PR “Outline”

I. Sources of Professional Responsibility Authority:

A. State Ethics Codes
i. Primary Rules: guide behavior and provide basis for discipline
B. ABA Model Rules of Professional Conduct
i. Only authoritative to the extent adopted by the supreme court of
the state which you are licensed
ii. There is a huge overlap in most jurisdictions between A and B
C. Court decisions dealing with ethical issues
D. ABA and state bar ethics opinions
i. Not formally binding, but cited
E. ALI Restatement of the Law Governing Lawyers
F. Federal Agencies (SEC and IRS, etc.)
i. These are binding
II. Investigative triggers for character and fitness portion of the bar exam on pg
51-52
III. Personal ethical violations can lead to a denial of admission even if
professional ethics are not directly implicated (cases pg 52-54)
IV. Doctoring your resume can result in (a) expulsion (preclude bad admission),
(b) citation of violation, letter in the student’s file (make bar admission more
difficult), or (c) unofficial warning (impact on bar admission depends on the
school’s reporting to bar with student’s application)
V. Bar Admission:
A. Generally, the examiners are more worried about (i) patterns vs. single
instances; (ii) recent vs. long ago events; (iii) felonies vs. misdemeanors;
(iv) legal problems reflecting moral character vs. technical violations
VI. Professional Discipline:
A. In most states the highest court runes the disciplinary system – chart pg 76
B. Trend toward expanding and placing more emphasis on lawyer discipline
(historically majority of complaints not investigated)
C. A lawyer can be disciplined for behavior that:
i. Has nothing to do with the practice of law
ii. Does not result in criminal prosecution
iii. Is committed outside of the bar jurisdiction
iv. Is discriminatory in nature (8.4 Com. 3)
v. Deals strictly with morality (8.4 Com. 2)
vi. Is committed by another on the lawyer’s behalf
D. ABA enumerates four factors that should be considered when imposing a
sanction:
i. Whether the duty violated involved a client, the public or the
profession.
ii. Whether the lawyer acted intentionally, knowingly, or negligently.
iii. The actual or potential injury caused by the lawyer’s misconduct;
and
iv. The existence of aggravating or mitigating factors.
 E. Sanctions include disbarment, suspension, reprimand, admonition,
probation, restitution and or other sanctions deemed appropriate.
VII. Confidentiality:
A. Sources of a lawyer’s confidentiality obligations:
i. Law of evidence: attorney-client privilege
ii. Civil procedure: work product immunity
iii. Law of Agency: agent’s fiduciary duty to keep the principal’s
secrets and not to injure the principal
iv. Professional ethics rules
B. If a client is being represented by a law firm, a lawyer MAY discuss
confidential information relating to that client with other people (lawyers
and nonlawyers) in the firm, and with others who are not employed by the
firm but are assisting in the representation of the client.
C. Sarbanes-Oxley requires lawyers to report securities fraud to management
even when the lawyer’s services have not been used in the commission of
the fraud.
D. Similarly, even if the lawyer is prohibited by his or her state ethics rules
from revealing information about a fraud (e.g. because the lawyer’s
services were not used), the lawyer MAY report the fraud to the SEC
under SOX because federal law preempts contrary state law.
E. Unlike SOX, however, (b)(2) and (3) are not limited to public companies,
securities fraud, or to lawyers practicing before the SEC.
F. Attorney-Client Privilege vs. Ethics Rules
i. Attorney-client privilege is a set of evidence rules that protect
lawyers and clients from being compelled to testify about certain
communications.
ii. The MR duty to protect client confidences, on the other hand, is an
ethical duty imposed on lawyers to protect certain information as
confidential. The lawyer is not merely required to refuse to
testify about client confidences, but is required to avoid
disclosure of the information to anyone.
iii. Privilege MAY be invoked when someone else seeks to compel
disclosure of the information, while confidentiality is a central
aspect of a lawyer’s duty to a client.
iv. A-C privilege protects:
1. All communications, oral and written
2. Between a client and lawyer (including communication
among client’s lawyers/investigators, etc)
3. In confidence
4. In the course of seeking professional legal advice
v. A-C privilege only protects the actual communication, not the
underlying facts
vi. A-C privilege belongs to the client, waived if the client (or the
lawyer at the client’s request) reveals the information to a
nonprivileged person
 vii. When the A-C privilege does not apply to cover otherwise
protected communications:
1. Furtherance of crime or fraud – services sought or
obtained to enable or aid anyone to commit or plan to
commit what the client knew or reasonably should have
known to be a crime or fraud
2. Claimants through same deceased client –relevant to an
issue between parties who claim through the same deceased
client
3. Breach of duty by lawyer or client –relevant to an issue of a
breach of lawyer-client or client-lawyer duty
4. Document attested by lawyer – relevant to issue concerning
attested document to which lawyer attested
5. Joint clients – relevant to matter of common interest
between two jointly represented clients
viii. Upjohn Co. v. US
1. Privilege extends to communications with any management
or lower-echelon employee or agent so long as the
communication relates to the subject matter of the
representation.
2. Encourages employees who have engages in wrongdoing to
be candid
G. Work Product Immunity
i. Ordinary work product: Work done in preparation for current or
reasonably anticipated future litigation
1. Can be tangible or intangible equivalent (but doesn’t
include facts – must be work)
2. Can extend to transaction materials where it is possible that
someone MAY later challenge the transaction.
3. In order for protection to extend to materials prepared by
third parties, they must be hired by the lawyer, not the
client.
4. Subject to discovery only if substantial need is
demonstrated and party is unable without undue hardship to
obtain the substantial equivalent
ii. Opinion work product:
1. legal opinions, theories, conclusions or mental impressions
of a lawyer
2. Subject to discovery only under extraordinary
circumstances
iii. Limited to communications made in anticipation of litigation (as
opposed to A-C privilege)
iv. Includes materials prepared by persons other than the attorney and
materials prepared by attorney for his own use (as opposed to A-C
privilege)
v. Different standard for disclosure than A-C privilege
VIII. Representing a Client
A. Although competent representation is required by MR 1.1, Comm 2
provides that an inexperienced lawyer can associate with an experienced
lawyer and/or otherwise get up to speed in order to provide competent
representation – must have the time to do the necessary studying to gain
the requisite knowledge in that area
B. You can refuse to represent a client for any reason, subject to three
restrictions:
i. Court assigns you to represent an indigent criminal against your
wishes
ii. You “should” provide at least 50 hours of pro bono each year
iii. You can’t discriminate on the basis of any protected category
C. A prospective client becomes your actual client when you consent or the
client reasonably believes that the lawyer has agreed to represent him.
i. This can occur once you give any kind of legal advice to a person,
even in a casual setting.
ii. Lawyer bears the risk of ambiguity – client’s reasonable belief
D. Togstad v. Vesely, Otto, Millier & Keefe: attorney-client relationship is
created when a person “seeks and receives legal advice from an attorney
in circumstances in which a reasonable person would rely on such
advice.”
E. You owe prospective clients 3 main duties (Restatement):
i. Protect confidential communications
ii. Safeguard potential client’s personal property
iii. Any advice given must still be accurate and MAY include
disclosure of relevant statute of limitations
iv. MR 1.18 – deals specifically with duties to prospective clients
F. Because the client is the principal of the lawyer-agent the client is bound
by the lawyer’s actions. Exceptions:
i. Waiver of privilege
ii. Settlement of a case
G. NM SC in Neal said “No lawyer should approach any task without
knowledge of the applicable statutes, court rules, and case law, especially
in matters with which one is not intimately familiar.”
