MPRE Ethics Outline by Kmnjlb

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									Ethical Lawyering Outline – Levine Fall 2006 1) How does the bar regulate attorneys? a) Who regulates? i) States regulate all aspects of the practice of law. (1) No national licensing authority (2) Each state has its own standards ii) Attorneys have an ethical obligation to aid in regulating lawyers (1) Attorneys have a duty to report conduct of lawyers and judges (2) Under the MRs, you are not required to report all; only serious conduct that raises substantial questions as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. Shall inform the appropriate authority. It does not require the disclosure of confidential information or information gained while in an approved lawyers assistance program. b) Who may practice in a state? i) A state may restrict the practice of law to those who are members of the bar of that state. (1) There is the ability for out of state attorneys to practice without being admitted: Pro Hac Vice (a) Pro Hac Vice – is the ability of an attorney to appear in a state not admitted to its bar with permission of the court for a particular case ii) What are permissible standards for admission to a state’s bar? (1) General Rule: (a) Any standard must have a reasonable relation to fitness to practice law. (i) Who you are living with has no rational relation (ii) Educational and Testing Qualifications are allowed 1. Law school or Pro Bono work (iii)Citizenship qualifications are not allowed. A bar may not exclude non-US citizens. A state can’t deny admission to those from another state. (iv) A state can limit admission to those with Good Moral Character 1. Moral turpitude is a reason to deny admission (v) Political beliefs can’t be used to exclude members of the Bar 1. Exception: a. You can be denied admission for failure to swear allegiance to the constitutional laws of the US b. A state can deny admission to those who actively affiliate with organizations knowing of their illegal activities and with the intent to further the illegal activities i. A person can be asked about this (vi) Making false statements, concealing information, refusing to answer legitimate questions are reasons to deny admission c) The bar has the duty to prevent the unauthorized practice of law. i) What is the unauthorized practice of law? (1) There is no precise definition, but basically a non-lawyer being paid to do something normally done by an attorney (2) Only an attorney can appear in court (a) Exception: (i) Non-attorney may appear to represent himself, called “Pro Se” representation. 1. Exception: a. A corporation must always be represented by an attorney, no pro se for them (ii) Students may appear in court under student practice rules pursuant to a clinic or whatever (3) Only an attorney can draft legal documents (a) Exception: (i) Pro Se – you can do it for yourself 1

(ii) An attorney can draft a form for a non-lawyer to fill in the blanks (4) Only an attorney can give legal advice – hardest to implement (a) Use common sense. If typically done by a non-attorney, such as an accountant, then it will be permissible. If typically done by an attorney, then it will be unauthorized ii) What are the responsibilities of an attorney in preventing unauthorized practice of law? (1) An attorney can’t aid a non-lawyer in activities that constitute the practice of law. (a) An attorney can help a pro se litigant (2) An attorney can’t practice in a jurisdiction where not admitted. This would be unauthorized practice of law (a) Exception (i) Pro Hac Vice (ii) Where the act in question arises out of practice in a JX where you are admitted 1. A CA attorney taking a deposition in NY for a case that is pending in CA. (3) Can’t split legal fees with non-attorneys (a) Exception: (i) Attorneys are allowed to pay employees and make contributions to pension funds (ii) Attorneys can share court ordered attorney fees with a non profit organization who recommended them (4) An Attorney can’t enter into a partnership with a non-lawyer if any part of it is involved in the practice of law. If in the practice of law, all partners must be lawyers. d) How can the bar ensure compliance with its rules? i) Attorney conduct which can give rise to discipline: (1) Violation of the rules of professional conduct (a) The MRs are a minimum standard (2) Criminal act reflecting bad on an attorney’s honesty or trustworthiness, but not all criminal acts (3) Conduct involving dishonesty, fraud, or deceit. Even if not illegal and it is outside the area of law, it can be disciplined. (a) Lawyer who released mice in a political campaign. (4) Conduct prejudicial to the administration of justice (5) Representing an impermissible ability to influence a tribunal (a) Even if you just say you can influence the judge, this is a violation. (6) Knowingly assisting a judge in conduct that is a violation of applicable rules of judicial conduct or other laws ii) Duty to make reasonable efforts to supervise subordinates and make sure subordinate lawyers comply with codes of professional responsibility iii) Duty to make independent judgments (1) An attorney may follow orders of superior on a debatable issue as long as the conduct is reasonable iv) Responsibility for ethical violations of another attorney. (1) Where a lawyer orders or ratifies another attorney’s conduct (2) An attorney in a supervisor position knows of conduct and does not act to correct, they have violated the rules. 2) How is the formation and ending of the attorney-client relationship regulated? a) What is the attorney’s duty to accept representation? i) General Rule: (1) There is no duty by an attorney to accept representation. He is free to chose his own representation. (2) Exception: (a) An attorney has a duty to accept representation if court appointed (b) Exception: (i) Where it is likely to result in a violation of the law or disciplinary rule 2

