Professional Responsibility Outline and Notes

Strategies and Tactics for MPRE: Pay attention to in assessing lawyer’s conduct:
 Lawyer’s or client’s state of mind
 Lawyer’s motive when he/she acted or failed to act
 Ignore facts that show the client’s acknowledgement of lawyer’s incompetence b/c Lawyer is still
incompetent regardless.
 Cautious for misstatement of law, overgeneralized statements, misstates reasoning.
_____________________________________________________________________________________________
Beginning of Model Rules of Professional Conduct
Rule 1.0 – Important Terminology
 ***Confirmed in writing
 ***Informed Consent
 ***Knowingly – Suspect: Not knowledge
Client-Lawyer Relationship

Formation of Client-Lawyer Relationship (STUDIED)

C-L relationship forms when:
1. Person’s intent for L’s services; and either;

a. L agrees 2 Represent; OR
b. L doesn’t say that he Consents, and lawyer knows/reasonably should know Person reasonably
relies on L’s services; OR

2. Tribunal w/ power appoints L 2 give services

Rule 1.1 – Competence (STUDIED)

Rule Summary: Competence requires legal knowledge, skill, thoroughness, and preparation reasonably
necessary for representation.

 TWO ways a NL gains competence when unfamiliar to Law:

1) Associate w/ more experienced L; OR
2) L performs self-research/study
Special Note: NL may consult w/ more experienced L in same firm

Rule1.1: Emergency Situations

 NL may advice outside of expertise until he finds a more experienced L, But LIMIT ADVICE UNTIL
REASONABLY NECESSARY.

SN: In Emergency Situations, L must limit advice until Necessary? Ask if the Advice is Necessary in that
emergency?

Special Note: L not disciplined if acted w/ reasonable belief that C’s interests r protected.

Rule 1.1 Competence Additional Info.:

o Maintenance: Lawyers required to stay up to date with changes in the law.
o Rule violations v. legal malpractice claim:
 Rule violations: Client damages not required for discipline under MR
 Malpractice: Client must prove damages

California Rule – lawyer’s incompetence must be intentional, reckless, or repeated.

Classic Pattern: Attorney takes on too much or too complex work, with lack of resources, then makes a
mistake (missing deadline), then avoids dealing with the mistake by refusing to speak with the client.
(remember we don’t care about the client).
Legal Interpretation of Incompetence: Must show consistent failure to carry out the obligations assumed to his
client or conscious disregard for the responsibilities owed to his client.

Legal Malpractice
 Lawyers owe duty of care to all persons who have a reasonable belief that they are the lawyer’s client.
 Lawyer’s breach of duty  malpractice claim.
 Malpractice needs to prove Negligence
 Lawyer generally not liable for non-clients

SN: Your not allowed to charge client for three hours.

SN: Charities (3rd Per) cannot sue L for MR violation; but Charity May Sue for LegMalprac

Rule 1.2: Scope of Representation and Allocation of Authority between Client & Lawyer
Rule Summary 1.2:
a) - L must comply w/ C’s decisions about goals of representation AND must consult with C on how to
pursue the case (Triggers 1.4)
- If implicitly authorized by repre, L may take act on C’s behalf
- L must comply w/ C’s decisions on Criminal Cases:
1. Settle matter
2. Plea guilty/not in crim cas
3. Waive Jury; AND
4. Testify

Special note: L has no duty 2 comply w/ C in Civil Case

b) Just b/c L repr C/by appointment, Does not mean L supports C’s views (politic, social, moral, social, $)

c) L may limit repre only if:

1. Reasonable; AND
Special Note: Only for trial work; not appeals or pleas)
2. C’s consent (No need for writing)
d) – L cannot knowingly advise/assis C to commit crime/fraud
- But L may discuss legal consequences of proposed conduct (Triggers 8.4)

Rule 1.3 Diligence

- L has duty 2 actively work on a case & further investigate relevant facts of case.
Special Note: Combine 1.3, 1.1, and 1.4.
Special Note: If L away for long time/disabled, L has duty to still make effort to actively work on the case.
Speical Note: Unless relationship is terminated, L should continue w/ representation.

Rule 1.4: Communication

A) L must keep C Reas Informed about case status and promptly comply w/ reas requests for info

1. Get Client’s informed consent before making any decision;

2. Reasonably consult w/ client on means (ways) to fulfill the client’s goals (Trig 1.2);
3. Reasonably inform client of status of matter;
4. Promptly comply w/ reasonable requests for info
5. Inform client what he can and cant do when lawyer knows client wants assistance

B) L must adequately explain matter till ReasNecess so C makes informed decisions.

Special Note: L must promptly notify C of settlement offers

Rule 1.5: Fees

 a) L cannot charge unreasonable fee/expense. 2 determine reasonable fee, see below:
1. Time & labor & difficulty
2. Whether other cases precluded
3. Fee charged in location for similar services;
4. L’s experience
5. Length of C-L relation
6. Whether fee fixed/contingent
7. Damage Award;
8. Time limit by C/Case;
b) -Standard Fee Agreement :
-L MUST communicate Scope of repr AND Adequately Explain Pros & Cons of Fees and Expenses

SN: Arrangements about Revisiting Fees during Repr Allowed IF L adequately Explains risks as 2 situation.

- Regular Fees May be in writing

- Before or ReasTime from start of representation, unless Regular C charged same rate.
- Fee Changes must be communicated 2 C
Special Note: Sometime charging a contingency fee is unreasonable b/c it goes against C’s interest of a settlement.

Analysis: Regardless of lawyer’s efficiency during the flight, lawyer didn’t earn 6 hours of billable time during the 3
hour flight. Lawyer pretty much “double-billed,” which violates rule 1.5. Lawyer could ONLY bill a SINGLE
CLIENT for the 3 hour flight, either Client A or B. If lawyer was able to work for Client B, lawyer didn’t lose
employment opportunities b/c of travel for Client A.

c) Contingency Fees (Fees based on Outcome)

i. Must be in writing & signed by client & Adequately explain how fees will be calculated
ii. Outcome of case & Explain if fee calculated befor/after fees deducted
iii. Method of Recovery in Writing.

d) L cannot charge contingent fee for :

1. Domestic-Family cases
Special Note: Public Policy does not allow L 2 charge fees upon securing a
Divorce or Alimony.
OR
2. Criminal Defense cases
e) Fee Split: L(s) in same firm may share fees ONLY IF:
1. Fees Split Proportional 2 L(s) work / L assumes joint responsibility (Vicarious)
Example: Senior lawyer violates if rookie lawyer violates rule.
Example: L1 says he will do 80% of work but L2 will do all the work - Not Joint Responsibility;
2. Client’s written consent; AND
3. Total fee is reasonable
Special Note: You cannot give private loans client; only arrange bank loans for them.

Example 1: New TJSL lawyer and is a trial lawyer. Done some misdemeanor. Gets first assault case. TJ lawyer
charges $100 per hour. Worried about the complexity of the case, so he calls lawyer to co-chair for him. They have a
choice to split the fees proportionally. So if second lawyer is really busy but will help w/ trial, while first lawyer will
do preparation. Second lawyer will work 20%, while the other does 80%. How much can the second lawyer get from
the case, he gets $20, while the new lawyer gets $80. Thus, this is proportionality.

Example 2: New lawyer gets client. Client offers $100 an hour and wants him to do 80% of work. Even though old
lawyer is doing 20%, he is still responsible for all the work that new lawyer does. Old lawyer should question the
effectiveness of counsel from new lawyer. Thus, if new lawyer was incompetent, old lawyer would be jointly
responsible for his lack of supervision. New lawyer’s incompetence flows to the old lawyer.

Whats a Flat Fee Agreement?

  Used legal matters like simple will or handle an uncontested divorce.
 If client agrees to fixed fee, be sure client know what it does and doesn’t include. Client should know of
any charges like court or office expenses

To end relationship: Provide a disengagement letter

Can you bill more than 1 client for the same hours spent?
Analysis: 93-379 Ethics Opinion says NO because you have not earned the hours
Okay 2 charge: Out of pocket expenses for in-house work (photocopying)
Not Okay 2 charge: Surcharges for out of pocket expenses, unless agreed between lawyer & client.

1.6: Confidentiality of Information (Triggers 1.9)

a) L cannot reveal C info of repre unless:

SN: If L learns (knows) something from C’s testimony during Rep, this is Protected under A/C privilege AND
must not be revealed, unless exception applies.

1) C’s informed consent,

2) Implicitly authorized by Repre;
3) Exception applies; OR
4) If C relies on L’s advice, C waives A/C privilege, so Prosecutor may use info (Special Note)

SN: L on phone has duty of confidentiality 2 C, so L cannot give info 2 OPP L 2 allow him 2 understand facts

SN: L-C ConfiInfo Even Survives C’s Death!

