Must report violations that raise subst.

questions as to honesty, trustworthiness or fitness WHO MAY PRACTICE LAW Lawyer may appear in ct. in which she is not permitted to practice w/ permission from ct. = pro hac vice o Pro hac vice status = discretionary by the ct.

Criteria for admission to bar to fitness to practice law in a state o EXAMPLE: Women Living w/ man not married = No rational relationship to permission to practice law State can impose testing requirements Citizenship reqm for admission = NOT allowed; cannot deny admission of ppl who are citizens of other states CAN limit admission to ppl of good moral character; deny those w/ moral turpitude CANNOT be DENIED admission by state bar on acct. of political beliefs, EXCEPT refusal to swear allegiance to constit. laws of US; affrimed by USSC CAN be denied if affiliated w/ organization when knowingly of illegal obj. and w/ intent of furthering illegal obj. CAN be denied for concealing info, failing to answer legit questions, giving false info

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UNAHAUTORZED PRACTICE OF LAW Bar has duty to prevent unauth. Practice of law o ONLY atty. can appear in ct. EXCCEPTIONS: (1) students may appear in ct. under state student practice laws (atty. supervisions); (2) pro se representation is permitted

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Corporation MUST always be represented by atty. ONLY atty. can draft legal docs

EXCEPTIONS: (1) pro se is permitted to draft docs for self; (2) atty. may draft form where non-atyts fill in the blanks Case: just fill in blanks by real estate attys. of forms IS NOT unauth. practice of law

(2) if it a task non-attys usually do, its permitted o Atty. cannot aid non-atty in unauth. practice of law, BUT atty CAN HELP non-atty represent himself, but NOT someone else unauth. practice of law o o Attys. CANNOT PRACTICE where not admitted Atty. CAN PRACTICE in j/d where not admitted if it arises out of practice where s/he is admitted (i.e. doesnt involve going to ct.: taking depo, entering into bsns deal).

Atty. cannot share legal fees w/ non-attys o EXCEPTIONS: (1) attys can pay non-atty. staff (out of legal fees); (2) Attys can make pmt. To estate of non-atty; (3) atty can share ct. awarded atty. fees w/ NON-PROFIT that EMPLOYED atty. or recommended atty. Atty cannot enter pship w/non-attys if any part of bsns is practice of law (e.g. can only own practice w/ other attys, NOT non-attys.)

How can Bar Enforce compliance w/ Rules o Atty. conduct can arise into discipline: EXAMPLES: (1) viol. of rule of P.R.; c (2) crim. act that reflects adversely on attys honesty or trustworthiness; (3) conduct involving dishonesty, fraud or deceitNeed not be illegal or involve practice of law (Segretti doing illegal prez. campaign activity); (4) conduct prejudicial to admin. Of justice (e.g. statin / implying ability to improperly infl. Tribunal = prejudicial to admin. Of justice) (5) assisting justice in viol. of judicial code

 Atty. in supervisory position must do all reas. To ensure those supervised comply w/ laws of P.R. o CANNOT do unethical things and blame on superior, BUT may follow instructions on debatable ethical questions so long as conduct is reas.

When can atty be disciplined? o o If lawyer orders / ratified unethical conduct by subordinate OR If lawyer in supervisory position knows of unethical conduct AND doesnt take action

HOW IS FORMATION AND ENDING OF A-C RELATIONSHIP REGULATED? No duty to accept representation, EXCEPT o If ct. apptd to represent. Permissible to turn down apptmt if (a) representation result in viol. of law or discip. rule (b) representation would impose unreas. financial burden (c) cause is SO REPUGNANT that it would interfere w/ effective representation

Duty to reject representation if: o (a) would viol. law or disciplinary rule (even if client asks you to do something frivolous OR its against your clients position) (b) client asks you to do something unethical (c) if not competent to take case, UNLESS possible to become competent i.e. retaining co-counsel to handle part of case hes not competent in

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WHEN must or may atty withdraw from representation o Once matter is in litigation, withdrawal requires court permission, EVEN if rules say atty MUST withdraw Ct. balance justification of withdraw w/ hardship to parties: if close to trial, harder to get ct. permission

Cricumst. when atty MUST withdraw:

(a) when clients purpose is to delay or harass (b) when representation will reqr viol. of law / disp. rule (c) when mental/phys. health makes unreas. difficult to provide effective representation = MANDATORY WITHDRAWAL from case (d) when client fire atty. AND case is in litigation must seek ct. permission to withdraw

