Download Multi Professional Responsibility Exam and more Summaries Law in PDF only on Docsity!
MPRE OUTLINE:
REGULATION OF THE LEGAL PROFESSION
1. POWER TO REGULATE THE LEGAL PROFESSION
A. STATES HIGHEST COURT
I. GENERAL:
a. adopts ethical rules b. enforces through disciplinary commission or bar association B. CONGRESS AND STATE LEGISLATURES I. GENERAL: have enacted laws that govern certain aspects of law practice e.g., attorney-client privilege
- ADMISSION TO THE LEGAL PROFESSION A. ADMISSION REQUIREMENTS I. RULE: must be rationally related to the practice of law e.g., graduation from accredited law school e.g., oath to uphold the constitution e.g., good moral character B. EFFECTS OF CRIMINAL ACTS AND OTHER MISCONDUCT I. RULE: to result in rejection, misconduct must involve moral turpitude… a. crimes involving intentional dishonesty b. crimes of violence c. lying is always moral turpitude even if not crime C. REQUIREMENTS THAT ARE NOT RELATIONAL I. citizenship II. residency
- DUTY TO COOPERATE WITH CHARACTER INVESTIGATIONS A. RULES: I. no knowingly false statements of material fact II. respond to all requests for information III. correct any misapprehensions note: NOT required to disclose confidential information
- PROFESSIONAL MISCONDUCT A. WHAT CONSTITUTES? I. violating Rules of Professional Conduct a. violating the RPC b. attempting to violate the RPC c. helping someone else violate the RPC d. using someone else to violate the RPC II. Committing Certain Crimes a. crimes relevant to honesty, trustworthiness, or fit- ness. III. Committing Certain Acts a. acts of dishonesty, fraud, deceit, or misrepresentation IV. Conduct Prejudicial to Administration of Justice V. Harassment or Discrimination in Connection with Law Practice
a. no harassment or discrimination based on race, sex, religion, national origin, ethnicity, age, sexual orientation, gender identity, marital status, or socio- economic status b. does not affect ability to accept, decline, or withdraw from a case c. trying to promote diversity is not a violation
- DUTY TO REPORT MISCONDUCT OF OTHERS A. MANDATORY REPORTING VIOLATION I. RULE: violation raises substantial question as to lawyer’s honesty, trustworthiness, or fitness to practice B. NOT MANDATORY I. question raised was not substantial II. suspect violation, but don’t know C. EXCEPTIONS I. violation of duty of confidentiality to a client II. learned of violation in lawyer’s assistance program
- DISCIPLINARY AUTHORITY A. RULES: I. any state where lawyer is admitted II. any state where lawyer provided or offered services
- UNAUTHORIZED PRACTICE OF LAW A. RULE: unauthorized practice = practicing without a license I. subject to discipline for engaging in unauthorized practice or assisting someone else in unauthorized practice. B. PRACTICE OF LAW I. appearing at judicial proceeding II. drafting documents III. negotiating settlements IV. giving legal advice C. NOT THE PRACTICE OF LAW I. interviewing people II. filling in forms III. preparing tax returns note: sppearing pro se is not unauthorized practice; lawyer can help someone do that
- MULTI-JURISDICTIONAL PRACTICE A. OUT-OF-STATE CONDUCT I. RULE: a. out of state conduct can expose you to discipline at home b. conflict of laws – which law applies (other than the home state)? i. lawyers’ belief – the conduct must conform to the rules of the jurisdiction in which the lawyer reasonably believes his conduct will have a predominant effect B. METHODS OF TEMPORARY OUT-OF-STATE PRACTICE I. RULE: an out-of-state lawyer may practice in a jurisdiction on a temporary basis a. associate with locally licensed attorney i. local counsel must actually be a participant b. admission pro hac vice i. applies to mediation or arbitration c. working for a client C. PERMANENT OUT-OF-STATE PRACTICE
A. RULE: lawyers can provide law-related services alongside legal services B. RPC APPLY TO LAW-RELATED SERVICES WHEN: I. when services are not distinct from legal services II. when lawyer owns or controls entity providing services and does not take reasonable steps to ensure recipients understand that protections of attorney-client relationship don't apply
- RESTRICTIONS ON PRACTICE A. RULE: no covenants non-compete with other lawyers B. EXCEPTION: sale of practice I. note: covenants are not allowed in settlements either
CLIENT-LAWYER RELATIONSHIP
1. DUTIES
A. NO DUTY TO REPRESENT CLIENTS
I. RULE: lawyer has no duty to represent a client II. EXCEPTION: court appointments; may be declined for cause a. SUFFICIENT CAUSES: not being paid, violation of the rules, commission of a crime B. DUTY TO REJECT A CLIENT I. RULE: duty is coextensive with the rules for mandatory withdrawal