Note: Perjury is “information relating to the representation of the client” which generally may not be disclosed. R.
1.6(a). No facts suggest any exception to this general rule applies.

b) Exceptions: L “may” Reveal Info of Rep “As reasonably necessary” To Establish a Claim against C :

(1) 2 prevent reasonably certain death or substantial bodily harm

 B1 & B2 = L may reveal future crimes but must not reveal past crimes unless C consents.
(2) 2 prevent/mitigate/rectify C from committing a crime or fraud that will result in substantial injury 2 $
or property of another, using L’s services;
(3) 2 secure legal advice;
(4) 2 Establish Defense against C’s allegations;
(5) 2 obey other Law/Ct order ;

SN: L must not reveal info if Successful Appeal 2 Ct, but if no Successful Appeal, you must reveal 2 Ct

SN: L may reveal C-ConfiInfo 2 Ct, But MUST discuss w/ C bout PossibleAppeal (1.4).

(6) 2 resolve COI from L’s change of work, ONLY If C info doesn’t affect A/C privilege.

c) L must make ReasEffrts 2 prevent careless/unauthorized/ access 2 C’s Info about Repre.

Comment 2: C encouraged to seek legal counsel & communicate honestly, even if embarrassing or legally
damaging subject matter.
Comment 4: L may discuss hypos if 3rd person doesn’t understand C’s identity.
Comment 16 If disclosure about Judicial Matter, L 2 disclose as reasonably as necessary to Ct/ other Per.

Rule 1.7: Conflicts of Interest: Current Clients

(a) L or Firm cannot Repre Current Clients if:
(1) Theres Conflict of Interest Between them on Same Case; OR
SN: Rep of Advers CCs on same case– Not allowed, even if L only got WritInforConsent.
SN: If No Adverse CCs in same matter, L may Repre if Not Prohibited by Law.

(2) Rep of 1/more Cs is Materially limited by L’s duty 2 C/FC/3rd Per/L’s Personal Interests (spouse)

(b) If one from above apply, L may Rep CC(s) if:

(1) L ReasBeliev can b Competent & Diligent in Rep; AND
(2) Rep not prohibited by law; AND
(3) Rep has NO COI btwn CC(s) in same case; AND
(4) Both C(s) give Written InforConsent

Special Note: Loyalty 2 C(s) – A/C privilege duty 2 both C(s) if Rep Both C(s) (Anything L says 2 C1 must tell
C2)

SN: If Joint Repr Fails, L must b obliged 2 witdrw Rep Both C(s); Not Just 1 – Duty of Loyalty 2 both

Special Note: - Explanation of risks & alternatives = Yes InforConsent

- Merely telling CCs L might withdraw if COI = Not InforConsent

SN: L(s) related NEED C’s Written InforConsent 2 rep C

SN: C can revoke Consent 2 COI.
SN: Consultation & Consent
• Note: Some conflicts are NOT WAIVABLE: “a lawyer involved cannot properly ask for such agreement. .
.” [COMMENT 14]
• E.g., Under state law, a lawyer may not represent more than one defendant in a capital case, even with
consent; under federal criminal statutes, certain representations by a former government lawyer are
prohibited; states limit the ability of a governmental client, such as a municipality, from consenting; clients
have interests aligned directly against each other.

How to Analyze a COI fact pattern for 1.7:

1. Determine if there’s a conflict under 1.7.
a) Is the representation “directly adverse” to another client?
i. Conflict between two “current clients”.
ii. Confidential information involved.
b) Will representation be “materially limited” (spousal relation) by the lawyer’s representation of the new client?
Is there a “significant risk” that lawyer’s judgment will be impacted by representing both clients?

2. If “yes,” (i.e., there is a conflict), is it permissible?

It is permissible (i.e., the lawyer may represent the client) if:
(1) Lawyer has a reasonable belief he/she can provide competent and diligent representation to each;
(2) Repre is not prohibited by law;
(3) Adverse clients not in same litig;
and
(4) . . . informed consent [of each], is obtained and confirmed in writing.

Rule 1.8: Personal Lawyer Conflicts of Interest: Current, “Special Rules”

(a) [Business Transactions]: L cannot enter business transaction w/ C/ One w/ Owner interest adverse 2 C unless:
(1) Fair and reasonable Terms & In Writing;
(2) Advise 2 Seek Indepen Counsel; AND
(3) C’s Written InforConsen for COI

SN: If C and L regularly enter Business Transactions, BusiTransaction Requirements don’t apply.

(b): [Confidential Information] L cannot use Confidential info 2 C’s disadvantage, unless:
  C’s informed consent; OR
 Allowed/Required by Law

(c): [Gifts] L Cannot “Seek” (Solicit) Substantial Gifts from C OR Prep Testaments Reward Himself, Unless:
 L & C r CLOSELY RELATED;

SN: Closely Related= Relative or Close Person

SN: If L did Not Prep Testament OR Ask (Solicit) Gift from C, L may Accept Substantial Gift w/o
Instruments or Will Gift

(d): [Media Rights] C cannot give L Media/Literary Rights Before Repre; Media rights must be until
representation is concluded.

(e) [Financial Assistance] L cannot give Financial Assis 2 C in Pend Case except:
(1) L may advance court costs & expenses; AND
(2) Pay Ct costs And Expenses for Indigent C

SN: L cannot give Stipend (Pay for Living Expenses) 2 C.

(f): [Payment by a third party] L cannot accept Non-C payment unless: (Triggers 5.4)
(1) C’s InforConsent;
(2) No Control of L’s judgment; and
(3) C’sInfo protected by 1.6
SN: Even if Parent (Non-C) paid L, Parent cannot control L’s judg on Child’s (C) interest.

(g) [Joint Clients and Settlement/Pleas]

L Repre Multiple Cs cannot make Aggregate Settlement / CriminalCas, unless
C’s Written InforConsent & Signed by C

(h): [Limiting Liability] L cannot:

(1) Limit FuturMalpractice, unless C Represented by Independently Counsel; OR
(2) Settle MalpractLiability 2 Non-C/FC, unless C advised in writing 2 seek IndepenCounsel.

(i) [Proprietary Interest] L cannot have Personal Interest in Property, Except L may:

(1) Get LIEN (Hold property till debt is paid) for FEES/EXPENSES Permitted by Law; AND

(2) Agree for Contingent Fee in Civil case.

(j): [No Sex] L cannot have sex w/ C, unless

 Sex occurs Before representation; not After .

(k): [Imputation of Conflict] Sections a) – i) ALSO applies 2 All Ls in firm.

Rule 1.9: Confidential Duty 2 Former Clients

(a) L cannot repre NC w/ SubstantRelatMatter that’s MateAdvers 2 FC, unless FC’s Written InforConsent.

(b) L MUST Withdraw if he Knows that His Old Firm repre FC where:
(1) Harmful Info (Adverse) 2 Former C; AND
(2) L has FC Confidential Info, unless Former Client Inform Written Consent
SN: L may have Opposing Position in Different Case/Diff C on Same Legal Issue. Diff Case Doesn’t have FC.

L Moving Between Firms

- If Moving L (L joining another firm or the new firm) knows of Former C info, L cannot rep NC.
- But if L w/ N Firm/Firm has No Knowledge of Confidential Info = Allowed 2 Repre NC, even if COI

(c) L/Present/Past Firm formerly repr C cannot use INFO 2 Disadvantage FC, UNLESS
 Rule permits;
 Rule Requires; OR
 PUBLIC FC info
1) Reveal FC info about repre, Unless Rule permits/requires

Analysis for COI for 1.9:

1. Are cases substantially related to each other (new case and old case)
2. Any confidential information learned that would harm former client? If this is the case,
get written waiver from both. However, if not substantial harm, no written waiver.
3. Special conflicts of interest: no business transactions with client unless

A/C Privilege

 A/C Privilege Protects Communications, Verbal Intended for LegServices btwn C/C’s EE’s AND L/L’s
Agents

 SN: Just b/c C brought pre-Document 2 L intended 2 be Confidential, Not Necessarily Privileged.
 SN: MATERIAL EVIDENCE NOT PROTECTED BY A/C PRIVILEGE.

Attorney-Client Privilege Elements:

1) Communication btwn L & C;
2) Intended 2 b Confidential;
3) Purpose of Communic is 2 obtain/offer leg service;
4) Not used in furtherance of a crime or fraud;
5) Not waived by C or L.

No A/C Privilege If:

• L’s services used for C’s crime/Fraud
• Breach of duty by L/C; OR
• Joint C(s) in representation
• C says he relied on L’s advice
Special Note: If friend/parent present during consultation, No Confidentiality Privilege.

SN: D’s statement, “Please don’t tell my Wife,” is RepInfo protected by A/C privilege, but Communication
btwn L and 3rd parties is protected by Work ProdDoctrine.

