MPRE (BARBRI)

What is the minority rule (e.g., NY, CA) for criminal defendants who give/plan to give false testimony?

"Narrative Testimony" -- defense lawyer questions ∆ in ordinary way up to the point of false testimony. At that point, L asks question calling for a "narrative answer" ("What else happened?") L is not permitted to rely on false parts of the story when arguing.

What are the factors determining a lawyer's requisite competence for a matter?

1. Associate: is it feasible to refer lawyer to someone else? ("Should ordinarily" obtain client consent if working with another lawyer's services) 2. Learn: can the lawyer prepare/learn/study the specific area of law? 3. Emergency: can help in emergency, but LIMITED to that emergency

What are the three conditions that must be satisfied for a lawyer to accept compensation from a third person for representing a client?

1. C gives informed consent, 2. TP does not interfere with L's independence or representation of C, and 3. C's confidential info not compromised

When can a lawyer participate in a quick-advice program sponsored by a court or nonprofit?

1. Client consents to short-term, limited legal service 2. Conflict of interest rules relaxed, but all other RPC apply 3. Imputed conflict rule also relaxed NOTE: Conflict rules apply if quick advice leads to regular representation.

When is attorney-client privilege waived?

1. Client fails to claim privilege (ex: showing your neighbor a confidential document waives privilege) 2. Client puts legal services at issue (ex: where ∆ appeals criminal conviction on basis of ineffective counsel at trial, communications between ∆ and atty are not privileged) REMEMBER: Lawyer has a duty to invoke privilege on client's behalf.

What are the three ways a lawyer-client relationship ends?

1. Client fires lawyer (without cause, any time, etc.). Client liable to attorney in quantum meruit for reasonable value of work done (also applies to contingent fee cases; lawyer gets $ after contingency comes to pass.) 2. Lawyer must withdraw -- disability or illegality/ethical violation 3. Lawyer may withdraw

Exceptions to Attorney-Client Privilege

1. Client seeks attorney's legal services for future crime or fraud 2. Communication relevant to issue of breach of A-C duties on part of atty or client 3. Civil litigation between 2 persons who were formerly joint clients of the atty 4. Situations in which the atty can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer (ex: can say your client was sane and wanted nurse to have his inheritance)

What are the types of legal fees? What is the exception to communicating fee arrangements?

1. Hourly fee --> written agreement preferred 2. Flat fee --> written agreement preferred 3. Contingent fee --> requires a written agreement Exception: If lawyer regularly represents the client and will be charging the same basis/rate as in other matters

What are "good cause" exceptions to representing clients whom a lawyer is appointed by a court to represent pro bono?

1. If the L would have to violate a law or the RPC (ex: representation would be relevant to another client's confidential info) 2. It would impose an unreasonable financial burden 3. L is personally unable to represent the client effectively (ex: L was a victim of the same crime allegedly committed by ∆)

What are some legal theories of malpractice liability?

1. Intentional tort 2. Breach of fiduciary duties 3. Breach of contract 4. Negligence (most common) -- owe duty of care to clients, prospective clients, and third parties.

What two things should you not do on the bar application?

1. Knowingly make a false statement of material fact 2. Fail to disclose information: a. Fail to disclose fact necessary to correct misapprehension known to have arisen, and b. knowingly fail to respond to a lawful demand for info from an admissions authority (exception: things covered by confidentiality)

Exceptions to Duty of Confidentiality (8)

1. Client's informed consent 2. Implied authority (when appropriate and in the client's interests -- ex., can disclose confidential business info if negotiating a business contract for client) 3. Prevent reasonably certain death or substantial bodily harm 4. Prevent or mitigate substantial financial harm if the client uses the lawyer's services in the matter 5. Dispute concerning attorney's conduct (reveal only what's necessary, limit on need-to-know basis, and obtain protective orders to minimize harm to client) 6. Obtain legal ethics advice 7. Detect and resolve conflicts of interest (ex: when law firms merge). Disclosure made only after substantial strides regarding new relationship occurred; limit to minimum disclosure necessary; can't compromise A-C privilege; etc.). 8. Required by law or court order

In what situations does a lawyer have a duty to refuse employment (because doing so would violate the RPC)?

1. Client's motive is harassment 2. Client's position is unsupportable (factually/legally frivolous) 3. Lawyer not competent 4. Strong personal feelings would impair representation 5. Lawyer has impaired mental or physical condition

What does "confidential" mean (in the context of client confidentiality)?

1. Communication made by a means not intended to disclose the info to outsiders 2. Communicating person must reasonably believe no outsider will hear the contents

What does the A-C privilege cover when the client is a corporation?

1. Communications between atty and high-ranking official 2. Communications between atty and another employee if: a) Employee communicates with lawyer at superior's direction, b) Employee knows the purpose of the communication is for legal advice, AND c) Communication concerns a subject within the scope of employee's duties to act for the corp.

Exceptions to Imputed Disqualification

1. Conflict based on lawyer's uniquely personal interest (ex: relative) 2. Disqualified lawyer is screened (conflict will not be imputed if it arises out of her association w a prior firm PROVIDED the DQd lawyer is timely screened from participation in the matter and is given no compensation); written notice to client required

What are the exceptions in which a lawyer can have proprietary interest in the subject of litigation?

1. Contingent fee 2. Lien exception (atty allowed to secure payment of fee and repayment of advanced litigation expenses by taking a lien on proceeds of a client's case)

When is a contingent fee prohibited?

1. Criminal cases 2. Domestic relations cases (e.g., negotiating alimony -- HOWEVER, collection of alimony, etc. is ok) 3. Unreasonable contingent fee 4. When there is no writing signed by the client stating calculations, deductions, when deductions will be made, and what expenses client must pay regardless of outcome (note: at end of case, lawyer must provide statement to client)

What are the elements of establishing a malpractice claim of negligence?

1. Duty of due care (to clients, prospective clients, third parties); "reasonably atty" standard 2. Breach of due care 3. Causation (injury would not have happened but for L's negligence) 4. Damages

What are ways attorneys can breach their duty of care to a client (for purposes of malpractice negligence suits)?

1. Errors of judgment -- not liable if judgment was "well informed and reasonably made" 2. Knowledge of law -- know ordinary, settled rules of law and do research on what they don't know 3. Not calling in specialist -- if a reasonably prudent lawyer would've sent client to specialist

How is a lawyer-client relationship formed?

