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Contents
1.10 Terminology ......................................................................................................... 2
1.1 Competence.............................................................................................................. 2
1.2 Scope of Representation & Allocation of Authority Between Client & Lawyer .... 2
1.3 Diligence .................................................................................................................. 3
1.4 Communications ...................................................................................................... 3
1.5 Fees .......................................................................................................................... 3
1.6 Duty of Confidentiality ............................................................................................ 4
1.7 COI: Current Clients ................................................................................................ 5
1.8 COI: Specific Rules ................................................................................................. 6
1.9 COI: Former Clients ................................................................................................ 7
1.10 Imputation of COI: General Rules ........................................................................... 8
1.11 Government Officers & Employees ......................................................................... 9
1.13 Organization as Client............................................................................................ 10
1.14 Client With Diminished Capacity .......................................................................... 11
1.15 Safekeeping Property ............................................................................................. 11
1.16 Declining or Termination Representation .............................................................. 13
3.1 Meritorious Claims & Contentions ........................................................................ 14
3.2 Expediting Litigation ............................................................................................. 14
3.3 Candor Toward the Tribunal .................................................................................. 14
3.4 Fairness to Opposing Party & Counsel .................................................................. 15
3.5 Impartiality & Decorum of Tribunal...................................................................... 16
3.7 Lawyer as Witness ................................................................................................. 16
3.8 Special Responsibilities of a Prosecutor ................................................................ 16
4.1 Truthfulness in Statements to Others ..................................................................... 16
4.2 Communication with Person Represented by Counsel .......................................... 17
4.3 Dealing with Unrepresented Persons ..................................................................... 17
4.4 Respect for Rights of Third Persons ...................................................................... 17
5.1 Partner or Supervisory Lawyer .............................................................................. 17
5.2 Subordinate Lawyer ............................................................................................... 18
5.3 Nonlawyer Assistance ............................................................................................ 18
8.1 Bar Admission & Disciplinary Matters ................................................................. 18
8.3 Reporting Professional Misconduct ....................................................................... 19
8.4 Misconduct ............................................................................................................. 19
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1.10 Terminology
(e) Informed consent = agreement by person to proposed course of conduct
after lawyer has communicated adequate information/explanation about
material risks of/reasonably available alternatives to proposed course/conduct.
(m) Tribunal = court, arbitrator in binding arbitration proceeding or legislative
body, administrative agency or other body acting in adjudicative capacity.

1.1 Competence
Shall provide competent representation to client. Requires legal knowledge, skill,
thoroughness and preparation reasonably necessary for representation.
[Cmt 1] relevant factors include relative complexity/specialized natureof matter,
lawyers general experience, lawyers training/experiencein the field,
preparation/study lawyer is able to give matter and whether feasible to refer
matter to/associate or consult with a lawyer of established competence in field. In
many instances, the required proficiency is that of a general practitioner.
Expertise in a particular field of law may be required in some circumstances.
[Cmt 3] In emergency, lawyer may give advice/assistance in matter in which
lawyer does not have skill ordinarily required where referral to/consultation or
association with another lawyer would be impractical.
[Cmt 8] should keep abreast of changes in the law and its practice.

1.2 Scope of Representation & Allocation of Authority Between Client
& Lawyer
(a) shall abide by clients decisions concerning objectives of representation and,
as required by 1.4, consult w/client as to means by which they are to be pursued.
May take action impliedly authorized to carry out representation. Shall abide by
clients decision whether to settle. In criminal case, shall abide by clients
decision, after consultation, as to plea, whether to waive jury trial and whether
client will testify.
(b) representation does not constitute endorsement of clients political, economic,
social or moral views/activities.
(c) may limit scopeof representation if limit is reasonableunder circumstances
and client given informed consent.
(d) shall not counsel client to engage, or assist client, in criminal/fraudulent
conduct, but may discuss legal consequences of any proposed conduct w/client
and counsel/assist client to make good faith effort to determine validity, scope,
meaning or application of law.
[Cmt 2] lawyer should seek mutually acceptable resolution of disagreement. If
efforts are unavailing and lawyer has fundamental disagreement with client,
1.16(b)(4). Conversely, client may resolve disagreement by discharging lawyer,
1.16(a)(3).
[Cmt 7] Limited representation does not exempt lawyer from duty of competent
representation, but limitation is factor to be considered when determining legal
knowledge/skill/thoroughness/preparation reasonably necessary for rep, 1.1.
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[Cmt 9] critical distinction between presenting analysis of legal aspects of
questionable conduct and recommending means by which crime/fraud might be
committed with impunity.
[Cmt 10] If lawyers services used to further crime/fraud, withdrawal alone might
be insufficient. May be necessary for lawyer to give notice of fact of withdrawal
and disaffirm any opinion/document/affirmation/the like, 4.1.
[Cmt 13] must consult with the client regarding the limitations on the lawyers
conduct, 1.4(a)(5).

1.3 Diligence
Shall act w/reasonable diligenceand promptness in representing client.
[Cmt 2] Work load must be controlled so each matter handled competently.
[Cmt 4] Unless relationship terminated under 1.16, lawyer should carry through
to conclusion all matters undertaken for client. E.g., if lawyer has handled
judicial/administrative proceeding that produced result adverse to client and
lawyer/client have not agreed that lawyer will handle matter on appeal, lawyer
must consult with client about possibility of appeal before relinquishing
responsibility for matter, 1.4(a)(2).
[Cmt 5] may require each sole practitioner prepare plan, in conformity with
applicable rules, that designates another competent lawyer to review client files,
notify each client of lawyers death/disability, and determine whether need for
immediate protective action.

