyer believes that that person’s interests will not be
adversely affected by refraining from giving such information.
e. Preserving the tribunal’s impartiality and decorum. (3.5)
(1) Shall not engage in acts intending to disrupt the courtroom.
(2) Shall not engage in improper contacts with, or attempt to inappropriately
influence, anyone associated with the tribunal (e.g., judge, judge’s staff, court room
personnel, jurors.)
f. Trial Publicity. (3.6)
(1) Shall not disseminate by means of public communication statements that will
have substantial likelihood of materially prejudicing an adjudicative proceeding.
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(2) May state basic facts such as claim, information in public record; scheduling;
time and place of arrest; etc.
g. Lawyer as Witness. (3.7)C
(1) Shall not act as advocate at a trial where the lawyer is a necessary witness
unless the lawyer’s testimony concerns:
(a) An uncontested issue; or
(b) The nature or value of legal services provided; or
(c) Disqualification would work a substantial prejudice to the client.
(2) Note: another lawyer at the same firm can be the advocate at trial.
h. Prosecutor. (3.8)
(1) A prosecutor is a “minister of justice” and must “do justice.”
(2) Shall refrain from prosecuting claim prosecutor knows is not supported by
probable cause. (3.8(a))
(3) Shall make reasonable efforts to ensure that an accused has been advised of the
right to counsel. (3.8(b))
(4) Shall not seek to obtain from unrepresented accuseds any waivers of important
rights such as the right to a preliminary hearing. (3.8(c))
(5) Shall make timely disclosure of exculpatory materials. (3.8(d); U.S. v. Brady)
(6) Shall not heighten public condemnation of the accused. (3.8(f))
Example: The US Attorney who announced the indictment of former Illinois
governor Rod Blagojevich stated the nature of the charges and added that
“Abraham Lincoln would be rolling over in his grave” at the thought of what
Blagojevich had done. Result: the statements about the nature of the
indictment were ethical; the comments about Abraham Lincoln violated
3.8(f).
(7) Prosecutor’s Post-Conviction Duties:
(a) If a prosecutor learns of new, material evidence creating a reasonable
likelihood that a convicted defendant did not commit the offense for which he
was convicted, the prosecutor shall disclose that evidence to an appropriate
authority and, if the conviction was obtained in the prosecutor’s
jurisdiction, shall disclose the information to the defendant and undertake
further investigation into the conviction.
(b) If the prosecutor knows of clear and convincing evidence establishing
that a defendant in the prosecutor’s jurisdiction was convicted of an offense
that the defendant did not commit, the prosecutor shall seek to remedy the
conviction.
i. Lawyer as advocate in non-adjudicative proceeding. (3.9)
(1) When a lawyer representing a client is participating in a non-adjudicatory
proceeding (e.g., legislative hearings), the lawyer shall disclose to the nonadjudicatory body that she participates in a representative capacity and owes a duty
of candor to the non-adjudicatory body.
2. Evaluator (2.3)
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a. This unusual role applies when the lawyer undertakes to evaluate the client for the
benefit of a non-client. Classically, in business transactions, the acquiror requests that the
acquiree’s lawyers make factual assurances to the acquiror about the acquiree.
b. If evaluation will materially and adversely affect client, lawyer must obtain client’s
informed consent.
c. Lawyer must receive client’s authorization to reveal confidences when evaluating the
client.
Example: In a merger transaction, the acquiror demands an opinion letter running
from the acquiree’s lawyer to the acquiror, accurately stating whether the acquiree
is duly incorporated, who owns the shares in acquiree, etc. Acquiree’s lawyer shall
obtain consent from the acquiree to offer the evaluation to the opposing party after
disclosing any potential adverse effects on the acquiree-client.
3. Counselor/Advisor
1. This role was discussed above, at §IV.F.7, when we discussed the duty of independent
judgment.
2. Notice that sometimes the counselor/advisor does not interface with the public and in
some sense remains “hidden.” But the role is always done with an eye towards the client’s
interaction with society. For that reason, the “counselor” role can be seen as part of the
lawyer’s duty to the client (i.e., the duty to render independent judgment), but can also be
seen as part of the lawyer’s duty to larger social systems (i.e., the lawyer’s duty to the social
systems with which the client is participating after receiving the lawyer’s advice).
4. Negotiator
1. This role was discussed above, at §V.A.1, when we discussed the duty of truthfulness to
third persons. Those rules apply in this context as well.
2. Note that when participating as a direct negotiator in a business setting, the law of fraud
governs the lawyer. If the lawyer makes a false statement, or a materially misleading
omission, or knowingly fails to disclose a fact that the client is legally required to disclose,
the lawyer may be held accountable for money damages for fraud.
3. Note also that if the negotiation involves certain regulated subject matters, such as
securities governed by state or federal law, the lawyer/negotiator may be held to a very high
standard of candor to the opposing party in the negotiation.
4. One recurring fact pattern that causes trouble for lawyers is a negotiation where the client
does not wish to reveal some significant fact to the other party in the negotiation. In that
case, the lawyer might wish to rely upon the common law rule of caveat emptor—that is, the
rule of “buyer beware” that typically does not require sellers to make full disclosure of all
material facts. But note that the reverse rule may apply—that is, full truth in context may be
required—because of a statute; because the seller has decided to make factual disclosures
and hence must make complete disclosures to avoid being misleading; or because the
contract requires certain forms of disclosure.
VI.
Judicial Ethics
A. Canon 1: Independence, Integrity, Impartiality; Avoiding Impropriety and Appearance
of Impropriety
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1.
A Judge shall uphold and promote the Independence, Integrity, and Impartiality of the
judiciary, and shall avoid Impropriety and the Appearance of Impropriety.
a. This is the fundamental ethical norm for judges. Everything they do must be
compatible with the independence, integrity, and impartiality of the judicial office.
2. Rule 1.1: Compliance with Law.
3. Rule 1.2: Promoting Confidence in the Judiciary:
a. Judges must expect to be subjected to public scrutiny that would be burdensome if
applied to non-judges.
Rule 1.3: Avoiding Abuse of the Prestige of Judicial Office:
a.
A judge shall not mention or allude to her office to gain favorable treatment from
others.
b.
A judge may give a reference or recommendation and may use judicial letterhead to
do so, if there is no likelihood that that would be perceived as an attempt to exert
pressure.
c.
Judges may cooperate with authorities responsible for appointing new judges.
d.
If judges write for-profit books, the advertising may not seek to exploit the judge’s
office.
B. Canon 2: Impartiality, Competence, Diligence
1.
A Judge shall perform the duties of the Judicial office Impartially, Competently, and
Diligently.
2.
Rule 2.1: Giving Precedence to the Duties of Judicial Office:
a. Judges should promote public understanding and confidence in the judicial
system.
3.
4.
5.
Rule 2.2: Impartiality and Fairness:
a.
