Professional Responsibility OUTLINE

- POLICY REASONING
o Malpractice
 To compensate the client and protect the public
o Discipline
 Protect the public and sometimes compensate the client but never nearly enough; offer warning
to prospective clients and examples to other lawyers
o Confidentiality and ACP
 Effective representation by encouraging client to tell lawyer everything
 Protect client’s 5th Amendment right to be free from self-incrimination
o COI
 Loyalty to client
 Independent professional judgment and protection of confidential info
- Different consequences for misbehavior
o Malpractice
 Civil where client sues lawyer
• BOK, tort, breach of fiduciary duty
o Tort most common, with emphasis on actual cause
 Notebook notes
o Standard of care
 Objective
• Skill and knowledge of the ordinarily competent lawyer in same or similar circumstances
 Failure to meet standard must be more than an error in judgment or smtg about which reasonable
minds could differ
 Attorney judgment rule
• I have considered all these things and decided this
- Discipline system
o Lawyer discipline
 Looks for rule violations; criminal behavior; patterns of neglect rather than one instance of
negligence although one very large error can result in discipline as well as malpractice
o Different consequences for discipline
 Public humiliation, loss of license/livelihood; restitution
o Some behavior results in criminal sanctions
 Jail, fines, probation, treatment
 Along with discipline and malpractice like stealing from your client; bribing a witness;
o Some behavior results in court sanctions
 Like rule 11 or rule 37 violations
 Some behavior can result in all four kinds of sanctions like stealing client trust fund money
- Model rules…

