MULTISTATE PROFESSIONAL RESPONSIBILITY OUTLINE
© copyright PLI 2004 INTRODUCTION
I. THE APPLICABLE LAW According to the MPRE Information Booklet published by the National Conference of Bar Examiners (the drafters of the MPRE): “The MPRE is based on the law governing the conduct of lawyers, including the disciplinary rules of professional conduct currently articulated in the ABA Model Rules of Professional conduct, the ABA Model Code of Judicial Conduct, as well as controlling constitutional decisions and generally accepted principles established in leading federal and state cases and in procedural and evidentiary rules.” A. American Bar Association Model Rules of Professional Conduct (“the Rules”) The Rules were developed by the ABA in 1983 to solve various difficulties that experience had revealed in the ABA’s prior set of suggested ethics rules (The ABA Code of Professional Responsibility) by replacing it with an entirely new system. The Rules contain a Preamble, numbered Rules, and Comments to each Rule. Using the Rules as a study aid. It may aid understanding or be useful as a study device to actually examine the Rules themselves. In this regard, it is helpful to be aware of how the Rules are structured. The principles of professional responsibility are expressed in the Rules using two elements: Element 1: The Rule itself. This is a "black-letter law" type statement of a concrete principle of law. Element 2: The Official Comment. This section elaborates upon and explains the specific language of the numbered Rule in varying situations. B. American Bar Association Model Code of Judicial Conduct (“CJC”) The current version of the CJC was adopted by the ABA in 1990. It is organized into five "Canons," which are broad statements of principle. Each Canon is followed by specific rules (referred to as "Sections") which expand upon the general principles, and a Commentary. The Canons and Sections are said to be "authoritative," in contrast to the Commentary, which is described as providing "guidance by explanation and example" and as not an additional set of rules. The CJC also contains a Terminology Section, which defines many of the words and phrases used, and an Application section, which sets forth the judicial officers to whom the CJC applies. 1
C. The “Law of Lawyering” The MPRE tests an examinee's knowledge and understanding of the law relating to a lawyer's professional conduct. Modern law governing the conduct of lawyers is most significantly manifested in supervision of lawyers by state disciplinary authorities. MPRE coverage in this regard is based in large part on the ABA Model Rules (“the Rules”), described above. Outside the disciplinary context, the MPRE includes coverage of controlling constitutional decisions and generally accepted principles established in leading federal and state cases, as well as in procedural and evidentiary rules. II. FORMAT OF THE MPRE The MPRE consists of FIFTY (50) multiple-choice questions. Each question describes a set of facts (the "fact pattern") in a few paragraphs, then asks whether a certain conclusion regarding that fact pattern follows (the "call" of the question). Four possible answers labeled "A" through "D" are then presented (the "answer picks"). The examinee must select the "BEST" ONE of the four answer picks. The examinee has TWO HOURS AND FIVE MINUTES to answer the 50 questions (plus ten "test center review items"). III. TERMINOLOGY USED IN MPRE QUESTIONS A. Categories of Provisions. Each question on the MPRE uses a key word or phrase in the interrogatory which guides analysis of that question. The NCBE identifies six types which may be included on the MPRE, "among others." Understanding these key words can be aided by recognizing that the principles contained in the Rules fall into three (3) general categories: Category 1: Mandatory provisions--these refer to conduct in which a lawyer MUST (or MUST NOT) engage. Category 2: Permissive provisions--a lawyer is ALLOWED but NOT REQUIRED to engage in this type of behavior. Category 3: Inspirational provisions--lawyers should strive to achieve this level of conduct. B. Key words and Phrases. 1. “Subject to Discipline” (“MUST”). Use of this term in the interrogatory asks whether the conduct referred to or described in the fact pattern would subject the lawyer to discipline under the Rules. Thus, only the mandatory provisions of the Rules are of concern here. Note: use of the term "must" has traditionally had the same effect as an interrogatory key word; that is, a question which asked "must Attorney [engage in specified conduct]" was equivalent to asking whether that attorney would be 2
"subject to discipline" for failing to engage in the same conduct. 2. “May” or “Proper”. Use of these terms in a fact pattern asks whether the conduct referred to or described in the question is professionally appropriate in that it would NOT subject the attorney to discipline and is NOT INCONSISTENT with anything else contained in the Rules or generally accepted principles of the law of lawyering. Such questions thus refer to all the provisions of the Rules--mandatory, permissive and inspirational. 3. “Subject to Litigation Sanction”. Use of this terminology in a fact pattern asks whether the conduct referred to or described in the question would subject the lawyer or her firm to sanction by a tribunal such as contempt, fine, fee forfeiture, disqualification, or some other imposition. 4. “Subject to Disqualification”. Use of this terminology in a fact pattern asks whether the conduct described in the question would subject the lawyer or the lawyer’s firm to disqualification as counsel in a civil or criminal matter. 5. “Subject to Civil Liability”. Use of this terminology in a fact pattern calls for an application of principles of general law to determine whether or not the actions of the lawyer have tortiously interfered with the rights of the client. Liability could arise, for example, from malpractice, misrepresentation, or breach of fiduciary duty. 6. “Subject to Criminal Liability”. Use of this terminology asks whether the conduct described in the question would subject the lawyer to criminal liability for participation in, or aiding and abetting criminal acts. Examples include prosecution for insurance and tax fraud, destruction of evidence, or obstruction of justice. 7. “Should”. The terminology "should" is no longer listed in the MPRE Information Booklet as an example of an interrogatory key word, but as noted above, the booklet states that the key words and phrases "may include" those listed, "among others." (For example, the MPRE Information Booklet published by the NCBE provides a sample question dealing with judicial ethics with the following interrogatory: "Should Judge disqualify herself from the case?") It is therefore advisable to be familiar with how "should" was previously tested. Use of "should" asked whether the conduct referred to or described in the question at least conforms to the level of conduct expected of lawyers as established by the Rules. It referred to all three types of provisions — mandatory, permissive, and inspirational. If a particular behavior is called for anywhere in the Rules, a lawyer "should" engage in that behavior. a. Conduct exceeding that REQUIRED of lawyers. The terminology used in the interrogatory may invoke a distinction between what the Rules of Professional Responsibility REQUIRE a lawyer to do and what they ALLOW a lawyer to do. Thus, in a particular fact pattern, a lawyer may choose to follow the "higher" standard of behavior, i.e., to do more than the minimum required by the Rules of Professional 3
Conduct. Consider the following hypothetical: "Client prepays $1,000 to Lawyer. Lawyer subsequently performs $300 worth of legal services for Client, and then the representation terminates. Lawyer MAY: I. Immediately transfer the $1,000 to her personal account. II. Immediately return $700 to Client, and transfer $300 to her personal account. III. Immediately transfer $1,000 to Client. (A) I and II only. (B) II only. (C) II and III only. (D) I, II, and III." The correct answer is choice (C). Action I is clearly inappropriate. Lawyer has earned only $300, and is not entitled to the $700 remaining of the $1,000. Action II is appropriate, because it conforms to the applicable substantive rule (a lawyer is only permitted to keep that portion of an advance fee payment which is actually earned and must return unearned advance fee payments to the client). Action III is also appropriate, because Lawyer is certainly permitted to return all of the money Client prepaid, and then seek payment from Client for the services actually rendered. Change the interrogatory to, "Lawyer SHOULD," and the correct answer is choice (B). Action III is NOT conduct in which a lawyer "should" engage because Lawyer is NOT REQUIRED to return more than $700 to Client. Although Lawyer "may" return $1,000, and it is "proper" to return $1,000, it is not correct to say that she "should" return all of the money. 8. “Informed consent”. In situations where consent was involved, the Rules originally spoke of obtaining “consent after consultation.” The Rules now use the term “informed consent.” Rule 1.0 defines "informed consent" so as to incorporate the notion of consultation, and elaborates upon it. “Informed consent” refers to agreement, by the person consenting, to a proposed course of conduct AFTER the lawyer has COMMUNICATED ADEQUATE INFORMATION and EXPLANATION to that person about the MATERIAL RISKS of and REASONABLY AVAILABLE ALTERNATIVES to the proposed course of conduct, i.e., the matter as to which the informed consent is sought. (Rule 1.0(e).) 4
a. Test of reasonability. This means that the lawyer must make REASONABLE EFFORTS to ensure that the client or other person possesses information REASONABLY ADEQUATE to make an INFORMED DECISION. In determining whether the information and explanation provided are reasonably adequate, relevant factors include 1) whether the client or other person is EXPERIENCED IN LEGAL MATTERS generally and in making decisions of the type involved, and 2) whether the client or other person is INDEPENDENTLY REPRESENTED BY OTHER COUNSEL in giving the consent. (The lawyer may generally assume that a client or other person independently represented by other counsel is giving “informed” consent.) (Comment [6] to Rule 1.0.) b. “Confirmed in writing”. The Rules often require that informed consent be "confirmed in writing." "Writing" or "written" as defined in the Rules refers to a tangible or electronic record of a communication or representation, and includes handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. (Rule 1.0(n).) The written confirmation of informed consent can take TWO FORMS-1) Writing by the person giving informed consent. The informed consent can be given in WRITING BY THE PERSON CONSENTING. 2) Writing by lawyer confirming oral consent. The lawyer may prepare a writing confirming informed consent GIVEN ORALLY, and then transmit this writing to the person consenting. 3) Timing of confirmation in writing. The writing which confirms informed consent MUST be obtained from the person consenting, or transmitted to that person (if a lawyer-prepared confirmation of oral consent) PROMPTLY. Thus, if FEASIBLE, in either situation, the writing would be obtained from or transmitted to the consenting person AT THE SAME TIME THE INFORMED CONSENT IS GIVEN. If the written confirmation cannot be obtained or transmitted at the same time informed consent is given, the lawyer must obtain or transmit it WITHIN A REASONABLE TIME THEREAFTER. (Rule 1.0(e).) A lawyer may act in reliance upon orally obtained informed consent so long as it is confirmed in writing within a reasonable time. (Comment [1] to Rule 1.0.) 4) Distinguish “signed by the client”. It is not clear where there is any difference between informed consent “given in writing” by the consenting person, and a requirement that an agreement be “signed” by the person agreeing. However, the Comments specifically refer to informed consent being “INFERRED” from the conduct of a person given adequate information (but not from “silence” by a person asked for consent). (Comment [7] to Rule 1.0.) Be alert to situations where agreement must be reflected in a WRITING SIGNED BY THE CLIENT. For example, Rule 1.5(c) requires that a contingent fee agreement be contained in such a writing. The Rules define a "SIGNED" writing so as to include an electronic 5
sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. (Rule 1.0(n).) LAWYERS I. THE BASICS: Becoming a lawyer and losing the right to be a lawyer. A. Becoming a lawyer. 1. Moral fitness: Test: "Must have a rational connection with the applicant's fitness or capacity to practice law." In order for a person to be admitted to practice law in a particular jurisdiction, she must be a "morally fit" person. In Shware v. Board of Bar Examiners (1957), the United States Supreme Court held that moral fitness was related to whether a particular act of misconduct (engaged in by the applicant) had "a RATIONAL CONNECTION with the applicant's FITNESS or CAPACITY to practice law." 2. Information on fitness: Bar authorities use two sources of information to determine an applicant's moral fitness to practice law: (a) information from the applicant, and (b) information from other persons. a. Information from applicant: Each jurisdiction requires the applicant to submit information about him or herself via a formal written application, which varies in level of detail and complexity. 1) Applicant must not lie or fail to disclose information: An applicant must NOT, in connection with application for admission to the bar, knowingly make a false statement of material fact, fail to disclose a fact that is necessary to correct a misapprehension known by the person to have arisen in the matter, or fail to respond to a lawful demand for information from an admissions or disciplinary authority (UNLESS the information cannot be revealed due to the duty of confidentiality). (Rule 8.1(a) and (b).) 2) Invoking Fifth Amendment rights: An applicant for admission to practice law may invoke their privilege against self-incrimination pursuant to the Fifth Amendment to the United States Constitution in connection therewith. If relying on such a provision in response to a question, the applicant should do so openly and not use the right of nondisclosure as a justification for failure to comply with the obligations of the rule. (Comment to Rule 8.1.) That is, the applicant must actually state that she is refusing to answer, not simply leave out the incriminating information. a. Information from others: A lawyer must not further the application for admission to the bar of a person unless the lawyer has a good faith belief that the 6
applicant is qualified to practice law. The obligations of a lawyer who supplies information regarding an application by another for admission to practice law are identical to those for the applicant--the lawyer must not (1) knowingly make a false statement of material fact, (2) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or (3) knowingly fail to respond to a lawful demand for information (unless the information cannot be revealed due to the duty of confidentiality). (Rule 8.1(a).) b. Lawyer supplying information about disciplinary matters: A lawyer's obligations regarding supplying information about disciplinary matters are the same as those set forth above -- (1) the lawyer must not knowingly make a false statement of material fact, (2) fail to disclose a fact that is necessary to correct a misapprehension known by the lawyer to have arisen in the matter, or (3) fail to respond to a lawful demand for information from a disciplinary authority (UNLESS the information cannot be revealed due to the duty of confidentiality). (Rule 8.1 (a) and (b).)
B. Disciplining a lawyer. 1. Misconduct defined. a. Crimes of dishonesty and moral turpitude: It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. (Rule 8.4(b).) b. Acts involving fraud or deceit: It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. (Rule 8.4(c).) Note: a lawyer may be disciplined for dishonest conduct that does NOT rise to the level of a violation of civil law (i.e., an actual tort). c. Violation of Rules of Professional Conduct: It is professional misconduct for a lawyer to violate, attempt to violate, or knowingly assist or induce another to violate the Rules of Professional Conduct. (Rule 8.4(a).) This refers to conduct which violates the MANDATORY provisions of the Rules. d. Other acts constituting misconduct: It is also professional misconduct for a lawyer to engage in conduct that is PREJUDICIAL to the ADMINISTRATION of JUSTICE, state or imply an ability to IMPROPERLY INFLUENCE a government agency or official, or KNOWINGLY ASSIST a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. (Rule 8.4(d)-(f).) 2. Acts outside the state are also covered: If a lawyer engages in behavior which would 7
otherwise be "misconduct" as discussed above, she is subject to discipline by a jurisdiction in which that lawyer is admitted to practice, even if NOT the SAME jurisdiction in which the misconduct occurred. (Rule 8.5 and Comment.) This concept is frequently tested on the MPRE. Once a person becomes a lawyer, he is subject to the rules of professional responsibility wherever, whenever, and whatever he does. Note: A lawyer need NOT be engaged in the practice of law for her misconduct to be subject to discipline. C. Responsibility for acts of others. 1. General rule: A lawyer is responsible for a violation of the Rules of Professional Conduct committed by another PERSON if the lawyer either (a) ORDERS the improper conduct, (b) RATIFIES the improper conduct, with KNOWLEDGE that the specific conduct is improper, or (c) (as to partners, lawyers with comparable managerial authority, or supervisors) knows of the improper conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (Rule 5.1(c), Rule 5.3(c).) 2. Partners: A PARTNER (or a lawyer with comparable managerial authority) in a law firm must make REASONABLE efforts to ensure that the firm has MEASURES IN PLACE giving reasonable assurance that all lawyers and all non-lawyers employed, retained by or associated with the firm conform their conduct to the Rules of Professional Conduct. (Rules 5.1(a), 5.3(a).) a. Lawyers subject to this obligation: The term "partner" means a member of a partnership or a shareholder in a law firm organized as a professional corporation. (Preamble to Rules.) A lawyer who has managerial authority (comparable to a partner) in the law department of an enterprise or government agency is subject to these duties, and a lawyer who has intermediate managerial responsibilities in a firm is also a "partner" for purposes of this rule. (Comment to Rule 5.1.) 3. Supervisors: The rule for supervisors is the same as for partners, except that the supervisor's responsibility extends only to those persons (lawyers or non-lawyers) over which the supervisor has DIRECT SUPERVISORY AUTHORITY. As to those persons, the supervisor must make reasonable efforts to ensure that the supervised person's conduct conforms with the Rules of Professional Conduct. (Rules 5.1(b), 5.3(b).) 4. Subordinates: Where a lawyer acts at the direction of another person, this generally does NOT exempt the lawyer from obeying the Rules of Professional Conduct. (Rule 5.2(a).) EXCEPTION: A subordinate will NOT be held responsible if an action is subsequently determined to be a violation of the Rules of Professional Conduct if two conditions are present: (a) the conduct at issue involves ARGUABLE QUESTIONS of professional duty, and (b) the subordinate acts in accordance with a supervisory lawyer's REASONABLE resolution of the ethical problem. (Rule 5.2(b).) 8
An ethical problem is NOT an "arguable" question if it can REASONABLY be answered ONLY ONE WAY in the exercise of professional judgment. (Comment to Rule 5.2.) Where there is MORE THAN ONE REASONABLE course, a lawyer with supervisory authority may assume responsibility for making the decision, and subordinates may follow that lawyer's directions. (Comment to Rule 5.2.) 5. Complying with partner/supervisory obligations: Measures which can satisfy a partner's special obligation as discussed above will vary according to the circumstances. In a small firm, informal supervision and occasional admonition may suffice. A larger firm may require such measures as continuing legal education on professional ethics, allowing junior lawyers to confidentially report ethical problems to a designated partner, etc. (Comment to Rule 5.1.) As to non-lawyers, they must be appropriately instructed and supervised concerning the ethical aspect of their employment, particularly NOT to disclose CONFIDENTIAL information of the client. (Comment to Rule 5.3.) a. Particular obligations emphasized: The Comments specifically mention certain "reasonable efforts" to establish internal policies and procedures that should be included in the above--those designed to DETECT and RESOLVE CONFLICTS OF INTEREST, to ACCOUNT FOR CLIENT FUNDS, and to ENSURE PROPER SUPERVISION of inexperienced lawyers, as well as nonlawyers employed by a firm. (Comment [2] to Rule 5.1.)