Judge must be objective and open-minded.
b.
Must apply the law regardless of whether the judge likes or dislikes the law.
c.
Reasonable accommodation for pro se litigants is not an ethics violation.
Rule 2.3: Bias, Prejudice and Harassment:
a.
Judge shall not manifest bias or prejudice, including but not limited to bias on the
basis of race, gender, religion, national origin, ethnicity, disability, age, sexual
orientation, marital status, socioeconomic status or political affiliation.
b.
Even facial expressions and body language can manifest bias and prejudice.
c.
Judge shall not permit court staff to engage in bias or prejudice.
d.
Judge shall require lawyers to refrain from bias or prejudice.
e.
When legally relevant, the judge may make reference to the factors listed above (e.g.,
race, gender, etc.).
f.
Must not engage in sexual harassment (which includes unwelcome sexual advances,
etc.
Rule 2.4: External Influences on Judicial Conduct:
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6.
7.
8.
a.
Judge should not be swayed by clamor or fear of criticism.
b.
Judge shall not permit family, social, political, media, financial, or other interests to
influence the judge.
Rule 2.5: Competence, Diligence, and Cooperation:
a.
Requires knowledge, skill, thoroughness, and preparation.
b.
Must be punctual in presiding and ruling, and must ensure lawyers and court
personnel are likewise diligent.
Rule 2.6: Ensuring the Right to be Heard:
a.
The right to be heard is an essential component of justice.
b.
Encouraging settlement is permitted; coercing settlement is not.
Rule 2.7: Responsibility to Decide:
a. Unless disqualification is required, the judge must hear and decide all assigned
matters.
9.
Rule 2.8: Decorum, Demeanor, and Communications with Jurors:
a.
Judge shall be patient, dignified, and courteous to everyone involved.
b.
Shall not commend or criticize jurors for their verdict except in a court order or
opinion.
10. Rule 2.9: Ex Parte Communications:
a.
Ex parte communications are improper, except as for scheduling and other nonsubstantive matters.
b.
Judge may obtain the written advice of a disinterested expert in the law if the judge
gives advance notice to the parties and gives them opportunity to object.
c.
May discuss matters with other judges or court personnel, but shall not receive
factual information or abrogate the judge’s duty to decide the matter.
d.
With the consent of the parties, the judge may meet ex parte with parties and their
counsel in order to settle matters.
e.
Judge may participate in any legally permitted form of ex parte proceeding (e.g.,
proceedings for temporary restraining orders or preliminary injunctions).
f.
If the judge inadvertently receives an ex parte communication, the Judge shall notify
the parties and give them an opportunity to respond.
g.
A judge shall not make independent investigations of the facts.
h.
A judge shall take reasonable steps to ensure that court personnel abide by these
principles.
11. Rule 2.10: Judicial Statements on Pending and Impending Cases:
a.
A judge shall not make public statements that affect the outcome or impair the
fairness of the proceeding; nor shall the judge make non-public statements that
substantially interfere with a fair proceeding.
b.
A judge shall not make pledges, promises, or commitments that are inconsistent
with the impartial performance of the judicial office.
c.
A judge shall reasonably ensure that court personnel abide by these principles.
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d.
Judges may make public statements in the course of a proceeding, may explain court
procedures, and may comment on litigation where the judge is a personal
participant.
e.
Subject to the above principles, a judge may respond directly or through third
parties, to allegations in the media or elsewhere about a judge’s conduct in a matter.
12. Rule 2.11: Disqualification:
a.
A judge shall disqualify himself when the judge’s impartiality might reasonably be
questioned.
b.
Disqualification events include:
1.
Having a personal bias or prejudice concerning a party or lawyer, or having
personal knowledge of disputed facts.
2.
The judge, judge’s spouse or domestic partner, or any person within the
third degree of relationship is:
a.
A party to the proceeding, or an officer, director, general partner,
managing member, or trustee of a party.
b.
A lawyer in the matter.
c.
A person with more than a de minimus interest that could be
substantially affected by the proceeding.
d.
A material witness in the proceeding.
3.
The judge, judge’s spouse or domestic partner, child or parent of judge, or
member of judge’s immediate household is a party in the proceeding or has
an economic interest in the subject matter of the proceeding.
4.
The judge knows, or learns through a timely motion, that a party or lawyer
or law firm of a party’s lawyer has [within the previous time period of X]
made a campaign contribution to the judge in an amount of [$x].
5.
The judge made a public statement, other than one made appropriate as
part of the judicial proceeding, that appears to commit the judge to a
particular ruling.
6.
The judge served as a lawyer in the proceeding, or was associated with a
lawyer who participated substantially as a lawyer in the matter during that
association.
7.
Served personally and substantially as a government lawyer concerning the
proceeding, or has publicly express in such capacity an opinion concerning
the merits of the particular matter in controversy.
8.
Was a material witness in the matter.
9.
Previously presided as a judge over the matter in another court.
c.
A judge shall keep informed about the interests of the judge, spouse or domestic
partner, and minor children living in the same household.
d.
Except in the cases of disqualifying bias or prejudice and personal knowledge of the
disputed facts, a judge may ask the parties and their lawyers if they wish to waive
the judge’s disqualification; and if the decision to waiver is made outside the
presence of the judge and court personnel; and if the decision is made without
coercion by the court; and if the waiver is incorporated into the record of the
proceeding; then the court may participate in that matter.
13. Rule 2.12: Supervisory Duties:
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a. Judges must take reasonable steps to supervise subordinates to ensure ethical
performance by court personnel.
14. Rule 2.13: Administrative Appointments:
a. A judge shall make administrative appointments fairly, according to the merits,
and without nepotism or favoritism.
15. Rule 2.14: Disability and Impairment:
a. A judge who believes that the performance of a lawyer or another judge is
impaired by drugs, alcohol, or mental or physical illness, shall take appropriate
action which may include a confidential referral to an assistance program.
16. Rule 2.15: Responding to Judicial and Lawyer Misconduct:
a.
When a judge learns of facts that call into question the fitness or trustworthiness of
another judge or of a lawyer, the judge shall inform the appropriate authority.
b.
A judge who learns that another judge or a lawyer has violated the applicable ethical
rules shall take appropriate action.
17. Rule 2.16: Cooperation with Disciplinary Authorities:
a.
A judge shall cooperate and be candid with judicial and lawyer disciplinary agencies.
b.
A judge shall not retaliate against a person known or suspected to have cooperated
with an investigation of a judge or lawyer.
C. Canon 3: Personal and Extrajudicial Activities
A Judge shall conduct the judge’s personal and extrajudicial activities in a way as to minimize the risk
of conflict with the obligations of judicial office.
Rule 3.1: Extrajudicial Activities in General:

A judge shall do nothing that interferes with the judicial function, or leads to
frequent disqualifications, or undermines the judge’s integrity, independence and
impartiality.

The judge shall not make use of any of the court’s resources, except for incidental
use for activities that concern the legal system or are permitted by law.
Rule 3.2: Appearances before Governmental Bodies and Consultation with Government Officials:

Judges may appear voluntarily at public hearings and consultations with executive
branch or legislative branch personnel if the matter concerns the law, legal system,
or administration of courts, or when the judge is acting pro se for herself/himself, or
in a fiduciary capacity.
Rule 3.3: Testifying as Character Witness:

A judge may not volunteer to act as a character witness, but if subpoenaed for that
purpose the judge may testify.
Rule 3.4: Appointments to Governmental Positions:

A judge shall not accept appointment to a governmental position (e.g., board,
committee, etc.), unless it pertains to law, the legal system, or the administration of
justice.
Rule 3.5: Use of Non-public Information:
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
A judge shall not use non-public information learned through the judicial role,
except as permitted within the judicial function.
Rule 3.6: Affiliation with Discriminatory Organizations:


A judge shall not hold membership in any organization that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or
sexual orientation.
o
Organizations that are not for the purposes of commerce but rather are for
preservation of cultural heritage may not be engaging in “invidious”
discrimination. (For example, a judge might be able to belong to the
“Daughters of Puerto Rico,” a purely cultural club for women of Puerto
Rican descent, or to the alumni association of an HBUC (historically black
university or college). But membership in an organization like the “Puerto
Rican Women’s Business Association” or “African American Realtors
Association” is probably improper.)
o
A judge may remain in such a discriminatory organization for a brief period
for the purpose of attempting to induce the organization to cease
discrimination.
o
A small, purely personal gathering is permitted. For example, a judge may
belong to a book club, poker or bridge circle, or similar group that
discriminates. But a judge may not belong to a 2,000 member men’s only
club that has dining rooms, fitness centers, golf courses, etc.
A judge shall not use the benefits or facilities of such an organization. However, a
judge’s appearance at an event at such an organization is not an ethical violation
when the attendance at such an isolated event cannot reasonably be perceived as an
endorsement of the organization’s practices.
Rule 3.7: Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and
Activities:

A judge may participate in non-discriminatory civic organizations, including
planning for fund-raising; soliciting funds, but only from the judge’s family or from
judges over whom the soliciting judge has no supervisory power; soliciting
membership, but only if the organization is related to law.

Judge may accept an award or speak for such an organization, but if the event is for
fund-raising the award must be related to law or the administration of justice.

Judge may serve as officer or director unless the organization is engaged in
proceedings that would ordinarily come before the judge, or is frequently engaged
in adversary proceedings in the court of which the judge is a member.
Rule 3.8: Appointments to Fiduciary Positions:

A judge shall not accept appointment as a fiduciary unless it is for a family member
and provided the appointment will not interfere with the proper exercise of the
judicial function.
Rule 3.9: Service as Arbitrator or Mediator:

A judge shall not act as mediator or arbitrator except as part of the judge’s official
duties.
Rule 3.10: Practice of Law:
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
A judge shall not practice law; provided, however, that a judge may represent
herself pro se and may give legal advice or draft documents for family members
(without appearing for them in any forum).
Rule 3.11: Financial, Business, or Remunerative Activities:

A judge may hold and manage investments of the judge and members of the judge’s
family.

A judge shall not service as an officer, director, general partner, or manager of any
business. However, a judge may manage and participate in a business closely held
by the judge or members of the judge’s family or in a business entity primarily
engaged in investments of the financial resources of the judge or members of the
judge’s family.
Rule 3.12: Compensation for Extrajudicial Activities:

A judge may accept honoraria, stipends, fees, wages, salaries, royalties, etc.,
provided that the acceptance does not interfere with the judge’s integrity,
impartiality, or independence.
Rule 3.13: Acceptance and Reporting of Gifts, Loans, Bequests, Benefits or Other Things of Value:

A judge shall not accept any gifts, loans, bequests, benefits or other things of value if
acceptance would interfere with the duties of integrity, impartiality, and
independence.

Many kinds of traditional, minor gifts are permitted, so long as independence,
integrity, and impartiality are not affected. Such gifts include plaques; gifts from
friends; ordinary social hospitality; prizes, discounts, and rewards that are equally
available to the public; scholarships equally available to the public; travel (including
spouse or partner) incident to a law related event (e.g., a conference) or to an event
by a permitted organization devoted to cultural or education functions.
Rule 3.14: Reimbursement of Expenses and Waivers of Fees or Charges:

Judges may accept reasonable costs of travel and waivers of fees for events that are
permitted under the judicial canons.

In deciding whether attendance is appropriate the judge shall consider whether the
sponsor is an accredited educational institution or a bar association (generally OK)
or is associated with private parties, or even a single party, who appear in litigation
that may come before the judge.

Example: A judge may accept travel expenses to attend or speak at a state bar
conference on developments in complex litigation, but presumably cannot do the
same for a conference sponsored by Acme Chemicals, Inc., regarding the need to
deregulate the chemical industry.
Rule 3.15: Reporting Requirements:

Judges shall report, as part of a public record, receipt of extra-judicial compensation,
fees, etc.
D. Canon 4: Political or Campaign Activity
1. A Judge or candidate for judicial office shall not engage in political or campaign activity that is
inconsistent with the independence, integrity, or impartiality of the judiciary.
Rule 4.1: Political and Campaign Activities of Judges and Judicial Candidates in General:
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
Rule 4.1 is a default rule against most forms of public political participation by
judges. Rules 4.2 – 4.5 permit certain kinds of participation, especially in the
context of judges who must stand for election.

