Professionalism/MPRE 2

Judge: Disinterested Legal Experts

A judge may obtain the written advice of a disinterested expert on the applicable law, provided that the judge gives advance notice to the parties of the expert's identity and the subject matter of the advice to be solicited, and gives the parties a reasonable opportunity to object and respond to the notice and the advice. [CJC Rule 2.9(A)(2)]

Judge: Independent Investigation of Facts

A judge must not independently investigate the facts in a case and must consider only the evidence presented. [CJC Rule 2.9(C)] This prohibition extends to information available in all mediums, including electronic research (e.g., Internet research). [CJC Rule 2.9, comment 6] Example: Judge U took a case under submission. While reading the transcript and pondering her decision, she became puzzled about the testimony of witness W. To save time and effort, Judge U simply telephoned W and asked him to clarify the point that puzzled her. Judge U's conduct is improper.

Judge and Ex Parte Communications

A judge must not initiate, permit, or consider ex parte communications except in these three situations: a. Expressly Authorized by Law A judge may have ex parte communications when expressly authorized by law [CJC Rule 2.9(A)(5)], which is defined to include court rules and decisional law, as well as constitutional and statutory law. [CJC, Terminology] Some communications authorized by law occur in conjunction with a judge's service on certain "specialized" courts, such as drug courts or mental health courts. Judges serving on such courts may have to assume a more interactive role with parties, treatment providers, probation officers, and social workers. [CJC Rule 2.9, comment 4] b. Mediation or Settlement With the consent of the parties, the judge may confer separately with the parties and their lawyers in an effort to settle or mediate a pending matter. [CJC Rule 2.9(A)(4)] c. Emergencies or Administrative Matters In other situations, the judge may have an ex parte communication only if all four of the following conditions are met: (i) The circumstances require the judge to communicate with one side only (if the other side cannot be reached); (ii) The communication concerns an emergency or a scheduling or administrative matter as distinct from a substantive matter or matter affecting the merits; (iii) The judge believes that no party will gain a procedural, substantive, or tactical advantage from the communication; and (iv) The judge notifies the lawyers for the other parties of the essence of the communication and gives them an opportunity to respond. d. Inadvertent Receipt of Unauthorized Ex Parte Communication If a judge inadvertently receives an unauthorized ex parte communication that relates to substantive matters, she must make provision promptly to notify the parties of the substance of the communication and give them an opportunity to respond. [CJC Rule 2.9(B)]

Judge: Decorum, Demeanor, and Communication with Jurors

A judge must require order and decorum in court proceedings. With regard to persons with whom the judge deals in an official capacity (e.g., litigants, jurors, witnesses, lawyers, court staff, and court officials), a judge must be patient, dignified, and courteous, and must require similar conduct of others subject to his control. A judge must not commend or criticize jurors for their verdict other than in a court order or opinion. [CJC Rule 2.8] Example: After the jury came in with a multimillion-dollar verdict for the plaintiff, Judge X told the jurors: "Apparently you people just didn't understand what was going on in this case." Judge X then issued a court order setting aside the jury verdict and ordering a new trial. Judge X's order was proper, but his comment to the jury was not.

ADVERTISING: BASIC RULE

A lawyer is subject to discipline for any type of communication about the lawyer or the lawyer's services that is false or misleading. [ABA Model Rule 7.1] This rule applies to all kinds of communications, including advertisements, personal communications, office signs, professional cards, professional announcements, letterheads, brochures, letters sent by post or e-mail, and recorded telephone messages. [See ABA Model Rule 7.1, comment 1]

General Rule: Membership in Legal Services Organization

A lawyer may serve as a director, officer, or member of a legal services organization (apart from the lawyer's regular employment) even though the organization serves persons whose interests are adverse to the lawyer's regular clients. [ABA Model Rule 6.3] This general rule s, however, subject to the limitations stated below. (i) The lawyer must not knowingly participate in a decision or action of the organization if doing so would be incompatible with the lawyer's obligations to a client under the general conflict of interest rules. [See ABA Model Rules 1.7, 6.3(a)] (ii) The lawyer must not knowingly participate in a decision or action of the organization if doing so would adversely affect the representation of one of the organization's clients whose interests are adverse to those of a client of the lawyer. [See ABA Model Rule 6.3(b)] Lawyer L is a member of the board of directors of the Cuttler County Legal Aid Society. The board sets guidelines for the kinds of cases the society will and will not handle. The society's budget has recently been cut, and the board is forced to revise the guidelines to eliminate some kinds of service. L is also a partner in the R, S & T firm, and that firm is outside general counsel to the Cuttler County Apartment Owners Association, a trade association for landlords. One proposal pending before the Legal Aid Society Board is to eliminate free legal service in landlord-tenant cases. L must not participate in this decision.

Failure to Disclose Material Facts—Client's Crime or Fraud

A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud—unless the lawyer is forbidden to do so by the ethical duty of confidentiality. [ABA Model Rule 4.1(b)] Under the ABA Model Rules view, where the duty of confidentiality prevents the lawyer from disclosing material facts, and where continued representation would require the lawyer to assist in the client's crime or fraud, the lawyer must withdraw. [See ABA Model Rules 1.16(a)(1), 1.2(d); ABA Formal Op. 92-366 (1992)] The lawyer may notify the affected third person of the withdrawal and may withdraw or disaffirm any opinion, document, or affirmation previously furnished in connection with the matter.

Restrictive Partnership and Employment Agreements

A lawyer must neither make nor offer a partnership or employment or similar agreement that restricts a lawyer's right to practice after termination of the relationship, except for an agreement concerning benefits upon retirement. [ABA Model Rule 5.6(a); Restatement §13] Such agreements not only limit a lawyer's autonomy but also limit the freedom of clients to choose a lawyer. Examples: 1) Oakville practitioner A employed young lawyer L by an agreement that purported to prohibit L from practicing in Oakville after leaving A's employment. Both A and L are subject to discipline. 2) Sixty-four-year-old solo practitioner S took young lawyer Y in as a partner.Their partnership agreement provided that after S retired, the firm would pay S a retirement benefit of $5,000 per month so long as S did not re-enter the practice of law. The agreement is proper.

Restrictive Settlement Agreements

A lawyer must neither make nor offer an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy. [ABA Model Rule 5.6(b); and see ABA Formal Op. 93-371 (1993)] Example: Over a period of several years, attorney A represented a series of federal employees in personal injury suits against the federal government concerning cancers allegedly caused by working in the Dos Arboles Radiation Laboratory. The government settled each suit as it came along, but the more suits the government settled, the more new plaintiffs A was able to find. Ultimately, the government offered to settle all then-pending suits for generous sums, provided that A would never again represent a claimant in a Dos Arboles Radiation case. If A agrees to settle on those terms, A will be subject to discipline. [See ABA Formal Op. 95-394 (1995)]

COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL

A lawyer must not communicate about a matter with a person the lawyer knows is represented by counsel, unless that person's counsel consents, or unless the law or a court order authorizes the communication. This is true even if the represented person initiates or consents to the communication. [ABA Model Rule 4.2; Restatement §99] 1) In the case of P v. D, the lawyer for D had excellent reason to believe that P's lawyer had failed to convey D's settlement offer to P. D's lawyer therefore telephoned P and made the settlement offer directly. D's lawyer is subject to discipline for communicating with a represented person without consent of that person's counsel. [ABA Formal Op. 92-362 (1992)] P's lawyer is also subject to discipline if he failed to convey D's settlement offer to P

Partnership with Nonlawyer to Practice Law Prohibited

A lawyer must not form a partnership with a nonlawyer if any part of the partnership activities will constitute the practice of law. [ABA Model Rule 5.4(b)] Distinguish this from ancillary services provided by a separate entity (see H., infra). Example: Family lawyer F formed a partnership with marital psychologist P; their purpose was to offer a full range of counseling and legal services to family clients. All of the legal work was done by F, and all of the other counseling was done by P—neither transgressed into the domain of the other. Nevertheless, F is subject to discipline because part of the partnership activity constitutes the practice of law.

Nonlawyer Involvement in Incorporated Firm or Other Association

A lawyer must not practice in an incorporated law firm or association authorized to practice law for profit if: (i) A nonlawyer owns any interest in the firm or association (but, when a lawyer dies, her estate may hold an interest during the administration of the estate); (ii) A nonlawyer is a corporate director or officer or the equivalent thereof; or (iii) A nonlawyer has the right to direct or control the professional judgment of a lawyer. [ABA Model Rule 5.4(d)] Example: M is a nonlawyer. She is the business manager of W, Y & U Ltd., an incorporated law firm. As business manager, she keeps the firm's calendar, does the firm's accounting, hires, fires, and supervises all of the firm's nonlawyer employees, procures all of the firm's supplies and equipment, and runs the firm's library. Despite M's central role in the firm's operations, M cannot become a stockholder in the firm.

