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The Preamble to the Model Rules identies four lawyer roles: [1] 1. A lawyer, as a member of the legal profession, is a. a representative of clients, b. an ofcer of the legal system c. and a public citizen having special responsibility for the quality of justice. Organizing Topics In Terms of the Model Rules 1 General Principles (1.1-1.6, 1.13-1.18) 1 Conicts of Interest (1.7 1.12) 2 Lawyer as Counselor or Advisor 3 Lawyer in Litigation (duty to court) 4 Duties to Third Parties 5 Organization of Professional Practice 6 Special Rules for Pro-Bono Practice 7 Lawyer Advertising and Marketing 8 Admission & Discipline Application for your own bar admission will be your rst real case. You will have to prove two things what you know about law and your character & tness. Problem 2 Lawyer Discipline Morris Andrews and Harold Black are lawyers and long-time friends. Black is losing his battle with alcohol & his performance has been seriously impaired in recent cases. Andrews is losing his battle with his caseload, constantly getting continuances and delaying the results his clients seek. When Andrews confronts Black, Black does not take it well but did plan to change his ways. Andrews simply plans to try to settle more cases to get back on schedule.

MODEL RULE 8.4: MISCONDUCT


1. It is professional misconduct for a lawyer to: a. violate or attempt to violate the Rules of Professional Conduct, i. knowingly assist or induce another to do so, 1. or do so through the acts of another; b. commit a criminal act that reects adversely on the lawyer's honesty, trustworthiness i. or tness as a lawyer in other respects; c. engage in conduct involving dishonesty, fraud, deceit or misrepresentation; d. engage in conduct that is prejudicial to the administration of justice;

RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS


1. An applicant for admission to the bar, a. or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: i. knowingly make a false statement of material fact; or
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ii. fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, 1. or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, 2. except that this rule does not require disclosure of [condential client information].

MODEL RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT


1. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct a. that raises a substantial question as to that lawyer's honesty, trustworthiness or tness as a lawyer in other respects, 2. shall inform the appropriate professional authority. - This Rule does not require disclosure of information otherwise protected by Rule 1.6 - or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

RULE 8.5: DISCIPLINARY AUTHORITY


1. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, 2. regardless of where the lawyer's conduct occurs. 3. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.

RULE 8.5: CHOICE OF LAW


1. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: a. for conduct in connection with a matter pending before a tribunal, i. the rules of the jurisdiction in which the tribunal sits, 1. unless the rules of the tribunal provide otherwise; and b. for any other conduct, the rules of the jurisdiction in which the lawyers conduct occurred, or, i. if the predominant effect of the conduct is in a different jurisdiction, ii. the rules of that jurisdiction shall be applied to the conduct. iii. A lawyer shall not be subject to discipline if the lawyers conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyers conduct will occur. Standards for Imposing Lawyer Sanctions 1. A court, in imposing a sanction after a nding of lawyer misconduct, should consider four factors: (a) the duty violated; (b) the lawyer's mental state; (c) the actual or potential injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. If a lawyer "engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client," disbarment is generally appropriate. Standard 4.41(c).
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If the lawyer's pattern of neglect causes injury or potential injury that is not serious, suspension is appropriate. Standard 4.42(b). If the lawyer is merely negligent, does not act with reasonable diligence, and causes injury or potential injury to a client, the Standards recommend only a reprimand. Standard 4.43. If a lawyer causes little or no actual or potential injury, the Standards recommend admonition. Standard 4.44. A reprimand is a public censure and an admonition is private.

remedies for unresponsible conduct disbarment- permanent suspension- temporary censure- public admonition- private REGULATING LAWYERS OUTSIDE A FORMAL DISCIPLINARY SYSTEM
PROBLEM 3 Sarah Field is a young lawyer with talent but she is overwhelmed. In one case, she took on a malpractice case and recommended settlement without having her client adequately examined. The settlement was too low and the client knows it. In a second case, a client asked her for tax advice. She said she didnt know much about tax, but she asked a CPA friend and did the best she could. The client got a large bill from the IRS and wants Field to pay it. In a third case, Field missed a trial date in a criminal case, and when she later got to court, she did a poor job for the client. 1. Standards for Lawyer Malpractice (Mallen and Restatement) a. Mallens Elements of the malpractice tort: i. Duty of the lawyer to the person injured ii. Failure of the lawyer to exercise ordinary skill & knowledge iii. Negligence as proximate cause of damage. 2. Restatement Standard 52(1): a. A lawyer b. who owes a duty of care c. must exercise the competence and diligence d. normally exercised by lawyers in similar circumstances. Elements of a Malpractice Case 1. A legal duty the lawyer owed the plaintiff, e.g., based on a lawyer-client relationship or sometimes a duty the lawyer assumes. Restatement 48 & 50. 2. Failure of the lawyer to exercise the skill and knowledge an ordinary lawyer would exercise in similar circumstances. Restatement 52(1). 3. Damage suffered by the plaintiff as a result of the lawyers misconduct. Restatement 53. MODEL RULE 1.1: COMPETENCE 1. A lawyer shall provide competent representation
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2. to a client. 3. Competent representation requires the 4. legal knowledge, skill, thoroughness and preparation (do not need all four at once) 5. reasonably necessary for the representation. Applying the Malpractice Standard 1. Recommending an inadequate settlement (yes if based on the bad advice leading to the bad settlement) 2. when referral to a specialist is required. 3. Malpractice in criminal cases. a. Restatement 53, Comment d: A convicted criminal defendant suing for malpractice must prove both that i. the lawyer failed to act properly and ii. that, but for that failure, the result would have been different. 1. [A] convicted defendant must have had that conviction set aside [before the malpractice case will be timely]. 3. Third Parties to Whom Lawyer May Have a Duty Restatement 51 a. Prospective Clients (you may say to them, I recommend this...) b. Persons to Whom the Lawyer Has Expressly Assumed a Duty c. Persons Lawyer Knows the Client Wanted to Benet (will intended beneciary) d. Beneciaries That Lawyer Has Assisted a Fiduciary Client to Violate. (duciary client can sue the duciary's lawyer) (lawyer cannot be held liable for aiding and abetting a securities infraction) Other Consequences of Negligence or Misconduct 1. Contempt or other trial court sanctions. (can be by the court in which you are appearing) 2. Reversal of a criminal conviction a. Maples v. Thomas, 132 S.Ct. 912 (lawyers abandon case without court consent) b. Laer v. Cooper, 132 S.Ct. 1376 (bad advice to reject plea offered by prosecutor) c. Missouri v. Frye, 132 S.Ct. 1399 (failure to tell client of plea offered by prosecutor) 3. Advice from an Anonymous Lawyer a. On being charged as the clients accomplice. If somebody has to go to jail, make sure its your client. THE LIFE CYCLE OF A CASE PROBLEM 4 Undertaking to Represent a Client You are in private practice. An elderly man, Morris Cannell, tells you that his broker has depleted his life savings through churning his account and bad investments generally. You have proposed good arguments but Cannell wants you to do more. Ultimately, you get him to agree to limit what you must say, and when the other side makes a good offer, you accept it on the spot rather than taking it to Cannell rst. Have you acted properly?

