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Model Rules of Professional Conduct

Terms in this set (64)

Rule 1.1 Competence
Competent Representation = knowledge, skill, thoroughness, and preparation reasonably necessary (must keep abreast of changes in the law)
Rule 1.1 Competence; Knowledge and Skill Factors
1) Relative complexity and specialized nature of the matter
2) General Experience (newly admitted still may be competent)
3) Specialized training/experience
4) Preparation and study the lawyer is able to give the matter
5) Feasible to make a referral to someone who is competent
Rule 1.2 Scope of Representation
1) Lawyer controls the means, client controls the ends.
2) Decisions to settle, enter a plea, waive a jury, or to testify are the client's to decide and the lawyer must abide.
3) Client may authorize lawyer to take action w/o consultation
Rule 1.2 Scope of Representation; Criminal Activity/Fraud
1) Lawyer cannot counsel a client to engage, or assist, in conduct the lawyer knows to be criminal or fraudulent
2) A lawyer may discuss legal consequences of a proposed course of conduct
Rule 1.3 Diligence
Requires:
1) Reasonable diligence and promptness
2) Zealous advocacy
3) Controlled workload (not overworked)
4) Avoid unreasonable delay
Rule 1.4 Communication
1) Promptly inform client of matters where informed consent is required, explain matters to the extent reasonably necessary
2) Reasonable consultation of means for client's objectives
3) Prompt compliance for reasonable requests of information, if not feasible, acknowledge receipt of request and give timeline for response
4) EXCEPTIONS-- A) If client is a group, impossible to inform everyone but still must inform appropriate officials;
B) lawyer may delay transmission of info if client is likely to react imprudently but never withhold info for lawyer's own interests
Rule 1.4 Communication; Negotiation/Litigation
1) Negotiation--if possible a lawyer should review all provisions w/ client
2) Litigation--lawyer should explain general strategy and consult on tactics, but does not have to disclose entire strategy in detail
Rule 1.5 Fees
Factors determining reasonable fees:
1) Time and Labor
2) Opportunity cost to lawyer
3) Fee typical for similar services, in similar location
4) Results obtained
5) Time limitations
6) Length of relationship btwn lawyer/client
7) Experience and reputation of lawyer
8) Type of fee, fixed or contingent
Rule 1.5 Fees; Changes in Fees
Should be communicated to the client
Rule 1.5 Fees; Contingent Fees
1) Must be in writing and signed by client
2) Must clearly define any expenses the client is responsible for
3) Are prohibited for Criminal and Domestic cases
Rule 1.5 Fees; Splitting Fees
1) Cannot be between lawyers of the same firm
2) Only if reasonable and division is proportional to service
3) Client must agree in writing
Rule 1.5 Fees; Advance Payment
Is permitted but lawyer must return all unearned portions to the client; may receive property as a fee as long as it is not subject matter of litigation, however, it will be subject to business transaction requirements (Rule 1.8(a))
Rule 1.6 Confidentiality
A lawyer cannot reveal information relating to the representation of a client without informed consent

EXCEPTIONS: a lawyer may reveal information to the extent the lawyer reasonably believes necessary to:
1) Prevent Death or Serious Bodily Harm
2) Prevent Crimes or Fraud
(where substantial injury to financial interests or property is reasonably certain)
3) Prevent, Mitigate, or Rectify Substantial Financial Injury
4) Securing Legal Advice
(such as to assure compliance with MRPC)
5) Self Defense
(for claims against the lawyer by the client)
6) Compliance with Law
(court orders)
Attorney-Client Privilege
1) Rule of Evidence applying to judicial proceedings
2) Much more narrow than Rule 1.6
3) Protects the following from being disclosed at discovery/trial:
a) any communication oral or written
b) by the client to the lawyer
c) made in confidence (3rd party hearing destroys privilege)
d) for the purpose of obtaining legal advice or assistance
Rule 1.7 Conflicts of Interest: Current Clients
Occurs if
1) representation would be directly adverse to another client OR
2) significant risk of materially limited representation

