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PR—2018

Introduction
 Misconduct: You are subject to discipline if you violate the rules. There does not need to be
harm to the client here at all. Just a violation of the rule.
o Public shaming: Publishing your name in the newspaper
o Fine: Thousands of dollars
o Suspension/disbarment
 30, 60, 90 days, based on the severity of the violation
 You can appeal a disbarment after a certain time
 Malpractice: Civil violation under breach of contract. There must be harm to the client.
o Duty to the client
o Breach of duty to the client in some way
o Breach is the cause of the harm the client sustained
RST §14. Formation of Attorney-Client Relationship [NOT FOUND IN RULES]
1. A person expresses interest and the lawyer and the lawyer agrees (RST § 14)
2. **Inadvertent: A person manifests intent to hire the lawyer, the lawyer fails to say no,
and the lawyer knows or should know that the person reasonably relied on the lawyer to
provide the services (RST § 14)
a. *it’s the subjective view of the client that counts.
3. Can be formed in 3 ways:
a. Traditional
b. Inadvertent
c. Appointment
Attorney-Client Privilege
 Attorney-client privilege is a rule of evidence that applies in testimonial settings to
protect communications made between client and attorney to seek legal advice.
o Legal information: any information that can be found by anymore—
generalized information.
o Legal advice: when you’re applying legal analyzes to a specific set of facts.
 What happens with legal software and websites?
o Can be verbal or non-verbal, but must be made with the expectation of privacy
o Protects only communication, not underlying facts
o Exceptions:
 Crime-fraud exception: when client consults lawyer to obtain assistance in
committing a future crime/fraud
Very narrow and only protects the communication between the client and the lawyer
Client Lawyer Relationship
 1.1: Competence
o A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation
o Anyone who graduates from law school is initially not competent
 Note that anyone can open their own law firm and start right away
o You can become competent through
 Study
 Association
 You partner with someone else
 Emergency legal assistance
 An emergency lawyer can give assistance if it is impractical to refer the client
 i.e. your cousin is in jail and you have to help them out
 This was an emergency situation
 You must limit assistance to what is reasonably necessary in the circumstances
 Look for competence in the format of someone just started working or a lawyer
that changed office OR moving cities
o Factors to determine if you are competent
 Relative complexity and specialized nature of the matter
 Lawyer's general experience
 Lawyer's training and experience in the matter
 Preparation and study the layer gives the matter
 Whether it is feasible to refer the matter to or consult with another lawyer
o Most of the time, the required proficiency is that of a general practitioner
 Expertise may be required in some circumstances
o If you partner with another attorney outside the law firm, you have to get informed consent
from the client and you must reasonably believe that the other lawyer's services will
contribute to ethical representation of the client
 Consider: education, expertise, and reputation of the non-firm lawyers, the nature of
the services assigned to the non-firm lawyers, and jurisdiction where the services are
performed (especially for considering confidentiality)
o Lawyers must maintain competence by making sure they keep up with changes in the law,
changes in relevant technology, and comply with all continuing legal education
requirements.
o Zigalime v. Appolo
o Divorce matter. The lawyer improperly advised the client on what she can get as a
settlement.
o He advised her that she would only get 10-20% of the estate if she went to trial, so the
lawyer recommended settling.
 Later, she finds out that she would have been entitled to 50% if she went to
trial.
 An expert came in and said she would have gotten 50%.
o The court says the lawyer did not do any work to figure out what she would have been
entitled to if she went to trial.
 Although, 20% in the settlement is fair, just because a settlement is fair and
equitable does not mean the lawyer is precluded from a professional ethics
claim
 This is a competence issue. The lawyer was too lazy to figure out what she was
entitled to.
 1.2: Scope of Representation
o In the formation of the attorney client relationship, in the discussion at the beginning
about the retainer agreement, there has to be a discussion about where the client
wants the case to go
 Outline what the client wants your help with and where the case will go
 The client gives you a destination
 The lawyer is the google maps and gets the directions to there without
having to consult with the client all the time
o Inherent authority based on scope of representation set out
o You can restrict the scope of representation
 You should always do this
 E.g. I will represent you until X date like the closing date of a purchase.
 The client has to give informed consent to this scope
 This can include restricting the use of means the client does not like or the
lawyer thinks are repugnant
 Limitations must be reasonable under the circumstances
 The limitations can be considered when determining competence
o Lawyers cannot settle without communication with the client
 That is a violation of rule 1.2
o In a criminal context, the lawyer must follow the client's wishes on
 Whether to take a plea
 Whether to waive the jury in a jury trial
 Whether to testify
o Lawyers cannot counsel a client to participate in something the lawyer knows is
fraudulent or illegal
 Lawyers may discuss the legal consequences of any proposed course of conduct
 If the client uses what they learn from the lawyer and chooses an illegal
course of action, it does not make the lawyer a party to the crime
 If the client has already started a crime, the lawyer has to be careful
 Cannot deliver papers they know are not real or are fraudulent
 Cannot suggest how the wrongdoing might be concealed
 Cannot continue to help a client with what they thought was legal and
then learns is not legal
 If any of these things happen, the lawyer must withdraw
o Sometimes the lawyer might have to disaffirm any opinion,
document, or affirmation (rule 4.1)
o The rules do not address how disagreements regarding the means used to accomplish
the client's objectives
 i.e. clients decide how much money to spend, lawyers decide how to get to the
objective.. Sometimes, clients don’t like how to get there and lawyers are
constrained by money
 The lawyer should ask the client and come to a resolution
 If the lawyer has a fundamental disagreement with the client, the lawyer may
withdraw
o Client can revoke the lawyer's authority to make decisions without the client's
permission at any time
o Brian Banks Falsely accused of rape
 1.3: Dilligence
o A lawyer shall act with reasonable diligence and promptness in representing a client
o Act with commitment and dedication to the interest of the client
 Lawyers do not have to press for every advantage for the client, but should
determine what should be pursued
 Duty to act with diligence does not requre the use of offensive tactics or
preclued acting with courtesy and respect
o The work load should be controlled so each matter can be handled competently
o Procrastination is awful
 Unreasonable delay can cause missing deadlines or anxiety for the client
 Lawyers are allowed to agree to requests for a postponement that will not
prejudice the lawyer's client
o Lawyer - client relationships terminate when the matter has been resolved
 If the lawyer handles lots of stuff over time, the client might be able to assume
the lawyer will continue to serve until the lawyer gives notice of withdrawal
 Written notification of the status of the relationship is best
o SP's need to have a plan in place in case they die
 1.4: Communication
o A lawyer SHALL:
 Promptly inform the client of decisions that require informed consent
 i.e. settlement decisions or plea bargain decisions