H. Strickland v. Washington: D would have to prove BOTH that the
lawyer’s assistance was unusually poor AND that there is a reasonable
probability that better counsel would have made a difference in the result
i. Counsel’s performance was not unreasonable because he made a
strategic choice to rely on the D’s having accepted responsibility
for his conduct
ii. Probably wasn’t competent under MR 1.1
I. 1.3 – have to do work without undue delay, reasonably diligence
i. Comment 1 – client’s interests take precedence over lawyer’s
personal concerns, suggests that he must zealously represent client
ii. Comment 2 – have to control workload so that you can pay
adequate attention to all matters
J. Have to see a matter through to the end unless you make it clear that
you’re no longer working on the matter
i. Doubt about whether a client-lawyer relationship still exists should
be clarified by the lawyer, preferably in writing, so that the client
will not mistakenly suppose the lawyer is looking after the client’s
affairs when the lawyer has ceased to do so (Comment 4)
K. Candor and Communication:
i. Difference between deception and lying – can be deceptive by
hedging, giving half truths, or omitting
ii. Difference between truth an truthfulness – truthful is giving the
most truthful answer to your knowledge, might not be the truth
iii. No direct rule that says that you can’t lie to your client
1. Arguably falls under 8.4(c) – It is professional misconduct
for a lawyer to engage in conduct involving dishonesty,
fraud, deceit or misrepresentation
2. Fraud, informed consent, fiduciary, and candor in advice
rules also MAY provide some limits.
iv. MR 3.3 – says that you can’t lie to the court, can’t conceal, can’t
falsify
v. MR 4.1 – about lying to third parties
L. Contractual Limitations
i. A lawyer MAY limit the scope of the representation under MR 1.2
if “the limitation is reasonable under the circumstances and the
client gives informed consent.”
ii. A lawyer MAY not be able to limit certain duties, however, such
as the duty of competent representation.
iii. A lawyer MAY also not prospectively limit his or her malpractice
liability under MR 1.8(h) unless the client is represented by
separate counsel.
M. Scope and Allocation of Representation of Representation between
Lawyer and Client
i. 1.2 says:
1. The client decides the objectives of representation
2. The lawyer must consult the client as to means used to
pursue objectives
3. Client should decide whether to file a lawsuit, then the
lawyer ca make some technical decisions (like whether to
request a continuance on a hearing) without consulting the
client
4. Doesn’t provide more guidance because the proper balance
of lawyer autonomy and client consultation depends very
much on the context of the representation, it’s a matter of
discretion, and because some clients hire lawyers in order
to delegate much of the decision making
ii. Lawyers cannot decide:
1. Whether to settle in civil cases
 2. Whether to plead guilty in criminal cases
3. Whether to waive a jury trial in criminal cases
4. Whether the client will testify in criminal cases
iii. If a client and lawyer disagree – see comment 2, rules don’t
proscribe a way of settling the disagreement
iv. Communication requirements in MR 1.4
v. Jones v. Barnes: Client wanted to bring up a ton of issues, and the
lawyer told him what arguments were strongest arguments (fewer
and only including some of client’s suggestions) in order to get a
strong appeal. Client is upset about this and sues.
1. The court said that the lawyer did the right thing, the client
shouldn’t be able to choose every single thing that they
want argued on their behalf on appeal – that is the lawyer’s
job, and the judges don’t want to hear all of those issues –
doesn’t violate Constitutional rights
2. Not professionally irresponsible as long as the lawyer is
actually doing their job correctly
3. Concurrence – professionally irresponsible, but not
violation of Constitutional rights
4. Dissent – lawyer should do what the client wants –
effective assistance of counsel
N. Terminating an attorney-client relationship
i. A lawyer is required to terminate a representation MR 1.16(a):
1. the representation will result in violation of the rules of
professional conduct or other law;
a. Conflicts of interest; uncorrected client fraud
2. The lawyer’s physical or mental condition materially
impairs the lawyer’s ability to represent the client; or
3. The lawyer is discharged (fired)
a. Comment 4: a client can fire a lawyer for any
reason at any time (with only obligation to pay for
outstanding work)
ii. When a lawyer MAY terminate a representation MR 1.16(b)
1. (1) withdrawal can be accomplished without material
adverse effect on the interests of the client
2. (2) the client persists in a course of action involving the
lawyer’s services that the lawyer reasonably believes is
criminal or fraudulent
3. (3) the client has used the lawyer’s services to perpetrate a
crime or fraud
4. (4) the client insists upon taking action that the lawyer
considers repugnant or with which the lawyer has a
fundamental disagreement
5. (5) the client fails substantially to fulfill an obligation to the
lawyer regarding the lawyer’s services and has been given
 reasonable warning that the lawyer will withdraw unless
the obligation is fulfilled
6. (6) the representation will result in an unreasonable
financial burden on the lawyer or has been rendered
unreasonably difficult by the client; or
7. (7) other good cause for withdrawal exists
iii. If a lawyer is permitted to withdraw under 1.16(b) they have
additional conditions to satisfy:
1. If a lawyer has made an appearance in court, must obtain
court’s permission – 1.16(c)
2. A lawyer must withdraw in a way so as not to injure the
case under 1.16(d) including:
a. Giving reasonable notice to client, allowing time
for employment of other counsel
b. Surrendering papers and property to which the
client is entitled (the lawyer MAY retain papers
relating to the client to the extent permitted by other
law for purposes of obtaining fees)
c. Refunding any advance payment of fee or
expense that has not been earned or incurred
iv. Retaining lien – CL – holding client’s files or work product
hostage until fees are paid
1. MR 1.16(d), Comment 9: “Even if the lawyer has been
unfairly discharged by the client, a lawyer must take all
reasonable steps to mitigate the consequences to the client.
The lawyer MAY retain papers as security for a fee only to
the extent permitted by law.”
IX. Conflicts of Interest:
A. 1.7 – Current Clients
B. Under 1.7 a lawyer MAY not represent a client if one of the conflicts in
1.7(a) exists, unless the conflict is consentable (i.e. satisfies (b)(1)-(3)) and
the client gives informed consent.
C. “Directly Adverse” – On behalf of one client the lawyer acts directly
against the interest of another client
i. Lawyer represents Client A in one matter and sues Client A in a
second matter on behalf of Client B
ii. Lawyer acts adversely to a client in litigation (e.g. cross
examination)
iii. Lawyer undertakes adversarial negotiation against another client
D. Comment 6 – why these conflicts are so problematic to both clients
E. Even when there is no direct adversity, what other responsibilities MAY
“materially limit” the lawyer’s representation?
i. Someone else paying the attorney bills
ii. Someone else to whom the lawyer owes a duty
iii. Lawyer’s own interests
F. Comment 8: Even where there is no direct adverseness, a conflict of
interest exists if there is a significant risk that a lawyer's ability to
consider, recommend or carry out an appropriate course of action for the
client will be materially limited as a result of the lawyer's other
responsibilities or interests. 
G. Questions going to ask about whether there is material limitation:
i. How likely is it that a difference in interests will eventuate?
ii. If there likely is such a divergence, would it “materially interfere”
with the lawyer’s advice to or representation of a client?
H. A good way to approach this problem is to ask if your loyalty to one might
compromise your representation of the other, and then to ask whether you
might receive confidences from one that could be used adversely to the
other
I. To get informed consent must give information:
i. Must communicate to a client all the information needed to
understand the possible adverse effects that might befall the client
if she waive the conflict
ii. Must orally explain to the client the risks, advantages, and possible
alternatives to the lawyer going forward with the representation
iii. Must be confirmed in writing – client must sign a waiver OR oral
waiver and within a reasonable time send the client a document
memorializing the oral communication
iv. Client must expressly indicate consent to the conflict
J. When will a conflict be nonconsentable?
i. Representation is prohibited if in the circumstances the lawyer
cannot reasonably conclude that the lawyer will be able to
provide competent and diligent representation.
1. Have to see what the underlying relationship is, and if it
will affect things
2. Factors to consider are whether the conflicting
representations are related or unrelated, joint representation
is involved, if one of the clients is a former client, there is a
really strong friendship or bond on one side, and whether
the client is sophisticated
ii. Representation is prohibited by law
iii. Suing one client on behalf of another client
1. A lawyer MAY not represent opposing parties in the same
litigation regardless of the clients’ consent – Comment 23
K. Will a lawyer potentially have to divulge confidential information about
the representation of the other client in order to gain informed consent?
i. Has to ask permission from the person whose information is
confidential to disclose
ii. If he declines to allow disclosure then you have to decline the
representation of the second client because you can’t get informed
consent because you can’t inform them
L. A client’s consent is revocable:
 i. A client always has the right to fire a lawyer and MAY also revoke
their consent at any time.
ii. If a client revoked consent, MAY the lawyer continue to represent
the other client?
1. MAY need to withdraw from representing both, or MAY
be able to continue to represent one of them
2. Depends on the nature of the conflict, what if any
circumstances have changed, and what harm might result
from continuing to represent one of the clients
iii. During the informed consent process a lawyer MAY ask the client
whether, if a conflict arises, the lawyer could continue to work
with one of the clients, and is so, which one?
