ABA MODEL RULES OF PROFESSIONAL CONDUCT
RULE DESCRIPTION
1
1.0
COMMENTS
CALBAR Rules
CA B&P Code
CLIENT LAWYER RELATIONSHIP
Terminology Skill; Knowledge; Thoroughness; Preparation. Must consult with an expert or refuse engagement if not possessive of requisite knowledge. Client sets objectives; Lawyer can limit scope. Cannot assist in illegal activities. Views of client are not views of lawyer. 3-110
1.1
Competence
1.2
Scope of Representation and Allocation of Authority Between Client and Lawyer
1.3
Diligence
Reasonable diligence and promptness. Promptly inform client of any issue requiring informed consent; reasonably consult with client regarding means to achieve client’s objectives; Must inform client of all settlement offers keep client reasonable informed about the status of the matter; promptly comply with reasonable requests for information; Rule 3-500 Rule 3-510 = Comment 2 to MR 1.4 § 6103.5 requires disclosure of all settlement offers.
1.4
Communication
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RULE DESCRIPTION
COMMENTS
No unreasonable fees or expenses. Reasonableness is based on time & labor; skill required; need to turn away other business; local rates; Communicate to client preferably in writing No disclosure w/o informed consent or implied consent; Secure advice about lawyer’s compliance with rules; To defend lawyer in malpractice or against civil or criminal charges; To comply with law or court order; Reasonably certain death or bodily harm;
CALBAR Rules
Rule 4-200 Basically same except says “unconscionable” instead of unreasonable.
CA B&P Code
§ 6146 Limits fees on medical malpractice claims § 6148 Communicate to client must be in writing if >$1,000.
1.5
Fees
§ 6068e Never disclose anything regardless of impact.
1.6
Confidentiality of Information
Cannot represent client if it will adversely impact another client; Or will limit representation of another client; UNLESS: the lawyer believes he can handle both (all) cases competently and diligently; Not prohibited by law; The case does not involve the claims of one client against another
Rule 3-310
1.7
Conflict of Interest: Current Clients
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RULE DESCRIPTION
COMMENTS
represented by the same lawyer in the same litigation; Each affected client gives informed consent confirmed in writing. a) Cannot Enter Into Business Arrangement With Client Or Acquire Any Ownership Interest Adverse To The Client Unless: Deal is fair and reasonable; Deal is disclosed in plain language in writing to the client; Client is advised in writing to seek advice of an independent attorney and is given adequate time to do so; Client gives informed consent signed in writing agreeing to the terms of the deal, the lawyers role, and indicating whether or not the lawyer is representing the client in that particular deal. b) Cannot use information to the disadvantage of the client unless the client gives informed consent or required by the rules. c) No gifts unless related to the client. d) No media or book rights based on representation in the case e) No financial assistance to client except court costs and expenses in contingency cases; or if the client is indigent. f) No third party fees accepted unless: Client gives informed consent; No interference with professional judgment for with client-lawyer relationship;
CALBAR Rules
CA B&P Code
Rule 3-300 No security interest adverse to client.
1.8
Conflict of Interest: Current Clients: Specific Rules
Rule 4-400 is same as MR 1.8c gifts.
Rule 4-210 OK to pay third parties on behalf of client with client consent; can loan money after
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RULE DESCRIPTION
COMMENTS
Information relating to representation of client is protected as required by Rule 1.6. g) When representing multiple clients, no blanket settlement or plea unless each involved client gives signed informed consent in writing and lawyer discloses existence and nature of all deals or pleas. h) No agreement limiting lawyer’s malpractice liability unless client has independent counsel AND malpractice settlement with unrepresented clients unless client is advised in writing to seek independent legal counsel. i) Lawyer cannot acquire proprietary interest in a case unless acquiring a lien against fees or it is a contingency fee deal. j) No sex with client unless it pre-dated the client-lawyer relationship. k) Any prohibition in this rule except for sex applies to all members of a firm if it applies to one member.
CALBAR Rules
CA B&P Code
§ 6106.8 § 6106.9
Rule 3-120 (sex w/ client). Lists myriad exceptions. a) Cannot represent a client if the persons interests are materially adverse to a former client in the same or substantially related matter b) Lawyer cannot represent a client if your old firm represented an adversarial party or if you at the old firm you gained privileged (Rules 1.6 and 1.9(c)) information about the 3-310e
1.9
Duties to Former Clients
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RULE DESCRIPTION
COMMENTS
c) adversarial party. If you or your firm or your former form ever represented a client you can never use any information you gained during that representation against the client nor can you even disclose the existence of the representation unless it is permitted in the rules or has become generally known.