II. THE LAWYER'S RELATIONSHIP WITH THE CLIENT. A. Getting the client. Two important means by which lawyers get clients are ADVERTISING AND SOLICITATION. Regulation by bar authorities of these areas of professional responsibility is subject to constitutional limitations and has been the subject of several important court decisions. The Rules approach to this area was developed in response to these judicial decisions. 1. Advertising. a. Fundamental rule: "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." A lawyer must NOT make a FALSE OR MISLEADING statement about the lawyer or the lawyer's services. (Rule 7.1.) Whatever means are used to make known a lawyer's services, statements about them MUST be truthful. This is a general rule requiring truthfulness which applies to ALL COMMUNICATIONS concerning lawyer services, regardless of the manner of distribution or transmission. (Comment [1] to Rule 7.1.) 9
"False or misleading" is defined as a statement which contains a MATERIAL MISREPRESENTATION of law or fact, or which OMITS a fact necessary to make the statement as a whole NOT MATERIALLY MISLEADING. (Rule 7.1.) Consider Zauderer v. Office of Disciplinary Counsel (1985), in which an attorney took out newspaper advertisements asking women readers whether they had used the Dalkon Shield intrauterine device. The ads also advised women that they might have legal recourse, suggesting that the attorney would handle their cases on a contingent fee basis wherein "no legal fees are owed." The Supreme Court held that the advertisements could NOT be prohibited in their ENTIRETY, but UPHELD the state's requirement that advertisements about contingent fee retainers must disclose whether the client would be liable for court costs. The statement that "no legal fees are owed," while not false, could MISLEAD potential clients into believing that they would pay nothing if they lost. b. Applied: The Comments to Rule 7.1 expand upon what forms of advertising communications are prohibited, and those which are permitted, under the general rule. Most testing focuses on communications that are "misleading," since overt falsity so clearly violates ethical principles. 1) Types of communications likely to be MISLEADING . a) The Comments emphasize that a lawyer’s communication will be assessed as a whole--a “TRUTHFUL” statement (presumably, one that contains no overtly false matter) may be considered MISLEADING where it omits a fact necessary to make the lawyer's communication CONSIDERED AS A WHOLE not materially misleading. (Comment [2] to Rule 7.1.) b) An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client. (Comment [3] to Rule 7.1.) c) A “truthful” communication may be considered misleading where there is a substantial likelihood that the “truthful” statement will lead a reasonable person to formulate a SPECIFIC CONCLUSION about the lawyer or the 10
lawyer's services for which there is NO REASONABLE FACTUAL FOUNDATION. (Comment [2] to Rule 7.1.) Note: The law of many jurisdictions, representing enacted variations on the Rules, may permit advertisements which would violate the "model" provisions promulgated by the ABA. Remember that the MPRE tests these model provisions, and thus the reality of local law should not intrude upon one's study or be the basis of one’s answer. 2) Permitted forms of advertising (if not misleading). So long as communications regarding lawyer services are not false and misleading, a lawyer MAY advertise through written, recorded, or electronic communication, including public media (and subject to Rule 7.3, which governs direct contacts with prospective clients [often referred to as “solicitation”]). (Rule 7.2(a).) a) Prepaid or group legal service plan: A lawyer MAY participate in a prepaid or group legal service plan which markets its services by in-person or live telephone contact with prospective clients IF (1) the persons contacted are NOT KNOWN to NEED LEGAL SERVICES in a PARTICULAR MATTER covered by the plan, and (2) the lawyer does NOT OWN or DIRECT the organization. (Rule 7.3(d) [describing a form of permitted direct contact with prospective clients].) A lawyer MAY also contact representatives of organizations or groups to which that lawyer (or the lawyer's firm) wishes to offer GROUP or PREPAID legal services. Dangers represented by in-person or live telephone contact are reduced in this situation because it is the representatives, not the actual prospective clients, who deal directly with the lawyer. (Comment [6] to Rule 7.3 [describing a form of permitted direct contact with prospective clients].) b) b) Specialist. (1) Permitted--stating field of practice, claiming specialty. Under Rule 7.4, a lawyer MAY, in communications about the lawyer's services: (a) state that he PRACTICES IN ONLY CERTAIN FIELDS, or that he will NOT ACCEPT matters EXCEPT in a specified field or fields. (b) state that she is a "SPECIALIST," practices a "SPECIALTY," or "SPECIALIZES IN" particular fields (subject to the limitation on "false and misleading" communications). 11
(2) NOT permitted--claiming that the lawyer is "CERTIFIED" as a specialist. The circumstances under which a lawyer may communicate that she is CERTIFIED by an organization or authority as a SPECIALIST are limited. A lawyer must NOT state or imply that the lawyer has been certified as a specialist in a particular field of law EXCEPT: (a) to use the designation "PATENT ATTORNEY" or something similar IF ADMITTED to engage in PATENT PRACTICE before the United States Patent and Trademark Office. (Rule 7.4(b).) (b) to use the designation "ADMIRALTY," "PROCTOR IN ADMIRALTY" or a similar designation if engaged in ADMIRALTY PRACTICE. (Rule 7.4(c).) (c) where the lawyer has been CERTIFIED AS A SPECIALIST by an organization approved by an appropriate state authority or accredited by the American Bar Association AND the name of the certifying organization is clearly identified in the communication. (Rule 7.4(d).) c) Admitted elsewhere: A firm which has offices in more than one jurisdiction may use the same firm name in each, but the firm must INDICATE which of the partners are NOT LICENSED to practice in a jurisdiction. (Rule 7.5(b).) d) Mechanical rules.
(1) Name and address of at least one lawyer or law firm responsible for contents. The advertisement of lawyer services must itself contain the name and office address of AT LEAST ONE LAWYER or LAW FIRM responsible for the CONTENT of the advertisement. (Rule 7.2(c).) (2) Mentioning clients. A lawyer or law firm may include the name of a client in an advertisement, IF: (a) the client is REGULARLY REPRESENTED by that lawyer or firm, AND (b) that client CONSENTS IN ADVANCE. (Comment [2] to Rule 7.2.) (3) Paying for referrals. The general rule is that a lawyer must NOT 12
give anything of value to a person for recommending the lawyer's services. (Rule 7.2(b).) There are two logical EXCEPTIONS to this general prohibition: (a) A lawyer MAY pay the reasonable COST OF ADVERTISING or other permitted communications. (b) A lawyer may also pay the USUAL CHARGES of legal service plans, or of not-for-profit or qualified lawyer referral services (“qualified” means approved by an appropriate regulatory agency). (Rule 7.2(b).) The lawyer must take reasonable action to ensure that communications with prospective clients by these plans or services comply with applicable Rules for lawyer communications. (Comment [7] to Rule 7.2.) e. Firm names and trade names. A lawyer must NOT use a FIRM NAME, letterhead, or other professional designation which is FALSE OR MISLEADING. (Rule 7.5(a).) For example, it would be misleading for two lawyers to designate themselves as "Smith and Jones" when they shared physical office facilities but had no partnership agreement, because the name suggests that they are partners practicing law. (Rule 7.5(d) and Comment.) Rule 7.5(a) PERMITS lawyers to use TRADE NAMES (example: "LawDogs") so long as they are NOT MISLEADING and do NOT IMPLY a CONNECTION with a government agency or charitable or legal services organization. (1) Public officials. If a lawyer is a PUBLIC OFFICIAL, that lawyer's name may not be used in a law firm name during any SIGNIFICANT PERIOD in which (a) he or she holds public office and (b) is NOT ACTIVELY and REGULARLY practicing law as a member of the firm. (Rule 7.5(c).) (2) False claims of partnership. Lawyers MUST NOT FALSELY state or imply that they are PARTNERS. For example, if two lawyers share office space but have NO PARTNERSHIP AGREEMENT, they must not advertise their services as "Smith and Jones law offices." (Rule 7.5(d) and Comment thereto.) 2. Solicitation. The general rule is that "solicitation" is NOT PERMITTED, but the definition of solicitation has been limited significantly in a manner that allows significant client-seeking activity. a. Only in-person or live telephone contact regulated. Solicitation is effectively defined by Rule 7.3 as IN-PERSON, LIVE TELEPHONE, OR REAL-TIME ELECTRONIC CONTACT (e.g., instant messaging, on-line “chat rooms”) with a 13
prospective client, with ADDITIONAL elements discussed below which present significant dangers of overreaching or fraud. Thus, written communications, faxes, e-mail, etc. cannot be "solicitation" for purposes of the modern prohibition represented by Rule 7.3. b. Three EXCEPTIONS where solicitation permitted. Rule 7.3 also effectively defines prohibited solicitation so as NOT to include situations where the PERSON SOLICITED is (1) a LAWYER, (2) has a FAMILY or CLOSE PERSONAL relation with the lawyer offering representation, or (3) has a PRIOR PROFESSIONAL RELATIONSHIP with the lawyer offering representation. This latter category obviously applies to former legal clients, but also includes anyone with whom the lawyer offering representation had a former business relationship. c. Pecuniary gain to lawyer? One element which will classify in-person, live telephone, or real-time electronic contact with a prospective client (who is not a lawyer, family member or former client) as forbidden solicitation is where PECUNIARY GAIN is a SIGNIFICANT MOTIVE for the lawyer's action. The decision in In re Primus, a 1978 United States Supreme Court case, illustrates this principle. There, lawyers offered the free services of the American Civil Liberties Union to African-American women whose eligibility for federal benefits had been conditioned upon submitting to sterilization. Although this conduct (a person-to-person letter) would otherwise have been considered forbidden solicitation as then defined, the Court held that the lawyer could not be disciplined because the proposed litigation involved political expression and freedom of association, not pecuniary gain for the lawyer. (The decision noted that the state could still prohibit solicitation involving harm to clients such as actual overreaching, fraud or other abuse by the lawyer.) d. Other prohibitions--expression of no desire for contact, or coercion. Regardless of the "exceptions" discussed above, a lawyer may NEVER engage in communication or contact with a prospective client which involves (1) a person who has EXPRESSED a DESIRE NOT TO BE SOLICITED, or (2) COERCION, DURESS or HARASSMENT. (Rule 7.3(b).) e. "Advertising" label for certain communications to prospective clients known to need legal services. Written, recorded, or electronic communications (e.g., mail, e-mail, fax, phone recordings, television ads) (1) made to persons KNOWN TO NEED LEGAL SERVICES in a PARTICULAR MATTER, (2) must be LABELLED "ADVERTISING MATERIAL" on the OUTSIDE of the envelope or at the BEGINNING and ENDING of any recording or electronic communication. (Rule 7.3(c).) This requirement does NOT apply if the prospective client is one of the three categories as to whom solicitation is permitted (a lawyer, family/close personal relation, or one with a prior professional relation), nor if the communication is sent in response to requests of potential clients or their 14
spokespersons or sponsors. (Rule 7.3(c), Comment [7] to Rule 7.3.) "Clients known to need legal services in a particular matter" has a specific meaning which is illustrated by the distinction between "direct mail" advertising and more narrowly targeted mailings. For example, consider a lawyer who sent letters to all persons who recently passed the state bar exam, offering his legal services to any of them whose admission to the practice of law might be delayed by problems connected with problems with moral fitness. NO advertising label would be required for this letter because the mailing is sent to a LARGE GROUP of persons, only SOME of whom will probably need that lawyer's services. Their identities are sufficiently "lost" or distributed among those who will have no need for the offered legal services that they are NOT "known to need legal services" in the manner discussed in Rule 7.3(c). If, however, the lawyer obtained a special list of persons who recently passed the state bar exam and who were also undergoing disciplinary investigations, and sent the same letter offering his legal services, an advertising label WOULD BE REQUIRED. As to EACH person solicited, the lawyer KNOWS that person will need the legal services offered. f. Solicitations By Others (Third Parties). Where the solicitation activity is carried about by someone OTHER than the lawyer, it will constitute prohibited solicitation attributable to the lawyer if the "definitional" elements of solicitation are otherwise present AND the communication was DIRECTED BY the LAWYER. Consider the following hypothetical: "Lawyer asks Attendant, who works in a hospital emergency room, to distribute his business card to any persons who might need legal services arising out of any injury or medical condition. Attendant, who believes Lawyer to be competent and effective, agrees to do so, but only if he believes that the injured or sick person will benefit from Lawyer's services. Is Lawyer subject to discipline?" YES. Because (1) the contact is in-person, (2) a significant motive for the contact is Lawyer's pecuniary gain, and (3) the communication was being directed by Lawyer. Lawyer has engaged in prohibited solicitation and is subject to discipline. Note that the laudable motives of Attendant, the third party, are immaterial here. Because the elements of prohibited solicitation are present, Lawyer has violated the rules of professional responsibility. Contrast the situation where a satisfied client says to Lawyer, "I'm so pleased with your services, may I have several of your business cards to hand out to those of my friends who need legal representation?" Lawyer agrees and gives the client business cards. Is Lawyer subject to discipline? NO. Although there will be in-person contact between the client and the prospective clients, and a significant motive for Lawyer's conduct is pecuniary gain, there is no 15
prohibited solicitation because the satisfied client's communication is NOT DIRECTED by Lawyer. B. Keeping the client. 1. Competence. A lawyer must provide COMPETENT REPRESENTATION to her client. This means that the lawyer must utilize the legal knowledge, skill, thoroughness and preparation REASONABLY NECESSARY for the representation. (Rule 1.1.) a. Options for lawyer not initially competent. If a lawyer lacks the necessary knowledge or experience to competently handle a legal matter, he has three options which comport with the rules of professional responsibility: (1) Decline representation or withdraw. If a lawyer is not competent to provide competent legal representation to a prospective client, he may decline to represent that client. If the lawyer discovers AFTER accepting a representation that the case presents problems beyond his competence, he may withdraw from the representation. In this latter situation, the lawyer must protect the interests of the client, such as by ensuring that the client obtains other, competent counsel. (Comment to Rule 1.1.) (2) Make self competent (without unreasonable delay or expense to client). The lawyer may agree to represent a client even though she knows she is not PRESENTLY competent to perform, so long as (a) she does so with the understanding that the knowledge necessary to provide competent representation WILL BE OBTAINED through study and investigation, and (b) this can be accomplished WITHOUT unreasonable delay or expense to the client. (Comment to Rule 1.1.) (3) Associate with competent counsel. The lawyer may also agree to represent a client even though she knows she is not PRESENTLY competent to perform, IF she will ASSOCIATE WITH ANOTHER LAWYER (who IS COMPETENT to provide the representation) for advice and assistance. (Comment to Rule 1.1.) (4) Client cannot "consent" to incompetent representation. Where a lawyer is not competent to provide representation and cannot (or does not) choose one of the three acceptable options discussed above, the fact that the client consents to that lawyer's representation will NOT shield the lawyer from discipline. Consider the following hypothetical: "Client consults with Lawyer seeking legal representation. Lawyer recognizes that Client's problem has to do with admiralty law. Lawyer tells Client, "I know nothing about admiralty law, I know of no lawyer competent in admiralty law with whom I could associate, and it would be prohibitively time-consuming and expensive for me to learn admiralty law." Client, however, admires Lawyer and 16
knows that Lawyer is otherwise exemplary in honesty and diligence. Client therefore CONSENTS to have Lawyer represent him in the matter anyway. Is Lawyer subject to discipline?" YES. Accepting a representation as to which Lawyer is not competent is a violation of ethical obligations even after obtaining the client's consent, where (having failed to decline the representation) Lawyer will be unable to associate with competent counsel or to become competent within reasonable limits of time and expense. NOTE: Emergency exception. Where a lawyer is not competent in the area of law involved, a lawyer may provide legal services to a client in an emergency situation, but only within the scope of the emergency (i.e., the lawyer's assistance should be no more than is reasonably necessary under the circumstances). (Comment to Rule 1.1.) Consider the following hypothetical: "Lawyer was admitted to practice law one week ago. Senior Partner tells Lawyer, "I am too ill to appear at a hearing today; appear in my place and request a continuance based on my illness." Lawyer informs Senior Partner that she is not competent to provide representation to the client in this matter, but Senior Partner assures her that her competence will not be an issue because she is only requesting a continuance. At the hearing, the judge refuses to grant a continuance, and orders Lawyer to proceed with the case. Lawyer does so. Is Lawyer subject to discipline?" NO. The emergency nature of the circumstances prevented referral of the client to (or association of) a more competent practitioner. Once the hearing concluded, however, the "emergency" is over, and Lawyer must choose one of the three acceptable options--withdrawal, association of competent counsel or "becoming competent." b. Competent attorney does incompetent thing. A lawyer who is initially competent to provide representation, or properly associates with competent counsel (or becomes competent within reasonable time and expense limits) may subsequently ACT INCOMPETENTLY for some reason. Will this subject the lawyer to discipline? No, but such a circumstance may subject a lawyer to CIVIL LIABILITY for MALPRACTICE. (1) Limiting liability for malpractice. Malpractice situations can raise potential issues of professional responsibility (in addition to civil liability) to the extent that a lawyer engages in conduct seeking to LIMIT his liability for malpractice. Rule 1.8(h) PERMITS a lawyer to make an agreement prospectively limiting the lawyer's liability to a client for malpractice, but ONLY IF the client is independently represented in making the agreement. (The Rule also permits a lawyer, after the fact, to settle a claim for such liability with an unrepresented client or former client, but 17
ONLY IF that person is ADVISED IN WRITING that it would be DESIRABLE for the person to SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, and is given a REASONABLE OPPORTUNITY to do so.) 2. Fees and client funds. a. Fees. 1) Excessive fees prohibited. The most basic rule is that the fee which the lawyer charges the client must be REASONABLE. This includes a prohibition against unreasonable expenses. (Rule 1.5(a).) a) Test: A fee IS REASONABLE IF (1) an ORDINARILY PRUDENT ATTORNEY (2) IN THE (GEOGRAPHIC) AREA (3) would regard the fee as NOT CLEARLY EXCESSIVE. b) Factors: Whether a lawyer's fee to a client is reasonable is determined by application of a number of factors (set forth in Rule 1.5(a).) This area represents the rare (perhaps the only) circumstance where it might be useful to actually memorize the relevant portion of the Rules. If an MPRE question offers a number of fee considerations and then asks, "Which of these MAY the attorney consider in deciding what fee to charge a client?", knowing the relevant factors would permit the examinee to identify which combination forms the correct answer. The factors are: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the services. (2) The experience, reputation and ability of the lawyer or lawyers who perform the services. (3) The amount involved and the results obtained. (4) The likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer. (5) The customary fee charged for similar work in that locality. (6) Time limitations imposed either by the client or by the circumstances. 18
(7) The length and nature of the professional relationship with the client. (8) Whether the fee is contingent or fixed. 2) Fee-splitting. Fee splitting ("division of fees") is regulated with the recognition that lawyers in the SAME FIRM will share the fees earned by all the lawyers in the firm. (Rule 1.5(e).) This same analysis applies to separation or retirement agreements among lawyers in a law firm. The principles discussed below apply to lawyers NOT in the same firm. A division of fees among lawyers NOT in the same firm may be made ONLY if ALL of the following THREE conditions are met: a) In proportion to services. The division of fees must be "IN PROPORTION" to the services performed. A fee division is proportional under EITHER of TWO circumstances: (1) if the AMOUNT RECEIVED by each participating lawyer is proportional to the AMOUNT OF WORK performed by that lawyer, or (2) if each participating lawyer assumes JOINT RESPONSIBILITY for the representation. (Rule 1.5(e).) (1) Impact on referral fees. Many states permit a lawyer to receive a portion of a fee for referring a client to another lawyer. Under the Rules, both the referring lawyer and the referred-to lawyer are subject to discipline for violating the proportionality requirement. The referring lawyer does no work on the case, and assumes no joint responsibility for the representation. Thus, under either the mathematical test, or the joint responsibility test, the fee division is improper. This is another manifestation of the "ideal" nature of these "model" principles, which are frequently altered when actually enacted into law. Since the MPRE tests the model principles, remember that referral fees are prohibited for test purposes. b) With client's "agreement." The client must AGREE TO THE ARRANGEMENT, including the SHARE each lawyer will receive, and this agreement must be CONFIRMED IN WRITING. c) Fee is reasonable. The TOTAL fee charged to the client must be REASONABLE. This means that the fee cannot be increased to an unreasonable extent due to the fee splitting arrangement. 3) Contingent fees. Contingent fees are GENERALLY PERMITTED, but are prohibited in TWO situations: a) Criminal case. Contingent fee arrangements in criminal matters are NOT permitted. (Rule 1.5(d)(2).) 19