1. More than likely in this case that the lawyer MAY continue
to represent one of them if a conflict arises
M. What if a conflict between two clients is nonconsentable or one of the
clients refuses to give consent?
i. If the conflict is identified before the representation is undertaken,
the representation must be declined (comment 3)
ii. If the conflict arises after the representation has been undertaken,
the lawyer must withdraw from the conflicting representation
iii. If more than one current client is involved, ,whether the lawyer
MAY continue to represent any of the clients is determined both
by the lawyer’s ability to comply with the duties owed to the
former client and by the lawyer’s ability to represent adequately
the remaining client or clients, given the lawyer’s duties to the
former client. It MAY be necessary for the lawyer to give up
both clients (comment 4)
N. If a party is sophisticated then it is highly likely that they can waive all
possible future conflicts in advance
i. MR 1.7 Comment 22: Advance waivers are fine if ether exists
effective informed consent (in writing) and the conflict is a
consentable conflict
ii. Restatement §122: Advance waivers are permissible so long as
they cover events that can be foreseen and client is sophisticated
and has opportunity to consult independent counsel.
iii. Conflict waivers, however, do not eliminate the lawyer’s duty of
nondisclosure and confidentiality with respect to the client’s
information
iv. The lawyer must also still obtain consent from the later client
O. Co-Ps or Co-Ds
i. 1.7 Comment 23: Simultaneous representation of parties whose
interests in litigation MAY conflict, such as coplaintiffs or
codefendants, is governed by paragraph (a)(2) [i.e. material
limitation]
1. The potential for conflict of interest in representing
multiple defendants in a criminal case is so grave that
 ordinarily a lawyer should decline to represent more
than one codefendant.
2. On the other hand, common representation of persons
having similar interests in civil litigation is proper if the
requirements of paragraph (b) are met.
P. Keeping confidences learned from one co-client from the other:
i. Remember privilege rules do not apply vis a vis other co-clients
ii. Confidentiality rules typically do not support keeping secrets from
co-clients
Q. Comment 31 1.7: [C]ontinued common representation will almost
certainly be inadequate if one client asks the lawyer not to disclose to the
other client information relevant to the common representation. This is so
because the lawyer has an equal duty of loyalty to each client, and each
client has the right to be informed of anything bearing on the
representation that might affect that client's interests and the right to
expect that the lawyer will use that information to that client's benefit. See
Rule 1.4. The lawyer should, at the outset of the common representation
and as part of the process of obtaining each client's informed consent,
advise each client that information will be shared and that the lawyer will
have to withdraw if one client decides that some matter material to the
representation should be kept from the other.
R. A lawyer for a corporation can provide legal services to its individual
employees as long as the interests are aligned
i. But the lawyer doesn’t have a duty to keep confidential disclosures
made to him by employees of the corporation because the client is
the corporation
S. Culyer v. Sullivan: a trial court doesn’t need to inquire into propriety of
co-representation of criminal Ds is no objection is raised unless the TC
knows or reasonably should know that a particular conflict exists
i. Defense counsel has an ethical obligation to avoid conflicting
representations and to advise the court promptly when a conflict of
interest arises during the course of trial
ii. If the lawyer proceeds in the face of conflict and no one objects the
resulting conviction can be overturned if the conflict actually
significantly affected the representation (prejudice not needed)
iii. If the D waives a conflict he is foreclosed from challenging a
subsequent conviction on the basis of the conflict
T. Wheat v. US: the court can disqualify a lawyer on the basis of an actual or
potential conflict even if the D parties prefer to waive the conflict –
doesn’t violate a D’s 6th amendment right to counsel of his choice
i. The provision of waivers by all affected parties will not necessarily
cure any problems, since the courts have an independent interest in
assuring compliance with ethical standards and the appearance of
fairness.
U. Representing both spouses in Divorce
 i. If there is no disagreement about child custody or division of assets
then perhaps there will only be technical adversity – but future
problems can always arise
ii. Some states allow it in an uncontested divorce
iii. Others forbid it, but permit a lawyer to assist both parties in
preparing a settlement agreement so long as both agree and
resulting settlement seems fair.
iv. Others completely forbid it
V. Representing Both Spouses in Estate Planning
i. Under normal circumstances it is permissible (and quite common)
W. Positional Conflicts: 1.7 comment 24
i. Ordinarily a lawyer MAY take inconsistent legal positions in
different tribunals at different times on behalf of different clients.
ii. The mere fact that advocating a legal position on behalf of one
client might create precedent adverse to the interests of a client
represented by the lawyer in an unrelated matter does not create a
conflict of interest.
iii. A conflict of interest exists if there is a significant risk that a
lawyer's action on behalf of one client will materially limit the
lawyer's effectiveness in representing another client in a different
case.
1. For example, when a decision favoring one client will
create a precedent likely to seriously weaken the position
taken on behalf of the other client.
iv. If there is significant risk of material limitation, then absent
informed consent of the affected clients, the lawyer must refuse
one of the representations or withdraw from one or both matters.
v. Factors to consider in determining whether a positional conflict is
problematic and requires informed consent:
1. What stages the issues are at in litigation
2. Whether the issue is substantive or procedural
3. The temporal relationship between the matters
4. The significance of the issue to the immediate and long-
term interests of the clients involved
5. The clients’ reasonable expectations in retaining a lawyer
X. Duties to Prospective Clients:
A. 1.18 provides that even when no client-lawyer relationship ensues, a
lawyer who has had discussions with a prospective client SHALL not use
or reveal information learned in the consultation (except as permitted in
MR 1.9).
B. Who is a prospective client?
i. 1.18(a): A person who discusses with a lawyer the possibility of
forming a client-lawyer relationship with respect to a matter is a
prospective client.
ii. Comment 2: Not all persons who communicate information to a
lawyer are entitled to protection under this Rule. A person who
 communicates information unilaterally to a lawyer, without any
reasonable expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship, is not a
"prospective client" within the meaning of paragraph (a).
C. If a prospective client has a potential conflict with a current client:
i. 1.18(c) a lawyer (and any other lawyer in the lawyer’s firm)
SHALL not represent a client with interests materially adverse
to those of a prospective client IF:
1. It’s in the same or substantially related matter and
2. The lawyer received information from the prospective
client that could be significantly harmful, unless
3. Both affected and prospective client give informed consent
or
4. (i) Disqualified lawyer took reasonable measures to avoid
exposure to unnecessary disqualifying information; (ii) the
disqualified lawyer is timely screened and (iii) written
notice is promptly given to the prospective client.
XI. Duties to Former Clients
A. Conflict between current client and former client:
i. Impact on the current client must be evaluated under 1.7(a)(2) –
reasonably believe that you can provide good representation
ii. Prior client is analyzed under 1.9
Situation Possible Interests Can this Conflict Be Applicable MRs
Harmed Waived?
Lawyer knows (or - Breach of Yes, by informed 1.9
might have access commitment to keep consent of former
to) info from former confidences of client
client that can be former client
used adversely
against former client
New client wants to - Possible adverse Yes, by informed 1.9
sue lawyer’s former use of confidences consent of present 1.7
client of former client and former client if
- Lawyer’s ca provide diligent
advocacy for new representation as
client might be required by 1.7(b)
compromised

B. MR 1.9(a): Former Clients

Rule
(a) A lawyer who has formerly
represented a client
In a matter SHALL not thereafter
represent another person in the same or a
substantially related matter
Questions
- Is a party in the conflict at issue a former
client?
- Is the situation at issue the same matter as
the one on which you represented the
former client?
- Is the matter substantially related?

In which that person’s interests are
materially adverse to the interests of the
former client
Unless the former client gives informed
consent, confirmed in writing
- What is a “matter”?
- Are the present client’s interests
materially adverse to the former client?
- If same or substantially related and
materially adverse, has the lawyer sough
and obtained informed consent from the
former client?
- Has the lawyer confirmed the client’s
informed consent in writing?