CALBAR Rules
CA B&P Code
1.10
Imputation of Conflicts of Interest
If any lawyer in a firm is barred by the rules from representing a client; then the entire firm is barred unless the barred lawyer’s interest in the case is purely personal and will not affect any of the firm’s other lawyers. b) If a lawyer with specific knowledge of a case and a client leaves the firm; and if the firm no longer represents that client; then the firm is free to represent someone with interests materially adverse to that client UNLESS it is the same case and someone remaining at the firm has privileged information about the former client. c) Disqualifications under this rule may be waived by the client under the conditions of MR 1.7. d) Disqualification of lawyers in a firm with former or current government lawyers is governed by MR 1.11. a) Current or former government lawyers are subject to MR 1.9(c) and also cannot represent a client in a
a)
1.11
Special Conflicts of Interest for Former and Current Government Officers and
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RULE DESCRIPTION
Employees
COMMENTS
matter over which the lawyer had substantial involvement while working for the government unless the government gives its informed consent confirmed in writing. b) If one lawyer in a firm is barred from a matter under this rule then so are all lawyers in the firm unless the lawyer is appropriately screened from participation in the matter AND written notice is provided to the government so that they can ascertain compliance with the rules. c) If a lawyer obtained confidential information about a person while working for the government he cannot represent someone with materially adverse interests. However, the firm can as long as the lawyer is timely screened from participation and receives no share of the fee on that engagement. d) Current government employees are subject to MR 1.7 and MR 1.9(c) AND may not participate in matters he was involved with while not a government employee unless the government gives its informed consent confirmed in writing. a) No representation unless informed consent confirmed in writing. b) Judge cannot negotiate for employment; law clerk can after notifying judge. c) If one lawyer is disqualified all are disqualified unless timely screened AND written notice sent to all parties
CALBAR Rules
CA B&P Code
§ 8920 § 8921
§ 6131
1.12
Former Judge, Arbitrator, Mediator or Other Third Party Neutral
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RULE DESCRIPTION
COMMENTS
and the court. d) Arbitrators can represent clients who they formerly served as partisans on an arbitration panel. a) Lawyer works for the company. b) If lawyer knows that an officer, employee, or other person associated with the company is about to act illegally or against the best interest of the company, the lawyer must protect the organization. Try to minimize disruption to the company. Ask for reconsideration of the matter. Advise the person that a second legal opinion should be sought in order to present company management with two opinions. Go higher up or to the top of the company. c) If lawyer goes to the top and no change, lawyer may resign per MR 1.16. d) Lawyer should always point out that his client is the company, especially when meeting with officers or employees whose interests may differ from the company’s. e) Lawyer can represent the company and its officers or employees as long as an officer of the company (not the one being represented) approves the dual representation per MR 1.7.
CALBAR Rules
CA B&P Code
1.13
Organization as Client
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RULE DESCRIPTION
COMMENTS
a) Try to retain normal relationship. b) If lawyer believes that client cannot act in own best interests and is at risk, lawyer may talk to others able to take action to protect client or to seek appointment of a guardian ad litem, conservator, or guardian. c) Lawyer may release information under MR 1.6(a) but only to the extent necessary to protect the client’s interests.
CALBAR Rules
Chapter 3 generally states that you should always represent your client competently.
CA B&P Code
1.14
Client With Diminished Capacity
1.15
Safekeeping Property
Keep complete records; segregate funds. b) Lawyer may deposit his own funds into client trust account only to the extent necessary to pay bank fees. c) Fees paid in advance go into trust account and are removed as earned. d) Notify client upon receipt of funds belonging to client. e) Disputed funds remain in trust; other amounts distributed promptly. a) Must withdraw and cannot begin representation if: Representation will violate rules. Lawyer physically or mentally unfit. Lawyer is discharged. b) May withdraw if: No material adverse impact on client. Client persists in illegal or
a)
Rule 4-100 5 year retention requirement.
