Law School: Liberty University School of Law
Course ID: LAW 565
Term: Spring 2019
Instructor: Prof. Thompson
My Grade Earned: B
- Ethical Problems in the Practice of Law by Lisa G. Lerman & Philip G. Schrag
- 3rd edition (2012)
- Hardcover (ISBN: 9781454803010)
- 3rd edition (2012)
|Rule #||Rule Topic||Tab Color||Page #|
|1.2||Scope of Representation||Purple||8|
|1.7||Conflict of Interest||Purple||19|
|1.8||Transactions with Clients||Purple||__|
|1.10||Imputed Conflict of Interest||Purple||34|
|3.4||Fairness to Opposition||Purple||59|
|3.5||Influencing Judges and Juries||Purple||61|
|3.7||Lawyer as a Witness||Purple||64|
|4.2||Contacting Represented People||Purple||69|
|4.3||Contacting Unrepresented People||Purple||70|
|4.4||Evidence From Others||Purple||70|
|5.4||Nonlawyer Fee Sharing||Purple||74|
|5.5||Unauthorized Practice of Law||Purple||79|
|5.6||Restricting Right to Practice||Purple||79|
|7.2||Specific Advertising Rules||Purple||__|
Rules Not On Final
Rules 1.12, 2.3, 2.4 4.3, 5.7, 6.1, 6.3, 6.5, 7.5, 7.6, & 8.5 are not on the final.
Morals are one's internal beliefs of right and wrong.
True morality is determined by God, but this often does not align with people's personal morals or legal ethical standards.
Ethics are external rules imposed upon upon people to make them behave more morally.
Many things are immoral but ethical. Some things are unethical but still moral.
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
One can be competent in a matter he does not have training or experience in.
- A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
- While usually only followed if there is a possibility of harming the client, the letter of the rule basically prevents sharing anything ever at all.
- Comment 4 also says that it prohibits revealing information that do not reveal protected information but could reasonably lead to the discovery of such information.
- Comment 20 says that this even applies to former clients.
- A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
- to prevent reasonably certain death or substantial bodily harm;
- to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
- to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
- to secure legal advice about the lawyer's compliance with these Rules;
- to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
- to comply with other law or a court order; or
- to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
- A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
If a client is currently engaged in a crime or fraud and using a lawyer's assistance therefor, Rule 4.1 requires disclosure, trumping Rule 1.6.
In the course of representing a client a lawyer shall not knowingly:
- make a false statement of material fact or law to a third person; or
- fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category . . . .
- Lying about what your client will accept in negotiations is not unethical under the rules.
A claim for which the statute of limitations has run can still be negotiated without disclosure.
A lawyer should also not lie to his client. This is probably prohibited by Rule 8.4(c) and/or Rule 1.4.
A lawyer and a client can agree to impose higher standards of conduct.
Under Rule 1.2(c), they can also agree to
limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
- However, a lawyer may not waive the duty of competent representation.
Except for decisions allocable under the ethical rules, an attorney's duty is to take professional responsibility for conduct of the case after consulting with his client. The client establishes the goals, the attorney establishes the means. A client has an absolute choice whether to accept any plea or settlement offers, demand a jury trial, or a third thing we haven't covered yet.
- When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
- When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
- Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
Most lawyer-client relationships end when all the relevant work has been completed.
At this time, according to Rule 1.16(d) the lawyer must return any
papers and property to which the client is entitled as well as any unearned payment, although most states allow liens over some documents for unpaid bills.
A lawyer still has a duty to protect the confidences of former clients.
Under Rule 1.16, a lawyer may be fired at any time, must withdraw if ethics require, and may withdraw for good cause under Rule 1.16(b), most broadly if he can do so
without material adverse effect on the interests of the client but also if he stops being paid, the case
will result in an unreasonable financial burden on the lawyer, or the client makes representation
If a lawyer has already filed suit for a client, he generally cannot withdraw without the court's permission.
Conflict of Interest
Concurrent Conflict of Interest
- . . . . A concurrent conflict of interest exists if:
- the representation of one client will be directly adverse to another client; or
- there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Taking inconsistent positions creates a conflict of interest if there is a significant risk that it will materially limit the representation of one client by the precedent established for another.
Only economic conflicts between clients does not constitute a conflict of interest.
- Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
- the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
- the representation is not prohibited by law;
- the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
- each affected client gives informed consent, confirmed in writing.
Confirmed in writing does not mean it has to be signed.
A lawyer may represent both parties in a transaction as long as it comports with Rule 1.7.
Whether one can represent both a husband and a wife in a divorce depends on the state.
- A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
- Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
- A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
- When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
- both the affected client and the prospective client have given informed consent, confirmed in writing, or:
- the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
- the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
- written notice is promptly given to the prospective client.
- A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
- If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
- Except as provided in paragraph (d), if
- despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
- the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
- Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
- A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.
- In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing.
- A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.
A majority of courts that have considered the issue have found that subsidiaries and the parent corporation are one for the purpose of conflicts of interest.