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RULE 1.18: DUTIES TO PROSPECTIVE CLIENT (a) 1. A person; 2. who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) 3. Even when no client-lawyer relationship ensues, 4. a lawyer who has had discussions with a prospective client 5. shall not use or reveal information learned in the consultation, 6. except as Rule 1.9 would permit a. with respect to information of a former client. (c) 1. A lawyer 2. subject to paragraph (b) 3. shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter 4. if the lawyer received information from the prospective client 5. that could be signicantly harmful to that person in the matter, 6. except as provided in paragraph (d). a. If a lawyer is disqualied from representation under this paragraph, b. no lawyer in a rm with which that lawyer is associated c. may knowingly undertake or continue representation in such a matter, d. except as provided in paragraph (d). (d) 1. When the lawyer 2. has received disqualifying information a. as dened in paragraph (c), 3. representation is permissible if: a. both the affected client and the prospective client i. have given informed consent, conrmed in writing, or: b. the lawyer who received the information i. took reasonable measures ii. to avoid exposure to more disqualifying information than was reasonably necessary iii.to determine whether to represent the prospective client; and 1. the disqualied lawyer is timely screened from any participation in the matter 2. and is apportioned no part of the fee therefrom; and 3. written notice is promptly given to the prospective client. RULE 6.5: NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS (a) 1. A lawyer 2. who, under the auspices of a program sponsored by a nonprot organization or court,
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3. provides short-term limited legal services to a client 4. without expectation by either the lawyer or the client 5. that the lawyer will provide continuing representation in the matter: a. is subject to Rules 1.7 and 1.9 i. only if the lawyer knows that the representation of the client involves a conict of interest; and b. is subject to Rule 1.10 i. only if the lawyer knows that another lawyer associated with the lawyer in a law rm is disqualied by Rule 1.7 or 1.9(a) with respect to the matter. ABA Code of Professional Responsibility (1970)(obligation to represent): Ethical Consideration 2-26 (Supp. p. 184) - A lawyer is under no obligation to act as advisor or advocate for every person who may wish to become his client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulllment of this objective requires acceptance by a lawyer of his share of tendered employment which may be unattractive both to him and the bar generally. MODEL RULE 1.2: SCOPE OF REPRESENTATION (b) 1. A lawyer's representation of a client, a. including representation by appointment, 2. does not constitute an endorsement of the client's political, economic, social or moral views or activities. Stropnicky v. Nathanson (Mass. Comm. Against Discrimination 1997) Law rm represented only women in divorce cases. It was well known for getting awards for years putting husbands through professional school. A man sought representation to get award for putting his wife through professional school. The commission said the rm was required to represent him. RESTATEMENT 14: FORMATION OF A CLIENT-LAWYER RELATIONSHIP A relationship of client and lawyer arises when: (1) 1. a person 2. manifests to a lawyer 3. the persons intent 4. that the lawyer provide legal services for the person; a. and either i. the lawyer manifests to the person consent to do so; or ii. the lawyer fails to manifest lack of consent to do so, 1. and the lawyer knows or reasonably should know 2. that the person reasonably relies on the lawyer 3. to provide the services WHAT GOES INTO AN ENGAGEMENT LETTER?
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1. Who the client is (and sometimes who the client is not). 2. The fee for the case, a. or the basis of the fee, b. and expenses for which the client will be responsible. See Rules 1.5(b) & (c). 3. The scope of the representation, a. i.e., what the lawyer is going to do and not do. 4. Conicts of interest the lawyer may have a. and enough information to let the client give informed consent b. if it is willing waive the conicts. - See Model Rules 1.7 and 1.9. 5. Any departures from usual assumptions about handling condential information. - See Model Rule 1.6. 6. What the client will be asked to do in connection with the representation, a. such as be candid with the lawyer about the facts. RULE 1.2: ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions 1. concerning the objectives of representation and, a. as required by Rule 1.4, shall consult with the client b. as to the means by which they are to be pursued. 2. A lawyer may take such action on behalf of the client as is impliedly authorized a. to carry out the representation. 3. A lawyer shall abide by a client's decision a. whether to settle a matter. 4. In a criminal case, a. the lawyer shall abide by the clients decision, i. after consultation with the lawyer, b. as to a plea to be entered, c. whether to waive jury trial d. and whether the client will testify. RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY (c) 1. A lawyer 2. may limit the scope of the representation 3. if the limitation is reasonable under the circumstances 4. and the client gives informed consent. 5. Ambiguities will be construed against you RULE 1.2: SCOPE OF REPRESENTATION (d) 1. A lawyer 2. shall not counsel a client 3. to engage, or assist a client, 4. in conduct that the lawyer knows is criminal or fraudulent,

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5. but a lawyer may discuss the legal consequences of any proposed course of conduct 6. with a client 7. and may counsel or assist a client to make a good faith effort 8. to determine the validity, scope, meaning or application of the law. RULE 1.3: DILIGENCE 1. A lawyer shall act with reasonable diligence and promptness in representing a client. RULE 1.4: COMMUNICATION (a) A lawyer shall: 1. promptly inform the client 2. of any decision 3. or circumstance 4. with respect to which the client's informed consent, as dened in Rule 1.0(e),is required by these Rules; a. reasonably consult with the client i. about the means by which the client's objectives are to be accomplished; b. keep the client reasonably informed about the status of a matter. (a) 1. A lawyer shall: 2. promptly comply with reasonable requests for information; a. and consult with the client about any relevant limitation b. on the lawyers conduct 3. when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct a. or other law. (b) 1. A lawyer 2. shall explain a matter a. to the extent reasonably necessary to permit the client to make informed decisions 3. regarding the representation.

FEE ARAINGEMENTS AND PRO BONO WORK


Problem 5 Billing for Legal Services A well-known psychiatrist has a contract case of only average complexity. Paul T. Novak has proposed to charge a 44% contingent fee. In a second case, Novak wants to settle for the first offer to avoid the expense of really preparing the case. In a third case, when a potential client asks Novak to take it on an hourly-rate basis, he just laughs. Does Novaks conduct raise issues under the rules? MODEL RULE 1.5(a): FEES (a) 1. A lawyer 2. shall not charge or collect 3. an unreasonable fee or an unreasonable amount

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4. for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) time and labor required, novelty and difficulty of questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) time limitations imposed by the client or by the circumstances; (6) nature and length of professional relationship with the client; (7) experience, reputation, and ability of the lawyer performing services; (8) whether the fee is fixed or contingent. (b) 1. The scope of the representation 2. and the basis or rate of the fee and expenses for which the client will be responsible 3. shall be communicated to the client, preferably in writing, 4. before or within a reasonable time after commencing the representation, 5. except when the lawyer will charge a regularly represented client on the same basis or rate. 6. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) 1. A contingent fee agreement 2. shall be in a writing signed by the client 3. shall state the method by which the fee is to be determined, 4. Including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; 5. Whether such expenses are to be deducted before or after the contingent fee is calculated. 6. The agreement must clearly notify the client of any expenses for which the client will be liable a. whether or not the client is the prevailing party. SPECIAL ISSUE CONTINGENT FEES 1. Special elements of a contingent fee agreement: a. Percentage lawyer gets after settlement, trial, appeal b. Whether expenses are deducted before or after the lawyers percentage is applied. c. Expenses client is liable for even if he loses the case. Should a contingent fee lawyer be entitled to a large fee for a case that takes little time?