b) Marital proceedings. Contingent fees are prohibited in DOMESTIC RELATIONS cases in three circumstances: (1) payment of or the amount of the fee depends upon SECURING a divorce; (2) payment of or the amount of the fee depends upon the AMOUNT of ALIMONY or SUPPORT (except as to certain post-judgment collections of balances-due [Comment [6] to Rule 1.5]); (3) payment of or the amount of the fee depends upon the AMOUNT of any property settlement IN LIEU of alimony or support. (Rule 1.5(d)(1).) 4) Procedures--Timing and getting it in writing. (a) When fee must be set. Rule 1.5(b) REQUIRES a lawyer to communicate the basis or rate for the fee (and any expenses for which the client will be responsible) BEFORE or within a REASONABLE TIME AFTER beginning the representation, UNLESS the lawyer has regularly represented the client on the same basis or rate. (b) Requirement that contingent fee agreement be in writing. Rule 1.5(c) REQUIRES a WRITING SIGNED BY THE CLIENT in otherwise permissible CONTINGENT fee situations, and specifies that the writing must include: (i) the METHOD by which the fee is to be determined, (ii) the PERCENTAGE or percentages that will accrue to the LAWYER upon settlement, trial or appeal of the matter, (iii) litigation and other EXPENSES which will be DEDUCTED from the recovery, and (iv) whether such expenses are to be deducted BEFORE or AFTER the contingent fee is calculated. (c) Other (non-contingent) fee arrangements should "PREFERABLY" be in writing. (Note that when the lawyer has REGULARLY REPRESENTED the client, Rule 1.5(b) does NOT require that the basis for the fee be communicated to the client, unless this has CHANGED from the previous representations.) 5) Sale or purchase of a law practice. a) General rule. A lawyer or law firm MAY SELL or PURCHASE a law practice if FOUR CONDITIONS are met: (i) Sale must be to a SINGLE PURCHASER of the ENTIRE PRACTICE. 20
Clients are not commodities which may be sold piecemeal. The sale of a law practice must be to a single lawyer or law firm who will continue to represent the clients, EXCEPT where the purchaser is compelled to DECLINE REPRESENTATION by other rules of professional conduct. (Comment to Rule 1.17.) (a) Raising fees after purchase of law practice. The purchasing lawyer MUST NOT finance the transaction by RAISING FEES of the clients in the PURCHASED PRACTICE. Fee arrangements may be modified with client consent, but the purchaser MUST NOT FRAGMENT the purchased practice by charging significantly different fees as to substantially similar matters (intending that "purchased" clients will decline to pay higher fees--see following sentence). The purchaser MAY DECLINE a representation if the client refuses to pay the PURCHASING LAWYER'S USUAL, PRE-SALE fees for new work. (Rule 1.17(d) and Comment.) (ii) The SELLER must CEASE to PRACTICE law in that LOCATION. The seller must cease to practice in a DEFINED GEOGRAPHICAL AREA or in the ENTIRE JURISDICTION (depending upon the language adopted by each bar authority). (Rule 1.17(a).) If a lawyer sells her practice and then moves to another state, or to another location in a large state, and practices law there, this would probably not violate the Rule. (Comment to Rule 1.17.) (a) EXCEPTIONS--working for organization, unexpected circumstances. TWO types of circumstances can justify the seller of a law practice in continuing to practice law without changing location as discussed above. (i) If the seller-lawyer subsequently practices law as an EMPLOYEE of a PUBLIC AGENCY, LEGAL SERVICES ENTITY, or a BUSINESS (e.g., as in-house counsel), there is no violation. (ii) In addition, the seller may be permitted to return to practice in UNEXPECTED CIRCUMSTANCES. For example, a lawyer who sold his practice because he was appointed to judicial office, but subsequently failed to win re-election to that office, could continue to practice law without violating the Rule. (Comment to Rule 1.17.) (iii) ACTUAL WRITTEN NOTICE is given to EACH of the SELLER'S CLIENTS and they CONSENT (or court order excuses). The notice must include any PROPOSED CHANGES in FEE ARRANGEMENTS, the client's RIGHT to OBTAIN OTHER COUNSEL (or to take his files), and that the client's CONSENT will be PRESUMED if the client takes no action or fails to object within 90 days. EXCEPTION: If it is NOT POSSIBLE to give a client actual, written notice, representation of that client may be transferred to the purchaser without the client's consent IF a COURT having jurisdiction SO ORDERS. (SUBSTITUTION of counsel in 21
PENDING COURT PROCEEDINGS may also require COURT APPROVAL.) (Rule 1.17(c).) (iv) ALL OTHER ETHICAL RULES MUST BE SATISFIED. ALL OTHER applicable RULES of professional responsibility must be SATISFIED during any process of sale or purchase of a law practice. These include (but are not limited to) the ethical requirements relating to lawyer competence, client conflicts, and client confidentiality. (Comment to Rule 1.17.) b) Situations NOT COVERED by Rule. For purposes of Rule 1.17, the following situations are NOT considered "sale or purchase of a law practice":
(i) RETIREMENT from a law partnership or professional association. (ii) RETIREMENT PLANS. (iii) SALE of the TANGIBLE ASSETS of a law practice. (Comment to Rule 1.17.) b. Client funds. The ethical principles discussed below govern any situation in which a lawyer handles PROPERTY in which the client, third persons (including creditors of the client) and/or the lawyer may have interests, not merely "funds" (meaning money). However, the vast majority of MPRE questions in this area have so far involved client funds. These rules apply any time a client has an OWNERSHIP INTEREST, in whole or in part, over funds or property in the hands of the lawyer. Frequent examination fact patterns raising client funds issues: (i) Client PRE-PAYS LEGAL FEES; since the lawyer cannot have performed any legal services yet, these are client funds. (ii) Lawyer receives a case SETTLEMENT from a litigation opponent; since a portion (or all) of this settlement is due the client, these are client funds (which must be disbursed to the client). 1) Fundamental rule: Establish and use a trust fund account. The fundamental rule is that a lawyer must establish and use a TRUST FUND ACCOUNT. A lawyer must NOT COMMINGLE client funds with her own monies (personal or professional). (Rule 1.15.) (The only LIMITED EXCEPTION: the lawyer my deposit only enough of her own funds into trust accounts as are necessary to pay bank service charges on such accounts. (Rule 1.15(b).) Also see discussion of advance fee/expense payments, immediately below.) 22
Client funds which must be placed into such a trust account include legal fees and expenses that have been PAID IN ADVANCE. (The lawyer then withdraws these monies as fees are earned or expenses incurred.) (Rule 1.15(c).) This rule does NOT require the use of SEPARATELY HELD accounts for funds of EACH client. A single account, into which all funds of clients or third persons are deposited, is permissible. (Individual accounts may sometimes be advisable when the lawyer is acting in a fiduciary capacity, as where estate monies are being administered.) (Comment to Rule 1.15.) 2) Record-keeping burden. a) Give prompt notice; identify and place funds in a safe place. Whenever a lawyer receives client funds (as described above), the lawyer MUST: (i) Promptly NOTIFY the client. (Rule 1.15(d).) (ii) Identify the property as CLIENT property and keep it in a safe place. This is a very severe burden; it is advisable to have an office safe or similar secure area in which to hold client property for even short-term storage. (Rule 1.15(a).) b) Maintain records and render accounts. The lawyer must maintain complete records of client funds and property. (Rule 1.15(a).) IF REQUESTED, the lawyer must render a full accounting of the property to the client. (Rule 1.15(d).) c) Promptly deliver to client. The lawyer must promptly deliver client property which the client is entitled to receive. (Rule 1.15(d).) 3) Misappropriation: Virtually automatic disbarment. The most serious offense that a lawyer can commit in the view of disciplinary authorities is to misappropriate client funds. As to any fact pattern on the MPRE where a lawyer misappropriates client funds, no matter what the apparent justification or emergency circumstance, CHOOSE THE MOST SEVERE PENALTY offered as an answer selection (short of death, of course). 4) NO Commingling. As noted above, a lawyer must keep property of clients or third persons SEPARATE AND APART from the lawyer's own property. Money should be kept in a separate client trust fund account mentioned earlier. (State law generally requires that such funds be kept in interest-bearing accounts; the interest, like the funds, belongs to the client.) Although a lawyer may withdraw expenses as needed and fees as earned (with appropriate notice to client), if there is a dispute, 23
the disputed monies must remain in a separate client account pending resolution of the controversy. Non-money client property must be so identified and separately and appropriately safeguarded. (Rule 1.15(a), (e).) Consider the following hypothetical to illustrate the above principles: "Lawyer agrees to represent Client under a fee arrangement in which Lawyer will receive 25 percent of any recovery obtained prior to trial, and one-third of any recovery obtained after trial. The matter proceeds to trial, and while the jury is still deliberating, Lawyer obtains (with Client's approval) a settlement of $300,000 from the opposing party. When Lawyer notifies Client that the $300,000 has been received in her office, Client demands 75 percent of that amount, $225,000, arguing that the settlement was not obtained "after trial." Lawyer claims that the settlement was not obtained "prior to trial" and thus she is entitled to one-third, or $100,000. What should Lawyer do?" After placing the $300,000 in the client trust fund account, Lawyer MUST immediately transfer $200,000 to Client. There is no dispute that Client is entitled to at least two-thirds of the settlement. Lawyer MAY transfer $75,000 to herself. There is similarly no dispute that she is entitled to 25 percent of the settlement as her contingent fee. Since there is a dispute over who is entitled to the final $25,000 of the settlement amount, that money MUST remain in the client trust fund account until the dispute has been resolved.
5) Retainers/Advance Fees. There is a critical distinction between a retainer and an advance payment of fees. A RETAINER is NON-REFUNDABLE compensation paid to a lawyer in exchange for AGREEING to provide representation. ADVANCEMENT OF FEES represents payment for future services. The lawyer is only permitted to keep that portion of the advancement of fees which is ACTUALLY EARNED (and only after notice to the client). UNEARNED advance fee payments must be RETURNED to the client. Consider the following hypothetical: "Lawyer agrees to represent Client in a matter, and Client immediately pays Lawyer $5,000. Lawyer then performs $3,000 worth of legal services for Client in that matter, and the representation is properly terminated. What should Lawyer do with the $5,000?" If the payment of $5,000 was a retainer, Lawyer may keep the $5,000 and bill Client for the $3,000 owed for legal services. If, however, the $5,000 was a 24
pre-payment of fees, Lawyer MUST transfer $2,000 back to Client, because Lawyer is not entitled to keep money which he has not earned by providing services. Now consider this more difficult hypothetical: "Lawyer agrees to represent Client in a matter, and Client immediately pays Lawyer a $5,000 retainer as an advancement of fees. Lawyer then performs $3,000 worth of legal services for Client in that matter, and the representation is properly terminated. What should Lawyer do with the $5,000?" The fact pattern has described the $5,000 as BOTH a retainer and an advance payment of fees. Since there is ambiguity about whether the pre-payment is a retainer or advance payment of fees, always treat the payment in the fashion more favorable to the client. Thus, Lawyer MUST return $2,000 to Client. c. Conflict of Interest. General rule: A lawyer MUST NOT represent a client if the representation involves a CONCURRENT CONFLICT OF INTEREST. (Rule 1.7(a).) a) Two categories of concurrent conflicts: A concurrent conflict of interest is defined as involving either— (1) DIRECTLY ADVERSE interests between different clients, or (2) representations that might be MATERIALLY LIMITED by the interests of others, including the lawyer. This is the most heavily tested area on the MPRE. Whether or not this situation is present should be analyzed by considering three main areas of potential conflict. Look for conflicts of interest (a) between the client and lawyer, (b) between the client and other clients, and (c) between the client and third parties. 1) Lawyer. a) General consideration: Will the lawyer's interest MATERIALLY LIMIT representation? There is NO ABSOLUTE bar on representation when there is a potential conflict between the interests of the client and the interests of the lawyer. The normal conflict of interest principles apply when the interests in conflict are those of lawyer and client. However, a lawyer must NOT represent a client if there is a SIGNIFICANT RISK that the representation will be MATERIALLY LIMITED by the lawyer's own interests UNLESS three 25
conditions are met: (Rule 1.7(a)(2), (b).) (1) Lawyer reasonably believes that she will be able to provide competent and diligent representation to the affected client. This is an OBJECTIVE standard because of use of the term "reasonably." The test is whether a reasonably prudent lawyer would believe under the circumstances that the representation will not be adversely affected by the potential for conflicting interests. (2) Client gives informed consent, confirmed in writing. The lawyer must obtain the client's consent to proceed with the representation after explaining to the client the potential conflict. (3) Representation not prohibited by law. Example: Decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest. b) Financial dealings with the client. Whenever a lawyer engages in financial dealings with a client (apart from the lawyer’s fees), a four-prong test must be satisfied. (Rule 1.8.) The following hypothetical illustrates a typical problem fact pattern: "Lawyer advertises in the classified section of a local newspaper, offering her car for sale. One of the persons who expresses an interest in purchasing the car is Client, one of Lawyer's present clients. May Lawyer sell the car to Client?" (1) Transaction must be objectively fair and reasonable. The key word in this element is "objectively." This indicates that the standard is an OBJECTIVE one, requiring application of the "reasonable lawyer" concept. (2) Client must be informed in writing of terms of agreement in a manner he/she can understand. The transaction between the lawyer and the client must be FULLY DISCLOSED to the client, IN WRITING, and must be communicated to the client WITHOUT the use of technical legal terminology that he or she would NOT reasonably understand. 26
(3) Client advised in writing of desirability of seeking, and given reasonable opportunity to seek, independent legal counsel. This does not mean that the client MUST have independent legal counsel as to the business transaction with the lawyer. So long as the lawyer advises the client in writing that it would be desirable to seek, and gives the client the opportunity to seek independent counsel, this requirement is satisfied, even if the client declines to obtain such representation. (4) Client gives informed consent in writing. The client must give informed consent, in a writing signed by the client. This writing must contain the essential terms of the agreement, the lawyer’s role therein, and whether the lawyer is representing the client in the subject transaction. c) Gifts from clients. In general, gifts from a client to the lawyer representing that client are NOT PROHIBITED. However, a lawyer will be subject to discipline if that lawyer SOLICITS any SUBSTANTIAL GIFT from a client, or PREPARES an INSTRUMENT giving the LAWYER or a person RELATED TO THE LAWYER any SUBSTANTIAL INTER VIVOS or TESTAMENTARY GIFT. EXCEPTION: This rule does NOT apply IF the recipient lawyer (or lawyer's relative) is RELATED to the CLIENT. For purposes of this rule, the lawyer’s relatives include spouse, child, grandchild, parent, grandparent, or any other relative or individual with whom the lawyer maintains a close, familial relationship. (Rule 1.8(c).) d) Problem areas. (1) Book and media rights prohibited. Prior to the conclusion of the representation, a lawyer must not negotiate or enter into an agreement with a client for literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (Rule 1.8(d).) Consider the following hypothetical: "Client is on trial for murder. He would like Lawyer, a well-known lawyer celebrated for her trial skills, to represent him but has no money to pay Lawyer's fee. Client proposes to hire Lawyer to defend him and to pay for Lawyer's services by transferring to Lawyer the rights to publish Client's life story. Lawyer agrees. Is Lawyer subject to discipline?" 27
YES. Lawyer's exercise of legal judgment may become clouded by concerns for her financial interest in the outcome. a) What if representation itself involves literary property? It is NOT a violation of the "book and media rights" prohibition for the lawyer to agree with the client that the lawyer's fee will consist of a share of the ownership of a literary property where the representation itself INVOLVES THAT SAME LITERARY PROPERTY. The agreement must still not amount to a prohibited proprietary interest in the subject of litigation (see below). (Comment to Rule 1.8.) (2) Standard commercial transaction permitted. Financial dealings between a lawyer and her client involving goods or services that the client normally offers to the public are NOT SUBJECT to the four-prong test discussed above. (Comment to Rule 1.8.) Consider the following hypothetical: "Lawyer represents Client, an appliance dealer, in collection matters having to do with accounts receivable. Lawyer has been shopping for a new washer and dryer for some time, comparing prices at various stores. While walking past Client's appliance store, Lawyer notices that Client has the models Lawyer is interested in for sale at $25 below what any other local merchants are charging for those machines. Lawyer goes into the store and purchases the washer and drying from Client at the stated price. Is Lawyer subject to discipline? (A) Yes, because Lawyer failed to give Client an opportunity to consult with independent counsel before entering into the transaction. (B) Yes, because Lawyer did not inform Client that the price offered was lower than what other merchants were charging for the same machine. (C) No, because Client impliedly consented to the offer and it was fair and reasonable. (D) No, because Client is an appliance dealer." The correct answer is (D). Because Client normally offers appliances for sale to the public, the transaction between Lawyer and Client need not meet the four-prong test. 28
(3) Lawyer providing financial assistance to client. In general, a lawyer may NOT provide financial assistance to a client in connection with pending or planned litigation. (Rule 1.8(e).) There is an EXCEPTION as to LITIGATION COSTS, however. (a) Litigation Costs. A lawyer is permitted to ADVANCE COURT COSTS and EXPENSES of litigation to the client. (Rule 1.8(e)(1).) Although the client must REMAIN "ULTIMATELY LIABLE" for the advances, REPAYMENT may be CONTINGENT upon a successful outcome of the litigation. Thus, if there is no recovery for the client, there need be no repayment to the lawyer of the advanced litigation costs or expenses. (4) Proprietary interest in cause of action: A lawyer must not obtain a proprietary interest in the cause of action or subject matter of litigation in which she represents the client, EXCEPT to (a) acquire a lien authorized by law to secure payment of his fee, or (b) enter into a contract for a reasonable contingent fee in an appropriate civil case. (Rule 1.8(i).) (5) Lawyers in same law firm also prohibited from certain transactions. Where a lawyer would be prohibited from engaging in any of the transactions with a client discussed above (governed by Rule 1.8(a) through (i)), all other lawyers in the SAME FIRM are similarly prohibited from such transactions. (Rule 1.8(k).) (6) Sexual relations with a client. (a) General rule—prohibited. Sexual relations with a client are generally prohibited. (Rule 1.8(j).) This prohibition applies even though the relationship is consensual, and even though there is otherwise no prejudice to the client. (Comment [17] to Rule 1.8.) (b) EXCEPTION—sexual relationship predated lawyer-client relationship. A CONSENSUAL SEXUAL RELATIONSHIP, which ALREADY EXISTED between lawyer and client when the CLIENT-LAWYER RELATIONSHIP COMMENCED, is not subject to the general prohibition. (Rule 1.8(j).) Even so, the lawyer should determine whether the sexual 29
relationship will materially limit representation of the client before proceeding with the representation. (Comment [18] to Rule 1.8.) (7) Lawyer as witness. In general, a lawyer must NOT act as advocate at a trial in which the lawyer is likely to be a NECESSARY witness. (Rule 3.7(a).) The Rules do not elaborate on what is meant by the phrase "necessary witness." Commentators have suggested that a lawyer is a "necessary witness" for this purpose when that lawyer's testimony is the ONLY means by which the evidence about which he will testify can be brought into the trial. If another witness, documentation, or other method can reasonably be used to produce the same evidence, the lawyer is probably not a necessary witness. (a) EXCEPTION--even when lawyer is "necessary witness". Even where the above general rule would otherwise apply (i.e., the lawyer is a necessary witness), the lawyer may continue to act as an advocate at trial IF: (i) the lawyer's testimony relates to an uncontested issue or to a matter of formality as to which there is no reason to believe substantial evidence will be offered in opposition, (ii) the lawyer's testimony relates to the nature and value of legal services rendered in the case, or (iii) disqualification of the lawyer would be a substantial hardship on the client. (Rule 3.7(a).)