1.4 Communications
(a) shall:
o (1) promptly informclient of any decision/circumstance w/respect to
which clients informed consent is required;
o (2) reasonably consult w/client about means by which clients objectives
are to be accomplishes;
o (3) keep client reasonably informed about status of matter;
o (4) promptly comply w/reasonable requests for information; and
o (5) consult w/client about any relevant limitation on lawyers conduct
when lawyer knows client expects assistance not permitted by Rules/law
(b) shall explain matter to extent reasonably necessary to permit client to make
informed decisions regarding representation.
[Cmt 7] lawyer may be justified in delaying transmission of information when
client would likely react imprudently to immediate communication, e.g., lawyer
might withhold psychiatric diagnosis of client when examining psychiatrist
indicates disclosure would harm client.

1.5 Fees
(a) shall not make agreement for, change, or collect unreasonable feeor
unreasonable amount for expenses. Factors to be considered include:
o (1) time and labor required, novelty and difficulty of questions involved,
and skill requisiteto perform legal service properly;
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o (2) likelihood, if apparent to client, that acceptance will precludeother
employment by lawyer;
o (3) fee customarily charged in locality for similar legal services;
o (4) amount involved and results obtained;
o (5) time limitations imposed by client or circumstances;
o (6) natureand length of professional relationship w/client;
o (7) experience, reputation, and ability of lawyer/lawyers performing
services; and
o (8) whether fee fixed or contingent.
(b) scope of representation and basis/rate of fee/expenses for which client will be
responsible shall becommunicated to client, preferably in writing, before or w/in
reasonable time after commencing representation, except when lawyer will charge
regularly represented client on same basis/rate. Any changes in basis or rate of
fee or expenses shall also be communicated to client.
(c) may be contingent on outcome of matter, except when prohibited under (d) or
other law. Contingent fee agreement shall be in writing signed by client and shall
state method by which fee determined, including percentage/percentages that
shall accrue to lawyer in event of settlement, trial or appeal; litigation/other
expenses to be deducted from recovery; and whether such expenses are to be
deducted before/after contingent fee is calculated. Agreement must clearly notify
client of any expenses for which client will be liable whether or not client is the
prevailing party. Upon conclusion of matter, lawyer shall provide client with
written statement stating the outcomeof the matter and, if recovery, showing
remittanceto client and method of its determination.
(d) shall not enter into arrangement for, change, or collect:
o (1) fee contingent upon securing of divorce/amount of alimony/support,
or property settlement in domestic relations matter; or
o (2) contingent fee for representing defendant in criminal case.
(e) division of fee between lawyers not in same firm may be made only if:
o (1) division in proportion to services performed by each lawyer/each
lawyer assumes joint responsibility for representation;
o (2) client agree to arrangement, including share each will receive, and
arranged is confirmed in writing; and
o (3) total fee is reasonable.
[5] no arrangement where terms might induce lawyer improperly to curtail
services for client/perform them in way contrary to clients interest, e.g., lawyer
should not enter into agreement whereby services provided only up to stated
amount when foreseeable that more extensive services probably required, unless
situation is adequately explained to client.

1.6 Duty of Confidentiality
(a) shall not reveal information relating to the representation of a client, unless
informed consent, impliedly authorized to carry out representation, or permitted
by (b).
(b) may reveal information to extent reasonably believes necessary to:
o (1) prevent reasonably certain death/substantial bodiliy harm;
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o (2) prevent client from committing crime/fraud reasonably certain to
result in substantial injury to financial interest or property of another,
using lawyers services;
o (3) prevent/mitigate/rectify substantial injury to . . . ^
o (4) seek ethical advice
o (5) establish claim/defenseon behalf of lawyer
o (6) comply with other law or court order; or
o (7) detect/resolve conflicts of interest
(c) shall makereasonable efforts to prevent the inadvertent/unauthorized
disclosure of/access to information relating to representation of client.
[Cmt 2] contributes to the trust that is the hallmark of the client-lawyer
relationship; client is thereby encouraged to seek legal assistance and to
communicate fully and frankly with the lawyer even as to embarrassing or legally
damaging subject matter
[Cmt 3] attorney-client privilege and work product doctrine apply in judicial and
other proceedings in which a lawyer may be called as a witness or otherwise
required to produce evidence concerning a client . . . confidentiality applies in
situations other than those
[Cmt 7] e.g. of (b)(1): client has accidentally discharged toxic waste into a
town's water supply
[Cmt 11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the
services rendered in an action to collect it.
[Cmt 20] The duty of confidentiality continues after the client-lawyer
relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the
prohibition against using such information to the disadvantage of the former
client.

