Legal Professions Final

1

What are the lawyer’s professional responsibilities and role in the legal system? 

Preamble, Rule 2.1-  Advisor, first amendment, 5th amendment, 6th amendment, ABA Formal Op. 96-399

Preamble

lawyer provides client with informed understanding of the client’s legal rights and obligations and explains their implications.  

Rule 2.1-  Advisor

• MUST exercise independent professional judgement and  to give candid advice to clients (make complete arguments, don’t cherry pick what helps you and not consider counterarguments)

• advice can include non-legal factors like moral, economic, social political factors.

• Bybee/Yoo Torture Memo - legal advice stretching interpretations to protect clients can raise serious questions about independent judgment and ethical responsibility.

First Amendment - Freedom of speech, religion, association (political beliefs), Right to petition the government

• allows lawyers to challenge laws and raise constitutional or statutory arguments on behalf of their clients.

• Legal Services Corp. v. Velazquez- ABA Formal Op. 96-399 restrictions on legal aid funding cannot prevent lawyers from providing competent, independent representation that challenges unlawful statutes (in this case a 1A violation) .

Fifth Amendment

• Right preventing Self-incrimination: Lawyer MUST NOT reveal client confidences that would incriminate client.

• Right to effective counsel- Defendant MUST get new trial if counsel errors are so serious that: 1) counsel not functioning, 2) without errors, jury would have reasonable doubt.

• Right to self-representation: Defendant MAY represent self unless request in bad faith (e.g., to delay trial).

• Due process violations:

• Brady v. Maryland, exculpatory evidence must be disclosed at trial *** this is called  BRADY VIOLATION if not

• Giglio v. US brady right extends to impeachment evidence (evidence that can challenge witness credibility), must be disclosed to ensure a fair trial

• U.S. v. Bagley – Nondisclosure of impeachment evidence only violates due process/brady violation if it is material enough to reasonably affect the trial’s outcome.

• United States v. Ruiz - Brady is a trial right. disclosure of impeachment evidence is not required at the plea stage

Sixth Amendment 

• client has right to effective assistance of counsel

  • Gideon v. Wainwright - 6A guarantees the right to counsel for criminal defendants, even if they cannot afford one 

  • Strickland v. Washington- 6A requires not only the right to counsel but also effective assistance, allowing a conviction to be overturned if counsel’s performance was deficient and prejudiced the outcome 

  • Padilla v. Kentucky - 6a right to effective assistance of counsel extends to plea bargaining, failing to inform client of consequences of guilty plea = ineffective assistance of counsel

• The Amoral Conception (the “Standard” Conception): Lawyers are morally neutral advocates whose duty is to zealously pursue the client’s lawful interests, regardless of moral considerations. Responsibility for the moral consequences lies with the client, not the lawyer.

• The Moral Activism Conception (David Luban): Lawyers should consider moral values and justice, not just legality, when representing clients. They may refuse or shape representation to avoid contributing to serious injustice.

• The Contextual Approach (William Simon): Lawyers should exercise professional judgment by interpreting and applying legal rules in light of their underlying purposes and the specific context. Ethical lawyering requires aiming at substantive justice, not mechanical rule-following.

• The Client Power Approach (Susan Carle): Lawyers should be attentive to power imbalances between clients and others affected by legal action. Ethical representation involves limiting client power when it would reinforce oppression or injustice.

Was the lawyer competent, diligent, and communicative in representing the client?

(Rules 1.1 Duty of Competence , 1.3 Diligence , 1.4Communications)

Model Rule 1.1: Duty of Competence 

Lawyer MUST provide competent representation Using reasonably necessary legal knowledge, skill, thoroughness, preparation 

• Comment 8 - includes duty to keep abreast of changes in law and benefits/risks of relevant technology (AI)

Model Rule 1.3: Diligence 

• MUST serve your clients dilligently (despite any obstacles or inconvenience) and act with commitment, promptness and dedication but NOT offensive tactics

• workload should be controlled so that each matter can be handled competently 

Model Rule 1.4: Communications

1.4a) MUST  promptly tell client of any decision that requires clients informed consent (like settlement or plea offer) UNLESS client already let you know proposal is acceptable/unacceptable

◊ MUST reasonably consult with the client on how to achieve their goals

MUST Keep the client reasonably informed on the status of their matter

◊ MUST Promptly respond to reasonable requests for info

◊MUST Tell the client if you aren't allowed to do something they want

◊ MUST Explain things to the clients to extent reasonably necessary so they can make informed decisions

Who had authority over the representation and were the client’s objectives respected?