- SCOPE OF REPRESENTATION AND DECISION-MAKING AUTHORITY A. REPRESENTATION I. RULES: a. client generally decides scope, but lawyer can limit b. cannot advise or help to do something illegal or fraudulent B. CLIENT’S DECISION-MAKING I. CIVIL CASES: whether to settle II. CRIMINAL CASES: what plea to enter, whether to waive a jury trial, whether client will testify III. ALL CASES: whether to appeal C. LAWYER’S DECISIONS I. RULE: lawyers generally make strategic decisions, but must consult with client about how the work is done D. COMMUNICATION WITH CLIENT I. RULES: a. lawyer must tell the client everything the client needs to know to make an informed decision about the case b. settlement offers must be communicated to the client i. EXCEPTION: prior agreement with client concerning a litigation e.g., client will not accept less than 100k, lawyer does not need to convey lower offer to client E. CLIENT UNDER A DISABILITY I. minority (underage) II. medical disability (mental disability, drug addiction) III. lawyers duties a. maintain an ordinary relationship; b. seek an appointment of a guardian if necessary; and c. permitted to reveal information as necessary to protect the client i. i.e., you are allowed to take protective action F. COUNSELING CRIME OR FRAUD I. RULES:
a. yes, as to legal consequences b. no, as to how to commit a crime
- LAWYER'S AUTHORITY TO BIND CLIENT A. RULE: lawyer's actions will bind client when lawyer has actual or apparent authority I. ACTUAL AUTHORITY: communicated by client to lawyer expressly or impliedly II. APPARENT AUTHORITY: third party believes lawyer has authority based on client's actions
- WITHDRAWL AND TERMINATION OF REPRESENTATION A. MANDAOTRY WITHDRAWAL: coextensive with attorney-client privilege I. violation of rules II. attorney impairment III. discharge of attorney (i.e., you get fired) a. client has an absolute right to fire an attorney b. client still owes fees to the discharged attorney (unless discharged for cause) IV. withdrawal after court processes begin a. must get leave of court to withdraw, even when withdrawal is mandatory B. PERMISSIVE WITHDRAWL (may) I. HARMLESS WITHDRAWL a. RULE: may withdraw even if the client objects, so long as there is no harm to the client II. HARMFUL WITHDRAWAL (may) a. RULE: reasonable belief the client is pursuing crime or fraud and the lawyers’ services were used in the client’s crime or fraud b. client’s action is repugnant to the attorney c. unreasonable financial burden i. usually arises in the case of court appointment caution : a bad deal is not enough d. client fails an obligation to the lawyer e.g., not paying fees e. good cause e.g., illness or family emergency note: when in the court process, an attorney must always obtain court permission to withdraw C. POST-TERMINATION ISSUES I. RULES: a. reasonable notice to client b. return clients property and unearned fees c. if client still owes a fee, lawyer can have a lien on the client’s property i.e., should not harm the client i. PASSIVE LIEN: cannot sell the property; operates like collateral II. DISBURSEMENT OF FUNDS: (third party dispute) e.g., lawyer wins suit for client, placing proceeds of the judgment in client trust account. client’s medical insurer asserts a claim on those funds, what should lawyer do? hold them a. attorney must hold disputed funds until the third-party’s dispute is resolved
FEES
1. FEES IN GENERAL
A. TYPES OF FEES:
II. real firms may split fees i.e., the entity must be a professional corporation III. no non-lawyer can be in control of a lawyer’s judgment i.e., no control by a third-party payor e.g., insurance company is generally not the client IV. lawyer-owned related services i.e., clients must know they are not dealing with a lawyer
- RETAINERS A. RULE: lawyer must keep client’s money separate I. all unearned legal fees must be placed in escrow or trust account and unearned fees must be returned II. all costs advanced to the lawyer must also be placed in escrow III. accounts of the lawyer and client must be kept separate
- INTERESTS IN CLIENT AS A FEE A. RULES: I. lawyer takes something from client instead of fee II. interest can create a conflict of interest III. business transactions with clients and acquisitions of an ownership or security interest in client’s property trigger certain requirements: a. terms must be in writing b. terms must be fair and reasonable c. attorney must advice the client, in writing, of the prudence of hiring independent counsel to review the agreement d. informed consent in writing, signed by the client