1.7 COI: Current Clients
(a) shall not represent client if representation involves concurrent conflict of
interest. Concurrent conflict exists if:
o (1) representation of once client directly adverseto another client; or
o (2) significant risk that representation of one/more clients will be
materially limited by lawyers responsibilities to another client, a former
client/third person or by personal interest of lawyer.
(b) may represent client if:
o (1) reasonably believes that lawyer will be able to provide competent/
diligent representation to each affected client;
o (2) not prohibited by law;
o (3) does not involve assertion of claim by one client against another
represented by lawyer in same litigation/other proceeding before tribunal;
and
o (4) each affected client gives informed consent, confirmed in writing.
[Cmt 1] Loyalty/independent judgment are essential elements in lawyer-client
relationship.
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[Cmt 3] lawyer should adopt reasonable procedures, appropriate for the size and
type of firm and practice, to determine in both litigation and non-litigation matters
the persons and issues involved
[Cmt 4] If conflict arises after representation undertaken, lawyer ordinarily must
withdraw from the representation, unless informed consent.
[Cmt 8] Material limitation critical questions: likelihood difference in interests
will eventuate/whether it will materially interfere with lawyers independent
professional judgment in considering alternatives or foreclose courses of action
that reasonably should be pursued on behalf of client.
[Cmt 12] lawyer is prohibited from sexual relationships with client unless sexual
relationship predates formation of client-lawyer relationship. See Rule 1.8(j).

1.8 COI: Specific Rules
(a) shall not enter into business transaction w/client or knowingly acquire
ownership/possessory/security/other pecuniary interest adverse to client unless:
o (1) transaction/terms are fair and reasonableto client and fully disclosed
and transmitted in writing in manner that can be reasonably understood;
o (2) client advised in writing to seek and given reasonable opportunity to
seek independent legal counsel on transaction; and
o (3) client gives informed consent, in signed writing, to essential terms of
transaction and to lawyers role in transaction, including whether lawyer is
representing client in transaction.
(b) shall not use information relating to representation of client to disadvantage of
client unless client gives informed consent, except as permitted/required by Rules.
(c) shall not solicit substantial gift from client, including testamentary gift, or
prepare on behalf of client and instrument giving lawyer/person related to lawyer
any substantial gift unless related to client (i.e., spouse, child, grandchild, parent,
grandparent or other relative/individual w/close, familial relationship).
(d) shall not make/negotiate agreement giving lawyer literary or media rights to
portrayal/account based in substantial part on information relating to rep.
(e) shall not provide financial assistanceto client in connection w/pending or
completed litigation, except:
o (1) may advance court costs and expenses of litigation, repayment
contingent on outcome; and
o (2) may pay court costs/expenses of litigation on behalf of indigent client.
(f) shall not accept compensation for representing client from other person unless:
o (1) client gives informed consent;
o (2) no interference with independence/professional judgment/client-lawyer
relationship; and
o (3) information relating to client protected by 1.6.
(g) if two or more clients, shall not participate in making aggregate settlement of
claims of/against clients, or in criminal case an aggregated agreement as to guilty/
nolo contendere pleas, unless each gives informed consent, in signed writing.
Disclosure shall includethe existence/nature of all claims/pleas involved and of
participation of each person in settlement.
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(h) shall not:
o (1) make agreement prospectively limiting malpractice liability unless
client independently represented in making agreement; or
o (2) settle claim/potential claimfor liability w/unrepresented client/former
client unless advised in writing to seek/given reasonable opportunity to
seek advice of independent legal counsel in connecting.
(i) shall not acquire proprietary interest in action/subject matter of litigation
lawyer is conducting for client, except may:
o (1) acquire lien authorized by law to secure fee/expenses; and
o (2) contract w/client for contingent feein civil case.
(j) shall not have sexual relationship w/client unless consensual sexual
relationship existed prior to client-lawyer relationship.
(k) prohibitions on (a)-(i) imputed to firm lawyer is associated with.
[Cmt 1] does not apply to ordinary fee arrangements between client/lawyer, (see
1.5), although requirements must be met when lawyer accepts interest in clients
business/other nonmonetary property as payment of all/part of fee. Does not
apply to standard commercial transactions between lawyer/client.
[Cmt 5] violation of (b) violates duty of loyalty.
[Cmt 13] Lawyers representing class, or those proceeding derivatively, may not
have a full client-lawyer relationship with each member; nevertheless, lawyers
must comply with applicable rules regulating notification of class members and
other procedural requirements designed to ensure adequate protection of entire
class. Under 1.7, differences in willingness to make/accept offer of settlement
should be discussed before undertaking representation, as part of process of
obtaining clients informed consent. (g) provides that, before settlement offer or
plea bargain is made/accepted on behalf of multiple clients, lawyer must inform
each about all material terms of settlement (1.2(a)), including what the other
clients will receive or pay if the settlement or plea offer is accepted.

1.9 COI: Former Clients
(a) shall not represent another person in sameor substantially relatematter in
which persons interests are materially adverseto interests of former client unless
former client gives informed consent, confirmed in writing.
(b) shall not knowingly represent person in same/substantially related matter in
which firm with which lawyer formally was associated had previously
represented client:
o (1) whose interests materially adverseto that person; and
o (2) about whom lawyer acquired information protected by 1.6/1.9(c) that
is material to matter;
unless former client gives informed consent, confirmed in writing.
(c) lawyer who formerly represented client in matter or whose present/former firm
formerly represented client in matter shall not thereafter:
o (1) use information relating to representation to disadvantageof former
client except as rules permit/require w/respect to client, or when
information generally known; or
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o (2) reveal information relating to representation except as Rules permit or
require w/respect to client.
[Cmt 1] example: lawyer could not properly seek to rescind on behalf of a new
client a contract drafted on behalf of the former client.
[Cmt 2] underlying question is whether the lawyer was so involved in the matter
that the subsequent representation can be justly regarded as a changing of sides in
the matter in question.
[Cmt 3] substantially related = involve same transaction/legal dispute or
otherwise substantial risk that confidential factual information would materially
advance clients position in subsequent matter.
[Cmt 5] (b) operates to disqualify the lawyer only when the lawyer involved has
actual knowledge of information protected by Rules 1.6 and 1.9(c).
[Cmt 6] burden of proof should rest upon the firm whose disqualification is
sought.
[Cmt 9] Rule can be waived if the client gives informed consent, which consent
must be confirmed in writing under paragraphs (a) and (b).