PREAMBLE, SCOPE, AND TERMINOLOGY RULES CLIENT-LAWYER RELATIONSHIP

o Definitions
 1.0 Terminology
• Belief
o What person in question supposed was true- can be inferred from circumstances
• Confirmed in writing
o Informed consent given in writing by the person or a writing that the lawyer has
prepared and given to the client confirming oral consent
• Informed consent
o Agreement after lawyer has communicated information and explanation in an
understandable way along with options, risks, and consequences
• Reasonable
 o Objective; reasonably prudent lawyer in the same or similar circumstances
• Screened
o Isolation of lawyer form the case, confidential information, participation, and notice
to clients.
 Screening works for former (not current) COI if timely
• Substantial
o Clear and weighty importance
o MR 1.1: Competence
 Knowledge, skill, thoroughness and preparation reasonably necessary to representation.
• Comments 1 and 2: Experience not necessary if can become competent with reasonable
prep. Do not have to nor should we take every case.
 Per 6.2
• Court appointed case have different standard to decline
o Must have good cause
 Rep. would violate rules or law; unreasonable financial burden; so
repugnant cannot do good job. Not having the experience is not
necessarily “good cause” under 6.2.
o MR 1.2
 Client: objectives, goals, substantive matters (sue, testify as criminal D, plead, dismiss, appeal)
 Lawyer: strategy; tactics in consultation with client. (Witnesses, theory of case, order of proofs).
Lawyer decides in consultation with client.
• Limitations on scope (ie: $1000 maximum) must be reasonable
 Lawyer cannot counsel or assist a client to commit a crime or fraud but may (and should) explain
the law and tell the client the consequences of planned client behavior.
 Rule is a FLOOR not a ceiling.
• Minimum level of independent professional judgment owed to client
o MR 1.3 Diligence
 Reasonable diligence and promptness.
• Decided by client’s best interests
• Lawyer must control work load so they can handle all cases diligently and competently
 Comment 1
• Pursue client’s matter despite opposition, obstruction or personal inconvenience and take
whatever lawful and ethical measures are required to vindicate client’s cause
o So you do not have to take the case but once you do you must do everything within
bounds of law and rules to pursue
o MR 1.4 Communication
 Reasonably consult, keep client informed, comply with requests for info. Promptly inform of
decisions or circumstances requiring informed consent- settlement offers, plea offers (anything
substantive needing client approval or consultation is basis for malpractice)
 Responsibility of lawyer, not client
 Adequate info, explanation, options, risks, consequences in an understandable way
 After fees, this is the biggest source of client dissatisfaction
o MR 1.5 Fees
 Unreasonable fees or costs are prohibited
 Lawyer must tell rate or basis of fees at commencement of representation or reasonable time
thereafter
 Reasonable?
• Time, novelty, difficulty, skill necessary, precluding other employment, going rate, subject
matter, time limits, new/old client, credentials, type of fee
o Complexity, malpractice rate, etc.
o Note on preclusion
 Another form of preclusion is COI, like GM case
 Know the difference between fees and costs
• Costs are what you pay for in order to litigate the case (not rent or food)
• Have resources available to refer client to (food, etc.)
o 1.8(f) or something like that
  Hourly fee agreements preferred but not required to be written.
• Put it in writing unless you are dumb
 Changes in fee agreement must be communicated to client and in some states, client must agree
 1.5(c)
• Contingency fees must be reasonable and comply with state limits as well
 1.5(d) no contingent fees in criminal cases (direct or otherwise) or domestic relations cases prior
to entry of divorce
• All contingent fee agreements must be in writing and signed by client
• All contingent fee cases must have written statement at the end describing distribution of
money and be signed by client
• Both must articulate cost arrangement
 1.5(e)
• No fee sharing among lawyers not in the same firm unless proportional to the work or
responsibility the lawyers assume. No straight referral fees under MR. in any case the
client has to be informed and consent, signed in writing and fee cannot exceed any
applicable cap or be unreasonable.
- M R1.6 Confidentiality
o Protecting the client form lawyer’s voluntary disclosure of all info related to the representation
o (a)
 A lawyer shall not reveal info related to the representation unless the client consents or it is
necessary to accomplish the representation or 1.6 (b) allows
o (b) exceptions
 A lawyer MAY reveal info reasonable necessary to….
• Prevent death or serious bodily harm reasonably certain to occur
• Prevent client crime or fraud reasonably certain to cause substantial financial injury
where lawyer’s services used (present or anticipated crime)
• Prevent substantial financial injury certain to occur from client crime or fraud where
lawyer’s services used
• To get advice about rule of professional conduct compliance
• To comply with court orders
• ETC GET FROM WEB
- Remember the big Confidentiality Circle
o Ways out
 1.6 a; 1.6b, all others
- A/C Privilege
o Not a MR BUT a common law evidence rule that protects
 Comm.
 Between privileged persons
 Made with expectation of confidentiality
 For purpose of securing or delivering legal advice
o Who can compel?
 Not cops, prosecutors, other lawyers, parties
 Only a government proceeding where there is a subpoena and contempt power
o So, ACP is only an issue where there is the power of subpoena and contempt because that is the only
time info can be subject to compelled disclosure
o The lawyer must be acting as a lawyer, not a go-between, etc.
o Privilege belongs to the client, not the lawyer
o Privileged persons are the lawyer, the client, and their agents for the representation
o Communications and observations made as the result of privileged communications are protected but not
physical evidence
o The communication must be intended to be in confidence- not applicable to communications that the
client intends be broadcast or passed on. The privilege protects communication both ways
o The underlying facts are not necessarily protected – only the comm. Between lawyer and client
o The privilege only protects the portion of the communication made for legal advice
o Documents are protected only if they are communications between lawyer and client
 Diary may work well
- AC Privilege Exceptions
o Client waives or consents
o Lawyer’s services are sought or used in furtherance of crime or fraud
 Remember client just asking if something is illegal is not asking for help- you only have that when
the client asks after being told that something is illegal)
 Burning down barn example, does client have privilege claim about conversation with first lawyer
who he told about the barn?
• He sought his services to perpetrate a fraud, so ACP claim will not go anywhere
• Even though he did not hire him, still owes duty of confidentiality
• What can lawyer do?
o 1.6(b)(6)
o Joint clients
 ACP exists until they become adverse, which destroys the privilege
o Testimony relates to document attested to by lawyer