- A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
- A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
- whose interests are materially adverse to that person; and
- about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
- A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
- use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
- reveal information relating to the representation except as these Rules would permit or require with respect to a client.
The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question. Rule 1.9 Comment 2.
Based on whether there
is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. Rule 1.9 Comment 3.
- A lawyer cannot just not ask important questions to avoid conflicts.
A firm similarly cannot represent a client whose interests are materially adverse to those of a client represented by a former employee if it is a same or substantially related matter as the former if any lawyer remaining in the firm has confidential information material to the matter. Rule 1.10(b)
- (This seems to be completely covered by Rule 1.9(a).)
Imputed Conflict of Interest
A firm is treated as a single lawyer under Rule 1.10.
- "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.
What constitutes a firm depends on the specific facts. It can exist if they present themselves in a way that suggests that or if they conduct like a firm.
A firm can have several offices in different cities, and they will all be one firm.
A firm can exist for some purposes, like prohibiting representing both sides, but not for other purposes, like attribution of knowledge.
A conflict is not imputed if the lawyer causing the conflict is timely screened and not paid directly therefrom.
the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. Rule 1.0(k).
Screening is permitted in six situations:
- When a lawyer has conflict from his association with a prior firm (Rule 1.10(a)(2))
- When a lawyer has a conflict from a personal interest that does not have a significant risk of materially impacting the other lawyers' representation (Rule 1.10(a)(1))
- When a former nonlawyer employee has become a lawyer (Rule 1.10, Comment 4)
- When a government lawyer entered a firm (Rule 1.11)
- When a lawyer received confidential information from a prospective client who did not become a client (Rule 1.18)
- When a lawyer is disqualified because he was a judge, law clerk, arbitrator, or something similar. (Rule 1.12)
When a screening begins, a letter must be sent to the former client informing them of the screening procedures and that they have the right to challenge them in court.
A firm can still get a waiver under Rule 1.7.
Former Government Lawyer
Former government lawyers are not bound by Rule 1.9(a).
Rule 1.9(c)'s prohibitions against
us[ing] information relating to the representation to the disadvantage of the former client or
reveal[ing] information relating to the representation except as these Rules would permit or require with respect to a client. Rule 1.11(a)(1).
A former government lawyer also
shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. Rule 1.11(a)(2).
- As used in [Rule 11], the term "matter" includes:
- any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
- any other matter covered by the conflict of interest rules of the appropriate government agency.
A former government lawyer who gained confidential government information about a person at such time
may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. Rule 1.11(c).
Confidential Government Information
Confidential government information is
information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. Rule 1.11(c).
Former government lawyers running afoul of Rule 1.11 can still be screened. Rule 1.11(b).
- [A current government lawyer] shall not:
- participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
- negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
Judges must perform their duties "fairly and impartially."
ABA Rule 3.6 prohibits judges from participating in organizations that discrimination.
Judges must avoid most communications about a matter unless all parties thereto are present.
Judges may be disqualified if the judge's impartiality might reasonably be questioned.
Former judges shall not represent anyone in connection with a matter he personally participated in. Rule 1.12(a).
Former judges shall not negotiate for employment with any person participating as a lawyer in a matter he personally participated in. Rule 1.12(b).
Unsecured promissory notes violate Rule 1.8.
Lawyers' fees must be reasonable. Rule 1.5(a).
- A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
- the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
- the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
- the fee customarily charged in the locality for similar legal services;
- the amount involved and the results obtained;
- the time limitations imposed by the client or by the circumstances;
- the nature and length of the professional relationship with the client;
- the experience, reputation, and ability of the lawyer or lawyers performing the services; and
- whether the fee is fixed or contingent.
- The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
- A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
- A lawyer shall not enter into an arrangement for, charge, or collect:
- any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
- a contingent fee for representing a defendant in a criminal case.
- A division of a fee between lawyers who are not in the same firm may be made only if:
- the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
- the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
- the total fee is reasonable.
Charging in blocks and rounding up is okay. Purposefully padding time and abusing such a system is unethical.
Double-billing is always unethical. If something affects multiple clients, split the time between them.
Travel time is billable. (Still never double-billable, even if working for someone else while traveling.)
An unsecured note is always unreasonable.
Gifts are okay, as long as they are unsolicited.
You can only get stuff from a will you draft if you are related.
- A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.
- A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.
- A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
- Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
- When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
A mortgage does not create a legal interest in the money from a judgment or settlement.
If a client makes a purchase and represents that the purchase will be made out of proceeds (you want it in writing), it creates a legal interest and the creditor must be paid out of the proceeds by the lawyer.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Sanctions for Frivolous Claims
- Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
- it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
- the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
- the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
- the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
It is not unethical to file claims for which the statute of limitations has run, as that is an affirmative defense.