CONFIDENTIALITY and PRIVILEGE
- ATTORNEY-CLIENT PRIVILEGE vs. DUTY OF CONFIDENTIALITY A. ATTORNEY-CLIENT PRIVILEGE I. communications only II. applies only to disclosures in proceedings B. DUTY OF CONFIDENTIALITY I. all information relating to representation II. applies to disclosures in any setting
- DUTY OF CONFIDENTIALITY A. RULE: all information learned relating to the representation must be kept in confidence; applies to disclosures in any setting I. broader than privilege II. third party’s knowledge does not affect duty III. information need not come from client IV. cannot disclose to anyone e.g., public information? confidential e.g., client’s identity? confidential e.g., lawyers’ observations? confidential note: confidentiality is broader than attorney client privilege B. EXCEPTIONS:
- ATTORNEY-CLIENT PRIVILEGE A. GENERAL: more limited than confidentiality I. privilege shields information from the court II. limited application; applies to:
a. testimonial communications (i.e., words) b. information given in confidence to attorney; and c. information actually kept in confidence III. presence of third party may destroy B. INADVERTENT DISCLOSURE AND WAIVER I. RULE: no waiver of privilege if... a. attorney took reasonable steps to prevent disclosure; and b. attorney took reasonable corrective steps after the disclosure II. EXCEPTIONS: a. crime: attorney cannot participate in ongoing crime b. dispute with the attorney e.g., lawyer brought claim against client for violating their fee agreement; information would normally be privileged can be disclosed (need to see it to settle the dispute) c. aid in future crime or fraud d. self-protection e. litigation between former joint clients f. competency or intent of deceased client C. SUMMARY: I. ATTORNEY any person the client consults to obtain legal assistance II. CLIENT: anyone seeking lawyer's legal services III. AGENTS: includes support staff, someone else brought in to assist with the matter, and someone who's there to help client communicate IV. COMMUNICATION: Information passed between lawyer and client for the purpose of obtaining legal assistance for the client a. does not cover communications not made for legal assistance b. does not cover pre-existing documents or re- cords V. CONFIDENTIAL: Reasonable belief that outsiders will not learn the contents of the communication a. eavesdropper: communication generally remains privileged VI. WHO HOLDS PRIVILEGE: Client holds the privilege and decides to claim or waive it, but lawyer must claim on client's behalf in client's absence VII. WAIVER OF PRIVILEGE: Attorney, agent, or client can waive privilege by failing to object, or disclosing to third party
- WORK-PRODUCT DOCTRINE A. GENERAL: I. protects documents prepared for use in connection with a clients case e.g., strategy memo, observations about client, reports on witnesses, etc. B. RULE: work product is not subject to discovery C. EXCEPTION: an attorney compelled to reveal work product when… I. there is a substantial need for the information; and II. no other means to gather the information without undue hardship note: even if that case, mental impressions do not need to be disclosed
- COURT COMPULSION A. RULES: I. a court cannot order a lawyer to reveal information protected by attorney-client privilege II. a court may order revelation of material protected under the ethical duty of confidentiality a. you must assert every non-frivolous claim you have to prevent disclosure
- PERMISSIVE DISCLOSURES OF CONFIDENTIAL INFORMATION (may)
II. preserve confidentiality C. ENFORCEMENT OF CONFLICT RULES I. GENERAL: conflicts of interest may result in both… a. litigation sanctions (e.g., disqualification from representation); and b. disciplinary sanctions i. who enforces? the trial courts D. GENERAL CONFLICTS WITH CURRENT CLIENTS I. RULE: can't represent client if… a. representation will be directly adverse to another client, or e.g., representing the landlord and tenant in an eviction dispute e.g., representing two clients who are in litigation unrelated to your case note: usually not waivable b. significant risk that representation will be materially limited by another interest II. WAIVABLE CONFLICTS a. REQUIREMENTS: i. reasonable belief can represent each competently and diligently ii. informed consent, confirmed in writing from each affected client iii. note: being on opposite sides