C. “Matter”
i. Substantially related:
1. Same facts
2. Same parties
3. Same legal issues
4. See MR 1.9, Comment 3
D. Regardless of the level of adversity, MR 1.9(a) conflicts are always
consentable
E. When you move firms you are in MR 1.9(b) territory
i. A lawyer SHALL not knowingly represent a person in the same or
a substantially related matter in which a firm with which the
lawyer formerly was associated had previously represented a
client
1. (1) whose interests are materially adverse to that person,
and
2. (2) about whom the lawyer had acquired information
protected by Rules 1.6 and 1.9(c) that is material to the
matter
3. unless the former client gives informed consent,
confirmed in writing
ii. The lawyers/firm trying to overcome the presumption of conflict
have the burden of proof for determining whether a lawyer who
has changed firms acquired confidential information. Ways to do
that:
1. Affidavit saying that you haven’t
2. Once someone has sought your disqualifications you have
to prove that you don’t know anything
a. That is harder than checking beforehand and
signing an affidavit that you don’t have conflicts
F. Former Client Confidences: MR 1.9(c)
i. General ban on telling former client confidences
ii. 1.9(c) governs
iii. This duty is only waived if the information has become generally
known, otherwise you just keep it to yourself
XII. Imputed Disqualifications:
 A. 1.10(a) Imputation of Conflicts of Interest: While lawyers are associated
in a firm, none of them SHALL knowingly represent a client when any
one of them practicing alone would be prohibited form doing so by Rules
1.7 or 1.9 unless
i. (1) the prohibition is based on a personal interest of the
disqualified lawyer and does not present a significant risk of
materially limiting the representation of the client by the remaining
lawyers in the firm; OR
ii. (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out
of the disqualified lawyer’s association with a prior firm, and
proper screening is implemented
B. 1.10(c) a disqualification prescribed by this rule MAY be waived by the
affected client under the conditions states in 1.7
C. Comm 1: the term “firm” denotes lawyers in a law partnership,
professional corporation, sole proprietorship or other association
authorized to practice law; or lawyers employed in a legal services
organization or the legal department of a corporation or other
organization.
D. Concern is about both the adequacy of physical separation and whether
there is a shared financial interest.
E. Comment 4: The rule in paragraph (a) also does not prohibit
representation by others in the law firm where the person prohibited
from involvement in a matter is a nonlawyer, such as a paralegal or
legal secretary. Nor does paragraph (a) prohibit representation if the
lawyer is prohibited from acting because of events before the person
became a lawyer, for example, work that the person did as a law student.
Such persons, however, ordinarily must be screened from any personal
participation in the matter to avoid communication to others in the firm of
confidential information that both the nonlawyers and the firm have a
legal duty to protect.
F. 1.0(k) "SCREENING" denotes the isolation of a lawyer from any
participation in a matter through the timely imposition of procedures
within a firm that are reasonably adequate under the circumstances to
protect information that the isolated lawyer is obligated to protect under
these Rules or other law.
XIII. Conflicts of Interest, Misc.
A. Fee agreement:
i. Contingent fee – MUST be in writing MR 1.5(c)
ii. All other fees – writing “preferable” 1.5(b)
B. Hourly fee arrangement is by far the most popular
C. You don’t have to discuss fee arrangements before helping the client, as
long as the reason that you are working before arrangement is because it is
necessary – still has to be done in a reasonable time from start of work
D. Charges have to be reasonable 1.5(a)
E. Things you can’t charge for: overhead – see 1.5 comment 1
F. Brobeck, Phleger & Harrison v. Telex Corporation
 i. Telex hires Brobeck to represent them against IBM. They agreed
to a contingent fee with a maximum and a possible minimum
(depending on who you were asking). Brobeck filed for certiorari
with the SC and filed a memo with them to. Before the certiorari
was decided Telex and IBM settled for a wash – no one owed
anyone anything. Brobeck say that they deserve $1mil, and Telex
won’t pay (argues unconscionable)
ii. The court concludes that the $1mil minimum fee for filing a
petition for certiorari was neither excessive nor unconscionable.
1. They couldn’t hire any lawyer for this – they needed the
best lawyer out there when they were going to the Supreme
Court against the strong team at IBM
2. Also both parties were sophisticated parties
iii. It’s not just about weighing the fee paid with the amount of work
done
1. You have to take other things into account
2. Reputation, ability, etc.
G. In the Matter of Fordham: pg 496
i. Timothy faced OUI charges and the father is doing a job for
Fordham and decides to hire him even though he knows that he has
no experience with these type of cases (had already talked to other
lawyers that would charge $3k-$10k flat fee)
ii. Fordham tells him that he has no experience with this type of case,
but that he is a great lawyer with a lot of experience
iii. Billing $200/hr, and he and his other lawyers worked 227 hours on
the case which equaled over $50k in charges
iv. Won the case on a novel argument, was very diligent
v. Charges were excessive - Expert witnesses (lawyers) came in and
said that for a case like this the normal amount of hours would be a
mere fraction of how many hours were actually done
vi. Public reprimand
vii. Court says that it won’t work to just say that you told the client and
billed correctly – that’s not going to get you immunity
1. You still have a duty to ask yourself if the bill is reasonable
H. Things you can’t do in billing:
i. Can’t charge for overhead or markup costs on services
ii. Can’t double bill or bill for recycled work
I. A lawyer can consider the client’s ability to pay in setting a “reasonable”
fee
i. 1.5 Comment 5
ii. 6.1 (pro bono) - encouraging delivery of legal services at no fee or
substantially reduced fee to those unable to pay full fees
iii. There can be reasons why you charge more for a wealthy client
because they are more demanding for example, but can’t gouge
iv. You can charge less if the person is on limited income though – no
problem
 J. Contingent fees are PROHIBITED in: (1.5(d))
i. Criminal cases
ii. Divorce alimony/property settlement
K. No specific percentage cap on contingent fees
i. Up to 50% has been considered reasonable depending on the
situation
XIV. Handling Client Property
A. If you get a retainer you need to set that money aside and then draw from
it as the expenses accrue – you can’t just take it and put it in your account
and then keep good records
B. Minimum accounts that you need as a lawyer is two – one for your
business and one for client’s money
C. MR 1.15
D. You need to keep really good records, and keep them for at least 5 years
E. A lawyer can only put their own money in an account with the client’s
money to pay for bank fees, and stuff like that
F. If the client’s interests and the lawyer’s interests conflict the client’s
interests should come first
G. The law doesn’t prohibit lawyers from transacting any business with their
clients, but there are a lot of rules you have to look at to make sure that it
is kosher
i. 1.8(a)
H. The rules are concerned because:
i. Lawyer’s legal advice and judgment MAY be affected by greed
ii. Client MAY assume the lawyer is more objective about the
transaction than he/she really is (abusing their position of trust)
iii. Lawyer MAY be improperly using confidential information of the
client
I. Good rules of thumb to follow:
i. Don’t borrow money from or lend money to you clients unless
carefully follow MR 1.8
ii. Don’t sell anything to your clients
iii. Don’t ask clients to invest in your business
J. 1.8(a) does not apply as long as it is a standard commercial transaction
K. Lawyers can accept gifts from clients as long as they are not excessive,
and you are not drawing up the documents for the gift (can’t draft a will
where you are getting an interest) 1.8(c)
i. Does not bar lawyers from receiving unsolicited gifts from clients
XV. Personal Interests
A. Sexual Relationships
i. 1.8(j) - don’t have sex with a client unless you were before they
became your client
ii. This can’t be consented away
1. Comment 17
iii. If the sexual relationship already existed:
1. Potentially ok under 1.8(j) BUT still subject to 1.7(a)(2)
 iv. Things like non-sexual relationships or relationships with a client’s
spouse aren’t covered by 1.8 but they fall under 1.7(a)(2)
B. Family Members Representing Adverse Interests:
i. 1.7 Comment 11:
ii. There MAY be a significant risk that client confidences will be
revealed and that the lawyer’s family relationship will interfere
with both loyalty and independent professional judgment
iii. Each client is entitled to know of the existence and implications of
the relationship between lawyers that are closely related by blood
or marriage before the lawyer agrees to undertake the
representation and each client must give informed consent
XVI. Candor Toward the Tribunal:
A. See 3.3
XVII. Catchall Misconduct Provision
A. See 8.4(c): It is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation
B. Nix v. Whiteside: pg 609
i. D wants to lie and say that he saw a gun and so it was self defense
ii. Lawyer tells him that he can’t and that he doesn’t have to – all that
he needed was a reasonable belief that his life was in danger.