Remedy by
Withdrawing

Exception where
1) Reasonable belief the lawyer can provide competent and diligent representation
2) Not prohibited by law
3) Not client 1 v. client 2 AND
4) Both clients give informed consent in writing (can be revoked at any time, not necessary for unnamed members of a class action)
Rule 1.8 Conflicts of Interest; Business Transactions
A lawyer shall not
1) enter into a business transaction w/ a client OR
2) knowingly acquire an ownership interest adverse to the client
UNLESS
1) fair and reasonable terms
2) client is advised in writing and given opportunity to seek advice of independent legal counsel
3) client gives informed consent in writing

Does not apply to standard commercial transactions where the lawyer has no advantage in dealing w/ the client
Rule 1.8 Conflicts of Interest; Disadvantage of Client
1) Must not use information relating to the representation of a client to the disadvantage of the client UNLESS client gives informed consent (violates duty of loyalty)

Does not apply where other rules permit:
1) 1.2 Scope (counseling crime or fraud)
2) 1.6 Confidentiality exceptions
3) 1.9(c) Former Clients, where info becomes generally known
4) 3.3 Candor toward the Tribunal
5) 4.1(b) Failure to disclose a fact, therefore, assisting fraud
6) 8.1 Bar application
7) 8.3 Reporting misconduct
Rule 1.8 Conflicts of Interest; Soliciting Gifts
1) Shall not solicit any substantial gift from a client (holiday present or token of appreciation is permissible)
2) Cannot contract for media rights associated w/ litigation
Rule 1.8 Conflicts of Interest; Financial Assistance
1) Shall not provide financial assistance to a client in connection w/ pending litigation

EXCEPTIONS
1) Lawyer may advance court costs
2) If client is indigent, lawyer may pay court costs and expenses
3) Medical exams
4) Evidence expenses
Rule 1.8 Conflicts of Interest; Other Compensation
1) Shall not receive compensation from anyone other than the client (potentially violates 1.7 if client's rep is materially limited by lawyer's financial interest in the fee arrangement)

UNLESS 1) client gives informed consent and 2) does not interfere w/ independent professional judgement
Rule 1.8 Conflicts of Interest; Proprietary Interest in Cause of Action
1) Shall not acquire an ownership interest in the cause of action EXCEPT as part of a contingency fee in a civil case (not permitted in criminal/domestic cases)
Rule 1.8 Conflicts of Interests; Sexual Relations w/ Client
1) Shall not have sexual relations with a client UNLESS it existed before the lawyer-client relationship commenced
(a) must still assess whether competent, diligent, and independent professional representation can be provided

2) This is the only conflict among current clients that does not impute to other firm members
Rule 1.9 Duties to Former Clients
1) Shall not represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client, UNLESS, former client gives informed, written consent

2) Shall not represent another person in the same or substantially related matter, where the lawyer's firm has previously represented a client and the new client's interests are materially adverse to the former client AND the lawyer has obtained material information that is either protected by confidentiality and/or can be used to the disadvantage of the former client
(a) The firm whose disqualification is sought must show the lawyer was not privy to the information (screened)
(b) Should not unreasonably hamper lawyers ability to change firms OR client's ability to change counsel

3) Shall not use information relating to the representation to the disadvantage of the former client, unless information has become generally known
Rule 1.9 Duties to Former Clients; Substantial Relation Test
Same or substantially related matter if
1) it arises from the same transaction or legal dispute OR
2) there's substantial risk that confidential info gained in prior representation would materially advance the new client's position
Rule 1.10 Imputation of Conflicts; General
While with a firm, no lawyer shall
Knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9
UNLESS, conflict is based on a personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm
Rule 1.10 Imputation of Conflicts; End of Obligation
When a lawyer leaves a firm, the firm is not prohibited from representing a client w/ interests materially adverse to those of a client represented by the former lawyer UNLESS
1) Same or substantially related AND
2) Lawyer remaining at the firm has info protected under 1.6 and/or 1.9 that is material to the matter
Rule 1.10 Imputation of Conflicts; Waiver
1) Disqualification of a lawyer through imputation may be waived by the affected client following rule 1.7...
2) Reasonably believe can give competent, diligent rep; not prohibited by law; not C1 v C2; and client gives informed, written consent
Rule 1.10 Imputation of Conflicts; Family Members
1) If two lawyers in different firms are related or married, they may not be on opposite sides of the same case UNLESS client gives informed consent
2) Not imputed to other firm members
Rule 1.11 Special Conflicts: Gov't Officers and Employees
If lawyer formerly served or currently is serving as a public officer/employee of the gov't then he/she shall not represent a client
1) in connection with a matter in which the lawyer participated personally and substantially
2) UNLESS, informed consent is given in writing by the gov't agency
Rule 1.12 Former Judge, Arbitrator, Mediator, or other Third-Party Neutral
1) Shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third party neutral
2) UNLESS, all parties to the proceeding give informed, written consent (also screening exception exists for multi-panel arbitrators/judges)
Rule 1.13 Organization as a Client
Must do 1) what is reasonably necessary in the best interest of the organization, including referring the matter to the highest authority
2) if highest authority doesn't do anything AND lawyer reasonably believes the violation will cause injury to the organization
3) the lawyer may reveal information regardless of 1.6 (whistleblowing)
Rule 1.14 Client w/ Diminished Capacity
1) If capacity to adequately consider decisions is diminished lawyer must try to maintain a normal lawyer-client relationship