 Reasonably consult with the client about the means by which the client's
objectives will be accomplished
 Sometimes, this means consulting with the client before taking action
 In trial, sometimes that means consulting after and the lawyer must act
reasonably to inform the client of the actions afterwards
 Keep the client informed of the status of the matter
 i.e. Significant developments affecting timing or substance of
representation
 Comply with reasonable requests for info
 If you are communicating well, this wont happen too much anyway
 If you cant get back promptly, then a member of the lawyer's staff
should send an acknowledgement receipt to adivse the client when a
response is expected
 Consult with the client about limitations to the lawyer's conduct when the
lawyer knows the client expects help, but assistance is not allowed by the rules
 Explain a matter in a way to allow the client to make informed decisions
regarding representation
 The client should get enough info to participate intelligently in decisions
to the extent the client is willing and able to
o Communication with the client is important
 Always keep your client feeling like you are on top of it
 Communication is necessary for the client to effectively participate in
representation
 i.e. explaining proposals during negotiations before proceeding or explaining
general trial strategy
 Consult with client for things that are likely to result in significant expense or
injure or coerce others
 Fulfill reasonable client expectations for information consistent with the duty to
act in the client' best interests
 It may be hard to fulfill this requirement if the client is a child or sufferes from
diminised capacity or is a company
 Company
 Explain to appropriate officials
o Withholding inforomation
 The lawyer can wait to tell the client something if they think the client will react
imprudently to an immediate communication
 i.e. withholding psychiatric diagnosis if the psychiatrist thinks disclosure
would harm the client
 The lawyer cannot withhold info to serve the lawyer's own intersts of
convenience
 1.5: Fees
o Lawyers shall not make agreements for unreasonable amounts of expenses
 Factors to consider the reasonableness of a fee includes:
 Time and labor required, novelty and difficulty and the skill necessary
 Likelihood, if apparent the client, that the lawyer would not be able to
take on other clients
 Fee is customarily charged in the area
 The amount involved and results obtained
 Time limitations imposed by the client or the circumstances
 Nature and length of the professional relationship with the client
 Experience, reputation, etc. of the lawyer
 Whether the fee is fixed or contingent
o Fixed: $5K for a prenup
o Billable hours
o Contingency fees
 Not allowed in criminal cases or in domestic relations
(i.e. divorces) matters.
o Splitting fees with lawyers in other firms in other firms
 Divisions may only be made if
 The division is in proportion to the services performed by the lawyer
 The client agrees to the arrangement and it is confirmed in writing
 And The total fee is reasonable
 1.6: Confidentiality of Information
 You shall not reveal info relating to representation of a client
o Unless client gives informed consent
 The definition of informed consent is in 1.0(e)
 You may reveal info if you reasonably believe it is necessary
o To prevent death or bodily harm
 ABA does not make this mandatory… Some states make this mandatory. (i.e.
FL)
o To prevent the client from committing a crime
o To prevent or rectify injury to finances, property, or another that is reasonably
certain to result or has resulted from the client's commission of a crime or fraud
o To get legal advice about compliance with these rules
 Even if it is outside your firm.
o To establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client
o To comply with other law or a court order
o To detect and resolve conflicts of interest.
 Only need to share enough info to figure out where you cant work in a new
firm.
 When you have a conflict, you just don’t work on the case or see the client.
o Note: if you decide to not disclose information under one of these exceptions, you
can still be sued civilly for your decision not to disclose information
 You shall make reasonable efforts to prevent inadvertent or unauthorized disclosure of or
unauthorized access to info
 Comment
o This deals with info for representations of clients
 A different rule applies to prospective clients (1.18)
o The point is to encourage full and frank communication
o The rule applies to all communication relating to representation, no matter what
the source
o You need to avoid revealing info that could reasonably lead to the discovery of this
confidential info by a third person
 Authorized Disclosure
o It is implied the lawyer can make disclosures about a client when appropriate when
carrying out representation
o Lawyers at firms can disclose information to each other, unless the client has
instructed otherwise
 Disclosure Adverse to Client
o The list of things that allows lawyers to disclose info under certain circumstances
recognizes the overriding value of life and physical integrity
o Reasonably certain means it will be suffered imminently or if there is a present and
substantial threat that a person will suffered such harm at a later date if the lawyer
doesn’t take action
 E.g. if the lawyer knows D put toxins in a water source, the lawyer can tell
authorities if failure to do so would pose substantial risks to people who
drink the water
 Life threatening or debilitating disease as a result
o To prevent the client from committing a crime or fraud using the lawyers services
 Such an abuse of the client-lawyer relationship forfeits the protection of the
rule
 Client can prevent the disclosure if they refrain from wrongful conduct
 Lawyers cannot counsel or assist the client in conduct they know is
fraudulent or criminal
 That does not mean they are required to tell
o If the crime or fraud has already been committed
 The lawyer can disclose information that might help mitigate or recoup the
harm going forward
 Detection of Conflict of Interest
o Lawyers might have to disclose information regarding conflicts of interest so they
can move firms, make a merger, etc.
o They can disclose limited information only to the extent reasonably necessary to
detect and resolve conflict of interest
o Keep in mind that the lawyer's fiduciary duty to the firm might also add limits on
conduct in this area
o You cannot disclose information if it compromises attorney-client privilege
 Acting Competently to Preserve Confidentiality
o If there is inadvertent disclosure, it is only a violation if you did not act reasonably
o Consider
 Sensitivity of info
 Likelihood of disclosure if additional safeguards are not employed
 cost of employing additional safeguards
 Cost of employing additional safeguards
 Difficulty of implementing safeguards
 Extent to which safeguards adversely affect the lawyer's ability to represent
clients
 i.e. excessively difficult to use
o Clients can require lawyers to implement special measures not required by this rule
o When transmitting communications with confidential information in it, the lawyer
must take reasonable precautions to prevent the info from coming into contact with
unintended recipients
 No special security measures if the method of communication affords a
reasonable expectation of privacy
 Factors in determining the lawyer's expectation of confidentiality include
 Sensitivity of info
 Extent to which privacy of communication is protected by law or by
an NDA
 Former Client
o The duty of confidentiality continues after the relationship terminates
 Alton Logan Problem 2 attorneys knew he didn’t commit the crime because
their client confesed but they couldn’t tell that to the Court. The attorneys
waited until their client died to come forward with an affidavit.
o Current client Buried Bodies  Attorneyes find out where the bodies are but don’t
tell anyone until the D confesses at trial
 This attaches as soon as you speak with a prospective client (1.18).