Lawyer says that if he lies that he would tell the court)
iii. SCOTUS overrules the 6th circuit (who said that you can’t
blackmail your client into telling the truth on the stand)
iv. The Court held that whatever the scope of the Constitutional right
to testify, it is elementary that such a right does not extend to
testifying falsely
v. You don’t have a right to lie to defend yourself
vi. MR 1.0 allows for an inference of knowledge
C. Lying and Misleading
i. False statements are not allowed (ethical rules and perjury)
ii. If a lawyer knowingly puts on perjured testimony they might be
disbarred or even convicted for the crime of subornation of
perjury.
iii. Partial truths fall into a gray area
iv. Some jurisdictions (such as DC) allow a criminal D to give
testimony in the narrative, such that the lawyer is not eliciting false
testimony, but the D gets to testify
1. The lawyer MAY not reference the believed to be false
testimony in closing arguments or otherwise
v. While this MAY be a signal to the judge and the opposing lawyer
it MAY not be to the jury
XVIII. Fairness to Opposing Party and Counsel
A. 3.4
B. Coaching witnesses is also covered under 3.4(b) and Restatement:
i. Witness preparation MAY include rehearsal of testimony. A
lawyer MAY suggest choice of words that might be employed to
 make the witness’s meaning clear. However, a lawyer MAY not
assist the witness to testify falsely as to a material fact.
XIX. Negotiation
A. 4.1(a) In the course of representing a client a lawyer SHALL not
knowingly make a false statement of material fact or law to a third
person
B. Comment 2 – statements of fact, whether a particular statement should
be regarded as one of fact can depend on the circumstances
C. Under generally accepted conventions in negotiation, certain types of
statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a
party’s intentions as to an acceptable settlement of a claim are ordinarily
in this category, and so is the existence of an undisclosed principal
except where nondisclosure of the principal would constitute fraud.
XX. Communications with Third Persons
A. MR 3.3(a) prohibits a lawyer from knowingly making any false statement
of law or fact, but only applies in proceedings before tribunals.
B. MR 4.1(a) applies (no material misstatement of law or fact) whenever a
lawyer is representing a client, whether the lawyer is talking to opposing
counsel or to a potential witness.
C. MR 8.4(c) provides that it is professional misconduct for a lawyer to
engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.
D. Apple Corps said – as to identity or purpose for the purpose of gathering
evidence it’s okay
E. Gatti – disagrees – can’t misrep identity or purpose
F. 8.4(a) says that if a lawyer MAY not violate the rules, nor MAY a lawyer
violate the rues through the act of another person
G. Inadvertent Communications
i. MR 4.4(b): A lawyer who receives a document relating to the
representation of the lawyer’s client and knows or reasonably
should know that the document was inadvertently sent SHALL
promptly notify the sender.
ii. Comments 2 and 3: Whether the lawyer is required to take
additional steps, such as returning the original document, is a
matter of law beyond the scope of these Rules…Some lawyers
MAY choose to return a document unread… Where a lawyer is
not required by applicable law to do so, the decision to voluntarily
return such a document is a matter of professional judgment
ordinarily reserved to the lawyer.
H. Contact with Represented and Unrepresented Persons
i. Represented Person
1. 4.2 : In representing a client, a lawyer SHALL not
communicate about the subject of the representation with
a person the lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has the consent of
 the other lawyer or is authorized to do so by law or a court
order.
2. Comment 8 – only applies where the lawyer has actual
knowledge of the representation, but such knowledge can
be inferred from the circumstances
3. 4.2 applies whether the lawyer or represented person
initiates the conversation
ii. Unrepresented Person
1. 4.3: A lawyer SHALL not state or imply that the lawyer is
disinterested.
a. When the lawyer knows or reasonably should know
that the unrepresented person misunderstands the
lawyer’s role in the matter, the lawyer SHALL
make reasonable efforts to correct the
misunderstanding.
b. The lawyer SHALL not give legal advice to an
unrepresented person, other than the advice to
secure counsel, if the lawyer knows or reasonably
should know that the interests of such a person are
or have a reasonable possibility of being in conflict
with the interests of the client.
2. Comment 4: Parties to a matter MAY communicate directly
with each other, and a lawyer is not prohibited from
advising a client concerning a communication that the
client is legally entitled to make.
3. However, if a lawyer cannot do something ethically, then
the lawyer cannot assist or induce his client to do so either.
MR 8.4(a).
4. If the opposing party contacts you directly – 4.2 – you have
to tell them you can’t discuss it and to have their lawyer
contact you
Rules to Print Out:
 8.1 – Bar Admission and Disciplinary Matters
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:
 (a) knowingly make a false statement of material fact; or
 (b) 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 Pleading the Fifth in response to a question will usually result in inquiry
and continued asking until they probably deny you – not a good option
 8.4 – Maintaining the Integrity of the Profession (what can justify professional
discipline)
o It is professional misconduct for a lawyer to:
 (a) 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;
 (b) commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
 (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; (CATCH ALL)
 (d) engage in conduct that is prejudicial to the administration of
justice;
 (e) 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; or
 (f) knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law.
 8.3: Reporting Professional Misconduct
o (a) A lawyer who knows that another lawyer has committed a violation of
the Rules of Professional Conduct that raises a substantial question as to
that lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects, SHALL inform the appropriate professional authority.
 Objective standard – would a reasonable person have known that
this had happened?
o (b) A lawyer who knows that a judge has committed a violation of
applicable rules of judicial conduct that raises a substantial question as to
the judge's fitness for office SHALL inform the appropriate authority.
o (c) This Rule does not require disclosure of information otherwise
protected by Rule 1.6 or information gained by a lawyer or judge while
participating in an approved lawyers assistance program.
 5.1: Responsibilities of Partners, Managers and Supervisory Lawyers
 o (a) Lawyers with managerial authority within a firm must make and
establish internal compliance policies and procedures.
o (b) A lawyer having direct supervisory authority over another lawyer must
make reasonable efforts to ensure that the other lawyer conforms to the
Rules.
o (c) Lawyers are responsible for a subordinate’s violation if they order or
ratify the conduct or have direct supervisory authority and know of the
conduct but fail to take remedial action.
 5.2: Responsibilities of a Subordinate Lawyer
o (a) A lawyer is bound by the Rules notwithstanding that the lawyer acted
at the direction of another person.
o (b) A subordinate lawyer does not violate the Rules that lawyer acts in
accordance with a supervisory lawyer’s reasonable resolution of an
arguable question of professional duty.
 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 Comment 5: Competent handling of a particular matter includes inquiry
into and analysis of the factual and legal elements of the problem, and use
of methods and procedures meeting the standards of competent
practitioners. It also includes adequate preparation. The required attention
and preparation are determined in part by what is at stake…
o Comment 2: provides that an inexperienced lawyer can associate with an
experienced lawyer and/or otherwise get up to speed in order to provide
competent representation.
 1.6: Confidentiality of Information
o (a) A lawyer SHALL not reveal information relating to the representation
of a client unless the client gives informed consent, the disclosure is
impliedly authorized in order to carry out the representation or the
disclosure is permitted by paragraph (b).
o (b) A lawyer MAY reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary:
 (1) to prevent reasonably certain death or substantial bodily harm;
 (2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the
client has used or is using the lawyer's services; (plans to commit)
 (3) to prevent, mitigate or rectify substantial injury to the
financial interests or property of another that is reasonably certain
to result or has resulted from the client's commission of a crime or
fraud in furtherance of which the client has used the lawyer's
services; (committed in the past)
  For 2 & 3: There must be a “reasonable certainty” that the
client’s conduct will result in “substantial” financial or
property injury
 The client is/has used the lawyer’s services in committing
the act
 The purpose of revealing is to prevent the crime or fraud or
to prevent, mitigate or rectify harm resulting therefrom
(examples pg 194)
 (4) to secure legal advice about the lawyer's compliance with these
Rules;
 (5) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer's
representation of the client; or
 (6) to comply with other law or a court order.
o Even if one of these exceptions apply, you can only reveal what is
necessary to comply with the exception
o Comment 3: The confidentiality rule…applies not only to matters
communicated in confidence by the client but also to all information
relating to the representation, whatever its source.
o Comment 4: Paragraph (a) prohibits a lawyer from revealing information
relating to the representation of a client. This prohibition also applies to
disclosures by a lawyer that do not in themselves reveal protected
information but could reasonably lead to the discovery of such
information by a third person. A lawyer's use of a hypothetical to discuss
issues relating to the representation is permissible so long as there is
no reasonable likelihood that the listener will be able to ascertain the
identity of the client or the situation involved.
o Comment 18/MR 1.9(c) – confidentiality obligations endure even after
representation ends
o Comment 6: (b)(1) recognizes the overriding value of life and physical
integrity and permits disclosure reasonably necessary to prevent
reasonably certain death or substantial bodily harm.
 Reasonably certain to occur: If it will be suffered imminently or if
there is a present and substantial threat that a person will suffer
such harm at a later date if the lawyer fails to take action necessary
to eliminate the threat.