1.10 Imputation of COI: General Rules
(a) while associate in a firm, none shall knowingly represent client when any
practicing along would be prohibited under 1.7 or 1.9, unless:
o (1) base on personal interest of disqualified lawyer and no
present/significant risk of materially limiting representation by remaining
lawyers in firm; or
o (2) prohibition base on 1.9(a)/(b) and arises out of disqualified lawyers
association w/prior firm, and
(i) disqualified lawyer timely screened and apportioned no part of
fee;
(ii) written noticepromptly given to any affected former client to
enable former client to ascertain compliance w/provisions of this
Rule, which shall includedescription of screening procedures
employed; statement of firms/of screened lawyers compliance
w/Rules; statement that review available before tribunal; and
agreement by firm to respond promptly to any written inquiries or
objections by former client about screening procedures; and
(iii) certifications of compliance with Rules and w/screening
procedures are provided to former client by screened lawyer and
by partner of firm, at reasonable intervals upon former clients
written request and upon termination of screening procedures.
(b) when lawyer has terminated association with firm, firm not prohibited from
representing person with interests materially adverse to those of client represented
by formerly associated lawyer and not currently represented by firm, unless:
o (1) matter is sameor substantially related to that which formerly
associated lawyer represented client; and
o (2) any lawyer remaining in firm has information protected by 1.6 and
1.9(c) that is material to matter.
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(c) disqualification under this rule may be waived by affected client under
conditions stated in 1.7.
(d) disqualification of lawyers associated in firm w/former/current government
lawyers governed by 1.11.
[Cmt 8] (a)(2)(i) does not prohibit screened lawyer from receiving salary/
partnership share established by prior independent agreement.

1.11 Government Officers & Employees
(a) lawyer who formerly served as public officer/employeeof government:
o (1) subject to 1.9(c); and
o (2) shall not otherwise represent client in connection with matter in which
lawyer participated personally and substantially as public officer or
employee, unless appropriate government agency gives informed consent,
confirmed in writing, to representation.
(b) when disqualified from representation under (a), no lawyer in firm with which
lawyer is associated may knowingly undertake/continue representation in such
matter unless:
o (1) disqualified lawyer timely screened from participation in matter and
apportioned no part of fee; and
o (2) written noticepromptly given to appropriate government agency to
enable it to ascertain compliance with provisions of this rule.
(c) lawyer having information that lawyer knows is confidential government
information about person acquired when lawyer was public officer/employee,
may not represent private client adverse to that person in matter in which
information could be used to material disadvantage of that person. Confidential
government information means information obtained under governmental
authority and which government is prohibited by law from disclosing to public or
has legal privilege not to disclose and which not otherwise available to public.
Firm lawyer associated with may undertake/continue representation in matter only
if disqualified lawyer timely screened from participation in matter and
apportioned no part of fee.
(d) lawyer currently serving as a public officer or employee:
o (1) subject to 1.7 and 1.9; and
o (2) shall not:
(i) participatein matter in which lawyer participated personally
and substantially while in private practice/nongovernmental
employment, unless appropriate government agency gives its
informed consent, confirmed in writing; or
(ii) negotiatefor private employment w/any person involved as
party or as lawyer for party in matter in which lawyer is
participating personally/substantially, except that lawyer serving as
law clerk to judge/other adjudicative officer/arbitrator may
negotiate for private employment as permitted by 1.12(b) and
subject to conditions stated in 1.12(b).
(e) term matter includes:
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o (1) any judicial/other proceeding, application, request for ruling/other
determination, contract, claim, controversy, investigation, charge,
accusation, arrest/other particular matter involving specific party/parties,
and
o (2) any other matter covered by conflict of interest rules of appropriate
government agency.

1.13 Organization as Client
(a) represents organization through duly authorized constituents.
(b) if knows that officer/employee/other person associated with org is engaged in
action, intends to act/refuses to act in a matter related to representation that is
violation of legal obligation to org, or violation of law that reasonably might be
imputed to org, and is likely to result in substantial injury to org, then shall
proceed as reasonably necessary in best interest of org. Unless reasonably
believes not necessary in best interest of org to do so, shall refer matter to higher
authority in org, including, if warranted by circumstances to highest authority that
can act on behalf of org as determined by applicable law.
(c) if:
o (1) highest authority insists upon/fails to address in timely/appropriate
manner an action/refusal to act, that is clearly violation of law, and
o (2) reasonably believes that the violation is reasonably certain to result in
substantial injury to org,
o then may reveal information relating to representation regardless if 1.6
permits disclosure, but only if and to extent reasonably believes necessary
to prevent substantial injury to the organization.
(d) (c) shall not apply to info relating to representation of org to investigate
violation of law/to defend org or office/employer/other constituent against claim
arising out of alleged violation.
(e) reasonably believes discharged b/c of actions taken under (b)/(c), or who
withdraws under circumstances that require/permit lawyer to take action under
either (b)/(c), shall proceed as reasonably believes necessary to assure that orgs
highest authority is informed of lawyers discharge/withdrawal.
(f) In dealing with orgs directors, officers, employees, members, shareholders or
other constituents, shall explain identity of client when lawyer knows or
reasonably should know that orgs interests are adverse to those of constituents
with whom lawyer is dealing.
(g) may also represent directors, officers, employees, members, shareholders or
other constituents, subject 1.7. If orgs consent to dual representation is required
by 1.7, consent shall be given by appropriate official of org other than individual
who is to be represented, or by shareholders.
[Cmt 6] does not limit/expand responsibility under 1.8, 1.16, 3.3 or 4.1.
[Cmt 9] applies to governmental organizations.