 1.7: Conflict of Interest: Current Clients
o Lawyers shall not represent a client if the representation involves a current conflict of
interest. A concurrent conflict of interest exists if
 Representation of one client will be directly adverse to another client
 There is a risk that the representation of one or more clients will be materially limited by
the lawyer's responsibilities of another client
 i.e. if you have info you know that has to be kept confidential, but cant access it
for the current client due to conflicts, this is an issue.
o Exceptions
 If the lawyer thinks he is able to provide competent and diligent representation
 If they can't, then the client cannot waive the conflict. The lawyer must not
represent.
 The representation is not prohibited by law
 i.e. some states don't allow lawyers to represent more than one client in a
capital case
 Representation does not involve a claim by one client against another client represented
by the lawyer in the same litigation
 This does not apply to mediation because it is not a proceeding before a
"tribunal"
 Each affected client gives informed consent, confirmed in writing.
o Notes
 To determine if a conflict exists, a 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.
 If you are ignorant of the conflict due to failure to institute procedures, it is not
an excuse.
 Also, Directly adverse
 A lawyer representing A against B cannot represent C against A.
 Too much damage to the lawyer client relationship with A
 Personal conflicts
 If the other party's lawyer is your spouse
 If you have money invested in a company
 If you have some other personal conflict
 i.e. the guy who has a 8 year old kid who claims he cant defend a guy
accused of killing an 8 year old kid.
 You have discussions with a client about future employment
 Informed Consent
 All clients must be aware of the relevant circumstances and how the conflict
could affect them in reasonably foreseeable ways.
 When representing multiple clients in a single matter, the information must
include implications of the common rep,
 i.e. possible effects on loyalty, confidentiality, and attorney client
privilege.
 Consent confirmed in writing
 Document where the lawyer records to client after an oral consent.
 Must be transmitted some reasonable time thereafter
 Email counts
 The lawyer still needs to talk with the client.
 The point of the writing is to make clients aware of how serious this decision is
 Revoking consent
 Consent can be revoked and the client can terminate the lawyer at any time.
 If you are representing multiple clients, the impact of revoking consent can
depend on the material detriment to the other clients, or the lawyer, and the
reasonable expectations of the other clients.
 Consent to future conflict
 Whether this is effective or not depends on whether the client reasonably
understands the risks of the waiver
 General and open ended consent is usually not effective because it is not likely
the client understood the risks involved
 Conflicts in litigation
 Usually, lawyers should not represent both co-defendants in a criminal case
 If a lawyer has two clients and arguing for A will create bad precedent for B,
there might be an issue, depending on
 Where the cases are pending
 Whether it is a substantive or procedural issue
 Temporal relationship between the matters
 Significance to the immediate or long term interests of the clients
 Clients reasonable expectations in retaining the lawyer.
 * if this is an issue, the lawyer must withdraw from one or both unless
they can get consent
 Class actions
 Unnamed members are not typically considered clients of the lawyer for
the purposes of this paragraph
 Representing multiple people
 Attorney client privilege does not attach !!!
 No confidentiality between two clients either
 However, both clients can agree to keep some things secret through
informed consent
 Organizational Clients
 They do not represent any constitutent of the organization
 1.8: Conflict of Interest: Current Clients – Specific Rules
o Notes: 1.18 rule about prospective clients has info about conflict of interest in it.
o Lawyers cannot enter into a business transaction with a client or knowlingly acquire
ownership or interst adverse to a client UNLESS
 The terms are fair and reasonable to the client and are fully disclosed and
transmitted in writing in a way the client could reasonably understand
 This is satisfied if the clietn has independent counsel and that lawyer
fully discloses the terms
 The fact that there was independent counsel involved helps determine
whether the terms are fair
 The client is told they should seek independent counsel on the transaction and
has the opportunity to do so AND
 This does not apply if they are represented by independent counsel
 The client gives informed consent, in writing, to the essential terms of the
transaction
 Note: this does not apply to transactions where the client generally sells these
products or services to others. i.e. brokerage services, medical services, etc.
because then the lawyer has no advantage in dealing with the client
 Note: under 1.7, the lawyer must disclose risks associated with the lawyer's dual
role as a legal advisor and a partisipant in the transaction and get informed
consent to go forward
o The lawyer cant use inforamtion relating to representation of a client to the
disadvantage of the client unless the clietn gives informed consent
 Use of info relating to representation to the disadvantage of a client violtaes the
duty of loyalty
 This rule applies when the lawyer does something to benefit himself or a third
party, even without harm to the client.
o Lawyers cant solicit substantial gifts from clients
 No preparing wills to give gifts to the lawyer unless you are related to the client
(i.e. spouse, child, grandchild, parent, grandparet, or other relative the lawyer
maintains a close, familial relationship with).
 You can take a gift given at a holiday or as a token of appreciation
 More substantial gifts, like gifts given in wills, can be voided under the doctrine
of undue influence
o Before representation ends, the lawyer cannot negotiate or make an agreement giving
the lawyer literary or media rights to a portrayal or account based on info from the
representation
 This would create a conflict between the interests of the client and the interests
of the lawyer
 i.e OJ's lawyers could not get copyright rights to his story until after the
representation has ended.
o Lawyers shall not provide financial assistance to a client in connection with pending or
contemplated litigation, except that
 The lawyer may advance court costs and expenses of litigation, if repayment is
contingent on the outcome of the matter.
 And lawyers representig indigent clients may pay court costs and expenses on
behalf of the client
 Other forms of financial assistance, like help for housing, would give the lawyer
too great a financial stake in the litigation
o Lawyers cant accept compensation for representing a client from anyone other than the
client unless
 The client gives informed consent AND
 There is no interference with the lawyer's independence of professional
judgment or with the client-lawyer relationship AND
 Info relating to represnetation of a client is protected
 Note: when you think about this, also think about 5.4
 For Non-indigent clients, you can front the costs of litigation (expenses related
to litigation) if you think you are getting your money back at the end.
 For indigent clients, you can front the costs with no expectation of repayment.
o Lawyers cant represent two or more clients at one time and make settlement or plea
decisions unless all clients give informed consent
 The lawyer has to disclose all claims and pleas involved to each person in the
settlement
o Lawyers shall not
 Make agreements limiting malpractice liability unless the client is independently
represented in making the agreement
 Settle claims for malpractice liability unless that client is advised in writing that
they should seek counsel and have the opportunity to seek counsel
o Lawyers shall not acquire proprietary interest in the cause of an action or subject matter
except.