Circumst. When atty MAY withdraw (a) when client pursues course of action that is crim. or fraudulent (b) if client uses attys services to perpetrate crime or fraud (c) if client insists on pursuing obj. atty. regards as repugnant, imprudent (d) if client disregards agreem. re: fees / expenses AND atty. gives reas. Warning (e) if unreas. financial burden or rendered unreas. difficult by client (f) if client freely assents to withdraw

Reqments When Atty Withdraws: (a) must give timely notice and oppy f/ client to get another atty. (b) atty. must return all funds NOT used / expended (c) atty. must return to client all his papers neces. f/ future representation (by another atty. / pro se)

ATTY. DUTIES TO CLIENT Zealous representation Duty to avoid conflicts of interest o Atty. may not represent client if representation will be materially ltd. or anything will limit ability to provide zealous representation By own interest, responsibilities to client, or 3d person

EXCEPT: if conflict arises, atty. can continue if: (1) atty believes representation will not be materially affected AND (2) client gives INFORMED consent Informed consent: atty conveys conflict, providing alternatives, and client consent must be in writing

Imputed Disqualification Rule o If 1 atty in firm disqualified due to conflict, all other attys in firm ALSO disqualified, UNLESS Disqualification is based on personal interest of THAT atty. (sexual relations)

Firm can avoid imputed disqualification via screening disqualified atty. (other attys. cant speak to him about case) AND screened atty. gets no part of fee

Types of Conflicts of Interest o Conflicts among current clients: (a) Atty MAY NOT sue current client even in unrelated matter (e.g. if representation someone in divorced proceeding, cannot represent someone else suing her on an unrelated issues) (b) may represent multiple parties in a case so long as: he can represent all effectively AND all consent (c) atty. representing multiple parties SHALL NOT participate in aggregate settlement or guilty plea, UNLESS each client consents in writing after being informed of all agreem. (e.g. representing co-plaintiffs in lawsuit can accept settlement only if all parties informed AND ALL parties consent) (d) atty. may act as mutual 3d pty. / neutral (e.g. mediating dispute b/w 2 parties) BUT must clearly explain role; NOT representing any one of individuals; and atty. must believe he can be effective as neutral to all parties

Conflict b/w Atty Interests and Client Interests Imputed disqualif. = NOT reqd so long as effective conflict will not be impeded by attys conflict of interest

Atty. SHALL NOT solicit subst. gift from client OR prepare instrument giving atty or person related a subst. gift from client, EXCEPT when client is family member (i.e. atty. cant ask client for subst. gift f/ atty. of family members OR draft will f/ client naming atty. or family member as beneficiary) Shall not give financial assistance to client in connection w/ contemplated or pending suit EXCEPTION: atty may pay ct. costs f/ indigent client OR adv. costs to client represented on contingency basis (i.e. OK for atty. to pay filing fee BUT not OK to give $ f/ food, etc)

When atty. is atty. f/bsns deal and pty. to transaction requires: (1) Terms of transaction must be fair and reas. (2) Terms must be in writing and manner client can reas. understand (3) client advised in writing to see another atty. and oppy to do so (4) client consents to terms in writing

Prior to completion of representation, atty. SHALL NOT acquire media /literary rights to client story b/c Representation may be altered making film / book rights more valuable

Atty SHALL NOT acquire proprietary interest is COA is subj. to litigation EXPCEPTIONS: (a) lien to secure pay of fees/ expenses; (b) reas. contingency fee

Atty. SHALL NOT ACT as ADVOCATE in trial where atty likely to be witness EXCEPTIONS: (a) testimony solely about nature / value of legal srvc given; (b) disqualif. would mean subst. hardship to client; (c) testimony about totally unrelated matter

Atty. SHALL NOT have SEX w/ client UNLESS it existed when A-C relationship commenced

Organizations and Representation Atty is representing the ENTITY, NOT directors/shareholders / staff and client = ENTITY itself If attys representation is paid by someone other than client, client must consent and representation must not be interfered w/ by payee (e.g. insurance co. pays f/ atty to represent client and cannot interfere) If dealing w/ entitys directors/ofcs/employees, atty. shall explain identify of client OR atty knows/should know if entitys interests interfere w/ individuals interest (e.g. atty for corp. goes to speak w/ corp employee and employees interest may be adverse to corps interest atty. must explain to employee that they are present as corps atty, NOT employees atty. If atty believes his client is viol. law, atty. will act as reas. neces. to protect entity, incl. (1) request client to reconsider their actions (2) refer matter to higher authority w/in organization (3) if highest atty fails to take approp, timely action, atty. may report action to approp. Persons OUTSIDE organization as reas. neces. to prevent harm to organization (e.g. report to SEC)

Conflicts w/ Past Clients

Atty who has formerly represented client in a matter shall not thereafter represent another client in same or a substantially related matter in which that persons interests are materially adverse to interests of former client, UNLESS former client gives informed consent in writing. b) Atty shall not knowingly represent person in same or substantially related matter in which firm w/ which atty formerly associated had previously represented a client whose interests are materially adverse to that person; and about whom atty acquired confidential info thats material to matter; UNLESS o client gives informed consent in writing.