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1.14 Client With Diminished Capacity
(a) whether b/c of minority/mental impairment/other reason, shall, as far as
reasonable, maintain normal client-lawyer relationship.
(b) when reasonably believes client has diminished capacity, is at risk of
substantial physical, financial or other harm unless action taken, may take
reasonably necessary protective action, . . . in appropriate cases seek guardian ad
litem, conservator or guardian.
(c) information protected by 1.6. When taking protective action under (b),
impliedly authorized under 1.6 to reveal information about client, BUT only to
extent reasonably necessary to protect clients interests.
[Cmt 4] if legal representative already appointed, should ordinarily look to
representative for decisions on behalf of client. When minor, whether lawyer
should look to parents as natural guardians may depend on type of proceeding/
matter in which lawyer is representing the minor.

1.15 Safekeeping Property
(a) shall hold property separate from lawyers own property. Funds shall be kept
in separate account in state where office located, or elsewhere w/consent. Other
property shall be identified/appropriately safeguarded. Complete records shall be
kept for five years.
(b) may deposit own funds into client trust for sole purpose of bank service
charges, but only amount necessary for purpose.
(c) shall deposit into client trust account legal fees and expenses that have been
paid in advance, to be withdrawn only as fees are earned or expenses incurred.
(d) upon receiving funds/property in which client/third person has interest, shall
promptly notify client/third person. Except this Rule/other law, shall promptly
deliver any funds/other property client/third person is entitled to receive and, upon
request, shall promptly render a full accounting regarding such property.
(e) when two/more persons (one of whom may be lawyer) claim interest, property
shall be kept separateuntil dispute is resolved. Shall promptly distributeall
portions not it dispute.
[Cmt 1] lawyer should hold property with care required of professional fiduciary.
[Cmt 2] (b) provides it is permissible when necessary to pay bank service charges
on account. Accurate records must be kept regarding which parts are lawyers.
[Cmt 3] may not hold funds to coerce client into accepting lawyers contention.
Disputed portion of funds must be kept in trust account and lawyer should suggest
means for prompt resolution of dispute, e.g. arbitration. Undisputed portion shall
be promptly distributed.

Generally: Why is this seen as so much worse than violating other rules that it can result
in disbarment?
Fiduciary relationship
Lots of these things are transactions that you cant do without a lawyer
Not just individual trust, but public trust that is affected
Many ways to run afoul. See Pierson.
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Misappropriation: Any unauthorized use of client funds entrusted to atty, incl.
not only stealing, but also unauthorized borrowing or other use, whether or not
for personal benefit. SERIOUS
Per se, strict liability offense. Even when balance falls below amount
owed. See e.g., Pierson.
Commingling: Mixing the lawyer and client funds together. Mixing client trust
and personal/operating accounts. See Hessler. SERIOUS (so serious has been
the prohibition against commingling . . . .)
Must have at least 2 bank accounts
o Operating account: Lawyers business funds
o Trust/escrow account: Only for 1) other peoples money; 2) money
that is partially for you and partially for your client or a third party,
and 3) payments for bank charges (accounting on demand)
Advance fees and expenses must be put into the account as
part of #1 its theirs until it is earned or incurred
o Personal account
Policy (Hessler): may result in loss of money or, at least, make client
money harder to trace. Also, attys creditors may end up grabbing client
$$s.
Record-keeping: Must keep complete records of such accounts for 5 years
(1.15(a))
Dont inherently have to open a new escrow account for every transaction,
but you need to keep separate escrow ledgers for each client and an ability
to pay and track every clients money
Misc. Safeguarding
If its physical property, must keep it appropriately safeguarded
3 basic requirements for what lawyer must do when he receives funds:
o Notification upon receipt
o Prompt delivery to client or 3d party
o Full accounting upon request

In re Pierson (If client escrow account ever falls below the amount owed for any reason,
its per se misappropriation)
Facts: Pierson and client have preexisting cordial relationship that has occasionally
involved the client making loans to Pierson (might violate 1.8(a), but well ignore
that). Client had settled a case by which he would pay a third party. Pierson takes the
settlement money to pay operating accounts, and gets the loan approved ex post.
o Client later defaults on the settlement, and Pierson lies to third party about the
settlement funds
Rule: Misappropriation is a per se offense defined by the account balance falling
below what the lawyer is obligated to hold.
o Intent and motivation (e.g. personal gain) irrelevant
o If the balance doesnt fall below, its not misappropriation (though it still
might be commingling)
Holding: When Pierson put the money into an account with a negative balance, it was
misappropriation. Disbarred.
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o Not only was this misappropriation, and w/o permission, but it hinders
Piersons ability to carry out the rep. even if it is a loan
Prof
o Strictly applied ANY deficit is a technical misappropriation
o Practically
No fault of attny: (i.e., bank error or a failure to pay a service charge) a
responsible bar prosecutor will exercise discretion to take no formal
action.
Attny negligence, there will be a sanction of less than disbarment
Defenses (i.e., duress, necessity, insanity) note how the Pautler court deals with duress,
et al. if its available at all, it would have to be a compelling justification, which no court
has ever found.