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MODEL RULE 1.5(d): FEES 1. A lawyer 2. shall not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, 3. the payment or amount of which is contingent upon the securing of a. a divorce or b. upon the amount of alimony c. or support, d. or property settlement in lieu thereof; or e. a contingent fee for representing a defendant in a criminal case. (e): FEE DIVISION 1. A division of a fee between lawyers who are not in the same firm may be made only if: a. the division is in proportion to the services performed by each lawyer b. or each lawyer assumes joint responsibility for the representation; c. the client agrees to the arrangement, d. including the share each lawyer will receive, e. the agreement is confirmed in writing; f. the total fee is reasonable.

Model Rule 1.0: Terminology


(b) Confirmed in writing 1. when used in reference to the informed consent of a person, 2. denotes informed consent that is given in writing by the person 3. or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. (n) Writing or written 1. denotes a tangible or electronic record of a communication or representation, 2. including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. 3. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person 4. with the intent to sign the writing

RULE 6.1: VOLUNTARY PRO BONO PUBLICO SERVICE


1. Every lawyer has a professional responsibility to provide legal services to those unable to pay. 2. A lawyer should aspire to render at least (50) hours of pro bono public legal services per year. 3. In fulfilling this responsibility, the lawyer should provide a substantial majority of the (50) hours of legal services without fee to: a. persons of limited means or b. charitable, religious, civic, community, governmental and educational organizations

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c. in matters designed primarily to address the needs of persons of limited means; and d. provide any additional services through: e. delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations f. seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations g. where the payment of standard legal fees would significantly deplete the organization's economic resources; 4. In addition, a lawyer should voluntarily contribute financial support 5. to organizations that provide legal services 6. to persons of limited means.

RULE 6.2: ACCEPTING APPOINTMENTS


1. A lawyer shall not seek to avoid appointment by a tribunal to represent a person 2. except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

Model Rule 2.1 Advisor


1. In representing a client, 2. a lawyer shall exercise independent professional judgment and render candid advice. a. In rendering candid advice i. a lawyer may refer not only to law but to other considerations such as 1. moral, economic, social and political factors, ii. that may be relevant to the clients situation.

RULE 1.14: CLIENT WITH DIMINISHED CAPACITY


(a) 1. When a client's capacity to make adequately considered decisions in connection with a representation is diminished, 2. whether because of minority, mental impairment or for some other reason, 3. the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) 1. When the lawyer 2. reasonably believes

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3. that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, 4. the lawyer 5. may take reasonably necessary protective action, 6. including consulting with individuals or entities that have the ability to take action to protect the client a. and, in appropriate cases, seeking the appointment of a guardian. (c) 1. Information 2. relating to the representation of a client a. with diminished capacity 3. is protected by Rule 1.6. 4. When taking protective action pursuant to paragraph (b), 5. the lawyer is impliedly authorized under Rule 1.6(a) 6. to reveal information about the client, a. but only to the extent reasonably necessary to protect the client's interests.

PROBLEM 6 Handling Client Property and Withdrawing from Representation


Elizabeth Jackson had a contract for a 40% contingent fee. She recovered more than either she or the client expected, and the client has complained about paying the full agreed 40% on the punitive damage award. In response, Jackson has put the $100,000 check into a client trust account and has worn the ring. RULE 1.15: SAFEKEEPING PROPERTY (a) 1. A lawyer 2. shall hold property of clients or third persons a. that is in a lawyer's possession b. in connection with a representation c. separate from the lawyer's own property. 3. Funds shall be kept in a separate account a. maintained in the state where the lawyer's office is situated, b. or elsewhere with the consent of the client or third person. 4. Other property a. shall be identified as such and appropriately safeguarded. 5. Complete records of such account funds and other property a. shall be kept by the lawyer and b. shall be preserved for a period of [five years] after termination of the representation. (b) 1. A lawyer 2. may deposit the lawyer's own funds

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3. in a client trust account 4. for the sole purpose of paying bank service charges on that account, 5. but only in an amount necessary for that purpose. (c) 1. 2. 3. 4. 5. 6. (d) 1. Upon receiving funds or other property a. in which a client or third person i. has an interest, 2. a lawyer 3. shall promptly notify the client or third person. a. Except as stated in this rule b. or otherwise permitted by law c. or by agreement with the client, 4. a lawyer 5. shall promptly deliver to the client or third person 6. any funds or other property 7. that the client or third person is entitled to receive 8. and, upon request by the client or third person, 9. shall promptly render a full accounting regarding such property. (e) 1. When in the course of representation 2. a lawyer 3. is in possession of property a. in which two or more persons (one of whom may be the lawyer) claim interests, 4. the property shall be kept separate by the lawyer a. until the dispute is resolved. 5. The lawyer 6. shall promptly distribute 7. all portions of the property as to which the interests are not in dispute. What to do with the $100,000? First put it in the trust account Pay the client the undisputed amount, here $60,000. Pay yourself the undisputed fee, here $25,000. Leave $15,000 in the trust account until the dispute is resolved. A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

RULE 1.16: DECLINING OR TERMINATING REPRESENTATION


(a) compulsory withdrawl 1. Except as stated in paragraph (c),
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a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: a. the representation will result in violation of the rules of professional conduct or other law (conflict of interest); b. the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or c. the lawyer is discharged. (b) permissive withdrawal 1. Except as stated in paragraph (c), 2. a lawyer may withdraw if: a. withdrawal can be accomplished without material adverse effect on the interests of the client; b. the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; c. the client has used the lawyer's services [in] a crime or fraud; d. other good cause for withdrawal exists. e. the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; f. the client fails substantially to fulfill an obligation to the lawyer g. and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; h. the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; (c) 1. A lawyer 2. must comply with applicable law requiring notice to or permission of a tribunal 3. when terminating a representation. a. When ordered to do so by a tribunal, i. a lawyer ii. shall continue representation notwithstanding good cause for terminating the representation. (d) 1. Upon termination of representation, 2. a lawyer 3. shall take steps to the extent reasonably practicable to protect a client's interests, a. such as giving reasonable notice to the client, b. allowing time for employment of other counsel, c. surrendering papers and property to which the client is entitled i. The lawyer may retain papers relating to the client to the extent permitted by other law d. and refunding any advance payment of fee or expense that has not been earned or incurred.

2. 3. 4. 5.

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Lawyer Retaining Liens 1. the lawyers right 2. in some states 3. to put pressure on a client 4. by failing to return client property & papers. - Its controversial today, particularly if the client has a significant need, e.g., the record needed for a death penalty appeal. - A charging lien is the lawyers statutory right in many states to collect the fee out of the sum payable to the client in the case. PROBLEM 7

The Duty of Condentiality


John Carter has told you that he expects to be sued by the person who bought his house. Carter expressly lied to the buyer about the tendency of the basement to ood. Carter had not had the experience, but the prior owner had told Carter the situation and you talked with the former owner shortly before his death. You also heard at a cocktail party that Carter is in nancial trouble, a point you mentally led away as affecting settlement posture. Now, someone has asked you whether that is true.