(ii) Where there is an unreasonable financial burden (iii)Where the cause is so repugnant that representation would deny effective representation b) What is the attorney’s duty to reject representation? i) Representation which will result in violation of the law or a disciplinary rule (1) Asking an attorney to do something illegal does not mean that you have a duty to reject representation. Only when representation will do something illegal do you have to reject representation. ii) Representation which will require filing a frivolous claim (1) An attorney can take the case if there is a good faith belief that the attorney can change the law. This means you can take a case if the law is against you. iii) If the attorney is not competent to handle the matter (1) Except (a) If through study the attorney can become competent, the attorney can take the case. OR (b) If co-counsel can do that part where the first attorney is incompetent, OR (c) In an emergency, the attorney can take the case he is otherwise not competent to handle. c) When must or may an attorney withdraw from representation? NOTE: Once a matter is in litigation, withdrawal requires court permission, even in a situation where withdrawal is required. It is a balancing act by the court. The time in the litigation v. the hardship to the client i) Circumstances where the attorney MUST withdraw (1) Obvious when the client’s purpose is to harass or delay. (2) Representation would require a violation of law or disciplinary rule. (a) Just asking to do the illegal act does not mean that you must withdraw, only where it would entail an illegal act must you withdraw. (3) The attorney’s mental or physical health would affect effective representation (4) Client fires the lawyer – if on the eve of litigation, the attorney must still ask the judge for permission to withdraw. ii) Circumstances where the attorney MAY withdraw (1) The client pursues a course of action the attorney believes is criminal or fraudulent (2) The client has used the attorney’s services to perpetrate a crime or fraud (3) The client insists on pursuing and objective that A regards as repugnant or imprudent (4) The client disregards an agreement concerning the lawyer’s services and the client has been given adequate warning (5) Representation will result in unreasonable financial burden on the attorney or has been rendered unreasonably difficult by the client, OR (6) The client freely assents to the attorney’s withdrawal. iii) Requirements when an attorney withdraws (1) The attorney must give the client timely notice and opportunity to get another attorney (2) The attorney must return all funds not used or expended (3) The attorney must return all papers related to the proceeding and can’t hold papers hostage in order to get paid. 3) What are the attorney’s duties to the client? a) Duty to avoid conflict of interest (1) Anything that would reasonably interfere with a client’s interest is a conflict of interest i) General Rules: (1) An attorney may not represent a client if the representation of the client may be materially limited by the lawyer’s responsibilities to another client, or to a third person, or by the lawyer’s own interests, unless: (a) the lawyer reasonably believes that the representation will not be adversely affected; AND (b) the client gives informed consent. (i) Must be informed: nature, consequence, and in writing 3