Harassment Prohibited During Solicitation

A lawyer must not use "coercion, duress, or harassment" in solicitation. [ABA Model Rule 7.3(b)] Furthermore, the rule prohibits a lawyer from soliciting anyone who has "made known to the lawyer a desire not to be solicited by the lawyer." Example: Lawyer L obtained a mailing list of all persons who used a certain prescription drug that allegedly caused grave side effects. L sent personal letters to each person, offering to represent them for a fee in litigation against the drug manufacturer. C, one of the recipients of L's letters, telephoned L's office and told her that she did not want to sue anybody and did not want to hear further from L. L failed to remove C from the mailing list, so C received a series of follow-up letters, each urging C to join in litigation against the drug manufacturer. L is subject to discipline

POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT EMPLOYMENT

A lawyer or firm must not accept a government legal engagement (i.e., employment that a public official has the power to award) or an appointment by a judge if the lawyer or firm makes or solicits a political contribution for the purpose of obtaining such employment or appointment ("pay to play" contributions). [ABA Model Rule 7.6 and comment 1] 1. Prohibited Contributions This rule does not prohibit all political contributions by lawyers or firms—only those that would not have been made but for the desire to be considered for the employment or appointment. The circumstances of the contribution may indicate its purpose. Contributions that are substantial compared to contributions made by other lawyers or firms, are made for the benefit of an official who can award such work, and are followed by an award to the lawyer or firm support an inference that the contributions were for the purpose of obtaining the work. Other factors, such as a family or professional relationship with the judge or a desire to further a political, social, or economic interest, weigh against inferring a prohibited purpose. [ABA Model Rule 7.6, comment 5] 2. Excluded Employment Excluded from the ambit of the rule are: (i) uncompensated services; (ii) engagements or appointments made on the basis of experience, expertise, qualifications, and cost, following a process that is free from influence based on political contributions; and (iii) engagements or appointments made on a rotating basis from a list compiled without regard to political contributions. [ABA Model Rule 7.6, comment 3]

QUICK-ADVICE PROGRAMS

A lawyer-client relationship exists between the lawyer and the person who obtains the quick advice, but neither person expects the relationship to continue past the quickadvice stage. [ABA Model Rule 6.5, comment 1] A lawyer may participate in a quick-advice program sponsored by a court or nonprofit organization, subject to the following rules. 1. Client Consents to Short-Term, Limited Legal Service The lawyer must obtain the client's informed consent to the limited scope of the relationship. [ABA Model Rule 6.5, comment 2] If the lawyer's quick advice is not enough to set the client on the right track, the lawyer must advise the client to obtain further legal help. [Id.] 2.Conflict of Interest Rules Are Relaxed A lawyer who participates in a quick-advice program ordinarily has no time to conduct an ordinary conflict of interest check. Therefore, the general conflicts principles expressed in Rule 1.7 (current clients) and 1.9 (former clients) do not apply unless the lawyer actually knows that giving the quick advice creates a conflict of interest. [ABA Model Rule 6.5(a)(1)] As in other contexts, actual knowledge can be inferred from the circumstances. [ABA Model Rule 1.0(f)] 3.Imputed Conflict Rule Is Also Relaxed The rule of imputed conflicts of interest [ABA Model Rule 1.10] is also relaxed in a quickadvice situation. Therefore, a lawyer may dispense advice in a quick-advice program unless the lawyer actually knows that he is disqualified from doing so because of a conflict imputed from another lawyer in his firm. [ABA Model Rule 6.5(a)(2)] Conversely, a conflict created by advice a lawyer dispenses in a quick-advice program will not be imputed to others in the lawyer's firm. [ABA Model Rule 6.5(b)] 4.Conflicts Rules Apply Fully If Quick Advice Leads to Regular Representation If a person who has received quick advice from a lawyer then wants to hire that lawyer to render further service in the matter, the ordinary conflict of interest rules apply to that further service. [ABA Model Rule 6.5, comment 5]

False Misleading Ads and In-Person Solicitation

A state may flatly prohibit lawyer advertising that is false or misleading. [In re RMJ, 455 U.S. 191 (1982)] Similarly, a state may adopt prophylactic rules to forbid in-person solicitation for profit in circumstances that are likely to result in overreaching or misleading a layperson. [Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)] To prevent misleading commercial speech, the government may require commercial advertisers to make certain disclosures if such a requirement is not unduly burdensome and is reasonably related to the state's interest in preventing deception. Example: Attorneys who provide bankruptcy assistance to consumer debtors ("debt relief agencies") may be required to include in their advertisements certain information—e.g., statements identifying themselves as debt relief agencies and disclosing that the advertised services relate to bankruptcy relief and may result in the debtor's filing for bankruptcy. [Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2010)]

An ex parte communication is a communication between a judge and representative from one side of a matter when no representative from the other side is present. The Code of Judicial Conduct ("CJC") allows ex parte communications in limited circumstances if certain requirements are met. In which of the following circumstances is an ex parte communication NOT specifically permitted by the CJC? A When the communication is made in order to assist a pro se party B When the matter is administrative in nature C When the communication is made due to an emergency D When the judge confers separately with a party to mediate a pending matter and both parties consent

A. A judge may conduct ex parte communications in limited circumstances including: when the communications are expressly authorized by law; with the consent of the parties in an effort to mediate or settle a pending dispute; or in certain emergency or administrative matters. The CJC does not permit ex parte communications that are made in order to assist a pro se party.

Pursuant to the Code of Judicial Conduct ("CJC"), a judge is prohibited from holding membership in an organization that practices __________________. A "Invidious discrimination" B "Facially neutral discrimination" C "De facto discrimination" D "Content based discrimination"

A. A judge must not hold membership in an organization that practices invidious discrimination based on race, sex, gender, religion, national origin, ethnicity, or sexual orientation.

A client is engaging in fraud against a third party and the lawyer wants to avoid assisting the client in the fraud. Which statement describes the best course of action? A The lawyer must withdraw if disclosure to the third party is prohibited by the ethical duty of confidentiality B The lawyer must notify the court of the fraud and allow the court to address the matter C The lawyer must disclose the material facts to the third party D The lawyer has no duty to inform the third party of any material fact, even if the existing facts constitute a falsehood

A. A lawyer must disclose material facts to a third person when necessary to avoid assisting the client in a crime or fraud. However, the lawyer must withdraw if disclosure to the third party is prohibited by the ethical duty of confidentiality. It is not permissible for the lawyer to notify the court of the fraud and allow the court to address the matter, or to disclose the material facts to the third party. On the other hand, the lawyer does owe a duty to inform the third party, or to withdraw if he is prohibited from disclosing the matter.

When is a lawyer required to disclose to the court controlling law that is directly adverse to his client? A When it has not been disclosed by opposing counsel B Under all circumstances C Never, because doing so would destroy the lawyer's role as advocate

A. An attorney is subject to discipline for knowingly failing to disclose to the court a legal authority in the controlling jurisdiction that is directly adverse to the client's position and that has not been disclosed by the opposing counsel. The lawyer's role as advocate in this case would be satisfied by arguing why the controlling law should not be followed.

Does a lawyer who is a director of a legal services organization that provides services to the poor have a lawyer-client relationship with the persons served by the organization? A No, but a conflict of interest may arise if a person served by the organization becomes adverse to one of the lawyer's regular clients B Yes, there is always a lawyer-client relationship between the lawyer and the persons served by the legal organization C No, so there will be no conflict of interest if a person served by the organization becomes adverse to a regular client of the lawyer

A. Lawyers are encouraged to support and participate in legal services organizations—e.g., local legal aid societies that provide free legal assistance to underprivileged persons in civil matters. A director, officer, or member of such an organization does not have a lawyer-client relationship with persons served by the organization, but there can be potential conflicts between the interests of those persons and the interests of the lawyer's regular, paying clients.

A judge must avoid bias, prejudice, and harassment. According to the Code of Judicial Conduct ("CJC"), can a facial expression convey prejudice? A Yes, if it denigrates or shows hostility or aversion toward a person B No, facial expression alone is not sufficient to convey prejudice within the courtroom, but it may be considered if it is coupled with verbal or physical conduct C No, only verbal or physical conduct that denigrates or shows hostility or aversion toward a person conveys prejudice

A. Pursuant to the Code of Judicial Conduct ("CJC"), a judge must avoid bias, prejudice, and harassment and must require others (including lawyers) who are under the judge's direction and control to do likewise. A judge should be aware that facial expression and body language can convey prejudice as easily as words if it denigrates or shows hostility or aversion toward a person

In jurisdictions that have adopted the Code of Judicial Conduct ("CJC"), who is subject to it? A All persons who perform judicial functions B Federal and state judges only C All judges except retired judges, part time judges, and pro tempore part time judges D All persons performing judicial functions except magistrates, court commissioners, and referees

A. Where adopted, the CJC applies to all persons who perform judicial functions, including magistrates, court commissioners, referees, and special masters. Note that retired judges, part time judges, and pro tempore part time judges are exempted from some (but not all) provisions of the CJC

SALE OF LAW PRACTICE: WHEN PERMITTED

ABA Model Rule 1.17 permits the sale of a law practice or a field of law practice, including goodwill, under certain circumstances. Pursuant to this rule: (i) the seller must cease to engage in the private practice of law, or in the sold field of practice, in the area where the practice has been conducted; (ii) the entire practice, or the entire field of practice, must be sold to one or more lawyers or firms; and (iii) written notice must be given to the seller's clients regarding the sale, the clients' right to retain other counsel or to take possession of their files, and the fact that consent to the transfer of the clients' files will be presumed if a client takes no action within 90 days of receipt of the notice. If notice cannot be given to a client, a court order is required to authorize the transfer of the representation of that client to the purchaser. [ABA Model Rule 1.17(c)] Also, the seller must "exercise competence in identifying a purchaser qualified to assume the practice." [ABA Model Rule 1.17, comment 11]

