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ABA Model Rules, case names, and explanations
Terms in this set (92)
Four Other Sources of Ethics
(1) Ct. opinions; (2) ABA & state bar ethics opinions; (3) Rest. 3rd "Law Gov. Lawyers"; and (4) fed. agencies regulate work done b4 them.
"Ethics" v. "Professionalism"
"A common calling in the spirit of public service." [Ethics] are certain behaviors & modes of conduct; [Professionalism] is the promotion of a certain reputation for your profession, advancing the reputation of the profession and yourself.
Who Does ABA Regulate?
ONLY law schools. The ABA <<MODEL>> Rules are adopted by state bars.
Regulates the conduct of lawyers APPLYING to bar
--> "Shall not knowingly mislead & shall not fail to disclose fact necessary to correct misapprehension."
Doesn't require disclosure of info protected under 1.6
; broader than atty-client privilege. "Shall not reveal info re representation unless client consents or impliedly authorized."
Persists after relationship ends!
Atty-Client Privilege: 4 Factors
Rest. §68 says: protects "(1) a communication, (2) made between privileged persons, (3) in confidence, (4) for the purpose of obtaining or providing legal assistance for the client"
What is a "client?"
A person, public officer, or corp, etc. who gets legal services or consults a lawyer with a view of obtaining legal services
What is a "lawyer?"
A person who is authorized, or REASONABLY BELIEVED by the client to be authorized, to practice law.
Who can claim Atty-Client Privilege?
"The client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization." Also, lawyer may claim, but only on behalf of client.
Exceptions: MAY reveal for purpose of: (1) preventing physical injury to others; (2) preventing financial harms; (3) securing legal advice; (4) self-∆; and (5) compliance with law
Atty-Client Privilege: What does it protect?
, NOT facts. Privilege belongs to the client, who can waive. Waiver need not be intentional. Does NOT expire upon death!
Voluntary Pro Bono
: A lawyer
(permissive) aspire to render at least 50hrs p/y, maj. for free. [ What Counts ] - free or substantially reduced-cost services; participation in activities that improve law or legal profession. ADDITIONALLY, lawyer should contrib. $ to legal clinics, etc.
: A lawyer
seek to avoid appointment to rep. indigent, except for good cause.
Rule 6.2 (pt. (b), exceptions)
Can avoid when: (1). rep'ing the client is likely to result in violation of the rules; (2). rep'ing the client is likely to result in an unreasonable $ burden; or (3). client or cause is so repugnant likely to harm atty-client relationship or lawyer's ability to rep. [ not getting paid reasonable amount may interfere with indigent's right to counsel because low fee discourages atty from expending extra time and effort ]
Determines what is professional misconduct.
(1) to violate or attempt to violate Rules; (2) to commit criminal act; (3) to engage in fraud, dishonesty or misrep.; (4) engage in conduct prejudicial to admin. of justice; (5) to state or imply ability to influence gov. official; and (6) to aid judge or judicial officer in violating Rules.
(McCarthy rule): lawyer who KNOWS of another's violation of rules that raises a
as to the lawyer's honesty, trustworthiness or fitness must report.
refers to the conduct, not the evidence.
? Can be disciplined in state where admitted AND in state where committed. Choice of law is in juris. where conduct occurred, or if before a tribunal, where that tribunal is.
Practicing in Other Juris.
: May provide temporary service in an unlicensed state when: (1) assoc. w/local lawyer; (2) permission of ct.; (3) mediation or arbitration arising out of practice in licensed state; (4) other temp. practice arising out of reasonably related practice in home state.
: "A lawyer shall provide competent representation to a client. Requires legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
When does a prospective client become a client?
When a person seeks legal services AND the lawyer manifests consent OR the lawyer fails to manifest lack of consent AND person
Atty-Client Relationship: 3 Relationships in 1
Combines (1.) Agency; (2.) Contractual; and (3.) Fiduciary.
"Real Client Syndrome"
When dealing w/multiple clients, client whose fee is paid by a 3p, trustees, or trade associations, tendency to think of one person as the "real client."
Representing an Organization: Who's Your Client?
When representing an organization, client is the entity as a whole. [R 1.13]
Organization as Client
: (a) "A lawyer employed or retained by an organization (corp., partnership, union, trade assoc., etc.) represents the organization acting through its duly authorized constituents." (g) May also rep. individuals w/in organization IF they reasonably rely. --> thus, (f) "corporate Miranda warning," i.e. tell client you rep. entity.
Duties to Prospective Client
: (b) can't use or reveal info about/from a prospective client except under R. 1.9; (c) shall not represent a client if a current client has interests materially adverse to prospective client.
What is a "Prospective Client?"