2) Other Clients. a) Present clients. (1) General rule. As to conflicts between present clients generally, a lawyer must not represent one client if EITHER (1) that representation will be DIRECTLY ADVERSE to another client, or (2) there is a significant risk that the representation will be MATERIALLY LIMITED by the lawyer's responsibilities to another client. (Both situations would be labeled a “CONCURRENT CONFLICT OF INTEREST” by Rule 1.7(a).) Note that an analysis of whether the representation is permissible must be made as to EACH CLIENT. (a) EXCEPTION. Even given the above concurrent conflicts of interest 30
(and where clients are NOT parties to the same lawsuit—see below), the lawyer MAY represent more than one present client if THREE conditions are met-(i) Lawyer reasonably believes that she will be able to provide competent and diligent representation to the affected clients. Use of the term "reasonably" in the first element of the exception indicates an objective standard. Thus, if a DISINTERESTED lawyer would conclude that the affected clients SHOULD NOT AGREE to representation under the circumstances, the lawyer involved cannot have the requisite "reasonable" belief that no direct adverse interests or no material limitations will arise. (Comment to Rule 1.7.) (ii) Each affected client gives informed consent, confirmed in writing. The lawyer must obtain the clients’ consent to proceed with the representation after explaining to the clients the potential conflict. (iii) Representation not prohibited by law. Examples: State law may provide that the same lawyer may not represent more than one defendant in a capital case, even with the consent of the clients. Federal criminal statutes prohibit certain representations by a former government lawyer, despite the informed consent of the former client. Decisional law in some states limits the ability of a governmental client, such as a municipality, to consent to a conflict of interest. (2) Parties to same lawsuit. (a) Opponents. It is manifest that a lawyer representing OPPONENTS in the same lawsuit would raise a PROHIBITED conflict of interest under the general rule. Thus, where a concurrent conflict of interest is present, and one client asserts a claim against another client of the same lawyer in the same litigation or other proceeding before a tribunal, such multiple representation is regarded as “nonconsentable” and is prohibited. (Rule 1.7(b)(3), Comments [17], [23] to Rule 1.7.) (b) Co-parties. (i) Criminal. A lawyer is STRONGLY DISCOURAGED from representing more than one defendant in a criminal matter. (Comment [23] to Rule 1.7 states, "The potential for conflict of interest 31
in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.") However, this is NOT a MANDATORY rule against it. Thus, while a lawyer clearly SHOULD NOT represent co-parties in a criminal proceeding, she would NOT be SUBJECT TO DISCIPLINE merely for doing so. (Note that the general test for potential present client conflicts discussed above must still be met. So if criminal defendants are each denying culpability by blaming the other, dual representation would be prohibited.) (ii) Civil. As with co-parties in a criminal action, there is NO MANDATORY provision prohibiting a lawyer from representing co-parties in a civil action. A lawyer can therefore NOT BE SUBJECT TO DISCIPLINE merely because he represents such co-parties, but the general test for concurrent conflicts of interest among present clients discussed above must be met. (iii) Settlements involving co-parties. Assuming that a lawyer has PROPERLY taken on representation of co-parties in a case, a proposed SETTLEMENT involving those multiple parties raises an ethical issue. A lawyer may participate in an AGGREGATE SETTLEMENT only if TWO conditions exist: A) EACH CLIENT gives INFORMED CONSENT (The lawyer must DISCLOSE the nature and extent of ALL claims or pleas and the participation of EACH person in the settlement.) AND, B) The informed consent of each client must be in a WRITING SIGNED BY THE CLIENT. (Rule 1.8(g).) (3) Unrelated lawsuits. (a) General rule. In general, the duty of loyalty a lawyer owes his client precludes that lawyer from acting as advocate against the same client in another matter, even if the other matter is wholly unrelated to the first representation, absent consent. (Comment [6] to Rule 1.7.) However, under the general rule for present client conflicts set forth above, it might sometimes be proper for a lawyer to accept such representations. A lawyer is generally permitted to take inconsistent legal positions in different tribunals at different times on behalf of different clients, but must be alert to the risk, for example, that creating a precedent in one case might seriously weaken a position taken on behalf of an existing client in another matter. (Comment [24] to Rule 1.7.) Consider the following hypothetical: 32
"Lawyer represents General Products Corporation in a lawsuit against State A, seeking to have declared unconstitutional a State A regulation that requires six weeks paid bereavement leave for all employees. Biz, an industrial laundry company, subsequently seeks Lawyer's services to collect an unpaid debt owed it by Janitors-R-Us, Inc., a wholly-owned subsidiary of General Products Corporation which does all of its business in State B. May Lawyer represent Biz in this matter?" YES. Assuming that Lawyer obtains the informed consent, confirmed in writing, of both General Products Corporation and Biz, it would be proper for Lawyer to undertake representation of Biz, since it is reasonable to believe that Lawyer will be able to provide competent and diligent representation to each client. (4) Business deals: The lawyer must guard against potential conflicts. There is NO MANDATORY prohibition per se against representing clients whose interests are potentially in opposition where the representations do NOT involve LITIGATION, but the lawyer must still be cognizant of the general rule governing present client conflicts. (Comment [26] to Rule 1.7.) Relevant considerations include: (a) the duration and intimacy of the lawyer's relationship with the involved clients; (b) the functions being performed by the lawyer; (c) the likelihood that disagreements will arise; and (d) the extent of prejudice likely to occur to the involved clients from the conflict. (5) Lawyer serving as “third party neutral.” a) General rule. Rule 2.4 recognizes that (and thus impliedly permits) a lawyer may serve as a “third party neutral,” i.e., the lawyer assists two or more person WHO ARE NOT CLIENTS to resolve a dispute among them, where the lawyer acts as arbitrator, mediator, or in some other capacity. TWO important duties arise in this third party neutral context: (1) The lawyer MUST INFORM UNREPRESENTED PARTIES that she is not representing them (presumably, represented parties would be told this by their lawyers). (Rule 2.4(b).) (2) If the lawyer knows or reasonably should know that an unrepresented 33
party DOES NOT UNDERSTAND THE LAWYER’S ROLE, she must EXPLAIN to that unrepresented party the DIFFERENCE between a lawyer serving as a third party neutral, and a lawyer who represents a client. (Rule 2.4(b).) b) Prospective clients. Rule 1.18(a) defines a “prospective client” as a person who discusses with a lawyer the POSSIBILITY of forming a CLIENT-LAWYER RELATIONSHIP with respect to a matter. Information given to a lawyer “unilaterally,” WITHOUT ANY REASONABLE EXPECTATION that the lawyer is WILLING to discuss FORMATION OF A LAWYER-CLIENT RELATIONSHIP, will not create a prohibited conflict. (Comment [2] to Rule 1.18.) Potential conflicts can arise between a present client and a prospective client. (1) Present client has adverse interest to prospective client. A lawyer must not represent a present client whose interests conflict with a prospective client with whom the lawyer has had discussions as defined above if THREE CONDITIONS are present (Rule 1.18(c))-(a) The present client’s interests are MATERIALLY ADVERSE to those of the prospective client. AND (b) The conflict involves the SAME or a SUBSTANTIALLY RELATED MATTER. AND (c) The lawyer received information from the prospective client that could be SIGNIFICANTLY HARMFUL to that prospective client in the matter at issue. (2) Vicarious disqualification. If a lawyer is disqualified from representation because of a prohibited conflict with a prospective client as discussed above, no lawyer in a firm with which that lawyer is associated may KNOWINGLY UNDERTAKE or CONTINUE REPRESENTATION in such a matter. (Rule 1.18(c).) (a) EXCEPTION—informed consent or effective screening. When a lawyer has received disqualifying information that creates the prohibited conflict described above, the vicarious disqualification of other lawyers in the same firm will NOT apply if EITHER of TWO CONDITIONS is present-(i) Informed consent, confirmed in writing. BOTH the AFFECTED CLIENT and the PROSPECTIVE CLIENT give INFORMED CONSENT, CONFIRMED IN WRITING. (Rule 1.18(d)(1).) Obtaining 34
consent must be permissible under the conflict principles of Rule 1.7. The Comments strongly suggest that such informed consent would also permit the “disqualified” lawyer to represent the present client. (Comment [4] to Rule 1.18.) (ii) Effective screening. Even without obtaining informed consent, there will be no vicarious disqualification of other law firm lawyers, if the disqualified lawyer is effectively screened from the representation. Effective screening requires that THREE CONDITIONS are satisfied (Rule 1.18(d)(2))-A) 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. B) The disqualified lawyer is TIMELY SCREENED from ANY PARTICIPATION in the matter and is apportioned NO PART OF THE FEE earned in the matter. C) The PROSPECTIVE CLIENT is PROMPTLY GIVEN WRITTEN NOTICE of the situation. This notice should include a general description of the subject matter about which the lawyer was consulted, and of the screening procedures employed. “Promptly” means that notice should generally be given AS SOON AS PRACTICABLE AFTER the NEED FOR SCREENING becomes apparent. (Comment [8] to Rule 1.18.) c) Former clients. Where representation of Client 1 has concluded and lawyer had no present professional relationship with Client 1, that lawyer may generally represent Client 2 even though Client 2's interests are adverse to Client 1. However, there are TWO types of circumstances in which ethical difficulties can arise. (Rule 1.9.) (1) Received actual confidences relating to current litigation. A lawyer may NOT use ACTUAL CONFIDENCES relating a former client's representation to the DISADVANTAGE of the FORMER CLIENT in a current representation. (Rule 1.9(c).) This rule also applies to INFORMATION obtained in discussions between a lawyer and a PROSPECTIVE CLIENT. (Rule 1.18(a) and (b).) In THREE circumstances, however, such information may be used because it is, in effect, deemed to be NO LONGER CONFIDENTIAL. These are: (a) If the subject information has ALREADY BEEN REVEALED. 35
(b) If the subject information is GENERALLY KNOWN (i.e., it is in the "public domain"). (c) If the subject information is OTHERWISE DISCOVERABLE (i.e., it could properly be revealed according to the rules of professional responsibility regarding confidentiality of client information). (2) Issues in the two representations are substantially related (unless former client consents after consultation). A lawyer must not represent a present client against a former client (i.e., their interests are MATERIALLY ADVERSE) where the two representations (present and former) are SUBSTANTIALLY RELATED, UNLESS the former client gives INFORMED CONSENT, CONFIRMED IN WRITING. (Rule 1.9(a).) "Substantially related" is an issue of fact that is subject to great variation. The current representation is certainly "substantially related" if it involves a specific transaction which was also the subject of the former representation. It is similarly clear that a wholly unrelated matter in a new representation is NOT "substantially related" simply because it is SIMILAR to the subject of the former representation. (3) Special problems--moving between government and private practice. (a) Lawyer leaves government for private practice. (i) Former government officer or employee. In general, a lawyer who was formerly a government officer or employee MAY represent a party against the government, UNLESS TWO elements are present: A) The present, private representation involves EXACTLY THE SAME MATTER in which the lawyer was involved while working for the government. "Exactly the same matter" means particular circumstances involving a specific party or parties (e.g., a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, etc.), or any other matter covered by the conflict of interest rules of the affected government agency. The fact that a lawyer has worked in a general area or on a particular type of subject while in government service would not preclude that lawyer from accepting private clients in similar situations. AND B) the lawyer participated PERSONALLY and SUBSTANTIALLY 36
in that matter while employed by the government. (Rule 1.11(a), (e).) If the above two elements exist, the lawyer shall NOT undertake the representation UNLESS the affected government agency GIVES INFORMED CONSENT, CONFIRMED IN WRITING. (Rule 1.11.) Consider the following hypothetical: "Lawyer was employed by the Federal Communications Commission. Her duties included reviewing applications for broadcast licenses from television and radio stations. After serving the FCC for five years, Lawyer resigned and entered private practice. Lawyer subsequently agrees to represent Client, who owns a local television station, in connection with Client's application before the FCC for the current renewal of Client's broadcast license. Is Lawyer subject to discipline? (A) Yes, because Lawyer's duties for the FCC included reviewing applications for broadcast licenses. (B) Yes, if Lawyer ever reviewed a previous broadcast license application which involved the television station owned by Client. (C) No, because lawyer did not personally participate in this application while employed by the FCC. (D) No, but only if the FCC consents to the representation of Client in this matter." The correct answer is (C). Although Lawyer's work for the FCC involved applications for broadcast licenses, and even if Lawyer reviewed a PREVIOUS application from Client's station, she did not personally participate as to the subject matter of this representation, which is the current application (i.e., not any previous application). Thus, she did not participate in the exact same matter while employed by the government. Note that (D) is not a correct answer because Lawyer does not NEED the government's consent ("but only"). (ii) A lawyer who was formerly a government officer or employee is also subject to the strict prohibition against use of “former client information” contained in Rule 1.9(c) as to the government. (Rule 1.11(a)(1).) 37
(iii) Government lawyer seeks job from private party. Lawyers who work in the government might subsequently obtain employment in the private sector. This is GENERALLY PERMITTED by the rules of professional responsibility. EXCEPTION: A government lawyer MUST NOT NEGOTIATE for private employment when TWO CONDITIONS are present: A) The person with whom the employment negotiation takes place is a PARTY to or REPRESENTS a party in a matter in which the government lawyer is involved. AND B) The government lawyer is PARTICIPATING PERSONALLY and SUBSTANTIALLY as to that same matter. (Rule 1.11(d)(2)(ii).) (b) Private lawyer joins government. Again, the general rule is that a lawyer serving in government MAY participate in a matter as to which the lawyer had previously been involved while in private practice or non-governmental employment. (The lawyer is still subject to the conflict of interest requirements of Rules 1.7 and 1.9.) The EXCEPTION: The government lawyer MUST NOT be involved in any matter as to which he PARTICIPATED PERSONALLY and SUBSTANTIALLY before joining the government. (i) EXCEPTION to the exception--the affected government agency gives INFORMED CONSENT, CONFIRMED IN WRITING. Even if a government lawyer participated personally and substantially in a matter while in private practice, she is PERMITTED to act for the government as to that matter IF the affected government agency gives informed consent, confirmed in writing. (Rule 1.11(d)(1) and (d)(2)(i).) (c) Leaving a judicial position for private practice. A lawyer MUST NOT REPRESENT any client in connection with a matter in which that lawyer PARTICIPATED PERSONALLY and SUBSTANTIALLY as a JUDGE (including other adjudicative officers, arbitrators, mediators, etc.). CONSENT EXCEPTION: A lawyer in the above circumstances MAY engage in an otherwise prohibited representation IF ALL PARTIES to the proceeding give INFORMED CONSENT, CONFIRMED IN WRITING. (Rule 1.12(a).) The same rule applies to a lawyer who was a LAW CLERK of a judge. (i) Other EXCEPTIONS: 38
A lawyer who has personally and substantially participated as described above is NOT precluded from undertaking a subsequent representation in the following special situations: A) An ARBITRATOR selected as a PARTISAN in a multi-member arbitration panel is not prohibited from subsequently representing the selecting party. (Rule 1.12(d).) Example: In a dispute between X and Y, the parties agree to arbitrate the matter before a three-arbitrator panel. Each party separately selects one arbitrator, then a third arbitrator is selected by agreement of the parties. Lawyer is selected by Y as its "separate" arbitrator. Lawyer MAY subsequently represent Y if the matter is litigated. B) A lawyer who was a member of a MULTI-JUDGE COURT before whom a matter was pending may subsequently represent a party involved in that same matter IF she did NOT PARTICIPATE in HEARING the matter, or if she exercised ONLY some REMOTE ADMINISTRATIVE RESPONSIBILITY over the matter. (Comment [1] to Rule 1.12.) (ii) Imputed disqualification. Another LAWYER associated with the lawyer disqualified under the above rule MUST NOT KNOWINGLY accept a representation UNLESS THREE CONDITIONS are met: A) The disqualified lawyer must be TIMELY SCREENED from any participation in the matter. AND B) The disqualified lawyer MUST NOT be apportioned any part of the FEE generated by that matter. (Independent salary or partnership share agreements are NOT subject to this requirement.) AND C) The PARTIES and the appropriate TRIBUNAL must be PROMPTLY NOTIFIED IN WRITING. (Rule 1.12(c).) (iii) Judge seeks job from private party. Judges and other judicial officers might subsequently obtain employment in the private sector. This is GENERALLY PERMITTED. EXCEPTION: A judge MUST NOT NEGOTIATE for private employment when TWO CONDITIONS are present: 39
A) The person with whom the employment negotiation takes place is a PARTY to or REPRESENTS a party to a matter in which the judge is involved. AND B) The judge is PARTICIPATING PERSONALLY and SUBSTANTIALLY as to that same matter. (Rule 1.12(b).) EXCEPTION FOR LAW CLERK: A law clerk who would otherwise violate the above "no-negotiation" rule MAY nevertheless seek employment IF the law clerk FIRST NOTIFIES the judge for whom the law clerk works. (Rule 1.12(b).) d) Short-term non-profit legal services to clients. The Rules provide a somewhat relaxed standard for assessing conflicts of interest where the conflict situation arises because a lawyer provided legal services without charge to persons of limited means. (1) When relaxed standard applicable. The special standard for conflicts is applicable when THREE CONDITIONS are present (Rule 6.5(a))— (a) The lawyer provided legal services under the auspices of a PROGRAM SPONSORED BY A NONPROFIT ORGANIZATION OR COURT. Examples of such programs include legal-advice hotlines, advice-only clinics or pro se counseling programs. (Comment [1] to Rule 6.5.) AND (b) The lawyer provided SHORT-TERM LIMITED LEGAL SERVICES to the client. AND (c) NEITHER the LAWYER nor the CLIENT EXPECTED that the lawyer would provide CONTINUING REPRESENTATION in the matter. (2) Nature of relaxed standard. When applicable, the rule provides that the lawyer is subject to Rules 1.7 (general conflicts standard) and 1.9(a) (use of information) ONLY if the lawyer KNOWS that the representation of the client INVOLVES A CONFLICT OF INTEREST. (Rule 6.5(a)(1).) (The general standard for conflicts involves a reasonability standard far broader than actual knowledge—see the discussion of the general rule, above.) (a) Vicarious disqualification of lawyer providing short-term services. The rule for vicarious disqualification applied to a lawyer operating under Rule 6.5 is also relaxed. If another lawyer in the law firm would otherwise generate a vicarious disqualification under Rule 1.10 for the lawyer providing short-term limited legal services as defined above, the non-profit lawyer is subject to Rule 1.10 ONLY if the lawyer KNOWS that another 40
lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a). (Rule 6.5(a)(2).) (b) Vicarious disqualification for other lawyers in firm not acting pro bono. The same vicarious disqualification standard described immediately above appears to work in reverse—other lawyers in the same firm as a lawyer offering short-term limited legal services as defined above are vicariously disqualified as to that matter ONLY if the lawyer providing non-profit services KNOWS that such other lawyers are disqualified by Rule 1.7 or 1.9(a). (Rule 6.5(b).) 3) Third Parties. a) Lawyer's fee paid by third party (e.g., parent/child, insurance co./insured). A lawyer MAY generally accept compensation for a particular representation from someone other than the client being represented, so long as THREE requirements are met. (Rule 1.8(f).) (1) Client gives informed consent. AND (2) There is no interference with the lawyer's professional judgment. The lawyer must NOT permit the circumstance of third party payment of fees to cause INTERFERENCE with the lawyer's independence of professional judgment or with the lawyer-client relationship; AND (3) Confidentiality of information is preserved. The lawyer must preserve CONFIDENTIALITY of information regarding the representation. Consider the following hypothetical: "Defendant was arrested and prosecuted for possession of a controlled substance. Because Defendant, an otherwise competent adult, was indigent and could not afford to pay an attorney, Parent hired Lawyer to represent Defendant. Lawyer subsequently concluded that the warrant under which the controlled substance was seized was invalid. Lawyer communicated this to Parent, and informed Parent that the likely consequence was that the controlled substance would be inadmissible at Defendant's trial, and that Defendant would probably be found not guilty or the charges would be dismissed. Parent, worried about Defendant's drug use, asked Lawyer to 41
NOT make the motion to suppress, but rather to use the likelihood of the invalidity of the warrant to negotiate a plea bargain in which Defendant served one day in jail. This, said Parent, would bring Defendant to his senses and end his use of illegal drugs. Lawyer agreed. Is Lawyer subject to discipline?"