Rules 1.2 Scope of Representation, Formal Op. 491. 1.16 Declining Representation 1.18 Duties to Prospective Client)

Model Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer

• lawyer MUST do what the client wants, consult with them on means of how they want to pursue it and listen if they want to settle or how to plead

• lawyer MAY limit the scope of the representation if reasonable and client informed consents

• 1.2D lawyer MUST not help clients do conduct the lawyer KNOWS is criminal/fraudulent but MAY in good faith discuss legal consequences/scope of any conduct

• ABA Formal Op. 491 Clarifies for MR 1.2d

  • Mandatory: If lawyer knows (or is willfully blind) client likely seeks services to commit fraud/crime, lawyer MUST request info to confirm legality.

  • Mandatory: If client refuses info, lawyer MUST decline/withdraw.

• US v Kaczynski  Unabomber. counsel ignored his request to self rep and not do mental health defense. can guide the means of rep + take protective steps for clients w potential diminished capacity, but MUST communicate clearly/ respect their ultimate objectives.

Model Rule 1.16: Declining or Terminating Representation

1.16a Mandatory withdrawal: if lawyer KNOWS rep violates law/model rules, client fires lawyer, lawyer mentally/physically impaired, or lawyer KNOW client using them to/further crime/fraud

1.16b Permissive withdrawal: if no material harm to client, client doing something lawyer reasonably believes criminal/fraudulent even WITHOUT lawyers help , client previously did crime/fraud, client insists on repugnant acts, client not fulfilling obligations after warning, case too difficult/expensive, client demands unethical act, other good cause

• Cannot withdraw mid-trial without tribunal permission; if denied, lawyer MUST continue; upon ending, lawyer MUST give notice, refund fees, allow time to find new counsel; client MAY fire lawyer anytime but must pay for services provided

MR 1.18 – Prospective Clients:

• Prospective client = consults lawyer about possible representation

• MUST not use/reveal info from prospective client or represent materially adverse client in same/substantially related matter as prospective client if info could seriously harm prospective client; firm lawyers also barred

• Exception (MAY rep conflicting prospective client): informed written consent from both, lawyer screened off case, sensitive info limited, no fees from matter

• Case note: Westinghouse – firm obligations extend to all who reasonably expected protection via conflict rules (firm had to represent all members of trade association who gave sensitive info)

Were the lawyer’s fees or financial arrangements proper and independent? Did the lawyer properly safeguard client’s funds or property?

MR 1.5; MR 5.4; MR 1.15 ,Cal. Rule 5.4

Model Rule 1.5: Fees

• lawyers fees MUST not be unreasonable (based on time, skill, results, market rate, etc.). 

• Fees MUST be communicated early, preferably in writing.

• Contingent fees OK (MUST be in signed writing with terms how they determined the fee + closing statement).

  • NO contingent fees in divorce, alimony, property settlement or criminal defense.

• Fee splits OK if: Proportional or joint responsibility, Client agrees in writing, Total fee is reasonable

Model Rule 1.8e no 3rd party paying lawyer w/o client informed consent AND doesn’t interfere w lawyer’s independence or prof judgment

Model Rule 5.4c Professional Independence of a Lawyer -lawyers MUST NOT let someone else who pays for the client’s services have any power to direct the representation

Cal Rule 5.4 Financial and Similar Arrangements with Non-Lawyers

Lawyers  MUST not  share legal fees with non-lawyers, except:

• Payments to a deceased lawyer’s estate or representative.

• Compensation/retirement plans for nonlawyer employees.

• Payments to qualified lawyer referral services.

• Payments to certain nonprofits for court-awarded fees.

Model Rule 1.15 Safekeeping Property

1.15a) lawyers MUST keep client or third-party property separate from their own. must place funds in a dedicated trust account in the lawyers state (or third party consents to another location)

Did the lawyer violate client confidentiality / was client information protected? 

(Rule 1.6; Cal. Rule 1.6; Bus. & Prof. Code § 6068(e);, Fed. R. Evid. 502:attorney client privilege, AC privilege crime fraud exception, 1.13/1.14 exceptions)

• Confidentiality (MR 1.6(a)): Lawyer MUST NOT reveal client info (even about crimes/fraud unless exception or client consent; includes all info related to representation (broader than AC privilege); May have implied authorization to disclose

TLDR: You may snitch if you THINK they are going to hurt/kill someone even WITHOUT you OR THINK they WILL cause OR DID cause financial/property harm WITH you

You CAN’T snitch if you THINK they are GOING TO cause financial/property harm WITHOUT or they ALREADY caused bodily harm/death without you and its not ongoing.