2) If reasonably believe the client is at risk of substantial physical or financial harm, he may take reasonable protective action, including
(a) consulting with family members
(b) using surrogate decision making tools (e.g. power of attorney) OR
(c) consulting w/ support groups, professional services, adult-protective agencies, or other entities capable of protecting client
Rule 1.14 Diminished Capacity; Balancing Factors
To decide extent of diminished capacity, consider
1) ability to articulate reasoning for a decision
2) ability to appreciate consequences
3) fairness of a decision, AND
4) consistency of the decision w/ long-term commitments and values of the client
Rule 1.15 Safekeeping Property
1) must keep client property separate from lawyer's own property (separate accounts)
2) keep good records
3) can deposit own funds in a client trust ONLY for paying bank service charges on the account
4) promptly notify and deliver funds received, where client or 3rd party has an interest
5) Use care required by a professional fiduciary
Rule 1.16 Terminating Representation; Disqualification
A lawyer is disqualified or must withdraw if...
1) representation violates these rules or other law
2) lawyer's physical condition materially impairs ability to represent the client, OR
3) lawyer is fired
Rule 1.16 Terminating Representation; Lawyer's choice
A lawyer may withdraw from representation if
1) No material adverse effect to client's interests
2) Client persists in conduct the lawyer reasonably believes is criminal or fraudulent
3) Client insists on taking action the lawyer finds repugnant or has a fundamental disagreement
4) Client fails to fulfill an obligation to the lawyer regarding his services and has been given reasonable warning
5) Representation will result in an unreasonable financial burden to the lawyer
(must reasonably protect client's interests, give notice and time to find new counsel, and provide papers to client)
Rule 1.18 Duties to Prospective Clients
1) What is a prospective client? One who discusses or reasonably expects the possibility of forming an attorney-client relationship with a lawyer (unilaterally communicated info to an attorney w/o reasonable expectation is not the same)

2) Confidentiality, even if no lawyer-client relationship is formed a lawyer's discussion w/ a prospective client must be kept confidential (ln the same way as a former client)

3) Disqualification, where the discussion with the would-be client would make representation of his/her opponent "significantly harmful" UNLESS
(a) both parties give informed consent OR
(b) timely screened (reasonable measures undertaken to avoid exposure to info) and written notice is promptly provided
Rule 2.1 Duties as Advisor
1) Must give candid advice
2) Provide independent professional judgment
3) May also give economic, political, social and moral advice
4) Must make referrals to competent professionals in other fields
5) Give advice when not asked for but required under 1.4
Rule 3.1 Advocate; Meritorious Claims and Contentions
1) Shall not bring frivolous claims or defenses without a basis in law
2) Cannot abuse legal procedure, must make good faith arguments in support of client's position
Rule 3.2 Advocate; Expediting Litigation
1) Must make reasonable efforts to expedite litigation consistent with the client's interests
2) Realizing financial benefits from improper delays is NOT a legitimate interest
Rule 3.3 Advocate; Candor Toward the Tribunal
Shall not knowingly
1) Make a false statement of fact or law to a tribunal
2) Fail to correct a false statement of material fact or law
3) Fail to disclose legal authority in the controlling jurisdiction known to be directly adverse to client and not disclosed by opposing counsel
4) Offer evidence the lawyer knows to be false, reasonable belief that evidence is false is not enough

