Model Rules

Model Rule 1.1: Duty of Competence

provide competent advice/ representation to a client. 

• using reasonably necessary legal knowledge, skill, thoroughness, preparation

duty to keep abreast of changes in law

the benefits/risks of relevant technology (like AI).

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

• lawyer has to do what the client wants, has to consult with them. has to listen if they want to settle

• MAY limit the scope reasonably

• MUST NOT help conduct KNOWS is criminal/fraudulent, but MAY the legal consequences/scope in good faith

• ABA 491 :If (above) MUST ask info determine legality.

• the client refuses → must decline or withdraw.

Model Rule 1.3: Diligence

• MUST serve clients diligently act with commitment, promptness, and dedication.

• workload should be controlled matters can be handled competently

Model Rule 1.4: Communications

MUST promptly tell client of any decision requiring informed consent (like a settlement or plea offer).

MUST reasonably consult how to achieve their goals. Lawyer

MUST keep reasonably informed on status of their matter and promptly respond to reasonable requests for info.

Lawyer MUST explain things so can informed decisions.

Model Rule 1.5 Fees

• Fees MUST NOT be unreasonable and communicated early, preferably in writing.

• Contingent fees are OK but MUST be in a signed writing and must arrange an ACCOUNTING of the fees

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

• Fee splits are OK if proportional or based on joint responsibility, client written consent and the total fee is reasonable

Model Rule 1.6 Confidentiality and Exceptions

• Lawyer MUST NOT reveal client information (broader than AC privilege) unless an exception applies or client consent is given. Lawyer MAY reveal info if reasonably believed necessary to:

• 1) Prevent reasonably certain death or substantial bodily harm (future harm only);

• 2) Prevent client crime/fraud reasonably certain to cause substantial financial/property injury;

• 3) Prevent, mitigate, or rectify injury already caused by client’s crime/fraud using the lawyer’s services;

• or 4) Comply with a court order.

Crime fraud exception to attorney client privilege in common law

• removes attorney client privilege if client sought help to commit crime/fraud.

• communication is not protected in court even if LAWYER DIDNT KNOW clients INTENT

Fed. R. Evid. 502: Attorney-Client Privilege and Work Product; Limitations on Waiver

Inadvertent Disclosure (502(b))

• Intentional disclosure may waive privilege for other related info .

• Accidental disclosure usually doesn’t lose the privilege if the lawyer took reasonable steps to fix the mistake.

What attorney client privilege covers

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

  • attorney-client privilege survives death (Swidler)

Cal. Bus. & Prof. Code § 6068(e)(1)

An attorney must keep a client’s information confidential and protect their secrets, even if doing so could hurt or risk the lawyer personally.

Rule 1.7: Conflict of Interest: Current Clients

MUST NOT rep if (1) direct adversity OR (2) significant risk of materially limited repr

MAY proceed if believes they can represent each client well, the law permits it, the clients are not suing each other, and all clients agree/give written informed consent.

• Prospective Clients:, if learns confidential info from a potential client, can’t use or share it unless rule 1.9  allows
  

hot potato doctrine  - cant drop one client to rep another client

• Advance Waivers: Clients can agree to waive future conflict claims if clear specific

Rule 1.8 Current Clients: Specific Rules

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

• MUST NOT represent a new client against a former client if 1)material adversity in the 2). same or substantially related matter w/o former clients informed consent

• . applies if lawyer EXPOSED to former client’s substantially related confidential info @ former firm.

• Cmnt 3: 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.

Rule 1.10 Imputed Conflicts of Interest

If one lawyer is (DQ’ed) under 1.7 or 1.9, ALL lawyers in the firm MUST NOT represent that client.

Exceptions l for personal conflicts, or dq’ed lawyer is screened off and the former client is notified.

Rule 1.11 Govt lawyers

• Former/current government lawyers MUST NOT work on matters they were personally and substantially involved in while in government without the agency’s informed written consent.

Must protect confidential govt info

Lawyers in new form DQEd too unless

Rule 1.13: Organization as Client

Lawyer represents the org, not its constituents.