1. Assent: lawyer and client agree 2. Implied assent and reasonable reliance by the client 3. Tribunal appoints a lawyer to represent a client

What gives a lawyer authority to bind a client?

1. Actual authority (lawyer's belief) --> can be express or implied 2. Apparent authority (third party's belief) --> court or TP reasonably assumes lawyer has authority to act based on some manifestation from the client that the lawyer had authority NOTE: When it comes to settlement, and other client decisions, merely retaining lawyer is not enough to give the lawyer apparent authority

What are the exceptions to the prohibition on providing financial assistance to a litigation client?

1. Advancing litigation expenses (inc. contingent fees) 2. Paying costs and expenses for indigent client 3. Modest gifts when representing indigent client pro bono (but can't advertise on basis of gift-giving)

When can a lawyer set up a reciprocal referral agreement with another lawyer or nonlawyer?

1. Agreement not exclusive 2. Client must be told about agreement 3. Agreement must not interfere with professional judgment 4. Agreement can't be indefinite, and it must be regularly reviewed

How can a lawyer handle multiple representation conflicts? (4 steps)

1. Analyze facts/law of case and conclude L can effectively represent both clients 2. Disclose potential conflict to each C (inc. harm, alternatives, and disadvantages) 3.. Get informed consent in writing from clients 4. If conflict ripens, lawyer must repeat steps 1-3. Must withdraw from joint representation if a reasonable L would have to advise the two Cs not to consent. Can continue representing 1C if 2C gives informed consent in writing.

Lawyers must not participate in an aggregate settlement agreement unless ...

1. L assures clients have come to an agreement about allocation of settlement 2. L must disclose to each client all terms. May require L to share C's confidential info, so L needs informed consent to do that. 3. Each C gives informed consent in signed writing. Note: applies to civil settlement and joint plea bargain in crim case.

What are the two prongs of the rule against unauthorized practice of law?

1. Lawyer is subject to discipline for practicing in a jx where they are not admitted (can't represent they're admitted in that jx or practice with a "continuous presence" in that jx) 2. Lawyer is subject to discipline for assisting another person in the unlicensed practice of law

What are the two narrowly limited situations in which a lawyer can engage in permanent multi-jurisdictional practice?

1. Lawyers employed only by their client (e.g., in-house corporate lawyers; gov lawyers). Can render legal services but still need to seek admission pro hac vice for litigation. Note that foreign lawyers (e.g., in-house counsel for a corporation) may not directly advise their clients on US jx's law, but can consult with a local lawyer. 2. Legal services authorized by federal or local law (ex: patent prosecution)

When is fee-splitting among other lawyers permitted?

1. Lawyers within a firm 2. Separation and retirement agreements 3. Lawyers outside the firm, IF: a) total fee is reasonable b) split is in proportion to services performed by each lawyer, or some different proportion if each lawyer assumes joint responsibility for the matter, AND c) client agrees to split in writing that states share each lawyer gets

What are the remedies for fee disputes?

1. Liens (ex: can retain client's file until fee paid) 2. Retention of funds in trust account 3. Arbitration or mediation

What duties does a lawyer have to a client with diminished capacity?

1. Maintain a normal lawyer-client relationship, and treat them with attention and respect 2. When client faces risk of substantial physical, financial, or other harm, lawyer may take reasonable actions to protect them. (Ex: seeking appointment of guardian or surrogate.) Lawyer has implied authority to reveal confidential information while taking protective action, BUT ONLY to the extent necessary.

When does a lawyer's actual authority to represent a client end?

1. Matter is complete, or lawyer is fired/withdraws 2. Client dies (or dissolves, if organization) 3. Lawyer dies or is unable to continue (disbarment, disability, etc.) NOTE: Must notify third parties relying on authority

What communications is a lawyer required to make to a client?

1. Matters that require informed consent 2. Information about the status of the matter and means to be used 3. Admitting mistakes (ex: if lawyer believes they "materially erred" in representation, meaning it could harm/prejudice client or would cause client to consider firing the lawyer) 4. Client makes reasonable request for information 5. Client expects lawyer to do something illegal/unethical, and lawyer has to consult them and explain why they can't do that NOTE: Ok to limit communication to occasional reporting, for instance. Also ok to delay transmission of info to client if client would likely react imprudently to immediate communication. Court rule may also prohibit sharing info with client.

What are the lawyer's responsibilities when the client wants to engage (or engages) in conduct which constitutes crime/fraud?

1. Must advise client not to engage in such conduct 2. May discuss legal consequences of any proposed course of conduct 3. Must explain to client why they can't do what the client expects (if client wants to violate law or legal ethics rule, etc.) 4. Must explain why conduct would be unlawful 5. Must withdraw from representing client when client has begun illegal course of action

What are the four prongs of independent law practice?

1. No fee sharing with non-lawyers, with some exceptions 2. No partnerships with nonlawyers if ANY part of the partnership activities constitute legal practice 3. Must not practice in incorporated law firm/association authorized to practice law for profit if nonlawyer owns interest in firm/assn, nonlawyer is a corporate director or equivalent, or nonlawyer has right to direct/control lawyer's professional judgment 4. Must not allow a party who pays the lawyer to serve a client to interfere with legal judgment (ex: insurance company pays lawyer to prepare estate plans for potential customers)

What are the rules on restrictions on the right to practice?

1. No noncompetes -- limit lawyer's autonomy and limit client's freedom to choose a lawyer 2. No restrictive settlement agreements

When is a lawyer who provides ancillary non-law services (e.g. financial planning, tax returns, title insurance) subject to the RPC?

1. Nonlegal services and legal services provided together 2. Nonlegal services are provided by an entity other than their law office but controlled by the lawyer (exception: make it clear that atty-client protections don't apply to nonlegal services)

What are the exceptions to in-person (video, audio, IRL) solicitation of clients?

1. Other lawyers 2. Relative, friend, or prior professional contact 3. Routine business users of the type of services offered by lawyer (ex: small business owners, entrepreneurs, real estate agents)

What are the attorney's duties to their client upon termination of representation?

1. Reasonable notice 2. Time to obtain another attorney 3. Refund attorney's fees paid in advance and not yet earned, and expense advances not yet spent 4. Return all papers and property to which client is entitled

What are the two situations in which there is a concurrent conflict of interest?

1. Representation of one client will be directly adverse to another client (e.g., opposing sides on same matter); OR 2. Significant risk that representation of one client will be materially limited by L's own interest or L's responsibilities to another client, fmr client, or third person

What are 5 situations that concern "material limitation" (for conflict of interest purposes)?