(2) If one attorney in an office is disqualified, all attorneys in the office are disqualified. Imputed Disqualification (a) Usual rule: NO walls (b) Exception: (i) When the disqualified lawyer is a former government attorney or judge and you are being disqualified by the former work in the government (ii) Requirements for a Wall 1. The former government attorney is screened and everyone in the office is told not to talk to him about the case 2. The former government attorney is apportioned no part of the fee 3. Written notice is given to former government agency or tribunal and they must consent in writing ii) Conflicts among current clients (1) An attorney may not sue a current client, even in an unrelated matter. This a breach of the duty of loyalty (2) An attorney may represent multiple parties as long as all consent and the attorney can represent all effectively (a) An attorney representing multiple parties shall not participate in an aggregate settlement on a guilty plea unless each party consents in writing and are given total disclosure about all the pleas involves and the participation of each person. (3) An attorney may act as a neutral 3 rd party between parties, but must explain that he is neutral (4) An attorney can provide an evaluation of a matter affecting the client for others as long as it is consistent with the interests of the client. Where the evaluation will affect the client’s interests materially and adversely, the attorney must get consent from the client. iii) Conflicts between an attorney’s interest and a client’s interests (1) An attorney shall not solicit a substantial gift from a client or provide an instrument giving the attorney or a person related to the attorney a substantial gift unless the client is related to the attorney. (a) a will for your parents is ok (2) An attorney shall not give financial assistance to a client in connection to contemplated or impending litigation (a) Except: (i) Court costs and expenses of litigation (3) Business deals are always regarded as suspicious and are valid only if all 4 are present (a) the terms of the transaction must be fair and reasonable (b) the terms are in writing and in a manner the client can reasonably understand (c) the client is advised in writing to seek advice of another attorney and is given time to do so (d) the client consents in writing (4) Prior to completion of litigation/representation an attorney shall not acquire media rights to the client’s story (5) An attorney shall not acquire a proprietary interest in a COA subject to litigation (a) Except: (i) a lean to secure fees and expenses; lawyers leans get top priority (ii) reasonable contingency fees where they are allowed (6) An attorney shall not act as an advocate in proceedings where the attorney is likely to be a witness (a) Except: (i) the attorney’s testimony relates to uncontested issues (ii) the attorney’s testimony relates solely to the nature and value of the legal services provided (iii)disqualification of the attorney would cause substantial hardship to the client 4

(7) An attorney shall not have a sexual relationship with a client unless a consensual sexual relationship existed before the attorney client relationship was formed iv) Organizations and representation (1) In representing an entity, the corporation is the client, not the directors, officers, or shareholders. (2) If an attorney’s fees are paid for by someone other than the client, the client must consent and the representation must not be interfered with. Consent does not need to be in writing (3) In dealing with an organization’s directors, officers, and employees, an attorney shall explain the ID of the client where there is reason to believe there is a conflict between the interests of the entity and the interests of the directors, officers, or employees. (4) An attorney may represent both the entity and the individual if all consent. The entities consent must be through those other than the individuals that the attorney will be representing other than the entity. (5) When an attorney for an organization believes the entity is violating the law, the attorney must act reasonably to protect the entity. The attorney must: (a) ask for reconsideration of the matter (b) ask for outside legal opinion (c) refer the matter to higher authority in the organization. (i) if the organization fails to do anything about the matter, the attorney may reveal the information only if and to the extent necessary to prevent substantial injury to the organization. v) Conflicts with past clients (1) An attorney shall not represent a client in a matter that is substantially similar to a former client where representation would be materially adverse if current representation is substantially related to former representation (a) Exception: (i) consent, and it must be in writing (2) An attorney shall not use material confidential information, which is acquired in the first representation, in the current case/representation. b) Duty of competence i) An attorney has a duty to provide competent representation to a client (1) An attorney shall act with reasonable diligence ii) An attorney is subject to discipline for attempting to contractually limit malpractice liability (1) Except: (a) It is permissible where the client is represented by another attorney and the client consents iii) An attorney cannot settle malpractice claims without advising the client in writing to see another attorney c) Duty to follow client’s instructions i) General Rule: The client decides the ENDS, (the objectives), and the attorney decides the MEANS ii) The client controls the following: (1) whether to sue in civil cases (2) whether to accept a settlement in civil cases or whether to plead guilty in criminal cases (3) whether to waive a jury trial in criminal cases (4) whether to testify in criminal cases (5) whether to appeal iii) Duty to keep client reasonably informed (1) Promptly notify the client of any decision with respect to which the client’s informed consent is required iv) An attorney may limit the objectives of representation if the client consents v) Representing a client with disabilities (1) An attorney may seek appointment of a guardian if the attorney believes the client can’t represent their own interest 5