(R. 18) Someone who discusses w/a lawyer the
of forming a relationship. [Tips]:
check for conflicts. Limit info received from p.c. to only that needed to check for conflicts. Send an engagement or denial letter!
Engagement Letters: What Goes in Them?
Six (6) Things
: (1). scope; (2). fees; (3) waiver of potential conflicts (previous reps); (4). client identity; (5) client's duties; (6) confidentiality issues
Who's the Boss?
: "A lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized," e.g. client says you can settle for anything over $20k;
counsel to commit fraud or crime.
: (a) Lawyer shall not charge or agree to unreasonable fee. (b) Scope of fees must be communicated, preferably in writing, b4 or w/in reasonable time of starting rep. CAN'T have "non-refundable" fees. (c)
in writing signed by client & state how det. fee & who gets what.
How do you know if a fee is reasonable?
Factors: (1) nature of matter; (2) opportunity costs; (3) local custom; (4) stakes for the client; (5) time limitations (i.e. emergencies); (6) nature & length of prof. relationship; (7) exp., reputation, & ability of lawyer; & (8) whether fee is fixed or contingent. [ Can't consent to excessive fee, BUT consent is factor for det. reasonableness ]
If client had a free & informed choice b4 entering into agreement, and fee is w/in range customarily charged, it is almost certainly reasonable.
P.I. & Contingent Fees: 3 Questions
Three questions must be answered b4 will know if charging % is fair and if so, what %: (1). is there subs. q. of liability or just q. of damages? (2). likely to settled or tried? (3). is recovery likely to be small or big?
: A lawyer shall act with reasonable diligence & promptness in representing a client, i.e. don't take on so many clients that you neglect others, return calls right away, not missing filing deadlines, etc.
What Happens to Your Fee if You're Fired or Quit?
fired w/out cause
, entitled to a reasonable amount for services performed, but NOT the whole contingent fee. If you
, you DO NOT get anything (in most juris.).
When Can't You Charge a Contingent Fee?
[R 1.5] (1) In D.R. cases or (2) Criminal cases.
When Can You Share Fees w/Another Firm?
(R 1.5) You can share fees w/a
(NEVER non-lawyer) in another firm IF: 1. division is in proportion to services performed by each lawyer; 2. the client agrees w/the arrangement; and 3. the total fee is reasonable, OR each lawyer takes
: (a) keep lawyer & client funds separate; (b) may deposit own $ in client's acct
for sole purpose
of paying charges; (e) if property/$ disputed, must deliver all not disputed.
Atty-Client Rel. - "the Four Cs":
Duties owed to even a quasi client:
: giving knowledgeable, skillful, thorough, and effective representation [R. 1.1]; (2)
: Inform client of all facts client would need to know 2 make informed decisions [R 1.4]; (3)
[R 1.6]; (4)
[R 1.7, 1.8]
Declining or Terminating Relationship
(a) the lawyer
w/draw; (b) lawyer
w/draw; (c) exceptions
When can a client fire you?
Clients can fire lawyers for pretty much any reason, w/few exceptions. In lit., client must seek permission from ct. (b/c undue delay). MAY be limited from firing in-house lawyer (whistleblower statutes)
When can you fire client?
Can fire for any reason
so long as
does not create a "material adverse effect on the interests of the client" [R 1.16 (b)]. +, may fire, even if would hurt client, in 6 cases: (1) client does something involving lawyer's services that lawyer reasonably believes is criminal or fraudulent; (2) client has used lawyer's services to do crime or fraud; (3) client ax is repugnant or fundamentally disagreeable; (4) client refuses to fulfill
duties; (5) unreasonable financial burden on lawyer or rendered unreasonably difficult by client; or (6) other good cause.
Atty-Client Rel. - How do you make sure it's over?
Take affirmative steps such as: (1) write client a letter & (2) return any materials client is entitled to possess.
it's over when client
believes it is, IF belief is
When must you w/draw?
If continuing will result in violation of Rules or law, e.g. conflicts. Also, if impaired by physical or mental disability in a way that effects competence. [R 1.16(a)(2)]
"Hot Potato Doctrine"
You can't fire a client just so you can take on a better client, which would otherwise be prohibited by Rules. Termination will be ineffective and will be treated as conflict under [R 1.7, 1.8, or 1.9] .
Clients w/Diminished Capacity
: (a) Lawyer shall, as far as reasonably possible, maintain normal lawyer-client rel. (b) Where lawyer reasonably believes dim. cap., & substantial risk of harm if no ax. taken, may take reasonably necessary protective axs, e.g. appoint guardian ad litem.
: (a) Lawyer has duty to keep a client reasonably informed, provide info. when requested, and give the client sufficient info. so can make decisions about rep. Don't need to tell client everything, e.g. rescheduling depo. from tues. to thurs.