If KNOWS someone in the org act unlawfully likely to cause substantial harm to the org → lawyer MUST take reasonably necessary steps in the org’s best interest, potentially reporting up the ladder to the highest authority.

• if fired for trying to report up or out, you may disclose (aka whistleblower)

3. mandatory “Reporting Up the Ladder” (ALL required or just permissive)
actual knowledge of misconduct (not suspicion)
act related to the representation
Could act imputed to the organization? (Responsible)
likely to cause substantial injury to the organization?

• First, try to get the person to reconsider.

• If unresolved, report up the ladder (to higher management, board if necessary).

4. MAY Report Out (Permissive):

• If The highest authority fails to act, and

• The violation is clearly illegal and likely to cause substantial injury,

• even if isnt technically illegal but lawyer REASONABLY BELIEVES is harmful to the orgs interests → may report up the ladder
  → may disclose confidential info (rule 1.6 exception) —but only to the extent necessary to prevent the harm.

exception: Not allowed if the lawyer was hired to investigate or defend the organization regarding that violation.

6  Upjohn Warning - if employees interests conflict, lawyer must clarify: “I represent the company, not you.”. Info you share may not be privileged if your interests diverge from org.-

Model Rule 1.14: Client with Diminished Capacity

Ifclient has diminished capacity, MUST maintain a normal client-lawyer relationship reasonably possible.

If reasonably believes at risk of serious harm, MAY take reasonably necessary protective steps (like seeking a guardian) and disclose necessary information that breaks Rule 1.6 confidentiality

Model Rule 1.16: Declining or Terminating Representation

lawyer is required to withdraw if violating the law or breaking other model rules, client fires you, you’re too sick to represent them or client is using your services to continue crime/fraud

lawyer can CHOOSE to withdraw if:

•  it wont seriously harm the client

• client is doing something lawyer reasonably believes is criminal/fraudulent WITHOUT lawyers help

• if client PREVIOUSLY used lawyers services to do something wrong

• client isnt  paying fees after being warned

• case becomes too difficult/expensive for lawyer. 

• client wants to do something unethical repugnant
  

BUT: you cant just withdraw in the middle of the trial have to a tribunal first. if tribunal says lawyer has to stick with client they have to

when rep ends have to take reasonable steps like giving client notice, refunding fees, allowing time to find new lawyer

allow clients to fire lawyers at any time with or without cause but has to pay for services provided

Model Rule 1.18: Duties to Prospective Client

1.18a) if you talk to a lawyer about possibly hiring them you become a prospective client .even if the lawyer isnt hired they cant use or share what the prospective client told them unless the rules for former clients allow it

Lawyer MUST NOT use/reveal info from a prospective client. Lawyer MUST NOT represent a 1) materially adverse client in the 2) same/substantially related matter if the info could 3) seriously harm the prospective client.

exception - if both client agree in writing , limit the sensitive info , lawyer is screen off the case , no fees

Model Rule 2.1: Advisor

• Duty to exercise independent professional judgement and give candid advice to clients

• advice CAN (optionally) include non-legal factors like moral, economic, social political factors.

• Comment [1] client is entitled to the lawyer’s honest assessment, even if that advice “involves unpleasant facts and alternatives” a client is reluctant to address.

Model Rule 3.1: Meritorious Claims and Contentions

Lawyer MUST NOT make or defend frivolous claims.

Exception: In a criminal proceeding where incarceration is at risk, the defense lawyer can require every element of the case be established And seek acquittal of someone you know is guilty

Model Rule 3.3: Duty of Candor Toward the Tribunal

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

• Lawyer MUST disclose key adverse cases in the jurisdiction.

• If the client plans perjury, the lawyer MUST counsel the client; if that fails, the lawyer MUST inform the court if necessary (the duty of candor overrides confidentiality). or withdraw

Model Rule 3.4: Fairness to Opposing Party and Counsel 

• Lawyer MUST NOT obstruct or falsify evidence or instruct a witness to testify falsely.

