ETHICS Non-Rule Stuff: A. Reciprocity – If you are admitted in one bar you can practice in another 1. A number of states have these provisions, CA does not. B. Pro hac vice – for this turn only. 1. Required usually to have local counsel and required to be admitted pro hac vice. File a petition with the court asking to practice in the court for this one time. You also have to disclose how many times you have been admitted pro hac vice. C. Disciplinary Process 1. Someone files a complaint with the state bar 2. A lawyer will act as prosecutor and investigate 3. If they want to take action the state bar files a complaint 4. You have a right to counsel but rules of evidence do not apply 5. The judges are either lawyers or citizens or a mix 6. Standard is clear and convincing evidence 7. If found guilty i. Appeal to the State Supreme Court ii. Receive a punishment a. non-public reprimand b. public reprimand c. suspension d. disbarment – can apply for re-admittance after time 8. Factors to look at in determining punishment: The extent to which the lawyer’s misconduct caused injury to others The blameworthiness of the lawyer General character Disciplinary history Lawyer’s demeanor Likelihood that it will happen in the future What have we done in prior cases Justice D. Death Issues 1. If client wants to die then what do you do? Support client’s objective? 2. The rule says that the ultimate decision is made by the client 3. Split in authority, some courts say that in death cases, there is an overriding factor and you must oppose the death penalty E. Obligation to other parties – issue with heart condition (do you tell the patient) 1. Generally no duty, but when dealing with minors in settlement situations, all parties become officers of the court and should seek justice for minor F. How should an attorney handle the fruits and instrumentalities of a crime? a. Can not keep, hide, or alter the fruits or instrumentalities of a crime. i. If client gives you money from bank robbery, must give it back or give it to the police G. Upjohn Rule v. Control Group Test H. Restrictions on practicing law:
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1. The primary inquiry is whether the unlicensed L engaged in sufficient activities in the state, or created a continuing relationship with the CA client that included legal duties and obligations 2. “The doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure” 3. Bottom line is you should get local counsel to help if you are out of state lawyer
Rule 8.5 – Disciplinary Authority; Choice of Law (a) If you practice in this jurisdiction, you are subject to discipline in this jurisdiction (does not matter if you are a member of the bar there). No double jeopardy (can be disbarred in multiple jurisdictions) Rule 8.1 – Bar Admission and Disciplinary Matters Applicant for admission to the bar shall not: (a) knowingly make a false statement of material fact; or (b) fail to correct known misapprehension, or fail to respond to a lawful request for info Rule 8.4 – Misconduct It is misconduct for a lawyer to: (a) violate or attempt to violate the RPC, or assist or induce another to do so (b) commit a criminal act that reflects adversely on the lawyer’s honesty or fitness as a lawyer (c) engage in conduct involving dishonesty, fraud (d) engage in conduct that is prejudicial to the administration of justice (e) state or imply ability to improperly influence tribunal (f) assist judge in improper conduct Comment 3 – If you are racist or homophobe, and that those view effect your ability to properly administer justice, then you violate these rules (you are not fit to practice). Rule 8.2 – Judicial and Legal Officials (a) Lawyer can not defame judge or judicial candidate; (b) Lawyer who is a candidate for judicial office shall comply with CJC Rule 8.3 – Reporting Professional Misconduct (a) If you as a lawyer are aware of another lawyer’s misconduct, you must report it. (b) Same if you know something about a judge (c) If the info that you gained was privileged then you would not be required to disclose You should try and talk your client into getting you to waive that IN CALIFORNIA THERE IS NO OBLIGATION TO TURN IN OTHER LAWYERS Rule 1.1 – Competence Lawyer shall provide competent legal representation. Violation of one of these rules is evidence of malpractice but not dispositive