 Notary, etc.
o Breach of duty by client or lawyer (self defense)
o Claimants through the same dead client
- Privileged persons in the organizational setting
o Assuming all other elements of a privilege claim are present, communications with lawyers are privileged
when:
 Made by employees (agents) within the scope of_______________slide
- Work Product
o FRCP 26(b)(3)- Civil or criminal?
 Documents and tangible things otherwise discoverable and prepared in anticipation of litigation or
for trial or for another party or by or for that other party’s representative are only discoverable if
the party seeking discovery
 Has substantial need of the materials for trial preparation, and
 The party is unable without undue hardship to obtain the substantial equivalent of the materials
by other means
- MR 1.7: Conflict of Interest: Current Clients
o 1.7(a) competing Duties
 Unless it’s consentable under MR 1.7(b), a lawyer shall not represent a client if the representation
involves a concurrent COI
 What is a concurrent COI
• 1) Direct adversity
o The representation of one client will be contrary to another, or
• 2) there is a significant risk of material imitation of representation of one client by the
lawyer’s duties to another client, a former client, a third person or the lawyer’s own
interest
 FORMULA: If you have 1.7(a)(1) or (a)(2) then 1.7(b)(1-4) must be satisfied
o 1.7(b)
 Slide with FOUR requirements
• Remember that ICCIW is the protection that you have
- MR 1.8 (a): Specific Conflicts of Interest
o No acquisition of ownership interest adverse to client unless this rule is followed
 Terms fair and reasonable to client, fully disclosed in writing, and understandable
 Client advised in writing to seek independent counsel
 ICCIW signed by client – all three must be present – non litigation business transactions and
interests
o (b)
 No use of the CI to disadvantage of client without client consent unless rules allow or require
o (c) No solicitation of substantial gift from client or preparation of documents giving substantial gift.
 Exception for family members
o (d) No negotiation of media/literary rights prior to conclusion of representation. After is OK but be sure to
protect 1.6 info and comply with 1.8(a)
o (e) No financial assistance except for cost of litigation to be repaid conditioned on outcome
 o (f) No 3rd party fee payments unless client consents, 1.6 info is protected, and independent professional
judgment is protected
o (g) Aggregate settlements and pleas
 Must have informed consent, signed by all clients, regarding the existence and nature of all
claims and pleas as well as participation of all
• DO 1.7 ANALYSIS TOO
o Potential direct adversity or a 1.7(a)(2) SRML
o (h)
 No advance waivers of liability for lawyers unless client has independent representation and no
settlement of malpractice claim unless client is advised and has opportunity to consult with
independent counsel
• Do 1.7 analysis too
o Make sure you are not representing your own interests above those of the client
o (i)
 No interest in subject matter of litigation except for valid contingent fee and lien to secure fees
o (j)
 No sex with client unless you had sex before the representation
• Just say no.
o (k)
 All conflicts but 1.8(j) are imputed to all lawyers in firm.
- MR 1.9 Former Clients COI
o Different test
o (a)
 No adverse representation of a client against a former client in the same or substantially the
same matter without ICCIW
o (b)
 No adverse rep. of a client against a former firm client in the same or substantially the same
matter where the lawyer has 1.6 info without ICCIW
o (c)
 No adverse use of CI of lawyer’s or firm’s former client unless rules allow or require, or when info
is generally known
o (d)
 No voluntary disclosure of client CI unless rules allow or require
o ALWAYS DO 1.7 ANALYSIS EVEN IF YOU CAN SATISFY 1.9
- MR 1.9 Definitions on slides
- MR 1.10(a) Imputed Conflicts
o Lawyers associated in a firm share each others’ 1.7 and 1.9 COI……………
- MR 1.10 (b)
o Firm may represent a client against the client of a former firm member as long as:
 There is no concurrent client conflict
 It is not SOSR to the matter that the former firm member represented the adverse client in, and
no one in the firm has material ………………….
o GET SLIDES
o GET SLIDES
o GET SLIDES
- MR 1.11 Government Employee Conflicts
o Former government employees (even non lawyers) who go into private practice of lawyers are prohibited
from representing clients in any matter where they participated personally and substantially while a
government employee with ICCIW from former government employer.
 Remember to go back to 1.7 even if 1.11 is satisfied
o FGE prohibited from using or revealing info gained from governmental service
o No employment negotiation with an adverse party/lawyer while a government employee
- MR 1.12 Former Adjudicative Officer Conflicts
o Same test
 Any matter
 PSP
 o Judges, mediators, arbitrators, ALL third party neutrals, are prohibited from representing any party in a
matter where they served as an adjudicative officer without ICCIW from all parties
o N/A to partisan mediators
- MR 1.13 Organization as Client
o Primary responsibility to represent the organization and make sure the interest of the organization take
precedence over the interests of the constituents in the mind of the organization
o A lawyer for an organization who knows that an officer, employee or other constituent of the organization
is engaging in acts or failure to act that will violate legal obligations …………………………………………
o Lawyer MAY report out to prevent substantial injury to the organization whether 1.6 permits
o Not applicable to past crimes or matter where lawyer has been retained to investigate or defend
o Lawyer discharged because of reporting must report that up the ladder as well
o Lawyer must clarify role (as lawyer for organization) for constituents especially where constituents think
lawyer is representing them and interests are adverse to constituents
o Lawyer may represent both organization and constituents but only if MR 1.7 is satisfied and
organizational consent is obtained from one other than the constituent being represented
- MR 1.14 Client with Diminished Capacity
o Are entitled to as normal an attorney client relationship as possible
o Lawyer may (but is not required) to reveal information, even if protected by 1.6, to the extent reasonably
necessary to protect the client from financial or personal injury
o Remember, clients do not have to be rocket scientists to be competent
- MR 1.15 Duty to Safeguard Client Property
o ………………………..
o ……………………….
o …………………………
- MR 1.16 Declining or Terminating Representation
o Mandatory withdrawal: representation will result in MR or law violation; lawyer’s physical or mental health
materially impacts; lawyer is fired
o Discretionary withdrawal: no material adversity to client; client wants to use lawyer’s services to commit
crime/fraud; client has used lawyer
…………………………………………………………………………………………………………………………
……………………
- MR 1.17 and 1.18
o 1.17 Sale of Law Practice
 Cannot just sell clients
 Lawyers who leave a firm or go out of business must provide reasonable notice to clients of their
choices; get their consent, in writing to transfer; cannot charge more because of change in
lawyers
o 1.18

