Intro *ABA doesn’t punish – State Bars do!

UPL 5.5 When lawyers are not licensed in the state they’re practicing (most states require physical presence in state) – repercussion: can’t collect
fees; malpractice claim {Does dot prevent delegation of work  5.3} “Practice of law” = ambiguous – defined by each state {C.2}
*Non-lawyers cannot engage in systematic & continuous practice of law in a jx & cannot hold themselves out as lawyers to the public.
Competence
Competence Requires: (1) legal knowledge [settled area of law = breach; unsettled area of law ≠ breach], (2) skill, (3) thoroughness & (4)
1.1
preparation reasonably necessary for representation  Attorney discretion is given great deference [std. = gen. legal practitioner]
Strickland (1) Performance was deficient [not functioning as counsel guaranteed by 6th A = undermines integrity of trial/jury verdict] (2) Deficient
v. WA Test performance prejudiced ∆ [negated by huge EV of guilt] [must show reasonable probability that but for error, outcome would be different]
- IAC (Presumed when: no attorney, asleep, drunk, gov interference w/ representation, some conflicts of interest) – applies to duty to investigate
Malpractice (1) Duty [relationship formed?]; (2) breach [1.1 – foresight (breach of K, of fiduciary duty, or negligence]; (3) Causation [Actual (but for
atty’s conduct, no damages) & Prox. (w/in scope of risk caused by acts)]; (4) Damages [legally cognizable harm]
- Settlement does not cut off the possibility of a malpractice claim; - Must prove you would have won the underlying case = $$
Diligence 1.3 “Reasonable diligence & promptness”  failure to respond to court = malpractice claim (based on negligent behavior)
Communication 1.4 lawyer must maintain reasonable lines of communication w/ clients during rep. – convey settlement offers to clients
Rat Rule 8.3 Lawyer must report another lawyer’s rule breaking in relation to honesty, trustworthiness, or fitness as a lawyer.
8.4 Lawyers cannot knowingly assist another lawyer violate rules of conduct (cannot tell subordinate to violate rule)
Supervisory

5.1(a) Supervisory atty must make efforts to reasonably assure all lawyers in the firm conform to the rules of prof. conduct
Attorneys

5.1(c) Atty responsible for another atty's rule violation if: ordered conduct, has direct authority over, or knows of conduct when can be fixed
1.7 Supervisory attys can have imputed conflicts from other attys in the firm (1.10) – also may be resp. for ending relationship [1.16(d)]
5.3 Responsibilities regarding non-lawyer assistants  must ensure the non-lawyer complies with lawyer conduct rules.
Subordinate 5.2 Bound by rules even though acting at direction of another person – does not violate rules if acting in accordance w/ supervisory
Attorney atty’s reasonable resolution of an arguable question of professional duty. [All about knowledge sub. had of violation]
Confidentiality (A-C Priv & W-P do NOT PROTECT UNDERLYING FACTS)
Confidentiality A lawyer cannot reveal any information relating to the representation of a client {must be representing them!} unless the client
1.6
gives informed consent {or impliedly authorized for carrying out representation}or an exception applies [exceptions -
permissive disclosure: prevent death, prevent client committing crime, prevent or mitigate financial harm, secure legal advise abt rules,
protect oneself in client lawsuit, comply w/ law or court order, detect/resolve conflicts of int.] extends for life of lawyer! *Trumped by 3.3
{Permissive disclosure under the rules does not waive A-C privilege} **Duty does not extend to physical EV of a crime [3.4]
A lawyer shall not reveal a confidence or secret of his client unless the client gives informed consent, except for disclosures that are impliedly authorized by
carrying out the representation [add relevant exception here] (and except to prevent the client from committing a criminal act that the lawyer believes is
likely to result in imminent death or substantial bodily harm)
Inadvertent Disclosure 4.4(b) If you know or reasonably know info (related to rep.) disclosure was inadvertent - must “promptly” notify sender
Attorney-Client R§68 Elements: (1) Communication btwn privileged people (+ corps.); (2) made in confidence [waffle house mtg – not confid.]; (3)
Privilege for the purpose of providing legal assistance to the client. (Party asserting priv. has burden of proving each element)
Work- R§87 Elements: (1) Tangible material; (2) Prepared by a party or a party’s agent; (3) in anticipation of/during course of litigation
Product Types: (1) Ordinary [§88]  No disclosure unless opp. party has (1) substantial need; & (2) can’t get info w/o undue hardship
(2) Opinion [§89: opinions/mental impressions of atty]  no disclosure unless waived or extreme circ’s or crime inv.
Attorney-Client Relationship
Duty to A person who consults with an atty about forming a relationship = prospective client; cannot disclose info gained during intake
1.18
Prospective interview except to reveal 1.9 conflict. If there is a 1.9 conflict, then atty cannot represent a client whose int. are materially adverse
Clients to prospective client that are substantially similar w/o consent of both clients – imputed to firm. {C.4: limit interviews}
R§15 Consultation = prosp. relations. Exists – no confidential info disclosure; must protect prop.; use reasonable care  no conflicts
Formation of R§14 A relationship forms when: (1) a person manifests intent to attorney they want legal rep. & the attorney consents or knows/reas.