• Exceptions (MR 1.6(b)) – MAY reveal info if lawyer reasonably believes necessary to:

  • 1.6(b)(1): Prevent reasonably certain death or substantial bodily harm (future harm only). INCLUDES if lawyers services not used.

    • Spaulding- minor’s anuerysm disclosure not required but ethically should have; Selective disclosure: lawyer MAY selectively disclose to prevent imminent harm; cannot reveal info outside that context (Buried Bodies).

  • 1.6(b)(2): Prevent client crime/fraud that is reasonably certain to cause substantial financial/property injury that they used the lawyers services for (have to think the harm its more likely than not

  • 1.6(b)(3): Prevent, mitigate, or rectify injury already caused by client’s crime/fraud using lawyer’s services.

  • 1.6(b)(6): Comply with court order - court can compel disclosure even without client consent (must first challenge).

  • generally cannot warn victims or do “noisy withdrawal.”

• Lawyer may seek ethics advice when in doubt about obligations.

• Confidentiality covers all representation info, not just privileged comms; risk assessment should consider experience, client, nature of work.

• Exception: 1.13 Organization Client The lawyer MAY disclose confidential info (even if Rule 1.6 would normally forbid it) —but only to the extent necessary to prevent the org harm. 1.13 comment 4: even if isnt technically illegal but lawyer REASONABLY BELIEVES is harmful to the orgs interests lawyer MAY report that issue up the management ladder

• Exception 1.14(b/c) Diminished Capacity: If lawyer reasonably believes client has diminished capacity, is at risk of serious harm, or cannot act in best interest, lawyer MAY take reasonably necessary protective steps/info reasonably necessary to disclose that breaks 1.6 confidentiality (e.g., consult others, seek guardian/conservator).

• Attorney-Client Privilege: Protects only 1)private comms between 2) lawyer (or agent) & client (or agent) made 3)in confidence for 4)legal advice

  • narrow scope, only against compelled disclosure in judicial proceedings

  • attorney-client privilege survives death -info remains confidential (Swidler)

• AC Privilege Exceptions:

  • Crime/fraud exception: Communication is not protected if client sought legal help to commit/cover crime or fraud; lawyer knowledge not required; only requires communication in furtherance of crime/fraud.

  • Doesn’t cover underlying facts, comms seeking anything other than legal advice (business/political advice), doesn’t apply in congressional investigations/impeachments

  • Disputes b/w lawyer & client (malpractice/fees), preventing client/lawyer from misleading court or harming third parties,

  • privilege lost if info shared with third parties; disclosure may be permitted to report misconduct (Suge Knight).

• Fed. R. Evid. 502 Attorney Client Privilege:

  • Intentional disclosure: If you deliberately share privileged information you can lose the privilege for other related information on the same topic, because it’s fair to consider them together.

  • Accidental disclosure: If the disclosure was a mistake, you usually don’t lose the privilege, as long as you tried to prevent the mistake and quickly took reasonable steps to fix it.

  • Voluntary waiver: Can waive related comms if intentional, same subject matter, fairness requires full disclosure.

• Cal Rule 1.6 – Confidential Information of a Client

  • Mandatory: Lawyer MUST keep client info confidential unless client consents or law allows disclosure.

  • Permissive: Lawyer MAY disclose info to prevent a crime that is likely to result in death or serious bodily harm, limited to what is necessary.

  • Before disclosure, lawyer should attempt in good faith to stop client’s harmful act and inform client if disclosure will occur.

  • Narrower than Model Rule 1.6 – focuses on disclosing to prevent death/serious bodily harm, not just any crime.

• Cal. Bus. & Prof. Code §6068(e)(1)-(2)

  • Mandatory: Lawyer MUST keep client info confidential, even if it harms lawyer personally.

  • Permissive: Lawyer MAY share info if reasonably believes disclosure needed to prevent crime LIKELY to cause serious injury/death.

Did the lawyer have a conflict of interest with a current, former, or prospective client?

(MR 1.7 - 1.11, 1.13, 1.18; Formal Op. 497, FRCP 23 )

Rule 1.7: Conflict of Interest: Current Clients - Lawyer MUST NOT represent if conflict exists and MUST withdraw if 1)direct adversity (b/w client’s interests) OR significant risk of materially limited representation (duties to another client or lawyer’s own interests materially limit rep).