1.16 Declining or Termination Representation
(a) Shall not represent client or shall withdraw if:
o (1) will result in violation of Rules/other law;
o (2) lawyers physical/mental condition materially impairs ability to
represent client; or
o (3) lawyer is discharged.
(b) May withdraw if:
o (1) can be accomplished w/out material adverse effect on interests of
client;
o (2) client persists in course of action involving lawyers services that
lawyer reasonably believes is criminal/fraudulent;
o (3) client used lawyers services to perpetuate crime/fraud;
o (4) client insists upon action that lawyer considers repugnant/or with
which has fundamental disagreement;
o (5) client fails substantially to fulfill obligation to lawyer regarding
lawyers services and given reasonable warning that lawyer will withdraw
unless obligation fulfilled;
o (6) representation will result in unreasonably financial burden on lawyer
or rendered unreasonably difficult by client; or
o (7) other good cause for withdrawal exists.
(c) must comply with applicable law requiring notice to/permission of tribunal
when terminating representation. When ordered to do so by tribunal, shall
continue representation notwithstanding good cause for terminating
representation.
(d) upon termination, shall take steps to extent reasonably practicable to protect
clients interests, such as giving reasonable notice to client, allowing time for
employment of other counsel, surrendering papers/property to which client is
entitled and refunding any advance payment of fee/expense not earned/incurred.
May retain papers relating to client to extent permitted by other law.
[Cmt 4] Client has right to discharge lawyer at any time, with/without cause,
subject to liability for payment for lawyers services.
14

[Cmt 8] May withdraw if client refuses to abide by terms of agreement relating to
representation, such as agreement concerning fees/court costs or agreement
limiting objectives of representation.
[Cmt 9] Even if lawyer unfairly discharged, must take all reasonable steps to
mitigate consequences to client. May retain papers as security for a fee only to
the extent permitted by law, 1.15.

3.1 Meritorious Claims & Contentions
shall not bring/defend proceeding, or assert/controvert issue therein, unless basis
in law and fact for doing so that is not frivolous, which includes good faith
argument for extension, modification or reversal of existing law. For defendant
in criminal proceeding, or respondent in proceeding that could result in
incarceration, may nevertheless defend proceeding as to require every element of
case be established.

3.2 Expediting Litigation
shall make reasonable efforts to expeditelitigation consistent with the interests
of the client.
[Cmt 1] question is whether competent lawyer acting in good faith would regard
course of action as having some substantial purpose other than delay.

3.3 Candor Toward the Tribunal
(a) shall not knowingly:
o (1) make false statement of fact/law to tribunal or fail to correct material
fact/law previously made to tribunal by lawyer;
o (2) fail to discloseto tribunal legal authority in controlling jurisdiction
known to lawyer to be directly adverseto position of client and not
disclosed by opposing counsel; and
o (3) offer evidencelawyers knows to be false. If lawyer/client/witness
called, has offered material evidence and lawyer comes to know falsity,
lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to tribunal. May refuseto offer evidence, except testimony of
defendant in criminal matter, lawyer reasonable believes is false.
(b) knows client intends to engage/is engaging/has engaged in
criminal/fraudulent conduct related to proceeding shall take reasonable
remedial measures, including, if necessary, disclosure to tribunal.
(c) duties in (a)/(b) continue to conclusion of proceeding, and apply even if
compliance requires disclosure of information otherwise protected by 1.6.
(d) in ex parte proceeding, shall inform tribunal of all material facts known to
lawyer that will enable tribunal to make informed decision, whether/not facts
adverse.
[Cmt 2] avoid conduct that undermines integrity of the adjudicative process.
Lawyer must not allow the tribunal to be misled by false statements of law or
fact or evidence that the lawyer knows to be false.
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[Cmt 7] some jurisdictions, courts require counsel to present accused as witness
or to give narrative statement if accused so desires, even if counsel knows the
testimony/statement will be false.
[Cmt 8] Rule does not permit lawyer to refuse to offer testimony of criminal client
where lawyer reasonably believes but does not know testimony will be false.
Unless lawyer knows testimony will be false, lawyer must honor clients decision
to testify.
[Cmt 11] if lawyer cooperates in deceiving court, subverts truth-finding process
which adversary system is designed to implement. See Rule 1.2(d).
[Cmt 13] proceeding has concluded within meaning of Rule when final judgment
in proceeding has been affirmed on appeal or time for review has passed.
[Cmt 15] may be required by 1.16(a) to seek permission to withdraw if lawyers
compliance with duty of candor results in extreme deterioration of client-lawyer
relationship that lawyer can no longer competently represent the client. Also,
1.16(b) for permissive withdrawal. In connection with request for permission to
withdraw premised on clients misconduct, lawyer may reveal information
relating to representation only to extent reasonably necessary to comply with
Rule/otherwise permitted by 1.6.