DUTY OF CONFIDENTIALITY IS PERMANENT: c) Atty who has formerly represented client in a matter or whose present or former firm has formerly represented client in a matter shall not thereafter use info to disadvantage of former client or reveal info relating to representation except as allowed by the Rules. DUTIES TO CLIENTS Duty of Competence

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Competent represenatiotn: has to act w/ reas. diligence Atty. is subj. to discipline if K away malpractice liability so long as another atty. does so Cant pay off client f/ malpractice w/ o giving atty. to consult w/ another atty.

What Client Decides o o o (a) Whether to sue in civil cases (b) Whether to accept settlement and/or plea (c) Whether to waiver jury trial in crim. Cases and whether to testify in crim. Cases (d) whether to file appeal

Duty to keep client reas. informs o Can limit representation if reas. under circumst. If client consents (e.g. will represent on appeal but not in trial proceedings)

Representing Client w/ Disabilities o o Must maintain normal client relationship as much as possible May seek appmt of guardian to represent client if atty believes client cannot adeq. Represent own interests

Duty to Protect Client Confidences / Duty of Confidential o Any info atty learns rel. to representation is protected as confidential incl. info from client, prospective client, or others Difft from A-C privilege b/c priv. is testimonial privilege (applies what atty learns from clients); whereas duty of confidentiality is much broader incl. what learns from ppl seeking your representation, and others

CANNOT disclose or reveal confidential info except whats approp. In representing client

EXCEPTIONS to Duty of Confidentiality

o MAY reveal info pertaining to client to extent reas. neces. to:

a)To prevent reasonably certain death or substantial bodily harm; b) To prevent, mitigate or rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from the clients commission of a crime or fraud in furtherance of which the client has used the lawyers services. c) To secure legal advice about the lawyers compliance with these rules. (can call ethics hotline, etc) d) f/ atty S/D: if sued for malpractice or criminally charged or sanctioned by ct., atty. can use confidential info as defense e) To comply with other law or court order. g) If the client gives informed consent.

How Should Atty Handle Fruits / Instrumentalities of Crime o Atty CANNOT keep, hide, or alter fruits / instrumentalities of crime

How Should Atty Deal w/ Knowledge that Client Will or Has Committed Perjury? o o o 1) urge client to rectify the fraud / come clean w/ ct. If refuses, 2) seek to withdraw w/ ct.. If not allowed 3) atty should disclose confidential info to ct. as neces. to rectify fraud Nixon: its not ineffective assistance to NOT let client commit perjury

How is Integrity of System Protected? o Duty to prevent abuse of system

(1) should not bring / defend proceeding or assert / controvert issues UNLESS atty. believes basis not frivolous (2) shall make all reas. efforts to expedite litigation consistent w/ clients interests (3) shall not seek to infl. Judge or jury in manner prohib. by law (4) shall not engage in conduct to disrupt tribunal

Duty of candor to tribunal (1) shall not make material fact to tribunal OR fail to correct false stmt of fact / law to tribunal (2) shall not fail to discl. info to ct. when neces. to prevent crime / fraud(i.e. perjury) (3) shall discl. adverse authority thats on pt. and from controlling j/d (4) shall not offer evid. atty. knows to be false (5) in ex parte proceedings, shall inform tribunal of all material facts (special duty of candor)

Fairness to Opposing Party (1) Shall not obstruct anothers access to evid. Or unlawfully alter, destroy, or (2) conceal something having potential material evid. Value (3) Shall not counsel or encourage witness to testify falsely (4) Shall not make frivolous discovery requests (5) Shall not make false stmt of material fact to 3d pty or another atty. (6) If atty. receives document inadvertently sent shall promptly notify sender

Trial Tactics SHALL NOT allude to any matter not supported by phys. evidence (OJ trial: Cochran said hes chipping golf balls)