The default rule forbids judges from acting as a leader or officer of a political
organization; making speeches on behalf of a political organization; publicly
endorsing/opposing candidates for public office; soliciting or contributing funds for
a political organization; attending or purchasing tickets for events sponsored by
political organizations or candidates for public office; or identifying herself/himself
as a candidate of a political organization.

This rule applies to court resources and using court staff for the same purposes.
Rule 4.2: Political and Campaign Activities of Candidates for Elective Judicial Office:

Candidates for judicial office must preserve the independence, integrity, and
impartiality of the judicial function.

They shall review advertising and campaign content and shall reasonably ensure
that campaign staff act ethically.

They may create campaign committees; may announce themselves as candidates;
may speak on behalf of their candidacy; may support and oppose candidates for the
same office for which they are running; seek and accept endorsements from people
and organizations other than a partisan political organization; and may contribute
to political organizations and candidates for public office.

If the judicial candidate is involved in a “partisan public election,” the candidate may
identify himself/herself as a candidate of a political organization, and may seek and
accept endorsements of a political organization.
Rule 4.3: Political and Campaign Activities of Candidates for Appointive Judicial Office:

May communicate with the appointing authority.

May seek endorsement from any person or organization except a partisan political
organization.
Rule 4.4: Campaign Committees:

The judicial candidate may form and manage a campaign committee.

The campaign committee may seek funds and shall comply with all rules of
disclosure of finances.
Rule 4.5: Activities of Judges who become Candidates for Non-judicial Office:

Upon becoming a candidate for non-judicial elective office, a judge shall resign
unless otherwise permitted by law to hold judicial office.