 They may acquire a lien to secure lawyers fees or expenses and
 Contract with the client for reasonable contingent fees in civil cases
o Lawyers shall not have sex with a client
 Unless a consensual sexual relationship existed between then when the client
lawyer relationship commenced
 Still strongly consider whether the lawyer client relationship will be
materially limited by the sexual relationship
 In house counsel
 No lawyer for an organization can have a sexual relationship with a
constituent of the organization who supervises, directs, or regularly
consults with that lawyer concerning legal matters
o A lot of these rules applies to all the lawyers at the firm, not just one lawyer who has the
client
o
 1.9: Duties to Former Clients
o If you represent one client, you cant later take on another client in a similar matter with
the adverse position to the first, without consent of the first confirmed in writing
o If you move from firm A to firm B, you cant take on a new client on a similar matter
 If the interests of this new client are adverse to firm A's client's interests
 The lawyer got information that is material to the matter
 Unless the client gives informed consent confirmed in writing.
o You cant
 Use info relating to representation of a past client to the detriment of that client
 1.10: Imputation of Conflicts of Interest
o If one person in the firm has a conflict of interest with a client the whole firm is
conflicted out
 Knowingly standard
o A lawyer may be screened from the conflict if moving to another firm the ONLY
people that can screen a lawyer is a new firm that was not contaminated by the
conflict.
 Even when the lawyer that represented the conflicted client and leaves the
firm is still conflicted out
 To be screen out: must be completely removed from everything with the
conflicting client
 A Chinese wall: when the conflict arises based on a former client
from a former firm, the current firm can disqualify the single
conflicted lawyer from the case and timely screen them from the
matter and insure that the specific lawyer receives NO gratuities
from the client
 Written notice must go to the former client letting them know the
lawyer is being screened.
 HOWEVER, if the conflict is from personal interests and the lawyer does
not present a significant risk of materially limiting the representation of
the client the remaining lawyers in the firm may take the client
 1.14: Client with Diminished Capacity
o Includes kids and people with mental impairment
 This does not have to be determined by a professional
 This can be about age, mental disability, etc.
 Really, anything where the client cant communicate what they want from the
lawyer
o Lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship
with the individual, despite the diminished capacity
o If the lawyer thinks there will be substantial physical or financial harm to the client
unless action is taken, the lawyer may take steps like consulting with others (i.e. asking
for an appointment of guardian ad litem)
o If protective action is taken, the lawyer can reveal information about the client to the
protective agent only to the extent reasonably necessary to protect the client's
interests.
o If there is another person in the room to assist in representation due to diminished
capacity, it is usually okay and does not affect attorney client privilege or
confidentiality
 Guardians can be appointed. Guardian's are the most restrictive method. We
don’t like to do this unless we have to.
 You can incorporate a 3rd party without taking away legal decision making
rights before resorting to guardians.
o To figure out how bad the client is, consider
 Client's ability to articulate reasoning leading to a decision
 Variability of a state of mind and ability to appreciate consequences of a
decision
 Substantive fairness of a decision
 Consistency of a decision with the known long term commitments and values of
the client
o Emergency legal assistance
 When health, safety, or a financial interest of a person with seriously diminished
capacity is threatened with imminent and irreparable harm, the lawyer can act
even though the person cant establish a client-lawyer relationship or make
judgments on the matter.
 Someone else must in good faith consult with the lawyer on behalf of
the person.
 Action is limited to what is necessary to maintain the status quo or avoid harm
 1.15: Safekeeping Property
o A lawyer shall hold property of clients or 3rd party that has connection with a representation SEPARATE
from the lawyer’s own property. A lawyer must have a separate account for client’s $$ (trust) in the state
where the lawyer’s office is located or elsewhere with consent. Other property shall be identified as such
and safeguarded
 Complete records of such account funds and property must be kept for 5 years after termination of
representation
 Must be able to account for EVERY PENNY the client has given
 Exception A lawyer can only deposit his own $ in a client trust account to pay bank service
charged
o The client’s trust account can contain legal fees and expenses paid in advance. Money can only be withdrawn
after earned
 NO COMINGLING FUNDS until representation is over
o Once a lawyer receives funds/property he must promptly notify the client of 3rd party and promptly deliver
what the person is entitled to receive
 Upon request lawyer must render a full accounting regarding such property
o If a lawyer holds property that two or more people take claim too, the lawyer shall keep the property separate
until the dispute is over and when its over the lawyer must promptly distribute the property as to which the
interests are not in dispute
 1.16: Declining or Terminating Representation
o Requires a lawyer to withdrawal if
 The representation will result in violation of the rules of professional conduct
 The lawyers physical or mental condition prevent shim from being able to
represent the client or
 The lawyer is discharged
o Allows a lawyer to withdrawal if
 Withdrawal does not have an adverse affect on the client
 The client persists on a course of action when the lawyer thinks the course is
criminal or fraudulent
 The client used the lawyers services to perpetrate crime or fraud
 If you find out about the crime or fraud, you must withdraw if there is
still a chance for repercussions in the future
 Client insists on taking action the lawyer thinks is repugnant or the lawyer
fundamentally disagrees with
 If the matter reaches a tribunal level (filed papers with the court), then
you have to request permission to withdraw
 Appointments get tricky here
o The court can deny your petition to withdraw for lots of reasons
 Especially if there are not other lawyers to replace you
with
o Board of Professional Responsibility of the Supreme Court of
Tennessee
 Attorneys were appointed to represent minors who
want to get waivers from parental consent so they can
get an abortion
 The question is, can appointed attorneys refuse to
accept the appointment on moral, religious, or
malpractice insurance grounds?
 Counsel wants to decline representation because he
thinks accepting the appointment would violate his free
exercise of religion rights.
 Counsel cannot turn down an appointment unless there
are compelling reasons. Those DO NOT include
 Repugnance of subject matter, identity or
position of person involved, belief that the D is
guilty, or belief of the lawyer regarding the
merits of the civil case
 Counsel should let the juvenile court decide on this
withdrawal after motion and hearing to develop an
adequate record
 The client fails to fulfill an obligation to the lawyer regarding the lawyers
services and has been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled
 $$?