• Lawyer MUST NOT make frivolous discovery requests or disobey court orders.

Model Rule 3.6: Trial Publicity 

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

Model Rule 3.8: Special Responsibilities of a Prosecutor

• Prosecutor MUST NOT prosecute charges they KNOW is not supported by probable cause.

• Prosecutors MUST timely disclose any exculpatory evidence to the defense (Brady violation if not disclosed

Model Rule 4.1: Truthfulness in Statements to Others

  Lawyer MUST NOT make a false statement of material fact or law.

Lawyer has no affirmative duty to volunteer all facts.

Model Rule 4.2: Communication with Person Represented by Counsel

a lawyer cant talk about the case with someone they know has a lawyer, unless the other lawyer agrees or court allows it

Model Rule 4.4: Respect for Rights of Third Persons

MUST not obtaining evidence that violate the legal rights of a third person

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

• Lawyer MUST avoid giving legal advice to unrepresented persons whose interests MIGHT conflict with their client’s.

If receive info related to client on accident have to promptly let sender know

Model Rule 5.1 Responsibilities of Partners/supervisors/senior lawyers

partners and managers and supervisors must make reasonable efforts to ensure lawyers in their firm/supervisees follow ethics rules

Supervisor is responsible for another lawyers misconduct if they order or knowingly ratify the misconduct or know about it and failed to prevent

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

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

Rule 5.4 Professional Independence of a Lawyer

someone else paying for the client’s services doesn’t give them in power to direct the representation

Lawyers MUST NOT share legal fees or form corps/partnerships to practice law with non-lawyers,

Model Rule 8.4 Misconduct

Misconduct includes: Breaking or helping break ethics rules;

Committing serious crimes showing dishonesty; Being dishonest (lying, cheating, fraud, misrepresentation);

Undermining the justice system; or Harassing or discriminating

Can’t use a non lawyer to do something lawyers not allowed to under MR

Sixth Amendment

• 6th amendment. - client has right to assistance of counsel and EFFECTIVE assistance of counsel

  • Everyone charged with a a crime has a right to a lawyer, even if they can’t afford one, and a right to a quick and public trial with a fair jury. They also have a right to know what they are being acccused of and have witnesses on their side as well as question the witnesses on the other side. 

• case law: defendant has right to self represent BUT that can be denied if the request was in bad faith (like to delay the trial)

What is material adversity( formal op 497 Clarifies the “materially adverse” standard for conflicts (MR 1.9/1.18).

Actions that are materially adverse against a former client include: suing, negotiating against, cross-examining them, or attacking/undermining the lawyer’s own former client work

repping two biz competitors is not prohibited by model rules. about material aversity.

Rule 1.15 safekeeping prop

Lawyers MUST PROMPTLY NOTIFY client received their money/property AND keep client or third-party property separate from their own in a dedicated trust account in the lawyer’s state (unless the third party consents to another location).

Rule 7.1 Communications Concerning a Lawyer's Services

Lawyer MUST NOT give false or misleading statements about themselves or their services.

Communication is improper if it 1)materially misrepresents facts or law or 2) omits necessary information to mislead.

• even truthful reports of lawyers past achievements can be misleading  if they create an unjustified expectation OR “unsubstantiated comparison that is specific” that clients will get similar results without explaining that outcomes are fact-dependent

Rule 7.2 Communications Concerning a Lawyer's Services: Specific Rules

Lawyer MUST NOT pay someone for recommending their services

name contact info firm name

OR claim to be specialists unless certified by an approved organization

Rule 7.3 Solicitation of Clients

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

Lawyer MUST NOT solicit in-person SIGNIFICANTLY MOTIVATED BY pecuniary gain,

(except to: another lawyer; someone with a family, close personal, or prior business/professional relationship)

MUST NOT solicit if: person refused contact or solicitation involves coercion, duress, or harassment.

MR 8.3 Reporting Professional Misconduct

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

Same for judge

CAN NOT BREAK 1.6 CONFIDENTIALITY to report this misconduct though

Rule 8.5 Disciplinary Authority; Choice of Law

A lawyer can be disciplined in the jurisdiction they're licensed in no matter where the actions took place.