Use of Agents to Solicit

ABA Model Rule 8.4(a) prohibits a lawyer from using an agent to do that which the lawyer must not do, e.g., violate a law or disciplinary rule. Thus, a lawyer must not use an agent (sometimes called a "runner" or "capper") to contact prospective clients in a manner that would violate ABA Model Rule 7.3

Targeted Direct-Mail Solicitations

Absent actual knowledge that the target of solicitation does not wish to receive communications from the lawyer, a lawyer is not prohibited from sending truthful, nondeceptive letters to persons known to face a specific legal problem. [ABA Model Rule 7.3

Selling Lawyer May Practice in Limited Circumstances

After the sale of his practice, a lawyer may still be employed as a lawyer on the staff of a public agency or legal services entity that provides legal services to the poor, or as in-house counsel to a business. [ABA Model Rule 1.17, comment 3] Additionally, a lawyer's return to private practice because of an unanticipated change in circumstances does not necessarily violate the Rules. [ABA Model Rule 1.17, comment 1]

Labeling Solicitations as Advertising

All written, electronic, or recorded communications with persons who are known to need specific legal services must include the words "Advertising Material." For written communications, this must appear on the outside of the envelope. Recorded and electronic communications must begin and end with such an announcement. [ABA Model Rule 7.3(c)] Communications with relatives, close friends, clients, former clients, and other lawyers are exempt from the labeling requirement. Furthermore, the requirement does not apply to a lawyer's professional announcements or responses to inquiries made by potential clients. [ABA Model Rule 7.3, comments 4 and 7]

Which of the following statements is true regarding a judge's participation in settlement talks? A A judge must not participate in settlement talks because her presence is inherently coercive B A judge may participate in settlement talks, but should consider relevant factors in determining whether it is appropriate C A judge may participate in settlement talks, but only if neither party is represented by counsel

B. judge may participate in settlement talks, though she must not act so as to coerce a party into settlement. It is important to keep in mind the possible effects of a judge's participation in settlement talks, i.e., the effects on the judge's views of the case as well as on the parties' perceptions if the judge retains the case following unsuccessful negotiations. It is incorrect to say that a judge's presence is inherently coercive. A judge may determine that she can appropriately participate in the discussions.Although whether parties are represented by counsel is a factor a judge may consider in determining whether she should participate in settlement talks, it is not a dispositive factor.

judge must disqualify himself from presiding over a matter in which _____________________. A The judge's impartiality has actually been questioned B The judge's impartiality might reasonably questioned C More than one litigant requests disqualification

B. A judge must disqualify himself in a proceeding in which the judge's impartiality might reasonably be questioned. In that situation, the judge must disqualify himself even if his impartiality has not actually been questioned. However, the rule employs a reasonableness standard; a far-fetched argument or litigant's whim is not sufficient to disqualify a judge, nor is it necessary just because more than one litigant requests disqualification.

Sometimes lawyers may enter into reciprocal referral arrangements, in which the lawyer and another person agree to refer clients to each other. Which of the following statements is true regarding reciprocal referral arrangements? A Such agreements are typically of an indefinite duration B The lawyer may enter into such an arrangement with a lawyer or a nonlawyer professional C The arrangement must be exclusive D The lawyer may only enter into such an arrangement with a lawyer, but not with a nonlawyer professional

B. A lawyer may set up a reciprocal referral arrangement with another lawyer OR with a nonlawyer professional. However, such a reciprocal arrangement: (i) Must not be an exclusive agreement, (ii) The referred client must be told about the arrangement, (iii) The agreement must not interfere with the lawyer's professional judgment as to making referrals or providing substantive legal services, and (iv) The agreement should not be of indefinite duration and should be reviewed periodically.

Which statement regarding a lawyer's communication with third parties is FALSE? A A lawyer generally has no duty to volunteer relevant facts B A lawyer must disclose any facts necessary to avoid assisting the client in committing a crime or fraud C A lawyer must not knowingly misrepresent the law to a third party D "Puffery" is generally allowed in communications with third parties

B. Although a lawyer may sometimes disclose facts to a third party to avoid assisting her client in committing a crime or fraud, she may not do so when disclosure is forbidden by the ethical duty of confidentiality. If the duty of confidentiality applies, the lawyer must withdraw from the case. The rest of the answer choices are true statements. When dealing on behalf of a client with a third person, a lawyer must not knowingly make a false statement of law or material fact. On the other hand, a lawyer generally has no duty to volunteer relevant facts. Puffery is generally allowed in communications with third parties because such statements ordinarily are not taken as statements of material fact.

A lawyer calls a local man accused of murder and offers to represent him free of charge. Under the rules regarding solicitation of clients, which of the following statements is true? A The lawyer acted improperly under the solicitation rules because such live telephone contact with potential clients is strictly prohibited B The lawyer could have properly instructed her agent to make the same telephone call C The lawyer acted properly because she did not visit the man in person

B. The rule prohibiting solicitation via personal contacts (in-person, live telephone, or real-time electronic contact) applies only when a lawyer is seeking pecuniary gain. Thus, even though it is true that a lawyer may not use her agent to do what the lawyer must not do under the solicitation rules, here the lawyer's conduct was proper because she was not seeing fee-paying work, so she could have properly instructed his agent to make the same telephone call. The lawyer's contact would have been proper even if she visited the man in person.

At the criminal sentencing stage, is a prosecutor required to disclose mitigating information known to the prosecutor? A Yes, but only if the mitigating information could not reasonably be discovered by the defense B Yes, unless relieved of this duty by a protective order from the court C No; after trial and during sentencing, the prosecution no longer has any obligation to inform the defense or court of any mitigating evidence D Yes; all information must be disclosed to the court and the court weighs the probative value versus any prejudicial effect

B. When a convicted person is to be sentenced, the prosecutor must disclose to the defense and to the court all unprivileged mitigating information known to the prosecutor, except when a protective order of the court relieves the prosecutor of this obligation). Whether the mitigating information could reasonably be discovered by the defense is irrelevant.

Judge Recommendation

Based on personal knowledge, a judge may act as a reference or provide a recommendation for someone. Such a communication may be on official letterhead if: (i) the judge 126. PROFESSIONAL RESPONSIBILITY PR-05-outline & DIVIDER-R.indd 126 12/14/2017 12:29:29 PM indicates that the reference is personal; and (ii) there is no likelihood that use of the letterhead would reasonably be perceived as an attempt to use the judicial office to exert pressure. [CJC Rule 1.3, comment 2] Examples: 1) When Judge B was stopped for a routine traffic violation, he imperiously informed the traffic officer: "I am a judge in this town, young man, and I don't take kindly to being stopped for petty reasons!" Judge B is subject to discipline.

When Regulation of Truthful, Nondeceptive Advertising Permitted

Because attorney advertising is commercial speech, regulation of it is subject to only intermediate, rather than strict, scrutiny. [Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)] Thus, this type of commercial speech may be regulated if the government satisfies a three-prong test: (i) The government must assert a substantial interest in support of its regulation; (ii) The government must demonstrate that the restriction on commercial speech directly and materially advances the interest; and (iii) The regulation must be narrowly drawn

Which of the following fee-sharing arrangements is prohibited? A Sharing a court-awarded fee with a nonprofit association that had hired the lawyer as counsel in the case B Paying a death benefit to the estate of a deceased law partner C Paying a paralegal half of the lawyer's fee in a case because the paralegal performed half of the work D Paying the purchase price of a deceased, disabled, or disappeared lawyer's practice to the practice's nonlawyer representative

C. A lawyer generally must not share her legal fee with a nonlawyer. However, a lawyer may: (i) Pay a death benefit to the estate of a deceased lawyer, (ii) Offer compensation and retirement plans to nonlawyer employees, (iii) Pay the purchase price of a deceased, disabled, or disappeared lawyer's practice to the practice's nonlawyer representative, and (iv) Share a court-awarded fee with a nonprofit organization that recommended or hired the lawyer as counsel. Giving half of a legal fee to a paralegal is a classic case of improper fee-sharing, even if the paralegal did half of the work in the matter. Of course, lawyers may pay nonlawyer employees a salary with money earned as legal fees, but the fees must not directly be shared.

An ex parte communication is a communication between a judge and representative from one side of a matter when no representative from the other side is present. Which of the following is NOT a condition that must be met in order for a judge to properly receive an ex parte communication in an administrative matter? A The judge subsequently notifies the lawyers of the essence of the communication and gives them an opportunity to respond B The circumstances require the judge to communicate with one side only because the other side cannot be reached C The communication concerns an important substantive issue in the case

C. A judge may have an ex parte communication relating to an emergency or administrative matter only if all four of the following conditions are met: (i) the circumstances require the judge to communicate with one side only (if the other side cannot be reached); (ii) the communication concerns an emergency or a scheduling or administrative matter as distinct from a substantive matter or matter affecting the merits; (iii) the judge believes that no party will gain a procedural, substantive, or tactical advantage from the communication; and (iv) the judge notifies the lawyers for the other parties of the essence of the communication and gives them an opportunity to respond. As stated above, the communication should not concern a substantive matter in the case

A full-time judge generally may _________. A Act as an arbitrator without compensation B Participate in settlement conferences on behalf of a family member without compensation C Draft legal documents for a family member without compensation D Act as a family member's lawyer in administrative courts

C. A judge may, without compensation, draft or review documents for a member of her family.A judge must not, however, act as a family member's lawyer in any forum (e.g., in an administrative court or settlement conference).A full-time judge must not practice law or act as an arbitrator, mediator, or private judge unless expressly authorized by law. (A judge may, however, participate in arbitration, mediation, or settlement conferences as part of her regular judicial duties.)