 1.2(d): A lawyer SHALL not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent.
o Comment 10: The lawyer is required to avoid assisting the client, for
example, by drafting or delivering documents that the lawyer knows are
fraudulent or by suggesting how the wrongdoing might be concealed. A
lawyer MAY not continue assisting a client in conduct that the lawyer
 originally supposed was legally proper but then discovers is criminal or
fraudulent.
o Omissions and half truths can constitute fraud if they are intended to
deceive
o A lawyer MAY contractually limit the scope of the representation under
1.2 if “the limitation is reasonable under the circumstances and the client
gives informed consent”
o Comment 2: On occasion, however, a lawyer and a client MAY disagree
about the means to be used to accomplish the client's objectives. Clients
normally defer to the special knowledge and skill of their lawyer with
respect to the means to be used to accomplish their objectives, particularly
with respect to technical, legal and tactical matters. Conversely, lawyers
usually defer to the client regarding such questions as the expense to be
incurred and concern for third persons who might be adversely affected.
Because of the varied nature of the matters about which a lawyer and
client might disagree and because the actions in question MAY implicate
the interests of a tribunal or other persons, this Rule does not prescribe
how such disagreements are to be resolved. Other law, however, MAY
be applicable and should be consulted by the lawyer. The lawyer should
also consult with the client and seek a mutually acceptable resolution of
the disagreement. If such efforts are unavailing and the lawyer has a
fundamental disagreement with the client, the lawyer MAY withdraw
from the representation. See Rule 1.16(b)(4). Conversely, the client MAY
resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).
 4.1(b)
o In the course of representing a client a lawyer SHALL not knowingly fail
to disclose a material fact to a third person when disclosure is necessary to
avoid assisting a criminal or fraudulent act by a client, unless disclosure is
prohibited by MR 1.6.
o Comment 3: explains that if a lawyer can avoid assisting a client’s crime
or fraud under substantive law only by disclosing the information, then
under 4.1(b) the lawyer is required to do so.
o Note: the ethics rules do not give lawyers protection from civil or criminal
liability if they fail to reveal the client fraud (only professional).
 1.8(a):
o (a) A lawyer SHALL not enter into a business transaction with a client or
knowingly acquire an ownership, possessory, security or other pecuniary
interest adverse to a client unless:
 (1) the transaction and terms on which the lawyer acquires the
interest are fair and reasonable to the client and are fully
disclosed and transmitted in writing in a manner that can be
reasonably understood by the client;
 (2) the client is advised in writing of the desirability of seeking
and is given a reasonable opportunity to seek the advice of
independent legal counsel on the transaction; and
  (3) the client gives informed consent, in a writing signed by the
client, to the essential terms of the transaction and the lawyer's role
in the transaction, including whether the lawyer is representing the
client in the transaction.
o Comment 1: 1.8(a) does not apply as long as it is a standard commercial
transaction
 1.8(b):
o A lawyer SHALL not use information relating to representation of a client
to the disadvantage of the client unless the client gives informed consent,
except as permitted or required by these Rules.
o A lawyer MAY use information relating to the representation of a client
without his/her consent, so long as it is not to the disadvantage of the
client.
o Comment 5: Paragraph (b) applies when the information is used to benefit
either the lawyer or a third person, such as another client or business
associate of the lawyer. For example, if a lawyer learns that a client
intends to purchase and develop several parcels of land, the lawyer MAY
not use that information to purchase one of the parcels in competition with
the client or to recommend that another client make such a purchase. The
Rule does not prohibit uses that do not disadvantage the client…
o However, if the client is truly not being disadvantaged, it is best for the
lawyer to obtain the client’s consent because the burden of proving
absence of disadvantage will fall on the lawyer.
 1.8(c):
o A lawyer SHALL not solicit any substantial gift from a client, including
a testamentary gift, or prepare on behalf of a client an instrument giving
the lawyer or a person related to the lawyer any substantial gift unless the
lawyer or other recipient of the gift is related to the client. For purposes
of this paragraph, related persons include a spouse, child, grandchild,
parent, grandparent or other relative or individual with whom the lawyer
or the client maintains a close, familial relationship.
 1.8(h):
o (h) A lawyer SHALL not:
 (1) make an agreement prospectively limiting the lawyer's liability
to a client for malpractice unless the client is independently
represented in making the agreement; or
 (2) settle a claim or potential claim for such liability with an
unrepresented client or former client unless that person is advised
in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel in
connection therewith.
 1.8(j): Sexual Relationship
o A lawyer SHALL not have sexual relations with a client unless a
consensual sexual relationship existed between them when the client-
lawyer relationship commenced.
 o Comment 17: “Because of the significant danger of harm to client interests
and because the client's own emotional involvement renders it unlikely
that the client could give adequate informed consent, this Rule prohibits
the lawyer from having sexual relations with a client regardless of whether
the relationship is consensual and regardless of the absence of prejudice to
the client.”
 1.13:
o (b) If a lawyer for an organization knows that an officer, employee or
other person associated with the organization is engaged in action, intends
to act or refuses to act in a matter related to the representation that is a
violation of a legal obligation to the organization, or a violation of law
that reasonably might be imputed to the organization, and that is
likely to result in substantial injury to the organization, then the
lawyer SHALL proceed as is reasonably necessary in the best interest of
the organization.
o Unless the lawyer reasonably believes that it is not necessary in the best
interest of the organization to do so, the lawyer SHALL refer the matter
to higher authority in the organization, including, if warranted by the
circumstances to the highest authority that can act on behalf of the
organization as determined by applicable law.
o 1.13(a) Comment 1– in the corporate setting the lawyer’s client is the
corporation
o Comment 4: In determining how to proceed under paragraph (b), the
lawyer should give due consideration to the seriousness of the violation
and its consequences, the responsibility in the organization and the
apparent motivation of the person involved, the policies of the
organization concerning such matters, and any other relevant
considerations. Ordinarily, referral to a higher authority would be
necessary.
o (c) Except as provided in paragraph (d), if
 (1) despite the lawyer's efforts in accordance with paragraph (b)
the highest authority that can act on behalf of the organization
insists upon or fails to address in a timely and appropriate manner
an action, or a refusal to act, that is clearly a violation of law, and
 (2) the lawyer reasonably believes that the violation is reasonably
certain to result in substantial injury to the organization,
 then the lawyer MAY reveal information relating to the
representation whether or not Rule 1.6 permits such disclosure, but
only if and to the extent the lawyer reasonably believes necessary
to prevent substantial injury to the organization.
 1.18: Duties to Prospective Clients
o (a) A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective client.
o (b) Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client SHALL not use or reveal information
 learned in the consultation, except as Rule 1.9 would permit with respect
to information of a former client.
o (c) A lawyer subject to paragraph (b) SHALL not represent a client with
interests materially adverse to those of a prospective client IF:
 It’s in the same or substantially related matter AND
 The lawyer received information from the prospective client that
could be significantly harmful, unless
 Both affected and prospective client give informed consent OR
 (i) Disqualified lawyer took reasonable measures to avoid exposure
to unnecessary disqualifying information, (ii) the disqualified
lawyer is timely screened AND (iii) written notice is promptly
given to the prospective client
o (d) When the lawyer has received disqualifying information as defined in
paragraph (c), representation is permissible if:
 (1) both the affected client and the prospective client have given
informed consent, confirmed in writing, or:
 (2) the lawyer who received the information took reasonable
measures to avoid exposure to more disqualifying information than
was reasonably necessary to determine whether to represent the
prospective client; and
 (i) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the
fee therefrom; and
 (ii) written notice is promptly given to the prospective
client.
o Comment 2: Not all persons who communicate information to a lawyer
are entitled to protection under this Rule. A person who communicates
information unilaterally to a lawyer, without any reasonable
expectation that the lawyer is willing to discuss the possibility of forming
a client-lawyer relationship, is not a "prospective client" within the
meaning of paragraph (a).