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Rule 6.2 – Accepting Appointments Lawyer can not refuse appointment by a tribunal to represent someone except for good cause, such as: (a) if representing client if it is likely to violate a law or disciplinary rule (b) If representation would impose an unreasonable financial burden on the lawyer (c) The cause is so repugnant as to interfere with effective representation Rule 1.18 – Duty to Prospective Clients (a) Becomes a prospective client if the client has a reasonable expectation that the lawyer is willing to discuss forming a client-lawyer relationship. (b) Discussion with prospective clients shall be kept confidential (c) If you have a regular client but gain confidential info from a prospective client that is adverse to your regular client, you or your firm can not represent your regular client. (d) If a lawyer is disqualified pursuant to (c), representation of the client is permitted if: (1) both the affected client and the prospective client give written consent; or (2) the lawyer took reasonable measures to avoid getting more disqualifying info than necessary; and (i) that lawyer is screened from the case (info and fee); and (ii) written notice is given to the prospective client Comments 1 and 9 – Same duty of competence to prospective clients as regular clients Rule 1.2 – Authority Between Client and Lawyer Client makes decision on the objective of the representation, lawyer shall consult with client as to the means but makes the call Client controls pleas, settlement, whether to sue, whether to testify, whether to appeal (d) Lawyer can not counsel a client to engage in illegal activity, but can advise them on consequences of actions Comment 2 – If there is a disagreement on the means/strategy that is so great, the lawyer can withdraw Rule 1.4 – Communication Lawyer shall keep client informed and reasonably consult with client about the means of representation Lawyer shall promptly reply to request for info from client Comment 2 – If lawyer receives a settlement offer or plea offer he must consult with client unless client has already given lawyer instructions and authority to make decision Rule 4.1 – Truthfulness in Statements to Others In course of representing a client a lawyer shall not: (a) make a false statement of material fact or law to third person; or (b) fail to disclose material fact when disclosure is necessary to avoid assisting criminal or fraudulent behavior by client, unless info is confidential Comment 1 – Lawyer has no affirmative duty to inform opposing party of relevant facts, but can be problem if lawyer affirms a statement of another person that the lawyer knows if false
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Comment 2 – This rule applies to statements of fact. In settlement negotiations estimates of price/value and intentions to settle are not considered statements of fact If there is an inadvertent error in the writing of a contract that favors your client, you need to disclose this info. It is tantamount to misrepresentation. This is not required by the rules per say, but it is stated in an ABA ruling
Rule 2.1 – Advisor In giving a client advice you can not only refer to the law, but also refer to moral/political issues. Rule 1.6 – Confidentiality Lawyer can not reveal info relating to client representation, may reveal under the following conditions: (a) Client express permission or implied permission (to carry out effective representation) (b)(1) To prevent reasonably certain death or bodily harm o In CA this subsection read: “to prevent a criminal act that will result in substantial bodily harm” This is the only time disclosure is allowed. Also different is that in CA the lawyer must try to first dissuade the client and then must inform the client of lawyer’s ability to reveal. MRPC says should. (2) To prevent client from committing crime or fraud that will result in substantial financial injury (3) To prevent substantial financial injury from occurring from previous fraud committed (4) To secure legal advice about these rules (5) To defend himself (6) To comply with other law or court order (7) To comply with Rule 3.3 (candor to a tribunal) Comment 12 – (b)(6) allows disclosure to comply with other law or court order, if there is other law then these rules do not govern whether the other law supersedes rule 1.6 Comment 18 – Duty of confidentiality continues even after the client dies Comment 14 – MRPC say that lawyer should try to dissuade client from taking the action that will allow disclosure of confidences. In CA the lawyer must dissuade the client. Rule 1.16 – Declining or Terminating Representation (Note: Once litigation has begun, the lawyer must get court permission to withdraw) (a) Lawyer can not take the case, and if he has he must withdraw: (1) When a representation will require violation of law or disciplinary rule (2) When the lawyer’s mental or physical health makes it unreasonably difficult to provide effective representation (3) If the client fires the lawyer (if in litigation, must still get court permission) (b) Lawyer may withdraw if: (1) it would not be materially adverse to the client’s interest (2) the client persists in course of action that is criminal or fraudulent (3) the client has used lawyer to perpetuate crime or fraud (4) the client insists on taking action that the lawyer thinks is repugnant (5) client fails to cooperate (pay) as long as lawyer give notice (6) representation will result in unreasonable financial burden