 The representation will result in unreasonable financial burden on the lawyer or
is unreasonably difficult by the client or
 Other good cause exists
o The lawyer must provide notice when terminating representation, allow time for
employment of other counsel, surrender papers and property, and refund any advance
payment
o If the client does not want to pay you
 You cant stop working once you get to trial
 You can only do it if they make it impossible to work with them
 1.18: Duties to Prospective Clients
o Anyone who consults with a lawyer about possibly forming a lawyer client relationship
with respect to a matter is a prospective client
 This can happen if you put out an ad asking people to submit information about
representation without clear warnings limiting the lawyer's obligations
 This DOES NOT happen if the lawyer advertises his education, experience, areas
of practice, and contact information, or provides legal information of general
interest
o You cant use or reveal the info you learn in the meeting with a prospective client except
for the rules in 1.9 about former clients.
o Conflict of interest ideas apply to any future client who talks with you about the same
matter as the prospective client spoke to you about if the info you got would be harmful
to the old client when you represent the new one EXCEPT
 When both the old and the new client give informed consent
 The lawyer who got the info from the old client took reasonable measures to
avoid exposure to more disqualifying info than was reasonably necessary to
determine whether to represent the old client and
 The lawyer who go the info is screened from participation in the matter
with the new client (so other attorneys in the firm can represent the
new client)
 The lawyer who got the info does not get any of the fee
 And written notice goes to the prospective (old) client
 Note that this limitation applies to the lawyer and the whole firm.
Advocating
 3.1: Meritorious Claims
o If you can find anything in law, prior cases, or fact, to support what you are arguing, you
are fine under 3.1
 Arguments must be made in good faith, but you don't have to think you will
actually be likely to prevail.
o Dumb and dumber standard
 3.3: Candor to the Tribunal
o You shall not knowingly (knowing: actual knowledge of the fact in question, or knowledge
inferred from the circumstances)
 Actively make false statements of fact to a tribunal or fail to correct a false statement of
material fact previously made to the tribunal by the lawyer
 Tribunal starts the minute you start any legal proceeding
 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
 You do not necessarily have to take this to the other side, but you do have to
give it to the judge.
 Offer evidence that the lawyer knows to be false. If you offered material evidence you
knew was false, you have to go back and fix it.
 A lawyer may refuse to offer evidence, other than the testimony of a D in a
criminal matter, that the lawyer reasonably believes is false.
 Nix. v. Whiteside  3.3 Candor to the tribunal  “Whiteside warning”
o If the lawyer knows the client intends to engage or is engaging in criminal or fraudulent
conduct related to the proceeding shall take reasonable remedial measures, including
disclosure to the tribunal if necessary
o These rules go all the way until the conclusion of the proceeding
 Ends when the time of review has passed or the decision has been affirmed on appeal
o Note: The narrative approach
 Tell your client at the beginning that they can't protect clients who lie or implicate
lawyers in fraud.
 Then you don’t ask the client any questions beyond what you need to know for the
purposes of the representation
 Then put the client on the stand and let them tell the defense so they don’t
illicit a false statement and they don’t know anything
 Critics of this approach: are you being a competent and diligent lawyer if you do this?

o
Civil Criminal

Knowledge Must not bring Must not bring it in and allow your client or a
it in witness to falsely testify
 Caveat: the client has the ultimate authority
to decide to testify or not. If you know your
client will testify falsely, you have to allow the
client to take the stand.
o If your client goes on the stand, and
then lies, you can take them off the
stand.
o Try to counsel the client to not lie on
the stand and go back and correct what
they said by talking to the judge.
 The client can fix it by going back
on the stand to say they didn’t
mean what they said
o If the client still wants to continue lying,
you can request to withdraw (1.16)
because you have 3.3 concerns.

Reasonable May refuse to Must not act if you think your client or a witness will
Belief offer it. lie on the stand
o If there is perjury and the client withdrawals because of that, there is no malpractice
remedy for the client.
Transactions with Persons Other Than Clients
 4.1: Truthfulness in Statements to Others
o Shall not knowingly
 Making false statements of material fact or law to a 3rd party or
 Fail to disclose a material fact to a 3rd party when disclosure is necessary
to avoid assisting a criminal or fraudulent act by client UNLESS banned
by Rule 1.6(confidentiality)
o Misrepresentation: you have to be truthful when talking with others on a client’s
behalf, but you do not have a duty to inform the opposing party of relevant facts.
 Misrepresentations occur if you affirm a statement of another person that
you know is false.
 Partially true but misleading statements or omissions count
o Not statements of fact, so not under the rule: Estimates of price or value placed on
the subject of a transaction and a party’s intentions about an acceptable settlement
of a claim are in this category.
 4.2: Communication with Person Represented by Counsel
o Shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer UNLESS the other lawyer has
consented or authorized him to do so or by court order
 A client CANT waive this rule!!!!!
 NOTE: You can violate this rule even if you tell someone else to go talk to
the unrepresented person for you
o This applies even if the represented person initiates or consents to the
communication. Lawyers must end the convo.
o You can talk with represented parties about other matters.
o You can seek a court order to talk to a represented party.
 4.3: Dealing with Unrepresented Person
o A lawyer shall not state or imply that the lawyer is disinterested when the lawyer
knows or should know that the unrepresented person misunderstands the lawyer’s
role in the matter, must make reasonable efforts to correct misunderstanding
 Example: will usually occur when lawyer represents an organization but
an employee thinks the lawyer represents him too
 Here, the interests of the person and the client are not necessarily
in conflict.
o Shall not give legal advice to unrepresented person, other than the advice to
secure counsel, if the lawyer knows or should know that the interests of such
person are or have a possibility of being in conflict with the interest of his client.
 this does not keep a lawyer from negotiating the terms of a transaction or
settling a dispute with an unrepresented person, so long as the lawyer has
explained that the lawyer represents an adverse party and is not
representing the person.
o NOTE: if person doesn’t have their own lawyer you can talk to them as long as
the person knows you’re for the other side.
 Rule 4.4 Respect For Rights Of Third Person:
o (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
o (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.
o Don’t Bring Frivolous Claims  Works with 3.1 Under 3.1 For Criminal
Defense you use any defense and take advantage/ 4.4 AND 3.1 is more for Civil
Claims
Law Firms and Associations
 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers
 Partners in the firm must take reasonable efforts to ensure the firm has in effect
measures to reasonably assure all lawyers in the firm conform to the rules of
professional conduct.
 Applies to lawyers who have managerial authority over the professional work of
a firm.
 Includes members of a partnership, members of other associations, lawyers
who are managerial in an organization or legal department within the
organization and lawyers who have intermediate managerial responsibilities in a
firm.