SN: L usually cannot repr multiple Ds, But L may rep multiple Ds if at least one D makes a deal, AND Joint
Defense Agree lets them be rep by Same L, without COI.

Work-Product Doctrine
Special Note: Communication btwn L/L’s agent & 3rd Per protected as Work Product.

Rule 1.10: Imputation of Conflicts of Interest (If I’m tainted, that taint spreads 2 Other Ls in firm)
(a) Ls in firm Cannot knowingly Repr C if prohibited by 1.7 / 1.9, unless

1. Prohibition About Disqualified L’s Personal COI Doesn’t Create COI for Other Ls in Firm; OR

SN: L’s Personal COI w/ EE of Org (C) Does Not Apply 2 Other Ls in L’s Firm, so Firm may still represent C.
 2. Prohibition based on 1.9(a) / (b) AND from Disqualified L’s Old Firm, AND
i. Disqual L Screened Participation AND No Fee Paid ; AND
ii. Prompt WrittNotice 2 Affected FCs 2 & must include:
 Description of ScreenProcedures;
 Firm’s Statement AND Screen L’s compliance w/ these Rules;
 Statement that review may be available in Ct; AND
 Firm’s Agreement 2 PrompReply 2 Written Inquiries / FC’s objection on screening procedures;
AND
iii. Compliance Certifications w/ these Rules AND
Screen L & L’s Partner gives Screen procedures 2 FC at reasonable time Upon FC’s WrittnRequest
AND Upon Termination of ScreenProcedures.

(b) If L doesn’t work w/ firm, Firm can still Repre Per w/ Material COI 2 L’s FC, unless:

1. Matter is Substantially Related 2 FC ; AND

2. Any Ls in firm has Info protected by 1.6 and 1.9(c)

(c) Disqualification governed by this Rule may be waived by the Affected C under conditions in Rule 1.7

(d) Disqualified Ls in firm w/ former / current Gov Ls governed by Rule 1.11

Rule 1.11: Special Conflicts of Interest for Former and Current Government Officers & EE

Rule 1.12: Special Rules for Former Judges/Arbitrator, Mediator/Other 3rd party Neutral
(a) summary: Lawyer shall not represent a client in connection with a matter in which the lawyer participated . . . as
a judge or other adjudicative officer or law clerk to such person, or as an [ADR neutral], unless all parties give
written, informed consent.
(b) summary: Judges/ADR neutral [as lawyers] can’t negotiate for employment with a party/lawyer for party in
which the judge is participating as a judge. However – Law clerk to such a judge may negotiate for employment,
but only after clerk notifies judge.
(c) summary: Imputes (a) to law firms.
(d) summary: Exception made for panel arbitrators.

SN: Special Circumstances  If matter Resolved, L is not Arbitrator / Clerk/ 3rd Neutral Anymore, So L can
Accept work from Any Party.

SN:

1.13: Organization to Client

a) Lawyer retained by an organization represents the organization through its agents.

b) Must Report Up: If the lawyer knows that an officer or employee is engaged in conduct that violates the
organization’s legal obligations and will likely result in substantial injury to organization, Lawyer must act on
behalf of the best interests of the organization and refer the matter to a higher authority in the organization.
o Must Report to Higher Authority.

Notes: Communication between any worker and a company lawyer evoke privilege? Only some workers count as
clients.
c) May Report OUT (ability to report OUT): If, despite the lawyer’s reporting efforts, the highest authority of the
organization refuses to address the issue raised by the lawyer, and lawyer reasonably believes the issues will result
in substantial harm to the organization, then a lawyer may reveal information about the organization, then a
lawyer may reveal information about the organization to prevent substantial injury to the organization, despite
confidentiality concerns.
o Higher authority didn’t listen, so lawyer can report OUT to law enforcement, media, etc.

d) - Paragraph (c) (Negating ability 2 report OUT) will not apply to L’s representation of org/officer of an
authorized investigation against alleged violation
- Does not apply when defending or doing a authorized investigation against alleged (uncertain) violation.
o Authorized to investigate, so lawyer cannot report OUT or UP so clients can have full benefit of the legal
counsel.
 1.6 Confidentiality (All information related or not related to representation) or A/C privilege (only
applies Communication during trial and doesn’t protect information unrelated to information )

e) A lawyer reasonably believes that he has been discharged because of his actions taken pursuant to (b) or (c) must
proceed as the lawyer reasonably believes necessary to assure that the organization’s highest authority is informed
of the lawyer’s discharge.

f) In dealing with an organization’s directors, officers, employees, members, shareholders, etc., a lawyer must
explain client’s identity when the lawyer knows that the organization’s interests are adverse to those of the
constituents with whom the lawyer is dealing.

g) “Dual Representation”: A lawyer representing an organization may also represent any of its directors, officers,
employees, members, shareholders, or constituents (but should get a waiver since this could pose a conflict under
1.7)
o If corporation consent to dual representation is required by Rule 1.7, the consent must be given by
appropriate official of the organization other than the individual who is to be represented, or by the
shareholders.
Upjohn Case Holding: The attorney-client privilege extends to all employees with information, as long as: (1)
communications relate to matters within the scope of their duties; and (2) the employees were sufficiently aware that
they were being questioned for the purpose of obtaining legal advice for the corporation.

Rule 1.14: Client with Diminished Capacity

Rule Summary:
(a) If C’s Capacity 2 Mke Adequate Choices Diminished, (b/c of minority or mental impairment), L must
maintain C-L Relation as reasonably possible.

(b) If L ReasBeliev C’s DiminiCapacity in SubstanRisk (physical, financial or other), L may take
ReasNecesProtect acts like:
 May Consult w/ Per able 2 protect C; AND
 May Appoint Guardian.

(c) Even if DiminC’s Rep Info protected by 1.6, L may reveal CInfo as ReasNecessary 2 protect C.

Note: L Cannot change from C’s Rep 2 C’s Guardian.

Rule 1.15: Safekeeping Property

a) – L must keep C / 3rd Person’s Money / Prop:
1. Separate from L’s BusiAccount;
2. Safeguarded From Per w/o LegRight;
3. State where L officed (or elsewhere w/ consent); AND
4. Preserve 5 yrs after Termination
 b) L may Deposit Own funds in C-Trust Account ONLY:
1. Pay Bank Services; AND
2. Only In AmounNecessary

SN: L Cannot use C’s $ 2 pay Personal Expenses.

SN: L Cannot pay more than what’s necessary ($5,000 instead of paying monthly) for Bank fees.

c) L must deposit Advance / Retainer Fees in C-TrustAccount AND L must withdraw only as fees are
earned or expenses incurred

SN: As soon as there are earned funds, lawyer should remove the earned funds from C-Trust account.

d) Upon L getting funds of C / 3rd Per, L must:

1. Promptly notify C / 3rd Per; AND
2. L must promptly return Disput / Unearned Fees 2 C / 3rd Per; AND
3. If Requested, give FullAccount

e) - L must put DisputeFees in C-TrustAcc till FeeDispute Resolved; AND

- L must PrompDistribute UndisputFees 2 C / 3rd Per

SN: If DisputFees in C-Trust, L Cannot wait for C’s resolution, L has duty 2 suggest PromptResolution.

SN: If C Disputed L’s AND ExpW’s Fees, L must:

1. Put L’s Fees And ExpW’s Fees in C-TrusACC till DisputResolved
2. PromptDistribute UndispFees; AND
3. L pays Exp from HisPocket.

SN: If EarnFees, L must put in BusinAcc; Not C-TrustAcc

SN: Even if Non-Refundable Fee, Unearned Portion must still be returned 2 C.

Rule 1.16: Declining Or Terminating Representation

(a) L must withdraw if:
1) Repre violates PR rules/Other Law (e.g. Incompetence);

2) L’s physical/mental impairs L’s Repre of C; OR

3) L discharged

SN: The CEO instructed the attorney to leave immediately, so this was termination. If L was
discharged, L cannot work on its matters any further.

SN: Generally C can fire L at any time w/without good cause, Except D in Crime Case

b) L may withdraw if:

1. No Material harm 2 C;
2. C insists & L ReaBeliev C’s crime/Fraud, using L’s services;
3. C insists = Repugnant 2 L/L disagrees;
4. C failed duty 2 L & L’s ReasWarn 2 C;
5. RepreUnreas Financial Burden 2 L; OR
6. Other good cause
SN: L’s colleague handles his Cs due to Phy Cond – Not Mandatory Withdrawal; rather Permissive

c) – If Withdrawal & Present in Ct, L must get Ct permission.

 - Ct order L 2 Repre, L must Repre, even if Good Cause.

d) If Withdrawal, C must protect C’s interests:

1. Give notice to C
2. Give time 2 get New L
3. Surrendering C files & property, BUT may keep papers if permitted by law.
4. Return unearned fees

SN: Hot Potato Doctrine: Ct Grants Motions 2 disqualify Ls who drop C’s case 2 Tke More Lucrative Case.