MODEL RULE 1.6: CONFIDENTIALITY OF INFORMATION


(a) 1. A lawyer 2. shall not reveal information relating to the representation of a client (even the clients name) a. unless the client gives informed consent, b. the disclosure is impliedly authorized in order to carry out the representation or c. the disclosure is permitted by paragraph (b). Exceptions to the condentiality doctrines RESTATEMENT 82. Client Crime or Fraud 1. The attorney-client privilege does not apply to a communication occurring when a client: a. consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or b. regardless of the clients purpose at the time of consultation, uses the lawyers advice or other services to engage in or assist a crime or fraud. (b) 1. A lawyer 2. may reveal information relating to the representation of a client 3. to the extent the lawyer reasonably believes necessary: a. to prevent reasonably certain death or substantial bodily harm b. to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the nancial interest or property of another

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i. and in furtherance of which the client has used or is using the lawyers services c. to prevent, mitigate or rectify substantial injury i. to the nancial interest or property of another that is reasonably certain to result or 1. has resulted from the clients commission of a crime or fraud ii. in furtherance of which the client has used or is using the lawyers services. d. to secure legal advice about the lawyers compliance with these Rules. e. to establish a claim or defense in a controversy between the lawyer and the client. f. to comply with other law or a court order. How the protection of disclosure can be lost Restatement 59 Denition of Condential Client Information 1. Condential client information consists of information relating to representation of a client, a. other than information that is generally known. Restatement 78 1. The attorney-client privilege is waived if a. the client, the clients lawyer, or another authorized agent of the client: i. agrees to waive the privilege; ii. disclaims protection of the privilege or iii. in a proceeding before a tribunal, 1. fails to object properly to an attempt by another person to give or exact testimony or a. other evidence of a privileged communication. b. Must assert the privilege whenever it is challenged Current Client Conicts of Interest (1) Between the lawyers duty to two or more current clients, (2) Between the clients interests and the lawyers self-interest, (3) Between duty to the lawyers current client and duties to a former client, and (4) Between the lawyers duty to a current client and interest of a non-client third party.

PROBLEM 9 Representing Multiple Parties Dealing With Each Other


Mr. & Mrs. Wilson want a divorce. They have three children. They have worked out all the details. Mr. Wilson will get the son; Mrs. Wilson will get the two daughters and $1000 a month in child support. They want you to write up the agreement and handle the legalities. Do you face a conict of interest? Issues Under Problem 9 What are the standards for deciding whether representing both Mr. & Mrs. Wilson would constitute a conict of interest? What practical differences of interest can you foresee? What practical issues have the Wilsons not considered? Are the conicts in this problem subject to client waiver?

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RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST:


(a) 1. While lawyers are associated in a rm, 2. none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, a. unless the prohibition is based on a personal interest of the prohibited lawyer i. and does not present a signicant risk of materially limiting the representation of the client by the remaining lawyers in the rm.

RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS


(a) what you can do 1. Except as provided in paragraph (b), 2. a lawyer shall not represent a client if the representation involves a concurrent conict of interest. 3. A concurrent conict of interest exists if: a. the representation of one client will be directly adverse to another client; or b. there is a signicant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) what to do now that there is a conict 1. Notwithstanding the existence of a concurrent conict of interest under paragraph (a), 2. a lawyer may represent a client if: a. the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; b. the representation is not prohibited by law; c. the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; d. each affected client gives informed consent (you must tell them this information), conrmed in writing. RULE 1.0: TERMINOLOGY (e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. *** (i) Reasonable belief or reasonably believes when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

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RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES


(g) assuming you clear all conicts 1. A lawyer who represents two or more clients 2. shall not participate in making an aggregate settlement of the claims of or against the clients 3. unless each client gives informed consent, a. in a writing signed by the client. 4. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved a. and of the participation of each person in the settlement.

RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION


1. A lawyer may serve as a director, ofcer or member of a legal services organization, apart from the law rm in which the lawyer practices, a. notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. 2. The lawyer shall not knowingly participate in a decision or action of the organization: a. if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or b. where the decision or action could have a material adverse effect on the representation of a client of the organization i. whose interests are adverse to a client of the lawyer.

RULE 6.4: LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS


1. A lawyer may serve as a director, ofcer or member of an organization a. involved in reform of the law or its administration i. notwithstanding that the reform may affect the interests of a client of the lawyer. 2. When the lawyer knows that the interests of a client may be materially beneted by a decision in which the lawyer participates, a. the lawyer shall disclose that fact but need not identify the client. We talked about Rule 1.7 the issue of identifying conicts and then addressing the possibility of informed consent We also talked about Rules 6.3 & 6.4 on what you do when you sit on a legal services board and the agency talks about a matter affecting another of your clients.

Direct Adversity Conict A Practical Example


A regular client comes to you to le suit against Ford whose defective car has injured the client. After doing your conicts check, you learn that another ofce of your rm represents Ford in a small property tax case in a rural county.
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Should you be said to have a conict if you take the injury case on behalf of your regular client? Direct Adversity Conicts Not Opposing a Current Client Even in an Unrelated Matter RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) [A] lawyer shall not represent a client if: (1) the representation of one client will be directly adverse to another client. Comment: Who is a Current Client? IBM v. Levin Issue is what the client reasonably believes about whether the lawyer or rm still represents it. Why are lawyers so reluctant to tell clients that the representation is over? How easy should it be to make a current client a former client? Why do lawyers prefer to have Rule 1.9 apply in determining conicts rather than Rule 1.7?

RULE 1.9: DUTIES TO FORMER CLIENTS


(a) 1. A lawyer who has formerly represented a client in a matter 2. shall not thereafter represent another person in the same or a substantially related matter 3. in which that person's interests are materially adverse to the interests of the former client a. unless the former client gives informed consent, conrmed in writing. - in other words, you must be able to specify what the future conicts may be Criminal Cases - same principles to criminal cases. - May you represent two defendants that may want to pin the blame on each other? - The basic principle is that conicts in criminal cases can rise to constitutional violations and be almost per se ineffective assistance of counsel. - Issues also arise of prosecutors ofces with inappropriate incentives, e.g., they get a cut of the recovery. Or defense lawyers who want to take an interest in publicity rights re the case. Rule 1.8(d). Problem 12 Conicts Between Client Interests and the Lawyers Personal Interest Lawyer Joan Doe went to high school with James Johnson, a local engineer. Johnson needed legal help setting up his business and Doe suggested that he give her 10% of the stock for a years worth of legal services. Later, Doe learns from Johnson that a new industrial park will be built in the area, and she buys some neighboring land. After his company makes its rst million dollars, Johnson gives Doe the keys to his Mercedes, worth $75,000. Finally, Doe and Johnson fall in love.
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RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) 1. A lawyer 2. shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: a. the transaction and its terms are fair and reasonable to the client i. and are fully disclosed and transmitted in writing in a manner ii. that can be reasonably understood by the client (no legalese); b. the client is advised in writing of the desirability of seeking i. and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and c. the client gives informed consent, i. in a writing signed by the client, ii. to the essential terms of the transaction and the lawyer's role in the transaction,(in this specic deal) 1. including whether the lawyer is representing the client in the transaction. (b) Can use material if not adverse to the client 1. A lawyer 2. shall not use information relating to representation of a client 3. to the disadvantage of the client 4. unless the client gives informed consent, a. except as permitted or required by these Rules. RULE 1.8 (c) 1. A lawyer shall not solicit any substantial gift from a client, 2. including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift 3. unless the lawyer or other recipient of the gift is related to the client. 4. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship (usually for wills). (d) 1. Prior to the conclusion of representation of a client, 2. a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account 3. based in substantial part on information relating to the representation. (h) May be used if you are trying to get a new law 1. A lawyer shall not a. make an agreement prospectively limiting the lawyer's liability to a client for malpractice i. unless the client is independently represented in making the agreement; or b. settle a claim or potential claim for such liability with an unrepresented client or former client i. unless that person is advised in writing of the desirability of seeking ii. and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
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(j) 1. A lawyer shall not have sexual relations with a client a. unless a consensual sexual relationship existed between them when the clientlawyer relationship commenced. (k) While lawyers are associated in a rm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

