Professional Responsibility
Rule 6.2
(Accepting Appointments) A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: a) Representing the client is likely to result in violation of the Rules of Professional Conduct or other law, b) Representing the client is likely to result in an unreasonable financial burden on the lawyer, c) The client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client
California Rule 1-400
(Advertising and Solicitation) A communication is presumed to be a violation if: a) There is a guaranty, warranty, or prediction regarding the result, b) There is a testimonial, unless there is an express disclaimer, c) The lawyer knows or should reasonably know that the prospective client is in such a physical, emotional, or mental state that he or she would not be expected to exercise reasonable judgment, OR d) The lawyer is at the scene of an accident or is on route to a hospital, emergency care center, or other health care facility
California Business and Professions Code 6126(a)
(Advertising or Holding Oneself Out as Practicing or Entitled to Practice Law Without Being Active Member of State Bar) Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, is guilty of a misdemeanor
Rule 7.2
(Advertising) A lawyer shall not give anything of value to a person recommending the lawyer's services except that a lawyer may refer clients to another lawyer or a non-lawyer professional, pursuant to an agreement not otherwise prohibited under these Rules if the reciprocal referral arrangement is not exclusive, and the client is informed of the existence and nature of the agreement [Comment 8 - a reciprocal referral arrangement must not interfere with the lawyer's professional judgment as to making referrals or as to providing substantive legal services - reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with the Rules]
Rule 2.1
(Advisor) In representing a client, a lawyer shall exercise independent professional judgment and render candid advice (in rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client's situation) [Note: You need to be both an advisor and an advocate] [Comment 1 - explains that legal advice often involves unpleasant facts and alternatives, and that a lawyer should not be deterred by the prospect that the advice will be unpalatable to the client]
California Rule 3-310(B)
(Avoiding the Representation of Adverse Interests) In CA, the discretion is taken away in regards to needing consent 1) A member shall not accept or continue representation of a client without providing written disclosure to the client where the member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter 2) A member shall not accept or continue representation of a client without providing written disclosure to the client if the member knows or reasonably should know that the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter, AND the previous relationship would substantially affect the member's representation 3) A member shall not accept or continue representation of a client without providing written disclosure to the client if the member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter 4) A member shall not accept or continue representation of a client without providing written disclosure to the client if the member has or had a legal, business, financial, or professional interest in the subject matter of the representation [Note: California Rule 3-310(A)(2) - "informed written consent" means the client's or former client's written agreement to the representation following written disclosure]
Rule 8.1
(Bar Admission and Disciplinary Matters) An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:1) Knowingly make a false statement of material fact; or 2) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority (except that this rule does not require disclosure of information otherwise protected by Rule 1.6)
Rule 3.3(a)(2)
(Candor Towards the Tribunal) A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
Rule 3.3(a)(1)
(Candor Towards the Tribunal) A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer
Rule 3.3(a)(3)
(Candor Towards the Tribunal) a) A lawyer shall not knowingly offer evidence that the lawyer knows to be false b) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false (exception - testimony of a defendant in a criminal matter) (Note: In CA, criminal defendants, even if you know that they are lying, can still take the stand via "narrative method") [Comment 8 - The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false - Knowledge that the evidence is false can be inferred from the circumstances - A lawyer should resolve any doubts about the veracity of testimony in favor of the client; however, the lawyer cannot ignore an obvious falsehood] [Comment 10 - If you file an affidavit, and then find out that such affidavit is false: Remonstrate the client and try to withdraw, if necessary; if one cannot withdraw, might have to disclose to the tribunal] [Comment 13 - The conclusion of the proceeding is a reasonably definite point for the termination of the obligation to rectify false evidence or false statements]
Rule 1.14