Upon becoming a candidate for appointive office, a judge is not required to resign
but must comply with the other ethics rules for judges.
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Appendix A
Concise Summary of Consents under ABA Model Rules
The ABA Model Rules contain about a dozen formulations for obtaining consent and making
disclosure, but this summary focuses on just three: (1) “Informed consent, confirmed in writing,” (2)
a “Writing signed by the client,” and (3) what I call “Magic words plus opportunity”—advising the
client of “the desirability of seeking the advice of independent counsel” and giving a reasonable
opportunity to do so. A few of the rules require a combination of those formulas.
Informed Consent, Confirmed in Writing (ICCW)
Current client conflicts (1.7)
Former client conflicts (1.9)
(Old Version!) Conflicts from imputation of lateral lawyer’s conflicts (“old” 1.10(a))
Lateral movement conflicts for government lawyers (1.11)
Lawyer as adverse witness to client (3.7, cmt. 6)
Writing signed by client (WSC) or Informed Consent, in Writing Signed by Client (IC, WSC)
Doing business with client; obtaining liens, etc., from client (1.8(a)) (Note: IC plus WSC)
Aggregate settlements (1.8(g)) (Note: IC plus WSC)
Contingency fees (1.5(c)) (just WSC)
Magic words plus Opportunity
Doing business with client; obtaining liens, etc., from client (1.8(a)) (Note: plus IC, WSC!)
Settling or resolving client’s malpractice claim against lawyer (1.8(h)(2))
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Appendix B
Detailed Summary of Consent, Disclosure, and Notification
in the ABA Model Rules and the California Rules of Professional Conduct
I
ABA Model Rules of Professional Conduct1
A.
By Rule
1.0(b): Defines “confirmed in writing”
1.0(e): Defines “informed consent”
1.0(n): Defines “writing” and “written”
1.2(c): Requires “informed consent” before lawyer may limit the scope of the representation.
1.5(b): Requires that scope of representation, basis for the fee, and the expenses be “communicated
to the client, preferably in writing” and that changes in the basis or rate of the fees or expenses “shall
also be communicated to the client.”
1.5(c): Contingent fee agreement “shall be in a writing signed by the client.” Must “clearly notify the
client of any expenses for which the client will be liable. Upon conclusion of a contingent matter,
lawyer shall provide a “written statement stating” the outcome, remittance to the client, and the
method of determination.
1.5(d): The client’s agreement to a lawful division of fees among lawyers not in the same firm shall be
“confirmed in writing.”
1.7(b): Requires that “each affected client gives informed consent, confirmed in writing.”
1.8(a): Client must be advised in writing of desirability of seeking advice of independent legal counsel
and client must give informed consent, in a writing signed by the client.
1.8(f): Where lawyer receives compensation from non-client (e.g., third party payor), client must give
“informed consent.”
1.8(g): In case of aggregate settlement, clients must given “informed consent, in a writing signed by
the client.”
1.8(h): When settling malpractice claim, unrepresented clients and former clients must be “advised
in writing of the desirability of seeking . . . independent legal counsel.”
1.8(j): Sexual relationship between lawyer and client forbidden unless “consensual” and already in
existence when the attorney client relationship commenced.
1.9(a); 1.9(b): “Informed consent, confirmed in writing” required for certain adversities to former
clients.
1.10(c): Refers back to the “informed consent, confirmed in writing” requirement of 1.7(b).
1.11(a): Requires “informed consent, confirmed in writing.”
1.11(b): Requires that “written notice” is promptly given. That “notice” is defined at 1.11[7] as
“including a description of the screened lawyer’s prior representation and of the screening
procedures employed.”
1.11(d)(2)(i): Lawyer cannot participate unless the government agency gives its “informed consent,
confirmed in writing.”
1
Note: this outline will not address the general duty of communication found in ABA MR 1.4.
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1.12(c)(2): Former judge neutral cannot participate unless “written notice is promptly given to the
parties.”
1.15(d): Upon receiving any property in which a client or third person has an interest, lawyer shall
“promptly notify” that person.
1.17(c): Requires “written notice” to each client of the proposed sale of law practice and other
factors.
1.18(d)(1): Permits adversity to prospective client where affected client and prospective client give
“informed consent, confirmed in writing.”
1.18(d)(2): Permits adversity to prospective client under certain conditions, including that “written
notice” is promptly given.
2.3(b): Where evaluation is likely to materially and adversely affect client, lawyer cannot proceed
without obtaining client’s “informed consent.”
2.4(b): Lawyer serving as neutral “shall inform” unrepresented parties of lawyer’s role and if lawyer
knows that party is confused about the lawyer’s role, the lawyer “shall explain the difference
between” a representative role and a neutral role.
3.7[6]: When lawyer-advocate’s dual role as witness creates a conflict under 1.7 or 1.9, the lawyer
must obtain “informed consent, confirmed in writing.”
4.2: When communicating with person represented by counsel, lawyer must obtain “consent” of
other lawyer.
5.7(a): Lawyer providing law-related services is subject to Model Rules unless lawyer takes
“reasonable measures” to “assure” that recipient of services “knows” the services are not legal
services and that protections of attorney-client relationship do not exist.
6.4: Lawyer providing service for law reform organization, who will participate in organization’s
decision that will materially benefit lawyer’s client “shall disclose that fact” to the organization.
7.2(b)(4): Lawyer in cross-referral agreement shall ensure that “client is informed of the existence
and nature of the agreement.”
B.
By Type
Informed Consent, Confirmed in Writing (ICCW)
1.7(b)
Current client waivers
1.9(a)
Former client waivers
1.9(b)
Former client waivers
1.10(c)
Imputation rule refers back to 1.7 formula
1.11(a)
Government lawyers
1.11(d)(2)(i)
Government lawyers
1.18(d)(1)
Adversity to prospective client
3.7[6]
Lawyer as adverse witness to client
Writings Signed by Client
Either “writing signed by client” (WSC) or informed consent in writing signed by client (ICWSC).
1.5(c) (WSC)
Contingency fee
1.8(a) (ICWSC) Liens/Doing business with client
1.8(g) (ICWSC) Aggregate settlements
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Other requirements of writings
“Advised in writing”
1.8(h) “Magic words”—advising the client of “the desirability of seeking advice of independent
counsel”—required when settling malpractice claim with unrepresented client
“Confirmed in writing”
1.5(e)
Division of fees with lawyer not in same firm
“Written notice promptly given”
1.11(b)
Government lawyer
1.12(c)
Former judge/neutral
1.18(d)(2)
Adversity to prospective client
“Written statement”
1.5(c)
Conclusion of contingency matter
Other Formulas
“Communicated” to client, “preferably” in writing
1.5(b)
Scope of representation and basis of fee
“Communicated to client”
1.5(b)
Changes in basis or rate of fee or expenses.
“Informed consent”
1.8(f)
Non-client payor
2.3(b)
Materially adverse evaluation
“Consensual”
1.8(j)
Sexual relationship with client
“Promptly notify”
1.15(d)
Receipt of property
“Written notice”
1.17(c)
Sale of law practice
“Shall inform”
2.4(b)
Inform unrepresented parties that lawyer-neutral not representing them
“Shall explain”
2.4(b)
Explain to party when it misunderstands lawyer-neutral’s role
“Consent”
4.2
From other lawyer when communicating with represented party
“Reasonable measures to assure person knows”
5.7(a)
Law related services
“Shall disclose”
6.4
Law reform beneficially affecting client
“Inform client”
7.2(b)(4)
Cross referral agreement
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II
California Rules of Professional Conduct2
A
By Rule
2-100: Communication with represented party requires “consent” of party’s lawyer.
2-200: Fee division banned unless client has “consented in writing thereto after a full disclosure has
been made in writing.”
2-300: Sale of law practice; “written notice to be given to the client.”
Purchaser “shall obtain the written consent of the client” (but this may be presumed).
3-100 (Confidentiality): Informed consent
3-300 (Interests Adverse to a Client): Terms are “fully disclosed and transmitted in writing to the
client”; and the client “is advised in writing” that it may seek independent lawyer; and client
“thereafter consents in writing.”
3-310(B): Requires “written disclosure to the client.” “Disclosure” requires informing client of
relevant circumstances and foreseeable adverse consequences.
3-310(C): Requires “informed written consent of each client.” “Informed written consent” means the
client’s written agreement to the representation following “written disclosure.” “Disclosure”