Former Client Conicts


We ask when may you take a case against such a former client and when may that client get you disqualied from proceeding further against him? Indeed, why should you have any duties at all to people you no longer represent? RULE 1.8 (e) Financial Assistance 1. A lawyer shall not provide nancial assistance to a client in connection with pending or contemplated litigation, except that: a. a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and b. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (i) (shares of property) 1. A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: a. acquire a lien authorized by law to secure the lawyer's fee or expenses Model Rule 1.16: Withdrawal [9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Rule 1.15. RULE 1.8 (f) (client and third party) 1. A lawyer shall not accept compensation for representing a client from one other than the client unless: a. the client gives informed consent(tell options, understand those options and agree; b. there is no interference with the lawyers independence of professional judgment or with the client-lawyer relationship; and c. information relating to the representation of a client is protected as required by Rule 1.6. PROBLEM 14 The Lawyers Former Client Martha Heath represents Linda Parker in her suit against Dr. Charles Abraham in a medical malpractice case. Dr. Abraham recognizes Heath as having been his own lawyer ve years earlier when he adopted his new wifes children. Dr. Abraham moves to disqualify Heath from handling the current case.
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RULE 1.9: DUTIES TO FORMER CLIENTS


(a) Current client and former client owed a particular duty 1. A lawyer who has formerly represented a client in a matter 2. shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client 3. unless the former client gives informed consent, conrmed in writing. (b) 1. A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a rm with which the lawyer formerly was associated had previously represented a client a. whose interests are materially adverse to that person; and b. about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter unless i. the former client gives informed consent, conrmed in writing. RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE (b) 1. When a lawyer has terminated an association with a rm, 2. the rm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the rm, unless: a. the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and b. any lawyer remaining in the rm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. RULE 1.9: DUTIES TO FORMER CLIENTS (c) A lawyer who has formerly represented a client in a matter or whose present or former rm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE Comment

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[4] The rule in paragraph (a) also does not prohibit representation by others in the law rm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the rm of condential information that both the nonlawyers and the rm have a legal duty to protect.

Imputation of Conicts
This week we talk primarily about imputation of conicts through a practice organization and conicts inherent in representing a corporate client. RULE 1.9: DUTIES TO FORMER CLIENTS (a) 1. A lawyer who has formerly represented a client in a matter 2. shall not thereafter represent another person in the same or a substantially related matter 3. in which that person's interests are materially adverse to the interests of the former client a. unless the former client gives informed consent, conrmed in writing. [1] Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. (c) 1. A lawyer who has formerly represented a client in a matter or whose present or former rm has formerly represented a client in a matter 2. shall not thereafter: a. use information relating to the representation to the disadvantage of the former client i. except as these Rules would permit or require with respect to a client, ii. or when the information has become generally known; or iii. reveal information relating to the representation 1. except as these Rules would permit or require with respect to a client.

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RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE


PROBLEM 15 Imputation of Conicts Charles & Burls is a 200-member Wall Street rm that represents World Wide Container in many cases, one of which is a suit for contribution led by National Gasket in New Orleans. C & B has asked Willis & Xeres to be local counsel, and Willis has been the only lawyer involved. Xeres had once represented National Gasket in some of the products cases underlying this suit for contribution and had learned condential information he could not use against it now. C & B has never represented National Gasket. (a) 1. While lawyers are associated in a rm, 2. none of them shall knowingly represent a client a. when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless i. the prohibition is based on a personal interest of the prohibited lawyer ii. and does not present a signicant risk of materially limiting the representation of the client by the remaining lawyers in the rm; or RULE 1.0: TERMINOLOGY (c) "Firm" or "law rm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. RULE 1.10 [3] The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of condential information are presented. Where one lawyer could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the rm, the rm should not be disqualied. On the other hand, if an opposing party in a case were owned by a lawyer in the law rm and others in the rm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualication of the lawyer would be imputed to all others in the rm. RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE (b) 1. When a lawyer has terminated an association with a rm,

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2. the rm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer 3. and not currently represented by the rm, unless a. the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and b. any lawyer remaining in the rm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (a)(2) 1. the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualied lawyers association with a prior rm, and (i) the disqualied lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (ii) written notice is promptly given to any affected former client * * * [so that it can verify the screening]; and (iii) certications of compliance are * * * [given to the former client at reasonable intervals or on written request]. RULE 1.0: TERMINOLOGY (k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a rm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.

RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES
(a) 1. Except as law may otherwise expressly permit, 2. a lawyer who has formerly served as a public ofcer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public ofcer or employee, (1) unless the appropriate government agency gives its informed consent, conrmed in writing, to the representation. (c) 1. Except as law may otherwise expressly permit, 2. a lawyer having information that the lawyer knows is condential government information about a person acquired when the lawyer was a public ofcer or employee,

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3. may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. 4. As used in this Rule, the term "condential government information" means information that has been obtained under governmental authority a. and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public b. and which is not otherwise available to the public. c. A rm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualied lawyer is timely screened (d) 1. Except as law may otherwise expressly permit, 2. a lawyer currently serving as a public ofcer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, conrmed in writing; or (ii)18 U.S.C. 207(a)(1)Any person who is an ofcer or employee * * * of the executive branch of the United States * * *, who after the termination of his or her service * * * knowingly makes, with the intent to inuence, any communication to or appearance before any ofcer of employee of any department, agency, [or] court, * * * in connection with a particular matter (A) in which the United States * * * is a party or has a direct and substantial interest, (B) in which the person participated personally and substantially as such ofcer or employee, and (C) which involved a specic party at the time of such participation, shall be punished [by up to a year in jail, a civil ne of $50,000, or both].

RULE 1.12: FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER THIRD-PARTY NEUTRAL


(a) 1. Except as stated in paragraph (d), 2. a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially a. as a judge or other adjudicative ofcer or law clerk

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i. to such a person or as an arbitrator, mediator or other third-party neutral, unless ii. all parties to the proceeding give informed consent, conrmed in writing. (c) 1. If a lawyer is disqualied by paragraph (a), 2. no lawyer in a rm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: a. the disqualied lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (b) 1. A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party 2. in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative ofcer or as an arbitrator, mediator or other thirdparty neutral. 3. A lawyer serving as a law clerk to a judge or other adjudicative ofcer a. may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, i. but only after the lawyer has notied the judge, or other adjudicative ofcer.

Conicts of Interest Within a Corporation


PROBLEM 18 Advising the Business Corporation You have long represented Sleepware, Inc. who makes childrens pajamas. Tests have shown that the fabric can melt & cause serious burns under rare but possible conditions. The Vice President for pajamas wants to keep selling the items for two reasons: First, a consultant has told him that only 4 kids a year will get burned and settlements will not exceed $250K each. Because he expects to gross $2 million in prots, it will still be protable to sell the pajamas. Second, the vice-president wants to become president and he doesnt want any scandals on his present watch.