1. Representing multiple Cs in same matter 2. Representing 2 Cs with inconsistent legal positions in two unrelated cases (ex: C1 argues for constitutionality of statute; C2 argues against) 3. Conflicts caused by lawyer's own interests (financial; close relatives) 4. Conflict between C's interest and third person's interest (ex: C's mom, who pays L's fees) 5. Conflicts raised by liability insurance (policyholder's or insurance company's interest)

When is sale of a law practice permitted?

1. Seller must cease to engage in private practice of law or in the sold field of practice in that jx] 2. Entire practice (or practice group) must be sold -- UNLESS buyer has conflict of interest with one of the clients 3. Written notice must be given to clients; consent implied if client takes no action in 90 days 4. Client fees won't increase because of the sale

What steps should a lawyer take if they offer a piece of evidence and later discover it is false?

1. Speak confidentially with C and urge their cooperation in withdrawing or correcting 2. Consider asking court's permission to withdraw 3. Withdrawal alone not sufficient; must move to strike false evidence or cancel its effect 4. Must disclose to judge if withdrawal not permitted or will not solve problem, even if doing so goes against client confidentiality

For conflict of interest, what does it mean for consent to be confirmed in writing?

1. Tangible or electronic record signed by client 2. Oral consent by client which is memorialized in a tangible or electronic record promptly sent to client Note: consent to aggregate settlement or business transaction with L must be signed by client

When is a lawyer subject to discipline for a disciplinary violation committed by a second lawyer? (Or a nonlawyer, e.g. a third-party printer?)

1. The first lawyer ordered the second's misconduct or knew about it and ratified it, or 2. The first lawyer is a partner/manager and has direct supervisory responsibility over the second lawyer, and knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action

When can a lawyer limit the scope of representation?

1. The limitation is reasonable under the circumstances 2. The client gives informed consent

What factors are considered in determining the reasonableness of a fee?

1. Time and labor required 2. Novelty or difficulty of questions involved 3. Skill necessary 4. Likelihood, if apparent to client, that work for this client will preclude lawyer from doing fee-paying work for others 5. Fee customarily charged in the locality for similar work 6. Amount at stake and results obtained for client 7. Time limitations imposed by client or circumstances 8. Nature and length of lawyer-client relationship 9. Experience, reputation, and ability of the lawyer 10. Whether the fee is contingent or fixed (contingent fee can be higher; requires lawyer to take a risk)

What is the ABA rule for when a criminal defendant has testified falsely or is about to do so in their own defense?

1. Try to convince client not to lie 2. Consider withdrawal, if that fixes the issue (if client won't tell truth) 3. Reveal situation to judge if all else fails

What constitutes professional misconduct?

1. Violation of rules of prof'l conduct (violate/attempt to violate any rules; knowingly assist/induce another to violate; use acts of another to commit a violation) 2. Certain criminal acts (relevant to law practice: dishonesty, breach of trust, interference w admin of justice, violence) 3. Dishonesty, fraud, deceit, misrepresentation (ex: cheating on bar exam) 4. Condcut prejudicial to administration of justice (note: rarely invoked) 5. Stating or implying ability to improperly influence officials 6. Assisting a judge (knowingly) in violation of judicial code 7. Harassment or discrimination in law practice (on your own time is fine tho). However, can still choose whom to represent, provide advice, and have DEI initiatives.

When can a lawyer have a sexual relationship with a client? Is there imputation?

1. When relationship predates L-C relationship (if C is an organization, this applies to anyone who directly consults with L on legal matters). Remember pre-existing relationship still may "materially limit" L-C relationship. 2. No imputation

What are the three considerations to determine whether something constitutes the "practice of law"?

1. Whether activity involves legal knowledge/skill beyond what a layperson has 2. Whether activity constitutes advice or services concerning binding legal rights or remedies (e.g., contracts, wills, trusts, estates plan) 3. Whether the activity is one traditionally performed by lawyers

What decisions must be made by a client?

1. Whether to accept a settlement offer 2. What plea to enter in a criminal case 3. Whether to waive a jury trial in a criminal case 4. Whether the client will testify in a criminal case 5. Whether to appeal

Which of the following is a valid requirement for admission to a state's bar? A. Applicant is willing to take oath to uphold state/fed constitutions B. Applicant is a citizen of the United States C. Applicant is a resident of the state in which they seek admission

A It is valid for a state to require an applicant for admission to the bar to take an oath to uphold the state and federal constitutions. An applicant who refuses to take such an oath may be denied admission because there is a rational connection between this requirement and the practice of law. However, a citizenship requirement violates the Equal Protection Clause. Similarly, a residency requirement violates the Privileges and Immunities Clause of the Constitution and is therefore invalid.

What is a solicitation?

A communication initiated by a lawyer or firm directed to a specific person the lawyer knows or reasonably should know needs legal services in the particular matter and that offers to provide (or can reasonably be understood to provide) legal services

Generally, lawyers must not share fees with nonlawyers. Which is NOT an exception to this rule? A. Paying paralegal a portion of fee based on how much work they did on the matter B. Paying death benefits to a deceased lawyer's estate C. Sharing court-awarded legal fee with the nonprofit that hired or recommended the lawyer in the matter D. Purchasing the law practice of a deceased, disabled, or disappeared lawyer E. Paying the firm's administrative assistants a salary or bonus

A lawyer generally can't share fees with a nonlawyer, except for the scenarios laid out in (B)-(E). The situation in (A) is a classic example of prohibited fee-splitting. A lawyer may of course pay nonlawyer employees in accordance with a regular compensation plan, profit-sharing bonus, etc. However, sharing a specific fee with a nonlawyer employee (e.g., based on their work in the case) is prohibited.

Can a lawyer oppose a former client?

A lawyer must not represent a client whose interests are materially adverse to those of a former client in a matter the same as or substantially related to a matter in which the lawyer represented the former client. Extends to clients of lawyer's former firm; DQ'd lawyer must be screened. Substantially related: substantial risk that confidential info previously obtained would materially advance new client's position Exception: Former client gives informed consent, confirmed in writing.

When does a lawyer have a duty to report professional misconduct?

