Professional Responsibility FINAL

What do you do when a client’s capacity to make decisions related to the representation is diminished?

You have to maintain a normal lawyer-client relationship as is reasonably possible BUT if you reasonably believe they have diminished capacity and cant act in their own interests, putting them at risk of harm, take reasonably necessary protective action.

Is information relating to the representation of a client with diminished capacity protected?

Yes, but when taking protective action, lawyer can reveal what is reasonably necessary to protect the client’s interests

What should a lawyer do when representing a client would result in violation of the Rules of PC or other law?

They must not represent the client, and if they are already representing the client, withdraw

What should a lawyer do when the lawyers physical or mental condition materially impairs the lawyers ability to represent the client?

They must not represent the client, and if they are already representing the client, withdraw

Can a lawyer take action during representation that has no substantial purpose other than to embarrass, delay, or burden a third person?

No. They cannot.

What should a lawyer do when they receive information relating to the representation of their client and they know or reasonably should know the information was not meant for them?

They should promptly notify the sender

When may a lawyer withdraw from representation under Rule 1.16?

1. withdrawal can be accomplished without material adverse effect on the interests of the client;

2. client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

3. client has used the lawyer's services to perpetrate a crime or fraud;

4. client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

5. client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

6. the rep will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

7. other good cause for withdrawal exists

When a lawyer requests to withdrawal, and a tribunal orders them to continue representation anyway, what should the lawyer do?

The lawyer must continue representation

Does a lawyer still have to protect a clients interests after termination of representation?

Yes, they must take steps to the extent reasonably practicable to protect the client’s interests

What is a prospective client?

a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter

Does a lawyer have a duty of confidentiality to prospective clients?

Yes. Even when no lawyer-client relationship comes out of it, a lawyer who has learned information from a prospective client shall not use or reveal that information

What should a lawyer do when a prospective client gives the lawyer information about a current client in the same or a substantially related matter, where the information that could be significantly harmful to the current client?

• What’s the exception?

The lawyer should withdraw from representing the current client UNLESS:

• both clients give informed written consent; or

• (1) lawyer took reasonable measures to avoid exposure to more disqualifying information than reasonably necessary, (2) was timely screened from any participation in the matter and gets no part of the fee, and (3) gave written notice to the prospective client

Does a lawyer have to do pro-bono work?

• how much should they do?

No. There is no requirement to do pro bono work.

• But there is a recommended 50 hour minimum of pro bono work

When may a lawyer seek to avoid appointment by a court?

A lawyer shall not seek to avoid appointment by a tribunal except for good cause, such as:

1. representing the client would be likely to result in violation of law;

2. representing the client is likely to result in unreasonable financial burden on the lawyer; OR

3. client/cause is so repugnant to the lawyer that its likely to impair their relationship or lawyers ability to represent the client

Can lawyers lie?

No. Lawyers shall not knowingly make false statements of material fact or fail to disclose a fact necessary to correct a misapprehension

Is it okay for a lawyer to make a false statement about a judge, public officer, or political official?

No. Lawyers shall not make statements they know to be false or have reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory/public legal officer, or candidate for election or appointment to judicial or legal office

What should a lawyer do when they find out another lawyer has violated the rules of professional conduct?

When the violation raises a substantial question to the lawyers honesty, trustworthiness, or fitness, they should inform the appropriate professional authority

What should a lawyer do when they find out a judge has committed a violation of the rules of judicial conduct?

When it raises a substantial question as to the judge’s fitness for office, the lawyer should inform the appropriate authority

What counts as professional misconduct?

1. violate or attempt to violate the Rules of Professional Conduct (even through someone else or inducing it through someone else)

2. commit a criminal act that reflects adversely on the lawyer's honesty; trustworthiness or fitness;

3. engage in conduct involving dishonesty;

4. engage in conduct that is prejudicial to the administration of justice;

5. state or imply an ability to influence improperly a government agency or official

6. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law

7. engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination

What counts as competent representation?

Using the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

Does representation of a client count as endorsement of their views?

No. representation of a client, including by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities

When can a lawyer limit the scope of representation?

When:

• the limitation is reasonable under the circumstances, and

• the client gives informed consent

Can a lawyer counsel a client to engage or assist them in crime or fraud?

• Can they talk about crime at all?

No. A lawyer cannot ever counsel a client to engage or assist them in conduct the lawyer knows is criminal or fraudulent

• BUT a lawyer can discuss the legal consequences of any proposed course or conduct

What communication is required between lawyer and client?