In rep'ing a client, lawyer shall exercise indep. prof. judgment & render
advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social & political factors, that may be relevant to client's situation.
: A lawyer can't talk to persons who are involved in a matter, if the lawyer knows those persons are rep'd by counsel in connection w/the matter, unless consent
by person's lawyer
. Applies to persons on same side of suit, too. Can't use an agent to do your dirty work, either.
What employees of a corp. are protected under anti-contact rule?
3 types: (1) those whose acts are binding on the corp., (2) those whose acts or omissions can be imputed to the corp. for liability, (3) agents who implement the advice of counsel.
should avoid contact w/employees who consult w/entity's lawyer, or who were directly involved w/liability creating event.
protected ONLY when "extensively exposed" 2 confidential client info.
: (a) business w/client can be ok, BUT: (1) lawyer must fully disclose terms of transax in writing to client, in lang. can be expected to understand; (2) "stranger rule" - must warn client of risks that impartial lawyer would detect; (3) must give opportunity for client to seek advice from 3p lawyer; & (4) must be fair & reasonable. [Also covers interest in lit. & advancing $]
Representing Entities & Groups: what is the test to determine whether R. 1.6 or 1.13 applies?
Depends upon the reasonable expectation of the constituents.
Ergo, if, under the circs., it's reasonable for A to believe that L represents A as indiv., A is L's client & 1.6 applies (L can't tell B what A said). If L has made clear
(p'ship) is client, then L can tell B what A said b/c 1.13 applies.
"Atty-client privilege" or "confidentiality?": which rule applies when?
Atty-client privilege is evidence rule that applies
compulsion of law, and is
than ethical confidentiality. Confidentiality (R 1.6) applies
Malpractice - What are the four (4) elements?
(1) DUTY - may be owed to clients or non clients -> anyone injured by lawyer's neg., e.g. beneficiary of a botched trust; (2) BREACH - custom is dispositive of compliance w/SofC, violation of ethics rules not determinative; (3) CAUSATION - "but for lawyer's neg., result would have been different"; and (4) DAMAGES must flow "directly & naturally" from neg. [Can't prospectively limit liab. 4 malpractice -> 1.8]
What is the "crime-fraud exception" to atty-client privilege?
Comm. not privileged when client communicates intention to commit
crime or fraud.
apply even in cases where ax is not technically crime or fraud, but misrep. or false statement.
Protects documents or other tangible things (but not facts) that were prepared in
anticipation of litigation
. (Hickman v. Taylor)
"Ordinary" v. "Opinion" W.P.
[Opinion w.p.] consists of
mental impressions of a lawyer
, all else is "ordinary." Opposing lawyer may get ordinary w.p. upon showing of "substantial need & inability to obtain subs. equivalent," whereas opinion is practically never discoverable.
What can you do if a client doesn't pay?
(1) If you got paid up front, can keep any disputed funds in trust acct. [R 1.15 (e)]; (2)
- fee paid from recovery - file mx w/the court to enforce lien; (3) sue for funds -> usually not worth it b/c countersuit will be for malpractice; or (4) security interest in property -> but see R 1.8
Conflicts w/Current Clients
- the lawyer has a conflict if: (a)(1) "the representation of one client [i.e., the prospective new client] will be
to another client," or (2) "there is a sig. risk that rep. of one or more clients will be
by lawyer's resp. to other client, former client, or 3p or interest of lawyer." [May consent
Duties to Former Clients
When MAY you disclose confidential info. relating to future phys. harm?
If the harm is (1) reasonably certain to occur, and (2) involves death or
bodily harm, then the lawyer
disclose info. (3) to the extent the lawyer reasonably believes necessary to prevent the harm.
When MAY you disclose confidential info. relating to $ harm?
If to prevent, rectify or mitigate substantial financial injury to a 3p caused by client's crime or fraud,
as long as
the client used the lawyer's services to commit crime or fraud.
disclose where lawyer's services not used!
Candor to Tribunal
: Lawyer must not
make false statement of fact or law to ct. Can't stand by while client testifies falsely -> warn the client b4, and try to rectify after (if material). Must disclose adverse authority [ 3.3(a)(2) ] [
failing to disclose running of S of L NOT subj. to this rule, b/c affirmative ∆ ].
Ex Parte Contacts w/Judges & Jurors
Can't (a) seek to influence judge or juror using means prohibited by law; (b) communicate ex part with them; (c) communicate w/juror or p.j. after discharge; (d) engage in conduct intended to disrupt tribunal
What does "ex parte" mean?
Outside the presence of opposing party, e.g. can't file a paper w/court and not copy other atty.