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YES. Lawyer has allowed Parent to interfere with his independent judgment regarding the representation of Defendant. The fact that Parent was paying Lawyer's fee and may have been acting on positive motives and even (arguably) in Defendant's interest does not permit Lawyer to act on Parent's request. b) Special difficulties. Fact patterns involving the following situations are used frequently on the MPRE to test third party fee payment principles. (1) Legal aid offices. A lawyer may accept employment from legal aid organizations, even though he will be paid by his employer, and not the clients he is representing. The lawyer must be careful that his professional independence is not compromised and that there is no interference in his relationship with his clients. (2) Corporate legal departments. When a lawyer accepts employment with a business corporation, the client IS the corporation, but non-lawyers (the board, senior officers) actually make the "client's" decisions. The lawyer may accept such employment, but must not accept direction of her professional judgment from non-lawyers. (a) General rule--protect best interests of organization/client. A lawyer representing an ORGANIZATION owes a duty of loyalty to the organization, but since the organization can only act through individuals, the lawyer must WORK WITH the DULY AUTHORIZED CONSTITUENTS of the organization. (Rule 1.13(a).) Thus, the lawyer must proceed as is REASONABLY NECESSARY to protect the BEST INTEREST of the ORGANIZATION. In this regard, a lawyer may be required to TAKE REMEDIAL MEASURES or WITHDRAW from the representation of the organization IF TWO CONDITIONS are present: (i) The lawyer KNOWS that a constituent intends to act (or refuses to act) in a manner related to the representation that is: A) a VIOLATION of a LEGAL DUTY to the organization, or
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B) a VIOLATION of LAW which REASONABLY MIGHT BE IMPUTED to the organization. AND (ii) The constituent's act (or refusal to act) is LIKELY to RESULT in SUBSTANTIAL INJURY to the ORGANIZATION. (Rule 1.13(b).) (b) Factors to consider in protecting organization/client. The lawyer must give DUE CONSIDERATION to the following factors in deciding how to protect the best interests of the organization/client: (i) The SERIOUSNESS of the VIOLATION and its CONSEQUENCES; (ii) The SCOPE and NATURE of the LAWYER'S REPRESENTATION; (iii) The RESPONSIBILITY in the organization and the APPARENT MOTIVATION of the person involved; (iv) The POLICIES of the organization concerning such matters; and (v) Any OTHER RELEVANT CONSIDERATIONS. (c) Remedial measures--avoid disruption or revealing information. In taking remedial measures, the lawyer MUST MINIMIZE DISRUPTION of the organization and MINIMIZE the RISK of REVEALING INFORMATION relating to the representation to persons OUTSIDE the organization. (Rule 1.13(b).) Remedial measures may INCLUDE-(i) ASKING the INVOLVED PERSON to RECONSIDER the matter. (ii) ADVISING the INVOLVED PERSON to seek a SEPARATE LEGAL OPINION on the matter and to PRESENT that opinion to APPROPRIATE AUTHORITY in the organization. (iii) REFERRING the matter to HIGHER AUTHORITY, including, if sufficiently serious, to the HIGHEST
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AUTHORITY under applicable law (for most corporations, this is the board of directors). (d) Withdrawal--if remedial measures insufficient to deter violation of law. If, after the lawyer takes properly considered remedial measures, the HIGHEST AUTHORITY that can act on the organization's behalf INSISTS upon an act (or refusal to act) which is CLEARLY a VIOLATION OF LAW which is LIKELY to RESULT in SUBSTANTIAL INJURY to the organization, the lawyer MAY RESIGN in accordance with the rules of professional conduct governing termination of the representation. (Rule 1.13(c).) (e) Avoid prohibited conflicts between organization and constituent. If the lawyer knows or reasonably should know that the ORGANIZATION'S INTEREST has become ADVERSE to the interest of a CONSTITUENT (e.g., a director or officer), the lawyer MUST EXPLAIN to the constituent that the ORGANIZATION is the CLIENT. (Rule 1.13(d).) The lawyer SHOULD ADVISE the constituent of the CONFLICT or POTENTIAL CONFLICT of interests, that the lawyer CANNOT REPRESENT the CONSTITUENT, and that the constituent may wish to OBTAIN INDEPENDENT COUNSEL. The lawyer SHOULD also ADVISE the constituent, if appropriate under the circumstances, that discussions between the lawyer (acting for the organization) and the constituent (whose interests are adverse to the organization) may NO LONGER be PRIVILEGED. (Comment to Rule 1.13.) (f) Dual representation--permitted if no violation of rules as to multiple clients. A lawyer is PERMITTED to represent BOTH the ORGANIZATION and individual CONSTITUENTS (e.g., officers, directors, other employees, shareholders, etc.) IF the representation would NOT OTHERWISE VIOLATE the rules of professional conduct as to MULTIPLE CLIENT REPRESENTATIONS. (Rule 1.13(e).) If the applicable rules of professional conduct require that the organization's CONSENT be obtained, such consent must be given by an appropriate official OTHER THAN the constituent who is to be represented, or by the SHAREHOLDERS of the organization. (Rule 1.13(e).) (3) Insurance companies.
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Many types of insurance policies promise that the insured (the client) will be provided with legal representation in connection with claims made against that insured which are covered by the policy. Thus, a lawyer who undertakes to represent such a client is presented with ethical issues by the fact that a third party--the insurance company--pays her fees. Consider the following hypothetical: "Lawyer is on retainer to Insureco to provide legal representation for policyholders. Insureco instructs Lawyer to provide a defense for one of its insureds, Client, who has been in an auto accident. Lawyer consults with Client, who describes the circumstances of the accident, including that the accident occurred while she was drag-racing with one of her friends. Lawyer concludes that if the claim is litigated, Client will probably be held liable for $50,000 in damages. Lawyer also knows that the terms of the insurance policy under which Client is insured expressly provide no coverage in such circumstances. The party making a claim against Client offers to settle the matter for $100,000, the exact amount of the Insureco policy owned by Client. Lawyer advises Client not to accept the settlement offer, and to proceed to trial. Is Lawyer subject to discipline?" YES. Lawyer had clearly allowed the fact that Insureco is paying his fee to influence his independent professional judgment. The offered settlement would mean that Client is personally exposed to no money damages, since the policy will fund the settlement. In a trial, the circumstances would almost certainly be revealed and Insureco would deny coverage to Client. Advising Client to refuse the settlement offer risks a loss of $50,000 to client. (Note that whether or not Lawyer had any ethical obligations to Insureco, or violated other conflict of interest principles, does not alter the analysis of the hypothetical, as posed.) c) Preparing evaluations for use by third parties. A lawyer might be directed by or impliedly authorized by a client to provide an evaluation of a MATTER AFFECTING A CLIENT for the USE of a THIRD PERSON. The lawyer may do so IF THREE CONDITIONS are met: (1) The lawyer REASONABLY BELIEVES that making the evaluation is COMPATIBLE with other aspects of the lawyer's representation of the client. AND (2) The CLIENT GIVES INFORMED CONSENT when NECESSARY. The client must give informed consent when the lawyer
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knows or reasonably should know that the evaluation is likely to MATERIALLY AND ADVERSELY affect the client’s interest. (Consent is otherwise impliedly authorized as in furtherance of the representation.) AND (3) The duty of CONFIDENTIALITY is satisfied. Disclosure of confidential client information may be authorized in connection with a report of the evaluation, but in all other respects the duty of confidentiality must be maintained. The REPORT should INCLUDE whether the quality of the evaluation was affected by limits on the lawyer's investigation of the matter (e.g., lawyer not given enough time or access to information, etc.) when such limitations were MATERIAL to the evaluation. (Rule 2.3 and Comment.) d) Lawyer's interactions with third persons. (1) Communicating with third persons. (a) Third persons represented by counsel. Communications about the subject of representation with a third person the lawyer KNOWS is REPRESENTED by ANOTHER LAWYER as to the SAME MATTER are PROHIBITED except in either of TWO CIRCUMSTANCES: (i) The LAWYER for the third person CONSENTS to the communication, or (ii) The communication with the third person is AUTHORIZED BY LAW or COURT ORDER. (Rule 4.2.) Note—represented person seeks additional legal counsel: The Comments clarify that a lawyer may communicate with a represented person where that person is seeking advice from a lawyer who is NOT OTHERWISE REPRESENTING A CLIENT in a particular matter; i.e., the represented person is asking a second lawyer for a “SECOND OPINION” as to the matter in which that person is already represented. (Comment [4] to Rule 4.2.) (b) "Third person" represented by counsel is an organization. When the "third person" is an ORGANIZATION, the rule prohibiting communications applies to:
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(i) Any CONSTITUENT who has AUTHORITY TO OBLIGATE the organization with respect to the subject matter of the lawyer’s representation. (ii) Any CONSTITUENT whose ACT or OMISSION in connection with the subject of the representation may be IMPUTED to the organization for purposes of CIVIL or CRIMINAL LIABILITY. (iii) Any CONSTITUENT who SUPERVISES, DIRECTS or REGULARLY CONSULTS with the organization’s LAWYER concerning the subject matter of the lawyer’s representation. (Comment [7] to Rule 4.2.) (c) Third persons NOT represented by counsel. Three aspects of dealing with unrepresented third persons should be noted— (i) A lawyer interacting (on behalf of a client) with an UNREPRESENTED third person MUST NOT STATE or IMPLY that the lawyer is DISINTERESTED. (ii) Where the lawyer KNOWS or REASONABLY SHOULD KNOW that the unrepresented third person MISUNDERSTANDS the lawyer's role, the lawyer must make REASONABLE EFFORTS to CORRECT the misunderstanding. (iii) Where the lawyer KNOWS or REASONABLY SHOULD KNOW that the INTERESTS of the unrepresented third person are or have a reasonable possibility of being IN CONFLICT with those of the lawyer’s CLIENT, the lawyer MUST NOT GIVE LEGAL ADVICE to the unrepresented third person EXCEPT for that person to OBTAIN COUNSEL. (Rule 4.3.) (d) Truthfulness toward third persons. In general, a lawyer is under NO AFFIRMATIVE DUTY to INFORM an opposing party of RELEVANT FACTS. However, when representing a client, a lawyer MUST NOT KNOWINGLY: (i) Make FALSE STATEMENTS of MATERIAL FACT or LAW to third persons. (Rule 4.1(a).) A false statement may be made by a lawyer where the lawyer affirms or incorporates the
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false statement of another, or appears to affirm another's false statement by remaining silent. (Comment to Rule 4.1.) (ii) FAIL to DISCLOSE a material fact to a third person when disclosure is NECESSARY to AVOID ASSISTING a FRAUDULENT or CRIMINAL ACT. EXCEPTION: NO disclosure is required under this rule if disclosure is PROHIBITED by the DUTY of CONFIDENTIALITY. (Rule 4.1(b).) Note that if a lawyer is prevented from disclosing a fact (which would otherwise have to be disclosed to avoid assisting a fraud) by the duty of confidentiality, the lawyer MAY be required to WITHDRAW. (Comment to Rule 1.6, see Rule 1.16(a)(1).) Note that statements of OPINION are NOT covered by this rule. Whether a particular statement is one of opinion rather than of fact is determined by the circumstances. Generally accepted conventions of negotiation are applicable, which means that certain statements appearing to be factual are usually taken to represent the speaker's enthusiasm for his own position. (Examples: estimates of price or value or a party's intentions as to settlements or claims.) (Comment to Rule 4.1.) (2) Other interactions affecting third persons. A lawyer MUST NOT DISREGARD the RIGHTS of third persons in the process of representing her client. (Comment to Rule 4.4.) Thus, the lawyer MUST NOT: (a) Use means that have NO SUBSTANTIAL PURPOSE OTHER than to EMBARRASS, DELAY, or BURDEN a third person, or (b) Use methods of OBTAINING EVIDENCE that VIOLATE the LEGAL RIGHTS of third persons. (Rule 4.4(a).) Note--Inadvertent receipt of documents: Where a lawyer receives a document relating to a client’s representation, and KNOWS OR SHOULD REASONABLY KNOW that the document was INADVERTENTLY SENT, the lawyer must PROMPTLY NOTIFY the sender. (Rule 4.4(b).) 4) Disqualification based on relationship to another lawyer. a) Law firms--if one member is disqualified, all are disqualified. In general, if one lawyer in a law firm is disqualified from accepting a
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representation (for some independent reason based on the rules of professional ethics), ALL other lawyers in that same law firm are "vicariously" disqualified from accepting that same representation, even though they themselves would not otherwise be subject to the same disqualifying ethical rule. (Rule 1.10.) A general exception to this imputed conflict of interest rule: there is no “vicarious” disqualification if: (i) the individual lawyer’s disqualification is based on a personal interest, and (ii) this disqualification does NOT present a significant risk that the representation of the client by the remaining lawyers will be MATERIALLY LIMITED. (Rule 1.10(a).) Consider the following hypothetical: “Lawyer A in Law Firm has been asked to undertake representation of the National Rifle Association (NRA) in challenging a city ordinance banning the ownership of firearms. Lawyer B, also a member of Law Firm, is a strong proponent of gun control laws and would therefore be disqualified from representing the NRA under the “personal interest” component of Rule 1.7(a)(2). Are all the lawyers in Law Firm disqualified from representing the NRA in this matter?” NO, so long as Lawyer B will not work on the NRA case AND Lawyer B’s political beliefs will not materially limit the representation of the NRA by the other lawyers in Law Firm. (1) "Law firm" defined. (a) Question of fact. It is a QUESTION OF FACT whether any TWO OR MORE LAWYERS are SUFFICIENTLY ASSOCIATED so as to be considered a "law firm" as that term is used in the rules of imputed disqualification. "Law firm" for purposes of imputed disqualification includes (but is not limited to) TRADITIONAL GROUPINGS of partners and associates, CORPORATE LEGAL DEPARTMENTS, and LEGAL AID ORGANIZATIONS. (Comment to Rule 1.10.) (b) Lawyers sharing office space. Even lawyers NOT FORMALLY associated in the traditional way may be considered a "law firm" for purposes of imputed disqualification, as where the lawyers work in CLOSE PHYSICAL PROXIMITY, SHARING OFFICE SPACE, clerical help, research materials, etc. (Comment to Rule 1.10.) In
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determining the factual issue of whether such lawyers are a "law firm" for purposes of Rule 1.10, the following factors are relevant: (i) Whether the lawyers PRESENT THEMSELVES to the PUBLIC or CONDUCT THEMSELVES in a way SUGGESTING they are a single law firm. (ii) What the TERMS are of ANY FORMAL AGREEMENT between the lawyers. (iii) Whether the PRINCIPLES UNDERLYING the conflict of interest RULE AT ISSUE are IMPLICATED. (For example, the rule prohibiting representation of opponents in litigation is more likely to be applied in doubtful cases than the rule that prohibits use of information relating to a former representation.) (c) Corporate legal departments--who is the client? In general, the legal staff of a corporation is sufficiently associated to be a "law firm" for imputed disqualification purposes. However, it may not be clear WHO the CLIENTS are who provoke the imputed disqualification in the first place, because the corporate form permits affiliations to arise in many different guises (parent-subsidiary relations, ownership of stock by another corporation, etc.). The same analytical difficulties may be presented by UNINCORPORATED ASSOCIATIONS and their local affiliates. (Comment to Rule 1.10.) (d) Legal aid organizations. Lawyers employed by ONE OFFICE of a legal aid organization are considered a "law firm" for purposes of imputed disqualification. SEPARATE OFFICES may also be so CLOSELY RELATED (e.g., they are headed by same official, exchange information, shift lawyers back and forth, etc.) that they are considered a SINGLE FIRM when analyzing imputed disqualification issues. (Comment to Rule 1.10.) (2) Lawyers moving from one private law firm to another. (a) Potential conflicts. Given a sweeping scope, the imputed disqualification rules would create numerous possibilities of disqualification when a lawyer moved from one private law firm to another. From this perspective, all of the clients represented by the previous firm would be "former
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clients" (for conflict analysis purposes) of the current firm because of the addition of the lawyer who moved from the previous firm to the current firm. From the perspective of the previous firm, similar "former client" linkage conflicts could arise. In general, however, ONLY SOME of the potential CONFLICTS are recognized as creating a DISQUALIFICATION, as described below. (b) Prohibited conflicts. (i) Moving lawyer (and current firm lawyers). When a lawyer moves from one private law firm (the "previous" firm) to another private law firm (the "current" firm), the LAWYER WHO MOVED to the current firm is (and all the other lawyers in the CURRENT firm are) DISQUALIFIED from representing a new client, IF ALL FOUR of the following CONDITIONS are present: A) The INTERESTS of the new client are MATERIALLY ADVERSE to a former client. B) The SUBJECT MATTER of the NEW representation is the SAME or SUBSTANTIALLY RELATED to the representation involving the FORMER CLIENT. C) The lawyer who moved to the current firm ACTUALLY POSSESSES CONFIDENTIAL INFORMATION about the FORMER client. D) The CONFIDENTIAL INFORMATION actually possessed by the lawyer who moved to the current firm is MATERIAL to the MATTER INVOLVED in the NEW representation. (Rules 1.9(b), 1.10(a).) (ii) Previous firm. In the above context, the disqualification rules for lawyers in the previous firm are similar. When a lawyer moves from one private law (the "previous" firm) firm to another private law firm (the "current" firm), the lawyers in the PREVIOUS firm are DISQUALIFIED from representing a new client IF ALL FOUR of the following CONDITIONS are present: A) The INTERESTS of the new client are MATERIALLY ADVERSE to a client FORMERLY REPRESENTED by the LAWYER WHO MOVED.