A lawyer who KNOWS another lawyer/judge has violated the RPC in such a way that it raises a SUBSTANTIAL question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer must report the violation. Knowledge = more than mere suspicion Sanctions for violation = sanctions for failure to disclose Exceptions = Confidential information (atty-client relationship); lawyers' assistance programs

Attorney-Client Privilege vs. Client Confidentiality

A-C privilege: evidence law; court can't compel revelation of confidential communications between atty and client Confidentiality: ethical duty preventing atty from voluntarily revealing any/all information relating to client representation (broader than A-C privilege). Applies to disclosure and use of info.

Kristen misses a statute of limitations in Howard's case, and Howard gets very upset. Kristen wants to resolve the matter quickly and quietly, so they meet in her office and she gives Howard a written offer for $50,000 in exchange for his promise not to sue her for missing the statute of limitations. The offer letter advises Howard to seek the advice of an independent lawyer about the settlement. Kristen tells Howard that the offer is only valid for 24 hours. Howard accepts the offer on the spot. Is Kristen subject to discipline? A. Yes, because the offer was only valid for 24 hours B. Yes, because Howard wasn't independently represented in the settlement C. No, because she advised him in writing to seek independent counsel

A. Yes, because of the 24-hour limit. The law favors the amicable settlement of claims. Thus, L may settle a malpractice claim/potential claim, but only if L first advises the client in writing to seek the advice of an independent lawyer and gives the client a reasonable chance to obtain such advice. 24 hours is not a "reasonable chance." (Contrast this rule with the rule for prospectively waiving or limiting malpractice liability. In that situation, the client must be independently represented.)

What are the similarities and differences between an advance fee payment and a retainer?

Advance payment: OK, but lawyer must refund any unearned part of the advance if fired/withdraws Retainer fee: money paid solely to ensure lawyer's availability; lawyer who is fired or withdraws does not usually need to refund the retainer fee

Miguel and Brendan are brothers-in-law and are both lawyers. One day, Brendan pulls Miguel aside at a holiday gathering and tells Miguel he needs legal advice. Miguel agrees to help, and Brendan tells Miguel that he has been stealing small amounts of money from many clients to support his gambling addiction. Miguel tells Brendan to hire another lawyer. What should Miguel do next? A. Report Brendan's violation to the appropriate disciplinary authority, because it raises a substantial question about his honesty and fitness. B. Keep the info confidential.

B. Brendan's misconduct raises a substantial question as to his honesty and fitness to practice law. Ordinarily, another lawyer who learns of such conduct must report it to the appropriate professional authority. However, this rule does not require disclosure of information protected by the duty of confidentiality to a client. Here, Miguel knows of Brendan's conduct only because Brendan consulted him for legal advice—Miguel was acting as a lawyer, not a brother-in-law. Miguel has a duty of confidentiality to Brendan, even though they did not continue their attorney-client relationship.

Abby is licensed to practice in State A but received "pro hac vice" permission from State B to represent a client in a lawsuit in State B court. During the State B litigation, Abby does something that violates the rules of professional conduct of State B. However, the action is permitted under State A's rules. State B's choice of law rule follows the ABA model rule. Which state's rule will apply to Abby's conduct? A. State A, because that's where she is licensed. B. State B, because that's where the litigation took place. C. Each state can apply their own rule and discipline Abby.

B. State B, where the litigation took place. Although each state can discipline Abby, a lawyer's particular conduct is governed by only one set of disciplinary rules. Therefore, (C) is wrong. The choice of law rules are as follows: If the conduct in question occurred in connection with a proceeding that was pending before a tribunal, the ethics rules of the jurisdiction in which the tribunal sits will be applied, unless the tribunal's rules provide otherwise. For any other conduct, the rules of the jurisdiction in which the predominant effect of the conduct occurred will apply (but note that if the lawyer reasonably believed that the predominant effect would be somewhere else, the lawyer won't be subject to discipline if the conduct would have been proper in that other jurisdiction).

Maria is working on a class action lawsuit against a pharmaceutical company. Which members of the class could Maria sue on behalf of another client in an unrelated matter without obtaining any type of consent? A. Both named and unnamed class members B. Unnamed class members only C. Neither named nor unnamed class members

B. Unnamed members only. In class action litigation, the unnamed members of a class ordinarily are not regarded as clients for purposes of the "direct adversity" conflicts rule. Therefore, Maria can sue an unnamed class member in an unrelated matter without obtaining their consent.

Michelle is an estate planning lawyer. She wants to ask her client Pierre to make her the executor of his estate, which promises to be a lucrative position. Michelle and Pierre have no family relationship. May Michelle proceed? A. No, because L must not solicit substantial gift from C unless related. B. Yes, provided L addresses any "material limitation" conflict based on her personal interest in obtaining the position.

B. Yes, provided she addresses material limitation. Gifts rule doesn't prohibit L from seeking to have herself or her colleague named as executor of an estate or counsel to the executor or to some other fee-paying position. There may be a general conflict, though, if L's interest in obtaining the appointment will materially limit the lawyer's judgment in advising the client concerning the choice of an executor or other fiduciary. L would need to get C's informed consent, confirmed in writing, and explain her financial interest as well as the availability of alternative candidates for the position.

A start-up company hires Larry to incorporate its business. The start-up is low on cash and proposes giving Larry stock in the company in exchange for his services. Is this proper? A. No; it constitutes a proprietary interest in the representation. B. Yes, as long as Larry meets the requirements for a business transaction with a client.

B. Yes. A lawyer must not take a proprietary interest in a cause of action or in the subject matter of litigation the lawyer is conducting for a client. This is not a litigation matter; Larry is merely incorporating the start-up company. A lawyer may accept property, such as stocks, in lieu of money as long as the requirements for a business transaction are met.

While in private practice, Owen represented BuildCo in their application for a building permit. Owen now works as a lawyer for the local government agency that is evaluating BuildCo's application. Under what circumstances can Owen work on the BuildCo matter?

Both BuildCo and the government agency have to consent. The ordinary conflict rules apply to a lawyer who enters government service after private practice or other nongovernmental work. Owen has a former-client conflict with BuildCo, because he is working on the other side of a matter in which he represented BuildCo. Thus, he needs BuildCo's consent. Additionally, if a lawyer worked personally and substantially on a matter in private practice or other nongovernmental employment, the lawyer must not work on that same matter when he later enters government service, unless the agency gives informed consent, confirmed in writing.

C&F: During the investigative procedure, who has the burden of proof, and what are applicant's duties? Procedural rights?