Relationship should know that client thinks relationship formed OR (2) court appoints attorney. {No express need for written contract}
R§18 A contract btwn an attorney & client may be enforced by either party unless it was made far into rep. or after representation.
1.2 Lawyer shall abide by client’s decisions concerning objectives of representation (& whether: to settle, client will testify, plea, waive jury
Scope of Representation

trial)  must communicate these offers [1.4]; attorney may limit scope of representation [“ghostwriting” – should be written, but still must be
reasonable & able to competently rep.!]; shall not counsel client to engage in criminal or fraudulent acts
R§19 A client & lawyer may agree to limit representation if the client consents and the limits are reasonable in the circumstances.
1.4 Must explain info for decisions on informed consent; ways to implement client objectives; promptly comply w/ info requests; keep client
informed of status of matter; inform client of relevant limits on lawyer’s conduct & explain matters so client can make informed decisions.
1.8 Lawyer must try to avoid any conflict of interest that may potentially be avoided
R§16 Attorney must act in a manner consistent w/ client’s objectives, be competent & diligent, maintain client confidentiality, fulfill K
obligations
R§17 Client duties: must pay attorney fees, indemnify lawyer for liability the client caused, & fulfill valid K obligations.
Contacting 4.1(a) Cannot make a false stmt of material fact/law to a 3rd person or (b) fail to disclose info when disclosure is nec. to prevent crime.
3rd Parties 4.2 No talk abt subj. of rep. w/ a person atty knows rep. by another atty in matter (consent/1confide1e.) ≠ solved by alerting opp. atty.
4.3 dealing w/ unrepresented person on behalf of client: cannot give legal advice except to say ‘go get another attorney’ if conflicting int.
4.4(a) Cannot use means w/ no other purpose than embarrassing, delaying, or burdening 3rd P – or getting EV in violation of legal rts.
Misconduct 8.4 Attorney cannot: commit criminal act that reflects poorly on lawyer’s honesty, trustworthiness, or fitness as a lawyer. No conduct
involving dishonesty, fraud, deceit, misrep.  cannot assist client in illegal conduct [or send non-atty to do any of this]  shouldn’t
threaten criminal prosecution when it may be a misrepresentation and may be prejudicial to administration of justice (c) & (d)
Safeguarding 1.15 Must keep client’s $ in separate trust acct. Records must be kept for 5 years after rep. if 2 ppl have int, it must be kept separate
Property until dispute is resolved. Record-Keeping: personally review regularly {don’t delegate}  fiduciary duty to protect
Ending 1.16 (a) Must withdraw: rep. will violate MR; physical/mental cond. Impairs ability; discharged (b) May withdraw: w/ no materially
Relationship adverse effects on client; C acts in way attorney believes is illegal; C used attorney svcs to commit crime/fraud; C insists on acting
in a way atty fundamentally disagrees w/; C fails to fulfill obl.; unreas. $ burden on atty  court must usually allow withdrawal
 Attorney’s Fees
Reasonable 1.5 factors to determine reasonableness: time required, likelihood of barring other cases, fee usu. charged, amount involved & result
obtained, short notice, time/length of prof. relationship w/ client, exp. Of attorney, & whether fee is fixed or contingent. *Contingent
& no double fees must be in writing & how fee determined must be included {not allowed in divorce/alimony or criminal case}
billing!! Non-Refundable Fees: if you collect a fee you didn’t earn, you have to refund – even if the K says “non-refundable”
Inherent 1.8(i)(2) Fees create an inherent conflict of int = hourly: client wants pay less & attorney wants to charge more / contingent: attorney
conflict w/ $ wants to settle early w/ little effort & client may want to go all the way to trial  flat fee (usu. charged in locality) – + reas.
Fee Splitting 1.5(e) Fees can only be divided btwn attys not in same firm if: proport. To work [w/ joint responsib.]; client agrees; & total is reas.
1.8(f) 3rd P pay fees: not allowed unless: C gives informed consent; no interference w/ professional judgment; & confidentiality upheld
5.4 Attys cannot directly split fees w/ non-attys – can share fees w/ non-profit that retained/recomm. Client; cannot form partnership
for practicing law w/ non-attorney; cannot pract. for corp that attorney has interest in or is an officer of. Cannot pay for non-
attorney to get Cs (b) An atty CANNOT form a partnership with a non-lawyer if any of the activities consist of the practice of law.
Conflicts of Interest
Current 1.7 (a) Current conflict if: (1) rep. of 1 client will be directly adverse {C.6} to rep. of another client OR (2) There is a sig. risk that rep. of 1+
Clients clients will be materially limited by the attys responsibilities to another client, former client, or personal int. of attorney
- Can’t ‘hot potato’ clients (passing for big $ clients) b/c relationship may begin w/ intake interview [1.18] & no rep. co∆ [Holloway v. AK]
(b) Even if conflict exists under (a), attorney may still rep. client if: attorney reas. believes he can rep. both clients competently &
diligently; not prohibited by law; not on opp. sides of “v.”; each client gives consent in writing.