 Reasonable efforts include internal policies and procedures designed to detect
and resolve conflicts of interest, identify dates where actions must be taken in
pending matters, and account for clients funds and property.
 Other things necessary may depend on the firm's structure and the nature
of its practice
 i.e. in a small firm with experienced lawyers, informal supervision
and periodic review of compliance is good enough.
 In a big firm, or practices where ethical problems often come up,
more elaborate measures may be necessary.
 A good one is allowing junior lawyers to send ethical problems
to a designated senior partner or special committee.
 Continuing education in legal ethics is good too.
 Supervising lawyers must make reasonable efforts to ensure lower lawyers conform to
the rules
 This applies to lawyers who have supervisory authority over the work of other
lawyers in the firm.
 A lawyer is responsible for another lawyer's violation of the rules if
 The lawyer orders, or ratifies the conduct or
 (1) The lawyer is a partner or someone with similar managerial authority where
the other lawyer practices, or is their direct supervisor, AND (2) knows of the
conduct at the time when the consequences could have been avoided AND (2)
fails to take action
 Whether a lawyer has supervisory authority in particular circumstances is
a question of fact
 Partners and lawyers with comparable authority have at least
indirect responsibility for all work being done by the firm.
 Partners or managers in charge of a particular matter have
supervisory responsibility for the work of other firm lawyers
engaged in that matter
 Remedial action by a partner or managing lawyer would depend on how
soon the lawyer got involved and how serious the misconduct was.
 Supervisors must intervene to prevent avoidable consequences of
misconduct if the supervisor knows about the misconduct
 You can violate the second prong without violating the third prong because the third
prong requires ratification and/or knowledge
 Lawyers do not have disciplinary liability for the conduct of a partner, associate, or
subordinate (???)
 Wilkenson (case from book)
 Supervising attorney accepted responsibility for a client and said they will
supervise their law clerk in handling the case.
 The law clerk couldn’t handle the case and botches the case.
 Client gets mad and claims the lawyer didn’t supervise the law clerk, so he sued
the supervisor.
 Charges brought for violations of
 1.1 competence violation
 Law clerk was not competent and the supervisor is responsible for
this
 1.2 scope of representation
 5.5 unauthorized practice of the law
 The law clerk was not yet a member of the bar, so the supervisor is
also responsible for this too.
 5.1 supervisory
 5.3 supervising a non-legal professional
 The lawyer ended up only being charged with 5.1 and 5.3 and got suspended for
60 days.

 Class Notes
 Rule 8 something says misconduct is if you violate the rules, you encourage
someone else to violate the rules, or you watch someone else violate the rules
without reporting knowledge of the violation.
 The only way to avoid liability for people under you is if you can say they did it
and I should not have known about it
 i.e. they come in at midnight and leak documents because they have
"gone rogue"
 Knowledge is an important term
 Knows or should have known = knowledge
 Actual knowledge of the fact in question
 Can happen if you see it, or client told you
 It can also happen if you could infer it from the circumstances
 Mandatory
 Fails to act or acts with knowledge -> discipline
 Reasonable belief
 You will not be disciplined if you just have belief, but didn’t know for sure
 There must be reasonable efforts to ensure all members of the firm are conforming to
the rules
 Partners look over the firm
 Supervising attorneys look over their report
 You are responsible for other lawyers violation of the rules if
 The lawyer orders the conduct or ratifies the conduct with knowledge of the
violation
 The lawyer finds out about the conduct at a time when the consequences can
be avoided and does nothing
 Comments
 There should be reasonable efforts to establish internal policies and procedures
 i.e. ensuring resolution of conflicts of interests, account for client funds
and property, ensure inexperienced lawyers are properly supervised.
 5.2: Responsibilities of a Subordinate Lawyer
o You are bound by the rules, even if you act at the direction of another person
o A subordinate lawyer does not violate the rules if that lawyer acts in accordance with a
supervisory lawyer's reasonable resolution of an arguable question of professional duty
o Comment
 If you act at the direction of your supervisor, and you know it is against the
rules, then you can still be responsible
o Class Note
 No good soldier defense
 You cannot make the defense that you were told to do it
 5.3: Responsibilities Regarding Nonlawyer Assistance
o Partners and managerial lawyers should make sure that non lawyers reporting to them
comply with the rules
o Lawyer is responsible for the actions of the non lawyer in violation of the rules if
 The lawyer orders or ratifies the conduct
 The lawyer is a manger and has direct control over the individual and knows of
the conduct at a time when its consequences can be avoided or mitigated but
doesn’t do anything
o Comments
 Non lawyers within the firm
 This includes assistance like student interns, investigators, and
secretaries
 Whether they are independent contractors or not, the lawyer is
responsible for ensuring they follow the rules
 Nonlawyers outside the firm
 Document management companies, investigators, third party printing,
and internet based services are examples
 Lawyers must make reasonable efforts to ensure services are provided
in a manner that is compatible with the rules
 Consider
o Education, experience, and reputation of the non lawyer
o Nature of services
o Tarm of any arrangements concerning protection of client
information
o Legal and ethical environments of the jurisdictions where the
services are performed
 5.4: Professional Independence of a Lawyer
o Lawyer shall not share legal fees with a non lawyer if the work is legal work except
 If someone dies
 There are different rules for death
 You can pay out to the lawyers estate if the lawyer died even though
the estate is not a lawyer
 Compensation or retirement plans can be based on profit sharing
 You can share court awarded legal fees with a nonprofit organization that
employs or recommended employment
o Lawyers cant form partnerships with non lawyers if the activities in the partnership is
the practice of law if there is sharing fees
o If someone recommends you or pays for your service for someone else, they cannot
direct or regulate professional judgement (this gets tied into 1.8(f): conflict of interest
and third party payment of legal fees)
 Third party payors are fine, but they have to stay out
 Unless they are of diminished capacity
o Age
o Mental state (most of the time)
o Physical restrictions and physical disabilities
 Think about the story of her cousins that took the air caps off tires
 Parent can pay the legal fees, but the parents cant affect representation
at all
o You cant practice with or in the form of a professional corporation authorized to
practice law for a profit if
 The non lawyer owns an interest (see rule for more)
 Non lawyer is a director or officer
 Non lawyer has a right to direct control over professional judgement
 Summary: if a non-lawyer owns any of the company
o Class Note
 This gets paired with other rules a lot
 Anyone who is hired by the lawyer is considered an agent of the firm for
purposes of the ethics rules
 This means you can hire experts and they are not considered sharing
legal fees
o You say I charge $100 per hour and then tell the client it will
cost $x extra for the extra helpers with the case (translators,
experts, etc.)