SHALL NOT assert personal knowl. ab. Justness of cause or of facts, EXCEPT when testifying as witness Prosecution Reqmts: (a) only prosec. When p.c. exits (b) timely discl. of all exculpatory evid. (c) accused is advised of right to counsel and given oppy to obtain counsel (d) not to seek waiver of rights from unrepresented person (e) not to subp. another atty. b/4 GJ / another crim. proceeding UNLESS following reqm met: o (1) prosec. Must reas. believe that info sought isnt privileged (2) evid. Is essential to successful completion of proceeding

o (3) not alternative source of info CONCERN: subp. crim. defense atty as witness only to seek to get him disqualif. (f) Not to make public stmt. that have likely to heightening condemnation of accused (g) if pros. gains credible evid. That deft. eating reas. likelihood that deft. Hasnt committed crime, shall get further investigation and discl. to deft. And ct.

Pro Bono Aspire 50 hrs. of pro bono f/ yr. Can service as ofc. of legal serv. org. even if adverse to clients

Attorney as Advisor Shall not consult client, engage or assist client in conduct that is fraudulent / criminal BUT can Discl. to client the conseq. of breaking law

What is permissible nature of communications of others than client?

Communication w/ Adversaries 1) Atty SHALL NOT commun. directly w/ person he knows is represented by another atty UNLESS persons atty consents OR ct. gave permission (e.g. if representing husband, cant speak to wife unles) 2)Cannot commun. w/another not represented by counsel BUT cannot give legal advise or represent that attys is disinterested

Communication w/ Witnesses (1) Allowed to contact all witnesses even those of opposing pty. Cannot harass a witness / prospective witness Cannot encourage witness to flee j/d to avoid testimony Non-expert witness may be paid ONLY EXPENSES INCIDENT to testifying; cannot be paid fee Expert witness can be paid reas. fee f/ testimony in addit. to expenses (7) No witness may be paid on contingency fee basis

Communication w/ Jurors (1) B/4 trial -- no commun. allowed w/ member of panel from which jury will be selected (2) During trial -- no commun. w/ jurors allowed except during official ct. proceedings; otherwise felony jury tampering (3) After trial atty. may contact juror UNLESS prohib. by law OR juror indicates desire not to be commun. with If speaks to juror: cannot harass juror

Communication w/ Court (a) Except in ER, ex parte commun. not allowed If ER: other side has to be notified of communication (Glenn Close movie: she goes to judge house over weekend expressing guilt of client)

(b) no gifts to court personnel permitted

Communication ab. Judge / Adjudicatory Ofcs: cannot make false stmt that atty. knows to be false Communication w/ Press Cannot make stmt that is going to be publicly disseminatedif subst. likely to materially prejudice proceeding

Regulating Market for Legal Services o Solicitation and Advertising (1) Attys must not make false, misleading stmt. (2) Permitted to say whether they handle particular field of law (3) Can advertise that he is cert. specialist only if certified by org. recogn. By state bar OR ABA and body MUST be identified

Solicitation (1) in person solicitation is prohibited where atty. would profit from it Incl. live-tel. and real-time elec. communication

(2) can solicit bsns from: other attys, family, close friends, past clients (3) cannot solicit if person makes it known they dont want to be solicited

Advertising Attys have right to adv. so long as truthful AND not deceptive Any atty communications f/ adv. MUST STATE on envelope and IN BEGINNING AND END: adv. material

How Practice of Law Can be Structured Names of Law Firms: (1) Attys can use names of deceased attys UNLESS deceptive to do so (2) Attys. MUST remove names from firm if entering public srvc.

(3) Trade names permitted so long as not misleading BUT o CANNOT IMPLY false connection to govt or legal services

(4)Name of firm cannot represent that theres pship if no pship exists

Firms may incorp. if state law permits BUT all directors/ofcs/shareholders MUST be ATTYs Buying and Selling Law Firms, permitted so long as: (a) Seller must stop practicing in geographic area or in practice area Whole practice area / firm must be sold Written notice MUST be given to client informing of proposed sale and ability to get another atty. (d) Cannot be any immed. Incr. in fees

Fees Fees should be set as soon as possible in course of representation, preferably in writing Contingency fee agreem. must be in writing

Atty. fees must be reas. Reas. fee: factors: 1) time and skill reqd; 2) extent of precl. Of other legal work; 3) fee customarily charged of like work in area; 4) amt. charged; 5) experience of atty.

Atty must notify client of latters responsible f/ expenses Crim. cases MAY NOT be handled on contingency fee basis Atty. cannot take dom. rel. case on contingency where fee contingent on: 1) securing divorce, 2) amt. of alimony, 3) amt. of prop. settlement

Fee Splitting w/ Other Attys Division of fees w/ attys from other firms can only be made when:

a) div. is portion perf. By each atty and each assumes joint responsibility b) client consent to agreem. c) total fee = reas.