COUNSELOR

- MR 2.1 Advisor
o Exercise independent professional judgment and render candid advice
 Do not lie to your client or leave important information out
 Moral, economic, and political factors may be considered
o ………….
o …………
- MR 2.4: Lawyer as 3rd Party Neutral

ADVOCATE

- MR 3.1: Meritorious Claims

- MR 3.2: Duty to Expedite Litigation
- MR 3.3: Candor to the Court
- MR 3.4: Fairness to Opposing Party and Counsel
- MR 3.5: Impartiality and Decorum of the Tribunal
o No trying to influence judges, jurors, or telling people you can
 No ex parte communications with judges of jurors. No contact pre or post with jurors.
 No disruptive court behavior
- MR 3.6: Trial Publicity
- MR 3.7: Lawyer as a Witness
- MR 3.8: Special Responsibilities of a Prosecutor
o No prosecution without probable cause
o Make reasonable efforts to assure accused is provided right to counsel
o No seeking waiver of important pretrial rights from unrepresented D
o Make timely disclosure of all exculpatory evidence or information ………………………………
- MR 3.9: Advocate in Nonadjudicative Proceedings

TRANSACTIONS WITH PERSONS OTHER THAN CLIENT

- MR 4.1: Truthfulness in Statements to Others

o No lying to Opponents or Third Parties
- MR 4.2: Communication with Person Represented by Counsel
- MR 4.3: Dealing with Unrepresented Persons
o No misrepresenting disinterest when communicating with unrepresented party and no legal advice except
to get legal advice.
- MR 4.4: Respect for Rights of Third Persons

LAW FIRMS AND ASSOCIATIONS

- MR 5.1: Responsibilities of Supervisory Lawyers and Law Firms

- MR 5.2: Responsibilities of a Subordinate Lawyer
- MR 5.3: Responsibilities Regarding Non-lawyer Associates
- MR 5.4: Professional Independence of a Lawyer
- MR 5.5: Unauthorized Practice of Law
- MR 5.6: Restrictions on Right to Practice
- MR 5.7: Responsibilities Regarding Law-Related Services

PUBLIC SERVICE

- MR 6.1: Voluntary Pro Bono Public Service

- MR 6.2: Accepting Appointments
- MR 6.3: Membership in Legal Services Organization
- MR 6.4: Law Reform Activities Affecting Client Interests
- MR 6.5: Non-Profit and Court Annexed Limited Legal Service Programs

INFORMATION ABOUT LEGAL SERVICES

- MR 7.1: Communications Concerning a Lawyer’s Services

- MR 7.2: Advertising
- MR 7.3: Direct Contact with Prospective Clients
- MR 7.4: Communication of Fields of Practice and Specialization
- MR 7.5: Firm Names and Letterheads
- MR 7.6: Political Contributions to Obtain Government Legal Engagements or Appointments by Judges

MAINTAINING THE INTEGRITY OF THE PROFESSION

- MR 8.1: Bar Admission and Disciplinary Matters

- MR 8.2: Judicial and Legal Officials
- MR 8.3: Reporting Professional Misconduct
- MR 8.4: Misconduct
- MR 8.5: Disciplinary Authority: Choice of Law

JUDICIAL RULES