Exception MAY rep conflict: They believe they can represent each client well,. law does not forbid it, clients are not suing each other. all clients agree/give written informed consent. if no, MUST withdraw from one. can rep diff clients with conflicting legal positions in DIFF cases as long as it doesn’t harm the other one seriously

• lawyer reps corp not its parent or subsidiaries, clients can waive (must be clear and specific waiver) future conflict claims if they understand the risks. hot potato doctrine - can’t drop one client to rep another client

Rule 1.8: Current Clients - Specific Rules

No business deals with client unless: Terms are reasonable and fair to the client + fully disclosed in writing + client advised in writing to seek independent counsel

No unconsenting use of client info to their disadvantage, no substantial gifts from clients, no financial help to client in litigation, no 3rd party paying lawyer w/o client informed consent and doesn’t interfere w lawyer’s independence or prof judgment

Rule 1.9 Duties to Former Clients - almost same as 1.7 MUST NOT rep former+current 1)material adversity (b/w client’s interests) in 2) same or substantially related matter 3)w/oinformed consent from former client (also substantially related if lawyers former firm repped client and lawyer EXPOSED to former clients confidential info)

• Cmnt 3: substantial risk test - Don’t have to PROVE confidential info was actually transferred, its enough to show substantial risk that confidential info WOULD have been obtained in the prior representation would materially advance the new client's position.

ABA Formal Op 497 - (use for 1.9/1.18) conflicts of Interest are materially adverse when doing any of the following against a former client:  suing, negotiating against, or cross-examining them, defending a new client against their claim. attacking/ undermining lawyer’s own former client work.

MR 1.18 – Prospective Clients:

• Prospective client = consults lawyer about possible representation

• MUST not use/reveal info from prospective client or represent materially adverse client in same/substantially related matter as prospective client if info could seriously harm prospective client; firm lawyers also barred

• Exception (MAY rep conflicting prospective client): informed written consent from both, lawyer screened off case, sensitive info limited, no fees from matter

• Case note: Westinghouse – firm obligations extend to all who reasonably expected protection via conflict rules (firm had to represent all members of trade association who gave sensitive info)

Rule 1.10 Imputed COI - if one lawyer DQ’ed under 1.7 or 1.9 ALL lawyers in the firm MUST NOT rep that client. Exceptions: personal conflicts, former firmer lawyer screen off w no fee and former client notified, client waived conflict under 1.7, lawyer leaves firm and takes all former clients confidential info w them (even if new clients is materially adverse/substantially related matter)

Rule 1.11 Govt Lawyers former/current govt lawyers MUST NOT work on personally and substantially involved matters in while in gov w.o agency’s informed written consent. any lawyer in the firm similarly DQ/ed like in rule 1.10 with similar exceptions

Rule 1.13: Organization as Client - Lawyer represents org, not constituents; Applies to govts (client may be agency, dept, or whole govt).

• 1.13b: If lawyer KNOWS someone in org is/Intends to act unlawfully likely to cause substantial harm to org → MUST take reasonably necessary steps in org’s best interest

  • persuade person first, if unresolved →

    • MUST Report up ladder to highest authority. if: KNOWLEDGE AND misconduct RELATED to rep AND org could be imputed(responsible) AND likely to cause substantial injury. if just yes to one then MAY report up the ladder.

    • MAY report outside org if highest authority fails to act, violation is clearly illegal and likely to cause substantial injury, can disclose confidential info (even if Rule 1.6 says no) only to the extent necessary to prevent the harm.

    • 1.13 comment 4: even if isnt technically illegal but lawyer REASONABLY BELIEVES is harmful to the orgs interests lawyer is ALLOWED (not required) to report that issue up the management ladder

  • Govt scope: Lawyers may represent multiple agencies against each other, with more decision-making authority than private lawyers.

  • 1.13f Upjohn warning: If constituents’ interests conflict with org → lawyer MUST clarify representation: “I represent the org, not you”; privilege belongs to org; info may lose privilege if interests diverge.

  • 1.13g Dual Rep: May rep org and employee/officer only if no Rule 1.7 conflict and consent from someone other than the individual also repped

Fed. R. Civ. P. 23 - class actions - reasonably expected to rep absent class members without material conflicts or divided loyalty. any substantial divergence among class members defeats typicality or adequacy (stricter than 1.7 only requires significant risk of material limitation)

• lawyers must not sacrifice class members’ interests for convenience, fees, ideology, or settlement pressure. requires settlements to be fair, reasonable, and adequate to the class. replaces client choice with a best-interests-of-the-class standard

Was the client vulnerable or did the client have diminished capacity?