May a judge independently investigate the facts of a case? A Yes, provided the source is established as reliable B Yes, provided she notifies the parties of her intent to consider independent evidence C No, a judge must consider only the evidence presented D No, unless she obtains the parties' consent to independently investigate the facts

C. A judge must not independently investigate the facts in a case and must consider only the evidence presented. This prohibition extends to information available in all mediums, including electronic research

A lawyer wants to serve as a director of a legal services organization. The organization represents a client with an adverse interest to one of the lawyer's regular clients. As part of his duties as director, the lawyer must _________. A Obtain informed consent, confirmed in writing, from the organization's client B Resign from the organization due to the conflict of interest C Refrain from taking part in a decision that could harm the organization's client D Withdraw from the representation of his regular paying client

C. A lawyer may serve as a director, officer, or member of a legal services organization (apart from the lawyer's regular employment) even though the organization serves persons whose interests are adverse to the lawyer's regular clients. Thus, in this situation, the lawyer need not resign from the organization or withdraw from the representation of his regular client. However, the lawyer may not knowingly participate in a decision or action of the organization if doing so would be incompatible with the lawyer's obligations to a client under the general conflict of interest rules, and a lawyer must refrain from taking part in a decision or action of the organization if doing so would adversely affect the representation of one of the organization's clients whose interests are adverse to those of a client of the lawyer. Obtaining informed consent from the organization's client will not necessarily eliminate the conflict of interest.

The Code of Judicial Conduct ("CJC") requires a judge to avoid both actual impropriety and the appearance of impropriety. According to the CJC, an appearance of impropriety arises when a judge's conduct would create the reasonable perception that she has violated the CJC or acted in some manner that reflects adversely on her honesty, impartiality, temperament, or ______________. A Mental health B Moral character as a person C Fitness as a judge D Moral character as a judge

C. An "appearance of impropriety" arises when a judge's conduct would create a reasonable perception that she has violated the CJC or acted in some other manner that reflects adversely on her honesty, impartiality, temperament, or fitness as a judge. While moral character and mental health may be relevant to fitness as a judge, those are not the only aspects of that standard.

Pursuant to the Code of Judicial Conduct ("CJC"), compensation for a judge's extrajudicial activities (e.g., speaking, teaching, or writing) is __________. A Acceptable only in the form of reimbursement for expenses connected with the activity (e.g., travel, food, and lodging) B Generally impermissible; a judge should contribute his time without the expectation of compensation C Generally permitted if reasonable

C. Reasonable compensation for a judge's extrajudicial activities (e.g., compensation for speaking, teaching, or writing) is permitted unless acceptance thereof would reasonably appear to undermine the judge's independence, integrity, or impartiality. A judge may accept reimbursement of expenses reasonably incurred in connection with an extrajudicial activity. However, reasonable compensation for participation in the activity is also permitted.

An ex parte communication is a communication between a judge and representative from one side of a matter when no representative from the other side is present. A judge may conduct ex parte communications in an effort to mediate or settle a dispute only if: A Consent of the attorneys is obtained B Neither party has retained counsel C Consent of the parties is obtained D Prior negotiations have failed

C. With the consent of the parties, the judge may confer separately with the parties and their lawyers in an effort to settle or mediate a pending matter

An attorney is a voting member of the legislation committee of a consumer-based law reform group that drafts and advocates the passage of proposed statutes on food safety. The law reform group is currently debating a draft statute that sets quality and safety standards for growth hormones administered to chickens, turkeys, and other poultry. The attorney is also engaged in the private practice of patent law. She regularly represents a biotechnology firm. Using the techniques of genetic engineering, the biotechnology firm invents, develops, and sells a variety of patented growth hormones. The attorney herself has obtained patents on some of these hormones for the biotechnology firm. If enacted into law, the law reform group's proposed statute on poultry hormones could materially increase the biotechnology firm's hormone sales because it is the only firm whose hormones would meet the statute's quality and safety requirements. Would it be proper for the attorney, as a member of the law reform group's legislation committee, to participate in the debate on, and to cast her vote on, the proposed statute? response - incorrect A No, because the statute could materially benefit the biotechnology firm. B No, because the attorney may not serve as a member of the law reform group while representing the biotechnology firm. C Yes, provided that she informs the legislation committee that she represents an unnamed client whose interests could be materially benefited by the statute. D Yes, provided that she informs the legislation committee that she represents the biotechnology firm, whose interests could be materially benefited by the statute.

C. t would be proper for the attorney to participate in the debate and cast her vote on the proposed legislation, provided that she informs the committee that she represents a client whose interests could be materially benefited by the statute. A lawyer may participate in a law reform activity that will affect the interests of the lawyer's client. [ABA Model Rule 6.4] When a lawyer knows that a client will be materially benefited by the activity, the lawyer must disclose that fact, but she need not name the client. (A) is wrong because a lawyer is not prohibited from engaging in a law reform activity that might benefit her client. (B) is wrong because a lawyer is not prohibited from participating in a law reform activity, unless the participation would create an impermissible conflict of interest. [ABA Model Rule 1.7(a)] That is not the case here. A client who hires a lawyer does not thereby purchase the right to control the lawyer's views and activities in all contexts. [See ABA Model Rule 1.2(b)] The attorney may even advocate new legislation that she thinks is sound that would harm the biotechnology firm's sales. [See ABA Model Rule 6.4] (D) is wrong because the attorney need not disclose the name of her client; simply disclosing the fact of representation will inform the legislation committee of her possible bias.

Which of the following statements is true regarding a lawyer's communications about her fields of practice and certifications? A A lawyer may state that an organization has certified her as a "specialist" as long as the organization is approved by the state or the ABA, but need NOT reveal the certifying organization to the public B A lawyer may always state that a organization has certified her as a "specialist," as long as this information is true and not misleading C A lawyer may always state that does or does not practice in certain fields of law

C. A lawyer may always state to the public that she practices in a certain field of law. Even if a certifying body has deemed the lawyer to be a "specialist," the lawyer may not claim to be a certified specialist unless the certifying organization is approved by the state or the ABA. Hence, it is not sufficient merely that the information is true and not misleading. Furthermore, the lawyer must reveal the certifying organization to the public even if the certifying organization is approved.

The Code of Judicial Conduct ("CJC") allows a judge to consider communications from certain third parties regarding a pending matter outside the presence of the parties' lawyers. A judge may NOT consider such communications from __________. A Other judges B The parties' expert witnesses C The judge's law clerk

C. A judge may consult with other judges and court personnel whose function is to aid the judge in carrying out adjudicative responsibilities. A lawyer may also consider communications from disinterested legal experts in limited circumstances. A judge may not consider communications from the parties' expert witnesses outside the presence of the parties' lawyers.

Unless otherwise prohibited by the Code of Judicial Conduct ("CJC"), a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidentals from sources other than the judge's employer if such expenses are associated with the judge's participation in extrajudicial activities permitted by the CJC. Which of the following statements regarding reimbursements is true? A The reimbursement may reasonably exceed the actual costs incurred by the judge B The reimbursement may cover only the judge's expenses, and not those of her spouse C The reimbursement may need to be publicly reported by the judge

C. A judge who accepts reimbursement of expenses must comply with the public reporting requirements of the CJC. When appropriate, the reimbursement may also cover expenses of the judge's spouse, domestic partner, or guest. Reimbursement for expenses may not exceed the actual costs reasonably incurred by the judge, or when appropriate, the judge's spouse, domestic partner, or guest

A lawyer may evaluate his client's affairs for use by a third party only if: __________. A The client reviews the evaluation and consents in writing before the evaluation is provided to the third party B The issue between the client and third party is undisputed C The evaluation is compatible with the lawyer's other responsibilities to the client

C. A lawyer may evaluate a client's affairs for use by a third person if the lawyer reasonably believes that making the evaluation is compatible with the lawyer's other responsibilities to the client. There is no requirement that the client review the evaluation and consent in writing before the evaluation is provided to the third party. Nor is there is a requirement that the issue between the client and third party be undisputed.