Informed R§122 Conflicts of interest must be waived by both affected parties through informed consent = requires that client/former client have
Consent reas. adequate info abt. material risks of such rep. – factors listed in (C.c(i) – p. 232)
Successive 1.9 After rep., an attorney shall not rep. another client in the same or substantially related matter where that person’s interests are
Conflicts materially adverse to the ints. Of the former client {informed cons. in writing} – same applies to an attys old firm’s former client
{C.3}: Substantially Related = involve same trans/legal dispute; subst. risk 2onfide. Info from 1st rep. would materially advance
client’s position in subsequent matter. Info disclosed to public ≠ disqualifying  very fact-specific based on opp. for misuse
“Subst. R§132 Substantially related if: (1) current matter involves the work attorney performed for former client; OR (2) there is subst. risk that
Related” rep. of the client will involve the use of info gained in course of rep. former client, unless info has become generally known.
{C.d} = cannot switch sides in same matter; cannot attack attys own former work; cannot disclose former C confidences.
Specific 1.8 (a) No business transactions w/ C [writing, info on outside counsel, inf. consent]; (b) cannot use info to disadvantage of client; (c) no
Conflicts solicitation of C gifts; (d) no literary/media rts to story; (e) no financial assistance to C [court/lit. costs]; (f) 3rd P can’t pay on behalf
of C [inf. consent, no interference, 1.6 protections]; (g) no aggregated settlement w/ 2 clients; (h) no agreement limiting malpractice
liability; (i) no proprietary interest in litigation; (j) no sex w/ clients unless relationship existed before representation began
Imputing 1.10 Migratory Lawyer w/ 1.9 conf.: (a) When an attorney has a conflict while working in a firm, everyone in that firm has the conflict
Conflicts [doesn’t apply to sex/pers.l conflicts]  1.10(a)(2) removes imputed conflict by requiring firm to follow screening procedures of (i)-
(iii) = no client consent req. (b) deals with the old firm and how to handle C that conflicts w/ old employee-lawyer’s former C
Once an attorney realizes a conflict of interest exists, in order to protect the confidentiality interests of each client, she must withdraw from rep. [1.16(a)(1)]
Litigation Ethics
Candor to (a) Cannot knowingly: make (or fail to correct) false statement of law to court; fail to disclose controlling legal authority adverse to
3.3
the Court client that opp. counsel did not mention; offer EV attorney knows/sh know to be false. (b) C intends to perjure – must tell court; (c)
this rule trumps client confidentiality [1.6]; (d) attorney must, in ex parte proceeding, tell court all info necessary to make informed
decision (c) Explained  If an atty learns her client has committed perjury [b/c 3.3 trumps 1.6], she must (1) try to convince client to
rectify it; (2) attempt to withdraw if it will fix the problem; or (3) tell the court [If another W perjures, then must tell court]
Trial publicity 3.6 (a) cannot make statements to media abt trial specific things in (b); (c) can only make nec. statements to mitigate neg. publicity
Advocate 3.7 Lawyer cannot be an advocate in the trial where they will likely be a necessary witness {uncontested issue; relates to nature/value of legal
-witness srvcs in case; disqual. Would cause subst. hardship}  not imputed to rest of firm (unless precluded by 1.7 or 1.9)
Fairness to 3.4 Issues with Evidence  Lawyer can’t unlawfully obstruct another party’s access to EV or alter, destroy, or conceal a
Opp. Counsel doc./tangible thing w/ potential evidentiary value {& can’t tell someone else to do it}  (e) cannot allude to any matter the atty
does not reasonably believe is supported by admissible EV, also cannot state personal op. about case or witness credib. – extreme
cases may be viewed as ‘disrupting the tribunal’ [3.5(d)]
Impartiality 3.5 Lawyer cannot seek to influence a judge, juror, or prospective juror in an illegal manner [‘tampering’]
Statements 8.2(a) A lawyer cannot make statements about judges when the atty knows the statement is false or is making the stmt w/ reckless
abt Judges disregard as to its truth or falsity about the qualifications or integrity of a judge or someone running for a judgeship.
Advertising
Ad 7.1 Cannot make false or misleading statements about atty or atty services. False/misleading = contains material misrepresentation Of
requirements law/fact or omits fact necessary to make statement as a whole not materially misleading  nothing about tacky ads
Forms of 7.2 (a) May advertise through written, recorded or electronic comm. (b) lawyer cannot compensate for recommending that lawyer’s
Advertising services; (c) must include name & address of at least 1 attorney or firm responsible for content of ad.
In-Person 7.3(a) Cannot solicit in-person or by real-time electronic communication, when the primary motive is pecuniary gain unless it is
Solicitation another lawyer or someone who has a family, close personal, or prior professional relationship w/ lawyer.
Mail 7.3(c) Categorical ban on this is unconstitutional; SO…If soliciting someone known to be in need of legal services, the written, recorded
Solicitation or electronic material must have “Advertising Material” on the outside envelope (or at the beginning & end of recorded material)
unless there is a prior personal or professional relationship, like in (a).