Rule 1.14 Client with Diminished Capacity - If client has diminished capacity, lawyer MUST maintain normal client-lawyer relationship as far as reasonably possible.

• 1.14(b/c): If lawyer reasonably believes client has diminished capacity, is at risk of serious harm, or cannot act in best interest, lawyer MAY take reasonably necessary protective steps/info reasonably necessary to disclose that breaks 1.6 confidentiality (e.g., consult others, seek guardian/conservator).

  • US v Kaczynski Unabomber. Lawyers can guide the means of representation and take protective steps for clients with potential diminished capacity, but they must communicate clearly and can’t ignore a client’s wishes to self rep or not use a mental illness defense.

Was the lawyer candid, truthful, and fair to the court and others?

(Rules 3.3, 3.4, 4.1, 4.4)

Model Rule 3.3: Duty of Candor Toward the Tribunal

• MUST NOT knowingly make false statements or evidence, or fail to take reasonable remedial measures to correct prior false statements/evidence

• MUST disclose key cases in jdx adverse to your client even if opposing counsel doesn’t

• If client plans perjury: MUST counsel client, try to prevent false testimony; if client refuses, MAY withdraw and must inform court if necessary.

  • if client insists on perjure themselve, court may decide to let them do narrative testimony (people v johnson)

• Duty of candor can override confidentiality to prevent false statements

Model Rule 3.4 Fairness to Opposing Party and Counsel 

• MUST NOT obstruct or falsify evidence or instruct witness to testify falsely or change their testimony

• MUST NOT  stop others from revealing relevant info unless they are related to client 

• MUST NOT make frivolous discovery request or fail to  comply with discovery request or disobey court orders

Model Rule 4.1: Truthfulness in Statements to Others

lawyer  MUST NOT  make false statement of material fact or law  OR fail to disclose material fact that would assist criminal/fraudelent acts by client (still has confidentiality restraints under 1.6)

• Comment 1: no affirmative duty to volunteer all facts. misrepresentation = knowingly affirming false statement or partial truth/ommission intended to mislead;

• comment 2: permissible puffery: estimates on price/value of subject of transaction or partys intentions to an acceptable settlement (my client is ready to go to trial)

Model Rule 4.4: Respect for Rights of Third Persons

•  MUST NOT try to burden, delay, annoy, embarrass someone or violate their legal rights to get evidence

• if lawyer gets documents or electronic info related to representing their client that they reasonably know was sent by mistake they have to quickly notify the sender about it

• ABA Criminal Standard Std. 3-5.6(e): Prosecutors MUST not knowingly make false statements of fact or law in plea or settlement discussions.

Did the lawyer improperly communicate with represented or unrepresented persons or the public?

Rules 4.2, 4.3, 3.6

Model Rule 4.2: Communication with Person Represented by Counsel

• MUST NOT  talk about the case with another lawyer’s client, unless the other lawyer agrees or court allows it

Model Rule 4.3 Dealing with Unrepresented Person

• When dealing with someone unrepresented MUST:

  • make it clear they represent their client and are not neutral

  • Avoid giving legal advice to unrepresented persons (other than suggesting they should get their own lawyer) who’s interests so much as have the possibility they MIGHT conflict with their client’s

  • May answer legal questions and prepare documents for signature, but not mislead.

Model Rule 3.6: Trial Publicity 

• Lawyers MUST NOT  make statements they reasonably know will be public statements that could unfairly influence or prejudice a court case they are involved in.

• if your client will experience undue prejudice you MAY address it publicly but limit it to what can mitigate adverse publicity

• allowed to share basic case details, public records, status of investigation, asking for help with evidence

• criminal trials at biggest risk for extrajudicial statements

Were the claims meritorious and was litigation conduct proper?

(Rule 3.1; Formal Op. 508)

Model Rule 3.1: Meritorious Claims and Contentions

 MUST NOT make or defend  frivolous claims in argument, only good faith arguments.

• exception for criminal proceeding - when incarceration is at risk you can require every element of the case be established

  • comment 3: its ok to seek the acquittal of someone you might believe is guilty. It’s your constitutional duty as criminal defense lawyer to put on best case you can even if it seems frivolous or lacking in context

ABA Formal Op. 508: Witness Prep/Testimony

 lawyers MAY prepare witnesses by:

•  reminding them they’re under oath

• explaining how testimony works in court

• Discuss case strategy/likely questions and helping them focus answers

• review docs/facts to refresh their recollection
  

lawyers MUST not  prepare witnesses by:

• tell witness to give false testimony or misrepresent key facts

• script their testimony by helping witness recall facts

• offer inducements/incentives for specific testimony

• engage in improper conduct like passing notes, winking, gesturing or whispering to witness during testimony. 