Burden of proof for establishing good moral character: applicant Duties: Duty to cooperate and make disclosures Rights: due process and judicial review

Calvin is admitted to practice in State A but received "pro hac vice" permission from State B to represent a client in State B court. During the State B litigation, Calvin commits misconduct. Which state can discipline Calvin for his misconduct? A. State A only B. State B only C. Both states

C. Both states A lawyer is subject to regulation by each state in which the lawyer is admitted to practice, regardless of where the lawyer actually practices law or where the lawyer's conduct occurred. A lawyer is also subject to discipline in any other state where the lawyer provides or offers to provide legal services. Calvin is admitted to practice in State A and was practicing on a temporary basis in State B. Calvin is subject to discipline in both states.

The requirements for business transactions with clients (e.g., must be fair and reasonable to client; must obtain informed consent in a signed writing) have to be met in all of the following situations, EXCEPT: A. L accepts non-monetary property as legal fee B. L who owns separate title ins business sells title ins to C C. L who represents bank takes out standard home loan from that bank D. L buys C's boat E. L leases second home to C

C. L who represents bank takes out a standard loan. The rule for business transactions and adverse financial interests does not apply to: (i) an ordinary fee agreement between a lawyer and client, or (ii) standard commercial transactions in which the lawyer buys goods or services that the client routinely markets to the public.

Attorney Brad tried to murder a witness in a case he was working on. He was eventually acquitted at trial on a technicality. Is Brad subject to discipline? A. No; he wasn't convicted. B. No; his crime didn't involve dishonesty. C. Yes; the crime reflects adversely on his fitness. D. Yes; the crime was connected to his law practice. E. Yes; any crime reflects poorly on the legal profession

C. Yes, the crime reflects adversely on his fitness as a lawyer. Most crimes involving violence reflect on the lawyer's fitness to practice law. Brad is subject to discipline for his serious crime of violence. (A) is wrong because a conviction is not required. (B) is wrong because the crime need not involve dishonesty. (D) is wrong because a lawyer is subject to discipline even if the crime was unrelated to the lawyer's practice. (E) is wrong because not all crimes will necessarily trigger professional discipline.

What items can be billed to the client? What items can't be billed to the client?

CAN: Legal services and expenses CAN'T: Ordinary overhead expenses, BUT can charge for actual costs to the attorney of services such as photocopying, delivery, computer research, secretarial overtime, calls, etc.

When can a lawyer withdraw from representing a client?

Can withdraw for any reason if no material adverse effect on client's interests or if client consents. If material adverse impact, can withdraw if: 1. Client persists in criminal or fraudulent conduct 2. Client has used the attorney's services in past to commit crime/fraud 3. Client breaks promise to attorney (e.g., refuses to pay fee or appear for scheduled hearings) 4. Client's objective is repugnant to lawyer 5. Financial hardship for attorney 5. Client will not cooperate; unreasonably difficult 6. Other good cause (catch-all provision)

What is the rule on feesplitting with nonlawyers and temporary lawyers?

Cannot share legal fees with nonlawyers, UNLESS: 1. Death benefits permitted (when lawyer dies, firm can pay death benefit to estate) 2. Compensation/retirement plans for nonlawyer employees (e.g., 10% of funds go to everyone's year-end bonuses) 3. Sale of a law practice (buyer of a dead, disabled, or disappeared lawyer's practice can pay estate or representatives) 4. Sharing court-awarded fee with nonprofit

What ethics duties does a subordinate lawyer have regarding clear ethics violations? Debatable ethics questions?

Clear violations: "orders from supervisor" is not an excuse, but can be relevant to determine whether the subordinate had knowledge required for some violations Questionable: No violation if acting in accordance with supervisor's reasonable resolution of an arguable question of professional duty (if supervisor's judgment was wrong, subordinate should not be disciplined for doing what the supervisor directed)

What are the conditions for a lawyer to practice across state lines? What are the 5 situations that allow practice on a temporary basis?

Conditions: Admitted in one state and not disbarred or suspended in any state Five temporary-basis situations: 1. Association with local lawyer actively participating in the matter 2. Admission pro hac vice: Request special permission to practice in local tribunal for a specific matter (can engage in preliminary activities in the state when pending, i.e. client meetings, doc review, interviewing witnesses) 3. Mediation or arbitration arising out of practice in home state 4. Other temporary practice arising out of home state practice (catch-all provision: e.g., State A client wants to buy land in State B; atty licensed in A can negotiate lease in State B) 5. Foreign lawyers can use circumstances 1-4, and may provide legal services if services governed primarily by int'l law. Pro hac vice requests subject to greater scrutiny; judge can still limit participation.

A lawyer is subject to discipline for having their nonlawyer employee: (select all that apply) A. Negotiate a settlement for a client B. Interview a client without the lawyer present C. Research and draft a motion for the lawyer's review D. Appear in court on a client's behalf E. Advise a client on the legal consequences of what they intend to do

Answer: A, D, E

A lawyer is subject to discipline for which of the following acts? (Pick all that apply). A. Refusing to consider female associates for partner if they're of child-bearing age. B. Choosing to represent mostly male clients in child custody disputes. C. Making an effort to recruit diverse employees. D. Using an ethnic slur towards a guest at a bar association event. E. Insulting a family member's sexual orientation during Thanksgiving. F. Mocking a witness's religious clothing at a deposition.

Answer: A, D, F

The Sarbanes-Oxley Act imposes additional obligations on securities lawyers who come across evidence of a material violation of the securities laws by their client. How does the Sarbanes-Oxley Act differ from the ethical rule relating to violations by organizational clients?

Answer: It requires a securities lawyer to report a violation to specific authorities within the company, whereas the ethical rule gives lawyers some discretion on whom to report it to. If nothing is done by the chief legal officer (CLO), then the lawyer may reveal to the SEC to the extent reasonably necessary to (1) stop the client, (2) rectify financial injury, or (3) prevent client from committing perjury in SEC matter

Prosecutor Neve is preparing for the high-profile murder trial of Dylan, who allegedly killed his wife. Neve learns that the sheriff is planning to hold a press conference to inform the public that Dylan was carrying on multiple extramarital affairs before his wife's death. What must Neve do?