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(7) other good reason exists (c) Once litigation has begun the lawyer must get court permission to withdraw (d) Requirements when an attorney withdraws (1) Attorney must give timely notice and opportunity for the client to get another lawyer (2) Attorney that withdraws must return all funds not used or expended (3) Attorney must return all of the client’s files and papers (can keep a copy) Rule 1.7 – Conflicts of Interest: Current Clients Lawyer can not represent clients where there is a conflict of interest unless: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation; and (2) the representation is not prohibited by law (comment 16); and (3) the clients are not directly suing each other; and (4) each affected client gives informed consent in writing Comment 3 – Lawyer must take reasonable steps to determine if there is a conflict (what are reasonable steps? Big firm v. Small firm) Comment 4 – If conflicts arise after representation has begun then the lawyer must withdraw, subject to the rules above Comment 6 – Just because to clients are economic competitors does not mean there is a conflict. You can do contract work for Burger King and McDonalds Comment 30 – When representing 2 or more clients in the same matter, let them know that if they turn against each other, attny/client privilege does not protect Comment 31 – When representing 2 or more clients in the same matter, it is best to get informed consent from the clients that you can not keep secrets from each other that may effect the representation. Lawyer has duty to each client to provide best representation Rule 1.9 – Duties to Former Clients You have a duty to protect the confidences of a former client You do not have a duty to protect the reputation of a former client Rule 1.8 – Conflict of Interest: Current Clients: Specific Rules a. An attorney shall not solicit a substantial gift from a client or prepare an instrument giving the lawyer or a person related to the lawyer a substantial gift from the client i. Can not say, “name me in the will” ii. Can not draft a will if he is in it iii. Exception if the client is related to the lawyer b. Lawyer shall not give financial assistance to a client in connection with contemplated or pending litigation i. Lawyers have been disciplined for giving their clients money for food or rent ii. Exception is that lawyer may pay court costs and expenses of litigation c. Business deals between lawyers and clients are always suspect; allowed only if: i. Terms of the transaction must be fair and reasonable
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ii. Terms must be disclosed in writing in a manner the client can reasonably understand iii. The client is advised in writing to seek the opinion of another lawyer and given time to do so iv. The client consents in writing d. Prior to the completion of representation an attorney shall not acquire literary or media rights of the client’s story i. CA does not have this rule ii. Comment 9 – You can represent someone in a literary or media contract and get a piece of the action as compensation e. Lawyer shall not acquire a proprietary interest in the cause of action or subject of the litigation i. Exception is a lien to secure the lawyer’s fees or expenses ii. Exception is a reasonable contingency fee in a case where contingency fee is allowed f. Lawyer shall not act as an advocate in a trial where the lawyer is likely to be a witness i. Exception if the testimony relates to an uncontested issue ii. Exception if the testimony relates to the nature and value of legal services provided iii. Where disqualification of the attorney would impose substantial hardship on the client, then the lawyer can serve in both roles g. Lawyer can not have sexual relationship with client, unless a consensual sexual relationship existed between them when the lawyer client relationship commenced h. Lawyer shall not accept payment from someone other than client unless: i. the client gives informed consent ii. there is no interference in the representation When a lawyer is being sued for malpractice the insurance company will appoint another lawyer to represent the insured. If there is a settlement offer within the policy limits that the insured wants to take and the insurance company declines, and then the case goes to trial and there is a larger verdict (even above the policy limits), then the insurance company must pay the whole thing. i. Lawyer representing multiple clients in a case must not make aggregate settlement or pleas unless all parties give informed consent j. Lawyer can not make agreements limiting malpractice liability unless other party is represented by another lawyer in that agreement; lawyer can not settle malpractice claim unless the party is advised in writing to seek advise of another lawyer Rule 1.9 – Duties to Former Clients (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 consent in writing.