• use suggestive objections to prompt witness what to say

Did a prosecutor meet heightened ethical obligations in a criminal case?

(Rule 3.8; Formal Op. 09-454; All ABA Criminal Standards)

Model Rule 3.8: Special Responsibilities of a Prosecutor

• prosecutors MUST NOT:

  •  prosecute charges they KNOW is not supported by probably cause (LESS than the trial requirement of beyond a reasonable doubt) 

  • ABA Criminal Std. 3-4.3: MUST file charges only if probable cause exists, evidence likely supports conviction beyond a reasonable doubt, and filing serves justice; must disclose doubt about defendant to supervisory staff; MUST withdraw charges if innocence believed. MUST not maintain criminal charges if, after initial filing, the prosecutor reasonably believes that the admissible evidence will not be sufficient to support a conviction beyond a reasonable doubt.

  • make extrajudicial statements AND need to make reasonable efforts to ensure law enforcement doesn’t make statements they wouldn’t be allowed to make either

Brady violation: prosecutors MUST timely disclose to the defense any exculpatory evidence because non-disclosure is a Brady Violation (Brady)

• ABA Formal Op. 09-454: - prosecutors MUST disclose exculpatory info as soon as reasonably possible but are NOT required to go looking for evidence they don’t already know about. and all supervisors in prosecutors office must take reasonable steps to ensure all their lawyers follow disclosure rules.

• ABA Criminal Standard Std. 3-5.4(a),(c): Must identify all exculpatory info and disclose to defense before trial, even if outcome likely unchanged; exception = court order.

• if your client will experience undue prejudice you can address it to inform the public but limit it to what can mitigate adverse publicity

• “reasonable care standard” is enough to caution others about trial publicity. creating “public condemnation” is biggest concern

ABA Standards for Criminal Justice

• Std. 3-1.2: Prosecutor = administrator of justice, zealous advocate, officer of the court; must exercise sound discretion & independent judgment; primary duty = seek justice, not just convictions; MUST act with integrity and balanced judgment; may pursue severe charges or decline charges to enhance public safety; should support alternatives to prosecution & community efforts.

• Std. 3-1.3: Prosecutor’s client = the public NOT law enforcement; must independently determine public interests.

• Std. 3-4.4(d): MAY decline or dismiss charges not reasonably supported by evidence; not obliged to charge every offense the evidence might support; charges should fairly reflect seriousness & deter similar conduct.

• Std. 3-5.6(e): MUST not knowingly make false statements of fact or law in plea or settlement discussions.

• Std. 4-7.7: Defense counsel must examine witnesses without intimidation or humiliation; may cross-examine vigorously within ethical bounds; must not call witness knowing valid privilege exists; must ask questions only with reasonable factual basis.

Did the firm properly supervise lawyers and non-lawyers?

(Rules 5.1, 5.2, 5.3; Formal Op. 08-451)

Model Rule 5.1 Responsibilities of Partners/supervisors/senior lawyers

• partners/ managers /supervisors MUST  make reasonable efforts to ensure their firm lawyers and supervisees follow MR

• lawyer MUST be responsible for another lawyers misconduct if they order or knowingly ratify the misconduct or know about it and failed to act when it couldve been prevented

Rule 5.2: Responsibilities of a Subordinate Lawyer

• subordinate lawyers are still responsible for following ethics rules. “i was just following orders” is not an excuse

• exception: if they follow a supervisors reasonable resolution of an arguable ethics question

Rule 5.3: Responsibilities regarding nonlawyer assistance

Lawyers in a firm  MUST  make reasonable efforts to ensure that any nonlawyers who work for them (like assistants, investigators, or other staff) act in ways that follow the lawyers’ professional rules.

• Firm leaders must put systems in place to ensure this.

• Lawyers who directly supervise nonlawyers must also make   reasonable efforts  to ensure their conduct is appropriate.

• A lawyer MUST be held responsible if the nonlawyer does something that would break the rules if a lawyer did it— if the lawyer ordered it, approved it, or knew about it and didn’t stop or fix it

ABA Formal Op. 08-451: outsourcing legal or nonlegal support services.

lawyer MAY outsource if the lawyer stays ethically responsible, supervises properly, keeps the client informed, and protects confidentiality, not in unauthorized practice of law

Did the lawyer improperly threaten criminal, disciplinary, or administrative action?