(Client With Diminished Capacity) a) The lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with a client, despite the client being a minority or a client suffering from mental impairment b) The lawyer may take reasonably necessary protective action when the lawyer reasonably believes that: The client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client's own interest [Comment 1 - Maintaining the ordinary client-lawyer relationship with a client who is either a juvenile or one with a diminished capacity might not be possible in all respects, but such a client often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being] [Comment 6 - factors in determining the extent of the client's diminished capacity: 1) The client's ability to articulate reasoning leading to a decision, 2) The variability of the client's state of mind, 3) The ability for the client to appreciate the consequences of a decision, 4) The substantive fairness of a decision, 5) The consistency of a decisions with the known long-term commitments and values of the client] [Comment 8 - disclosure of the client's diminished capacity could adversely affect the client's interests] (California has no rule like Rule 1.14, although it is trying to create one through the CA Bar Association)
Rule 4.2
(Communication with Person Represented by Counsel) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order (applies to communications initiated by the lawyer or communications initiated by the represented persons) [Comment 7 - in the case of a represented organization, the rule prohibits communications with a constituent of the organization who: a) Supervises, directs, or regularly consults with the organization's lawyer concerning the matter, b) Has authority to obligate the organization with respect to the matter, OR c) Whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability]
Rule 1.4
(Communication) A lawyer shall provide information to a client about matters that require informed consent, about which a client must make a decision, about the status of a matter, and about matters on which the client has requested information [Comment 1 - reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation]
Rule 7.1
(Communications Concerning a Lawyer's Services) A lawyer shall not make a false or misleading statement if it contains a material misrepresentation of fact or law OR omits a fact necessary to make the statement considered as a whole not materially misleading [Comment 2 - a truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading] [Comment 3 - an advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case]
Rule 1.1
(Competence) A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation [Comment 1, Comment 5 - Competent representation is in some part a question of study and training, but competent performance also requires diligence, thoroughness, preparation, and analysis of the factual and legal elements of the problem] [Comment 2 - A lawyer can take on a matter in an unfamiliar field if the lawyer has the time and the resources to get up to speed; however, the billing must be appropriate given the situation]
California Rule 3-100(B)
(Confidential Information of a Client) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual
Rule 1.6(b)
(Confidentiality of Information) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: 1) To prevent reasonably certain death or substantial bodily harm; 2) To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; 3) To prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; 4) To secure legal advice about the lawyer's compliance with these Rules; 5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; 6) To comply with other law or a court order; or 7) To detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client
Rule 1.6(a)
(Confidentiality of Information) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by Rule 1.6(b) [Comment 3 - the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source] [Comment 4 - there is an allowance to use hypotheticals to discuss issues relating to the representation, so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved] [Comment 5 - impliedly authorized means a disclosure that is appropriate in carrying out the representation (ex. settlement, litigation)] [Comment 19 - an attorney should take reasonable precautions to prevent confidential information from coming into the wrong hands - look to both the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement]
Rule 1.7(b)
(Conflict of Interest: Current Clients) A lawyer may continue to represent a client, notwithstanding Rule 1.7(a), if: a) The lawyer reasonably believes that he will be able to provide competent (Rule 1.1) and diligent (Rule 1.3) representation to each affected client b) The representation is not prohibited by law c) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal, and d) Each affected client gives informed consent, confirmed in writing [Comment 18 - The information provided in order to obtain the informed consent must include the implications of the common representation, including possible effects on loyalty, confidentiality, and the attorney-client privilege, and the advantages and risks involved] [Comment 23 - a conflict can arise when there are substantially different possibilities of settlement of the claims or liabilities in question] [Comment 29 - the lawyer needs to stay impartial] [Comment 30, Comment 31 - No attorney-client privilege will be attached as between commonly represented clients; information will likely not be shielded from each other]
Rule 1.7(a)