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What is same or substantially related matter? o Scope of legal representation o What naturally and reasonably would have been disclosed in the first representation? o Is that information relevant to the current lawsuit? (b) Lawyer can not knowingly represent a person in a matter in which the lawyer’s former firm previously represented a party if: (1) interests are now adverse; and (2) lawyer gained relevant confidential info, unless former client gives written consent Party trying not to get disqualified has the burden of proof Comment 5 – lawyer must have actual knowledge of confidential info (c) Once your representation is over, your duty of confidentiality lives on Comment 1 – You are representing 3 people in a contract deal, they turn on each other. You can not represent one of them against another unless you get informed consent Comment 3 – If the confidential info you have becomes public knowledge, then it will not be a basis for disqualification
Rule 1.10 – Imputed Conflicts of Interest (a) If a member of a firm is prohibited from representing a client, then the whole firm is prohibited, unless the member is prohibited because of personal interest and other lawyers would not be materially limited in representing the client. (b) If a lawyer leaves a firm and takes the client with them, then the firm can represent someone against the old client as long as the matter in question is not the same or substantially related to the old case and none of the lawyers left behind have confidential info that relates to this new case (c) These conflicts may be waived by the affected client Rule 1.11 – Special Conflicts of Interest for Former and Current Govt. Employees (a) Former govt. employee that goes to private side can not represent client in a matter which the lawyer substantially participated in govt. capacity (b) If lawyer is disqualified under section (a) then the firm is also disqualified unless: (1) Former govt. employee is screened form participation in the matter (2) Former govt. employee is apportioned no part of the fee (3) Written notice is given to the former govt. agency or tribunal Timely screening means the day you walk in the firm, not after there is a motion to disqualify Rule 1.12 – Former Judge, or Third-Party Neutral (a) Former judge or 3rd party neutral that substantially worked on a matter can not then be an advocate for either side (b) Judge or 3rd party neutral can not seek employment from any party in a matter which he is personally involved. Law clerks can seek employment as long as he asks the judge first. (c) The firm of the former judge or 3rd party neutral is also conflicted out unless: (1) Former judge is screened form participation in the matter
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(2) Former judge is apportioned no part of the fee (3) Written notice is given to the appropriate parties (d) An arbitrator selected as an advocate of a party in a matter is not prohibited from then representing that party Rule 1.13 – Corporation as a client (a) Your client is the corporation, not any individual in the corp. (b) If you find conduct in violation of the corporation’s legal obligations you must take reasonable steps to protect the corp. You must report up the food chain unless not reasonable to do so. (c) If you get to the top of the food chain and the problem is not getting fixed then you may report outside the corp. but only to the extent it will reduce injury to the corporation to do so. (d) If you are hired for the specific purpose of determining if the corp. is doing something illegal, then you can not report out. (e) If you are fired or withdraw pursuant to (b) or (c) then you must report that to the highest authority in the corp. (f) You must keep employees informed that you do not represent them, you represent the corp. (g) You can represent the corp. and an employee if you meet the requirements of rule 1.7 Comment 2 – When a corp. lawyer talks to the constituents of the corp. in connection with representation of the corp., those communications are protected as confidential. Upjohn v. Control Group Comment 4 – Before reporting up, you are encouraged to try and get the wrongdoing to be stopped by those doing it Comment 6 – Reporting out is limited to those matters within your representation Comment 10 – If the corp. interests become adverse to those of an employee, the lawyer should advise the employee to seek outside counsel and advise them of the scope of representation, and that the communications may not be privileged. Rule 3.1 – Frivolous Claims You can’t file frivolous claims or raise frivolous objections Rule 3.2 – Expediting Litigation Must make attempt to expedite litigation keeping interest of your client ahead Comment 1 – Reasonable requests to delay proceedings are ok Rule 3.4 – Fairness to Opposing Counsel (a) Can not destroy evidence or obstruct another party’s access to evidence (b) Can not falsify evidence, aid witness to testify falsely or give inducement to witness (c) Can not disobey court, unless you have a good faith believe and you openly appeal (d) Can’t make frivolous document requests or withhold docs frivolously (e) Can not talk about things in trial unless you reasonably believe it will be supported by admissible evidence