d) Duty to protect client confidences – The Ethical Duty of Confidentiality i) The ethical duty of confidentiality protects any information the attorney learns relating to the representation of the client  can’t reveal the information to the client’s detriment ii) The Attorney-Client privilege protects privileged communication from evidentiary discovery iii) What information is protected as confidential? (1) Any information that the attorney learns relating to the representation of the client or of a prospective client iv) What duties does an attorney have with regard to confidential information? (1) The information can’t be revealed or used to the client’s detriment v) What are the exceptions to the duty of confidentiality? (1) The client’s informed consent (a) A client can waive confidentiality (2) Dispute concerning attorney’s conduct (a) An attorney can reveal confidential information in self-defense. (3) Disclosure to obtain legal ethics advice (a) An attorney can call another attorney for advice (4) Disclosure required by law or court order (5) Disclosure to prevent death or serious bodily injury (a) An attorney may, but is not required (6) Disclosure to prevent or mitigate substantial financial harm (a) An attorney may, but is not required vi) How should an attorney handle the fruits and instrumentalities of a crime? (1) When the client gives it to the attorney, the attorney should give it back to the client (2) The attorney can’t keep hide or alter it. (3) If the evidence is left on the attorney’s doorstep, the attorney must turn it over to the police but the attorney does not have to tell where they got it from. vii) How should an attorney deal with knowledge that a client has or will commit perjury? (1) MR - If the attorney believes it has happened, the attorney must: (a) encourage the client to rectify the perjury. If the client refuses the attorney must (b) seek withdrawal from the judge (take reasonable remedial measures). If the court refuses to allow withdrawal, the attorney must (c) reveal the client’s info to rectify the fraud. (2) If the attorney thinks the client is going to commit perjury, the attorney must (a) encourage the client to rectify the perjury. If the client refuses. the attorney must (b) seek withdrawal from the judge (take reasonable remedial measures). If the court refuses to allow withdrawal, the attorney must (c) reveal the client’s info to rectify the fraud. 4) How is the integrity of the system protected? a) Duty to prevent abuse of the system i) An attorney shall not bring or defend a proceeding or assert or controvert an issue unless the attorney believes that there is a basis for doing so that is not frivolous (1) The attorney can argue against existing law if there is a good faith effort to change it ii) An attorney shall make reasonable efforts to expedite litigation consistent with the interests of the client iii) An attorney shall not seek to influence a judge or a jury in a manner prohibited by law iv) An attorney shall not engage in conduct intended to disrupt a tribunal b) Duty of candor to a tribunal (honesty) i) An attorney shall not make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made by the lawyer to the tribunal (1) An attorney has an affirmative duty to correct a mistake (2) If the client does fraud in the proceeding, the attorney must take steps to rectify. 6