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B) The SUBJECT MATTER of the NEW representation is the SAME or SUBSTANTIALLY RELATED to the representation of the FORMER client by the LAWYER WHO MOVED. C) ANY LAWYER in the PREVIOUS FIRM POSSESSES CONFIDENTIAL INFORMATION about the FORMER client. D) The CONFIDENTIAL INFORMATION about the former client who was represented by the LAWYER THAT MOVED is MATERIAL to the MATTER INVOLVED in the NEW representation. (Rule 1.10(b).) (c) Disqualification ends if former client consents. In either of the above-described situations, otherwise disqualified lawyers MAY engage in representing the new client if the FORMER CLIENT GIVES INFORMED CONSENT, CONFIRMED IN WRITING. b) Family relation as basis for disqualification. (1) General rule—representations in same or substantially related matters require informed consent of clients. A lawyer may be disqualified from representing a client because of a family relation with another lawyer in a different law firm if TWO CONDITIONS are present: (a) The relative/lawyer is the affected lawyer's PARENT, CHILD, SIBLING or SPOUSE, and (b) The relative/lawyer represents a person in the SAME OR A SUBSTANTIALLY RELATED MATTER as the representation of the affected lawyer's client. (Comment [11] to Rule 1.7.) (2) Only the related lawyer is disqualified. Any disqualification arising from family relationship is PERSONAL to the affected lawyer. It is NOT imputed to a non-related lawyer associated with the affected lawyer (e.g., other lawyers in the same law firm with the affected lawyer would not be disqualified). (Comment [11] to Rule 1.7.)
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(3) No disqualification if client consents. If a lawyer would otherwise be disqualified on the basis of family relationship, that lawyer may continue the representation if the involved CLIENT GIVES INFORMED CONSENT. (Comment [11] to Rule 1.7.) c) EXCEPTION--screening When a LAWYER would herself be DISQUALIFIED from undertaking a representation, a number of courts have PERMITTED representation by the lawyer's FIRM under certain conditions. Rule 1.11 embodies this concept, in circumstances where the lawyer is disqualified because of her former service as a public officer or employee (see above). The law firm is permitted to provide representation in such a situation if THREE CONDITIONS are met: (1) the DISQUALIFIED LAWYER must be SCREENED from ANY PARTICIPATION in the matter; (2) the DISQUALIFIED LAWYER is APPORTIONED NO PART of the FEE as to the matter; and (3) WRITTEN NOTICE is PROMPTLY given to the appropriate GOVERNMENT AGENCY (so that it can ensure compliance with the above requirements). (Rule 1.11(b).) d) If there is a conflict of interest, what must/should the lawyer do? (1) Withdraw from representation. If the circumstances present a prohibited conflict of interest, as discussed in the preceding materials, the lawyer MUST WITHDRAW from at least one of the representations which present the conflict. If the lawyer has received confidential information in connection with both of the impermissibly conflicted representations, the lawyer must withdraw from BOTH of them. (a) Consent. Generally, appropriate CLIENT CONSENT can ameliorate the conflict and PERMIT the lawyer to CONTINUE the representations. (See Rule 1.7(b).) (b) Objective test.
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Whether it is appropriate to seek the informed consent of clients with a concurrent conflict of interest (as defined in Rule 1.7(a)) to continue their representation depends upon whether the interests of the clients will be adequately protected. Some conflicts are “nonconsentable;” continued representation of both clients is prohibited, because the lawyer cannot reasonably conclude that she can provide competent and diligent representation to all affected clients. (Comment [14] and [15] to Rule 1.7.) e) Compare—“vicarious” prohibitions based on transactions and relationships with clients. Where an individual lawyer would be prohibited from engaging in a transaction with a client by the provisions of Rule 1.8(a) through (i), all lawyers in the same firm are also subject to the same prohibition. (Rule 1.8(k).) (The prohibition against sexual relations with a client is not explicitly included in this “vicarious” prohibition. Thus, if Lawyer A in Law Firm is representing Client, Lawyer B in that same firm, not working on the case, could presumably have a sexual relation with Client without violating Rule 1.8(j).) 4. Withdrawal. a. MANDATORY. A lawyer MUST WITHDRAW from a representation in the THREE situations discussed below. 1) Knowing violation of the rules of professional conduct or other law. A lawyer MUST withdraw if the representation will result in a KNOWING VIOLATION of the rules of professional conduct or other law. (Rule 1.16(a)(1).) "Knowing" as used here means either that the lawyer knows that there will be a prohibited violation, or that it is OBVIOUS that such will be the result. Thus, it is a subjective or objective test. A lawyer can be held responsible if she should have known, even if she in fact did not recognize the potential violation. 2) Lawyer's mental or physical ability impaired. A lawyer MUST withdraw from a representation if the lawyer's mental or physical condition MATERIALLY IMPAIRS his ability to represent the client. (Rule 1.16(a)(2).) 3) Lawyer is discharged by the client. A lawyer MUST withdraw from a representation if FOR ANY REASON the client DISCHARGES the lawyer. (Rule 1.16(a)(3).)
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Consider the following hypothetical: "Lawyer agrees to represent Client under an arrangement where Lawyer is to receive one-third of any recovery obtained after trial. Lawyer conducts extensive discovery, pre-trial proceedings, and a lengthy trial. On the evening before Lawyer is to make closing arguments to the jury, Client phones and informs Lawyer that she has decided to replace him with her brother, an attorney who specializes in giving closing arguments to juries. Lawyer, who expects that the jury will return a substantial verdict for damages in Client's favor, also believes that Client has taken this action solely to avoid having to pay Lawyer one-third of the monies that will likely be recovered. Must Lawyer withdraw from this representation?" YES. Lawyer may have legal rights which permit recovery of some fees, as in a quasi-contract action for services performed, but this is not an ethical issue. He must, however, immediately withdraw from the representation, even though his eventual fee may be considerably smaller than one-third of the monies Client recovers. b. PERMISSIVE. A lawyer MAY (i.e., is permitted to, but need not) withdraw from a representation in SIX situations, discussed below. 1) Course of action lawyer reasonably believes is criminal or fraudulent. This basis for permissive lawyer withdrawal is very similar to the mandatory "violation of rules or law" provision discussed earlier, but involves a fine distinction in the LAWYER'S mental state. A lawyer MAY withdraw from a representation when the client persists in a course of action involving the lawyer's services that the lawyer REASONABLY BELIEVES is criminal or fraudulent. (Rule 1.16(b)(2).) Thus, if the lawyer KNOWS that the representation will result in prohibited illegality (including violation of ethical rules), he MUST withdraw; if the lawyer BELIEVES that illegality or fraud is threatened, he MAY withdraw (but need not withdraw unless and until his mental state becomes "knowing"). 2) Client used lawyer's services to perpetrate crimes or fraud. A lawyer MAY withdraw from a representation when the client has USED the LAWYER'S SERVICES to perpetrate a crime or fraud. (Rule 1.16(b)(3).) Consider the following hypothetical: "Lawyer represents Husband in a marital dissolution proceeding against Wife. Lawyer accompanies Husband to a settlement conference in which a
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complete agreement is reached regarding the division of the marital property. Issues of child custody remain to be litigated. Husband later reveals to Lawyer that he has hidden numerous marital assets from Wife so as to deprive her of her fair and lawful share of those assets. May Lawyer withdraw from the representation?" YES. Since Lawyer knew nothing of Husband's concealment of assets, he did not knowingly participate in the wrongdoing. It would not be a violation of ethical rules or other law to litigate the child custody issues. But Lawyer may withdraw from any further representation of Husband because Husband used Lawyer's unwitting aid to perpetrate a fraud upon Wife. 3) Objectives lawyer considers repugnant or imprudent. A lawyer MAY withdraw from a representation if the client insists upon taking action that the LAWYER CONSIDERS REPUGNANT or IMPRUDENT, with which the lawyer has a fundamental disagreement. (Rule 1.16(b)(4).) This need NOT involve action that is illegal, fraudulent or contrary to the rules of professional ethics. 4) Client-produced problems. A lawyer MAY withdraw from a representation if: (a) the representation will result in an UNREASONABLE FINANCIAL BURDEN on the lawyer, (b) the representation has been rendered UNREASONABLY DIFFICULT by the client, or (c) the client FAILS SUBSTANTIALLY to fulfill an OBLIGATION to the LAWYER regarding the lawyer's services [see WARNING REQUIREMENT, in the paragraph immediately below]. (Rule 1.16(b)(5) and (6).) For example, if the client refuses to communicate with the lawyer (won't return phone calls, fails to respond to request for important documents or evidence, etc.) and this makes it unreasonably difficult for the lawyer to carry out the representation, Lawyer is permitted to withdraw. Where the client refuses to pay the lawyer's fees or otherwise refuses to abide by the terms of an agreement relating to the representation, the lawyer must FIRST give the client REASONABLE WARNING that the lawyer will withdraw if the obligation remains unfulfilled. (Rule 1.16(b)(5).) 5) Other good cause. A lawyer MAY withdraw from a representation if other good cause for withdrawal exists. (Rule 1.16(b)(7).)
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6) Withdrawal without material adverse effect on client interests or client. A lawyer MAY withdraw from representing a client, even where NO "good cause" is present, if withdrawal can be accomplished WITHOUT MATERIAL ADVERSE EFFECT on the interests of the client. (Rule 1.16(b)(1).) c. PROCEDURE. 1) If necessary, get permission of court. Even though grounds for MANDATORY or PERMISSIVE withdrawal exist, the lawyer must comply with applicable law regarding notice to or permission of a tribunal. This means the lawyer must obtain the PERMISSION of the COURT to withdraw if such permission is NECESSARY. (Rule 1.16(c).) Court permission is generally necessary when a COURT has TAKEN JURISDICTION over the matter involved in the representation. For example, a lawyer representing a defendant in a civil dispute who has been served with summons and the complaint must seek permission from the court to withdraw from the representation if the answer has been filed. 2) Protect client's legitimate interests. Whenever a lawyer withdraws from a representation, for any reason, the lawyer must take reasonable steps to protect the client's interests. Such steps would include giving reasonable notice, allowing time for the client to retain other counsel, returning property or papers to which the client is entitled, and refunding any unearned advanced fee payments or advance expense payments that have not been incurred. (Rule 1.16(d).) Consider the following hypothetical: "After Lawyer has provided substantial legal services to Client, based on an agreement in which Client agreed to pay a reasonable hourly fee, Client refuses to pay Lawyer any of the $25,000 in legal fees owed. Lawyer gives Client reasonable notice that she intends to withdraw from the representation if Client does not pay the past due fees, but Client refuses to pay. Lawyer informs client that she is withdrawing from the representation and that, although no litigation has commenced, advises Client that he should obtain new counsel. Lawyer is subsequently informed by Client that he has hired Attorney to represent him in the matter, and instructs Lawyer to send all relevant case files to Attorney. Lawyer states that she will send the case files only after Client has paid the past due legal fees. Is Lawyer subject to discipline?" YES, IF retaining the file would harm Client's legitimate interests. (Note also, if state law does not permit the lawyer to retain case files as security for
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payment of a fee, lawyer would be subject to discipline for violating state law.) C. Representing the client. 1. Zealous representation. A lawyer has a duty to zealously represent her client. This means that the lawyer must do everything LEGALLY and ETHICALLY NECESSARY to advance the interests of the client in the representation UNLESS the client's SOLE MOTIVE is to harass or maliciously injure another person. (Rules 3.1, 3.2.) When analyzing an MPRE fact pattern with regard to these principles, ASSUME that the client's motive is PROPER unless you have CLEAR EVIDENCE to the contrary. A lawyer's suspicion or belief that a client has an improper motive is NOT a sufficient basis to relieve that lawyer of his duty to zealously represent his client. a. Division of authority between client and attorney. "Division of authority" in a legal representation refers to WHO has authority to make the necessary DECISIONS regarding the objective and conduct of the representation--client or lawyer? 1) Client. The CLIENT has the final authority to make decisions regarding the OBJECTIVES and GOALS of the representation (including whether to testify on his own behalf, or whether to waive a constitutional right such as jury trial). The client determines what the objectives and goals are, and whether in a particular circumstance or situation those objectives and goals have been met. Thus, in order to settle a civil matter, or accept a plea bargain in a criminal matter, the lawyer must have the client's consent, since the decision relates to whether the goal of the representation has been achieved. (Rule 1.2(a).) 2) Attorney. The LAWYER has authority to make almost all decisions relating to the MEANS or METHODS by which the client's goals and objectives are achieved, and may take such action on behalf of the client as is impliedly authorized to carry out the representation. This means that the technical and legal decisions--what legal arguments to make, what motions to file, what witnesses to call, etc.--are made by the lawyer (with one important EXCEPTION, below). The lawyer must CONSULT with the client regarding these matters. (Rule 1.2(a).)
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a) EXCEPTION: lawyer and client CANNOT AGREE. The Rules do not provide a basis for resolving lawyer/client disagreement over means or methods. Applicable other law should be consulted by the lawyer, and she should CONSULT with the client and seek a MUTUALLY ACCEPTABLE RESOLUTION of the disagreement. (Comment [2] to Rule 1.2.) 3) Limiting lawyer's participation in representation. a) General rule. A lawyer may LIMIT the SCOPE of the representation in TWO circumstances: (1) When the client CONSENTS to do so, the lawyer may agree to pursue SOME but NOT ALL of the client's objectives, or to agree in advance that only CERTAIN MEANS will be used to pursue the client's objectives. (Rule 1.2(c), Comment [6] to Rule 1.2.) Client, an organization promoting segregation and racial supremacy, seeks to hire Lawyer in connection with a suit brought by government officials against Client. The suit seeks to prevent distribution of Client's newsletter and to enjoin Client from engaging in activities which allegedly violate the civil rights of various persons. If Client consents, Lawyer may limit the representation to resisting the prior restraint on distribution of Client's newsletter, and take no part in defending against the allegations of civil rights violations. (2) When a lawyer's participation would involve COUNSELING or ASSISTING the client to engage in conduct that the lawyer KNOWS is CRIMINAL or FRAUDULENT, the lawyer may REFUSE to so counsel or assist, while continuing to pursue permissible client objectives. (Rule 1.2(d).) A lawyer MUST DECLINE or WITHDRAW from a representation when a client DEMANDS that the lawyer assist in illegal or fraudulent conduct. (Rule 1.16(a)(1).) If a client merely SUGGESTS illegal or fraudulent conduct, the lawyer NEED NOT decline or withdraw, since the lawyer can resist the suggestion. (Comment to Rule 1.16.) b) Testing validity of law or of proposed conduct. The above rule does NOT bar a lawyer from: (1) Assisting a client in a GOOD FAITH TEST of the VALIDITY or INTERPRETATION of a law or regulation. This is so even if the CLIENT or the LAWYER DISOBEYS the LAW in the process. (Rule 1.2(d) and Comment thereto.)
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(2) HONESTLY EVALUATING the LEGALITY of a PROPOSED course of client conduct. This evaluation MUST NOT include or become ADVICE on HOW to engage in illegal or fraudulent conduct without being detected or punished. (Comment [9] to Rule 1.2.) b. Duties. 1) To your client(s). a) Loyalty. A lawyer owes a duty of LOYALTY to her client(s); this duty has already been discussed, above, in connection with the area of CONFLICTS. A lawyer avoids violation of the duty of loyalty by avoiding prohibited conflicts. b) Diligence. A lawyer owes a duty to DILIGENTLY represent his client(s). This duty was discussed above in connection with the area of lawyer COMPETENCE, and in connection with ZEALOUS REPRESENTATION. c) Keep client reasonably informed. A lawyer’s duties to the client include PROVIDING THE CLIENT WITH INFORMATION about the representation. (Rule 1.4) Thus, a lawyer MUST: (1) keep the client REASONABLY INFORMED about the STATUS of the matter. (2) PROMPTLY INFORM the client of any decision or circumstance with respect to which the client's INFORMED CONSENT is required. (3) PROMPTLY COMPLY with REASONABLE REQUESTS for information. (4) EXCEPTION: withholding information when prudent: Under limited circumstances, it is permissible to withhold information from a client when it is prudent not to reveal it, as where communication of the information would HARM THE CLIENT (e.g., the lawyer withholds a report about the client by an examining psychiatrist because the report itself states that disclosure would harm the client). (Comment [7] to Rule 1.4.) d) Render candid legal advice.
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A lawyer MUST render CANDID LEGAL ADVICE to the client, based upon the lawyer's INDEPENDENT PROFESSIONAL JUDGMENT. For example, it would violate this duty to hold back information from a client merely because it might upset or disturb her. (Rule 2.1.) Although it may seem obvious, it is worth noting (because sometimes tested on the MPRE) that a lawyer MUST NOT COUNSEL a client to engage in conduct the lawyer knows is CRIMINAL or FRAUDULENT. (Rule 1.2(d).)
2) Avoid frivolous claims. A lawyer owes a duty NOT to advance a FRIVOLOUS CLAIM. (Rule 3.1.) "Frivolous" as used here means the lawyer is UNABLE to make a GOOD FAITH ARGUMENT on the merits in support of it under EXISTING LAW, or on the basis of an EXTENSION, MODIFICATION or REVERSAL of existing law. (Rule 3.1 and Comment thereto.) Consider the following hypothetical, which illustrates a fact pattern used on the MPRE: "Lawyer agrees to represent Thug in a criminal matter. While interviewing Thug, Lawyer is told by Thug, "I did commit the crime that I am being prosecuted for." Lawyer proceeds to defend Thug in the prosecution, entering a "not guilty" plea on Thug's behalf. Is Lawyer subject to discipline?" NO. Although it can be said that Lawyer has no "good faith" argument to make in support of Thug being "not guilty," the Rules provide that it is NOT FRIVOLOUS within the meaning of Rule 3.1 to defend and require the prosecution to prove every element of the case, even though there is NO OTHER good faith argument in support of the client's innocence. Note--constitutional requirements superior to Rule: Criminal defendants may be entitled under federal or state constitutional provisions to the assistance of defense counsel in presenting claims that would otherwise violate Rule 3.1 (i.e., criminal defendants may be entitled to insist that “frivolous” claims be presented in their defense). The Comments to Rule 3.1 state that the lawyers obligation under Rule 3.1 are “subordinate” to such constitutional entitlements, strongly suggesting that a lawyer would not be subject to discipline under such circumstances. 3) Candor to the court. A lawyer MUST NOT KNOWINGLY LIE to the court. (Rule 3.3.) "Knowing" and "lie" require elaboration.