A lawyer not licensed in this jurisdiction can be disciplined here if they provide legal services here.

A court will apply the ethics rules of the jdx the court sits in

ABA formal op 491 Lawyers’ duties vis-à-vis clients’ fraudulent/criminal behavior)

If knows/willfully blind client intends to use service crime fraud MUST ask for more info to see if its legal before they assist

• If the client refuses to give the info needed to determine if they plan to commit fraud/crime, then lawyer must decline or withdraw. 

Formal Op. 508 Witness prep

Lawyers MAY prepare witnesses by discussing strategy, likely questions, and helping refresh recollection.

Lawyers MUST NOT tell witnesses to give false testimony, script testimony, or use improper conduct during testimony (like winking or suggestive objections).

ABA Formal Op. 92-363: Use of threats of prosecution in connection with a civil matter./ ABA Formal Op. 94-383: Use of threatened disciplinary complaint against opposing counsel/ cal rule Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges

MR does not expressly ban threats of prosecution or discipline

363:A lawyer MAY mention the possibility of bringing a criminal charge if the threat is well-founded in fact and law, but MUST NOT imply improper influence or amount to extortion.

383:A threat is improper if the underlying misconduct is so serious it would require reporting under MR 8.3 (raising a substantial question as to fitness), because the lawyer is obligated to report, not use it as leverage

Cal rule 3.10 Lawyer MUST NOT threaten to file criminal, administrative, or disciplinary charges to gain an advantage in a civil dispute.

Exception: If the threat is legally required or part of a lawfully authorized process

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

Aba formal op 454 Clarifies the prosecutor’s duty to disclose evidence (MR 3.8(d)).

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.

Cal Rule 1.6 Confidential Information of a Client/ Cal. Bus. & Prof. Code § 6068(e)(1)-(2)

BOTH say lawyer must keep client info confidential

Both say Lawyer MAY disclose info to prevent a crime that is likely to result in death or serious bodily harm (Permissive).

1.6 also says Before disclosure, the lawyer should attempt in good faith to stop the harmful act and inform the client if disclosure will occur.

Fifth amendment

Lawyer MUST NOT reveal client confidences that would incriminate the client (Self-incrimination).

Due Process requires exculpatory evidence must be disclosed at trial (Brady violation if not disclosed

First amendment

Allows lawyers to challenge laws and raise constitutional or statutory arguments on behalf of their clients

FRCP 23 class action

Lawyers are reasonably expected to represent absent class members without material conflicts or divided loyalty. Requires settlements to be fair, reasonable, and adequate to the class.

5.5 multi jdx

A lawyer may not practice law in a jurisdiction if doing so violates that jurisdiction’s rules, and may not help another lawyer do so.

Exception: lawyer is authorized by federal or other law or rule to provide legal services in this jurisdiction

If not admitted in that jdx you can’t:

• establish an office/ systematic ongoing legal presence

• Make it seem like you’re admitted there

Exception: In house counsel MAY have office+ continuous systematic presence in another jdx if services Are provided only to the lawyer’s employer or its organizational affiliates AND do not require PRO HAC VICE

If admitted in another jdx you can Temporarily:

• Work with another lawyer admitted ther IF they actively participate

• Pending litigation IN the new jdx or another? If given PRO HAC VICE (court order to appear) or reasonably expects pro hac vice

• Other temp services RELATING to work from home jdx

Foreign lawyers giving advice on us law have to base it from advice of lawyer licensed in relevant us jdx

5.3 Responsibilities regarding nonlawyer assistance

Lawyers in a firm  MUST  make reasonable efforts to ensure that any nonlawyers who work for them follow the lawyers’ professional rules.

• 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

4.3 Dealing with Unrepresented Person

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

• Lawyer MUST avoid giving legal advice to unrepresented persons whose interests MIGHT conflict with their client’s.

different conceptions/approaches to lawyering

• 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.