 1.3:
o A lawyer SHALL act with reasonable diligence and promptness in
representing a client.
o This duty is violated if the lawyer fails to return phone calls or file court
papers on time or otherwise procrastinates. The opposite of diligence is
neglect! It is the basis for many disciplinary complaints.
o Comment 1: A lawyer should pursue a matter on behalf of a client despite
opposition, obstruction or person inconvenience to the lawyer, and take
whatever lawful and ethical measures are required to vindicate a client's
cause or endeavor… A lawyer is not bound, however, to press for every
advantage that might be realized for a client.
o Comment 2 – requires a lawyer to control his or her workload such that
the lawyer is able to pay adequate attention to all of his or her matters
o Comment 4 – Doubt about whether a client-lawyer relationship still exists
should be clarified by the lawyer, preferably in writing, so that the client
 will not mistakenly suppose the lawyer is looking after the client’s affairs
when the lawyer has ceased to do so
 3.3: Candor Toward the Tribunal – you can’t life to the court, can’t conceal, can’t
falsify
o (a) A lawyer SHALL not knowingly:
 (1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to
the tribunal by the lawyer;
 (2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
 (3) offer evidence that the lawyer knows to be false. If a lawyer,
the lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the
lawyer SHALL take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer MAY refuse to offer
evidence, other than the testimony of a defendant in a criminal
matter, that the lawyer reasonably believes is false.
o (b) A lawyer who represents a client in an adjudicative proceeding and
who knows that a person intends to engage, is engaging or has engaged in
criminal or fraudulent conduct related to the proceeding SHALL take
reasonable remedial measures, including, if necessary, disclosure to the
tribunal.
o (c) The duties stated in paragraphs (a) and (b) continue to the conclusion
of the proceeding, and apply even if compliance requires disclosure of
information otherwise protected by Rule 1.6.
o (d) In an ex parte proceeding, a lawyer SHALL inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to make an
informed decision, whether or not the facts are adverse.
 4.1: Truthfulness in Statements to Others
o In the course of representing a client a lawyer SHALL not knowingly:
 (a) make a false statement of material fact or law to a third person;
or
 (b) fail to disclose a material fact to a third person when disclosure
is necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by Rule 1.6.
 2.1: Advisor.
o In representing a client, a lawyer SHALL exercise independent
professional judgment and render candid advice. In rendering advice, a
lawyer MAY refer not only to law but to other considerations such as
moral, economic, social and political factors, that MAY be relevant to the
client’s situation
o Comment 1: A client is entitled to straightforward advice expressing the
lawyer’s honest assessment. Legal advice often involves unpleasant
facts and alternatives that a client MAY be disinclined to confront, In
presenting advice, a lawyer endeavors to sustain the client’s morale and
 MAY put advice in as acceptable a form as honesty permits. However, a
lawyer should not be deterred from giving candid advice by the
prospect that the advice will be unpalatable to the client.
 1.4:
o (a) A lawyer SHALL:
 (1) promptly inform the client of any decision or circumstance with
respect to which the client's informed consent, as defined in Rule
1.0(e), is required by these Rules;
 (2) reasonably consult with the client about the means by which
the client's objectives are to be accomplished;
 (3) keep the client reasonably informed about the status of the
matter;
 (4) promptly comply with reasonable requests for information; and
 (5) consult with the client about any relevant limitation on the
lawyer's conduct when the lawyer knows that the client expects
assistance not permitted by the Rules of Professional Conduct or
other law.
o (b) A lawyer SHALL explain a matter to the extent reasonably necessary
to permit the client to make informed decisions regarding the
representation.
 1.16(a): Declining or Terminating Representation
o (a) a lawyer SHALL withdraw from the representation of a client if:
 (1) the representation will result in violation of the rules of
professional conduct or other law;
 Conflicts of interest; uncorrected client fraud
 (2) the lawyer’s physical or mental condition materially impairs
the lawyer’s ability to represent the client; or
 (3) the lawyer is discharged.
 Comment 4 - A client can fire lawyer for any reason at any
time (with only obligation to pay for outstanding work).
o (b) Except as stated in paragraph (c), a lawyer MAY withdraw from
representing a client if:
 (1) withdrawal can be accomplished without material adverse
effect on the interests of the client
 (2) the client persists in a course of action involving the lawyer’s
services that the lawyer reasonably believes is criminal or
fraudulent
 the client has used the lawyer’s services to perpetrate a crime or
fraud
 (4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental
disagreement
 (5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is
fulfilled
  (6) the representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably difficult
by the client; or
 (7) other good cause for withdrawal exists
o (c) A lawyer must comply with applicable law requiring notice to or
permission of a tribunal when terminating a representation. When ordered
to do so by a tribunal, a lawyer SHALL continue representation
notwithstanding good cause for terminating the representation.
o (d) Upon termination of representation, a lawyer SHALL take steps to the
extent reasonably practicable to protect a client's interests, such as giving
reasonable notice to the client, allowing time for employment of other
counsel, surrendering papers and property to which the client is entitled
and refunding any advance payment of fee or expense that has not been
earned or incurred. The lawyer MAY retain papers relating to the client to
the extent permitted by other law.
 Comment 9: “Even if the lawyer has been unfairly discharged by
the client, a lawyer must take all reasonable steps to mitigate the
consequences to the client. The lawyer MAY retain papers as
security for a fee only to the extent permitted by law.”
 1.7 Conflict Of Interest: Current Clients
o (a) Except as provided in paragraph (b), a lawyer SHALL not represent a
client if the representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:
 (1) the representation of one client will be directly adverse to
another client; or
 (2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to
another client, a former client or a third person or by a personal
interest of the lawyer.
o (b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer MAY represent a client if:
 (1) the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected
client;
 (2) the representation is not prohibited by law;
 (3) the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in the
same litigation or other proceeding before a tribunal; AND
 (4) each affected client gives informed consent, confirmed in
writing.
o Comment 6: The client as to whom the representation is directly adverse is
likely to feel betrayed, and the resulting damage to the client-lawyer
relationship is likely to impair the lawyer's ability to represent the client
effectively. In addition, the client on whose behalf the adverse
representation is undertaken reasonably MAY fear that the lawyer will
pursue that client's case less effectively out of deference to the other client,
 i.e., that the representation MAY be materially limited by the lawyer's
interest in retaining the current client. 
o Comment 8: Even where there is no direct adverseness, a conflict of
interest exists if there is a significant risk that a lawyer's ability to
consider, recommend or carry out an appropriate course of action for the
client will be materially limited as a result of the lawyer's other
responsibilities or interests. 
o Comment 23:
 Paragraph (b)(3) prohibits representation of opposing parties in the
same litigation, regardless of the clients' consent.
 On the other hand, simultaneous representation of parties whose
interests in litigation MAY conflict, such as coplaintiffs or
codefendants, is governed by paragraph (a)(2) [i.e. material
limitation]. What kinds of conflicts could exist?.
 The potential for conflict of interest in representing multiple
defendants in a criminal case is so grave that ordinarily a
lawyer should decline to represent more than one codefendant.
 On the other hand, common representation of persons having
similar interests in civil litigation is proper if the requirements of
paragraph (b) are met.
o Comment 31: [C]ontinued common representation will almost certainly be
inadequate if one client asks the lawyer not to disclose to the other client
information relevant to the common representation. This is so because the
lawyer has an equal duty of loyalty to each client, and each client has the
right to be informed of anything bearing on the representation that might
affect that client's interests and the right to expect that the lawyer will use
that information to that client's benefit. See Rule 1.4. The lawyer should,
at the outset of the common representation and as part of the process of
obtaining each client's informed consent, advise each client that
information will be shared and that the lawyer will have to withdraw if
one client decides that some matter material to the representation should
be kept from the other.
o Comment 24: Ordinarily a lawyer MAY take inconsistent legal positions
in different tribunals at different times on behalf of different clients.
 The mere fact that advocating a legal position on behalf of one
client might create precedent adverse to the interests of a client
represented by the lawyer in an unrelated matter does not create a
conflict of interest.
 A conflict of interest exists if there is a significant risk that a
lawyer's action on behalf of one client will materially limit the
lawyer's effectiveness in representing another client in a different
case.
 For example, when a decision favoring one client will
create a precedent likely to seriously weaken the position
taken on behalf of the other client.
  If there is significant risk of material limitation, then absent
informed consent of the affected clients, the lawyer must refuse
one of the representations or withdraw from one or both matters.
o Comment 11: When lawyers representing different clients in the same
matter or in substantially related matters are closely related by blood or
marriage, there MAY be a significant risk that client confidences will be
revealed and that the lawyer's family relationship will interfere with both
loyalty and independent professional judgment. As a result, each client is
entitled to know of the existence and implications of the relationship
between the lawyers before the lawyer agrees to undertake the
representation. Thus, a lawyer related to another lawyer, e.g., as parent,
child, sibling or spouse, ordinarily MAY not represent a client in a matter
where that lawyer is representing another party, unless each client gives
informed consent. The disqualification arising from a close family
relationship is personal and ordinarily is not imputed to members of firms
with whom the lawyers are associated. See Rule 1.10.