(Conflict of Interest: Current Clients) A lawyer shall not represent a client if the representation involves a concurrent conflict of interest, which exists if (unless the Rule 1.7(b) exception is met): a) The representation of one client will be directly adverse to another client (a lawyer is acting directly against the interests of one of his own clients), OR b) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer [Comment 6 - simultaneous representation in unrelated matters of clients whose interests are only economically adverse does not ordinarily constitute a conflict of interest] [Comment 24 - a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; factors to look at include: Where the cases are pending, Whether the cases are substantive or procedural, Temporal relationship, Significance of the issue to the immediate and long-term interests of the clients, Client's reasonable expectations]
Rule 1.8(c)
(Conflict of Interest: Current Clients: Specific Rules) A lawyer is prohibited from soliciting gifts or bequests from a client, unless the client is a close relative
Rule 1.8(f)
(Conflict of Interest: Current Clients: Specific Rules) A lawyer shall not accept compensation for representing a client from one other than the client unless: The client gives informed consent, and there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship, and information relating to the representation of a client is protected as required by Rule 1.6 (if there is a conflict between the insurer (the one paying the legal fees) and the insured (the one for whom the legal fees are being paid for), the lawyer should act in the best interests of the insured)
Rule 1.8(h)
(Conflict of Interest: Current Clients: Specific Rules) A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement
Rule 1.8(e)
(Conflict of Interest: Current Clients: Specific Rules) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: a) A lawyer may advance court costs and expenses of litigation, re repayment of which may be contingent on the outcome of the matter, and b) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client
Rule 4.3
(Dealing With Unrepresented Person) a) When dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested b) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. c) The lawyer shall not give legal advice to the unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interest of the client. [Comment 2 - a lawyer is not prohibited from negotiating the terms of a transaction or settling a dispute with an unrepresented person, as long as the lawyer explains that he or she represents an adverse party and is not representing the unrepresented person]
Rule 1.16
(Declining or Terminating Representation) a) There are three situations in which a lawyer shall decline or terminate the representation: When representation will result in a rules violation, when the lawyer's physical or mental condition materially impairs his ability to represent, and when the lawyer is discharged b) A lawyer may decline or terminate the representation, subject to Rule 1.16(c) if: Withdraw would not have a material adverse effect on the interests of a client, the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, the client has used the lawyer's services for crime or fraud, the client insists upon taking action that the lawyer considers repugnant (or with which the lawyer has a fundamental disagreement), the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given a warning from the lawyer, the representation would result in an unreasonable financial burden on the lawyer or the client has determined that continued representation is unreasonably difficult, and for "other" good causes c) Despite Rule 1.16(a) and Rule 1.16(b), a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests
Rule 1.16(a)(1)
(Declining or Terminating Representation) Except as stated in Rule 1.16(c), a lawyer shall not represent a client (or, where representation has commenced, shall withdraw from the representation of a client) if the representation will result in a violation of the rules of professional conduct or other law
Rule 1.3
(Diligence) A lawyer shall act with reasonable diligence and promptness in representing a client [Comment 1 - urges zealous advocacy, but it states that a lawyer is not bound to press for every advantage that might be realized]
California Business and Professions Code 6068(o)
(Duties of Attorneys) It is the duty of an attorney to report to the agency charged with attorney discipline, in writing, within 30 days of the time the attorney has knowledge of certain complaints, judgments, and sanctions that have already been directed at them, but imposes no duty to report on other lawyers
Rule 1.9
(Duties to Former Clients) 1) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing 2) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: Whose interests are materially adverse to the person, AND about whom the lawyer had acquired information protected by Rule 1.6 and Rule 1.9(c) that is material to the matter, unless the former client gives informed consent, confirmed in writing 3) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client (Rule 1.7, Rule 1.10), or when the information has become generally known [Comment 3 - Matters are substantially related if they involve the same transaction or legal dispute OR if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter (objective test)] [Comment 6 - the burden of proof should rest upon the firm whose disqualification is sought]
Rule 1.18(a)