 Referral fees
 Acceptable as long as
o The referral arrangement is not exclusive
o The client has to be informed of the referral arrangement
 Catch with lawyer to lawyer referral fees
o If you refer someone because you have a conflict of interest,
you CANNOT get a referral fee because there is a rule that you
cannot financially benefit from a case where you have a conflict
 5.5: Unauthorized Practice of the Law
o Defining the practice of law
 Lawyers have the exclusive right to perform transactional work and litigation
 Unauthorized practice of the law (UPL) is prohibited
 Comment Rule 5.5: The definition of the practice of law is established by
law and varies from one jurisdiction to another
 State attorney general, bar association, or local district attorneys enforce UPL
laws
 Criminal prosecutions, civil injunctions, restitution, disbarment, and
contempt of court
 Some states allow a private cause of action
 Legal advice
 Applying legal information to a specific set of facts
 Legal Information
 Just summary of the law
 Florida Bar v. Brumbaugh
 Facts: FL bar charged D with UPL and seeks permanent injunction. D is
not a member of the FL bar, and D advertises a secretarial services and
provides services for do it yourself divorces, wills, resumes, and
bankruptcies.
o For $50, D will
 prepare legal documents necessary in uncontested
dissolution of marriage proceedings
 Advise customers on costs involved in the procedures
 Discussion
o We don’t allow UPL because we want to protect the public from
being advised and represented in legal matters by unqualified
people
o The court hired a referee to gather facts
 They found D prepared lots of legal documents for her
clients
 D asked her clients what they wanted, and D
chose the correct paperwork and typed
everything up
 Instructed them on how to sign the papers,
where to file them and how to arrange for a
hearing
 None of Ds clients thought she was an attorney
 D never handled contested divorces
o You can
 Sell printed legal forms that do not have instructions on
how to fill the form out or how to use them
 Legal advices is always involved in filling out and
advice as to how to use the legal forms
 NY feels differently. They don't have a problem
with giving instructions
 Lots of other states agree, so maybe we should
fall in line with them.
o Ds clients clearly relied on her to properly prepare the
necessary legal forms for their divorces
 This was too much
o D can sell printed material purporting to explain the practice
and procedure to the public in general and she can sell sample
legal forms
 She can type up instruments which have been
completed by clients, but she cannot engage in personal
legal assistance, including correction of errors
 She cannot advise clients on how to prepare the forms,
which forms they need, how to file the forms, etc.
 Critics of the rule: Without evidence of harm, consumers should be able to
choose to see a lay person for help
 Legal Advice Books
 Most jurisdictions allow publication of books that help people represent
themselves
 NY County Lawyesr' Ass'n v. Dacey
o NY court endorsed publication of books to help people
represent themselves
o This is because they are just books that purport to state what
the law is
 There is no personal relationship when you sell a book
to the public at large
 Just like lectures from a law school are not legal practice
o Because there is no personal advise given, publications are fine
 Unauthorized Practice of Law Committee v. Parsons Technology (N.D.
Tex. 1999)
o The court said the quicken family lawyer software was
unauthorized practice of the law because it goes beyond telling
someone how to fill out a form
o It asks questions and directs consumers to the right forms
o Later, the legislature enacted a statute that says this kind of
thing does not constitute the unauthorized practice of the law
o Multijurisdictional practice of the law
 You cant practice somewhere you are not a member of the bar and you cant
help someone do it either
 If you are not a member of the bar in one state, but are in another, you can
temporarily provide legal services in other states if
 You do it with someone who is a member of the bar in that state
 (see rule for more)
o 5.5 5.3
 5.5  Multijurisdictional 1.1 Competence and move recently
 5.6: Restrictions on the Right to Practice
o A lawyer shall not participate in offering or making
 A partnership, shareholders, operating, employment or other similar type of
agreement that restricts the right of the lawyer to practice after termination of
the relationship except on agreement concerning benefits upon retirement
 Basically, you cant restrict another lawyers right to practice
 No non-competes
 An agreement in which a restriction on the lawyers right to practice is part of
the settlement of a client controversy
o Comment
 Non-competes limit professional autonomy
o Class notes
 Taking clients from the firm
 The law firm cant tell you you are not allowed to take the client
 The law firm has to send a letter saying hey X left and you can stay with
the firm or go to X
Information about Legal Services
 7.1: Communications Concerning Lawyers Services
o A lawyer shall not make a false or misleading communication about the lawyer or the
lawyer's services.
 A communication is false or misleading if it contains a material
misrepresentation of fact or law, or omits a fact necessary to make the
statement considered as a whole not materially misleading.
o This rule covers all communications, including ads.
o This rule also covers truthful statements that are misleading because
 Of omitted facts
 The statement would lead a reasonable person to make a conclusion about the
lawyer or the lawyer's services that is false
 i.e. ads that talk about results from pervious cases can be misleading if
the people reading could form an unjustified expectation that the same
results will apply to their case without reference to the specific facts
and legal circumstances of each case.
o For example: An ad that says "we have a perfect track record"
when you have only taken 1 case to trial and won that one. This
is objectively true, but leads a person to make conclusions
about how good you are.
 i.e. unsubstantiated comparisons about this lawyer's services or fees
compared to another lawyer's if the comparison is so specific a
reasonable person could conclude the comparison could be
substantiated.
 Appropriate disclosures could preclude the finding that the statement
would lead to these kinds of conclusions
o Note: This appears on the MPRE a lot because of the omitted facts. Pay attention to this.
 7.2: Advertising
o You can advertise through written, recorded, or electronic communications, including
public media
 This means you can advertise your name, address, website, phone number, the
kids of services you undertake, the basis on which fees are determined, any
foreign language ability, names of references, and names of clients if they give
you consent (and any other info that might invite attention of those seeking
legal assistance).
 Taste in advertising are matters of speculation and subjective judgment
 This varies by jurisdiction
 This rule has nothing to do with communications authorized by law, like notice
to members of a class action.
o You shall not give anything of value to a person for recommending the lawyer's services
except that the lawyer may
 Pay reasonable costs of ads or communications allowed by this rule
 This includes use of newspaper ads, etc.
 This also includes salaries for PR people and other employees who are in
the business of PR/advertising.