Rule 1.18: Duties to Prospective Clients (Even if you don’t take them, you want to control confidential
information) (Triggers 1.9 Former C)
Rule summary: Prospective clients receive some but not all of the protection afforded 2 actual clients. L must
control information given by the prospective client until you know you can take a case and run a conflicts check.
 Wife who gave confidential info, then husband went, but lawyers didn’t take the client b/c of conflict
of interest.
a) Person who seeks legal services is a prospective client.

Prospective Client Issues:

Test for lawyer-prospective client relationship
 Whether person reasonably expects lawyer willingly will talk about building a client-lawyer relationship.
 If person talks 2 lawyer w/o reasonable expectation that the lawyer will talk lawyer-client relationship 
Not Prospective Client
 Lawyer should limit time and information revealed consultation to avoid getting confidential information.

Example 1:
 Lawyer Dealio contracted Daily to email subscribers w/ an ad from Dealio: If 25 people purchased will-
prep services from Dealio, he would prep a standard will for $250.
 Analysis: Mere purchase of a legal deal doesn’t make the buyer either a future or current client.

b) Even if client-lawyer relationship doesn’t exist, lawyer shall not expose confidential info about prospective
client, unless allowed by Rule 1.9 (c), where you can represent a former client if not related to case.
 You have a duty of confidentiality that lasts forever, even beyond death (Rule 1.6 duty of
confidentiality)
Example: Husband needs a lawyer. Wife was a prospective client who gave a lot of confidential info. You owe a
duty of confidentiality to wife.

Example 1:
 Starlet (S) had issues with drug and alcohol abuse and potential mental health issues. S struggled w/
probation. After consulting w/ S, lawyer Celebro (C) rejected her. Media learned of the consultation & C
told media that she was “in a dangerous state and refused to consider leaving Hollywood, and is fragile, lost
child . . .”
 Analysis: Rule 1.9 (c) states lawyer shall keep consultation confidential, unless there’s informed consent or
other authority about future client’s info.

c) Lawyer who learns confidential info is subject to (b) shall not:

 represent new client with conflicts of interests to prospective clients in the same related matter if the
lawyer received information from the prospective client that could be significantly harmful to that
person, except as shown by (d).
 If a lawyer is disqualified, any lawyer in the firm is also disqualified, except as shown in paragraph
(d).
 Note: (c) is the same as 1.9: Duties to Former Clients

(d) Representation is permissible if:

1. Both affected client & prospective client give informed written consent; OR
 Example 1: A written waiver drafted by you and have each prospective client sign the
waiver.
Example 2: Wife, prospective client, who came in to give a lot of information. While you
want to represent husband. What can I do? I can get a waiver from the wife. To represent
under 1.18, I need a waiver with her signature. She will likely say NO. Not likely under
family law.
 Oral is not enough. Email is okay.
2. Lawyer who obtained information from prospective client took:
i. reasonable steps 2 avoid getting more information than was necessary 2 determine whether he
should represent the prospective client; AND

ii. Disqualified lawyer doesn’t get involved in the matter w/ other associates (i.e. Screening from
others) and is not paid a fee; AND
Hypo: Screened, meaning lockdown, you don’t have access to the case.

iii. Written notice is promptly given to prospective client.

Hot potato rule: Your not allowed to drop a case to take on another case.

 Comment 5. Lawyer can tell the client that info disclosed during the conversation will not necesaarily
prohibit lawyer from representing a different client in the matter
 Comment 6: you can still represent a client with interests adverse to those of the prospective client unless
you received info that could be significantly harmful to the prospective client in the matter.
 Comment: Lawyer cannot mislead prospective client into believing he will represent him and must protect
confidential info.
Counselor
Rule 2.1: Advisor
 L must use IndepJudgment (Triggers 5.4) & Candid (Honest) advice
 L may not Only refer 2 Law, L may refer 2 other considerations (moral, social, $, politic, religion, etc)
Special Note: If L recommends other Specialist’s advice  L should take recommendation.
(E.g. If issue outside of L’s expertise, L may look for Other Professional, if necessary)
Special Note: If L knows C’s act adverse 2 C, L must advice (1.4 & 1.2)

RULE 2.2: DELETED

Rule 2.3: Evaluation Use by 3rd Person

(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the
lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship
with the client.

(b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests
materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

(c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the
evaluation is otherwise protected by Rule 1.6.

Rule 2.4 L as 3rd Party Neutral

(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the
lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party
neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist
the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing
them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the
matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role
as one who represents a client.

Law Firms & Associations

Rule 5.1: Responsibilities of Partners, Managers, & Supervisory L
a) Partner and Manager Lawyer must make reasonable effort to make sure that All Lawyers obey the PR rules in the
firm.
 Ensure that inexperienced lawyers are properly supervised [CLE programs, lawyer training].
b) L w/ Direct Supervisory authority over Indiv L must make reasonable effort to make sure other lawyers obey MR
rules.
c) Lawyer is responsible for other L’s violation if:
1. L ordered conduct/knows/approves/ allows conduct; OR
2. Partner/Manager L/ Super L knows of the conduct at time consequences can be avoided/mitigated,
BUT failed to take reasonable remedial actions

Rule 5.2: Subordinate Lawyer’s Responsibilities

a) L bound to PR rules, even if L obeyed other L’s directions.
b) L doesn’t violate PR rules if L’s act is in accord with Super L’s ReasResolut (RR) of ArguQuest (AQ) of Pro
duty.
Example: Debatable issue when  Subor L thinks Opt A is correct, but Super L thinks Opt B is correct. They
research and Subor L obeys Super L’s instructions. Thus, Subor L not in violation of PR.

Comment1: If Subor L knows conduct violated PR, Subor L disciplined.

Rule 5.3: Responsibilities about Non-Lawyer Assistance

a) Partner & Manager L must make reasonable effort to make sure ALL NLs conform to L’s duties.
b) L w/ DirectSuper Author over Indiv NL must make reasonable effort to make sure that Indiv NL obeys L’s duties.
c) L is responsible for NL’s violation of PR rules if:
1. L ordered conduct/allowed/ knew of conduct; OR
2. Partner/Manager L/Super L knew of conduct at time that consequences could have been avoided/mitigated,
BUT failed to take reasonable remedial action.

Special note: When is 5.3 triggered?

• L instructs NL of 1.6, A-C privilege, work product, etc.
• Advise NL not to speak w/ represented persons (4.2)

Rule 5.4: Professional Independence of a Lawyer

a) L cannot share fees w/ Non-L unless:
1. L agreed w/ firm/Associat 2 buy L’s estate;
2. L bought Pract of Deceased/Disab/Disapp L may (1.17 Sale of Pract) pay L’s rep/estate;
3. Non-L in retire/profit/bonus plan
4. Ct awarded fees w/ non-profit orgs
b) L cannot Partner w/ Non-L if activity involve Law Pratice
c) Per recommends/pays L for service cannot control L’s Indepen Judgment
d) L cannot practice w/ Corp/ Org for a profit if:
1. Non-L has Owner Interest, unless Fiduciary Rep of L’s estate may hold L’s stock/interest;
2. Non-L is Corp director/officer
3. Non-L controls L’s judgment
Rule 5.5 – Unauthorized Practice of Law/Multijurisdictional Practice of Law
(a) L cannot practice law in Jx violates MR/Assis Non-L 2 practice law.
(b) Unless author by law, L unlicensed in Jx cannot :
1. Establish office/Continue presence in Jx; OR
2. Hold 2 public L admitted 2 practice law
(c) L unlicensed in Jx/Not disbarred/Not suspended may ask Ct 2 give temp legal services under PRO HAC
VICE EXCEPTION only if:
(1) L consults w/ L licensed in Jx & actively works on case; OR
(2) Practice Reas Related 2 pending case where L licensed; OR
(3) & (4): Representation Reas related 2 L’s practice/Arbitration where licensed

(d) 1. In-House exception: L licensed elsewhere & good standing may practice law if:
1. L gives services 2 CORP ER; OR
2. Services federally authorized

Special Note: L doesn’t have 2 be admitted 2 be disbarred.

Special Note: L may delegate work 2 Non-L (Law Clerk) only if work is 1) supervised (Model Rule 5.3) & 2) L
takes responsibility for work.

Special Note: L may delegate Admins work w/ no law degree/legal analysis/interpre needed.
Special Note: CL definition of Law Practice is doing and performing of services in court including legal
advice in Cali.”
Special Note: L doesn’t have 2 b physically present 2 pract law; could be phone, fax, email, etc.