Answer: Take reasonable care to prevent the sheriff's press conference. Reason: Could prejudice trial. L can't make statements with "substantial likelihood of heightening public condemnation of the accused." Also must take reasonable care to prevent investigators, etc. from making statements that violate these rules. Exceptions: Statements (a) necessary to inform the public of the nature and extent the action and (b) that serve a legit law enforcement purpose

Alison e-mails her lawyer, Bill, about a sensitive matter. Alison then forwards the e-mail to a friend. The e-mail is protected by: A. Atty-client privilege only B. Bill's duty of confidentiality only C. Neither ACP nor duty of confidentiality D. Both ACP and duty of confidentiality

B. Bill's duty of confidentiality only. By forwarding the e-mail to a third party, Allison waived her attorney-client privilege. However, the ethical duty of confidentiality applies to information relating to the representation even if some third parties know about it.

Does giving tax advice count as unlicensed practice of law?

Giving advice on a tax law would probably be unauthorized practice of law, but an accountant or other layperson may prepare tax returns and answer questions incidental to the preparation of returns.

Can a lawyer give clients gifts? (And vice versa?)

If close familial relative, yes. 1. Lawyer must not solicit substantial gift, but accepting small token or holiday gift ok (accepting substantial gift ok but may be voided) 2. Preparing legal instrument that creates substantial gift (ex: will) prohibited except for relatives

Choice of Law in Disciplinary Proceedings

If conduct occurred in connection with a proceeding pending before a tribunal, ethics of that tribunal will be applied, unless the tribunal's rules say otherwise. For any other conduct, rules of the jx in which the conduct occurred will apply, but if the PREDOMINANT EFFECT of the conduct is in another jx, the affected jx's rules apply. Conflicts of interest: choice of law agreements are permitted

When can a lawyer represent a client despite a concurrent conflict of interest?

Informed consent: 1. L reasonably believes he can competently represent each C, 2. Representation not illegal, 3. Representation doesn't involve asserting a claim by one C against another C in the same litigation, AND 4. Each affected client gives informed consent, in writing

What is the lawyer's duty concerning conflict of interest to a prospective client? What are the exceptions?

L who obtains confidential info during a consultation must not later represent someone else in the same/substantially related matter if the confidential info could significantly harm the PC. Conflict imputed, but can overcome by screening. Exceptions: 1. Informed consent, in writing, from affected client and PC. 2. Overcome all the following: a) Demonstrate L took care to avoid any exposure to more confidential info than necessary to decide whether to represent PC; b) Demonstrate DQ'd L is timely screened and will not fee share; c) Give written notice to the PC.

What are the ethics duties of partners, managers, and supervisory lawyers?

Make reasonable efforts to ensure other lawyers adhere to RPC

Can a lawyer acquire literary or media rights concerning a client's case?

No (if story based substantially on L's representation of C). Can get those rights after representation entirely completed. If literary/media rights not substantially based on representation, then it's ok.

Can lawyers receive referral fees?

No -- true referral fees are unethical, but lawyers can set up a "reciprocal referral arrangement" in which each party agrees to refer clients or customers to the other. (Arrangement cannot be exclusive, and client must be informed of arrangement.)

Five years ago, Lynette regularly represented ApartmentCo in breach of contract lawsuits against tenants who had violated their leases. However, the representation ended when ApartmentCo transferred their cases to in-house counsel. Mariah now wants Lynette to defend her in a breach of contract lawsuit brought by ApartmentCo concerning a lease that she signed six months ago. Is there a conflict?

No conflict. L must not represent one C whose interests are materially adverse to those of a former C in a matter that is substantially related to a matter in which the lawyer represented the former client, unless the former client gives informed consent, confirmed in writing. However, if a lawyer routinely handled a type of problem for a former client, the lawyer may later oppose that former client in a factually distinct problem of the same general type. Lynette handled breach of contract lawsuits for ApartmentCo five years ago. Mariah is asking her to challenge a lease that she signed six months ago. The representation would involve a factually distinct problem—whether Mariah broke her lease. There is no conflict here, and Lynette may proceed without ApartmentCo's consent.

Can a lawyer and client agree to waive the lawyer's malpractice liability?

No, UNLESS client is separately represented by independent counsel (must ACTUALLY be represented). Can require arbitration of legal malpractice claims.

Caleb and Jeremy are running for district attorney. Lorelei used to work with Jeremy, and she writes an editorial endorsing Caleb. In the editorial, she gives her honest and candid opinion that Caleb's opponent, Jeremy, does not have the temperament required for the job. Is Lorelei subject to discipline?

No, because she gave her truthful opinion. L must not make a statement that L knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office. The same rule applies to statements made with reckless disregard as to truth or falsity. However, this rule doesn't prohibit a lawyer from giving an informed and candid opinion.

Judge Jasmine is a full-time federal judge. The judge's daughter is a public school teacher who is being let go from her job. Her daughter asks Judge Jasmine to attend the hearing on her termination as her lawyer. May Judge Jasmine attend the hearing as a lawyer

No, because she is a full-time judge. She may not attend as her daughter's lawyer. The exception for family members applies only for drafting and reviewing documents; judges can never act as a family member's lawyer in any forum.

Divorce lawyer CeeCee joins a service called "JusticeMatch," in which consumers go to a website, select their legal problem, and are provided with a list of lawyers who provide services in that field of law. Because CeeCee purchased a premium membership, she will have an icon next to her name that says "Best Match" whenever she appears on a list. Was it proper for CeeCee to join JusticeMatch?

No, because she paid for a recommendation. A communication by the lead generator is false or misleading if it creates a reasonable impression that: (i) it is recommending the lawyer; (ii) it has analyzed the person's legal problems when determining whether to refer the person to the lawyer; or (iii) it is making the referral without any payment from the lawyer. JusticeMatch at least appears to recommend lawyers who are "premium members" over those who aren't, so CeeCee is subject to discipline for joining the service.

Lucy practices in State A and has extensive experience and training in the field of Internet privacy law. Her bio page on her firm's website includes the following statement, which reads, in total: "I specialize in Internet privacy law. The standards for certification in State A are very high, and only the most experienced and highly trained practitioners receive this honor." Is the statement proper?

No, even if she's been certified as a specialist approved by State A. Lucy implied she was certified. Even if Lucy was in fact certified, she failed to clearly name the certifying organization.

If a lawyer violates a legal ethics rule, does that automatically mean they have committed malpractice?