Duty to disclose client's intended crime or fraud related to the proceeding
Rule 3.4 Fairness to Opposing Party & Counsel
Shall not
1) obstruct a party's access to evidence
2) falsify evidence
3) knowingly disobey an obligation of the court
4) make frivolous discovery requests or fail to make a diligent effort to comply with a request
5) allude to a matter that the lawyer does not reasonably believe is relevant or supported by evidence
6) request a person other than a client refrain from giving relevant evidence
UNLESS 1) an agent of the client and 2) lawyer reasonably believes the person's interests will not be adversely affected by refraining
Rule 3.5 Impartiality and Decorum of the Tribunal
Shall not
1) Seek to influence a judge, juror, or prospective juror by means prohibited by law
2) Communicate ex parte (w/o notice to other party)
3) Engage in conduct intended to disrupt the tribunal
4) Communicate with a juror after discharge of the jury if
a) prohibited by law or court order
b) juror does not want to communicate OR
c) the communication involves misrepresentation, coercion, duress, or harassment
Rule 3.6 Trial Publicity
Shall not
1) make extra judicial statements the lawyer knows or reasonably should know will be disseminated to the public in a manner that will have a substantial likelihood of materially prejudicing an adjudicative proceeding

A lawyer may
2) make statements to counter adverse publicity not initiated by the lawyer or the lawyer's client, but must be limited to the degree necessary to mitigate the adverse publicity
Rule 3.7 Lawyer as Witness
Shall not
1) represent a client in a trial that he/she is likely to be a necessary witness UNLESS
a) the testimony is an uncontested issue
b) relates to the nature and value of legal services renderedOR
c) disqualification would result in substantial hardship to the client

A lawyer may
2) act as an advocate in a trial in which another member of his/her firm is a witness ONLY IF not precluded from doing so under 1.7 or 1.9
Rule 3.8 Special Responsibilities of a Prosecutor
In a criminal case, a prosecutor shall
1) refrain from prosecuting charges not supported by probable cause
2) use reasonable efforts to assure right to counsel
3) not seek to obtain unrepresented waiver of important rights
4) make timely disclosures of exculpatory and mitigating evidence (UNLESS under protective order)
5) not subpoena a lawyer in a grand jury to present evidence of a past/present client UNLESS
(a) does not reasonably believe it is protected by privilege
(b) material is essential to the investigation AND
(c) no other feasible means to obtain
6) refrain from making extra judicial comments that have a substantial likelihood of prejudice
7) notify the court of information about the innocence
Rule 4.1 Transactions w/ Non-Clients; Truthfulness in Statements to Others
In the course of representing a client, a lawyer shall not
1) make a false statement of material fact or law to a 3rd person OR
2) fail to disclose a material fact when necessary to avoid assisting in a criminal or fraudulent act by a client UNLESS disclosure is prohibited by 1.6
Rule 4.2 Transactions w/ Non-Clients; Persons Represented by Other Counsel
May not
1) communicate with another person about the subject of the representation whom the lawyer knows to be represented by counsel UNLESS
(a) that person's lawyer consents or
(b) the communications are authorized by law or court order

* applies even if the represented party initiates
* does not prohibit communication concerning matters outside the scope of the representation
Rule 4.3 Transactions w/ Non-Clients; Dealing w/ Unrepresented Persons
1) may not imply he is disinterested
2) must make reasonable efforts to correct a misunderstanding
3) cannot give legal advice to an unrepresented person, other than the advice to secure counsel, if he/she knows the interests of the person have a reasonable possibility of being in conflict w/ those of his client
4) the lawyer may negotiate terms of a transaction or settle a dispute w/ the unrepresented party
Rule 4.4 Transactions w/ Non-Clients; Respect for Rights of 3rd Persons
May not
1) use means that have no purpose but to embarrass, delay, or burden a third person

Must
2) promptly notify sender when receiving a document related to the representation he knows was inadvertently sent (whether the lawyer must return the document is a matter of law)
Rule 5.1 Responsibilities of a Partner or Supervisory Lawyer
1) Shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct

2) A lawyer shall be responsible for another's violation IF
(a) the lawyer orders or, w/ knowledge of the specific conduct, ratifies the conduct OR
(b) the lawyer is a partner or has authority and knows of the conduct when its consequences can be avoided or mitigated but fails to take action
Rule 5.2 Responsibilities of a Subordinate Lawyer
A lawyer is bound by the Rules of Professional Conduct even if he is acting at the discretion of another
Rule 5.3 Responsibilities Regarding Non-lawyer Assistants
1) the firm must make reasonable efforts to ensure they follow the Rules
2) same rules apply for when a lawyer is responsible for the conduct of a subordinate lawyer (a) orders the conduct OR (b) direct authority and knows of conduct but fails to take action
Rule 5.4 Professional Independence of a Lawyer
A lawyer should not share fees with a non-lawyer
Rule 5.5 Unauthorized Practice of Law
1) Shall not practice in another jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so

2) A lawyer who is not admitted to practice in this jurisdiction shall not hold out to the public as being admitted, establish an office, or otherwise establish a presence in this jurisdiction for the practice of law

3) Lawyers admitted in other jurisdictions may provide legal services on a temporary basis
Rule 6.1 Public Service; Voluntary Pro Bono Service
Every lawyer has a responsibility to provide legal services to those unable to pay
Rule 6.2 Public Service; Accepting Appointments
Shall not avoid appointments by a tribunal to represent a person except for good cause such as
1) where representation is likely to result in a violation of these Rules or other law
2) where representation is likely to result in an unreasonable financial burden on the lawyer
3) where the client is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client
Rule 7.1 Communication Concerning a Lawyers Services
1) Cannot make false or misleading communications about lawyer's service. A communication is Misleading if
(a) it contains a misrepresentation of fact or law
(b) it omits a fact necessary to make the whole statement not materially misleading OR
(c) there is a substantial likelihood it will lead a reasonable person to formulate an incorrect conclusion

2) Ads creating unjustified expectation that the same results could be obtained for other clients AND comparing rates may also be misleading
Rule 7.2 Advertising
1) A lawyer may advertise services through written, recorded, or electronic communication.
2) Must include the name and address of at least one lawyer responsible for the content
3) A lawyer may pay publicists,PR people, business development staff, and website designers
4) May not give anything of value to a person for recommending the lawyer's services EXCEPT
(a) to pay reasonable costs of ads
(b) to pay for a law practice
(c) in referral agreements w/ a non lawyer where the agreement is non-exclusive and the client is informed of the referral agreement
5) Referral arrangements should be reviewed periodically and are subject to the rules against false/misleading communications
Rule 7.3 Direct Contact w/ Prospective Clients
A lawyer may not
1) in person, live telephone, or real time electronic contact, solicit employment from a prospect when a significant motive is the lawyer's pecuniary gain UNLESS the person contacted is
(a) also a lawyer OR
(b) has a family or close personal/professional relationship

2) even if a lawyer or family member/close relationship, no communication is allowed IF
(a) prospect makes it known that he does not not want the solicitation OR
(b) involves coercion, duress, or harassment
Rule 7.4 Communication of Fields of Practice and Specialization
1) a lawyer may communicate the fact that he/she does or does not practice in a particular fields of law

2) a lawyer may not state or imply that the he/she is a specialist in a particular field UNLESS
(a) the lawyer has been certified by an appropriate organization AND (b) the name of the certifying organization is clearly identified
Rule 8.1 Bar Admission & Disciplinary Matters
An applicant for admission or a lawyer in connection with a bar admission may not
1) make a false statement of material fact OR
2) fail to disclose a fact necessary to correct a misapprehension (except if covered by 1.6)
Rule 8.3 Reporting Professional Misconduct
Must inform the professional authority when he/she
1) knows that another lawyer has committed a violation of the Rules
2) which raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer
Rule 8.4 Misconduct
It is misconduct for a lawyer to
1) Violate these Rules or knowingly assist another to do so
2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer
3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation
4) engage in conduct prejudicial to the administration of justice OR
5) state or imply an ability to improperly influence a government official
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