Corporations and other organizations are "persons" for purposes of the rule that a lawyer must not communicate about a matter with a person the lawyer knows is represented by counsel. Under this rule, with whom is the lawyer allowed to communicate? A Any employee who consents to the communication B An employee who has the authority to obligate the organization concerning the matter C A former employee who no longer works for the organization D An employee who supervises the organization's corporate counsel

C. Consent is not needed before talking to an employee who no longer works for the organization. A lawyer must get the consent of the organization's counsel before communicating with the following constituents of the organization (regardless of whether the employee consents to the communication): (i) A person who supervises, directs, or regularly consults with the organization's corporate counsel about the matter at hand; (ii) a person whose conduct may be imputed to the organization for purposes of criminal or civil liability; or (iii) a person who has authority to obligate the organization concerning the matter

Communications Allowed by the Third Party Contact Rule

Communications Allowed by the Rule The rule does not prohibit: (i) a lawyer from communicating with a represented person when the communication is authorized by law or court order or when the communication does not concern the subject of the representation; (ii) represented persons from communicating directly with each other; and (iii) a lawyer from interviewing an unrepresented person who will be called as a witness by some other party. [ABA Model Rule 4.2, comment 4; and see Lewis v. S.S. Baune, 534 F.2d 1115 (5th Cir. 1976)] Example: In a complex contract suit between P and D, both parties were represented by counsel. For several months, the respective sets of lawyers tried to work out a satisfactory settlement, but without success. P concluded that the lawyers had become befogged by petty detail and bickering. P therefore invited D out to lunch, and the two of them worked out a settlement within the space of an hour. Direct communication between represented persons is not prohibited by the rule.

Can a lawyer share her legal fee with a nonlawyer? A No, fee sharing with nonlawyers is never allowed B Yes, lawyers are free to share legal fees at their discretion C No, except with a nonprofit organization D Yes, but only in limited circumstances

D. A lawyer must generally not share her legal fee with a nonlawyer. However, a lawyer may share fees in limited circumstances. A lawyer may pay a death benefit to the estate of a deceased lawyer, may include nonlawyers in a compensation or retirement plan, may pay the purchase price of a deceased, disabled, or disappeared lawyer's practice to the practice's nonlawyer representative, and may share court-awarded legal fees with a nonprofit organization that recommended or hired the lawyer as counsel. Sharing a fee with a nonprofit organization is not the only circumstance where fees may be shared, as stated above.

An elderly widower has one living child, a daughter. The widower's main asset is a 51% partnership interest in a wealthy real estate syndicate that owns and operates mobile home parks throughout the state. The daughter's husband is an attorney. One of the husband's regular clients asks the husband to represent him in negotiating the sale of 3,000 acres of roadside property to the real estate syndicate. The real estate syndicate is represented by its own lawyer in the matter. May the husband represent his regular client in a sale with the real estate syndicate? response - incorrect A No, even if the client gives informed consent, confirmed in writing. B No, because to do so would create an appearance of impropriety. C Yes, because the husband has no significant personal interest in the real estate syndicate. D Yes, but only if the client gives informed consent, confirmed in writing.

D. The husband may represent his regular client if the client gives informed consent, confirmed in writing, to the representation. His wife is likely to inherit her father's interest in the real estate syndicate. That gives the husband a personal interest in the real estate syndicate, albeit an attenuated interest. If the husband is to represent his regular client in selling land to the real estate syndicate, he must first disclose his personal interest to the client. If the client gives informed consent, confirmed in writing, then the husband may represent the client. [ABA Model Rule 1.7(b)] (A) is wrong because informed, written consent will solve the potential conflict of interest. (B) is wrong because informed consent, confirmed in writing, will solve the conflict problem. Furthermore, the "appearance of impropriety" is not a basis for discipline or disqualification under the ABA Model Rules. This is an outdated concept from the old ABA Model Code. (C) is wrong because the husband's personal interest is significant, even though it is remote.

Prohibitions on trial publicity attempt to balance the ____________ protections granted to litigants with the ____________ protections granted to the public and press. A First Amendment; Fifth Amendment B Sixth Amendment; First Amendment C First Amendment; Sixth Amendment D Fifth Amendment; First Amendment

D. The litigants in a trial have a Fifth Amendment right to have their dispute resolved on admissible evidence, by fair procedures, in a tribunal that is not influenced by public sentiment or outcry. On the other hand, the public and the press have countervailing rights under the First Amendment. The public has a right to know about threats to its safety, and it has an interest in knowing about the conduct of judicial proceedings

Reciprocal Referral Arrangements

Despite the general rule that a lawyer must not pay anyone for the referral of a case, the ABA Model Rules permit a lawyer to set up a reciprocal referral arrangement with another lawyer or with a nonlawyer professional—i.e., "I will refer potential clients, patients, or customers to you if you will do likewise for me." [ABA Model Rule 7.2(b)(4)] Such a reciprocal arrangement is subject to the following restrictions: 1) The arrangement must not be exclusive (i.e., the lawyer must not promise to refer all potential estate planning clients to his friend F and to no one else). [ABA Model Rule 7.2(b)(4)] 2) The referred client must be told about the arrangement. [Id.] If the arrangement creates a conflict of interest for either the referring or the receiving lawyer, then that lawyer must obtain the client's informed consent, confirmed in writing, under ABA Model Rule 1.7. [See ABA Model Rule 7.2, comment 8] (Of course, one must wonder whether a reciprocal referral arrangement invariably creates a conflict because it gives the referring lawyer a personal financial interest in sending the case to his referral counterpart rather than to some other lawyer.) 3) The reciprocal arrangement must not interfere with the lawyer's professional judgment as to making referrals or providing substantive legal services. [Id.] (Of course, one must wonder whether a reciprocal referral arrangement would work if it had no influence on the referring lawyer's judgment as to whom to send the case.) 4) Reciprocal referral arrangements should not be of indefinite duration and should be reviewed periodically to make sure they comply with the ABA Model Rules. [Id.]

Pro Bono Publico Service

Every lawyer has a professional responsibility to provide legal service to people who cannot pay for it. [ABA Model Rule 6.1] Violating ABA Model Rule 6.1 is not grounds for professional discipline; Model Rule 6.1 recommends that every lawyer should spend 50 hours per year on pro bono work. A "substantial majority" of those hours should be spent doing unpaid legal service for poor people or organizations that address the needs of poor people.

Which of the following is NOT a ground for judicial disqualification? A The judge has an economic interest in the matter B A party's lawyer has made campaign contributions to the judge that exceed the jurisdictionally specified amount C The judge is active in a charitable organization that owns stock in a company that is a party to a matter before the judge D The judge has personal knowledge of relevant evidentiary facts

Grounds for disqualification include situations in which a judge: (i) has bias or personal knowledge of the relevant evidentiary facts; (ii) has an economic interest in the matter or one of the parties; (iii) has had prior involvement in the proceeding or with the parties; (iv) had significant contributions to the her judicial campaign made by the parties or their lawyers; or (v) has made a public statement of judicial commitment. Economic interest means a judge owns more than a de minimis legal or equitable interest in the proceeding or parties. However, ownership in a mutual fund or a judge's involvement as an officer, director, advisor, or other active participant in an educational, religious, charitable, fraternal, or civic organization that holds securities of a party is not a sufficient economic interest unless the judge participates in the management of the fund or the proceeding could substantially affect the value of the interest

Which of the following would likely NOT be grounds for disqualifying a judge in a pending matter? A One of the parties is the employer of the judge's husband B The judge has ownership in a mutual fund in which one of the holdings is a party in the matter C The judge served as a material witness in the matter D The judge has a bias relevant to the case

Grounds for disqualification include situations in which a judge: (i) has bias or personal knowledge of the relevant evidentiary facts; (ii) has an economic interest in the matter or one of the parties; (iii) has had prior involvement in the proceeding or with the parties (e.g., the judge is a material witness in the matter, or one of the parties is the employer of the judge's husband); (iv) had significant contributions to her judicial campaign made by the parties or their lawyers; and (v) has made a public statement of judicial commitment. Economic interest means a judge owns more than a de minimis legal or equitable interest in the proceeding or parties. However, ownership in a mutual fund or a judge's involvement as an officer, director, advisor, or other active participant in an educational, religious, charitable, fraternal, or civic organization that holds securities of a party is not a sufficient economic interest unless the judge participates in the management of the fund or the proceeding could substantially affect the value of the interest.

Group and Prepaid Legal Service Plans

Group or prepaid legal services plans typically are part of an employee benefit plan and bear some resemblance to health insurance plans. Participants typically pay a monthly premium, in return for which they may consult a plan-authorized lawyer and obtain legal services for a low or no cost. . A lawyer may also personally contact a group that might wish to adopt a legal service plan for its members. However, the lawyer must not participate in a legal service plan that uses personal contacts if the lawyer owns or directs the organization that operates the plan. [ABA Model Rule 7.3 and comment 6]

Judge: Responding to Judicial and Lawyer Misconduct

If a judge has knowledge that another judge has violated the CJC in a manner that raises a substantial question as to the other judge's honesty, trustworthiness, or fitness as a judge, the judge must inform the appropriate authority. The same duty applies if the judge has knowledge that a lawyer has committed a similar violation of the Rules of Professional Conduct. [CJC Rule 2.15] A judge who receives information indicating a substantial likelihood that another judge has violated the CJC (or that a lawyer has violated the RPC) must take "appropriate action." What is "appropriate" may range from direct communication with the alleged violator to reporting the suspected violation to the appropriate authority. [CJC Rule 2.15, comment 2

Lawyer Advertising

In 1977, the Supreme Court recognized lawyer advertising as commercial speech protected by the First and Fourteenth Amendments, holding that a state may adopt reasonable regulations to insure that lawyer advertising is not false or misleading, but may not flatly prohibit all lawyer advertising. [Bates v. State Bar of Arizona, 433 U.S. 350 (1977)]

LAW FIRM DEFINITIONS: PARTNER

In the context of a private law firm, the term "partner" means a person who is a party to the firm's partnership agreement. [See ABA Formal Op. 310 (1963)] In an incorporated law firm, the shareholders are the equivalent of partners. The term "member of the firm" usually means the same as "partner." [Id.] The rules explained in B., infra, apply not only to private law firms, but also to the law departments of governmental agencies, law departments of businesses, and similar groups of lawyers. For purposes of those rules, a lawyer who has supervisory or managerial responsibility over other lawyers in a governmental agency, business, or other group of lawyers is the equivalent of a partner.