ii) An attorney shall not fail to disclose a material fact when disclosure is necessary to avoid assisting in a criminal or fraudulent act by the client iii) An attorney shall not offer evidence that the lawyer knows to be false (1) There is an affirmative duty to correct if later found out it was false evidence iv) An attorney shall disclose adverse legal authority that is on point and is from the controlling jurisdiction (1) It is a reasonableness standard v) In ex parte proceedings (only one side is present), the attorney shall inform the tribunal of all material facts Fairness to opposing party i) An attorney shall not obstruct another person’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value ii) An attorney shall not falsify evidence or counsel a witness to testify falsely iii) An attorney shall not make a frivolous discovery request or fail to comply with discovery in good faith iv) An attorney shall not make a false statement of material fact or law to a 3 rd party v) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or should know the document was inadvertently sent shall promptly notify the sender. (1) What happens next is up to the court Trial tactics i) An attorney shall not allude to any matter that is not supported by admissible evidence ii) An attorney shall not assert personal knowledge about the justness of a cause or personal knowledge of facts, except when testifying as a witness (1) An attorney cannot say, “I know my client is innocent.” No vouching for the client. iii) Special Duties of Prosecutors: (1) Only to prosecute when there is probable cause (2) Timely disclosure of all potentially exculpatory evidence (3) Make sure accused are advised of right to counsel and given reasonable opportunity to obtain counsel (4) Not to seek waiver of rights from unrepresented person (5) Not to make public statements that have a substantial likelihood of raising public condemnation of the accused (6) Not to subpoena another attorney unless all are met: (a) Prosecutor must believe that information sought is not protected from disclosure (b) The information is essential to successful completion of the proceeding (c) There is not another alternative source for the information Voluntary Pro Bono work i) An attorney shall aspire to perform at least 50 hours of pro bono services per year ii) An attorney may serve as an officer, director, or member of a legal services organization, even if it has interests adverse to the lawyer’s client Attorney as advisor i) An attorney shall not counsel a client to engage, or assist client, in conduct that the lawyer knows to be criminal or fraudulent ii) An attorney may disclose the legal consequences of any proposed course of conduct with a client and may assist a client to determine the means and application of the law (1) An attorney can tell the consequences of an act but cannot say to do it iii) An attorney shall give candid advice and may refer not only to the law, but also to moral, economic, social, and political considerations What is the permissible nature of communications to others than clients? i) Communication with adversaries 7

(1) An attorney shall not communicate directly with one that the attorney reasonably knows is represented by another attorney unless the other attorney consents or specifically court ordered (a) Applies to all manner of disputes, whether or not suit has been filed (2) An attorney can communicate with one not represented by counsel but cannot give legal advise or represent that the attorney is disinterested in the matter ii) Communication with witnesses (1) An attorney may contact all witnesses even witnesses for the opposing party unless represented by an attorney (2) An attorney cannot harass the witness (3) An attorney cannot encourage a witness to leave a jurisdiction to avoid testifying (4) An attorney cannot pay a non-expert witness except for expenses incident to testifying: travel and lodging (5) Expert witnesses may be paid reasonable fees and expenses (6) No witness can be paid on a contingency fee basis iii) Communication with jurors (1) Before trial an attorney can have no communication with a member of the panel from which a juror will be selected (2) During trial no communication with jurors except during court proceedings (3) After trial an attorney can contact a juror unless prohibited by law, or juror has indicated a desire not to be communicated with iv) Communication with the court (1) Except in an emergency, ex parte communications are not allowed. When there is ex parte communication due to an emergency, the other side must be notified as soon as possible as to the substance (2) No gifts to court personnel allowed (a) Except: (i) reasonableness exception, friends, going over for dinner v) Communication with the press (1) An attorney can’t make statements that are reasonably likely to publicly disseminate information if there is a substantial likelihood of materially prejudicing a proceeding (a) Background of the case and public record are ok (b) Statements to protect client are ok 5) How should the market for legal services be regulated? a) Advertising and Solicitation i) General Rule: Attorneys must not make false or misleading statements (1) An attorney can say what areas of law they practice in and which areas they do not (2) An attorney can say they are a certified specialist, only if accredited and it says by whom in the ad ii) Solicitation (1) Attorney in-person solicitation of clients for profit is prohibited (a) with face to face communication there is too much pressure when there is money involved (i) live telephone or real time electronic communication is not allowed (b) If offering free services then you can solicit face to face (c) Letters of solicitation are less pressure and are ok (d) Exception: (i) An attorney may solicit from other attorneys (ii) An attorney may solicit from family and close personal relationships (iii)An attorney may solicit from prior professional relationships (2) Attorney shall not solicit if prospective client makes it known that he or she does not want to be solicited iii) Advertising 8