(Duties to Prospective Client) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client [Comment 2 - whether communications (written, oral, or electronic) constitute a consultation depends on the circumstances; a consultation is likely to have occurred if a lawyer specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response] [Comment 4 - a lawyer considering whether to undertake a new matter should limit the initial consultation to only such information ad reasonably appears necessary for that purpose] [Note: If the person providing information does not qualify as a prospective client, you can use the information received against him]
Rule 1.18(d)
(Duties to Prospective Client) When the lawyer has received disqualifying information, other lawyers in the firm may continue to represent the current client if: Both the current client and the prospective client give informed consent, OR If the lawyer who receive the potentially damaging information took steps to prevent being exposed to more than the necessary amount of information to determine whether the firm could represent the client, the disqualified lawyer is screened from contact with the matter, and written notice of the conflict is given to the prospective client
Rule 3.2
(Expediting Litigation) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client [Comment 1 - if there is a delay, there has to be some substantive purpose - realizing a financial benefit from a delay is not a legitimate interest of the client]
Rule 3.4(a)
(Fairness to Opposing Party and Counsel) A lawyer shall not unlawfully do, or counsel or assist anyone else to do any of the following, where the evidence has potential evidentiary value: Obstruct access, Alter document, Destroy document, Conceal document [Comment 2 - it can be an offense to destroy material for purposes of impairing its availability in a pending proceeding, or one whose commencement can be foreseen]
Rule 1.5
(Fees) a) Factors to consider whether the fee is unreasonable: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service property, the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer, the fee customarily charged in the locality for similar legal services, the amount involved and the results obtained, the time limitations imposed by the client or by the circumstances, the nature and length of the professional relationship with the client, the experiences, reputation, and ability of the lawyer performing the services, whether the fee is fixed or contingent b) The scope of the representation and the basis or rate of the fee and expense for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Rule 1.5(d) - A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage that shall accrue to the lawyer in the event of settlement, trial, or appeal d) A lawyer shall not enter into a contingent fee arrangement in domestic relations matters where the payment is either contingent upon securing the divorce or upon the amount of alimony or support - A lawyer also shall not enter into a contingent fee arrangement in criminal cases (defense only) [Note: In California, any fee agreement that would exceed $1,000 has to be in writing] [Comment 5 - a lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures]
Rule 1.10
(Imputation of Conflicts of Interest: General Rule) 1) A firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client (If a client's interests conflict with the personal interests of a lawyer in the firm, there is no imputation; the conflict can be waived by an affected client, unless nonconsentable under Rule 1.7(b)) 2) The travelling lawyer's new law firm is not disqualified if: The travelling lawyer is timely screen and is given no part of the fee, a written notice is promptly given to the affected former client, which includes a description of the screening procedures, AND a certification of compliance are provided to the travelling lawyer's old law firm's client [Note: Rule 1.10(a)(2) is different from Rule 1.9(a) in the sense that a lawyer must actually receive material information to be subject to disqualification] [Note: Imputation does not apply to non-lawyers]
Rule 3.7(a)
(Lawyer as Witness) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: a) The testimony relates to an uncontested issues, b) The testimony relates to the nature and value of legal services rendered in the case, OR c) Disqualification of the lawyer would work substantial hardship on the client
Rule 3.1
(Meritorious Claims and Contentions) a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless do defend the proceeding as to require that every element of the case be established [Comment 2 - an action is not frivolous, even though the lawyer believes that the client's position ultimately will not prevail; however, the action is frivolous if the lawyer is unable to make a good faith effort]
Rule 8.4
(Misconduct) It is professional misconduct for a lawyer to: a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another, b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, c) to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or d) to engage in conduct that is prejudicial to the administration of justice
Rule 1.13