3.4 Fairness to Opposing Party & Counsel
Shall not:
(a) unlawfully obstruct other partys access to evidence or unlawfully alter/
destroy/conceal document/other material having potential evidentiary value.
Shall not counsel/assist another to do any such act;
(b) falsify evidence, counsel/assist witness to falsely testify, or offer inducement
to witness prohibited by law;
(c) knowingly disobey obligation under rules of a tribunal except for open refusal
based on assertion that no valid obligation exists;
(d) make frivolous discovery request/fail to make reasonably diligent effort to
comply with legally proper discovery request by opposing party;
(e) allude to any matter lawyer does not reasonably believe relevant/will not be
supported by admissible evidence, assert personal knowledgeof facts except
when testifying, or state personal opinion as to justness of cause, credibility of
witness, culpability of civil litigant, or guilt/innocence of accused; or
(f) request person other than client to refrain from voluntarily giving relevant
information to another party unless:
o (1) person is relative/employee/other agent of client; and
o (2) reasonably believes persons interest will not be adversely affected by
refraining from giving such information.
[Cmt 1] Fair competition in adversary system secured by prohibitions against
destruction/concealment of evidence, improperly influencing witnesses,
obstructive tactics in discovery procedure, etc.
[Cmt 2] law may permit lawyer to take temporary possession of physical evidence
for purpose of conducting limited examination that will not alter/destroy material
16

characteristics of evidence applicable law may require lawyer to then turn
evidence over to police/other prosecuting authority, depending on circumstances.
[Cmt 3] under (b) not improper to pay witnesss expenses/compensate expert
witness on terms permitted by law. Common law majority rule = improper to pay
occurrence witness any fee for testifying and improper to pay expert witness
contingent fee.
[Cmt 4] (f) see also 4.2.

3.5 Impartiality & Decorum of Tribunal
shall not:
(a) seek to influence judge, juror, prospectivejuror or other official by means
prohibited by law;
(b) communicate ex partewith ^ during proceeding unless authorized by law or
court order;
(c) communicatewith a juror/prospective juror after discharge of jury if:
o (1) communication prohibited by law or court order;
o (2) juror has made known to lawyer desire not to communicate; or
o (3) communication involves misrepresentation, coercion, duress or
harassment; or
(d) engage in conduct intended to disrupt a tribunal.

3.7 Lawyer as Witness
(a) shall not act as advocate at trial in which lawyer is likely to be necessary
witness unless:
o (1) testimony relates to uncontested issue;
o (2) testimony relates to nature/valueof legal services rendered in case; or
o (3) disqualification would work substantial hardship on client.
(b) may act as advocate in trial in which another lawyer in lawyers firm is likely
to be called as witness unless precluded by 1.7 or 1.9.
[Cmt 2] tribunal has proper objection when juror may be confused/misled by
lawyer serving as both advocate and witness.
[Cmt 6] if there is likely to be substantial conflict between testimony of client and
that of lawyer, representation involves conflict that requires compliance with 1.7.

3.8 Special Responsibilities of a Prosecutor

4.1 Truthfulness in Statements to Others
In course of representing client, shall not knowingly:
(a) make false statement of material fact/law to third person; or
(b) fail to disclose material fact to third person when disclosure necessary to
avoid assisting criminal/fraudulent act by client, unless prohibited by 1.6.
[Cmt 1] generally no affirmative duty to inform opposing party of relevant facts.

17

4.2 Communication with Person Represented by Counsel
In representing client, shall not communicate about subject of representation with
person lawyer knows represented by another lawyer in matter, unless lawyer has
consent of other lawyer or is authorized by law or court order.

4.3 Dealing with Unrepresented Persons
In dealing on behalf of client w/person not represented by counsel, lawyer shall
not stateor imply that lawyer is disinterested. When lawyer knows or reasonably
should know that unrepresented person misunderstands lawyers role in matter,
shall make reasonable efforts to correct misunderstanding. Shall not give legal
advice to unrepresented person, other than to secure counsel, if lawyer knows or
reasonably should know that interests of such person are/have a reasonable
possibility of conflict with interests of client.
[Cmt 2] So long as lawyer has explained that lawyer represents adverse party and
not representing person, lawyer may inform person of terms on which lawyers
client will enter into agreement/settle matter, prepare documents that require
persons signature and explain lawyers own view of meaning of document or
lawyers view of underlying legal obligations.

4.4 Respect for Rights of Third Persons
(a) shall not use means w/no substantial purpose other than to embarrass, delay,
or burden third person, or use methods of obtaining evidence that violate legal
rights of such person.
(b) lawyer who receives a document/electronically stored information relating to
representation of lawyers client and knows/reasonably should know that
document/electronically stored information was inadvertently sent shall promptly
notify sender.
[Cmt 3] Where lawyer not required by applicable law, decision to voluntarily
return such document/delete electronically stored information is matter of
professional judgment ordinarily reserved to lawyer, 1.2 and 1.4.

5.1 Partner or Supervisory Lawyer
(a) Partner/manager shall make reasonable efforts to ensure firm has in effect
measures giving reasonable assurance that lawyers conform to Rules.
(b) Lawyer w/direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that other lawyer conforms to Rules.
(c) Lawyer shall be responsible for another lawyers violation of Rules if:
o (1) lawyer orders or, with knowledge, ratifies conduct involved; or
o (2) lawyer is partner or has comparable managerial authority/has direct
supervisory authority over other lawyer, and knows of conduct at a time
when consequences can be avoided/mitigated but fails to take reasonable
remedial action.
[Cmt 2] (a) requires partners/managers to make reasonable efforts to establish
internal policies and procedures designed to provide reasonable assurance that
lawyers in firm will conform to Rules. Such policies/procedures include those
18

designed to detect/resolve COIs, identify dates actions must be taken in pending
matters, account for client funds/property and ensure inexperienced lawyers are
properly supervised.