Lawyer shall:

• promptly inform the client of any decision or circumstance with respect to which the client's informed consent;

• reasonably consult with the client about the means by which the client's objectives are to be accomplished;

• keep the client reasonably informed about the status of the matter;

• promptly comply with reasonable requests for information; and

• consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted

When is one lawyer responsible for another lawyers violations of the rules?

A lawyer shall be responsible for another lawyer's violation if:

• the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

  • lawyer is a partner or supervisor with authority over the violating lawyer

Who is responsible for a lawyer’s actions?

Lawyer is always responsible for their own actions even if they were acting on orders of another

When does a subordinate lawyer not violate the rules by following the orders of a supervisor?

when that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty

When is the lawyer responsible for a non-lawyers conduct when its a violation of the rules?

• Hint: 2 factors

If:

• the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; OR

• the lawyer is a partner/manages the person in the law firm, knew of the conduct at a time they could have prevented/mitigated it, and failed to do so

When can a lawyer share legal fees with a non-lawyer?

When:

1. there is an agreement for after the lawyer's death, the money goes to the lawyer's estate or to specified person(s);

2. lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pay to the estate or other rep of that lawyer the agreed-upon purchase price

3. lawyer/firm may include nonlawyer employees in a compensation or retirement plan; or

4. lawyer shares with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter

Can a lawyer form a business partnership with a nonlawyer?

Sure, except when the business includes the practice of law

Can a person who recommends, employs, or pays the lawyer render legal services?

Nope

Can a lawyer not admitted to a jurisdiction establish an office or other systematic and continuous presence in that jurisdiction for the practice of law?

No

Can a lawyer participate in an agreement that restricts the right of a lawyer to practice after termination of the relationship?

Generally not, except for an agreement concerning benefits upon retirement

Can a lawyer participate in an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy?

No.

When can a lawyer or firm buy/sell a law practice?

When:

1. Seller ceases to engage in private practice of law or area of law sold;

2. Sold to lawyers or law firms;

3. Seller gave written notice of:

   1. proposed sale, and

   2. clients right to retain counsel or take their file; and

4. fees to the clients are not increased

What should a lawyer consider when giving legal advice?

to law and moral, economic, social and political factors that may be relevant to the client's situation

Can a lawyer provide an evaluation when the evaluation is likely to affect the client's interests materially and adversely?

Not unless the client gives informed consent

When does it mean for a lawyer to serve as a third party neutral?

They assist 2+ people who are not clients of the lawyer to reach a resolution of a dispute that has arisen between them

When a lawyer is serving as a third-party neutral, what do they have to tell the parties?

They must inform unrepresented parties that the lawyer is not representing them

What kind of media can a lawyer advertise on?

Any type of media

What are the things that a lawyer can give in return for a person recommending the lawyer’s services?

1. paying the reasonable costs of advertisements or communications;

2. paying the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;

3. paying for a law practice;

4. giving nominal gifts as an expression of appreciation

5. sometimes referring other people in return

What are the conditions for a lawyer to ethically make an agreement to refer clients to a professional in return for the professional referring clients to the lawyer?

A lawyer can do that IF:

1. the reciprocal referral agreement is not exclusive; and

2. the client is informed of the existence and nature of the agreement;

When can a lawyer state or imply that they are a certified specialist?

When:

• they are certified as a specialist by an organization that has been approved by an appropriate authority; AND

• the name of the certifying organization is clearly identified in the communication

What is solicitation?

• Hint: multiple requirements

A communication initiated by or on behalf of a lawyer/law firm that is:

• directed to a specific person;

• the lawyer knows or reasonably should know needs legal services in a particular matter; AND

• that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter

Can lawyers solicit others in person?

• Hint: what are the exceptions?

Not when a significant motive is their own gain (so usually not), UNLESS the contact is:

• a lawyer;

• family; or

• a person who routinely uses the lawyers type of legal services for business purposes

Can a lawyer take appointment/engagement from a judge after making political contributions to obtain that type of appointment/engagement?

No

What is the most important requirement for the size of fee lawyers can collect?

The fee must be reasonable

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

• the time and labor required,

• the novelty and difficulty of the questions involved,

• the skill requisite to perform the legal service properly;

• likelihood that the acceptance of the particular employment will preclude other employment by the lawyer, if apparent to the client;

• fee customarily charged in the locality for similar legal services;

• amount involved and the results obtained;

• time limits imposed by the client or by the circumstances;

• nature and length of the professional relationship with the client;

• experience, reputation, and ability of the lawyer or lawyers performing the services; and

• whether the fee is fixed or contingent

What are the 2 exceptions detailing when a lawyer cannot collect a fee?