of the same litigation unwaivable (1) direct adversity examples: (a) clients on opposite sides of same matter (b) representing client’s opponent in another matter (c) cross-examining current client in another matter (2) material limitation examples: (a) lawyer’s responsibilities to different client, former client, or third person (b) lawyer’s personal interests III. REPRESENTING CO-PARTIES a. CRIMINAL CASES RULE: the risk of conflict is high and joint representation isn't advisable. b. CIVIL CASES RULE: conflict can usually be addressed… i. must reasonably believe can represent all parties well ii. must explain consequences iii. must get informed consent iv. must re-address conflict if potential conflict becomes real v. must withdraw if reasonable lawyer would ad- vise any client against consent vi. must get consent of dropped clients if continuing to represent any co-parties IV. LAWYER’S PERSONAL INTERESTS a. RULES: i. representation may continue with client consent ii. uniquely personal conflict (e.g., family member is opposing counsel) is not imputed to firm V. LAWYERS DUTIES TO FORMER CLIENTS AND THIRD PARTIES a. RULE: representation may be limited… i. where lawyer owes a duty of confidentiality to a former client ii. where lawyer is corporate director iii. when lawyer acts as fiduciary E. SPECIFIC CONFLICTS WITH CURRENT CLIENTS I. MISUSE OF CLIENT’S CONFIDENTIAL INFORMATION
a. not use client's information against them without informed consent. II. BUSINESS TRANSACTIONS WITH CLIENTS a. RULES: i. transaction must be fair and reasonable to client ii. lawyer must disclose all terms to client in writing, in a way the client understands iii. lawyer must advise client in writing to get independent counsel iv. client must give informed consent in a signed writing III. ACQUIRING AN INTEREST IN THE SUBJECT MATTER OF LITIGATION a. RULES: i. no proprietary interest in cause of action or subject matter of litigation, except: ii. contingent fees iii. lien on client's recovery (if authorized by law) IV. GIFTS FROM CLIENTS a. RULES: a lawyer cannot… i. solicit substantial gift from client unless relative ii. prepare instrument giving lawyer or relative substantial gift unless donee related to client V. LITERARY OR MEDIA RIGHTS a. RULES: i. cannot have interest in book, movie, or other portrayal during representation ii. lawyer can have interest in media rights when case is completely over VI. FINANCIAL ASSISTANT TO CLIENT IN LITIGATION a. RULES: i. no financial help to client in connection with pending or contemplated litigation ii. cannot guarantee loan from someone else to client b. EXCEPTIONS i. may advance court costs and expenses ii. may pay court costs and expenses for indigent client iii. when representing indigent client pro bono, may give client modest gifts for basic living expenses VII. AGGREGATE SETTLEMENT AGREEMENTS a. RULES: i. fully explain the claims and what everyone's get- ting ii. get informed consent from each client in a signed writing VIII.THIRD PARTY PAYING FOR REPRESENTATION a. RULES: i. client must give informed consent ii. third party cannot interfere with relationship iii. cannot reveal client's confidential information IX. SEXUAL RELATIONSHIPS WITH CLIENTS a. RULES: i. preexisting sexual relationship generally OK ii. subject to discipline if sexual relationship follows attorney-client relationship iii. conflict not imputed to the firm
- FORMER CLIENTS A. ONGOING DUTY OF CONFIDENTIALITY
B. INCOMING LAWYER
I. RULE: arises when a new lawyer is contagious with a conflict II. APPLICATION: a. RULES: i. only applies to the incoming lawyer ii. incoming lawyer will not give firm a conflict as long as there is instant screening, and iii. incoming lawyer receives no part of fee III. SCREENING: a. RULES: i. no information is passed between incoming lawyer and firm; ii. lawyer is apportioned no part of the fee; and iii. affected client must be afford notice, but consent is not required C. NON-LAWYERS: I. RULES: a. nonprofessional employees (e.g., paralegals, secretaries, etc.) can also create conflicts b. same rules apply