CA Business and Professions Code 6125: “No person shall practice law in Cali. unless the person is an active
member of the State Bar.
 If 6125 is violated  no fees given California Contact Requirement

Rule 5.6: Restrictions on Practicing Rights

A. L cannot join in offering/making of partnership/similar agreement restricting L’s practicing rights, except
on retirement benefits.
B. L cannot join in offering/making of agreement where restrictions on L’s PractRights is in settlement
Maintaining Profession’s Integrity
Rule 8.1: Bar Admission & Disciplinary Matters
 L/Applicant cannot Knowingly make false statements of Mat Fact on BAR application
 Mere suspicion – Not enough; OR
 L/Applicant cannot Knowingly Fail 2 Correct Misstatements; OR

SN: L has duty 2 call Bar & disclose that Candidate made Misstatement, but No Duty 2 disclose FC’s Drug
History protected by 1.6.

Special Note: Anything involving misconduct = 8.1, 8.3, 8.4, 8.5

Special Note: Applicant/L no duty 2 report if matter unrelated 2 him.

SN: L/Applic r responsible for false statements about BAR Admiss; But NOT ALL.

 L cannot Knowingly FAIL 2 comply w/ Requests for Admiss / Discipl Info, UNLESS protected by 1.6,
which L cannot Disclose:
- Info through Ethics Hotline;
- Self-Incrimination;
- L Assist Prog
- L’s PAST Disciplinary Matter
- L learned Confidential Info while Representing A C.
Rule 8.3: Duty 2 Report Misconduct
A. L knows L/J violated PR raising substantial ? of Serious Violations on fit/trust/honest, L must notify
Prop Author.

Special Note: L’s romance w/ C – not Substantial ? on L’s fit/honest

SN: L speaking w/ Juror Ex Parte= L violated 3.5, so other L who heard L talking about Criminal
Case w/ Juror is a violation, So L has duty to report (8.3). F

B. Exception: No duty 2 report if ConfidInfo protected by 1.6 if:

Info from L’s Assis Prog, unless informed consent (No need for writing)
Info from Ethics Hotllin
Info from repre of Friend/Non-Friend

SN: No duty 2 Report if ConfidInfo learned During Repre C.

Rule 8.4: Lawyer General Misconduct

A. L cannot knowingly Assis/Induce another 2 violate PR rules (Triggers 4.2)
Example 1: If Lucy Lawyer closely directs Cindy’s conversation w/ opposing party, then she violated rule 8.4.
Example 2: Unknowingly assist another when you leave work while non-lawyer is doing your legal work.

o What about directing your own client to speak with an opposing party who is represented by
counsel? Is that a violation?
NO. Parties allowed to speak with one another. But may be a violation if you use your client as
your mouthpiece (closely direct the client-to-client communication).
B. L cannot commit crime/fraud act raising substantial ? on honest/fit;
Special Note: Criminal/Fraud Act need not be related to Pract of Law
o Not all criminal acts constitute misconduct b/c it must related to honesty, trustworthiness, or
fitness.
o Doesn’t require conviction
C. L cannot engage in conduct Prejudicial 2 Adminis of Justice; OR
 Typically applies to in-court matters, but can occur outside the court.
 Examples: Slacking on /missing court appearances, causing unnecessary delays, threatening
prosecution or other adverse actions for personal gain and can include conduct outside the court.
D. Lawyer cannot state/imply he/she can influence Gov/Ct violating PR rules
Analysis: Although he was capable of influencing the Prosecutor, court said that Oklahoma lawyer did not show
Intent to continue with the conversation, so lawyer’s lack of action wasn’t misconduct.

E. L cannot knowingly Assis Jug/Judici Offcr 2 violate PR rules

 Example – Bribing Jug for favorable decision.

Rule 8.5 Disciplinary Authority/Choice of Law

Disciplinary Authority:
A. - Jx rules apply where licensed, regardless where conduct occurred.

Analysis: Joe can be disciplined by Michigan even if violation occurred in different as long as act was
improper under Michigan Rules of Professional Conduct.

- Jx rules where unlicensed apply if L gave services there

- Both Jx’s rules apply where licensed for same conduct.

Analysis: Regardless of where the violation occurred, Billy can be disciplined in Virginia, where licensed too.
B. Choice of Law:
1. If Misconduct Related case  Jx Rules where Ct sits apply, unless stated otherwise; AND
2. If Misconduct Not Relate Case  Jx’s rules where conduct occurred apply (Triggers 5.5)

Analysis: By Choice of Law, court ruled b/c violation occurred in Illinois, state that allowed fee splitting
agreement according to Illinois law.
3. Safe Harbor Exception: If L ReaBeliev other Jx’s rules apply 2 different Jx L not Discipl

Analysis: Court ruled that 8.5 would permit you to accept X as client b/c the Texas conflict-of-interest rule would
apply to representation. If NY lawyer reasonably believes his conduct will have predominant effect in Texas, NY
lawyer cannot be disciplined for violating Texas rules if it’s later determined that Texas law applies.

Where two states rules conflict and where lawyer reasonably believed that the other state’s (California) rules apply
in Wisconsin  L not disciplined by Safe Harbor.
Information about Legal Services (Ads & Solicitation)
Rule 7.1: Communication Concerning Lawyer Services
1) L cannot make false/misleading statements about L/L’s services.
2) Communication false/misleading  Material misrep of fact/law OR omission of fact 2 make non-
misleading statement.
Special Note: L cannot make inflated claims on case outcomes, but may state, “Depends on provability of cas”
Analysis: False Communi - Lawyer’s website communications constituted false statements violating 7.1 b/c they
materially represented his experience. Also, regardless his subjective belief, the issue is whether his communication
was false about his services. The advice from the website people doesn’t protect him either b/c lawyer is
responsible.
Analysis: Misleading Communi - Mauricio’s use of his pre-marriage name (Mauricio Formername) was not
misleading b/c he had no fraudulent motive and used his married name ONLY for personal or social purposes
unrelated to law.

Rule 7.2: Advertising

a) L may advertise services through written/record/E-mail/ Public Media.
 Blogs are ads, unless its purely educational
b) No Referral Fees: L cannot give anything of value (No Need for $) 2 Recommender of L’s services except L
may:
1. Pay for ad
2. Pay for L referral service (i.e. lawyer referral service approved by appropriate authority – like paying a
certain monthly fee to an organization to be put on the list to be assigned to clients);
3. Pay for sale of law practice complying w/ 1.17;
4. Refer clients 2 another lawyer based on:
i. Reciprocal referral agreement that’s Equal for Financial Gain(i.e. Youll refer to that lawyer
and other lawyer refers to you); AND
ii. Client informed of agreement

Note: Customers cannot be included in Referral Agreement.

c) Any communication must include the name & office address of at least 1 L/firm

Analysis: 7.2 (a) allowed lawyer to advertise 2 make business and name recognition through online media that will
communicate w/ potential clients by email. Also, 7.2 (b) (1) allows lawyer 2 pay the reasonable costs for ads.

Analysis: Lawyer may respond to negative and inaccurate reviews only if they take responsibility and are truthful.
In this case, lawyer pretended to be one of his own former clients, so this violates the model rules. Lawyer cannot
expose confidential information of their former client. This disclosure violates 1.6: Confidentiality. His act of
posing as his former client and posting positive reviews involved dishonesty and misrepresentation.

Rule 7.3: Solicitation of Clients

 a) L cannot solicit services in person/by phone/real-time electronic contact for MONEY, unless the
person contacted:
1. L; OR
2. Family/close per/FC (Former Client)
3. Pro-Bono (Free of Charge)

SN: If L offered Legal Assistance FREE OF CHARGE, there’s no Money Motive, So No Discipline.

Analysis: Lawyer improperly instructed the teenagers to violate 7.3 (a): Solicitation by ringing doorbells and
entering businesses to deliver the brochure personally. Lawyer violated this rule through the acts of the teenagers.

Analysis: Lawyer solicited client in person when he visited her in the hospital. He had no pre-existing personal or
professional relationship w/ the client, so he violated 7.3: Solicitation 2 clients. Its uncertain whether his motive to
represent was motivated by payday, and if so, he is subject to discipline. However, if pecuniary gain didn’t motivate
his solicitation, he is not subject to discipline.
b) – L may get legal business through group service plan, unless Operator of plan uses in-person or
telephone to solicit people it KNOWS NEED Legal Services.
c) L cannot solicit services by in person/real time electronic/phone if:
1. Prospective Client doesn’t want services; OR
 Example 1: Not a direct personal solicitation to someone in a cocktail party like someone
who looks interested in your services and you give them a business card – Good
 Example 2: Your searching for potential clients – Not Good; OR
2. Solicitation involves Duress/Misrep/Harassment

d) Written, Record, OR Email 2 PeopNeed of Services must have “Advertising Material”

 Outside of Envelope (Written) OR
 Beginning And End of Record OR Email, Unless lawyer/family/close per/FC

SN: Ad Material Not for Business Cards

SN: If email is for people who r “Likely” (Future) 2 NeedServices, but No Need it Right Now, No need 2
include “advertising material.”