Atty. SHALL NOT enter into agreem. that restrict ability of attys to practice after termin. Of employment

Atty. Duty to protect Client $ OR Property o Atty. cannot comingle client funds w/ atty. funds Must place client funds in separate trust acct. EXCEPT o Atty may personal funds into clients acct. solely to pay bank srvc. charges

Atty. must put settlement $ in trust acct. ASAP MUST keep current accting of $ in trust acct. AND must keep record of client funds f/ at least 5 yrs. after representation

Atty. has fiduciary relationship w/ client; valuables should be taken care of Atty. must pay settlement to client promptly upon receipt If theres dispute b/w whats owed to atty. and what client gets whats under dispute goes into trust acct.

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ETHICAL STANDARDS FOR JUDGES A) judges have to avoid appearance of impropriety o o If judge has pers. knowl. of disputed facts judge is disqualified If judge served in matter in controversy (i.e. part of firm that handled the matter is all thats reqd) or as judge in another ct. If judge has financial interest in case, incl. if pty or atty made campaign contrib. than amt. designated by law Incl. financial interest of judge, spouse, kids, and family members in household

Must be legal or equitable interest: if difft from all other members of community (e.g. stock in a company) Applies to all financial interest that judge should know or should know of

If judge or family member is involved in case If pty or ofc/director/trustee of pty If atty in the proceeding Has more than de minimis interest that can be subst. affected Is likely to be a material witness

EXCEPTIONS to disqualification: A) remittal: judge must discl. on record basis for disqualification all parties must volun. agree to judge participating and agreem. Must be on the record

b) necessity rule: if all judges in j/d are disqualified ANY judge can be on the case

What conduct while on bench is approp. o o o Judge shall comply w/ all law Shall require order in ct. in ct. proceedings Shall be patient, dignified and courteous EXAMPLES: Must refrain from action or words than can be perceived as sexual harassment; admin. position apptmt must be based on merit

Judge shall not engage in ex parte communications, BUT must discl. if engages in it Shall avoid bias based on subj. factors Shall dispose of all judicial matters promptly, efficiently, and fairly Shall not commend or criticize jurors post-verdict

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BUT, judge can decide JNOC.

SHALL NOT use info gained in judicial capacity SHALL NOT make comments about ANY pending proceeding that can be expected to affect outcome SHALL NOT engage in indep. Investigation of facts (incl. seeking opinions from attys

What conduct while NOT on bench is approp. o o Judge not allowed to engage in practice of law SHALL NOT accept appt. to govt commission other than those dedicated to improvement of legal system Not allowed to service as fiduciaries (execs, admins, trustees, guardians) o EXCEPT: can serve as fiduciary f/ immed. Family

May serve in icharaitable or civil org. so long as doesnt affect adversely on judges impartiality Shall not Shall not participate in fundraising or memship solitictaion or allow prestige of judicial office to be used for this Shall not participate in org. if likely to be involved in litigation b/4 judges ct.

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Not participate in org. that discriminates Shall not appear as character witness unless subpoenaed or testify in public hearing unless concerns law system Shall not engaged in financial transaction that risk conflict of interest

May not serve as ofc/director or other capacity f/ bsns UNLESS closed corp. (family owned bsns) o QJudge shall not accept gifts from those likely to appear b/4 judge EXCEPTIONS: gifts w/ lil intrinsic value; gifts from publisher, barrel. functions, and f/ public testimonials

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EXCEPT ordinary social hospitality; loans from lending instit. on same terms available to non-judges

May received compensation in non-judicial positions Shall comply w/ law in all activities

What political activities by judges/ judicial candidates are permissible o These ppl may not: a) hold office in political org. b) publicly endorse or oppose candidates f/ office c) make speeches on behalf of poli org d) attend political gatherings e) solicit or make contributions f/ candidates f/ political office (i.e. raising $ f/ ppl running for governor, mayor, etc) f) seek or accept endorsements from poli. org g) use ct. staff or facilities f/ their campaign h) appt. someone to paid position if gave contribution more than specified by law

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judge must resign if running f/ non-judicial office in campaigning f/ election / retention to bench, judge shall NOT: (a) personally solicit funds, BUT can create committee for it (b) make pledges or promises of conduct in office Must review all campaign lit. to ensure compliance

(c) cannot make misrepresentations about own qualifications or ab. opponent