(Cal. Rule 3.10, Formal Ops. 92-363, 94-383; )

Cal Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges

MUST not  threaten to file criminal, administrative, or disciplinary charges to gain an advantage in a civil dispute.

Exceptions:  If the threat is legally required or part of a lawfully authorized process (contempt proceedings, settlements) it’s okay.

ABA Formal Op. 92-363: Use of threats of prosecution in connection with a civil matter.

• The model rules don’t expressly ban threats of prosecution to gain advantage in civil matters

• A lawyer MAY mention the possibility of bringing a criminal charge in civil case negotiations if the threat is well-founded in fact and law.

• MUST NOT imply improper influence over the criminal process or amount to extortion

ABA Formal Op. 94-383: Use of threatened disciplinary complaint against opposing counsel.

• The model rules don’t expressly ban disciplinary complaint threats

• Improper under ABA formal op if:

  • The misconduct would require reporting under MR 8.3 — it raises a substantial question as to opposing counsel’s honesty, trustworthiness, or fitness as a lawyer — because the lawyer is ethically required to report misconduct rather than use it as leverage

  • misconduct is unrelated to the civil claim, not well founded in fact or law, or serves substantial purpose other than to embarrass, delay, burden opposing counsel or their client

Did the lawyer engage in unauthorized or improper multijurisdictional practice?

(Rule 5.5)

Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

MUST NOT practice law in a jdx in violation of that jdx’s rules OR assist anyone else who isn’t authorized to do so. 

MUST NOT 1) establish office/continuous presence (physical or virtual) in a jdx, 2) create impression they are licensed (titles, advertising).

MAY temporarily provide legal services in another jdx if:

• Association: Works with lawyer admitted in that jdx actively involved in matter.

• Pending Litigation: Services reasonably relate to a current/potential proceeding in that jdx, or stem from lawyer’s home jdx practice.

• Prereq: Admitted/active in another US jdx, not suspended/disbarred.

• Non-Temporary Exceptions: Lawyer admitted in another US or foreign jdx, not suspended/disbarred, MAY:

  • Serve as in-house counsel through office in foreign jdx if no pro hac vice required.

  • Foreign lawyers advising on US law MUST base advice on lawyer licensed in that jdx.

  • Provide services authorized by federal law or other laws of the jdx.

Was the lawyer’s advertising or solicitation misleading or improper?

(Rules 7.1, 7.2, 7.3)

Model Rule 7.1 

• MUST NOT give false or misleading statements about themselves or their services. communication is improper if it materially misrepresents facts or law or omits necessary information to mislead

• comment 3: even truthful reports of lawyers past achievements can be misleading  if they create an unjustified expectation that clients will get similar results without explaining that outcomes are fact-dependent

Model Rule 7.2 Information About Legal Services

• MAY communicate info about their services through any media

• MUST NOT pay someone for recommending their services OR claim to be specialists unless certified by an approved org and the certifying body is identified

• all comms MUST  include name and contact info of a lawyer or firm responsible for its content

Model Rule 7.3

• Solicitation = communication directed at a specific person lawyer reasonably knows needs legal services and offers to provide them.

• MUST NOT solicit in-person for pecuniary gain, except to: another lawyer; someone with family, close personal, or prior business/professional relationship; or a person who routinely uses this type of legal service for business.

• Even if exceptions apply, lawyer MUST NOT solicit if: person refused contact or solicitation involves coercion, duress, or harassment.

• Live contact = in-person, face-to-face, live phone, Zoom/FT; excludes chat rooms, texts, other written communications; high risk of overreaching/undue influence/intimidation in live contacts.

Did the lawyer engage in misconduct or fail to report misconduct?

(Rules 8.3, 8.4, 8.5)

MR 8.3 Reporting Professional Misconduct

(a) If a lawyer KNOWS that another lawyer seriously broke model rules in a way that raises a substantial question to their honesty, trustworthiness, or fitness to practice law , the lawyer MUST report it to the proper professional authority.

(b) If a lawyer knows that a judge seriously broke judicial conduct rules in a way that calls the judge’s fitness  into question, the lawyer MUST report it to the proper authority.

(unless info is confidential/privileged)

MR 8.4 Misconduct

A lawyer commits professional misconduct if they:

• Break or help break ethics rules, Commit serious crimes that shows they’re dishonest, untrustworthy, or unfit to be a lawyer. Are dishonest lying, cheating, fraud, or misrepresentation. Undermine the justice system. Say or suggest they can sway a government official or get results through unethical or illegal means.Knowingly assist a judge in violating judicial ethics or the law. Harass or discriminate (race/sex/religion/nationality/age/etc) in law-related work.
  Exceptions: Lawyers can still choose clients or advocate legitimately as allowed under other rules.