SN: Watch out for Answer choice that include both sides of the argument, which may turn out 2 be the
BETTER ANSWER!

Analysis: Lawyer’s announcement was a solicitation b/c it communicated to specific people in a specific matter.
However, this is outside the MR b/c he already had a professional relationship with the existing clients. Not so,
however, w/ the individuals on the debt counseling mailing list. In this situation, he would need 2 include a
Disclaimer “Advertising Material” on the envelope containing the announcement. But comments say that general
announcements of personnel or office location does not show solicitation of professional employment, thus, his
announcement was proper both to his existing clients and individuals on the list.

Rule 7.4: Communication of Fields of Practice & Specialization

A. L may state he does or doesn’t practice that type of law.
B. L allowed to practice Patent may use “Patent Attorney”/Substantially Similar name.
C. L in Admiralty may use “Admiralty,” “Proctor in Admiralty,” or Substantially Similar name.
D. L cannot state/imply he is CERTIFIED unless:
1. Certified by Approved Org/ABA; AND
2. CertiOrg’s name Identified

SN: If Org not certified, L cannot state he is “Certified.” In this situation, L can Only say “Specialization.”

Analysis: Her profile likely didn’t violate 7.4 as long as her profile skills and experience remained truthful and not
misleading and didn’t state or imply that she was certified as specialist in those areas.
Rule 7.5: Firm Names and Letterhead
A. - L cannot use firm name/letterhead/other Name if Mislead/False (7.1)
- L may use trade name in Private Practice if doesn’t imply a connection 2
Gov/Charity/Pub/False/Mislead (7.1)

B. Letterhead – Firm w/ offices in more than 1 Jx may use the Same Name/Other Name Only IF L(s) ID(s)
show Jx’s limits where unlicensed 2 practice

C. If L not active w/ firm for substantial time, then:

i. Firm cannot use L’s name holding pub office; OR
ii. Communication on its behalf

D. L(s) may state/imply practice together ONLY IF TRUE.

SN: Lawyers merely sharing office space but not practicing Not Name themselves “Smith & Jones.”

SN: Sending letters on letterhead w/ L' names and info, But NOT the employer's name and
logo, Ls are implying they work for private firm, which Is Not True. F

SN: Just make sure the Firm Name is not Misleading. In this case, “Sunshine Smiles Law Office” is Not.

Analysis: “Monster Verdict Law” didn’t likely suggest its lawyers were associated w/ a government agency or
public or charitable legal service.” Moreover, Trade names that entertain don’t necessarily violate 7.5 (a). However,
because it coined itself as “Monster Verdict Law” depicting a Godzilla-like creature, this name may create
unjustified expectations about case outcomes. Additionally, Monster Verdict Law practiced in multiple jurisdictions.
If any Monster Verdict Law lawyers were unlicensed in a jurisdiction where officed, this violates 7.5 (b).

Rule 7.6: Political Contributions/Preventing Pay-for-Play

- If L/firm make Political Contributions:
A. L/firm cannot accept Gov engagement/Appointment; OR
B. L/firm cannot make contribution to be considered for Appoint

Duties to Adversaries and 3rd parties (Advocate)

Rule 3.1: Meritorious Claims and Contentions
 L cannot pursue FrivolClaim, unless there’s Basis of Law AND Fact (Non-Friv) OR Good Faith
Arguments, Even if L doesn’t Think C will prevail.
SN: L permitted 2 use Non-FrivClaims like GF Arguments for Extens/Modific/ OR RevesLaw, Even if L
thinks she Wont Succeed.
 D’s L in Crime Proceed may result in Incarceration, L may Defend case 2 require each element
proven.

SN: L must had Probable Cause 2 bring claim, except when GF argument, even if L thinks he wont succeed.

Criminal Law Exception: 3.1 should NOT interfere w/ Prosecution 2 prove guilt beyond ReasDoubt.

SN: Even if causing Delay, claim still has Legal basis.

Rule 3.2: Expediting Litigation

Rule Summary: Lawyer must make reasonable efforts to expedite litigation consistent w/ client’s interests.

Note: What if the delay benefits the lawyer? Lawyer can only request a delay because of a busy schedule IF its in
the client’s best interest.
Comment 1: What if delay benefits the client? Comment1: NOT expediting a litigation matter can never be
reasonable if it is done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress (i.e. If
sole purpose is just to Frustrate other side, this is not reasonable)

Comment 1: How do we determine if delay is appropriate? The question is whether a competent lawyer acting
in good faith would regard the course of action as having some substantial purpose other than delay. (E.g. If
there’s another reason for delay, Other than just the delay, then this is OKAY).
Comment 1: Is potential financial gain to the client a proper basis for delay? No, Realizing financial or other
benefit from otherwise improper delay in litigation is not in the client’s interest. (i.e. Sole purpose is financial, then
this can never benefit the client)
Note: Other rules implicated by failing to expedite litigation? 1.3-and 3.4.
Rule 3.3: Candor (Duty) 2 Ct
(a):
1. L cannot “knowingly” make false statements of fact/law 2 Ct / fail 2 correct a false statements;

2. A) L cannot “knowingly” fail 2 disclose legal authority in ContrlJx; AND

B) L must know AuthorAdverse C; AND
C) Duty 2 cite legal authority if L knows Opp L cites Authority

SN: If L doesn’t know that OppL will cite Authority in Initial Motion No duty 2 disclose Authority.

3. – L cannot knowingly give false evidence

- If L/W/C gave false statements & L knows, L must take ReasRemedAct, AND if necessary, reveal 2
Ct.

SN: If Withdraw, L must take ReasRemAct telling C 2 rectify Fraud, & if necessary, Disclose 2 Ct.

- L may deny false testimony in Civil Case, except D’s in Criminal Case w/o L’s participation.

(b) – L in Ct & knows C int. 2 engage/engaging/engaged in Crime / Fraud in Repre, L must take ReasRemedAct
& if necessary, reveal 2 Ct. (Triggers 1.2)

SN: If L doesn’t Repre C – No duty 2 Ct

(c) Duty 2 Avoid False Evidence & Reveal ConfiInfo ONLY till conclusion of case; No Ct Duty after case ends
(d) If Ex Parte (1 L present), L must Inform Ct of all Facts so Ct makes InforDecisions, even if AdversFacts
SN: If C testifies, L finds out C lied, so L must tell C 2 Rectify Fraud but C insists, so If Nessary, Reveal 2 Ct

Rule 3.4: Fairness 2 Opposing Party & L

(a) – L cannot illegally prevent other party from evidence/alter/destroy/conceal Potential Evidentiary Value.
- L cannot advise/assist another person to do above.
(b) – L cannot Falsify evidence/assis/induce W 2 testify falsely/break law
SN: L had no duty 2 disclose all relevant info if there’s no false evidence.
SN: See below

Comment 3: L not subject to discipline for paying witnesses reasonable expenses

 L may pay W & ExpW Testimony expenses AND Refunds (travel/hotel/lost wages)
 Expert W And W Cannot be paid Inducements (Contingent Bonuses)
 (c) L cannot knowingly disobey Ct duty, unless no valid duty.
(d) L cannot make FrivoloRequests / Fail 2 Respond 2 DiscovRequest From D, except in situations where
you provided limited Discovery.
SN: Opposing L must at least give answer, but limited discovery b/c some protected under 1.6 & Word
Product Doctrine.
(e) - L cannot, In Trial, refer 2 Evid. L ReasBeliev Irrelevant;
- L cannot give opinion or Personal Knowledge on:
o Fairness of Cause
o Whether Per Guilty/Not Guilty
o Whether Civil Litigant Culpable/Not Culpable
o W Qualifications

(f) L must STOP C/C’s EE/C’s Relative, except any other Per, 2 disclose Representation Info, & L
ReasBeliev Per Interests Wont be Affected for not giving Info.
Possession of Physical Evidence
• What if a client brings a gun to your office after committing a crime?
• Courts agree that lawyer may keep the gun for a reasonable period of time to perform appropriate testing if
doing so does NOT alter the evidence. Then Lawyer must notify the authorities that he has the gun.

Witness Preparation
• Can you go too far?
• As long as the lawyer does not tell the client/witness to make untrue statements, witness preparation is
acceptable.
• Tell witnesses to speak the truth at all times/instuct that “I don’t know” [when truthful] is an acceptable
answer.