Lawyer shall not enter into an arrangement for, charge, or collect:

• any fee in a domestic relations matter; or

• a contingent fee for representing a defendant in a criminal case

What are the 4 requirements for a lawyer to share fees with another lawyer that does not work in the same firm?

1. Division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility

2. client agrees to the arrangement, including the share each lawyer will receive;

3. agreement is confirmed in writing; and

4. total fee is reasonable

Where can a lawyer keep a client’s money?

They have to be kept in a separate account, and the lawyer has to keep complete records of that account.

What must a lawyer do when they get money and a client or third person has interest in the money?

The lawyer must promptly notify them

What should a lawyer do when they are in possession of property in which two or more people claim interests

the property must be kept separate by the lawyer until the dispute is resolved

What is the general rule of confidentiality?

• lawyer shall not reveal information relating to the rep of a client

What are the exceptions to confidentiality?

• client gives informed consent

• disclosure is impliedly authorized to carry out representation

• to prevent reasonably certain death or substantial bodily harm

• to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another

• to prevent, mitigate or rectify substantial injury to the financial interests or property of another

• to get legal advice on lawyers compliance with the rules

• to establish a claim/defense to a controversy between lawyer and client

• to comply with law or court order

• to detect and resolve conflicts of interest arising from lawyer changing employment

Does a lawyer have to expedite litigation for their clients?

Not necessarily. A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client

Does a lawyer have to disclose controlling caselaw adverse to their clients interests?

Not unless the opposing party does not bring it up. If the opposing party mentioned it, the lawyer wouldn’t have to.

What duty does an ex-parte lawyer have when disclosing facts to a tribunal?

The lawyer must inform the tribunal of all material facts known to the lawyer that would help the tribunal make an informed decision

Can a lawyer destroy another party’s evidence?

• what if they have someone else do it?

No, they cant unlawfully obstruct another party' s access to evidence.

• they also cannot counsel someone else to do it

Can a lawyer falsify evidence?

• So, can they put a witness on the stand when they know the witness will lie?

No

• not unless its a criminal defendant exercising their right to testify for their own defense

Can a lawyer disobey their obligations under a tribunal?

Not knowingly, no. 

Can a lawyer make a frivolous discovery request?

No

Can a lawyer request a person other than a client to refrain from voluntarily giving relevant information to another party?

Not unless:

• the person is a relative/employee or other agent of a client; and

• the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such info

May a lawyer speak to a judge or jury member alone during a proceeding?

No

What may a lawyer state to the public?

• claim, offense or defense involved;

• information contained in public record;

• that an investigation of a matter is in progress;

• scheduling or result of any step of litigation;

• a request for assistance in obtaining evidence and information necessary for that;

• warning of danger concerning the behavior of a person involved; and

• in a criminal case:

  • identity, residence, occupation and family status of the accused;

  • if the accused has not been apprehended, information necessary to aid in apprehension of that person;

  • fact, time and place of arrest; and

  • identity of investigating and arresting officers or agencies and the length of the investigation.

Is it a prosecutors responsibility to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel?

Yes, as much as they could with reasonable efforts

Does a prosecutor have to give the defense evidence that helps the defense?

Yes. They must make timely disclosure to the defense of all evidence known to P that negates the guilt of the accused or mitigates the offense

What should a prosecutor do when they find new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which they were convicted?

P must:

• disclose the evidence to the appropriate court/authority; and

• if it was in their jurisdiction, promply disclose the evidence to defendant, and undertake further investigation

What should a prosecutor do when they know of clear and convincing evidence establishing that D in the prosecutor’s jurisdiction was convicted of an offense that D did not commit?

Prosecutor must seek to remedy the conviction

When can a prosecutor subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a client?

When the prosecutor reasonably believes:

• the information sought is not protected from disclosure by any applicable privilege;

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

• there is no other feasible alternative to obtain the information;

Can a lawyer give legal advice to an unrepresented person knowing their interests are or have a reasonable possibility of being in conflict with the interests of the client?

• Hint: is there any exception?

No, except for advice to secure counsel

When does a concurrent conflict of interest exist?

It exists IF:

• representation of 1 client will be directly adverse to another client; OR

• a significant risk that the representation of 1 or more clients will be materially limited by the lawyers responsibilities

When may a lawyer represent a client with a conflict of interest?

The lawyer can represent the client IF:

• lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each client;

• its not prohibited by law;

• it does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation;

• each affected client gives informed, written consent

When may a lawyer enter into business with a client or knowingly acquire interest adverse to a client?