RULE 1.13: ORGANIZATION AS CLIENT


(a) 1. A lawyer employed or retained by an organization 2. represents the organization acting through its duly authorized constituents. RULE 2.1: ADVISOR [5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyers duty to the client under Rule 1.4 may require that the lawyer offer advice * * *. A lawyer ordinarily has no duty to initiate investigation of a clients affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the clients interest. RULE 1.13: (b)

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1. If a lawyer for an organization knows that an ofcer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation 2. that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, 3. and that is likely to result in substantial injury to the organization, 4. then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless a. the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, b. the lawyer shall refer the matter to higher authority in the organization, c. including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if 1. despite the lawyers efforts in accordance with paragraph (b) 2. the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action or a refusal to act, 3. that is clearly a violation of law, and 4. the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, 5. then the lawyer may reveal information relating to the representation a. whether or not Rule 1.6 permits such disclosure, b. but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) 1. Paragraph (c) shall not apply with respect to information relating to a lawyers representation of an organization to investigate an alleged violation of law, 2. or to defend the organization against a claim arising out of an alleged violation of law. (e) 1. A lawyer who reasonably believes that he or she has been discharged because of the lawyers actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, 2. shall proceed as the lawyer reasonably believes necessary to assure that the organizations highest authority is informed of the lawyers discharge or withdrawal. (f) 1. In dealing with an organizations directors, ofcers, employees, members, shareholders, or other constituents, 2. a lawyer shall explain the identity of the client a. when the lawyer knows or reasonably should know that the organizations interests are adverse to those of the constituents with whom the lawyer is dealing. (g)

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1. A lawyer representing an organization may also represent any of its directors, ofcers, employees, members, shareholders or other constituents, 2. subject to the provisions of Rule 1.7. 3. If the organization's consent to the dual representation is required by Rule 1.7, 4. the consent shall be given by an appropriate ofcial of the organization other than the individual who is to be represented, or by the shareholders. 1.4 Implications Is There Civil Liability for Failure to Disclose? 1. To the corporation itself; bankruptcy trustee will have no pity. 2. Possibly to consumers injured by pajamas. 3. So far, no duties under the securities law for aiding and abetting misconduct, but is for personal fraud Central Bank & Scientic-Atlanta cases.

The Ethics of Litigation


This week and next we look at litigation. It was once the principal topic for legal ethics and remains very important. A question that runs throughout the material is whether nding truth is the proper goal for litigation or whether something less may be more realistic. PROBLEM 23 The Decision to File a Civil Suit Your client who produces California wines has put something in each bottle to help the wine stay drinkable longer. Alas, the substance causes cancer in rats when consumed in large quantities. The Delaney Amendment to the FDA Act thus requires that wine containing it not be sold. You believe that ling suit to challenge the constitutionality of the Delaney Amendment can delay things just enough to let existing quantities of the wine to be sold. Your circuit rejected such a claim a few years ago but it could always change its mind. Would ling the proposed suit be proper?

Rule 3.1 Meritorious Claims and Contentions


1. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, 2. unless there is a basis in law and fact for doing so that is not frivolous, a. which includes a good faith argument for an extension, modication or reversal of existing law.

Rule 3.2 Expediting Litigation


1. A lawyer shall make reasonable efforts to expedite litigation 2. consistent with the interests of the client.

Rule 2.1: Advisor


1. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. 2. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, 3. that may be relevant to the clients situation.

RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL


1. A lawyer shall not:
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(a) a. unlawfully obstruct (against the FR) another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. b. A lawyer shall not counsel or assist another person to do any such act (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal, - except for an open refusal based on an assertion that no valid obligation exists; (d) (not a signicant disciplinary rule) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party (e) (Casey Anthony trial when prosecutor states in opening statement ideas never presented at trial- must not state what has not been conveyed by evidence but mostly reprimanded during trial by judge) a. in trial, b. allude to an matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, c. assert personal knowledge of the facts at issue except when testifying as a witness, d. or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt of innocence of an accused. (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the persons interests will not be adversely affected by refraining from giving such information.

RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL


(a) seek to inuence a judge, juror, prospective juror or other ofcial by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt a tribunal.

RULE 3.7: LAWYER AS WITNESS (most signicant substantive rule)


(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue;

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(2) the testimony relates to the nature and value of legal services rendered in the case; or (3) (hard test to meet) disqualication of the lawyer would work substantial hardship on the client. - (If you must be the witness then cannot contemporaneously be the lawyer) (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's rm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

RULE 3.9 ADVOCATE IN NON-ADJUDICATIVE PROCEEDINGS


1. A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding 2. shall disclose that the appearance is in a representative capacity 3. and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. PROBLEM 24 Litigation Tactics Hugh Martin is a great insurance defense litigator. He dresses down in court and assumes a folksy attitude. He tries to pick juries with racial and class differences, and he tries to make truthful witnesses look shifty. Once, he even had his secretary appear in court and suggest a relationship with the plaintiff. Martin calls these tricks and says they simply help overcome the unfair advantage plaintiffs have. Should a court regulate what lawyers wear and the personality they display? Picking a Jury with Race & Class Differences Rule 8.4: It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice Aggressive Cross Examination ABA Model Rule 4.4: (a) 1. In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, 2. or use methods of obtaining evidence that violate the legal rights of such a person.

ABA Standards Relating to Defense Function, Standard 47.6:


(a) The interrogation of all witnesses should be conducted fairly and without seeking to intimidate or humiliate the witness unnecessarily. (b) Defense counsels belief or knowledge that the witness is telling the truth does not preclude cross-examination. Should the court regulate the conduct of Martins secretary in suggesting a relationship with the plaintiff?

RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL


1. A lawyer shall not: (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant - or that will not be supported by admissible evidence
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RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL 1. A lawyer shall not: (a) seek to inuence a judge, juror, prospective juror or other ofcial by means prohibited by law;

RULE 3.3: CANDOR(honesty) TOWARD THE TRIBUNAL


(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer RULE 1.0: TERMINOLOGY (m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral ofcial, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter PROBLEM 25 Disclosure of Law or Facts Favorable to the Other Side You are prepared for argument on your motion for summary judgment, but a last bit of research turns up cases with dicta that are against you, and two have holdings that by analogy are bad. Your opponent has not referred to these cases. In addition, you have discovered that one of your witnesses testied inaccurately in a deposition, whether inadvertently or not you dont know. The other side doesnt know of the inaccuracy. In another case, your client stood to be sentenced and the prosecutor mistakenly said he had no criminal record. If you fail to disclose the correct information in each of these cases, will you be subject to discipline?

RULE 3.3: CANDOR TOWARD THE TRIBUNAL


(a) A lawyer shall not knowingly: (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; - (not obliged to disclosed facts, only law) - must disclose if the client dies because the claim is over (d) (in ex parte you assume the duty for both sides) 1. In an ex parte proceeding, 2. a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, 3. whether or not the facts are adverse. (a) A lawyer shall not knowingly: (3) (deals with witnesses you call)
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1. offer evidence that the lawyer knows to be false. 2. If a lawyer, the lawyers client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, 3. the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (b) representing client and knows client has is engaging in illegal conduct relating to the proceeding - bribing the jury or other illegal activity, not about perjury (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. What to do when the judge asks about the clients record? Rule 1.6 (a): A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b). - not clear on how an attorney should answer this inquiry Rule 3.3 (a): A lawyer shall not knowingly (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; * * * PROBLEM 29 The Crusading Prosecutor Gene White is States Attorney of Springfield County, home of the state legislature. Hes a crusader for good government, and each week he has a press conference to suggest possible indictments The media run stories based on alleged leaks about upcoming indictments while Gene denounces the rumor mill. Genes office has prosecuted legislators whose cases will get him good publicity and especially gone after a legislator on a minor drug charge who he wants to get for larger reasons.