- GOVERNMENT LAWYERS A. CONFLICT OF INTEREST: I. RULE: former government lawyer who becomes associated with a firm can create a conflict B. REQUIREMENTS TO DEAL WITH CONFLICT: I. RULE: a. lawyer is screened on the matter b. affected client must be notified i. gives client opportunity to monitor the screening C. JOB SEARCH: I. RULES: government lawyers, agency lawyers, arbitrators, mediators, and third-party neutrals cannot negotiate for employment with a party if that party is involved in a matter in which the lawyer participates II. EXCEPTION: law clerks can seek employment with parties before the court, provided they tell the judge D. GOVERNMENT CONFLICTS: I. GOVERNMENT PRIVATE PRACTICE a. cannot represent private client without government agency's consent if: i. same "matter" (must involve specific facts and parties) ii. lawyer worked personally and substantially on matter while in government iii. conflict imputed to firm but cured with screening II. CONFIDENTIAL GOVERNMENT INFORMATION a. RULE: if lawyer acquired confidential government information about a person during government employment, can’t represent private client against them later III. PRIVATE PRACTICE GOVERNMENT a. RULE: normal conflict rules, plus… i. cannot take part in any matter personally and substantially involved in while in private practice, unless government agency consents E. FORMER JUDGE OR THIRD-PARTY NEUTRAL I. RULE: a. cannot represent client in matter lawyer was personally and substantially involved in as a judicial actor or third-party neutral, or as a law clerk, unless all parties to the proceeding consent
b. conflict imputed to firm but cured by screening, notice to all parties, and notice to the affected tribunal F. GOVERNMENT EMPLOYEE, JUDGE, OR THIRD-PARTY NEUTRAL NEGOTIATING FOR EMPLOYMENT I. RULE: a. government employee, judge, or third-party neutral cannot negotiate for private employment with any party in a matter they are personally or substantially involved with II. EXCEPTION: law clerks who give advance notice to judge
- PROSPECTIVE CLIENTS A. GENERAL: information learned from prospective client can create a conflict B. RULES: I. no adverse representation in same or substantially related matter if confidential information would be significantly harmful to prospective client II. conflict imputed to firm but can be cured with screening III. conflict exists if the attorney solicits information from prospective client a. an unsolicited communication from a prospective client does not trigger this conflict
- THIRD-PARTY INTERFERENCE A. RULES: I. client is the client the third-party payor (e.g., insurance agency) is not the client II. forms of impermissible interference with the attorney’s independent representation of a client (3): a. work control (e.g., task approval system) b. information control (e.g., demand to see all case-related information) c. settlement control (e.g., regulation of the nature and amount of the settlement) III. client can consent to these forms of improper influence IV. an agreement to eliminate or limit malpractice is not valid
- ORGANIZATION AS A CLIENT A. MEANING: “organization” includes corporations and other entities B. CLIENT: I. lawyer represents the organization, not its constituents II. joint representation of organization and its constitutes is permissible C. CONTROL GROUP: representatives (managers, board of directors, etc.) D. BAD BEHAVIOR: I. if lawyer knows of a violation of law that may be imputed to the organization and likely to result in substantial injury to the organization, lawyer should take measures including referring the matter to the highest organizational authority a. board control: lawyer may have to go the board II. if organization does not correct the matter, the lawyer may: a. resign b. “noisy withdrawal” is allowed
COMPETENCE, LEGAL MALPRACTICE, and OTHER CIVIL LITIGATION
1. DUTY OF COMPETENCE:
A. BASIC RULE
I. Must act with knowledge, skill, thoroughness, and preparation necessary to do the work B. MALPRACTICE v. ETHICS VIOLATION I. General a. Malpractice: requires damages b. Discipline: does not require damages
I. prospective clients given legal advice II. those intended to benefit from legal services III. those invited to rely on opinion or legal services B. THIRD-PARTY BENEFICIARIES e.g., lawyer wrote a will and accidentally left out nephew who was meant to be in it; nephew can bring a claim against lawyer even though there is no lawyer-client relationship C. UNAUTHORIZED ACTS e.g., without permission, lawyer enters into contract to sell client’s property; lawyer is liable
- VICARIOUS LIABILITY A. RULE: must reasonably believe the other lawyer will contribute I. Firm is vicariously liable for damages caused by someone at the firm if: a. action was in ordinary course of business, or b. person was authorized to act note: in a general partnership, all partners are jointly and severally liable for firm obligations