No, nor does it create a presumption of malpractice. Ethics rules are separate, though violations do count as relevant evidence that the conduct was below the appropriate standard of care

Beth, an entertainment lawyer, forms a partnership with Jeff, a nonlawyer talent agent. The partnership's purpose is to provide clients with a "one stop shop" for their needs. Beth provided legal services on one side of the office, and Jeff worked as a talent agent on the other side of the office. Jeff never did any legal work, and Beth made sure to warn all clients that the protections of the attorney-client relationship did not apply to their dealings with Jeff. Is Beth subject to discipline?

No. A lawyer must not form a partnership with a nonlawyer if any part of the partnership activities constitute law practice. Make sure to distinguish this rule from the law-related services rule. It would have been proper for Beth to control a separate entity that provided law-related services. However, Beth would have been subject to the rules of professional conduct with respect to the non-legal services unless she made it clear that the protections of the attorney-client relationship did not apply.

Angela, a prospective client, visits John's office and says, "I want advice on how to embezzle money and get away with it." John advises Angela not to carry out her plan and they do not move forward with an attorney-client relationship. Angela embezzles money from her employer, and John is subpoenaed to testify at Angela's criminal trial. Is the conversation privileged?

No. The attorney-client privilege applies to consultations with prospective clients, but the attorney-client privilege doesn't apply if the client is seeking the attorney's services to engage in or assist a future crime or fraud.

Attorney Selin suspects that Phil, her supervisor, is stealing from clients because he suddenly purchased several luxury items and seems "off." Selin does not report this to a disciplinary authority. Is Selin subject to discipline?

No: A lawyer who knows that another lawyer has violated the rules of professional conduct in such a way that it raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer must report the violation to the appropriate professional authority. "Knowledge" means actual knowledge, and although knowledge can be inferred from the circumstances, it has to be more than mere suspicion. Stealing from clients would raise a substantial question about Phil, but because Selin only suspects that Phil is stealing, there is no mandatory duty.

Can lawyers talk shit about the qualifications or integrity of a judge, hearing officer, or other public legal official/candidate for judicial/legal office?

Not if the lawyer knows the statements are false! (Same rule applies to statements made with reckless disregard as to truth or falsity.)

Can a lawyer who leaves government service and goes to a firm represent a private client in a matter they worked on personally? (& vice versa)

Not if the lawyer's participation in the matter (narrowly defined; specific matter) was personal and substantial, UNLESS the government gives informed consent, confirmed in writing. Imputed disqualification at firm, unless lawyer is timely screened, doesn't fee share, and notice given to government.

Can a person working on a matter in government service negotiate for private employment with a party/lawyer involved in that matter?

Not if they are currently working personally and substantially on the matter. Exception: judges' and adjudicative officers' law clerks who are seeking jobs after their clerkships end

Is the duty of confidentiality destroyed by a third party's presence?

Not necessarily. Remains confidential even if third party knows, unless info becomes generally known. Info is not generally known if it can be obtained only by means of special knowledge, substantial difficulty, or substantial expense.

Can a lawyer ask a client to consent to conflicts of interest which may arise in the future?

Only if it is: 1. Reasonable to do so, and 2. The client truly understands the kinds of conflicts which may arise and the consequences of consenting

Exceptions to Attorney-Client Privilege

Pre-existing documents and things (ex: client can't give HR records to attorney to protect them from discovery)

What is the rule (and what are the exceptions) about business transactions with clients?

Rule: L must not enter into business transaction with C or knowingly acquire ownership, possessory, security, or money interest adverse to client, UNLESS: 1. Terms of transaction fair to C, 2. Terms fully disclosed to C in writing; must cover essential terms and L's role in transaction, 3. C advised in writing to get advice of independent L, AND 4. C gives informed consent, in a SIGNED writing

Who regulates the legal profession?

STATE: Courts (ethics rules like ABA Model; case law, court rules), Bar Associations, State Legislatures (evidence statutes defining scope of atty-client privilege, etc.) FEDERAL: Courts (statutes, case law, court rules); court bars, government attorneys; statutes (e.g., SOx mandatory reporting) MULTISTATE: subject to regulation in each state where admitted, regardless of where the atty actually practices or where the conduct occurred. If state rules in conflict, choice of law rules apply.

C&F: What conduct is relevant to moral character? What isn't?

TLDR: Anything that reflects on honesty and integrity, including charges that were dropped/acquitted. 1. Criminal conduct involving moral turpitude/dishonesty (forgery, bribery, theft, perjury, extortion) or violence. Adolescent behavior not necessarily relevant. 2. Rehabilitation -- can be admitted if you demonstrate sufficient rehabilitation of character & present fitness 3. Concealment of past conduct constitutes moral turpitude (even if underlying conduct isn't moral terpitude) 4. Political activity (e.g., refusing to take oath to uphold constitution). Mere party membership is not sufficient to deny admission. NOT RELEVANT: Citizenship and residency

Can a lawyer represent multiple clients in the same matter?

Technically yes, but really no. Criminal: Because interests of co-defendants likely diverge, a lawyer should not try to defend two people in a criminal case. Civil: L can represent them, but conflict must be addressed. Nonlitigation: Whether there's COI depends; if conflict, must address it.

Lorenzo visits the owner of a shopping mall and says, "I heard you're planning to lease out your top floor to a new department store. I know you always hire large firms to do your leasing work, but I have extensive experience in this field, and I'd like you to consider me for the job." Is this solicitation, and if so, is it proper or prohibited?

This is proper solicitation. Live person-to-person contact with routine business users of the type of services offered is generally allowed. Lorenzo's reference to the owner "always" hiring other firms for leasing work demonstrates that the owner is a routine user of these services.

Sonya previously worked at Firm A. While she was there, Firm A worked on the Fisher v. Baker case, representing Fisher. Sonya obtained confidential information about the case while at Firm A. Sonya has now moved to Firm B, which represents Baker in the same case. Fisher does not want Sonya or anyone else at Firm B working on the case. May Sonya's colleagues at Firm B continue to work on Fisher v. Baker?

Yes, as long as they screen Sonya from the case, apportion no part of the fee to Sonya, and give notice and updates to Fisher. ALTERNATIVELY, Fisher could give consent, but here, they didn't.

Judge Jasper is a full-time state court judge. His best friend Bailey asked Jasper to draft a contract for him. Jasper took a couple of hours on the weekend and drafted the document as a favor to his friend. Is Judge Jasper subject to discipline?

Yes, because a full-time judge must not practice law. The exception for family members does not apply, because Bailey is his best friend, not family.