(Organization as Client) a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents b) If a lawyer 1) Knows an officer, employee, or other person associated with the organization, 2) Is engaged in action that is a violation of a legal obligation to the organization OR a violation of the law that might be imputed to the organization, 3) That is likely to result in substantial injury to the organization: The lawyer shall proceed as is reasonably necessary in the best interest of the organization, and unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer to higher authority in the organization ("Must" go up the chain; "May" go outside the corporation - with California, a attorney may only go outside if there is a criminal act likely to cause serious injury or death) [Comment 4 - In determining how to proceed, the lawyer should give due consideration to: The seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant consideration]
California Rule 4-210(A)
(Payment of Personal or Business Expenses Incurred by or for a Client) a) With the consent of a client, the lawyer may pay a client's personal or business expenses to a third party from funds to be collected b) After employment, the lawyer may loan the client money
Rule 8.3
(Reporting Professional Misconduct) a) A lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority (such disclosure is not required if there is a violation of Rule 1.6) b) There is no equivalent of this rule in CA
Rule 4.4(a)
(Respect for Rights of Third Persons) A lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person
Rule 4.4(b)
(Respect for Rights of Third Persons) A lawyer who receives a document relating to the representation of the lawyer's client, and knows or reasonably should know that the document was inadvertently sent, shall promptly notify the sender
Rule 5.1
(Responsibilities of Partners, Managers, and Supervisory Lawyers) a) There should be reasonable efforts made, to ensure that the firm has in effect measures giving reasonable assurance that lawyers in the firm conform to the Rules b) A lawyer shall be responsible for another lawyer's violation of the Rules if: the lawyer orders, or with knowledge of the specific conduct, ratifies the conduct involved; OR the lawyer is a partner and knows of the conduct but fails to take reasonable remedial action
Rule 5.2
(Responsibilities of a Subordinate Lawyer) a) A lawyer is bound by the Rules, even if the lawyer acted at the direction of another person b) A subordinate lawyer does not violate the Rules if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty
Rule 1.2(a)
(Scope of Representation and Allocation of Authority Between Client and Lawyer) a) The client decides the objectives of representation b) The lawyer consults client as to means used to pursue objectives c) In a civil case, the client decides whether to settle d) In a criminal case, the client decides whether to plead guilty, to waive a jury trial, and to testify
Rule 1.2(c)
(Scope of Representation and Allocation of Authority Between Client and Lawyer) A lawyer can limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent [Comment 6 - a lawyer could legitimately offer limited service to a client to exclude actions that the client thinks are too costly]
Rule 1.2(d)
(Scope of Representation and Allocation of Authority Between Client and Lawyer) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law [Comment 10 - a lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent - the lawyer must, therefore, withdraw from the representation of the client in the matter]
Rule 7.3
(Solicitation of a Client) a) A lawyer shall not by in-person, live telephone, or real-time electronic contact, solicit professional employment for a pecuniary gain, unless the person contacted is: 1) A lawyer, 2) A family member, 3) A client, OR 4) A close friend (CA does not allow a close friend) b) However, there is no solicitation, regardless of relationship if: 1) There is a desire not to be solicited, OR 2) The solicitation involves coercion, duress, or harassment
Rule 1.11
(Special Conflicts of Interest for Former and Current Government Officers and Employees) 1) There are less stringent standards for regarding successive conflicts that arise from a lawyer's present or past government service, and allows organizations to resolve former client conflicts of former government lawyers by screening the conflicted lawyer from the matter 2) A former government lawyer may not represent a client in a matter in which the lawyer participated personally and substantially with a former client whose interest are materially adverse to the prospective client
Rule 3.8(d)
(Special Responsibilities of a Prosecutor) The prosecutor is required to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense (Note: Not in CA)
Rule 3.8(a)
(Special Responsibilities of a Prosecutor) a) The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause b) The probable cause standard is pretty low - all that is needed is a fair possibility of guilt, something more than a reasonable suspicion [Comment 1 - A prosecutor is a minister of justice]
California Rule 3-700(B)
(Termination of Employment) Mandatory withdrawal for only three reasons as well (albeit different) a) If the member knows or should have known that the client's action, defense, position, or appeal, does not have probable cause and has the purpose of harassing or maliciously injuring any person, or b) If the member knows or should know that continued employment will result in a rules violation (or a violation of the State Bar Act), or c) If the member's mental or physical condition renders it unreasonably difficult to carry out the employment effectively
Rule 1.0(e)
(Terminology) Informed consent means that a lawyer has to clearly tell the client what the lawyer is planning to do and explain the material risks, and reasonable alternatives.