Remittal of Disqualification

Judge is supposed to disqualify themselves if there is even a remote third party interest or personal interest, but it can be remitted in these ways: 1) The judge discloses on the record the ground for disqualification. The judge may then ask whether the parties and their lawyers wish to discuss waiver. 2) The lawyers consult privately with their respective clients. 3) All of the parties and their lawyers meet, outside the presence of the judge, and agree that the judge should not be disqualified. The agreement must be incorporated into the record. 4) If the judge is willing to do so, she may then proceed with the case.

FEDERAL JUDGES

Justices of the United States Supreme Court and judges of other Article III federal courts are appointed by the President with the advice and consent of the Senate. They hold office for life during good behavior. [U.S. Const. art. III, §1] A federal judge can be removed from office by impeachment and can be disciplined in less drastic ways by a committee of federal judges. [U.S. Const. art. II, §4; 28 U.S.C. §§351 - 363; and see In re Complaints, 783 F.2d 1488 (11th Cir. 1986)] Federal judges generally are governed by the Code of Conduct for United States Judges, which is based largely on the ABA Model Code of Judicial Conduct. Justices of the United States Supreme Court, however, have asserted that they are not bound by the Code of Conduct for United States Judges or the ABA Model Code of Judicial Conduct. [See Cheney v. United States District Court, 541 U.S. 913 (2004)—Scalia, J.]

LAW-RELATED (ANCILLARY) SERVICES

Lawyers are permitted to provide law-related services. Law-related services (often referred to as ancillary services) are services that might reasonably be performed in conjunction with (and are related to) the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a nonlawyer. Examples of law-related services include financial planning, accounting, lobbying, trust services, real estate counseling, providing title insurance, and preparing tax returns. Even though law-related services are not legal services, a lawyer who provides such services is subject to the Rules of Professional Conduct in two situations. 1. Nonlegal Services and Legal Services Provided Together If a lawyer provides nonlegal services in circumstances that are not distinct from her provision of legal services, then the Rules of Professional Conduct apply to both the legal and nonlegal services. [ABA Model Rule 5.7(a)(1)] Example: Attorney A is an expert in setting up new business ventures. He also knows many wealthy people who invest money in untried business ventures—so-called venture capitalists. When A draws up the articles of incorporation for client C's new business venture and also finds some willing investors for C, A is subject to the Rules of Professional Conduct in both activities. 2. Nonlegal Services Provided by Entity that Is Controlled by the Lawyer If a lawyer provides nonlegal services through an entity that is not her law office but that she controls (either alone or with other lawyers), that lawyer must take reasonable steps to assure that people who receive the nonlegal services understand that those services are not legal services and that the Rules of Professional Conduct do not cover those services. For instance, the attorney-client privilege does not apply to the nonlegal services. If the lawyer does not take those reasonable steps, then the lawyer is subject to the Rules of Professional Conduct with respect to the nonlegal services. Example: Lawyer L is a certified specialist in family law. Many of her clients are women who want to divorce their husbands and also want to find work outside the home. L and one of her nonlawyer friends own and manage Jobs-4-U, a job placement service. When one of her law clients needs a job, L usually refers the client to Jobs-4-U. L is always careful to tell the client that she has a personal financial stake in Jobs-4-U, but L does not explain that the Rules of Professional Conduct do not apply to services rendered by Jobs-4-U. L is therefore bound by the Rules of Professional Conduct in her job placement work.

Documents Sent to Lawyer by Mistake

Lawyers sometimes receive documents that were sent to them by mistake. That happens with e-mail, fax transmission, postal service, and even personal messenger service. It can also happen when documents—whether paper documents or electronically stored information— are produced pursuant to a discovery request. When a lawyer obtains such a document, and when she knows or reasonably should know that it was sent by mistake, she must promptly notify the sender so that the sender can take protective measures. [ABA Model Rule 4.4(b) and comment 2] The Model Rule does not address some related questions on which state law is split: e.g., whether the recipient must return the document to the sender, or delete electronically stored information, and whether the inadvertent disclosure of the document waives a privilege that would otherwise protect it.

Judges as Character Witnesses

Not allowed; A judge must not testify as a character witness, except when duly summoned to do so, i.e., by subpoena. [CJC Rule 3.3] Ordinarily, a judge should discourage parties from requiring his testimony as a character witness. [CJC Rule 3.3, comment 1]

SOLICITATION

The basic rule is this: A lawyer must not seek fee-paying work by initiating personal or live telephone contact, or real-time electronic contact, with a nonlawyer prospect with whom the lawyer has no family, close personal, or prior professional relationship. [See ABA Model Rule 7.3(a)] Thus, an attorney who hangs around in the hallway of the courthouse, offering legal services for a fee to criminal defendants who are not represented by counsel, is subject to discipline. [See Attorney Grievance Commission of Maryland v. Gregory, 536 A.2d 646 (Md. 1988)] Likewise, a lawyer who hears on the radio that a person was badly injured in an accident and promptly telephones that person's spouse offering legal services for a fee is subject to discipline. [See also 49 U.S.C. §1136(g)(2)—federal law prohibits lawyers from communicating with victims of airplane accidents, or their families, until 45 days after the accident]

Types of Information that May Be Disseminated

The following are among the types of information that a lawyer may publicly disseminate: (i) information concerning the name of the lawyer or her firm, and the lawyer's or firm's address, e-mail address, website, and telephone number; (ii) the kinds of services the lawyer will undertake; (iii) the basis on which fees are determined, including prices for specific services and payment and credit arrangements; (iv) the lawyer's foreign language ability; (v) the names of references; and (vi) other information that might invite the attention of persons seeking legal assistance. [ABA Model Rule 7.2, comment 2]

Protection of Seller's Clients After Sale

The purchaser must undertake all client matters in the practice, and not just those that generate substantial fees (subject of course to client consent and conflict of interest rules). [See ABA Model Rule 1.17, comment 6] This requirement prevents the sale of only fee-generating matters, which could leave clients whose matters are not very lucrative in a situation where they might find it difficult to find other representation. Also, clients' fees must not be increased because of the sale. [ABA Model Rule 1.17(d)] The purchaser must honor existing fee agreements made by the seller. [ABA Model Rule 1.17, comment 10]

LAW FIRM DEFINITIONS: GENERAL COUNSEL

The term "general counsel" is often used to designate the person in charge of the in-house law department of a business. It may also be used to designate a private firm or lawyer who devotes a "substantial amount of professional time" to the representation of the business or organization in question.

LAW FIRM DEFINITIONS: OF COUNSEL

The term "of counsel" refers to a lawyer who has a continuing relationship with a law firm other than as partner or associate. The term is commonly used to designate a retired partner who remains active in the firm. It is also sometimes used to refer to an independent contractor who is regularly retained by the firm to do certain kinds of work. In the context of a lawsuit, "of counsel" is sometimes used to designate a firm or lawyer who has been called in to assist the counsel of record on a specific task—for instance, writing an appellate brief or advising on a special field of law.

Judge: Public Comments on Cases

When a case is pending or impending in any court, a judge must not make any public comment that might reasonably be expected to affect its outcome or impair its fairness, or make any nonpublic comment that might substantially interfere with a fair trial. The judge must require like abstention from court personnel under her control. [CJC Rule 2.10] a. Official Duties Excepted The duty to abstain from comment does not prohibit judges from making public statements in the course of their official duties, or from publicly explaining court procedures. [CJC Rule 2.10(D)] b. Judge as a Party The duty to abstain from comment does not apply if the judge is a litigant in a personal capacity. [Id.] The duty does apply, however, if the judge is a litigant in an official capacity, as in writ of mandamus proceedings.

Providing Nonlegal Services to Clients: client-lawyer relationship

When a client-lawyer relationship exists between the lawyer and the individual receiving the law-related services, the lawyer must comply with Rule 1.8(a), which specifies the conditions a lawyer must satisfy when she enters into a business transaction with her own client. [ABA Model Rule 5.7, comment 5] Specifically, the transaction must meet the following requirements: the terms of the transaction must be fair to the client; the terms must be fully disclosed to the client in writing, and such disclosure must cover the essential terms of the transaction and the lawyer's role in the transaction; the client must be advised in writing that he should seek advice from an independent lawyer regarding the arrangement; and the client must give informed consent in a writing signed by the client. (See also V.C.1.a., supra.)

DEALING WITH UNREPRESENTED PERSONS

When dealing with an unrepresented person, a lawyer must not state or imply that the lawyer is disinterested. [ABA Model Rule 4.3; Restatement §103] When the lawyer knows, or reasonably should know, that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding. [Id.] Likewise, if the lawyer knows or should know that her client's interests are likely to be in conflict with those of the unrepresented person, she must not give legal advice to that person (other than to get a lawyer). [Id.] The rule does not, however, prevent a lawyer from negotiating a transaction or settling a client's dispute with an unrepresented person. [ABA Model Rule 4.3, comment 2] Example: Property owner O wants to lease his empty retail store to merchant M, who wants to use it for a shoe store. M does not have a lawyer, but O is represented by attorney A. In negotiating the terms of the lease, A may communicate directly with M, but A should make clear to M that A represents O and is not looking out for M's interests. During the lease negotiations, A may tell M what terms will be acceptable to O. A may also draft a proposed lease agreement and may explain to M what A believes the legal effect of the lease will be. [Id.]