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(f) Can only advise client, relative and/or agent of client to not give info to other party voluntarily, unless the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving info (then can advise anyone) Comment 2 – Can not keep fruits or instrumentalities of crime, can examine them, but can not keep, alter, or destroy them. Comment 3 – Can not pay a witness to testify other than expenses and incidentals incurred due to testifying. Can pay expert witness a reasonable fee, but not a contingency fee
Rule 3.3 – Candor Toward the Tribunal Lawyer can not make false statement to a tribunal and should correct any misapprehension created by the lawyer. (a)(2) Must disclose legal authority that is directly on point and adverse to you (3) Can not offer evidence that you know is false, if a witness has given evidence that you know is false then you must take remedial measures, including disclosure if necessary. Lawyer may refuse to call a witness that he knows will testify falsely, unless that witness is a defendant in a criminal matter (b) If you know someone is going to lie, you must take remedial measures (c) This duty applies until the end of the proceeding. All through appeal, but not after. Continues until final judgment on appeal, or time for appeal has passed Comment 1 – These duties apply at a deposition as well, must correct record if necessary Comment 8 – The level of knowledge on the lawyer’s part is actual knowledge, but it can be inferred from the circumstances Comment 10 – What remedial measures should be taken? First advise the client not to lie, then attempt to withdraw as counsel, if those fail then must disclose to the tribunal, even if it violates rule 1.6 Rule 3.5 – Decorum of the Tribunal Can not talk to jurors during the trial Can not talk to judge ex parte, unless the rules specifically allow it Can not disrupt a tribunal You can talk to jurors after the trial unless: They make it clear they do not want to be contacted The communication involves harassment or misrepresentation Rule 3.6 – Trial Publicity (a) Lawyer who is participating or has participated in a trial shall not make a statement that he knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing the trial. (b) Things that can be said: (1) the claim, the offense or defense, the identity of the people involved (2) public info (3) that an investigation is in progress (4) the scheduling or result of any step in litigation (5) a request for assistance in obtaining evidence and/or info
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(6) a warning of danger only if reasonably belief there exists likelihood of substantial harm (7) in a criminal case you can also say these things: (i) the identity, residence, occupation of the accused (ii) info necessary to apprehend the accused (iii) the fact, time and place of arrest (iv) identity of investigating and arresting officers and length of investigation (c) If someone other than the lawyer’s client holds a press conference saying here are all the things that happened, you are entitled to respond to protect your client from undue prejudicial effect, you can only respond to the extent it is necessary to mitigate the damage that has been done Comment 5 – Things that you presumptively can’t say: (1) the character, or criminal record of a party; (2) in a criminal case, the possibility of a plea or the contents of a confession; (3) the performance or results of any test; (4) any opinion as to guilt or innocence; (5) info that will be inadmissible at trial; (6) the fact that there is a charge of a crime unless also explained that defendant is innocent until proven guilty
Rule 3.7 – Lawyer as Witness Lawyer can not be act as an advocate in a matter which it is likely to be a necessary witness, unless 1. Testimony relates to an uncontroverted issue 2. Testimony relates to the nature and value of legal services rendered in the case, 3. Disqualification of the lawyer would work substantial hardship on the client If someone in your firm is going to be a witness, that does not disqualify you Rule 3.8 – Special Responsibilities of a Prosecutor (a) only go forward when there is probable cause (b) make sure the accused has been advised of his rights and is given reasonable opportunity to obtain counsel (c) not seek to obtain waiver of rights from unrepresented person (d) must make timely disclosure of info that mitigates guilt (this is not true in a civil case, must respond to discovery requests but not need to volunteer info) (e) not subpoena a lawyer to discuss past or present client unless: (1) the info is not protected from disclosure (2) the evidence sought is essential (3) there is no other way to get the evidence (f) not make comments that will heighten public condemnation Comment 3 – If accused insists on appearing pro se then lawyer can attempt to obtain waiver of rights just like any other defendant Comment 5 – paragraph (f) supplements rule 3.6 Rule 3.9 – Advocate in Non-Adjudicative Proceedings Lawyer before legislative body or administrative agency shall disclose if they are representing someone if relevant