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a) Law. A lawyer MUST REVEAL to the court law or authority which she KNOWS, which is DIRECTLY ADVERSE to her client, which is from a CONTROLLING JURISDICTION, and which is NOT DISCLOSED BY OPPOSING COUNSEL. (Rule 3.3(a)(2).) It must also be obvious that a lawyer MUST NOT KNOWINGLY MAKE to a court a FALSE STATEMENT of LAW, or KNOWINGLY FAIL TO CORRECT a PREVIOUSLY MADE FALSE STATEMENT OF MATERIAL LAW. (Rule 3.3(a)(1).) A "controlling jurisdiction" is one which has MANDATORY AUTHORITY over the court in which the lawyer is appearing. "Persuasive" authority which is adverse to the lawyer's client need NOT be revealed. b) Facts. (1) "Knowingly lie" means more than a subjective awareness of dishonesty. A lawyer who KNOWS an assertion of fact made to the court is UNTRUE is lying, but so is a lawyer who makes an assertion of fact and DOES NOT KNOW WHETHER IT IS TRUE OR NOT. In other words, a lawyer must BELIEVE an assertion to be true based upon REASONABLY DILIGENT INQUIRY. (Comment to Rule 3.3.) A "lie" includes a false statement of fact, failure to correct a previously made false statement of material fact, and a knowing offer of false evidence. (Rule 3.3(a)(1) and (3).) A lawyer MUST TAKE REMEDIAL ACTION, including, if necessary, DISCLOSURE TO THE TRIBUNAL, if he comes to KNOW that MATERIAL EVIDENCE PREVIOUSLY OFFERED by him, his client, or a witness called by him, is FALSE. (Rule 3.3(a)(3).) (2) Lawyer reasonably believes evidence is false. Where the lawyer does not “know” that evidence is false (as defined above), and thus is NOT REQUIRED to REFUSE to offer it, that lawyer nevertheless MAY (i.e., is permitted to) refuse to offer evidence which she REASONABLY BELIEVES is false. (Rule 3.3(a)(3) and Comment [9].) (3) Adverse evidence. There is NO GENERAL DUTY for a lawyer to reveal EVIDENCE which is adverse to his client (unlike the duty to reveal certain
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adverse law, discussed above). However, there are TWO important EXCEPTIONS. (a) Special duty of prosecutors. As part of the special obligations arising from their status as public officials, PROSECUTORS have a special duty to disclose certain evidence adverse to their office. A prosecutor must make DISCLOSURE to the defense, within an APPROPRIATE TIME, of ALL EVIDENCE or information KNOWN to her which tends to NEGATE the GUILT of the defendant, tends to MITIGATE the OFFENSE, or would MITIGATE the PUNISHMENT the defendant would receive. (Rule 3.8.) Note that DEFENSE COUNSEL has NO OBLIGATION to reveal to the prosecution any information which tends to show the guilt of the defendant. (b) Disclosure necessary to avoid assisting crime/fraud by client. A lawyer must DISCLOSE a material fact when NECESSARY to AVOID ASSISTING a criminal or fraudulent act by his client. (i) Client/witness perjury. One of the most difficult and hotly debated issues of professional responsibility is what a lawyer must (or may) do when she discovers that her client or a witness testifying on behalf of her client intends to commit perjury or engage in criminal or fraudulent conduct related to the proceeding. There is no straightforward real-world resolution to this problem, and even the rules of professional conduct are unclear. Rule 3.3 states that, in this situation, a lawyer "SHALL TAKE REMEDIAL MEASURES." In the Comment to Rule 3.3 are listed three remedial measures that a lawyer MAY take. However, it is possible to state an approach to apply on the MPRE--treat the three suggested remedial measures as PERMISSIVE not mandatory. A lawyer who discovers client or witness perjury MAY take the following remedial measures, IN ORDER: A) Try to DISSUADE the client/witness from committing perjury, or if discovered after the fact, try to persuade them to RECANT their perjured testimony.
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B) Attempt to WITHDRAW from the representation, if that will solve the problem. C) As a last resort, DISCLOSE the perjury to the JUDGE. Since the information involved here is a client confidence or secret, this is, in effect, an exception to the duty to keep client confidences and secrets. Thus, this disclosure must be as limited as possible; informing anyone else would violate the duty of confidentiality. Consider the following hypothetical: "Lawyer represented Defendant, who was being prosecuted for robbery. The defense is alibi--Defendant told the arresting officers, who seized him an hour after the crime was committed, that he had been at a crowded church service, and described details of the service only someone who had attended would know. On the morning before Defendant was to testify in his own defense, Defendant told Lawyer that he had not in fact attended the church service, but had been told the details he "remembered" by a friend who did attend. Which of the following actions are proper for Lawyer to take? I. Continue to represent Defendant, even if Defendant intends to repeat his false testimony on the stand at trial. II. Continue to represent Defendant, even if Defendant intends to repeat his false testimony, but try to persuade Defendant not to testify falsely. III. Withdraw from the representation, if the court permits. IV. If no other action will remedy the situation, inform the authorities. (A) II and III. (B) I, II and III. (C) II, III and IV. (D) I, II, III, and IV."
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The correct answer is (B). For MPRE purpose, Lawyer MAY continue the representation, try to dissuade Defendant from falsely testifying, or attempt to withdraw. Lawyer may NOT inform "the authorities;" the only permissible "last resort" option is to inform the JUDGE of the Defendant's plan to give perjured testimony. Also consider the following hypothetical: "Lawyer represents Defendant, who is on trial for burglary. On the day before the defense case is to be presented at trial, Defendant informs Lawyer that he intends to take the stand in his own defense, and testify to any falsehood that will cause the jury to be deceived and exonerate him. Lawyer attempts to dissuade Defendant from falsely testifying, but when Defendant insists, Lawyer refuses to call Defendant as a witness. What should Lawyer do?" Lawyer should allow Defendant to testify, but should ask only GENERAL questions, so as to participate as little as possible in Defendant's perjury. This illustrates another particularly difficult real-world situation as to which, for MPRE purposes, the lawyer should find the best accommodation of competing ethical obligations. Lawyer has a duty to abide by her client's decisions concerning whether to testify in his own behalf. Lawyer also has an ethical obligation not to proffer evidence that she knows is false. By calling Defendant as a witness, Lawyer honors the duty to abide by the client's decision. By asking only general questions, Lawyer participates as little as possible in the wrongdoing, thus honoring the duty not to offer evidence she knows is false. 4) Fairness to opposing party and counsel. a) Tampering with evidence. (1) Evidentiary material. A lawyer MUST NOT unlawfully ALTER, DESTROY or CONCEAL a document or other material having potential evidentiary value, unlawfully OBSTRUCT another party's ACCESS to evidence, or counsel or assist another to do such acts. (Rule 3.4(a).) (2) Witnesses.
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A lawyer MUST NOT ALTER a witness's testimony or "HIDE" a witness by advising or causing that witness to secrete himself or leave the jurisdiction for the purpose of making him unavailable as a witness. A lawyer also MUST NOT PREVENT another party's ACCESS to a witness by requesting that witness to refrain from voluntarily giving relevant information to another party. (Rule 3.4.) There are THREE EXCEPTIONS to this rule, set forth below. A lawyer MAY request the following types of witness to NOT COOPERATE with another party: (a) The lawyer's CLIENT. (b) A RELATIVE of the client. (c) An EMPLOYEE or other AGENT of the client. (3) Lawyer contact with other lawyer's clients. If a lawyer KNOWS that another party is REPRESENTED BY COUNSEL, that lawyer MUST NOT COMMUNICATE DIRECTLY with the other party about the subject of the representation; communication must be via the other party's lawyer (with certain limited exceptions not really tested on the MPRE). (Rule 4.2.) (4) Paying witnesses to testify. In general, a lawyer MUST NOT PAY a witness A FEE to testify. (Rule 3.4(b).) There are TWO modifications of this general rule, set forth below. (a) A lawyer MAY pay a REASONABLE FEE to an EXPERT WITNESS. However, it is IMPERMISSIBLE for the expert witness's fee to be CONTINGENT on either the OUTCOME of the litigation, or on what TESTIMONY the expert gives. (b) A lawyer MAY COMPENSATE a witness for EXPENSES involved in giving the testimony. Examples of permissible witness compensation are expenses incurred in attending or testifying, or compensation for loss of time caused by attending or testifying. (5) Referring to inadmissible evidence. A lawyer MUST NOT refer to any matter the lawyer DOES NOT REASONABLY BELIEVE is RELEVANT or that will NOT be
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supported by ADMISSIBLE evidence. (Rule 3.4(e).) In the real world, or on television dramas, it may be common for an attorney to intentionally ask a question he knows is objectionable because it calls for an inadmissible response, simply to communicate the inadmissible material to the jury. An instruction by the judge to "disregard" the information is probably fruitless. Such conduct will subject a lawyer to discipline. (6) Lawyer's personal opinion. A lawyer MUST NOT state a PERSONAL OPINION to the jury 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. (Rule 3.4(e).) A lawyer MAY argue to the jury as to how they should decide an opinion or conclusion based on the lawyer's analysis of the evidence on any of these matters. 5) Maintain impartiality and decorum of tribunal. a) Avoid disruption. A lawyer MUST NOT engage in conduct intended to DISRUPT a tribunal. (Rule 3.5(d).) For example, a lawyer who expressed disagreement with a judge's overruling of his objection by shouting at the judge would be subject to discipline under this principle. b) Avoid delay. A lawyer MUST make REASONABLE EFFORTS to EXPEDITE litigation consistent with the interests of the client. (Rule 3.2.) Action will be subject to discipline IF a competent lawyer acting in GOOD FAITH would regard the course of action as having NO substantial purpose OTHER than delay. (Comment to Rule 3.2.) c) Interaction with judges and jurors. (1) Improper influence. A lawyer MUST NOT seek to UNLAWFULLY INFLUENCE a JUDGE, JUROR, PROSPECTIVE JUROR, or OTHER COURT OFFICIAL in a pending case. (Rule 3.5(a).) Examples of improper influence include bribery, threats, etc. (2) Improper communication. (a) Judges.
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A lawyer MUST NOT COMMUNICATE EX PARTE with a JUDGE, or OTHER OFFICIAL DURING A PROCEEDING except as authorized by court order or law. (Rule 3.5(b).) (b) Jurors. Whether a lawyer's communication with a juror is impermissible is a matter of TIMING. A lawyer MUST NOT communicate EX PARTE with a JUROR or PROSPECTIVE JUROR DURING A PROCEEDING except as authorized by court order or law. (Rule 3.5(b).) A lawyer generally MAY communicate with jurors AFTER trial has concluded (e.g., to determine why they decided the case as they did) UNLESS (Rule 3.5(c).)-(i) the communication involves MISREPRESENTATION, COERCION, DURESS or HARASSMENT, (ii) the juror DOES NOT WISH TO COMMUNICATE (and has made that known to the lawyer), or (iii) the communication is PROHIBITED by court order or law. c. Problem re trial publicity. Rule 3.6 contains lengthy lists of examples that will and will not violate the principles governing lawyer statements to the public regarding pending trials. MPRE questions can be answered effectively by reference to the critical test set forth below. A lawyer MUST NOT make a PUBLIC STATEMENT which will have a SUBSTANTIAL LIKELIHOOD of MATERIALLY PREJUDICING the proceeding. (Rule 3.6(a).) "Public statement" means an EXTRA-JUDICIAL statement which a REASONABLE PERSON would expect to be disseminated by means of PUBLIC COMMUNICATIONS. There is also a "scienter"-type requirement--the lawyer is subject to discipline under this principle only IF she KNOWS or REASONABLY SHOULD KNOW of the substantial likelihood of material prejudice. There is ONE EXCEPTION worth specially noting to this rule. 1) Matters in public record. A lawyer MAY make reference to the PUBLIC RECORD, UNLESS the judge has SEALED it. 2. Confidentiality.
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a. Fundamental rule: Cannot be revealed without client's consent or if detrimental to client. A lawyer MUST NOT REVEAL INFORMATION covered by the duty of confidentiality WITHOUT INFORMED CLIENT CONSENT or if revelation would be DETRIMENTAL to the client. (Rule 1.6.) This duty CONTINUES even AFTER the representation has been TERMINATED and the lawyer-client relationship is ended. (Comment to Rule 1.6.) The duty of confidentiality also CONTINUES AFTER the DEATH of the CLIENT. Information covered by the duty of confidentiality can usefully be divided into TWO analytical categories--CONFIDENCES AND SECRETS. 1) What information is covered by duty. Rule 1.6(a) applies the duty of confidentiality to ALL "INFORMATION relating to representation of a client." The Comments acknowledge that two related bodies of law interact in this area--ATTORNEY-CLIENT PRIVILEGE in the law of evidence, and the rules of CONFIDENTIALITY of professional ethics. This duality was formerly recognized by using different labels for client information: CONFIDENCES and SECRETS. "Confidences" referred to client information subject to the attorney-client privilege (one common requirement for application of the privilege is that the information was communicated "in confidence.") "Secrets" referred to all other client information gained in the professional relationship that the CLIENT REQUESTED be held inviolate or disclosure of which would be EMBARRASSING or likely be DETRIMENTAL to the client. Thus, there is an important distinction to remember--a lawyer CAN be compelled by a court to reveal a SECRET (as it is not within the attorney-client privilege), but CANNOT be compelled to reveal a CONFIDENCE. BOTH SECRETS and CONFIDENCES are within the lawyer's ethical duty of confidentiality. 2) Employees and associates. The Rules presume that other lawyers and employees with whom the lawyer works are permitted to receive confidences and secrets. There are TWO important elaborations to this notion, discussed below. a) Client objects. A lawyer MUST NOT reveal confidences and secrets to her associates and employees IF the CLIENT OBJECTS. This requires an AFFIRMATIVE OBJECTION by the client; i.e., the mere absence of client consent does
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NOT preclude the lawyer from sharing client information under this principle. When client information is shared by the lawyer with associates or employees, the lawyer MUST ENSURE that those others PRESERVE the confidentiality of that information. (See Rules 5.1 and 5.3.) b. EXCEPTIONS to fundamental rule. In the circumstances discussed below, the lawyer MAY (is permitted, but NOT REQUIRED to) reveal information otherwise subject to the duty of confidentiality. 1) To prevent death or substantial bodily harm. A lawyer may reveal client information he reasonably believes is NECESSARY to PREVENT REASONABLY CERTAIN DEATH or SUBSTANTIAL BODILY HARM. (Rule 1.6(b)(1).) Such dangers are “reasonably certain” if, absent preventive lawyer action, they will be SUFFERED IMMINENTLY or if there is a PRESENT AND SUBSTANTIAL THREAT that they will be suffered at a LATER DATE. (Comment [6] to Rule 1.6.) Consider the following hypothetical: “Lawyer learns in the course of representing her client, a manufacturing corporation, that the client has accidentally discharged toxic waste into a town's water supply. Lawyer reasonably believes that anyone drinking water tainted by this waste incurs a substantial risk of contracting cancer. May Lawyer inform governmental authorities of the toxic discharge?” YES, Lawyer MAY reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer's disclosure is necessary to eliminate the threat or reduce the number of victims. 2) Attorney problems. a) Malpractice or other allegation of wrongdoing. (1) A lawyer may reveal client information necessary to establish a claim or defense in a CONTROVERSY BETWEEN lawyer and 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. However, only such information NECESSARY to achieve the stated purpose may be revealed, and
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ONLY to the APPROPRIATE AUTHORITY. "Appropriate authority" means the COURT or the DISCIPLINARY AUTHORITY (if the lawyer is charged with an ethical violation). (Rule 1.6(b)(3).) (2) A lawyer may reveal client information she believes reasonably necessary to OBTAIN LEGAL ADVICE (for herself) about her compliance with the rules of professional responsibility. (Rule 1.6(b)(2).) b) Client perjury or threatened perjury. As discussed elsewhere, a lawyer faced with a client or witness intending to commit perjury MAY take three remedial measures; the third was, as a last resort, to DISCLOSE the perjury to the JUDGE. This is also an exception to the duty to keep client confidences and secrets. c) Collection of fees. A lawyer may reveal client confidences and secrets as necessary to establish or collect the lawyer's fee, and only to the appropriate authority (see above). 3) Identity of client and fact of retainer. A lawyer may reveal the FACT that she has been retained, the AMOUNT of the retainer, and the IDENTITY of the client who has retained her. 4) Client consents or impliedly authorizes. A lawyer may reveal any information as to which the CLIENT GIVES INFORMED CONSENT. (Rule 1.6(a).) This requires that the lawyer has specifically communicated what he intends to reveal. The more general the scope of the client's consent, the LESS likely that such consent is valid under this principle. A lawyer may also reveal information if disclosure is IMPLIEDLY AUTHORIZED in order to carry out the purposes of the representation (unless client instructions or special circumstances limit such implied authority [Comment [5] to Rule 1.6]). 5) Disclosure required by law or court order. The Rules recognize (but do not define or otherwise discuss) that a lawyer might be obligated by other law or court order to disclose confidential client information. If so, the lawyer MAY so disclose without violating the rules of professional responsibility. (Rule 1.6(b)(4).) III. MAINTAINING THE INTEGRITY OF THE LEGAL PROFESSION.
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A. Unauthorized practice of law. A lawyers has an obligation to ensure that only persons authorized to practice law engage in its practice. The MPRE tests this in the following context: a lawyer HELPING a lay person (non-lawyer) to engage in conduct which is the UNAUTHORIZED PRACTICE OF LAW. Note that the focus is on the LAWYER; the lay person's civil or criminal liability is outside the scope of professional responsibility and the MPRE. The general rule is that a lawyer MUST NOT ASSIST a person who is not a member of the bar in any activity that constitutes unauthorized practice of law. (Rule 5.5(b).) 1. Practice of law defined: "Practice of law" requires the exercise of LEGAL JUDGMENT in relating the general body and philosophy of law to a specific legal problem of a client. Use of LEGAL KNOWLEDGE not employed in the representation of a client is NOT the practice of law. (Comment to Rule 5.5.) Where a lawyer enables or permits a lay person to exercise legal judgment, the principles in this area are violated. 2. Associating with non-lawyers. A lawyer MUST NOT enter into certain arrangements with a non-lawyer, as discussed below. a. Partnership. A lawyer MUST NOT enter into a PARTNERSHIP with a non-lawyer if ANY of the activities of the partnership consist of the practice of law. (Rule 5.4(b).) b. Professional corporations. A lawyer MUST NOT practice with or in a PROFESSIONAL CORPORATION or association authorized to practice law FOR PROFIT if a nonlawyer owns any interest therein (i.e., is a SHAREHOLDER), is a corporate OFFICER or DIRECTOR, or has the right to direct or control the professional judgment of a lawyer. (Rule 5.4(d).) c. Fee Splitting. 1) General rule--prohibited. A lawyer or law firm MUST NOT share LEGAL FEES with a NONLAWYER. (Rule 5.4(a).)