requires informing client of relevant circumstances and foreseeable adverse consequences.
3-310(D): Aggregate Settlements: “Informed written consent of each client.”
3-310(E): “Informed written consent of the client or former client.”
3-310(F): “Obtains the client’s informed written consent.”
3-320: Relationship with other party’s lawyer: “Informs the client in writing of the relationship.”
3-400: Limiting Liability to Client: In settling malpractice claims, client must be “informed in writing”
that client may seek independent advice.
4-100: Preserving Funds and Property of Client: “Promptly notify a client of the receipts of the
client’s funds, securities, or other properties.”
4-210: Payment of Client’s Personal or Business Expenses: “with the consent of the client.”
5-210: Requires “the member has the informed, written consent of the client.”
5-300: “With the consent of all other counsel in such matter.”
B.
By Type
2
This outline will not address the general duty of communication or any requirements found in the
State Bar Act (California Business & Professions Code §§6000, et seq.), where, among other things,
one can find the requirements for fee agreements.
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Written Disclosure to the Client
3-310(B)
Informed Written Consent of the Client
2-200 Fee division
2-300 Sale of law practice; consent may be presumed in some circumstances
3-310(C)
3-310(D)
3-310(E)
3-310(F)
5-210 Lawyer as adverse witness
Other Requirements of Writing
“Written Notice”
2-300 Sale of law practice
“Informed in writing of right to obtain independent counsel”
3-300 Doing business with client; obtaining adverse pecuniary interests to client
3-400 Settling malpractice claims
“Informs the client in writing”
3-320 Of relationship with opposing lawyer
Other Formulas
“Consent”
2-100 Other party’s lawyer
4-210 Client consent regarding payment of client’s personal or business expense
5-300 Consent of all other counsel in the matter
“Informed consent”
3-100 Confidentiality
“Promptly Notify”
4-100 Notify of receipt of client property
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Appendix C
Principal Differences between California and ABA Ethics Rules
These are not the only differences between the California Rules of Professional Conduct and the ABA
Model Rules of Professional Conduct, but in my opinion these are the differences most likely to arise
in essay questions on the California bar examination.
Fee Agreements
Under the ABA approach, it is “preferable” but not required that non-contingency fee agreements
be in writing. (1.5) Contingency fees must be in a “writing signed by the client” (1.5(c)).
Under the California approach, if the representation is likely to exceed $1,000 the fee agreement
must be in a writing signed by the lawyer and client. (Cal. Bus. & Prof. Code §6148)(Exception: if the
client is a corporation, there is no requirement for a written or signed fee agreement.) Legal bills
shall include the amount, rate, basis for calculation, or other method of determining the fee (§6148).
California extensively regulates how contingency fee agreements must be in a writing signed by the
client and lawyer (§6147).
Fees (Unreasonable vs. Unconscionable)
Under the ABA approach, fees cannot be “unreasonable” (1.5).
Under the California approach, fees cannot be “unconscionable” (4-200).
Referral Fees
Under the ABA approach, it is not proper to give a referring lawyer a fee for the act of referring the
matter. (Note that under the ABA approach, the referring lawyer could still share in the legal fee by
either assuming joint responsibility for the matter or by doing some of the work on the matter. See
MR 1.5 for details.)
Under the California approach, a lawyer may receive a referral fee if the division of fees is fully
disclosed in writing to the client; if the total fees are not thereby increased; and if the client consents
in writing. See CRPC 2-200 for details. (This is sometimes called a “bare” referral fee.)
Contracting to Limit Malpractice Liability
Under the ABA approach, a lawyer may contract with the client to limit the lawyer’s exposure and
liability for malpractice, if the client is actually represented on that contract by independent counsel
(1.8(h)). Note, however, that few jurisdictions follow the ABA’s rule on this point; most ban such
limitations on liability.
Under the California approach, such contracts are prohibited. (3-400)
Confidentiality
Under the ABA approach, there are six “may” exceptions to the duty of confidentiality in the rule on
confidentiality (1.6). In addition there is a “may” reveal exception in the rule on representing
organizations (1.13); a “must” reveal exception if the lawyer has offered false evidence or is aware of
corruption of the tribunal (3.3); and a type of “must” reveal exception if revelation is the only way to
prevent assisting the client in a fraudulent or criminal act (4.1, which covers so-called “noisy
withdrawals” and in extreme cases outright revelations of client confidences).
Under the California approach, the only exception in the State Bar Act (§6068(e)) and the rules (3100) is a “may” reveal exception to prevent a crime leading to death or substantial bodily harm.
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Notice the requirement of a “crime,” which is not part of the ABA’s similar exception on this point.
Notice, too, that under case law the lawyer has a limited exception to reveal confidences to the extent
necessary to sue to collect a fee, to defend against claims by the client, or to defend the lawyer against
criminal charges.
Conflicts
Under the ABA approach, there are two kinds of current client conflicts: “direct adversity” conflicts
under 1.7(a)(1), and “material limitation” conflicts under 1.7(a)(2). Both kinds require client
consent. Client consent must be “informed consent, confirmed in writing” (ICCW), but that written
confirmation may be of two types: (1) a writing signed by the client; or (2) an oral consent promptly
followed by a written confirmation from the lawyer to the client.
Under the California approach, there are two types of adverse interests: (1) the kinds of direct
adversity to current and former clients that normally count as conflicts [3-310(C) & (F)]; and (2)
relationships (personal, business, professional, or legal) that the lawyer may have or had with
persons affected by the legal matter [3.310(B)]. The former can be consented only in a writing from
the client. Normally that is accomplished by sending the client a writing laying out all the relevant
circumstances and reasonably foreseeable adverse consequences and asking the client to sign the
writing if they consent. The latter may be resolved—note that client “consent” is not required—by
sending the client “written disclosure,” which must contain the relevant circumstances and
reasonably foreseeable adverse consequences. (3-310(A)) But in the case of written disclosure, no
writing from the client is required.
Sexual Relationships with Clients
Under the ABA approach, lawyers shall not have sexual relationships with clients unless a
consensual sexual relationship existed when the ACR commenced. (1.8(j)) Obviously, coercing a
client to have a sexual relationship is a severe breach of fiduciary duty.
Under the California approach, the ethics rules do not forbid such relationships between spouses
or if the relationship predated the ACR. (3-120) Otherwise the rules forbid such relationships if they
interfere with the lawyer’s competence. Obviously, coercing a client to have a sexual relationship is a
severe breach of fiduciary duty.
Lawyer as Witness (the Lawyer-Advocate Rule)
Under the ABA approach, leaving aside uncontested matters and testimony about the nature and
value of legal services rendered (when the advocate may testify), even if the client consents the court
may order disqualification in order to protect the fact finder from confusion or protect the opposing
side from prejudice. (3.7) The rule requires a balancing of interests among the client, the opponent,
and the tribunal.
Under the California approach, leaving aside uncontested matters and testimony about the nature
and value of legal services rendered (when the advocate may testify), the rule applies only to jury
trials and the issue can be resolved by obtaining the informed, written consent of the party whose
lawyer will be a witness. The rule involves focusing only on the advocate and her client.
Reporting Misconduct by other Lawyers and Judges
Under the ABA approach, lawyers and judges have a duty to report other lawyers and judges if they
know about facts that raise a substantial question about the other’s honesty, trustworthiness, or
fitness to be a lawyer (or judge). (8.2; Judicial Rule 2.15)
Under the California approach, there is no duty to report misconduct by other lawyers or by
judges; there is, however, a duty to self-report various information to the Bar. (Cal. Bus. & Prof. Code
§6068(o))
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Appendix D
Catalog of Ethics Issues Raised
on Recent California Bar Examination Essay Questions
February 2010