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Rule 4.1 – Truthfulness in Statements to Others In course of representing a client, lawyer shall not: (a) make false statement of material fact to third person; or (b) fail to disclose material fact if necessary to avoid assisting criminal or fraudulent activity by the client, unless prohibited by rule 1.6 Rule 4.2 – Communication with Person Represented by Counsel Lawyer shall not communicate with person that he knows is represented by a lawyer (in this matter), about the matter, unless there is consent from the other’s lawyer. Comment 3 – This rule applies even if the other person initiates the contact, lawyer must terminate conversation Comment 4 – Clients can talk to each other Comment 8 – Communication is prohibited only when the lawyer has actual knowledge that the other is represented by a lawyer, actual knowledge can be inferred from circumstances Rule 4.3 – Dealing with Unrepresented Person Lawyer may deal with unrepresented person but can not represent that he is disinterested. If the other party misunderstands the lawyer’s role then the lawyer must set him straight. Lawyer may not give legal advice except to advise them to get counsel. This rule applies when the other party has interests that are adverse to the lawyer’s client Comment 1, 2 – You can settle with an unrepresented person as long as they know you are adverse to them Rule 4.4 – Respect for Rights of 3rd Party (a) Lawyer shall not do things that only embarrass, delay or burden the third party (b) Lawyer who receives a document that was inadvertently sent to them, shall promptly notify the sender Rule 5.1 – Responsibilities of Partners, Managers, and Supervisory Lawyers (a) Partners and managers must take reasonable efforts to ensure that the firm and all members of the firm conform to the Rules of Pro Conduct (c) Partner/Manager is responsible for violation of a subordinate if: (1) He orders or ratifies the conduct (2) He fails to mitigate damages Rule 5.2 – Responsibilities of Subordinate Lawyer (a) Subordinate lawyer is bound by the Rules of Pro Conduct regardless of what anyone tells them (b) If there is a questionable call, and you rely on a reasonable decision of a superior, then you are in the clear. Rule 8.3 – Reporting Professional Misconduct (a) Shall disclose if lawyer knows another lawyer has violated rules and that raises a substantial question as to the lawyer’s honesty
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Rule 5.3 – Responsibility for Non-Lawyer Assistants You have to make sure that those working for you are properly supervised and they are acting in compliance with the rules of ethics Rule 1.5 – Fees (a) Can’t charge an unreasonable fee; look at factors: 1. Time and labor required, skill required, and type of work 2. Opportunity cost (doesn’t allow lawyer to work on other cases) 3. Customary fee for similar services 4. The actual fee and the result obtained 5. Time limitations (need to get things done) 6. Nature and length of the professional relationship with the client 7. The experience, reputation, and ability of the lawyer 8. Whether the fee is fixed or contingent (b) The scope of representation and the fee shall be communicated to the client within a reasonable time of starting representation (c) Contingent fee is allowed except as stated in (d), but the arrangement must be clear (who will pay for costs, etc.) (d) no contingency in (1) a divorce case (2) a criminal case (e) fee splitting between lawyers who are not in the same firm is only allowed if: (1) the division is in proportion to the services performed by each, or each lawyer assumes joint responsibility for the representation (2) the client agrees to the arrangement or the representation and this is confirmed in writing (3) the total fee is reasonable. Premium or value billing is where you charge for the service, not based on the hour Rule 1.15 – Safekeeping Property (a) Must keep clients funds in a client trust account (b) Lawyer can only deposit his own funds in the client trust account to pay for bank service charges in that account (c) Lawyer can only draw money from the client trust account as it is earned (d) Lawyer shall promptly pay client any money due to him (e) If there is money in dispute, it should remain in the trust account until the disputed portion is settled, the undisputed portion must be paid out Comment 4 – If a 3rd party makes a legit claim to funds that may belong to the client, the lawyer can not try to arbitrate the dispute. Must keep funds separate until dispute is resolved Use safe deposit box for items that fit in them Rule 6.1 – Pro Bono Service Lawyer should try to do 50 hours of pro bono work Comment 4 – If you have a paying client that stiffs you, that is not pro bono work