Rule 8.5: Disciplinary Authority; Choice of Law

 a lawyer can be disciplined in the jdx theyre licensed in no matter where the lawyers actions took place.

but a lawyer not licensed in this jdx can be disciplined here if they provide legal services here. also may face discipline form multiple jdx for same conduct

addressing client’s “criminal/fraudulent” conduct

MR 1.2 + ABA OP 491, MR 1.16, MR 4.1 MR 1.6, MR 1.13, MR 1.14, Cal Rule 1.6, 6068e)

MR1.2d Scope -  lawyer MUST not help clients do conduct the lawyer KNOWS is criminal/fraudulent but MAY in good faith discuss legal consequences/scope of any conduct

Declining/Withdrawing:

• ABA Formal Op. 491 Clarifies (Model Rule 1.2(d)

  • Mandatory: If lawyer knows (or is willfully blind) client likely seeks services to commit fraud/crime, lawyer MUST request info to confirm legality.

  • Mandatory: If client refuses info, lawyer MUST decline/withdraw.

• MR 1.16a Declining Rep - lawyer MUST mandatory withdrawal (with court permission) if the lawyer KNOWS client using lawyer to continue/further crime/fraud

• MR 1.16b lawyer MAY withdraw (with court permission) if client doing something lawyer reasonably believes criminal/fraudulent even WITHOUT lawyers help OR client previously used lawyers services for crime/fraud

Disclosure/confidentiality:

Model Rule 4.1: Truthfulness in Statements to Others

• lawyer MUST disclose material fact that would assist criminal/fraud acts by client (still has confidentiality restraints under 1.6)

Fraud/crime comms are no longer AC privileged due to crime fraud exception the MOMENT client seeks to use lawyers service to commit crime/fraud. lawyers knowledge doesn’t matter either. (suge knight)

Is this about financial or property harm? (disclosure prohibited entirely by Cal Rule 1.6/6068e)

If yes-> Is the financial/prop harm substantial? If no-> disclosure prohibited (MR 1.6)

If yes-> Is the substantial fin/prop harm reasonably certain If no-> disclosure prohibited (MR 1.6) suspicion/possiblity is not enough

If yes-> Is the reasonably certain substantial fin/prop harm caused by a crime/fraud?  If no-> disclosure prohibited (MR 1.6)

If yes->  are the lawyer’s services involved in the crime/fraud?  If no->  disclosure prohibited (MR 1.6)

If yes-> MAY disclose (MR 1.6) to PREVENT FUTURE harm or RECTIFY past financial/prop harm.

***Exception: 1.13 The org’s lawyer MAY disclose confidential info about someone in the org violating law (even if Rule 1.6 would normally forbid it) —but only to the extent necessary to prevent the org harm. 1.13 comment 4: even if isnt technically illegal but lawyer REASONABLY BELIEVES is harmful to the orgs interests lawyer MAY report that issue up the management ladder

**** Exception 1.14(b/c): If lawyer reasonably believes client has diminished capacity, is at risk of serious harm, or cannot act in best interest, lawyer MAY take reasonably necessary protective steps/info reasonably necessary to disclose that breaks 1.6 confidentiality (e.g., consult others, seek guardian/conservator).

2. Is this about bodily harm? (death skip to step b)

If yes-> Is the bodily harm substantial/serious? If no-> disclosure prohibited (MR 1.6, Cal Rule 1.6 and 6068e)

b) If yes or about death-> is it ONLY about past harm? If yes -> disclosure prohibited MR 1.6, Cal Rule 1.6 and 6068e no permission for past harm regardless of lawyers involvement. (exception: buried bodies case - selective disclosure to benefit client/plea bargain)

If about future/ongoing harm -> Is lawyer REASONABLY CERTAIN substantial bodily harm or death LIKELY to result?  If no-> disclosure prohibited (MR 1.6, Cal Rule 1.6 and 6068e)

Is reasonably/certain future serious bodily harm death RESULTING FROM CRIME? If no → disclosure prohibited Cal Rule 1.6 and 6068e

If from a crime or not, MAY disclose (MR 1.6) to PREVENT FUTURE harm/death

Lawyers services or not and resulting from a crime MAY disclose (Cal Rule 1.6 and 6068e) to PREVENT FUTURE harm/death. However, Cal Rule 1.6 requires attempting to dissuade the client from committing the crime/fraud first and informing them disclosure will occurred