Code of Judicial Conduct

Where adopted, the CJC applies to all persons who perform judicial functions, including magistrates, court commissioners, referees, and special masters. [CJC, Application] Retired judges, part-time judges, and pro tempore part-time judges are exempted from some provisions of the CJC, as explained in F., below. c. Format of the CJC The CJC contains four Canons, each of which encompasses several numbered Rules. The Canons state overarching principles of judicial ethics that all judges must follow. Also, the Canons guide the interpretation of the Rules. The Rules are rules of reason, to be applied in a manner that is consistent with the law (statutory, constitutional, and decisional). Comments accompany the Rules. The Comments set forth aspirational goals for judges and also provide guidance regarding the meaning and application of the Rules.

Judge Disqualification

a. General Rule—Whenever Impartiality Might Reasonably Be Questioned CJC Rule 2.11(A) states the broad, general rule on disqualification of a judge: A judge must disqualify himself in a proceeding in which the judge's impartiality might reasonably be questioned. (Disqualification of federal judges is governed by 28 U.S.C. section 455.) Note that the rule employs a reasonableness standard

LAW FIRM DEFINITIONS: ASSOCIATE

"Associate" In the context of a private law firm, the term "associate" means a lawyer who has a regular relationship with the firm other than as a partner. Usually an associate is an employee who is paid by salary, but the term is also sometimes used to refer to a regularly retained independent contractor. Two lawyers who merely share office space should not refer to themselves as "associates." [Id.] Furthermore, two lawyers must not falsely hold themselves out as a partnership or similar entity. [ABA Model Rule 7.5(d)]

Judge Gifts that Must be Reported

(i) Gifts incident to a public testimonial; (ii) Invitations to the judge and her spouse, domestic partner, or guest to attend without charge an activity related to the law, the legal system, or the administration of PROFESSIONAL RESPONSIBILITY 139. PR-05-outline & DIVIDER-R.indd 139 12/14/2017 12:29:30 PM justice, or an event associated with any of the judge's educational, religious, charitable, fraternal, or civic activities permitted by the CJC, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity; and (iii) Gifts, loans, bequests, or other things of value, if the source is a person who has come, or is likely to come, before the judge, or whose interests have come, or are likely to come, before the judge

Bans on other things full time judges can't do

1. A full-time judge must not act as an arbitrator, mediator, or private judge unless expressly authorized by law. [CJC Rule 3.9] This does not, of course, prevent the judge from participating in arbitration, mediation, or settlement conferences as part of her regular judicial duties 2. practice law

LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS

1. Activities that May Harm Client A lawyer may serve as a director, officer, or member of a law reform group, even though a reform advocated by the group may harm one of the lawyer's clients. [See ABA Model Rule .6.4] Example: Attorney A is a member of the West Carolina Law Revision Commission, a private organization that drafts and recommends new legislation to the West Carolina Legislature. The commission is now working on new statutes that will revise the West Carolina law respecting administration of trusts. One of A's clients is the First Carolina Bank. The bank's trust operations will become less profitable if the legislature passes the statutes recommended by the commission. A may work on the trust law project for the commission, unless doing so would violate the general conflict of interest rules. [See ABA Model Rule 1.7; ABA Model Rule 6.4, comment 1] 2. Activities that May Benefit Client When a lawyer is working on a law reform project and is asked to participate in a decision that could materially benefit one of the lawyer's clients, the lawyer must disclose that fact— but the lawyer need not identify the client. [ABA Model Rule 6.4]

PROMOTION OF JUDICIAL INTEGRITY AND AVOIDANCE OF APPEARANCE OF IMPROPRIETY

1. Compliance with Law and Promotion of Public Confidence in the Judiciary A judge must comply with the law (including the CJC). [CJC Rule 1.1] A judge must avoid even the appearance of impropriety. At all times a judge must act so as to promote public confidence in the independence, integrity, and impartiality of the judiciary. [CJC Rule 1.2] Examples: 1) Judge R discovered his estranged wife in an automobile with another man. The judge broke the car window (causing the other man to be cut with broken glass) and slapped his estranged wife. Judge R is subject to discipline, even though his conduct was unconnected with his judicial duties. [See In re Roth, 645 P.2d 1064 (Or. 1982)] 2) While driving under the influence of alcohol, Judge L ran a traffic signal and violated other traffic laws. Judge L is subject to discipline. [See Matter of Lawson, 590 A.2d 1132 (N.J. 1991)] 2. Test for Appearance of Impropriety An "appearance of impropriety" arises when a judge's conduct would create a reasonable perception that she has violated the CJC or acted in some other manner that reflects adversely on her honesty, impartiality, temperament, or fitness as a judge. [CJC Rule 1.2, comment 5] 3. Community Outreach To promote public understanding of and confidence in the administration of justice, a judge should initiate and participate in community outreach activities. [CJC Rule 1.2, comment 6] 4. Abuse of Judicial Prestige A judge must not abuse, or permit others to abuse, the prestige of her office to advance her personal or economic interests or those of others. [CJC Rule 1.3]

RESPONSIBILITIES OF A SUBORDINATE LAWYER

1. Duties Concerning Clear Ethics Violation Orders from a supervisory lawyer are no excuse for clearly unethical conduct—a lawyer must follow the ethics rules even when acting under the directions of another person. [ABA Model Rule 5.2; Restatement §12] However, the fact that a subordinate lawyer was acting on directions from a supervisor may be relevant in determining whether the subordinate had the knowledge that is required for some ethics violations. [ABA Model Rule 5.2, comment 1] Example: Partner P gave associate A a memorandum of fact and asked A to draft a complaint for fraud based on the information in the memorandum. A had no way to know whether the information in the memorandum was complete and truthful. A's lack of opportunity to gather the facts personally is relevant in deciding whether to discipline A for participating in the filing of a frivolous complaint. 2. Duties Concerning Debatable Ethics Questions A subordinate lawyer does not violate the rules of professional conduct by acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty. [ABA Model Rule 5.2(b); Restatement §12] When a debatable ethics question arises, someone must decide on a course of action, and that responsibility must rest with the supervisory lawyer. If the supervisor's judgment turns out to have been wrong, the subordinate lawyer should not be disciplined for doing what the supervisor directed. [ABA Model Rule 5.2, comment 2]

RESPONSIBILITIES CONCERNING NONLAWYER ASSISTANCE

1. Duty to Educate and Guide in Ethics Matters Law firms, governmental and business law departments, and other groups of lawyers employ many kinds of nonlawyers—secretaries, investigators, paralegals, law clerks, messengers, and law student interns. Lawyers who work with such employees—whether those nonlawyers are within or outside the firm—must instruct them concerning the ethics of the profession and should be ultimately responsible for their work. [ABA Model Rule 5.3, comment 1] 2. Duty of Partners Respecting Nonlawyer Employees The partners and managers in a law firm (and the supervisory lawyers in a governmental agency, business, or other group of lawyers) must make reasonable efforts to assure that the conduct of the nonlawyers is compatible with the obligations of the profession. [ABA Model Rule 5.3(a)] 3. Duties of Direct Supervisor Respecting Nonlawyer Employees A lawyer who directly supervises the work of a nonlawyer employee must make reasonable efforts to assure that the conduct of the nonlawyer is compatible with the obligations of the profession. [ABA Model Rule 5.3(b); Restatement §11(4)]

Limits on Advertising

1. Fields of Practice Statements about the fields of law in which the lawyer practices must comply with ABA Model Rule 7.4 (see D., infra). 2. Consent of Named Clients If a lawyer wishes to identify some regular clients in an advertisement, the lawyer must first obtain the clients' consent. [ABA Model Rule 7.2, comment 2] 3. Identification of Advertiser Every advertisement must include the name and office address of at least one lawyer or law firm that is responsible for its content. [ABA Model Rule 7.2(c)] 4. Payments for Recommending a Lawyer's Services Except in connection with the sale of a law practice, a lawyer must not give anything of value to a person for recommending the lawyer's services. This rule does not prohibit a lawyer from paying the reasonable cost of advertising, nor does it prohibit a lawyer from paying people to prepare and disseminate the advertising. A lawyer may also pay others to generate client leads as long as the lead generators do not recommend the lawyer or improperly communicate with potential clients. Furthermore, this rule does not prohibit an organization (such as a legal aid office or a group legal service plan) from advertising the services offered by the organization. Finally, it does not prevent a lawyer from paying the usual charges of a legal service plan or a nonprofit or qualified lawyer referral service. "Qualified" means that the lawyer referral service has been approved by the appropriate regulatory authority. [ABA Model Rule 7.2 and comments 5-6] The A, B & C firm seeks to increase its client base. The firm may hire and pay a media consultant to design some newspaper advertisements, and it may pay the newspaper for the advertising space. The firm may also participate in a prepaid legal service plan that advertises to obtain new members. Furthermore, some of the lawyers in the firm are listed with the nonprofit lawyer referral service run by the local county bar association; when those lawyers obtain clients through the referral service, they may pay the referral fees charged by the service.