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Comment 9 – If you can’t do it, you may be able to provide financial support to organizations providing free legal services. Support should be equivalent to the value of hours of services that you would have provided. Also a firm may collectively try to do the pro bono work. Comment 10 – Lawyers should also support programs that provide free legal services Comment 11 – Law firms should act reasonably to allow and encourage all lawyers to abide by this rule
Rule 6.2 – Accepting Appointments Rule 5.4 – Professional Independence of a Lawyer (a) Lawyer shall not share legal fees with non-lawyer except (1) Pursuant to an agreement that pays money for a reasonable amount of time to the lawyer estate after his/her death (2) A lawyer who purchases the practice of a deceased can pay to the estate the purchase price (3) Can have a retirement plan for non-lawyer employees (4) Can share attorneys fees with non-profit organization if the organization employed, or referred the lawyer (b) Lawyer can not form partnership with non-lawyers in practice of law (in house counsel excepted) (c) Lawyer can not have the person paying the lawyer to regulate what he does (d) Lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein (2) a nonlawyer is a corporate director or officer (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer Rule 5.5 – Multi-jurisdictional 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. (b) A lawyer who is not admitted to practice in a jurisdiction shall not: (1) establish an office in the jurisdiction (2) hold out to the public that he is authorized to practice here (c) Can practice law out of jurisdiction on temp basis as long as: (1) team up with lawyer authorized to practice in the jurisdiction (2) lawyer is authorized to practice in that jurisdiction in a court matter, and this matter is substantially related (3) if it is an arbitration and the work is reasonably related to stuff that you were working on (4) arise out of work that you were doing in your jurisdiction (d) Lawyer can provide services in another jurisdiction if: (1) the services are provided to lawyer’s employer or affiliates and no pro hac vice admission is allowed (govt. lawyers and in house counsel); or (2) other federal law allows it
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Comment 16 – In house counsel can provide services to the company all over, but not services to individuals in the company
Rule 5.6 – Restrictions on Right to Practice Lawyers can not agree to put restrictions on other lawyer’s activities. Rule 7.1 – Communications Concerning a Lawyers Services Lawyer can not make misleading statement about the lawyer’s services Comment 3 – Advertisement that is truthful can be misleading if it creates misleading expectations Rule 7.2 – Advertising (a) Lawyer may advertise through written, recorded or electronic publication (b) Lawyer may not give anything of value to a person for recommending their services except that a lawyer may (1) pay reasonable costs of advertisements (2) pay the costs of a legal service plan (3) pay for buying a law practice (4) refer clients to another lawyer pursuant to a reciprocal referral agreement as long as the agreement is not exclusive and the clients are informed of the agreement The reciprocal agreements can not be indefinite in time. Rule 7.3 – Direct Contact with Prospective Clients (a) Lawyer shall not solicit pecuniary business by telephone, real time electronic transmission or in person unless the person contacted is: (1) a lawyer (2) a close personal friend, a family member, or a prior professional relationship (b) Lawyer shall not solicit business from a client at all if: (1) the prospective client has made known to the lawyer that he does not want to be solicited, or (2) the solicitation involves coercion, or harassment If lawyer sends solicitation letter and gets not response, must stop (c) All advertising or soliciting done to people other than lawyers or family members must clearly state “advertising material” on it. (d) Legal services plan can directly solicit people as long as they are not soliciting people that they know need services Rule 7.4 – Fields of Practice and Specialization (a) Lawyer may say they practice in a specific field of law o Can say you are a specialist, but not certified specialist unless meet (d) (b) Patent lawyers can say they are patent lawyers (c) Admiralty lawyer can say they are (d) Lawyer can only state they are certified specialist if they have been certified by an approved organization and the organization is clearly identified