Jerry is on the board of directors of the local legal aid society. The society is in dire financial straits and proposes to end free legal service in landlord-tenant disputes. Jerry represents several apartment complexes in the area. He discloses to the society that some of his clients would benefit from the decision, and then votes for the proposal. Is Jerry subject to discipline?

Yes, because he participated in the vote. L may serve as a director, officer, or member of a legal services org even where the org serves persons whose interests are adverse to L's regular clients. However, L must not knowingly participate if doing so would be incompatible with L's obligations to a client under the general conflict of interest rules. Furthermore, L can't knowingly participate if doing so could adversely affect the representation of one of the org's clients whose interests are adverse to those of L's other clients. The proposal could have had an adverse effect on clients of the society who are adverse to Jerry's client, so he should not have participated in the vote at all.

While working as a public defender, James researched and drafted an evidentiary motion for the State v. Miller case at the request of the attorney handling the case. James has moved on to private defense work, and the State v. Miller case is ongoing. Defendant Miller decides to fire his attorney and hire James. Must James seek the consent of the public defender's office before representing Miller?

Yes, because he was involved in the case as a government employee. It doesn't matter if he is on the same side.

Judge Jun does not belong to a country club. His friend belongs to an exclusive golf club that does not permit women or gender nonconforming individuals to join. His friend invites the judge to a fundraiser for the children's hospital at the country club. The event is open to everyone. Is it proper for Judge Jun to attend?

Yes, because the fundraiser is an isolated event that would not be construed as the judge endorsing the club's practices.

Firm A and Firm B have been in merger discussions for some time, but they are concerned about possible conflicts of interest. Firm A asks Firm B to send a list summarizing each of its matters, including the name of the client involved, a brief summary of the general issues, and the estimated value of the claim. Firm B complies. Is Firm B subject to discipline?

Yes, but only for disclosing the estimated value of each matter. The value of the claim has nothing to do with whether there is a conflict of interest.

Moira represents LocalQuik, a convenience store. LocalQuik asks Moira to attend a city council meeting and argue against a proposed tax on soft drinks. Moira attends the meeting and presents both legal and economic arguments against the tax. LocalQuik urges Moira to "keep their name out of it" if she can. Must Moira volunteer to the city council that she is acting in a representative capacity?

Yes, but she doesn't have to identify her client.

Can a lawyer participate in law reform activities that affect their clients' interests?

Yes, even if the reform may harm one of their clients. HOWEVER: Lawyer must disclose when the reform would materially benefit a client, though they don't need to identify the client.

Can a lawyer serve as an officer, director, or member of a legal services org (separate from their regular employment) if the org serves persons whose interests are adverse to the lawyer's regular requirement?

Yes, with limitations: L must not knowingly participate in the org's decision or action if doing so would ... 1. Be incompatible with L's obligations to client under general conflict of interest rules 2. Adversely affect the representation of one of the org's clients whose interests are adverse to those of a client of the lawyer

Terrell previously worked at Firm A, and while he was there, Firm A worked on the Smith v. Jones case, representing Smith. Terrell did not work on the case and did not otherwise obtain confidential information about the case. Terrell has now moved to Firm B, which is representing Jones in the same case. May Terrell work on the Smith v. Jones case without Smith's consent?

Yes. A lawyer's duties may extend not only to the clients he represented personally, but also to clients of the lawyer's former firm. A lawyer whose firm formerly represented a client in a matter and who acquired protected confidential information or information pertaining to the representation may not thereafter represent another person in the same or a substantially related matter if that person's interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing. However, there is no conflict if the lawyer didn't not acquire confidential information while at the former firm. Because Terrell didn't obtain any information about Smith v. Jones while at Firm A, he may work on the case at Firm B without Smith's consent.

Aidan participates in a "quick advice hotline" sponsored by a local nonprofit organization. He properly obtains each caller's informed consent to the limited scope of the representation. Aidan gives advice to Josiah, knowing a different attorney at his firm is representing a client against Josiah in a different case. Is Aidan subject to discipline?

Yes. When L participates in a quick-advice service, client conflict rules don't apply unless the lawyer actually knows that giving the quick advice creates a conflict of interest. Aidan knew he had a conflict when he gave advice to Josiah, so he'll be subject to discipline (recall that even though Aidan's partner was representing the client against Josiah, that conflict was imputed to Aidan).

Bar applicant Tom hires his old law professor Aisha in connection with his bar application. Tom tells Aisha that there were charges of plagiarism filed against him during college, but these charges were eventually dropped when the accusing professor died. Aisha does not believe Tom would have committed plagiarism. The state bar contacts Aisha as a character reference and asks, "Do you know of any past or current allegations of dishonesty against the applicant?" Aisha responds, "No, I do not." Is Aisha subject to discipline?

Yes: An applicant for admission to the bar, or a lawyer in connection with a bar admission application, must not knowingly make a false statement of material fact. Additionally, an applicant, or a lawyer in connection with an applicant's application for admission, must not: (i) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or (ii) knowingly fail to respond to a lawful demand for information from an admissions authority. This rule doesn't, however, require disclosure of information otherwise protected by the confidentiality provisions of the rules of professional conduct. Here, Aisha will be subject to discipline because she made a false statement of material fact to the state bar—she did know about the plagiarism allegation. But note that if she had simply refused to respond to the question (rather than lying), she would NOT be subject to discipline because she gained the information while representing Tom as a client—it is protected by her duty of confidentiality.

Tabitha asks her lawyer, Javier, to file a personal injury lawsuit against FurnitureCo. Javier has been FurnitureCo's real estate lawyer for years and has steadily represented them in various real estate matters. However, the last matter ended two weeks ago, and he has no pending matters open for them. Javier decides that when FurnitureCo sends him the next matter, he will decline it. Without seeking consent from FurnitureCo or Tabitha, Javier accepts the representation of Tabitha and files the complaint. Is Javier subject to discipline?

Yes: Javier's representation of Tabitha is directly adverse to FurnitureCo. If FurnitureCo were a former client, there would be no conflict here because the personal injury lawsuit and the real estate closings are not substantially related. However, it doesn't appear that Javier clearly ended his longstanding relationship with FurnitureCo. Thus, the rules for conflicts between current clients apply. A lawyer must not represent a client if the representation will be directly adverse to another current client, unless the lawyer reasonably believes he can competently and diligently represent them both, and both clients provide informed consent, confirmed in writing. Because Javier is representing Tabitha against FurnitureCo, and failed to get consent from either client, Javier is subject to discipline