RESPECT FOR RIGHTS OF THIRD PERSONS

1. Heavy-Handed Tactics In representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. [ABA Model Rule 4.4(a)] Furthermore, a lawyer must not use methods of obtaining evidence that violate the legal rights of a third person. Examples: 1) When preparing to cross-examine witness W, attorney A discovered that W had six misdemeanor convictions for prostitution. A knew that under the applicable evidence law, he would not be allowed to use those misdemeanor convictions for impeachment, and A knew that they were not otherwise relevant to the proceeding. Nonetheless, on cross-examination, A asked: "How old were you when you decided to devote your life to prostitution, Miss W?" A is subject to discipline.

TRUTHFULNESS IN STATEMENTS TO THIRD PERSONS

1. Must Not Make False Statements of Material Fact or Law When dealing on behalf of a client with a third person, a lawyer must not knowingly make a false statement of law or material fact. [ABA Model Rule 4.1(a); Restatement §98] Generally, a lawyer has no duty to inform a third person of relevant facts. [ABA Model Rule 4.1, comment 1] However, a lawyer must not misrepresent the facts. a. Types of Misrepresentation A misrepresentation can occur when the lawyer makes a statement knowing that it is false, when the lawyer affirms or incorporates a statement knowing that it is false, when the lawyer states something that is partly true but misleading, or in some contexts when the lawyer fails to speak or act. [Id.] Examples: 1) Lawyer L represented seller S in negotiating a sale of S's farm to buyer B. L and S accompanied B on a walking tour of the farmlands, and it soon became apparent to them that B knew little or nothing about farming. When B looked over the north 40 acres, he said: "I assume that the soil and water here would be good for a nice walnut orchard." L and S both knew that the soil was far too wet and heavy to grow walnuts. S replied: "Oh, you'd be surprised what can grow here." L said nothing. L's failure to speak out in this context is equivalent to an affirmative misrepresentation. L is subject to discipline. b. Distinguish Conventional Puffery Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. [ABA Model Rule 4.1, comment 2] Estimates of price or value placed on the subject of a transaction are ordinarily regarded as mere puffery, and so is a statement of a party's intentions as to settlement of a claim. [Id.]

FIRM NAMES AND LETTERHEADS

1. Names of Law Firms A private law partnership may be designated by the names of one or more of the partners. When partners die or retire, their names may be carried over to successor partnerships. For example, a law partnership may properly continue to practice under the name "the X partnership," even though lawyer X is now retired. The firm's letterhead may list X's name as a retired partner. [ABA Model Rule 7.5, comment 1; ABA Informal Op. 85-1511 (1985)] a. Trade Names Trade names (e.g., "Greater Chicago Legal Clinic"; "The Smith Firm")—even ones that do not include the names of one or more partners—are permitted, provided the name is not misleading and does not imply a connection with a governmental agency or with a public or charitable legal services organization. [ABA Model Rule 7.5(a)] 2. Multistate Firms A law firm that has offices in more than one jurisdiction may use the same name, Internet address, or other professional designation in each jurisdiction. [ABA Model Rule 7.5(b)] However, when the lawyers in a particular office are identified (e.g., on the office letterhead), the identification must indicate the jurisdictional limitations on those lawyers not licensed in the jurisdiction where the office is located. [Id.] Example: The firm of Diaz and Farnsworth has offices in New York City, Washington, D.C., and Houston, Texas. The letterhead used in the Houston office lists all of the firm's partners, not just those who practice in Houston. The letterhead must indicate which partners are not licensed in Texas. For example: "Ruben Diaz (admitted in New York only)." 3. Using Names of Lawyers Who Have Entered Public Service A private law firm must not use the name of a lawyer who holds public office (either as part of the firm name or in communications on the firm's behalf) during any substantial period in which the lawyer is not regularly and actively practicing with the firm. 4. False Indications of Partnership Lawyers must not imply that they are partners or are otherwise if they are not 5. Associated and Affiliated Law Firms Two law firms may hold themselves out to the public as being "associated" or "affiliated" if they have a close, regular, ongoing relationship and if the designation is not misleading. But using such a designation has a significant drawback—ordinarily the two firms would be treated as a single unit for conflict of interest purposes. [ABA Formal Op. 85-351 (1985)]

Types of False or Misleading Communications

1. Outright Falsehoods 2. True Communications that Mislead A communication can be true but misleading if it omits a fact that is necessary to make the communication as a whole not materially misleading. [ABA Model Rule 7.1, comment 2] Example: Lawyer L's display advertisement in the telephone book Yellow Pages includes the phrase "Yale Law School—1987." Indeed, L did attend a two-week summer program at Yale Law School in 1987, but he earned his law degree at a school of considerably less distinction. The statement is misleading. 3. Communications that Create Unjustified Expectations A true communication about a lawyer's accomplishments in past cases is misleading if it could make a reasonable person think that the lawyer could do as well in a similar case, without regard to the facts and law in that case. [ABA Model Rule 7.1, comment 3] 4. Unsubstantiated Comparisons An unsubstantiated comparison of a lawyer's services or fees with those of other lawyers is misleading if it could make a reasonable person think that it can be substantiated. [Id.] Example: Lawyer L advertises that her fees for estate planning services are "15% lower than the prevailing rate in Fairmont County." If L cannot substantiate that statement with hard data, she is subject to discipline.

RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

1. Partners' Duty to Educate and Guide in Ethics Matters The partners or managing lawyers of a law firm (and the supervisory lawyers in a governmental agency, business, or other group of lawyers) must make reasonable efforts to assure that the other lawyers adhere to the Rules of Professional Conduct. [ABA Model Rule 5.1(a); Restatement §11] 2. Duties of Direct Supervisor A lawyer who directly supervises the work of another lawyer must make reasonable efforts to assure that the other lawyer adheres to the Rules of Professional Conduct. [ABA Model Rule 5.1(b)] 3. How Duties Are Fulfilled The steps necessary to fulfill these two duties depend on the kind and size of the firm or other group. In a small private law firm, informal supervision and occasional admonition may be sufficient. [ABA Model Rule 5.1, comment 3] In a larger organization, more elaborate steps may be necessary. Some firms provide continuing legal education programs in professional ethics, and some firms have designated a partner or committee to whom a junior lawyer may turn in confidence for assistance on an ethics issue. [Id.]

COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL

2. Application to Organizations Corporations and other organizations are "persons" for purposes of this rule. Thus, a lawyer must get the consent of the organization's counsel before communicating with the following constituents of the organization: (i) A person who supervises, directs, or regularly consults with the organization's lawyer about the matter at hand; (ii) A person whose conduct may be imputed to the organization for purposes of criminal or civil liability; or (iii) A person who has authority to obligate the organization concerning the matter. Note that if the constituent is represented in the matter by her own counsel, then consent by that counsel (rather than the organization's counsel) is sufficient. Consent is not needed before talking to a former constituent of the organization. [Id.] However, when talking with either a present or former constituent, a lawyer must take care not to violate the organization's legal rights, such as the attorney-client privilege. Example: Lawyer L represents the plaintiff in a defamation action against the Herald Newspaper Corp. Without getting the permission of the Herald's counsel, L interviewed the newspaper's former editor-in-chief and convinced him to disclose some privileged communications he had with the newspaper's lawyer about the case. L acted improperly in prying into the privileged communications. [Id.; and see ABA Model Rule 4.4, comment 1]

Ethical Responsibility for Subordinate Lawyer's Misconduct

4. Ethical Responsibility for Another Lawyer's Misconduct A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer if: (i) The first lawyer ordered the second lawyer's misconduct or knew about it and ratified it [ABA Model Rule 5.1(c); Restatement §11]; or (ii) The first lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer, and she knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action [Id.]. 1) Attorney A is not a partner in the M, N & O firm, but she is a senior associate and has been assigned direct supervisory responsibility for the work of junior associate J in the case of Cox v. Fox. A told J to interview Ms. Cox and to prepare her to have her deposition taken. In a fit of misdirected zeal, J advised Ms. Cox to testify to a patent falsehood. After the Cox deposition was taken, but while Ms. Cox was still available as a witness, A discovered what had happened. A made no effort to reopen the Cox deposition or otherwise remedy J's misconduct. A is subject to discipline. 2) In the Cox v. Fox example, above, suppose that M, a partner in the firm, is not J's supervisor and has no connection whatever with the Cox v. Fox case. In a casual lunchtime conversation with J, M learned that J had advised Ms. Cox to testify falsely at her deposition. M made no effort to rectify the consequences of J's misconduct. M is subject to discipline.

Ethical Responsibility for Nonlawyer's Misconduct

4. Ethical Responsibility for Nonlawyer's Misconduct A lawyer is subject to discipline in two situations when a nonlawyer does something that, if done by a lawyer, would violate a disciplinary rule. The lawyer is subject to discipline if: a. The lawyer ordered the conduct or knew about it and ratified it [ABA Model Rule 5.3(c)(1)]; or b. The lawyer is a partner or manager or has direct supervisory responsibility over the nonlawyer, and the lawyer knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action [ABA Model Rule 5.3(c)(2)].