(1) Every ad must be labeled “advertising material” on the envelope, OR (2) At the beginning and end of the communication b) How may the practice of law be structured? i) Names of law firms (1) An attorney can continue to use the names of deceased lawyers unless it is deceptive to do so. (2) They must remove from the name of the firm, the name of an attorney who enters the public service (3) Trade names are allowed unless they imply false connection to government or legal services (a) No “State of California Law Offices” if not affiliated with the state. ii) Firms may incorporate if state law permits it, all officers, directors, and shareholders must be attorneys. (1) Attorneys must be in full control iii) Buying and selling law firms (1) All requirements must be met: (a) The seller must stop practicing in that geographic area or specialty area (b) The firm or area practice must be sold in its entirety (c) Written notice must be given to the clients and given an opportunity to seek other firms c) Fees i) Fees should be set as soon as possible in the course of representation, preferably in writing (1) Any ambiguity are interpreted against the attorney and it is the attorney’s burden ii) A lawyer’s fee must be reasonable (1) CA – shocks the conscious (not the MR, but good) (2) MR Factors: (a) Time and skill required (b) Extent of preclusion of other legal work (c) Fee customarily charged in like work (d) Amount charged (e) Experience of the Attorney iii) Contingency fees (1) Must be in writing (2) The attorney must notify the client of any of the client’s responsibility for expenses (3) 2 types where not allowed: (a) Criminal cases (b) Divorce cases where fee is contingent upon the securing a divorce, amount of alimony, or property settlement iv) Fee splitting with other attorneys (1) Only if all met: (a) The client is advised and does not object to participation of all the attorneys (b) The total fee is reasonable (c) It is either proportionately to how much work is done or by written agreement with the client v) Attorneys shall not enter into agreements that restrict the ability of lawyers to practice after the termination of their employment (1) An attorney may not enter in to a covenant not to compete vi) Referrals (1) General Rule: A lawyer must not give something for value for a referral (a) Exceptions: (i) A lawyer may pay reasonable advertising costs. (ii) A lawyer may sell his practice and receive money for the client base. (iii)A lawyer may pay the usual charges of a qualified referral service.


(iv) A lawyer may make a reciprocal referral agreement with a lawyer or other non-lawyer professional as long as the agreement is not exclusive and the referred person is told about the agreement. The referral should not be indefinite in length. d) What is the attorney’s duty to protect the client’s money or property? i) An attorney must not co-mingle client funds and personal funds (1) Client funds go into client accounts. You can have one big client account for all clients (a) Exception: (i) Personal funds can be put in to pay bank service charges but only the amount necessary to do this ii) An attorney must keep a record of client funds for at least five years after representation iii) An attorney must keep a client’s property safely iv) An attorney must pay all money owed to the client promptly (1) If dispute arises, the attorney pays all money not disputed to the party who is supposed to get it and the disputed portion of the money goes into a trust 6) What are the ethical standards for judges? a) General Rule: A judge must avoid the appearance of impropriety b) When are judges disqualified? i) If the judge has personal knowledge of disputed evidentiary facts ii) If the judge served as a lawyer in the matter in controversy (1) All matters that were handled by the judge’s law firm while he was at the firm are imputed to him and so the judge may not hear the case iii) If the judge has a financial interest in the case (1) Or if any of the judge’s spouse, children, parents, or any other family member living in the judge’s house has a financial interest (2) It must be a legal or equitable interest (a) It must be an interest different from everyone else in the community (b) Stock v. Utility bill (3) All financial interest that the judge knows about or should know about (a) Exception: (i) If the judge has the money in a blind trust, the judge is not disqualified iv) If the judge has a family member who is involved in the case (1) As a party or officer/director of a party (2) Family member is an attorney in the proceeding (3) Judge or family member has more than a deminimuos interest (4) Likely to be a material witness in the case (5) A Family Member is anyone other than a cousin (aunt, uncle, grandparent, grandchild) v) Exceptions: (1) Remittal – voluntary consent by both parties (a) Requirements: (i) Disclosure of basis for disqualification must be made on the record by the judge (ii) All parties voluntarily agree for judge to participate (iii)Agreement must be on the record (2) Rule of necessity (a) If all the judges are disqualified in a jurisdiction, then any judge can hear the case c) What conduct while serving as a judge is appropriate? i) A judge shall comply with all constitutional, statutory, and procedural law ii) A judge shall require order and decorum in court proceedings iii) A judge shall be patient, dignified, and courteous iv) A judge shall perform judicial duties without bias or prejudice (1) A judge must refrain from anything that may be perceived as sexual harassment v) A judge shall not engage in ex parte communications 10