Candor to Others
: While rep'ing client lawyer shall not knowingly: (a) make false statement of material fact/law to 3p; or (b) fail to disclose material fact to 3p when disclosure necessary to avoid aiding criminal or fraudulent act, unless disclosure prohibited under 1.6.
Upjohn Co. v. U.S.
Rejects the "control group" test for det. who can assert atty-client privilege w/in company. When lawyers act as managers of firm, comm. w/each other not privileged b/c primary purpose not legal rep. [Nesse v. Shaw Pittman]
"Under generally accepted conventions in
, certain types of statements ordinarily are not taken as statements of material fact," e.g. "my client won't settle for anything less than $100k"
Prohibits bringing claims, defending lawsuits, or pressing issues w/in litigation w/out a non-frivolous basis. BUT does not prevent novel arguments against established law.
Can't "unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act,"
i.e. prohibits frivolous discovery requests & objections.
Special responsibilities of a prosecutor
: duty to
, must aim for just result, (d) must disclose material exculpatory evidence to ∆; (b) advise of right to counsel; (e) should subpoena evidence that is privileged
Can't have sexual relationship w/current client.
Doesn't have to be same litigated matter. Don't have to be on the same side of the "v," e.g. two clients fighting over how to allocate risk in a tort suit in which both are ∆s. MAY still be consentable.
Arises out of a substantial risk that representation will be materially limited, e.g., Lawyer L has secret from client A that would be helpful in his representation of client B. Because L can't use or disclose A's secret to B, if L
that secret such that not using it would materially effect his rep. of B -> CONFLICT
3 Nonconsentable Conflicts
Prohibited by law
; (2) client v. client in same litigation (even if you represent each on separate, unrelated matters); (3) objectively unreasonable
Has there been adequate, informed consent?
. Must: (1) the interests of the lawyer & client giving rise to conflict; (2) contingent, opx, & tactical considerations and alt. courses of ax that would be foreclosed or made less readily available; (3) effect of the rep. or the process of obtaining other clients' informed consent upon confid. info. of client; (4) any material reservations that a disinterested lawyer might harbor; and (5) consequences & effects of a future w/drawal of consent by any client, including the fact that lawyer may have to w/draw.
: (a) one lawyer's conflict imputes to lawyers in firm.
"(a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than client if lawyer reasonably believes that making the evaluation is compatible with other aspects of
the lawyer's relationship with client."
: "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client."
: Can't tell the public certain things about your client. (See the rule, I'm not typing it)
Contact w/unrep'd person
: lawyer shall not state or imply lawyer is disinterested. When lawyer knows or reasonably should know that unrep'd person misunderstands lawyer's role, lawyer shall make reasonable efforts to correct. Lawyer shall not give legal advice to an unrep'd person, other than advice to secure counsel
Respect for rights of 3ps
(a) In representing client, a lawyer shall not use means that have no sub. purpose other than to embarrass, delay, or burden 3p, or use methods of obtaining evidence that violate legal rights of 3p. (b) Lawyer who receives document relating to the rep. of lawyer's client & knows or reasonably should know that document was inadvertently sent shall promptly
sender. [NO duty to
Can't pass the buck
: responsibilities of sub. lawyer: (1) bound by Rules notwithstanding acted at the direction of another person; and (2) does not violate Rules if acts in accordance w/ a supervisory lawyer's
reasonable resolution of an arguable question of professional duty
Resp. regarding non-lawyer assistants
"Solicitation" or "Advertising?"
In general, "advertising" refers to nontargeted, mass-media comm. that reach a broad audience, whereas "solicitation" is targeted and personal. NOT ALL DIRECT MAIL is solicitation, though! Advertising generally okay if not deceptive -> case by case eval.
Can't lie about services
: must contain no material misreps. of law or fact, or omit facts. This includes guaranteeing or implying results, or unsubstantiated comparisons.
Can't lie about firm name
: Be careful about misrepresenting size or experience. Regs letterhead too.
Can't lie about specialization
Advertising by media
: can advertise, but can give nothing of value for services. Can have referral agreement if not exclusive, not paid for. All comm.
name and address of at least one resp. lawyer. Can't give anything of value for recommending services.
: shall not in person, live telephone call, or real time electronic contact solicit professional employment unless family or services are free. Can't send by mail if know don't want to be contacted.
Responsibilities of partners, managers, and supervisory lawyers
: must make reasonable efforts to have system for teaching Rules, and to ensure subord. lawyers follow Rules, and will be responsible for another's violation if directed or with specific knowledge allows violation.
: Can't represent someone in the same or substantially related matter as participated in as public officer unless gov (client) consents
"shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to drect or regulate the lawyer's prof. judg. in rendering.
Can't make restrictive covenants
: except agreement for benefits upon retirement.
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