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2) Exceptions--when permitted. Certain payments are NOT PROHIBITED by the general rule against fee splitting with non-lawyers. These fall into THREE main categories: a) WAGES, COMPENSATION PLANS, or RETIREMENT PLANS for non-lawyer EMPLOYEES of the lawyer or law firm even if they are funded by legal fees and/or include a profit-sharing component. (Rule 5.4(a)(3).) b) Payment to the ESTATE of a DECEASED LAWYER of the portion of FEES EARNED attributable to the work performed by the deceased lawyer before death, by the lawyer who COMPLETES the legal work started by the deceased lawyer. This exception also applies when a lawyer who purchases the practice of a deceased or disabled lawyer (or one who disappeared) pays the PURCHASE PRICE of the practice to the ESTATE or REPRESENTATIVE. (Rule 5.4(a)(2).) c) Payments of DEATH BENEFITS to a DECEASED LAWYER'S ESTATE or to specified persons for a reasonable time after the lawyer's death, pursuant to an agreement to that effect. (Rule 5.4(a)(1).) d) COURT-AWARDED LEGAL FEES may be SHARED with a NONPROFIT ORGANIZATION that EMPLOYED, RETAINED, OR RECOMMENDED EMPLOYMENT of the lawyer in the matter in which the fees were awarded. (Rule 5.4(a)(4).) 3. Restricting the right to practice law. a. General rule. A lawyer MUST NOT participate in OFFERING or MAKING the following types of AGREEMENTS which LIMIT the lawyer's RIGHT to PRACTICE LAW: 1) A PARTNERSHIP or EMPLOYMENT agreement that restricts the rights of a lawyer to practice AFTER TERMINATION of the relationship. (Rule 5.6(a).) 2) An agreement in which a restriction on a lawyer's right to practice is part of the SETTLEMENT of a CONTROVERSY between private parties. (Rule 5.6(b).) b. EXCEPTIONS.
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In TWO different situations, an agreement limiting a lawyer's right to practice law may be permitted. These are: 1) A RETIREMENT AGREEMENT entered into by a retiring lawyer in which she agrees to restrict her practice of law INCIDENT to PAYMENT of RETIREMENT BENEFITS. (Rule 5.6(a).) 2) Restrictions on practice may be included in an agreement involving SALE of a LAW PRACTICE. (Comment to Rule 5.6, see Rule 1.17 and discussion thereof, above in this outline.) 4. Multi-jurisdictional practice. In analyzing multi-jurisdictional practice problems, focus must be distinguished between acts of a lawyer who is admitted in the regulating jurisdiction (“this state”) which take place outside the jurisdiction, and acts of lawyers admitted in other jurisdictions (“another state”), but not in the regulating jurisdiction, which take place inside the regulating jurisdiction. a. Lawyer admitted in this state engages in misconduct in another state. 1) General rule. A lawyer MUST NOT PRACTICE LAW in a jurisdiction if doing so would VIOLATE THE LAWS regulating the legal profession in THAT JURISDICTION. (Rule 5.5(a).) A lawyer admitted to practice in this state is subject to the disciplinary authority of this state and may be subject to sanction in connection therewith even if the misconduct OCCURS IN ANOTHER JURISDICTION. A lawyer may be subject to discipline by MORE THAN ONE jurisdiction’s governing authority for the SAME CONDUCT. (Rule 8.5(a).) (But see the choice of law rules, below.) b. Lawyer admitted only in another state engages in practice of law in this state. 1) General rule. A lawyer who is NOT ADMITTED to practice in this state MUST NOT • ESTABLISH AN OFFICE or other SYSTEMATIC AND CONTINUOUS PRESENCE in this jurisdiction FOR THE PRACTICE OF LAW. Presence may be systematic and continuous even if the lawyer is NOT PHYSICALLY PRESENT in this state. (Comment [4] to Rule 5.5.) OR
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•
HOLD OUT TO THE PUBLIC or otherwise REPRESENT that the lawyer is ADMITTED TO PRACTICE law in this jurisdiction. (Rule 5.5(b).)
Note also that a lawyer not admitted in this state is subject to the disciplinary authority of this state if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to discipline by MORE THAN ONE jurisdiction’s governing authority for the SAME CONDUCT. (Rule 8.5(a).) (But see the choice of law rules, below.) 2) Exceptions—when lawyer admitted only in another state ALLOWED to practice in this state. Always required—admitted in good standing elsewhere. In order for the multi-jurisdictional practice exceptions to apply, the lawyer must be ADMITTED IN ANOTHER UNITED STATES JURISDICTION, and NOT BE DISBARRED or SUSPENDED FROM PRACTICE in ANY jurisdiction. (For purposes of this Rule, a lawyer who has been technically admitted to the bar in another state, but is not authorized to practice law there, because, for example, she was on inactive status, would not be “admitted in another jurisdiction.” (Comment [7] to Rule 5.5.)) a) Temporary legal services. A lawyer from another jurisdiction qualified as above may perform temporary legal services in this state if ANY ONE of the FOUR “SAFE HARBORS” below are available. (Rule 5.5(c).) Services may be "temporary" even though the lawyer provides services in this state on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation. (Comment [6] to Rule 5.5.) (1) The lawyer from another jurisdiction ASSOCIATES with a lawyer who IS ADMITTED TO PRACTICE IN THIS JURISDICTION and that lawyer (admitted here) ACTIVELY PARTICIPATES in the matter. (2) The temporary legal services are IN or REASONABLY RELATED to a PENDING or POTENTIAL PROCEEDING before a tribunal in this or another jurisdiction AND 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. “Authorized by law or order” refers to authority granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of a tribunal or agency. (Comment [9] to Rule 5.5.) (3) The temporary legal services are IN or REASONABLY RELATED to a PENDING or POTENTIAL ARBITRATION, MEDIATION, or other ALTERNATIVE DISPUTE RESOLUTION PROCEEDING in
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this or another jurisdiction, AND 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. Note: this safe harbor specifically EXCLUDES services for which the forum REQUIRES PRO HAC VICE ADMISSION. Any legal services which specifically require such admission may only be performed if the requisite authorization is obtained. (Comment [12] to Rule 5.5.) (4) The temporary legal services do not qualify for safe-harbor under (2) or (3), above, but they ARISE OUT OF or are REASONABLY RELATED to the lawyer’s PRACTICE in a jurisdiction in which the lawyer is admitted to practice. b) Legal services for an employer or under federal law. A lawyer from another jurisdiction qualified as above (admitted and in good standing in some jurisdiction) may also perform legal services (which need not be temporary in nature) if they fall within EITHER ONE of TWO “SAFEHARBORS” (Rule 5.5(d))-(1) The legal services are provided to the lawyer’s EMPLOYER or its organizational affiliates. This refers to lawyers such as in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. It does not authorize the provision of personal legal services to the employer’s officers or employees. (Comment [16] to Rule 5.5.) (Note: this safe harbor specifically EXCLUDES services for which the forum REQUIRES PRO HAC VICE ADMISSION. Any legal services which specifically require such admission may only be performed if the requisite authorization is obtained.)
(2) The lawyer is authorized by federal law or other law of this jurisdiction to provide such legal services. “Other law” includes statute, court rule, executive regulation or judicial precedent. (Comment [18] to Rule 5.5.)
c) Choice of Law. Given the permissible scope of multi-jurisdictional practice, as discussed above, a lawyer subject to the disciplinary authority of more than one jurisdiction could be confronted with inconsistent or incompatible rules of professional conduct. Thus, the Rules seek to establish a protocol that will provide consistency and certainty to clients and to the legal profession in determining which jurisdiction’s rules will be used to assess particular conduct. (Comment [2] and [3] to Rule 8.5.) Analysis varies according to whether or not the CONDUCT at issue
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OCCURRED IN CONNECTION WITH A MATTER PENDING BEFORE A TRIBUNAL.
(1) Conduct occurred in connection with tribunal. As to conduct in connection with a matter pending before a tribunal, the applicable rules are those of the jurisdiction in which the tribunal sits (unless the rules of the tribunal provide otherwise). (Rule 8.5(b)(1).) (2) Other conduct—predominant effect. For any other conduct, which did not occur in connection with a pending matter before a tribunal, the applicable rules are identified by assessing IN WHICH JURISDICTION the conduct at issue had its PREDOMINANT EFFECT. (Rule 8.5(b)(2).) (a) Analysis. The Rule provides that the applicable rules are those of the jurisdiction in which the conduct occurred, UNLESS the predominant effect of the conduct is in a different jurisdiction. Thus, if the predominant effect impacts upon the jurisdiction where the conduct occurred, its rules apply, and if the predominant effect impacts upon another jurisdiction with disciplinary authority, that second jurisdiction’s rules apply. (b) Reasonable belief “defense”. Because a lawyer’s conduct involving significant contacts with more than one jurisdiction may not be clearly governed by a single jurisdiction’s rules under the above standard, the Rule provides something of a potential “defense” for a lawyer whose conduct would be subject to discipline in one jurisdiction but not in another. A lawyer shall NOT be subject to discipline if the lawyer’s conduct CONFORMS to the rules of a jurisdiction in which the lawyer REASONABLY BELIEVES the PREDOMINANT EFFECT of the lawyer’s conduct will occur. (Rule 8.5(b)(2) and Comment [5] thereto.) B. Reporting Professional Misconduct. A lawyer who KNOWS that ANOTHER LAWYER or a JUDGE has committed a VIOLATION of the rules of professional or judicial conduct MUST REPORT that to the APPROPRIATE AUTHORITY. (Rule 8.3.) This is subject to the (by now familiar) EXCEPTION relating to CONFIDENTIALITY--if the lawyer learns of the misconduct via confidential information, she probably must NOT REVEAL it (i.e., must not report the misconduct). (Rule 8.3(c).) C. Commenting on Judges and Candidates.
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A lawyer is PERMITTED to SUPPORT incumbent judges running for re-election or lawyers seeking to be elected as judges. Ethical considerations arise concerning the lawyer's public statements regarding such candidates. A lawyer MUST NOT make a KNOWINGLY FALSE STATEMENT regarding the qualifications or integrity of a SITTING JUDGE, a candidate for election to judicial office, or like positions. (Rule 8.2(a).) "Knowing" means that the lawyer either KNOWS the statement is false, or acts with RECKLESS DISREGARD as to its truth or falsity. D. Public service activities. 1. Pro bono public service. a. General rule. A lawyer SHOULD ASPIRE to render public interest legal service. (Rule 6.1.) This obligation expresses a rule of policy but is NOT intended to be enforced through the DISCIPLINARY PROCESS. (Comment to Rule 6.1.) This obligation may be satisfied by-1) Providing PROFESSIONAL SERVICES at REDUCED or NO FEE to persons of limited means, public service groups, or charitable groups. 2) Engaging in ACTIVITIES for IMPROVING the LAW, the LEGAL SYSTEM or the LEGAL PROFESSION. 3) Providing FINANCIAL SUPPORT for organizations that provide legal services to persons of limited means. Note--The Rules suggest that lawyers AVERAGE at least 50 HOURS of such service ANNUALLY, but leave it to individual jurisdictions to adopt actual amounts. 2. Accepting appointments. A lawyer SHALL NOT seek to AVOID APPOINTMENT by a TRIBUNAL to represent a person EXCEPT for GOOD CAUSE. (Rule 6.2.) A lawyer SHOULD accept a fair share of unattractive, unpopular matters, and unpopular or indigent clients. (Comment to Rule 6.2.) "Good cause" in this context means: a. Representation of the client is LIKELY to result in VIOLATION of the RULES of PROFESSIONAL CONDUCT or other LAW. (Rule 6.2(a).) OR b. Representation of the client is LIKELY to result in an UNREASONABLE FINANCIAL BURDEN on the lawyer. (Rule 6.2(b).)
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OR c. 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. (Rule 6.2(c).) 3. Membership in legal services organization. a. General rule--no prohibited conflicts. A lawyer MAY serve as a DIRECTOR, OFFICER or MEMBER of a LEGAL SERVICES ORGANIZATION (other than the law firm in which the lawyer practices) even if that organization SERVES PERSONS having INTERESTS ADVERSE to a CLIENT of the lawyer. (Rule 6.3.) HOWEVER, in doing the above the lawyer MUST NOT KNOWINGLY PARTICIPATE in a decision or action of that organization which raises EITHER of TWO types of PROHIBITED CONFICTS: 1) Participating in the decision would be INCOMPATIBLE with the lawyer's OBLIGATIONS to a CLIENT under the rules of professional conduct dealing with CONFLICTS of INTEREST. (Rule 6.3(a).) 2. The decision could have a MATERIAL ADVERSE EFFECT on the REPRESENTATION of a CLIENT OF THE ORGANIZATION whose interests are adverse to a CLIENT of the LAWYER. (Rule 6.3(b).) 4. Law reform activities affecting client interests. a. General rule--no prohibited conflicts. A lawyer MAY serve as a DIRECTOR, OFFICER or MEMBER of an organization involved in REFORM of the LAW or its ADMINISTRATION even though such reform may AFFECT the INTERESTS of a CLIENT of the lawyer. (Rule 6.4.) HOWEVER, while so participating, the lawyer MUST still COMPLY with the rules of professional conduct governing CONFLICTS of LEGAL INTERESTS with CLIENTS. (Comment to Rule 6.4, see Rule 1.7.) b. Protecting integrity of program. In order to protect the integrity of a legal service organization in which she is participating, if the lawyer KNOWS that a CLIENT may be MATERIALLY BENEFITED by a decision in which the LAWYER PARTICIPATES, the lawyer MUST DISCLOSE that fact, but NEED NOT IDENTIFY the client. (Rule 6.4.) IV. JUDGES
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About 92 to 96 percent of the questions on the MPRE focus on LAWYER behavior, and only 4 to 8 percent (2-4 questions) address JUDGES. Thus, the emphasis of study should be on lawyers. Remember that, if the question states that the judge is also a lawyer, the rules above also apply to that person’s conduct. A. Terminology. MPRE questions dealing with judges use some of the key words and phrases applicable to questions regarding lawyers. Those specifically listed in the MPRE Information booklet are-1. “Subject to discipline” (“must”) Use of this term in the interrogatory asks whether the conduct referred to or described in the fact pattern would subject the judge to discipline under the ABA Model Code of Judicial Conduct (CJC). Note: The term "must" has traditionally had the same effect as an interrogatory key word; that is, a question which asked "must Judge [engage in specified conduct]" was equivalent to asking whether that judge would be "subject to discipline" for failing to engage in the same conduct. 2. “May” or “proper” Use of these terms in a fact pattern asks whether the conduct referred to or described in the question is professionally appropriate in that it would NOT subject the judge to discipline and is NOT INCONSISTENT with anything else contained in the Model Code of Judicial Conduct. I. BECOMING A JUDGE: Fair Campaigning. The principles governing fair campaigning in the Code of Judicial Conduct are applicable to all INCUMBENT JUDGES and lawyers who are JUDICIAL CANDIDATES. A. Permitted activities. A judge holding an office filled by public election between competing candidates, or a candidate for such office, MAY IDENTIFY the judge's or candidate's POLITICAL PARTY AFFILIATION, and CONTRIBUTE to a political organization. (Canon 5, Section C(1)(a).) B. Prohibited activities. A judge holding an office filled by public election between competing candidates, or a candidate for such office, MUST NOT PUBLICLY ENDORSE or OPPOSE a candidate for PUBLIC OFFICE, MAKE SPEECHES for a POLITICAL ORGANIZATION, or ENGAGE IN FUNDRAISING
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ACTIVITIES on behalf of a POLITICAL ORGANIZATION. (Canon 5, Section A(1)(b), (c) and (e).) C. Other prohibitions. A CANDIDATE (including an incumbent judge) for judicial office MUST NOT: 1. Make any FALSE or MISLEADING statement regarding the identity, qualifications, present position, or other fact concerning HERSELF or an OPPONENT. 2. Make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court (i.e., how that candidate WILL RULE on FUTURE DECISIONS if she wins election). (Note that this restriction does NOT apply to a candidate seeking APPOINTIVE judicial office.) 3. PERSONALLY SOLICIT or accept CAMPAIGN FUNDS or PERSONALLY SOLICIT publicly stated POLITICAL SUPPORT. (Canon 5, Section A(3)(d), Section C(2).) A candidate for judicial office must ESTABLISH a CAMPAIGN COMMITTEE, which handles all solicitation of funds. (Candidate seeking APPOINTIVE judicial office are NOT PERMITTED to solicit funds in any manner for that purpose.) II. ACTING AS A JUDGE A. No use of confidences obtained prior to taking bench. A judge MUST NOT use confidential information obtained prior to taking judicial office about a lawyer, party or witness appearing before that judge. The appropriate remedy is for the judge to DISQUALIFY himself. (Canon 3, Section E(1).) B. No appearance of conflicts of interest. 1. In general. A judge MUST NOT place herself in situations where there appears to be a conflict of interest, as exemplified by the following: a. A judge must not allow family, social, political or other relationships to INFLUENCE the judge's judicial conduct or judgment. b. A judge must not convey nor permit others to convey the impression that they are in a special position to influence the judge.
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c. A judge must not lend the prestige of judicial office to advance the private interests of the judge or others. d. A judge must not voluntarily testify as a character witness. (Canon 2, Section B.) 2. Gifts, loans and favors. A judge MUST NOT accept a gift, loan, favor or bequest from anyone. The judge should also urge members of the judge's family residing in the judge's household not to accept such things. (Canon 4, Section D(5).) a. EXCEPTIONS. A judge, or a member of the judge's family residing in the judge's household MAY ACCEPT gifts from RELATIVES and FRIENDS for a SPECIAL OCCASION such as a wedding, anniversary or birthday; a judge MAY accept a gift given INCIDENT to a PUBLIC SPEECH; and a judge may enter into a COMMERCIAL LOAN agreement so long as it is on regular commercial terms offered to the public in general. (See Canon 4, Section D(5)(a)-(h).) C. No personal or family interest in case, financial or otherwise. A judge should disqualify himself if the judge knows that he (individually or as a fiduciary) has a PERSONAL or FAMILY INTEREST in the case before him. (Canon 3, Section E.) "Family interest" means that a relative of the judge or the judge's spouse to the THIRD DEGREE of kinship has an interest in the case. The third degree of kinship includes any relative CLOSER than a COUSIN, such as spouse, parent, child, sibling, grandparent, or grandchild. Note that the most frequently encountered fact pattern on the MPRE in this area involves COUSINS, who are NOT within the operation of this principle. D. Extra-judicial activities. A judge must not engage in any EXTRA-JUDICIAL ACTIVITIES which CAST REASONABLE DOUBT on the INDEPENDENCE OF THE JUDICIARY (i.e., impairing the judge's capacity to act impartially as a judge, demeaning the judicial office, or interfering with the proper performance of judicial duties). (Canon 4, Section A(1)-(3).) E. No appearance of impropriety. A judge must respect and comply with the law and the judge shall act at all times in a manner that promotes public confidence in the integrity and
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impartiality of the judiciary. (Canon 2, Section A.) The test to apply on the MPRE is that if the judge's impartiality can REASONABLY BE QUESTIONED, then the judge should disqualify herself, even if the judge knows that she can actually be impartial. There are TWO elaborations worth discussion. 1. Virtually any of the things that could cause a judge to disqualify himself can be WAIVED if there is FULL DISCLOSURE to the parties and the parties CONSENT after engaging in discussion OUTSIDE the judge's PRESENCE. However, PERSONAL BIAS or PREJUDICE against a party CANNOT BE SUBJECT TO WAIVER in this fashion. (Canon 3, Section F.) 2. A judge MUST NOT engage in EX PARTE COMMUNICATIONS concerning a pending or impending proceedings, with ANYONE OTHER THAN court personnel whose function is to aid the judge (e.g., law clerks) or a fellow judge. (Canon 3, Section B(7).)
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