- TORT DEFENSES FOR ATTORNEY’S A. DEFAMATION: I. RULE: privilege when the publication is related to a proceeding in which the lawyer is counsel B. MALICIOUS PROSECUTION: I. RULE: probable cause for the action brought by the attorney
- CRIMES A. RULE: advice about a crime is not criminal if lawyer attempts to dissuade client
FAIRNESS and LITIGATION
1. DILIGENCE
A. RULE:
I. lawyers must be diligent; if you cannot be diligent, you must withdraw II. cannot delay for the sake of delay (e.g., good reason)
- “ZEALOUS” ADVOCACY A. FRIVOLOUS CLAIMS I. MEANINGS: no good faith argument under current law, and no good faith argument for changing law a. EXCEPTION: when representing criminal defendant or one who could be jailed, can make prosecutor prove every element II. RULE: a. lawyer must not assert or defend a claim that is frivolous absent a good-faith argument to extend the law e.g., civil rights cases, Take v. Brown note: “frivolous” is subject to interpretation b. reliance on a client’s factual assertion may be permissible under ethical rules FRCP 11: requires “reasonable investigation” into client’s facts c. development of facts may make an action frivolous later e.g., client tells lawyer he was injured in a high-profile train accident, lawyer later determines client wasn’t even the same state as the accident. is this frivolous? yes what should lawyer do? Withdraw B. DO NOT DELAY I. RULE: can ask for/consent to a reasonable extension
- EXPEDITING LITIGATION A. RULE: must make reasonable efforts to expedite litigation consistent with client’s legitimate interest
e.g., financial benefit is not legitimate interest
- CANDOR TO THE TRIBUNAL A. TRIBUNAL: includes administrative agencies as well as courts B. RULE REGARDING FACTS and LAW: I. lawyer may not “knowingly” (actual knowledge)… a. make false statements as to law or fact; b. fail to disclose controlling authority on the other side; or c. offer evidence the lawyer ‘knows’ to be false II. a lawyer may refuse to offer evidence the lawyer “reasonably believes” is false a. no duty to volunteer facts i. EXCEPTION: ex parte proceedings C. IMPARTIALITY AND DECORUM OF THE TRIBUNAL I. RULE: a. cannot attempt to influence court or jurors in way prohibited by RPC b. cannot disrupt proceedings c. cannot speak to judge or court officials without other side present d. cannot talk to jurors about any subject during case e. post-discharge interviews of jurors allowed unless juror does not want to talk, or it involves misrepresentation, coercion, or harassment D. FALSE EVIDENCE: I. RULE: a. cannot offer evidence lawyer knows to be false b. may refuse to offer evidence lawyer reasonably believes is false (except testimony of a criminal defendant) c. if false evidence offered, must take reasonable remedial measures (supersedes confidentiality) d. duty to rectify continues until proceeding is completely over, appeals and all II. FALSE TESTIMONY BY CRIMINAL DEFENDANT CLIENT a. try to persuade otherwise; b. consider withdrawal; c. if all else fails, disclose situation to judge note: some jurisdictions allow narrative testimony, but that is not the ABA approach
- REMEDIAL MEASURES A. RULE: when lawyer knows evidence submitted was false or, typically, when perjury has been committed or is about to be committed… I. lawyer must remonstrate with the witness (i.e., attempt to dissuade) to correct the falsity; II. lawyer may take the matter to the court and seek withdrawal; III. when withdrawal is denied (and it usually will be), the lawyer can present “trial by narrative) a. trial by narrative: witness testifies without lawyer’s participation (i.e., no questions or objections) e.g., prepping client to take the stand in a assault case, lawyer gets the feeling client is going to lie on about where he was during the incident? is she required to tell the court? no, she doesn’t have actual knowledge what should lawyer do? remonstrate, in hope of dissuading him from committing perjury B. RULE: lawyer has a duty to correct errors (false testimony, etc.) I. DURATION: it ends when litigation is over
- FAIRNESS TO OPPOSING PARTY AND COUNSEL A. CANNOT: I. RULE: lawyer cannot tamper with evidence or witness e.g., client hands lawyer a laptop and says I used this to steal thousands from my company