100% of essay question: sharing fees with non-lawyer; inadvertently revealing client
confidence; responsibility for malpractice of other lawyer working from the common office;
failure to supervise non-lawyer subordinate.
July 2009

50% of essay question; malicious prosecution; litigation with the intent to harass.

100% of essay question; criminal prosecutor's ethics; criminal defense attorney ethics; trial
publicity rule; obstructing access to witnesses; destruction and alteration of evidence
(Michael Nifong fact pattern); California and ABA

33% of essay question; California and ABA duty of confidentiality; (“Death or substantial
bodily harm” exception).

33% of essay question; motion for new attorney (withdrawal and termination).
February 2009

100% of essay question; ABA and California; attorneys fees; taking stock in client’s company
in lieu of fees; duty of confidentiality.
July 2008

100% of essay question; California and ABA; competence of lawyer; hiring suspended
lawyer; fee splitting.
February 2008

100% of essay question; California & ABA; conflict with personal feelings of lawyer; duty of
confidentiality & whistle blowing for safety reasons; withdrawal due to repugnance toward
client.

50% of essay question; California & ABA; assisting Unauthorized Practice of Law (UPL);
partnership with non-lawyer; sharing legal fees with non-lawyer.
July 2007

None!
February 2007

50% of essay question; California & ABA; conflicts of interest in business formation; conflicts
of interest in entity representation.
July 2006
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
100% of essay question; California & ABA; contingency fee formalities; advancing money to
the client; undisclosed financial terms; sex with client; coercive settlement.
February 2006

50% of essay question; no jurisdiction specified; providing non-legal services; doing
business with client; adversity to client.
July 2005

50% of essay question; no jurisdiction specified; lawyer serving on client's corporate board;
lawyer conflict of interest representing director against corporate client.

100% of essay question; no jurisdiction specified; lawyer getting contingency fee in divorce
case; solicitation; sexual relations with client; not communicating settlement offer to client;
reasonableness of 50% contingency fee.
February 2005

100% of essay question; no jurisdiction specified; no-contact rule; inadvertent production of
privileged document; work product; attorney client privilege.
July 2004

100% of essay question; no jurisdiction specified; cappers and runners - cash for solicitation;
solicitation through others; no contact rule; plaintiff's personal injury lawyer.

50% of essay question; no jurisdiction specified; malpractice; causation is “but for,” or “case
within a case”; allowing statute of limitations to run.
February 2004

100% of essay question; no jurisdiction specified; representation of elderly father; conflict
with former client (father's daughter); waiver of privilege by not meeting with client alone;
payment of legal fees by non-client.
July 2003

50% of essay question; no jurisdiction specified; represented corporation but personally
traded on insider information.

100% of essay question; no jurisdiction specified; in-house lawyer meets with corporate
client's employee, learns of toxic dumping; duty of confidentiality.
February 2003

100% of essay question; no jurisdiction specified; government lawyer moves to private
practice and opposes law she help shaped while government lawyer; represents two private
clients in challenging the law.
July 2002

100% of essay question; no jurisdiction specified; competence where lawyer had never done
a criminal case before; conflict between non-client parent paying bill and 18-year-old client;
coercing settlement; fee splitting.
February 2002
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
50% of essay question; no jurisdiction specified; lawyer coercively drafts trust instrument
for family member in a manner that benefits the lawyer.
July 2001

50% of essay question; no jurisdiction specified; lawyer added tort claim to complaint based
on unsubstantiated statement from client; client later informed lawyer the claim was false;
lawyer let claim lapse but did not correct it or dismiss it.
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Appendix E
Index by Rules (MR & CRPC)
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Appendix F
A Mnemonic-Driven Model for PR Essay Questions on the Bar Examination
I will offer three mnemonics: one for duties lawyers owe clients; one regarding legal fees; and one for
the roles that lawyers play. Note that the mnemonics don’t cover all the substantive rules. But, for
test takers who prefer a mnemonic approach, they can be used to generate an outline of issues to
discuss.
AC at the CDC to fight CLISP
CRAWLS
CLAPDANCES

What is the “Attorney Client Relationship”?
In the attorney client relationship, fiduciary duties (e.g., loyalty) run from the lawyer to the client,
contractual duties (e.g., the duty to pay legal fees) run from client to lawyer, and the authority for
decision-making is shared. Graphically:
-
Decision-making
Client
Loyalty, Confidentiality,
Independent Judgment,
Communication, Safeguarding property
Attorney
Fees
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
What are the fiduciary duties running from Attorney to Client?
Here’s my cheesy mnemonic. Suppose a tropical disease called “CLISP” was running wild. We’d
expect the CDC (Center for Disease Control) to fight the epidemic. Because CLISP is a tropical disease
that flourishes in warmer temperatures, the CDC laboratories fighting CLISP make heavy use of AC
(air conditioning) to keep the labs cools.
AC at CDC to fight CLISP.
AC = “Abide & Consult.” Abide by the competent client’s decisions regarding objectives; and Consult
with the client about tactics.
CDC = Competence, Diligence, and Communication. These are basic duties you owe the client.
CLISP =
Confidentiality
Loyalty (conflicts of interest)
Independent judgment
Safeguarding Property of the Client

What about fees?
Here’s a mnemonic for commonly tested issues regarding fees: CRAWLS. I am not giving a complete
set of rules under each issue, but am touching on highlights.
Contingency fees.
I won’t cover all the rules regarding contingency fees, but they must be in writings signed by
clients; are not permitted in criminal defense or for securing a divorce or for securing property in a
divorce; and must be “reasonable” (ABA) or not “unconscionable” (California).
Reasonable/Unconscionable
The general benchmark for fees in the ABA approach is “reasonable,” but in the California
approach is “not unconscionable.” The factors for determining that are basically identical and are
commonsense: difficulty, effort required, how specialized it was, results obtained, market rate for
similar services, etc.
Accounts (Trust and General)
Advance payments of fees and costs remain in the trust account until earned (fees) or spent
(costs). Any disputed funds remain in the trust account until the dispute is resolved.
Writings
Under the ABA approach, a written fee agreement is “preferred” but not required. Under the
California approach, if the fees will exceed $1,000 then a written agreement is required for clients
other than corporations. Under both approaches, contingency fees must be signed by the client.
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Liens and “Doing Business” with clients.
Whenever you take a possessory interest (e.g., lien) from a client, or go into business with a
client, the transaction must be reasonable (ABA & California); you must get a WSC (writing signed by
client); and you must put the “magic words” in writing (i.e., advise the client of the desirability of
seeking independent counsel and give the client a reasonable opportunity to do so).
Sharing fees with lawyers and non-lawyers.
You can’t share legal fees with non-lawyers; although you may pay non-lawyer employees
their salaries, benefits, and profit-sharing plans.
Under the ABA approach, you cannot share fees with lawyers at other firms unless they
assume responsibilities for the entire matter or do a portion of the work for a portion of the fees.
(1.5(e)) You need ICCW (informed consent, confirmed in writing) for the arrangement.
Under the California approach, you can offer a lawyer not at your firm a “bare referral” fee
simply for referring you the matter, and you may shares fees with lawyers from other firms actually
working on the matter, if the client consents in writing and the total fees are not increased. (2-200)