 Pay the usual charges of a legal service plan or not for profit or qualified lawyer
referral service. (i.e. 411 pain. Clearinghouse that sends people to lawyers)
 Qualified referral services is a lawyer referral services that has been
approved by an appropriate regulatory authority
 Pay for a law practice
 Refer clients to another lawyer or 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
 The reciprocal referral agreement is not exclusive
o i.e. you cant agree to ALWAYS send the client to one person
 And The client is informed of the existence and nature of the agreement
 These agreements should not be indefinite and should be reviewed
periodically to ensure compliance with the rules.
 Note: if the clients can choose, then you are good to go.
o You cannot channel people and then get paid for it.
o Referral fees
 If you exchange referral fees, pay attention to the rules.
 You cannot pay referral fees if the reason for the
referral is the lawyer has a conflict of interest.
o Any ad made under this rule must include the name and office address of at least one
lawyer or firm that is responsible for its content.
 7.3: Solicitation of Clients
o A lawyer shall not solicit employment through (1) in person, (2) live telephone, or (3)
real time electronic contact when a significant motive is the lawyers pecuniary gain
UNLESS
 The person being solicited is a lawyer
 The person being solicited is a family member, close friend, or has a prior
professional relationship with the lawyer.
 Soliciting means offering to provide legal services to a specific person
 An ad to the general public is not a solicitation.
 This rule only really targets the real time stuff. There are alternatives like
sending letters in the mail or even email
o Even if solicitation is allowed by the first part, the lawyer still shall not solicit if
 The target has made it known they do not was to be solicited by the lawyer
 Like if they send a letter or other communication as an ad and get no
response.
 Or the solicitation involves coercion, duress, or harassment
o All materials used to solicit must include the words "advertising material" on the outside
envelope or at the beginning and end of any recorded or electronic communication
 Unless the recipient is a lawyer, family member, close friend, or has a prior
professional relationship with the lawyer.
 This does not apply to communications sent in response to requests from
potential clients or announcements of changes in personnel, or office location
o Note:
 real time electronic contact = imessage but not texting with android.
 Because you have the little bubbles in imessage and not with androids
 You can solicit for non-profit cases because this rule only affects solicitation if
you want to get paid.
 7.4: Communication of Fields of Practice and Specialization
o You cannot put forth that you are an expert unless you are actually an expert.
 You must be certified as a specialist by an organization that has been approved
by an appropriate authority or that has been accredited by the ABA
 And the name of the certifying organization is clearly identified in the
communication.
o You can say you are a specialized in
 Patent lawyers
 Admiralty
o Class Note
 Linked in skills and endorsements
 The FL bar says linked in is considered an advertisement
 Endorsements imply you are a specialist in that area, so be careful
Maintaining the Integrity of the Profession
 8.1: Bar Admission and Disciplinary Matters: An applicant for admission to the bar, or a
lawyer in connection with a bar admission application or in connection with a
disciplinary matter, shall not:
o Knowingly make a false statement of material fact; or
o Fail to disclose a fact necessary to correct a misapprehension known by the
person to have arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary authority, except
that this rule does not require disclosure of information otherwise protected by
Rule 1.6.
o An applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not:
 Knowingly make a false statement of material fact; or
 Fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond to a
lawful demand for information from an admissions or disciplinary
authority, except that this rule does not require disclosure of information
otherwise protected by Rule 1.6
 8.3: Reporting Professional Misconduct
o A lawyer who knows that another lawyer has committed a violation of the rule
that raises a substantial question as to that lawyer’s honesty, trustworthiness or
fitness as a lawyer, shall inform the appropriate authority
o A lawyer who knows that a judge has committed a violation shall inform the
appropriate authority
o NOTE: unless info is protected by confidentiality (Rule1.6)
o If you fail to report you’re in violation!!
o Exception: if a lawyer or a judge is seeking treatment through approved lawyers
or judges assistance programs, you do not have to report.

 8.4: Misconduct (Catch All)


o It is professional misconduct for a lawyer to:
 Violate or attempt to violate the Rules of Professional Conduct, knowingly
assist or induce another to do so, or do so through the acts of another;
 Commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects;
 Engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation
 Engage in conduct that is prejudicial to the administration of justice;
 State or imply an ability to influence improperly a government agency or
official or to achieve results by means that violate the Rules of
Professional Conduct or other law;
 Knowingly assist a judge or judicial officer in conduct that is a violation
of applicable rules of judicial conduct or other law; or
 Engage in conduct that the lawyer knows or reasonable should know is
harassment or discrimination on the basis of race, sex, religion, national
origin, ethnicity, disability, age, sexual orientation, gender identity, marital
status or socioeconomic status in conduct related to the practice of law.
This paragraph does not limit the ability of a lawyer to accept, decline or
withdraw from a representation in accordance with rule 1.16. This
paragraph does not preclude legitimate advice or advocacy consistent with
these Rules.

Attorney client privilege vs. confidentiality


Atty client privilege is narrow, only comes into play when an attorney is asked to produce documents or
recant what his client said. Confidentiality is regarding a document.

Malpractice vs. Misconduct


Malpractice is a civil lawsuit brought against a lawyer. In order to be sued for malpractice you have to be
in breach of a contract. duty breach caused harm. So it is a civil lawsuit for breach of contract where there
is some damage. Misconduct is a violation of ethics rule, a professional responsibility rule.

Knowledge – actual knowledge of the fact in question but knowledge can be inferred from the
circumstances. There is an implicit duty to investigate your client.

Reasonable belief is the counterpart to knowledge. This is a lower standard. Knowledge is a trigger word
(knowingly, knows) that means the lawyer NEEDS to act in some way. Reasonable belief gives the
lawyer an option to do something but does not compel them to.

Attorney-client relationship is not present in the rules. No money ever needs to change hands in order for
a relationship to form. No retainer needs to be signed. You can just agree. Ways it can be formed:
1. Through the contract form
2. The inadvertent formation of the attorney-client relationship: when a potential client approaches
someone who they believe to be a lawyer, they have a conversation with that person, gives them
information regarding their situation, the lawyer reciprocates and gives them some kind of
information. When the person walks away and thinks that they are in an attorney-client
relationship then that is what it is. An agent can create this relationship, like a receptionist.
a. Rule 1.16 Declining or Terminating Representation, deals with when you need to stop
or decline representing someone.
b. 1.2 is going to trigger 1.16
9/25/2017
- Contingency fees and conflicts have to be confirmed in writing
- Can not charge contingency in criminal and domestic cases
- Reasonable contingency fee is usually 30-40%