Special Uncertain Note: No duty to turn over evidence to IRS (know for Exam)

Rule 3.5: Ct’s Impartial & Proper Behavior

L cannot:
(a) influence Jug/Juror/Prospective Juror;
(b) Speak w/ Jug ex parte (alone), unless allowed by Law/Ct;
(c) Speak w/ Juror/Prospective Juror EX Parte after discharge if:
(1) Prohibited by Law/Ct;
(2) The juror has made known 2 L no desire 2 speak; or

SN: If Juror Doesn’t tell L he doesn’t want 2 speak, L not disciplined.

(3) Communication: Misrepre/duress/harassment; OR

(d) Intend 2 disrupt Ct.
Rule 3.6: Trial Publicity
a) L is or was in the investing / litig Cannot Mke ExtrJudicial Statements L knows or reasonably should
know will be:
i. Publicized AND
ii. SubstantiaLikly Prejudicing (Unfavor) Case
SN: L emails Reporter stating, “D’s Criminal Record and Confession,” is SubstantLikely to PrejudicCase.

b) L may state 2 public:

(1) Claim / Offen / Defense, AND
Per’s ID, Unless prohibited by law;
(2) Public record Info;
(3) Ongoing Investig;
(4) Schedule OR Results of any step;
(5) Request Assis of Evid;
(6) Warn of Per’s Danger If there’s Likely of SubstantHarm 2 Publi Or Per; and

SN: If public has no Reason 2 believe Per is Danger, there’s no Substantial Likely Harm

(7) In a Criminal case, + 1-6:

(i) D’s ID / Address / Work / Family
(ii) Accused Not Arrested OR Info 2 Arrest;
(iii) Fact, Time, AND Place of arrest; AND
(iv) Investig’s AND Arrest Off’s ID AND Investig Length

c) L may say anything Reas L believes needed 2 Protect C from Prejudic (Unfavor) Publicity, BUT
LimitInfo as Necessry 2 mitigate PrejudicPublicity.

d) No L in firm OR Gov + L in Investig can Mke Prohibited JudicStatements Prejud 2 Case.

SN: Exception L allwed 2 Mke Positive statements about C.

Rule 3.7: Lawyer as Witness

(a): A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b): A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as
a witness unless precluded from doing so by Rule 1.7 [conflicts of interest – current client] or 1.9 [duties to
former clients]

Rule 3.8: Prosecutor Special Duties

Criminal Prosecutor must:

(a) Not Prosecute if he knows there’s No ProbabCause;

(b) Mke ReasEffrts that Accused Advised of Rights 2 Counsel AND ReasOpportunity 2 get Counsel;

(c) Not Waive Unrepresent Accus’s PreTrial Rights;

(d) Timely Disclose Evidence 2 Defense Known by Prose 2:

i. Negate AccusGuilt Or Mitigate offens; And

ii. Disclose Unpriviliged Mitigating Info about sentencing 2 Defense & Ct, except if Prosecutor relieved of
Duty by Ct ProtectivOrder;

(e) Cannot Subpoena L in grand jury to give evidence of Past or present C unless the prosecutor reasonably
believes:
(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation
of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or
other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement
that the prosecutor would be prohibited from making under Rule 3.6 or this Rule, except for statements that are
necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law
enforcement purpose,

SN: Pros made statements “He is perpetrator”2 Media Heightens Unfavorable Publicity against Accused
and Bias 2 Jury.

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a
convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the
defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s
jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the
conviction.

Rule 3.9: Advocate in Non-Adjudicative Proceeding

L represents C before legislative or administrative in a nonadjudicative proceeding MUST:

 Tell the Legislative or Admin People – He appears before

Transactions w/ People other than Clients

Rule 4.1: Truthful Statements 2 Others
A) While representing C, L cannot knowingly give false statements about law/fact 2 3rd person.
B) While representing C, L cannot knowingly fail to reveal facts to prevent C’s crime or fraud, unless
protected by 1.6.
SN: 4.1 = 8.4 = 1.2

Rule 4.2: Communication w/ Oppos L’s C

 L cannot talk about Repre w/ person L knows Repre by Opposing L, unless
i. L has opposing L’s consent (not C); or
ii. Allowed by Ct/law
iii. Informant Undercover Talks – Don’t need Ct Authorization
SN: If the talk btwn L and Repre Per is Not About Representation, L not disciplined.

SN: If EE Not Supervised / not Consulted w/ Fabout Repre, L not disciplined 2 speak 2 Per, even if No Opp
L’s Consent, Unless Opp L’s rights violated (4.4).

SN: L may not have Direct Contact w/ OppL’s Witness IF not Permitted by Law.

Rule 4.3: Dealing w/ Unrepresented Person

 Dealing w/ Non-C, L cannot state or imply disinterest in C.

 If L knows or reasonable should know Non-C misunderstands L’s duty, L must correct misunderstanding

 L cannot give legal advice 2 UnrepPer if L knows or reasonably should know COI btwn L’s C AND
UnrepPer, unless
 Advice to Secure Counsel.
 If UnrepresentedPer understands L’s duty, L may explain meaning of any agreement btwn
L’s C AND UnrepPer.

Rule 4.4: Respect for 3rd Person Rights (Anti-Harassment)

A. L cannot have only purpose of embarrassing, delaying, or burdening 3rd person; OR

L cannot get evidence that violate 3rd party rights

SN: L violates 3rd PartRights (Opp L) by getting Privileged Info from Some1

B. If L knows or reasonably should know that C’s info sent accidentally, L must promptly notify sender.

Public Service
Rule 6.1: PRO BONO
- All Ls w/ PR duty 2 give legal services to those unable 2 pay
- L should, but not required, 2 complete 50 hours of pro bono work each year
- No ProBo Charge 2:
o Impover Cs; OR
o Charity,Religi,Civic,Commu,Gov, & Educ Orgs; AND

- More ProBoServices by:

o Legal service w/o fee/ reduced fee 2 people/orgs 2 protect civil/pub rights
o Joining Orgs 2 improve law/profession/system; or
o Giving $ 2 orgs who offer legal services 2 impoverished Cs.
SN: L should do 50 hrs of ProBo work, but Not Required.

SN: 6.1 Wants L 2 join Law Orgs 2 improve law/leg professi/system

Rule 6.2: Accepting Appointments

L cannot Avoid Repr before Ct, unless its good cause:
A. Repr violates PR rules (e.g. Incompetence/Conflict of Interest);

B. Unreasonable financial hardship; OR

C. C/Cause offensive (repugnant) 2 impair C-L relation/L’s Capacity 2 Repre

o Not good cause if related to race or politics b/c not enough
Special Note:
 L has freedom 2 pick C but Freedom is qualified
 What duties are owed to the client engaged by appointment? Ct appointed lawyer has same duty 2 C
as retained counsel (i.e. loyalty and confidentiality)

Judicial Conduct
Rule 1.1: Compliance w/ Law
 Judge must comply w/:
 Law, AND
 Judicial Code
SN: L cannot waive duty of competence by limiting necessary preparation for competent Rep.
Rule 1.2: Promote Public (Judicial) Confidence
 Judge must act w/ PublConfidence in:
 Independence;
 Integrity;
 Impartiality; AND
 Avoid Improper Behavior & Improper Appearance
Rule 1.3: No Abuse of Judicial Office Prestige (Reputation)
 Judge cannot Abuse JudicOffice Reputation if:
 Personal or Economic Interest of Judge / Others; OR
 Allow Others 2 do it
SN: L has duty 2 ReasInform Cs 2 avoid Missing Deadlines.
Cannon 2:
 Judge Must Perform Duties of Office w/ Impart, Competen, & Dili

Rule 2.1: Precedence of JudicOffice Duties

 JudicDuties r Priority over:
o Judge’s Personal AND Non-Judicial Activities

Rule 2.2: Impartiality and Fairness

 Judge Must Uphold AND Apply Law:
 Fairly; AND
 Impartial
Rule 2.3: Bias, Prejudice, & Harassment
a) Judge Must Perfo Admintr&JudiciDuties w/o Bias/Prejudice
b) Judge Cannot Perfo JudiDuties (Words or Conduct) that’s Bias, Prejudice, Harras, And Cannot
Control Others 2 do it.
c) Judge Must Req L 2 refrain from showing Bias / Prejudice / Harras against Parties / W / L /
Others
d) B and C allows Jug / L 2 refer 2 listed factors in other situations

Rule 2.4: External Influences on Judicial Conduct

A) Judge Cannot b Controlled by Public Clamor (Outcry)/Fear of Criticism
B) Jug Cannot Permit Fami/ Soc/ Politic/ Financ/ OtherInterests / Relations 2 Influence Jug’s
Judg/Conduc
C) Judge Cannot Permit others to Give Impressions they can Influence Jug.