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Rule 7.5 – Firm Names and Letterhead (a) Firm names can not be misleading and can not imply connection with govt. (b) (c) Name of a lawyer holding public office can not be used by the firm if the lawyer is not practicing with the firm CJC Cannon 1 – Judge shall uphold the integrity and independence of the judiciary Cannon 2 – Judge shall avoid impropriety or appearance of impropriety A. Shall respect and comply with the law B. Shall not allow family or social relationships to influence, shall not lend the prestige of the office to others, shall not testify as a character witness C. Shall not hold membership that practices invidious discrimination on the basis of race, sex, religion, or national origin Cannon 3 – Judge shall perform the duties of the office impartially and diligently B5 – Shall perform judicial duties without bias or prejudice. Shall not by words or conduct, manifest bias including: race, sex, religion, national origin, age, disability, sexual orientation, or socioeconomic status B7 – No ex parte communication concerning a pending proceeding except that: (a) where circumstances require ex parte communication for scheduling or administrative matters it is authorized but only if the judge reasonably believes that no tactical advantage will be gained and the judge makes provisions for the other side to be informed and given a chance to respond (b) judge may get advice from disinterested expert on the law if the judge gives notice to the parties and affords them reasonable time to respond (c) judge may consult with court personnel or other judges (d) judge may, with consent of the parties, confer separately with the parties in an effort to mediate or settle matters pending before the judge (e) judge may have ex parte communication where it is permitted by law B9 – While any matter is pending in any court, a judge shall not make statements that will impair the ability for a fair trial. This section does not apply to a case in which the judge is a litigant B10 – With respect to matters before his court, judge shall not make promises that are inconsistent with impartial performance B12 – Judge shall not disclose or use any non-public info that he gained in a judicial capacity D1 – Judge who receives info that there is substantial likelihood that another judge has violated these rules shall take appropriate action, if violation reflects upon fitness for office then must tell authorities D2 – Judge who learns of lawyer’s violation of rules should take same action as in D1 D3 – If judge takes action under D1, or D2 then his actions are absolutely privileged and there shall be no civil liability resulting from it E1 – Judge shall disqualify himself when his impartiality might reasonably be questioned, including where:
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(a) the judge has personal bias as to a party or has personal knowledge of disputed facts (b) the judge has served as a lawyer in the matter or former partner of judge has served in matter (c) the judge or family member has an economic interest in the matter (d) the judge’s spouse or family member is: (i) a party in the proceeding (ii) acting as a lawyer in the proceeding (iii) is known to have more than a de minimus interest (iv) is likely to be a material witness (e) the judge knows or learns that a party has made contributions to the judge’s campaign (f) the judge has made a public statement that commits the judge as to an issue in the proceeding F – Remittal – If the judge is to be disqualified for any reason other than personal bias or prejudice, then the parties can all agree, outside of the presence of the judge to allow him to serve. All this should be done on the record Cannon 4 – Judge shall conduct his extra-judicial activities so as to minimize the risk of conflict with judicial obligations B – Judge may speak, write, lecture, etc. C1 – Judge shall not appear at a public hearing or consult with legislative body except as to matters concerning the law or except when acting pro se in a matter of the judge’s own interest C2 – Judge shall not accept appointment to governmental committee except on matter concerning the law C3 – Judge may serve as non-legal advisor to governmental agency concerned with improvement of the law D3 – Judge may not serve as director or officer of any business entity, unless it is one that is closely held by the judge’s family or a business entity primarily involved in investment of the judge’s family resources D4 – Judge shall manage finances in a manner that will lead to few disqualifications D5 – Judge shall not accept any gift except . . . F – Judge shall not act as arbitrator or mediator in private capacity G – Judge shall not practice law, but can give legal advice to family for free H – Judge can get compensation for extra-judicial activities as long as it is reasonable and as long as it is reported Rule 8.5 – If you get disciplined in Illinois, what effect does that have on you in CA. Rule 1.6 – Reveal to prevent substantial bodily harm v. to prevent criminal act that will result in substantial bodily harm. What if child is buried alive? Rule 1.8 – We talked about example where lawyer is being sued for malpractice, and we said if there is a settlement offer within the limits that the lawyer wants to take, but the insurance company does not, then if the case goes to trial then insurance company will be responsible to pay whole damage.
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