RULE 3.6: TRIAL PUBLICITY


(a) 1. A lawyer who is participating or has participated in the investigation or litigation of a matter 2. shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication a. and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) exception to paragraph (a) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation;
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(5) a request for assistance in obtaining evidence (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; (c) 1. Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. 2. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR


The prosecutor in a criminal case shall: (f) law enforcement personnel 1. except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, 2. refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case 3. from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. (a) higher than 3.1 obligation refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) not a major burden imposed on the prosecutor 1. make reasonable efforts to assure that the accused has been advised of the right to, 2. and the procedure for obtaining, counsel 3. and has been given reasonable opportunity to obtain counsel; (c) 1. not seek to obtain from an unrepresented accused a waiver of important pretrial rights, 2. such as the right to a preliminary hearing; (d) exculpatory evidence (p does not have to disclose dead victim before admission) 1. make timely disclosure to the defense of all evidence or information known to the prosecutor
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2. that tends to negate the guilt of the accused or mitigates the offense, 3. and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, a. except when the prosecutor is relieved of this responsibility by a protective order. RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR (continued) The prosecutor in a criminal case shall: (e) 1. not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (g) 1. When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutors jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) 1. When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutors jurisdiction was convicted of an offense that the defendant did not commit, 2. the prosecutor shall seek to remedy the conviction.

Code of Judicial Conduct (2007) Overview


Preamble, Scope, Terminology (24 terms) Canon 1 Preserve Confidence in Judges Canon 2 How Carry Out Duties of Office Canon 3 Extra-judicial Activities Canon 4 The Judge in Political Activities PREAMBLE TO THE MODEL CODE OF JUDICIAL CONDUCT [1] Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.

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[2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence. [3] The Model Code of Judicial Conduct * * * is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies. SCOPE PROVISIONS OF THE MODEL CODE OF JUDICIAL CONDUCT [2] Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule contains a permissive term, such as may or should, the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion. [3] The Comments that accompany the Rules * * * provide guidance regarding the purpose, meaning, and proper application of the Rules. * * * Comments neither add to nor subtract from the binding obligations set forth in the Rules. * * * [5] The Rules of the Model Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions. [6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline. * * * [7] The Code is not designed or intended * * * to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court.

RULE 8.4: MISCONDUCT


It is professional misconduct for a lawyer to: (f) 1. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

Model Rule 8.2: Judicial and Legal Officials


(a) lawyer conduct toward judges

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1. A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

Rule 8.3: Reporting Professional Misconduct


(b) 1. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct 2. that raises a substantial question as to the judges fitness for office shall inform the appropriate authority.

Rule 2.4: Lawyer Serving as Third Party Neutral


(a) mediators 1. A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. 2. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. (b) analogous to 4.3 be clear 1. A lawyer serving as a third party neutral shall inform unrepresented parties that the lawyer is not representing them. 2. When the lawyer knows or reasonably should know that a party does not understand the lawyers role in the matter, a. the lawyer shall explain the different between the lawyers role as a third-party neutral b. and a lawyers role as one who represents a client. Problem 38 Judges Disqualifying Conflicts of Interest Harold Baxter is a judge; Martha Anderson is a lawyer. They have been friends since law school. When Baxter needed a loan to cover the down payment on a new house, Anderson loaned the money to him. He then borrowed the rest from a bank that Anderson represents and that is now in a case before Baxter. Baxter also has a 19 year old niece who lives in his home and has investments. He also used to serve on the Board of the Committee for Responsible Assessment Policy and he has now been assigned a case where an assessment is being challenged.

The Canon 1 Provisions


RULE 1.1 -- Compliance with the Law 1. A judge shall comply with the law, including the Code of Judicial Conduct. RULE 1.2 -- Promoting Confidence in the Judiciary

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1. A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. [5] The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judges honesty, impartiality, temperament, or fitness to serve as a judge. RULE 1.3 -- Avoiding Abuse of the Prestige of Judicial Office 1. A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.

CJC Rule 2.3 Prohibiting Bias & Prejudice


(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) 1. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, 2. including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, 3. and shall not permit court staff, court officials, or others subject to the judges direction and control to do so. (C) 1. A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment against parties, witnesses, lawyers, or others. (D) 1. The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, 2. when they are relevant to an issue in a proceeding.

RULE 3.6 -- Affiliation with Discriminatory Organizations


(A) 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. (B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judges attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judges attendance is an isolated event that could not reasonably be perceived as an endorsement of the organizations practices.

CJC Rule 2.9 Ex Parte Communications


(A) A judge shall not initiate, permit, or consider ex parte communications concerning a pending or impending matter, except as follows:

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(1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided: (a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond. (2) expert advice 1. A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, a. if the judge gives advance notice to the parties of the person to be consulted i. and the subject matter of the advice to be solicited, ii. and affords the parties a reasonable opportunity to object iii. and respond to the notice and to the advice received. (3) talking to clerks 1. A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judges adjudicative responsibilities, 2. or with other judges, a. provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, i. and does not abrogate the responsibility personally to decide the matter. (4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge. (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so. (B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond. (C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed. (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judges direction and control. CJC Rule 2.10 Commenting on Cases- Judicial Statements on Pending and Impending Cases (A) 1. A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, 2. or make any nonpublic statement that might substantially interfere with a fair trial or hearing. (B) pledges promises or commitments before a case comes to you

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A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (C) A judge shall require court staff, court officials, and others subject to the judges direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B). (D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity. (E) Subject to the requirements of paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judges conduct in a matter. CJC Rule 2.11 - Disqualification (A) 1. A judge shall disqualify himself or herself in any proceeding in which the judges impartiality might reasonably be questioned, 2. including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a partys lawyer, or personal knowledge of facts that are in dispute in the proceeding. (2) The judge knows that the judge, the judges spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding. (3) The judge knows that he or she, individually or as a fiduciary, or the judges spouse, domestic partner, parent, or child, or any other member of the judges family residing in the judges household, has an economic interest in the subject matter in controversy or in a party to the proceeding. (4) The judge knows or learns by means of a timely motion that a party, a partys lawyer, or the law firm of a partys lawyer has within the previous [insert number] year[s] made aggregate contributions to the judges campaign in an amount that is greater than [$[insert amount] for an individual or $[insert amount] for an entity] [is reasonable and appropriate for an individual or an entity]. (5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. (6) The judge: (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;
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(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (c) was a material witness concerning the matter; or (d) previously presided as a judge over the matter in another court. (B) A judge shall keep informed about the judges personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judges spouse or domestic partner and minor children residing in the judges household. (C) 1. A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judges disqualification and may ask the parties and their lawyers to consider, 2. outside the presence of the judge and court personnel, whether to waive disqualification. 3. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, 4. the judge may participate in the proceeding. 5. The agreement shall be incorporated into the record of the proceeding. RULE 3.1 -- Extrajudicial Activities in General A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not: (A) participate in activities that will interfere with the proper performance of the judges judicial duties; (B) participate in activities that will lead to frequent disqualification of the judge; (C) participate in activities that would appear to a reasonable person to undermine the judges independence, integrity, or impartiality; (D) engage in conduct that would appear to a reasonable person to be coercive; or (E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law. RULE 3.2 -- Appearances * * * and Consultation with Government Officials A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except: (A) in connection with matters concerning the law, the legal system, or the administration of justice; (B) in connection with matters about which the judge acquired knowledge or expertise in the course of the judges judicial duties; or (C) when the judge is acting pro se in a matter involving the judges legal or economic interests, or when the judge is acting in a fiduciary capacity. RULE 3.3 -- Testifying as a Character Witness