Rule 2.5: Competence, Diligence, and Cooperation

A) Jug Must Perfor JudicConduc & AdmistrDuties w/ Competence & Dilige
B) Jug Must Cooperate w/ other Jugs & Ct Officials in Adminis Ct Business

Rule 2.6: Ensuring the Rights to Be Heard

a) Judge Must Grant every Per w/Legal Interest OR Per’s L, RIGHT 2 b Heard by law
b) Judge MAY Encourage Parties AND Ls 2 settle, But Cannot Coerce Any Party 2 settle.

Rule 2.7: Responsibility to Decide

 Judge Must Hear AND Decide Assignments, except if DISQUALIFIED by 2.11/OtherLaw

Rule 2.8: Decorum, Demeanor, and Communication with Jurors

a) Jug Require Order AND Decorum in Ct.
b) Jug Must b Patient, Dignified, AND
Courteous 2:
i. Litigant,
ii. Juror,
iii. W,
iv. Ls,
v. Staff,
vi. CtOfficials,
vii. AND Others In His Capacity; AND
viii. Require same conduct of Other in his Control.
c) Judge Cannot Recommend / criticize Jurors for Verdict, except in Ct Order / Opinion.

Rule 2.9: Ex Parte Communications

 a) Judge Cannot Permit/Consider Ex PartCommunication W/O Parties / L about Pend / Impend
Case, Except:
1. If ExPart Required in Emergency / Schedules / Administrat, Permitted If:
i. Judge Reas Beli No party will gain Substant / ProcedurAdvantage; AND
ii. Judge Must PromptNotify Other Parties in Ex-Parte AND
iii. Gives Parties Chance 2 Reply
2. Judge MAY obtain Written Advice of Disinterested Expert, IF
i. Jug gives Advance Notice 2 Parties of ConsulPer AND
ii. Subject 2 b Solicited AND
iii. ReasOpportunity to object & respond
3. Judge MAY consul w/ Ctstaff whose job 2 aid Judge OR other Judges ONLY If:
i. Jug Mks ReasEffrt 2 Avoid FactInfo Not in Record And
ii. Not Evade Decision Responsibility
4. Judge May, W/ Party’s Consent, Consul Separte w/ Parties and L 2 settle PendMatter

5. Judge May permit/consider Ex Parte Comm IF Authorize by law

b) If Judge Accidentally got Ex Parte Comm, Judge Must:
i. PrompNotify the parties of the communi AND
ii. Give Chance 2 reply
c) Judge Cannot investigate Facts in Claim independently, AND
Must consider only evidence presented AND
Facts Judicially Noticed.
d) Judge Must Mk Reas Effort AND Supervision 2 Ensure 2.9 is NOT violated by CtStaff AND Others
in Jug’s control.

Rule 2.10: Judicial Statement on Pending and impending Cases

a) Judge Must Mk Public Stamen that is Reaso Expec Outcome or Impair Fairness OR mk
NONpublic Stat that Might Substan Affect fair Trial
b) Judge Must Mk Pledges, promises, commitments inconsistent w/impartiality
c) Judge Must Req Staff and other in his control to follow (a) and (b)
d) Judge May Mk public stamen in course of duties, May explain procedures, May comment on
processing on which judge is litigant
e) Judge May Respond Direct or through Third Part to allegation in Media or elsewhere about
Judge’s conduct.

2.11 Disqualification
(A) Jug must disqualify him/herself where Jug’s impartiality reasonably questioned in the following situations:
(1) Jug has bias/prejudice about party/a party’s L/Personal knowledge of facts in dispute.
(2) Jug knows Jug/Jug’s spouse/domestic partner/Per in 3rd Level of Relation 2 either/Spouse or domestic partner of
Per is:
  (a) Procee’s Party/Offcr/Dirctr/Gen Partner/Manag Membr/Party Trustee;
  (b) Acting as L in proceed;
  (c) Per w/ more than Minim interest substantially affected by Proceed; or
  (d) Likely Material W in Proceed.
(3) Jug knows, Indiv/Fiduciary/Jug’s spouse/Domestic partner/Parent/Child/Other Jug Fam membr living w/ Jug
---- $ interest* in Subj of Controv Matt/Proceed’s Party
(4) Jug knows/learns by timely motion that Party/Party’s L/Party’s L’s Firm has in previous [insert number] year[s]
made aggregate contributions Jug’s campaign in Greater Amount [is greater than $[insert amount] for Indiv/ $[insert
amount] for Entity = Reas & Prop for Indiv/Entity
(5) Jug, while Jug/or Jud Candid, made Pub Statement (other than Ct proceed)/Jud decision/opinion, that
encourages/appears 2 encourage Jug 2 make a specific decision/Rule in Proceed/Controv.
(6) Jug:
  (a) served as L in controversial matter/Associated w/ L who substantially participated as a lawyer in matter during
association;
  (b) served in Gov Employ & Participated Personally & substantially as L/Public offic about Proceeding/Public
expressed opinion of merits of controversial matter;
  (c) Material W; or
  (d) Previously Presiding Jug of matter in other Ct
(B) Jug must be informed about Jug’s Personal & Fiduciary $ interests & make ReaEffr 2 stay informed of personal
$ interests of Jug’s spouse/domestic partner & minor children living w/ Jug.
(C) Proper Procedure 2 Remain in Case (Disqualif Waiver):
1. If Jug about 2 be disqualif, Jug may disclose based on Jug’s disqualif.
2. Ask parties & Ls 2 consider Presence of Jug & Personnel, Whether 2 waive disqualif.
3. Parties & L agree Jug may stay on case.
4. Agree must b in ProceedRecord
2.12 Supervisory Duties
(A) Jug must get Ct staff, Ct officials, & others under Jug’s direction & control to act consistent w/ Jug’s duties in
2.12.
(B) Jug w/ Supervis Author for Perfor of other Jugs must take reasonable acts 2 ensure those Jugs prop discharge
their Judicial duties, including the Prompt Disposition
2.13: Administrative Appointments
(A) In making Administ Appoints, Jug:
   (1) must use power of appoint impartially & merit basis; AND
   (2) must avoid favoritism & unnecess appoint.
(B) Jug cannot appoint L 2 a position if Jug either knows L/L’s spouse/L’s domestic partner gave more than $[insert
amount] within the prior [insert number] year[s] 2 Jug’s campaign/learned of contribution by means of timely
motion by a party/other per interested in case, unless:
   (1) Position Substantial Uncompens;
   (2) L selected in rotation of a list of qualif & available Ls w/o regard 2 their political contributions; OR
   (3) Jug/another presiding/admin Jug affirmatively finds no other L is willing, competent, & able to accept the
position.
(C) Jug cannot approve comp of Appointees beyond fair value of services.

2.14: Disability and Impairment

Jug’s ReasBelief that L/another Jug impaired by drugs/alcohol/mental/emotion/physical condition, Jug must take
prop act, which may have confidential referral 2 L / Judicial Assis Prog.
2.15: Responding 2 Judicial & L Misconduct
(A) Jug who knows another Jug violated 2.15 Code raising substantial ? of Jug’s honest/trust/fit as Jug must notify
prop authority.
(B) Jug who knows another L violated PR rules raising substantial ? of L’s honest/trust/ fit as L must notify prop
authority.
(C) Jug gets info showing substantial likelihood another Jug violated 2.15 must take prop act.
(D) Jug gets info showing substantial likelihood L violated PR rules must take prop act.

2.16 Cooperation w/ Disciplinary Authorities

(A) Jug cannot COOP & be honest w/ Judicial & L disciplinary agencies.
(B) Jug cannot Retaliate/Direct/Indirect against known Per/Per Suspected 2 have Assis/COOP w/ investigation of
JUG/L.

Rule 3.7
Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities

(A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or
governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored
by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including
but not limited to the following activities:

(1) assisting such an organization or entity in planning related to fund-raising, and participating in the management
and investment of the organization’s or entity’s funds;

(2) soliciting* contributions* for such an organization or entity, but only from members of the judge’s family,* or from
judges over whom the judge does not exercise supervisory or appellate authority;

(3) soliciting membership for such an organization or entity, even though the membership dues or fees generated
may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned
with the law, the legal system, or the administration of justice;

(4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and
permitting his or her title to be used in connection with an event of such an organization or entity, but if the event
serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the
administration of justice;

(5) making recommendations to such a public or private fund-granting organization or entity in connection with its
programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the
administration of justice; and

(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that
the organization or entity:

(a) will be engaged in proceedings that would ordinarily come before the judge; or

(b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court
subject to the appellate jurisdiction of the court of which the judge is a member.

(B) A judge may encourage lawyers to provide pro bono publico legal services.

SN: Jug can assist in managing and investing PrisonWatch's funds, and she may solicit contributions from
her family and Jug’s not in his control, she cannot solicit contributions From Public.

Additional SN notes:

 Jugs may seek advice from Disinterested Lw Experts ONLY IF advice is in Writing; Not Oral.