Only when:

• transaction is fair and reasonable to the client;

• fully disclosed in writing to client;

• client is advised in writing they should get independent counsel, and given reasonable time to do so; AND

• client gives informed, written consent to essential terms of the transaction and lawyers role in the transaction

Can a lawyer use information relating to the representation of a client to the disadvantage of the client?

• Hint: what is the exception?

Not unless they give informed consent

Can lawyers solicit gifts from clients?

• Hint: What’s the exception?

No substantial gifts. 

• Exception: the recipient is related to the client

Can a lawyer financially help a client in connection with a pending or contemplated litigation?

• Hint: what are the exceptions?

No, except:

• lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;

• lawyer repping an indigent client may pay court costs and expenses of litigation on behalf of the client; and

• lawyer representing an indigent client pro-bono

When can a lawyer accept payment for representation from someone other than the client?

ONLY when:

• the client gives informed consent;

• there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

• Info relating to representation of a client is protected

Can a lawyer make an agreement that limits a clients ability to sue them for malpractice?

• what is the exception?

No.

• unless the client is independently represented while making the agreement

When can a lawyer have sexual relations with a client?

• Hint: What is the exception

No, unless the consensual sexual relationship existed before the client-lawyer relationship

As a general rule, for conflict of interest purposes, can one lawyer in a firm represent a client that another lawyer in the same firm could not represent because of a conflict of interest?

No. A firm is considered like one person for conflict of interest, so if one lawyer can’t represent a client, none of them can, unless there is an exception

Can a firm represent a client that one lawyer in the firm couldn’t represent when the prohibition is not a personal interest of a disqualified lawyer?

• Why?

Yes, because it doesn’t present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm

Can a firm represent a client that one lawyer in the firm couldn’t represent when the prohibition is based on the disqualified lawyer’s association with a prior firm?

• Hint: What are the requirements for this to be okay?

Yes, IF:

• disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee;

• written notice is promptly given to any affected former client to enable the former client to ascertain compliance

Can a firm represent a client that one lawyer in the firm couldn’t represent when the disqualified lawyer leaves the firm?

• What is the exception?

Yes, UNLESS:

• the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

• any lawyer remaining in the firm has protected material information

Can a lawyer negotiate for employment with a person who is involved as a party or as lawyer in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer?

No

In a case where the lawyer is on the case as a judge/arbitrator, when can the lawyer represent a client in the same case?

• the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee; AND

• written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance

If an individual to an organization is involved in a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, what should the lawyer for the organization do?

• Hint: What is the standard?

• Hint: What is an example of a thing they should do?

The lawyer should proceed as reasonably necessary in best interests of the org

• If necessary, lawyer shall alert appropriate higher authority in the org

When can a lawyer, for the best interests of the organization they represent, go to a higher authority outside of the organization?

When the violation by an individual is reasonably certain to result in substantial injury to the organization

Can a lawyer representing an organization also represent it’s individuals?

Yes

What should a lawyer do when they are discharged or withdraw because of a dispute in an organization?

They should inform the highest authority of their discharge or withdrawal

What should a lawyer do when dealing with indivs in the org that lawyer knows or reasonably should know have adverse interests to the client organization?

The lawyer must explain that the client is the organization

When can a lawyer act as advocate at a trial in which the lawyer is likely to be a necessary witness?

• Hint: 3 ways

When:

• the testimony relates to an uncontested issue;

• the testimony relates to the nature and value of legal services rendered in the case; OR

• disqualification of the lawyer would work substantial hardship on the client

Can a lawyer be an advocate in a case where another lawyer in their firm is likely to be called as a witness?

Yes

Does a judge have to avoid impropriety?

• what about the appearance of impropriety?

Yes.

• yes

When is a judge disqualified?

When the judge has:

• a personal bias or prejudice concerning a party or a party’s lawyer, or

• personal knowledge of facts that are in dispute in the proceeding

Is a judge responsible for their staff following this code?

Yes

What conduct is a judge not permitted to engage in when performing extrajudicial duties?

• Hint: 5 types of conduct

• participate in activities that will interfere with the proper performance of the judge’s judicial duties;

• participate in activities that will lead to frequent disqualification of the judge;

• participate in activities that would undermine the judge’s independence, integrity, or impartiality by a reasonable person standard;

• engage in conduct that would appear to a reasonable person to be coercive; or

• make use of court resources, outside of incidental use for activities that concern the law, the legal system, or the administration of justice

Can a judge participate in an organization that discriminates against any demographic?

• Can they take benefits from such organizations?

No

• no