vi) A judge shall avoid and shall require attorneys to avoid expressing bias based on race, national origin, religion, gender, age, disability, sexual orientation, or socio-economic status vii) A judge shall dispose of all judicial matters promptly, efficiently, and fairly viii) A judge shall not commend or criticize jurors for their verdict, except in a court order or opinion ix) A judge shall not disclose or use any nonpublic information gained in a judicial capacity x) A judge shall not make comments about any pending proceeding that can be reasonably expected to affect its outcome d) What off-the-bench conduct by judges is appropriate? i) Judges are not allowed to engage in the practice of law (1) Judges can’t be arbitrators or mediators except in cases before them (2) No money on the side ii) Judges are not allowed to serve as fiduciaries (1) No executors, administrators, or guardians (2) Exceptions: (a) member of family where not likely to come before his own court iii) Judges shall not accept appointments to government commissions other than those dedicated to advancing legal issues iv) Judges may serve in a charitable or civic organization so long as it does not reflect adversely on the judge’s impartiality (1) The organization must not be for the political or financial gain of its members (2) A judge shall not participate in fund raising, membership solicitation, or allow their office to be used for these purposes (3) A judge shall not participate where likely that the organization will be subject to litigation before the judge’s court v) A judge shall not hold membership in any organization that practices invidious discrimination based on race, sex, religion, or national origin (1) This is a narrower list vi) A judge shall not appear as a character witness unless subpoenaed (1) Concerned because the attorney will try to impeach that character vii) Judges shall not engage in financial transactions that risk a conflict of interest (1) No officer, director or any other position (2) Exception: (a) Close corporation of family members viii) A judge shall not accept and shall urge family members not to accept gifts from those likely to appear before the judge (1) Exceptions: (a) Gifts may be received incident to public testimony and law book publishers (b) Ordinary social hospitality is acceptable – a bottle of wine at dinner (c) Loans from lending institutions that are in the regular course of business of lending money and are on the same terms as non judges are ok ix) Judges may receive compensation for their non-judicial conduct where permitted x) A judge shall comply with the law in all of his or her activities e) What political activities by judges or judicial candidates are permissible? i) Judges and candidates for judicial office may not: (1) Hold office in political organizations (2) Publicly endorse or oppose candidates for office (3) Make speeches on behalf of political organizations (4) Attend political gatherings (5) Solicit funds or make contributions to political organizations ii) Judges must resign from the bench if running for non-judicial office (1) Does not have to if running for a judicial office, even if it is a higher one 11

iii) In campaigning for election or retention to the bench, a judge shall not: (1) Personally solicit or receive funds (a) A judge can create a committee to do this for him (2) Make pledges or promises of conduct in office (3) Knowingly misrepresent own qualifications or facts concerning appointment


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