What are professional “roles”?
The word “role” is used many ways when talking about lawyers. I’m using it in a specific way: “roles”
are sets of ethical rules that apply when lawyers are performing particular functions. For example,
special ethical rules regulate the role of “criminal prosecutor.” When we define any particular role,
we specify the duties that the lawyer owes to larger social systems such as the courts or the public
markets.
Let’s look at the roles that lawyers play when representing clients. When a lawyer is representing a
client, she is literally “re-presenting” the client to a tribunal or in another social setting. While doing
so, a lawyer typically acts in one of various sub-roles.
The lawyers’ main roles are CLAPDANCES.
Corporations and organizational client (client is the entity , not the officers; report bad news up the
‘chain of command’ of org, etc.)
Litigators:
Advocates (general rules for litigators)
Prosecutors (ministers of justice; must fight fair)
Defense lawyers – criminal. May put state to its burden of proof
A – (filler letter! Ignore!)
Negotiator (can’t commit fraud; no false statements to 3rd parties)
Counselor (honest, candid, independent advice to the client)
Evaluator (when making factual description of client for benefit of non-clients, get client consent re.
confidences and tell no lies!)
Supervisors & Subordinates (reasonably insure ethics below you; subordinates can “follow orders” if
it’s a “reasonable resolution of an arguable question (RRAQ).
Hence lawyers have duties running in two directions—to clients and to society.
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Attorney-Client
Relationship
Cou
Exe
Leg
Pub
Priv
Priv
Adv
Non
Thir
Attorney
Client
Representative
of client
Decisions
Fiduciary Duties
Fees
ACR Roles:
Litigator; Advisor;
Negotiator; Evaluator

How could I use the model to answer essay questions on the bar examination?
First, if you reach a PR essay question, ask yourself, “What duties does this lawyer owe to the client?”
For that, work down your “AC at CDC to fight CLISP” mnemonic and decide what duties are
implicated by the fact pattern. When you address each duty that seems applicable to the fact pattern,
underline the key word so that the grader will see that you’re addressing an important issue.
Suppose your believe that the fact pattern calls for discussion of diligence, communication and
safeguarding property. Start consecutive paragraphs like this:
Lawyer owes Client the duty of Diligence. Here, . . . [discussion of facts relevant to diligence]
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Lawyer owes Client the duty of Communication. Here, [discussion of facts to
communication]
Lawyer owes Client the duty of Safeguarding Property. Here, [discussion of facts to
safeguarding property]
Second, look hard at fees and money issues, using the CRAWLS mnemonic. These are frequently
tested!
Third, do the same thing about the duties that run from the Attorney to society. Use your
CLAPDANCES mnemonic and underline key duties. For example:
As a litigator, Lawyer owes the duty of candor to the tribunal . . .
As a negotiator, Lawyer owes the opposing party a duty not to commit fraud . . .
As a criminal defense lawyer, Lawyer may put the state to its proof even if Lawyer knows
that client really did commit the crime . . .
As a subordinate lawyer, Mary must act ethically but may follow a superior’s instructions if
it’s a reasonable resolution of an arguable question (RRAQ).
Then trace those duties with reference to facts in the question.
Remember: duties run from the lawyer in two opposite directions: to the client and to society (e.g.,
courts, opponents, third parties, etc.) For the former, the “AC at CDC to fight CLISP” may help you
think of points to make. For the latter, focusing on what role the lawyers is playing (CLAPDANCES)
may help. And fees run from the client to the lawyer — CRAWLS. Good luck.
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Appendix G
Glossary
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Appendix H
Spotting Issues of Fee Sharing, Fee Splitting and Referral Fees
It is sometimes difficult to distinguish fact patterns dealing with (1) fee sharing with non-lawyers, (2)
fee splitting with lawyers at a different firm, and (3) referral fees. It’s important to spot the
difference.
1.
Fact patterns dealing with fee sharing with non-lawyers often involve the lawyer sharing
legal fees with a secretary, paralegal, or other non-lawyer. Sometimes they involve nonlawyers who join a partnership with lawyers or vice versa.
2.
Fact patterns dealing with fee splitting often involve two lawyers at different firms who wish
to jointly benefit from a particular case. There is usually a focus on whether one of the
lawyers has done enough work on the matter and assumed enough responsibility on the
matter to warrant the amount of fees being offered to that lawyer.
3.
Fact patterns dealing with referral fees are similar to fee splitting fact patterns but one
lawyer does nothing on the matter except refer it to the second lawyer. Referral fees are not
permitted under the ABA rules. They are permitted under the rules of several states, but
there is usually a requirement that the lawyer obtain client consent in a particular manner.
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Appendix I
Summary of Exceptions to the Duty of Confidentiality
May Reveal Exceptions:
1. Death or substantial bodily harm. (1.6(b)(1))
2. To prevent substantial financial injury from a crime or fraud where the lawyer’s services
have been used in furtherance of the crime or fraud. (1.6(b)(2))
3. To rectify substantial financial injury from a crime or fraud where the lawyer’s services have
been used in furtherance of the crime or fraud. (1.6(b)(3))
4. To obtain advice about the lawyer’s ethical duties. (1.6(b)(4))
5. To defend the lawyer from suits or accusations of improprieties or in disputes between the
lawyer and the client. (1.6(b)(5))
6. To comply with court orders. (1.6(b)(6))
7. To prevent injury to an organizational client if the lawyer’s efforts to resolve the matter by
reporting up the “chain of command” did not resolve the matter. (1.13(b))
Must Reveal Exceptions:
1. To correct false evidence offered by the lawyer. (3.3)
2. If there is a “may reveal” exception under 1.6(b), as detailed above, and if the conditions of
the following rules are satisfied, the “may reveal” situation becomes a “must reveal”
situation:
a. Under rules 4.1 and 1.2, to prevent the lawyer’s assistance in a crime or fraud;
b. Under 8.1, when relaying factual information to an authority that is responsible for
making decisions about admission to the bar;
c. Under 8.3, when reporting information that raises substantial questions about the
fitness of a lawyer or judge to practice.
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Appendix J
Chronology of Ethics Codes and Other Major Developments in Legal Ethics
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Appendix K
List of Various Ethics Standards/Codes
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Appendix L
List of Various Types of Organizational Clients
Corporations
Closely-held corporations
Derivative Actions
Partnerships
Government Entities
Classes
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