 1.10: Imputation of Conflicts of Interest: General Rule
o (a) While lawyers are associated in a firm, none of them SHALL
knowingly represent a client when any one of them practicing alone would
be prohibited from doing so by Rules 1.7 unless
 (1) the prohibition is based on a personal interest of the
disqualified lawyer and does not present a significant risk of
materially limiting the representation of the client by the remaining
lawyers in the firm, OR
 (2) the prohibition is based upon Rule 1.9(a) or (b) and arises out
of the disqualifies lawyer’s association with a prior firm, and
[proper screening is implemented]
 A 1.9 conflict will not be imputed (and no client informed consent
under 1.7 is required) if:
 (i) ) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the
fee therefrom;
 (ii) written notice is promptly given to any affected former
client to enable the former client to ascertain compliance
with the provisions of this Rule…; and
 (iii) certifications of compliance with these Rules and
with the screening procedures are provided to the former
client by the screened lawyer and by a partner of the firm,
at reasonable intervals upon the former client's written
request and upon termination of the screening procedures.
o (b) When a lawyer has terminated an association with a firm, the firm is
not prohibited from thereafter representing a person with interests
materially adverse to those of a client represented by the formerly
associated lawyer and not currently represented by the firm, unless:
 (1) the matter is the same or substantially related to that in
which the formerly associated lawyer represented the client; and
  (2) any lawyer remaining in the firm has information protected
by Rules 1.6 and 1.9(c) that is material to the matter.
o (c) A disqualification prescribed by this rule MAY be waived by the
affected client under the conditions stated in Rule 1.7.
o Comment 1: the term “firm” denotes lawyers in a law partnership,
professional corporation, sole proprietorship or other association
authorized to practice law; or lawyers employed in a legal services
organization or the legal department of a corporation or other
organization.
o Comment 2: These rules should be considered from the premise that “a
firm of lawyers is essentially one lawyer for purposes of the rules
governing loyalty to the client, or from the premise that each lawyer is
vicariously bound by the obligation of loyalty owed by each lawyer with
whom the lawyer is associated.”
o Comment 4: The rule in paragraph (a) also does not prohibit
representation by others in the law firm where the person prohibited
from involvement in a matter is a nonlawyer, such as a paralegal or
legal secretary. Nor does paragraph (a) prohibit representation if the
lawyer is prohibited from acting because of events before the person
became a lawyer, for example, work that the person did as a law student.
Such persons, however, ordinarily must be screened from any personal
participation in the matter to avoid communication to others in the firm of
confidential information that both the nonlawyers and the firm have a
legal duty to protect.
 1.9: Duties to Former Clients
o (a) A lawyer who has formerly represented a client in a matter SHALL not
thereafter represent another person in the same or a substantially related
matter in which that person's interests are materially adverse to the
interests of the former client unless the former client gives informed
consent, confirmed in writing.
o (b) A lawyer SHALL not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client
 (1) whose interests are materially adverse to that person; and
 (2) about whom the lawyer had acquired information protected
by Rules 1.6 and 1.9(c) that is material to the matter;
 unless the former client gives informed consent, confirmed in
writing.
o (c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter
SHALL not thereafter:
 (1) use information relating to the representation to the
disadvantage of the former client except as these Rules would
permit or require with respect to a client, or when the information
has become generally known; or
  (2) reveal information relating to the representation except as
these Rules would permit or require with respect to a client.
o Comment 3: Matters are "substantially related" for purposes of this Rule if
they involve the same transaction or legal dispute or if there otherwise is a
substantial risk that confidential factual information as would normally
have been obtained in the prior representation would materially advance
the client's position in the subsequent matter. Information that has been
disclosed to the public or to other parties adverse to the former client
ordinarily will not be disqualifying. Information acquired in a prior
representation MAY have been rendered obsolete by the passage of time, a
circumstance that MAY be relevant in determining whether two
representations are substantially related.
 1.0(k)
o "Screened" denotes the isolation of a lawyer from any participation in a
matter through the timely imposition of procedures within a firm that are
reasonably adequate under the circumstances to protect information that
the isolated lawyer is obligated to protect under these Rules or other law.
 1.5: Fees
o A lawyer SHALL not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to
be considered in determining the reasonableness of a fee include the
following:
 (1)the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
 (2) the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer;
 (3) the fee customarily charged in the locality for similar legal
services;
 (4) the amount involved and the results obtained;
 (5) the time limitations imposed by the client or by the
circumstances;
 (6) the nature and length of the professional relationship with the
client;
 (7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
 (8) whether the fee is fixed or contingent.
o Comment 1: A lawyer MAY seek reimbursement for the cost of services
performed in house, such as copying, or for other expenses incurred in
house, such as telephone charges, either by charging a reasonable amount
to which the client has agreed in advance or by charging an amount that
reasonably reflects the cost incurred by the lawyer
 6.1: Pro Bono
o Encouraging delivery of legal services at no fee or substantially reduced
fee to those unable to pay full fees
 1.15: Safekeeping Client’s Property
o (a) A lawyer SHALL hold property of clients or third persons that is in a
lawyer's possession in connection with a representation separate from the
lawyer’s own property. Funds SHALL be kept in a separate account
maintained in the state where the lawyer’s office is situated, or elsewhere
with the consent of the client or third person. Other property SHALL be
identified as such and appropriately safeguarded. Complete records of
such account funds and other property SHALL be kept by the lawyer and
SHALL be preserved for a period of [five years] after termination of the
representation.
o (b) A lawyer MAY deposit the lawyer’s own funds in a client trust
account for the sole purpose of paying bank service charges on that
account, but only in an amount necessary for that purpose.
o (c) A lawyer SHALL deposit into a client trust account legal fees and
expenses that have been paid in advance, to be withdrawn by the lawyer
only as fees are earned or expenses incurred.
 3.4: Fairness to Opposing Party and Counsel
o A lawyer SHALL not
 (a) unlawfully obstruct another party' s access to evidence or
unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer SHALL not
counsel or assist another person to do any such act;
 (b) falsify evidence, counsel or assist a witness to testify falsely,
or offer an inducement to a witness that is prohibited by law; …
 (e) in trial, allude to any matter that the lawyer does not
reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue
except when testifying as a witness, or state a personal opinion as
to the justness of a cause, the credibility of a witness, the
culpability of a civil litigant or the guilt or innocence of an
accused; or …
 4.1(a) Negotiation
I. In the course of representing a client a lawyer SHALL not knowingly
make a false statement of material fact or law to a third person
J. Comment 2 – statements of fact, whether a particular statement should
be regarded as one of fact can depend on the circumstances
o Under generally accepted conventions in negotiation, certain types of
statements ordinarily are not taken as statements of material fact.
Estimates of price or value placed on the subject of a transaction and a
party’s intentions as to an acceptable settlement of a claim are ordinarily
in this category, and so is the existence of an undisclosed principal
except where nondisclosure of the principal would constitute fraud.
 4.4(b) Inadvertent Communications
o A lawyer who receives a document relating to the representation of the
lawyer’s client and knows or reasonably should know that the document
was inadvertently sent SHALL promptly notify the sender.
 o Comments 2 and 3: Whether the lawyer is required to take additional
steps, such as returning the original document, is a matter of law beyond
the scope of these Rules…Some lawyers MAY choose to return a
document unread… Where a lawyer is not required by applicable law to
do so, the decision to voluntarily return such a document is a matter of
professional judgment ordinarily reserved to the lawyer.
 4.2: Contact with Represented Persons
o In representing a client, a lawyer SHALL not communicate about the
subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court
order.
o Comment 8: only applies where the lawyer knows – actual knowledge
required, but such knowledge can be inferred from the circumstances
o Comment 4: Parties to a matter MAY communicate directly with each
other, and a lawyer is not prohibited from advising a client concerning a
communication that the client is legally entitled to make (but the lawyer
can’t induce his client to do so)
 4.3: Contact with Unrepresented Persons
o In dealing on behalf of a client with a person who is not represented by
counsel –
 A lawyer SHALL not state or imply that the lawyer is
disinterested.
 When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer’s role in the
matter, the lawyer SHALL make reasonable efforts to correct the
misunderstanding.
 The lawyer SHALL not give legal advice to an unrepresented
person, other than the advice to secure counsel, if the lawyer
knows or reasonably should know that the interests of such a
person are or have a reasonable possibility of being in conflict with
the interests of the client.
o