Rule 4.1
(Truthfulness in Statements to Others) In the course of representing a client a lawyer shall not knowingly: a) Make a false statement of material fact or law to a third person; OR b) Fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prohibited by Rule 1.6 [Comment 2 - estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are not to be taken as statements of material fact] (Note: "Puffery" is not a violation, as long as there is no material statement)
General Overview of Conflicts
1) Concurrent Conflicts: a) Between two current clients (Rule 1.7), b) Between a current client and a prospective client (Rule 1.18), c) Between a current client and your personal interests as a lawyer (Rule 1.8) 2) Successive Conflicts: a) Resolving the conflict with your former client (Rule 1.9), b) Resolving the conflict with your present client (Rule 1.7) 3) Imputed Conflicts - Could be either a concurrent conflict or a successive conflict (Rule 1.10) 4) Conflicts for Present and Former Government Lawyers (Rule 1.11)
9 Main Themes
1) Is there an attorney/client relationship? 2) Did the attorney violate any duties to the client or prospective client? 3) Is there a conflict of interest between present/prospective/former clients? 4) Is there a conflict of interest between the attorney and client? 5) Did the attorney violate any duties to the court? 6) Did the attorney violate any duties to others? 7) Did the attorney violate any rules re: advertising or solicitation? 8) Who is liable for the ethical violations? 9) What actions must/should the lawyer take?
Differences between Model Rules and CA
1) Model requires reporting; CA does not 2) Model has 7 reasons to reveal in Rule 1.6; CA has 1 3) Model has comply with law/court order with revelation; CA has proposed law with just court order 4) Model allows for "noisy withdrawal;" CA does not 5) Model has diminished capacity rule; CA does not 6) Model will not allow joint representation of opposing clients; CA has case law, but will allow for opposing clients if all terms are agreed and no outstanding claim 7) Model allows attorney to have discretion as to whether informed consent is needed in a conflict; not in CA 8) Model has informed consent, confirmed in writing; CA has informed written consent (stricter) 9) Model has only written fee arrangement if in writing; CA requires writing if fees are to top $1,000 10) Model only allows payment of court costs and expenses on behalf of the lawyer (either repaid if contingent, or not repaid if indigent); CA also allows a lawyer to lend a former client money 11) Model does not let the defendant take the stand and testify if the lawyer knows the defendant is lying; CA allows for "narrative method" 12) Model does not allow the knowing failure to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by client; CA does not allow such disclosure 13) Model states that lawyer can notify outside a corporation after "working up the chain;" CA does not 14) Model states that lawyer just has to notify other party if document erroneously erroneously sent to him (but no other limitations); CA requires that one cannot read more than necessary to make such notification 15) Model states that solicitation for employment is alright with family members, close personal friends, and those in which an attorney has a prior professional relationship; CA does not include close personal friends 16) Model states that screening is OK with traveling lawyer with notice; CA requires informed consent 17) Model says no referral fee; CA is OK, if same total fee 18) Model has certain relationships that have an absolute bar; no such bar in CA (everything is consent-able) 19) Model states that prosecutor must notify defense if there is a document that can mitigate guilt; CA does not have such a rule 20) Model states no sex with a client during representation, unless sex was occurring before; CA only does not allow if coercion, or lack of competence
Strickland v. Washington
1) Washington confessed to having committed murder, but wanted his attorney to present "mitigating" evidence so that he could be spared the death penalty; his attorney, thinking that the judge had a reputation for dealing fairly with people who took responsibility for their crimes, and worrying about impeachment of both Washington and his character witnesses, did not meet with Washington's wife or mother, did not seek out character witnesses, did not obtain a psychiatric evaluation of Washington, and did not introduce evidence about Washington's prior criminal record - as a result, the judge imposed the death penalty 2) Judicial scrutiny of counsel's performance must be highly deferential to the attorney in question - the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different (however, there was no finding of unprofessional errors by Washington's counsel)
Rule 1.6(b) (Comments)