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A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned. RULE 3.4 -- Appointments to Governmental Positions A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice. CJC RULE 3.7 Participation in Educational, Religious, Charitable, or Civic Organizations and Activities (A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities: (1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organizations or entitys funds; (2) soliciting contributions for such an organization or entity, but only from members of the judges family, or from judges over whom the judge does not exercise supervisory or appellate authority; (3) soliciting membership for such an organization or entity, * * * but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; RULE 3.9 -- Service as Arbitrator or Mediator A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judges official duties unless expressly authorized by law. RULE 3.10 -- Practice of Law A judge shall not practice law. A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judges family, but is prohibited from serving as the family members lawyer in any forum. RULE 3.11 -- Financial, Business, or Remunerative Activities (A) A judge may hold and manage investments of the judge and members of the judges family. (B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in: (1) a business closely held by the judge or members of the judges family; or (2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judges family. (C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will: (1) interfere with the proper performance of judicial duties; (2) lead to frequent disqualification of the judge;

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(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or (4) result in violation of other provisions of this Code. RULE 3.12 -- Compensation for Extrajudicial Activities A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law unless such acceptance would appear to a reasonable person to undermine the judges independence, integrity, or impartiality. RULE 3.14 -- Reimbursement of Expenses and Waivers of Fees or Charges (A) Unless otherwise prohibited by other law, a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges from sources other than the judges employing entity, if the expenses or charges are associated with the judges participation in extrajudicial activities permitted by this Code. (B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judges spouse, domestic partner, or guest. (C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on behalf of the judge or the judges spouse, domestic partner, or guest shall publicly report such acceptance as required by Rule 3.15. CJC RULE 3.13: Acceptance and Reporting of Gifts, Loans, * * * Benefits, or Other Things of Value (A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judges independence, integrity, or impartiality. (B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance: (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; (2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending or impending before the judge would in any event require disqualification of the judge under Rule 2.11; (3) ordinary social hospitality; (4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges; (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judges household, but that incidentally benefit the judge.

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(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15: (1) gifts incident to a public testimonial; (2) invitations to the judge and the judges spouse, domestic partner, or guest to attend without charge: (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or (b) an event associated with any of the judges educational, religious, charitable, fraternal or civic activities permitted by this Code * * *; and (3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge. Rule 4.1: Political and Campaign Activities of Judges and Judicial Candidates in General (hard to write a question on may not be tested) (A) Except as permitted by law or by Rules 4.2, 4.3 and 4.4, a judge or a judicial candidate shall not: (1) act as a leader in, or hold an office in, a political organization; (8) personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4; (13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office. CJC RULE 4.4: Campaign Committees (A) A judicial candidate subject to public election may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for ensuring that his or her campaign committee complies with applicable provisions of this Code and other applicable law. (B) A judicial candidate subject to public election shall direct his or her campaign committee: (1) establishing limits on campaign contributions to solicit and accept only such campaign contributions as are reasonable, in any event not to exceed, in the aggregate, $[insert amount] from any individual or $[insert amount] from any entity or organization; (2) can collect before up for reelection and days after the election not to solicit or accept contributions for a candidates current campaign more than [insert amount of time] before the applicable primary election, caucus, or general or retention election, nor more than [insert number] days after the last election in which the candidate participated; and (3) to comply with all applicable statutory requirements for disclosure and divestiture of campaign contributions, and to file with [name of appropriate regulatory authority] a report stating the name, address, occupation, and employer of each person who has made campaign contributions to the committee in an aggregate value exceeding $[insert amount]. * * *

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DUTIES TO THIRD PARTIES


This hour we turn away from a focus on duties to the lawyers client and look at the lawyers duties to third parties. They are not so much affirmative duties as they are limits on what you may do on the clients behalf. Problem 19 Contacting Represented and Unrepresented Persons A pedestrian has been hurt by a truck from Speedy Corp. The accident was witnessed by Mary Speedy, the company president, and Barry Winters from accounting. Louis Shabazz, plaintiffs counsel, wants to talk to them and to the truck driver without resorting to depositions. Barbara Bentley, the companys counsel, wants to talk to the same people. RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL Overreaching by counsel 1. 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, a. unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. RULE 4.3: DEALING WITH UNREPRESENTED PERSON 1. In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. 2. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. 3. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, a. if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. RULE 2.3: EVALUATION FOR USE BY THIRD PERSONS Opinion to a person not your client (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.

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PROBLEM 20 The Ethics of Negotiation Your client, James Young, was in a traffic accident. To all but you, he has denied drinking before getting in the car, but in fact he had three large drinks. Fortunately, the arresting officer forgot his testing kit so there is no hard evidence. Plea negotiations and civil settlement talks are coming up. You want to get the best deal you can for him. RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person (cannot say my lawyer had nothing to drink on the day of the accident) (b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Rule 4.4 Respect for Rights of Third Persons (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. New Rule (amended Aug. 2012) (metadata/ data that gives information on who what and when a document was prepared) (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. [2] * * * [E]lectronically stored information includes, in addition to * * * email and other forms of electronically stored information, including embedded data (commonly referred to as metadata), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer. PROBLEM 31Marketing Professional Services Hi Im Jerry Harrold and Im a lawyer. I went to State Law School, was a member of the moot court team, and served as a Judge Advocate in the Army. I dont claim to be the best lawyer in the state, but some of my former clients have agreed to act as references. Ill be glad to supply their names to you. I am unusual in one respect. I charge clients a flat rate of $95 per hour, win or lose, big case or small. That lets me cover my expenses and have a decent income, but most of my clients have found that it saves them a great deal in legal fees. I look forward to meeting you soon. Jerry Code of Professional Responsibility DR 2-101(B) A lawyer may publish or broadcast
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(1) Name addresses and telephone number; (5) Schools attended, degrees and other scholastic distinctions; (16) With their written consent, names of clients regularly represented; (23) Range of fees for services; (24) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter. RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER'S SERVICES 1. A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. a. A communication is false or misleading if it contains a material misrepresentation of fact or law, b. or omits a fact necessary to make the statement considered as a whole not materially misleading. RULE 7.2: ADVERTISING (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (c) for larger firms. Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may (1) pay the reasonable costs of advertisements permitted by this Rule (2) pay the usual charges of a legal services plan or a not for profit or qualified lawyer referral service. (3) pay for a law practice in accordance with Rule 1.17; (4) refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or realtime electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment.

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(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material unless the recipient of the communication is a person specified in paragraphs (a) (1) or (a)(2). RULE 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. Cannot say you specialize (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation. * * * (c) A lawyer engaged in Admiralty practice may use the designation Admiralty, Proctor in Admiralty or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. RULE 7.5: FIRM NAMES AND LETTERHEADS (a) 1. A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. 2. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1. (b) A law firm with offices in more than one jurisdiction may use the same name * * * in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is a fact. RULE 7.6: POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT LEGAL ENGAGEMENTS OR APPOINTMENTS BY JUDGES (not adopted in most states) 1. A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement.

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