5.2 Subordinate Lawyer
(a) lawyer is bound by Rules notwithstanding that lawyer acted at direction of
another.
(b) subordinate lawyer does not violate Rules if acts in accordance with
supervisory lawyers reasonable resolution of arguable question of duty.
[Cmt 1] if subordinate filed frivolous pleading at direction of supervisor,
subordinate not guilty of violation unless subordinate knew of documents
frivolous character.

5.3 Nonlawyer Assistance
With respect to nonlawyer employed/retained by/associated with lawyer:
(a) Partner/manager shall make reasonable efforts to ensure firm has measures
giving reasonable assurance persons conduct is compatible with professional
obligations of lawyer;
(b) Lawyer w/direct supervisory authority over nonlawyer shall make reasonable
efforts to ensure persons conduct is compatible with professional obligations of
lawyer; and
(c) Lawyer shall be responsiblefor conduct of such person that would be
violation of Rules if engaged in by lawyer if:
o (1) lawyer orders or, with knowledge, ratifies conduct involved; or
o (2) lawyer is partner or has comparable managerial authority/has direct
supervisory authority over person, and knows of conduct at a time when
consequences can be avoided/mitigated but fails to take reasonable
remedial action.

8.1 Bar Admission & Disciplinary Matters
Applicant for bar admission, or lawyer in connection with bar admission application/in
connection with disciplinary matter, shall not:
(a) knowingly make false statement of material fact; or
(b) fail to disclosea fact necessary to correct misapprehension known by person
to have arisen in matter, or knowingly fail to respond to lawful demand for
information from admissions/disciplinary authority, except for disclosure of
information otherwise protected by 1.6.
[Cmt 2] Rule subject to provisions of 5
th
Amendment/corresponding provisions of
state constitutions. Person relying on such provision in response to question
should do so openly and not use right of nondisclosure as justification for failure
to comply with Rule.

19

8.3 Reporting Professional Misconduct
(a) knows another lawyer committed violation of Rules that raises substantial
question as to honesty, trustworthiness or fitness as lawyer, shall inform
appropriate professional authority.
(b) knows judge committed violation of rules of judicial conduct that raises
substantial question as to fitness for officeshall inform appropriate authority.
(c) does not require disclosure of 1.6 information or information gained by lawyer
or judge while participating in approved lawyers assistance program.
[Cmt 2] report required where it would involve violation of 1.6. However, should
encourage client to consent to disclosure where prosecution would not
substantially prejudice clients interests.
[Cmt 4] does not apply to lawyer retained to represent lawyer whose professional
conduct is in question.

8.4 Misconduct
Professional misconduct to:
(a) violate/attempt to violateRules, knowingly assist or induceanother to do so,
or do so through acts of another;
(b) commit criminal act that reflects adversely on lawyers honesty,
trustworthiness or fitness as lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct prejudicial to administration of justice;
(e) state/imply ability to influence improperly government agency/official/to
achieve results by means that violate Rules/other law; or
(f) knowingly assist judge or judicial officer in conduct that is violation of
applicable rules of judicial conduct/other law
[Cmt 2] reflects adversel (e.g., fraud/willful failure to file income tax return) vs.
crimes of moral turpitude (e.g., adultery). Pattern of repeated offenses, even ones
of minor significance when considered separately, can indicate indifference to
legal obligation.
[Cmt 3] words or conduct that manifest bias or prejudice based upon race, sex,
religion, national origin, disability, age, sexual orientation or socioeconomic
status, violates (d) when such actions prejudicial to administration of justice.
Legitimate advocacy respecting foregoing factors does not violate (d).

Legal

20

UPJOHN Corporate Counsel
A. Suggested Upjohn Warning
I am a lawyer for or from Corporation A. I represent only Corporation A, and I do not
represent you personally. I am conducting this interview to gather facts in order to
provide legal advice for Corporation A. This interview is part of an investigation to
determine the facts and circumstances of X in order to advise Corporation A how best to
proceed.
Your communications with me are protected by the attorney-client privilege. But the
attorney-client privilege belongs solely to Corporation A, not you. That means that
Corporation A alone may elect to waive the attorney-client privilege and reveal our
discussion to third parties. Corporation A alone may decide to waive the privilege and
disclose this discussion to such third parties as federal or state agencies, at its sole
discretion, and without notifying you.
In order for this discussion to be subject to the privilege, it must be kept in confidence. In
other words, with the exception of your own attorney, you may not disclose the substance
of this interview to any third party, including other employees or anyone outside of the
company. You may discuss the facts of what happened but you may not discuss this
discussion.
Do you have any questions?
Are you willing to proceed?


Formation Attorney Client Relationship
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person's intent that the lawyer provide legal
services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest a lack of consent to do so, and the lawyer knows or
reasonably should know that the person reasonably relies on the lawyer to provide the
services . . . .Ftn 5 RESTATEMENT
As the Restatement notes, the focus will often be on the reasonable reliance of the
prospective client.