Comment 6 - The harm must be a present and substantial treat of future harm, and more than just a possibility (ex. toxic waste in a town's water supply) Comment 9 - Disclosing information is impliedly authorized Comment 10 - The lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense, the lawyer can respond once an assertion of wrongdoing has been made, and the allegation of wrongdoing does not have to come from the client Comment 14 - The disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose Comment 16 - The disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose, and before disclosure, the attorney should talk to the client to get the client's consent to disclosure
Bates v. State Bar of Arizona
a) AZ lawyers wanted to advertise their low rates, but was banned by AZ law - lawyer claimed that the ban violated their First Amendment rights b) Routine services are OK for advertising; only advertising that is false, deceptive, or misleading is subject to restraint
Apple Corps, Ltd. v. International Collectors Society
a) An attorney for Apple Corps posed as a fan, and was able to purchase stamps from ICS, despite the fact that Apple Corps was able to enjoin sales to those very stamps from ICS b) Rule 8.4(c) does not apply to misrepresentation solely as to identity or purpose and solely for evidence-gathering purposes
Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College
a) Attorneys communicated with five former colleagues of their client, who was suing her former employer for discrimination - none of those interviewed had any direct relationship to the client b) Because those interviewed were "witnesses," and not "participants," there was no violation of Rule 4.2 - there was no direct connection between the claim and the interviewees
Jones v. Barnes
a) Barnes was appealing his conviction when the court provided him a court-ordered attorney - Barnes provided the attorney a list of claims that he felt should be presented, but the attorney rejected most of the claims presented; when the conviction was affirmed, Barnes sued, claiming that his attorney needed to have presented every non-frivolous issue requested b) The role of the advocate requires that he support his client's appeal to the best of his ability (which did not require the presentment of every possible issue) (Note: Rule 1.2(a) distinguishes objectives and means)
People v. Belge
a) Belge was informed by a client regarding the location of a dead body; however, in order to keep the information confidential, Belge does not inform the police and violates a state law b) An attorney is bound to uphold the concept that a defendant does not have to incriminate himself, and therefore, keep a sacred trust of confidentiality between him and the defendant
In re Gatti
a) Gatti, who represented chiropractors, posed as a doctor, to prove that the California Medical Review was using people who lacked medical training to evaluate insurance claims b) OR's version of Rule 8.4(c) provides that the rules of professional conduct shall be binding upon all members of the bar, and that the court should not create an exception to the rules by judicial decree (the exception being Gatti posing as an undercover doctor to expose)
Florida Bar Opinion 95-4
a) Husband and wife have estate plan together, with a lifetime benefit for the survivor; however, husband executed a codicil giving a mistress the lifetime benefit b) A lawyer is ethically obligated to protect confidences but also has a duty to communicate to a client information that is relevant to the representation (since there was no agreement to share information, the lawyer has to withdraw due to conflict of interest - Rule 1.7 - but not explain the purpose of the withdrawal so as not to breach confidences - Rule 1.6)
Togstad v. Vesely, Otto, Miller & Keefe
a) Togstad visited the firm of Vesely, Otto, Miller & Keefe to discuss the possibilities of a medical malpractice claim - at the conclusion, Togstad claimed that the firm did not think that there was a legal case and that she was not told about the statute of limitations; when Togstad found out that she did have a valid case and that the statute of limitations had ran, she sued the firm for legal malpractice, claiming that she had received a qualified legal opinion b) In a legal malpractice action, four elements must be shown: 1) that an attorney-client relationship existed, 2) that the defendant acted negligently or in breach of contract, 3) that such acts were the proximate cause of the plaintiffs' damages, and 4) that but for defendant's conduct the plaintiffs would have been successful in the prosecution of their claim c) "An attorney-client relationship is created whenever an individual seeks and receives legal advice from an attorney in circumstances in which a reasonable person would rely on such advice" (objective view)
Spaulding v. Zimmerman
a) Zimmerman made a request for Spaulding to see Zimmerman's doctor, and the doctor located a aneurysm that might dilate further and rupture - however, a settlement was reached and no disclosure was made to Spaulding; Spaulding is asking for the court to vacate the settlement upon receiving this information years later b) Under Rule 1.6(b)(1), disclosure should have occurred, because there was a present and substantial threat that a person will suffer such harm at a later date (and of course, such threat would have been taken into consideration had Spaulding known at the time of settlement)