III. whether defendant will plead guilty IV. whether defendant confessed V. anything inadmissible at trial B. EXCEPTIONS: a. to protect from other publicity b. dry facts about the case and procedure e.g., how litigation will proceed, scheduling, or warning to public C. SPECIFIC PROHIBITED CIRCUMSTANCE: bad comments about witness, a lawyer may respond in the media to protect the client from publicity not initiated by the client or lawyer i.e., he started it e.g., DA gives a press conference saying your client failed a polygraph, you can respond to the media D. ADVOCATE AS WITNESS I. RULE: lawyer cannot act as advocate in case where lawyer is likely to be a necessary witness II. EXCEPTIONS TO DISQUALIFICATION: a. testimony concerns uncontested matters or formality b. testimony concerns the nature and value of legal services in the case c. withdrawal would cause substantial hardship to client d. if disqualified under this rule, disqualification not imputed to firm but generally need client consent, confirmed in writing, if another lawyer at the firm takes over E. TRANSACTIONS AND COMMUNICATIONS WITH PERSONS OTHER THAN CLIENTS I. TRUTHFULNESS IN STATEMENTS TO OTHERS a. RULES: i. must not knowingly make false statement of material fact or law to third person ii. must disclose material fact necessary to avoid helping client commit crime or fraud (BUT must stay within confidentiality rules) II. COMMUNICATIONS WITH REPRESENTED PERSONS a. RULES: i. when representing a client in a matter, must get counsel's consent before talking to represented person about the matter ii. parties can communicate directly with each other b. ORGANIZATIONS i. RULE: need permission from organizations counsel to talk to… (1) Anyone with authority to obligate organization (2) Anyone whose conduct can be imputed to organization (3) Anyone who supervises or regularly consults with organizations lawyer III. COMMUNICATIONS WITH UNREPRESENTED PERSONS a. RULE: can communicate with unrepresented person, but… i. must not act disinterested ii. must not give unrepresented person legal advice if reasonably possible their interests will conflict with client's IV. HEAVY-HANDED TACTICS a. RULE: cannot do something with no substantial purpose other than to embarrass, delay, or burden someone. V. RECEIVING DOCUMENTS SENT INADVERTENTLY a. RULE: must promptly notify sender so sender can take protective measures
DIFFERENT ROLES OF THE LAWYER
1. CANDID ADVISOR/THIRD PARTY EVALUTION
A. GENERAL
I. Client asks an attorney to evaluate something; II. The attorney’s evaluation will be given to the third party B. RULE: an attorney must… I. give candid advice to a third party II. tell the client before communicating unfavorable information C. LAWYER AS ADVISOR RULE: must be candid, and can give client moral, economic, social, or political advice in addition to legal advice D. EVALUATING CLIENT’S AFFAIRS FOR THIRD PARTY I. RULE: can evaluate client's affairs if doing so is compatible with other responsibilities to client a. No significant risk to client impliedly authorized to disclose to third party b. Materially harmful to client client's informed consent required before disclosure
- LAWYER AS NEGOTIATOR A. RULE: no false statements of material fact in negotiations, but can "puff" e.g., on estimates of price or value, or acceptable settlement limits
- NEUTRALS (mediator, arbitrator, etc.) A. RULE: neutral as to third parties, not clients; must make clear lawyer not representing them
- LAWYER APPEARING IN NON-ADJUDICATIVE PROCEEDING: A. RULE: must disclose if appearing on behalf of client, but need not identify client
- PROSECUTORS A. RULE: prosecutors are subject to a set of constitutionally mandated rules... I. must have probable cause to bring a criminal action; II. cannot take advantage of unrepresented persons; III. must disclose exculpatory information; IV. no subpoena of a lawyer in order to destroy attorney-client privilege; V. like other lawyers, restrictions against talking to media; and VI. required to seek a remedy if new evidence is clear and convincing
- ADVERTISING A. GENERAL RULE: all forms of communications are considered advertising B. RESTRICTIONS ON ADVERTISING I. RULES: a. may not be false or misleading i. e.g., ad says I am not capable of losing; can lead to discipline b. unverifiable self-promotion i. e.g., calling themselves greatest lawyer; yes a problem c. expertise and fields of practice i. a lawyer can state her fields of practice ii. a lawyer can call herself a specialist iii. lawyer cannot call herself a “certified specialist” unless: certified as a specialist by an organization (1) approved by an appropriate state authority, or (2) accredited by the ABA; and (3) name of certifying organization clearly identified iv. patent: if a lawyer admitted to practice before US patent and trademark office, lawyer can call herself a patent attorney