The prosecutor in a criminal case shall:
- refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
- make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
- not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
- make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
- not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
- the information sought is not protected from disclosure by any applicable privilege;
- the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
- there is no other feasible alternative to obtain the information;
- except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
- When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
- promptly disclose that evidence to an appropriate court or authority, and
- if the conviction was obtained in the prosecutor’s jurisdiction,
- promptly disclose that evidence to the defendant unless a court authorizes delay, and
- undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
- When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
- A lawyer shall not knowingly:
- make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
- fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
- offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
- A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
- The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
- In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
You must disclose any legal authority known to be adverse to your position. Rule 3.3(a)(2).
You can never let a client or witness perjure himself. If you are only reasonably sure but do not know that he intends to lie, you may or may not let him testify, unless it is a criminal trial. In a criminal trial, you must always let him testify unless you know he intends to lie. Rule 3.3(a)(3).
If your client or witness does commit perjury, you must disclose it to the court. Rule 3.3(a)(3).
This duty extends to the conclusion of the case. Rule 3.3(c).
A lawyer has knowledge if he can infer the facts.
A lawyer shall not:
- 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;
- falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
- knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
- in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
- in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
- request a person other than a client to refrain from voluntarily giving relevant information to another party unless:
- the person is a relative or an employee or other agent of a client; and
- the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
- In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
- A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.
. . . . [T]his Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person.
Influencing Judges and Juries
A lawyer shall not:
- seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
- communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
- communicate with a juror or prospective juror after discharge of the jury if:
- the communication is prohibited by law or court order;
- the juror has made known to the lawyer a desire not to communicate; or
- the communication involves misrepresentation, coercion, duress or harassment; or
- engage in conduct intended to disrupt a tribunal.
- A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
- Notwithstanding paragraph (a), a lawyer may state:
- the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
- information contained in a public record;
- that an investigation of a matter is in progress;
- the scheduling or result of any step in litigation;
- a request for assistance in obtaining evidence and information necessary thereto;
- a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
- in a criminal case, in addition to subparagraphs (1) through (6):
- the identity, residence, occupation and family status of the accused;
- if the accused has not been apprehended, information necessary to aid in apprehension of that person;
- the fact, time and place of arrest; and
- the identity of investigating and arresting officers or agencies and the length of the investigation.
- Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
- No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
Lawyer as a Witness
- A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
- the testimony relates to an uncontested issue;
- the testimony relates to the nature and value of legal services rendered in the case; or
- disqualification of the lawyer would work substantial hardship on the client.
- A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
Even if you are not in a trial but just representing someone in some other type of hearing, you have to disclose it and comply with the rules about lying clients, evidence, and influencing judges and juries.
Nonlawyer Fee Sharing
- A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
- an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
- a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
- a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
- a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.
- A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
- A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
- A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
- a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
- a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or
- a nonlawyer has the right to direct or control the professional judgment of a lawyer.
Restricting Right to Practice
A lawyer shall not participate in offering or making:
- a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
- an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
Contacting Represented People
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization's lawyer is not required for communication with a former constituent. If the constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4.
Contacting Unrepresented People
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
- Truthful statements that are misleading also prohibited by this rule. Comment 2.
- (If it leads a reasonable person to form a conclusion for which there is no reasonable factual foundation.)
- A lawyer may communicate information regarding the lawyer’s services through any media.
- A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:
- pay the reasonable costs of advertisements or communications permitted by this Rule;
- pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;
- pay for a law practice in accordance with Rule 1.17;
- refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:
- the reciprocal referral agreement is not exclusive; and
- the client is informed of the existence and nature of the agreement; and
- give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.
- A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
- the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and
- the name of the certifying organization is clearly identified in the communication.
- Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.
- “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.
- A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:
- person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or
- person who routinely uses for business purposes the type of legal services offered by the lawyer.
- A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:
- the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
- the solicitation involves coercion, duress or harassment.
- This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.
- Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
- A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.
- A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation.
- A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation.
- A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
- the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and
- the name of the certifying organization is clearly identified in the communication.
Unauthorized Practice of Law
- A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
- A lawyer who is not admitted to practice in this jurisdiction shall not:
- except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
- hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
- A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
- are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
- are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
- are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
- are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
- A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
- are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
- are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
- For purposes of paragraph (d):
- the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,
- the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this Rule by, in the exercise of its discretion, [the highest court of this jurisdiction].
- Rule 7.1(d) allows corporate lawyers to practice in other jurisdictions as long as the other jurisdiction allows it.
Pro Hac Vice
Pro hac vice, Latin for "for this turn", is where a state allows a lawyer not licensed to practice in that state to practice for a specific case.
Pro bono (Latin for "for good") work is work that a lawyer does for free.
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
- provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
- persons of limited means or
- charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
- provide any additional services through:
- delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;
- delivery of legal services at a substantially reduced fee to persons of limited means; or
- participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
- representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
- representing the client is likely to result in an unreasonable financial burden on the lawyer; or
- the client or the cause 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.
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
Under Rule 8.3, you must turn report another lawyer if you know he has
committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.