§ 6128 Article 14 deals with funds for indigent defense. See § 6210 - § 6228
Rule 3-700 Must if malicious or baseless legal action
1.16
Declining or Terminating Representation
§ 6068h Says you can’t reject the cause of the defenseless or the oppressed out of consideration of yourself.
Adds-can’t get along w/ co-counsel. DOES NOT say b1 – OK if no adverse impact
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RULE DESCRIPTION
COMMENTS
fraudulent activity. Client has used lawyer’s services to perpetuate a fraud or crime. Client insists on action that lawyer disagrees with. Client does not meet obligation to lawyer and has been reasonably warned. Engagement has become an unreasonable financial burden on the lawyer or the client has made the engagement unreasonably difficult. Other good cause for withdrawal. c) Lawyer must notify the court of planned withdrawal per court rules. d) Lawyer should make termination as easy on client as possible; give time to find another lawyer; return unused retainer, papers, etc. A lawyer may sell a law practice or an area of law practice including goodwill if: a) Lawyer retires, moves, stops an area of practice. b) Entire practice or area of practice is sold to another lawyer or group of lawyers. c) Seller gives notice to each client regarding: Proposed sale Client’s right to retain other counsel or take possession of the file. If no reply from client in 90 days, OK to transfer file. If notice cannot be given, files cannot be transferred without court
CALBAR Rules
DOES NOT say if financial burden.
CA B&P Code
Rule 2-300
1.17
Sale of Law Practice
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RULE DESCRIPTION
COMMENTS
order. d) No fee increases due to sale.
CALBAR Rules
CA B&P Code
1.18
Duties to Prospective Client
A person who discusses with a lawyer the possibility of forming a client-lawyer relationship is a prospective client. b) Even if lawyer is not hired, no information may be disclosed except former client info per MR 1.9. c) Lawyer cannot represent a client with interests adverse to the prospective client if the prospective client provides the lawyer with information potentially harmful to the potential client. If one lawyer in a firm is disqualified under this rule, then the whole firm is disqualified except as in (d). d) Exceptions to c: Both prospective and current clients provide informed consent confirmed in writing. Lawyer who received the information tried to stop the client from telling him more and i) The disqualified lawyer is timely screened ii) Prompt written notice to the prospective client. Independent professional judgment Candid Advice Can consider moral & other factors
a)
2
2.1
COUNSELOR
Advisor
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RULE DESCRIPTION
COMMENTS
with the law May provide data to third parties if compatible with client relationship b) Informed Consent if material issue or impact c) Unless authorized, all protected by MR 1.6 a) Arbitrator or mediator or similar b) Make sure unrepresented parties know you are not representing them. a) Must have basis in law and fact; not frivolous Attempt to expedite the litigation consistent w/ client int. a) A lawyer shall not knowingly: False statement of material fact Fail to disclose adverse info to judge Offer or allow false testimony b) Cannot allow client to fix the jury or other c) Disclose all known facts in ex parte proceedings d) Must take reasonable remedial measures A lawyer shall not: a) Hide or destroy documents or obstruct b) Falsify evidence c) Knowingly disobey an obligation d) Be a jerk about discovery e) Introduce opinion or irrelevant issues f) Advise third parties not to give info unless: Person is relative or agent of client
CALBAR Rules
CA B&P Code
2.3
Evaluation for Use by Third Persons
2.4
Lawyer Serving as Third Party Neutral
Rule 1-710 You are subject to the Code of Judicial Ethics
3
3.1 3.2
ADVOCATE
Meritorious Claims and Contentions Expediting Litigation Rule 3-200 § 6068c
Rule 5-200 Rule 5-220
§ 6068d
3.3
Candor Toward the Tribunal
Rule 5-300 Rule 5-310
§ 6068f
3.4
Fairness to Opposing Party and Counsel
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RULE DESCRIPTION
COMMENTS
And that person’s interests won’t be harmed A lawyer shall not: a) Try to bribe the judge or fix the jury b) Communicate ex parte w/ judge or jury unless OK c) Talk to jurors after case if Court prohibits it Juror doesn’t want to talk to him Misrepresentation, coercion or harassment a) No prejudicial statements to the media b) Notwithstanding a), lawyer may state: Claim, offense, or defense, names if allowed Information that is public record Scheduling or result of litigation] Request for assistance in gathering info Public good danger warning Name and address of criminally accused Info necessary to catch if not caught Arrest place and time Names of arresting and investigating agencies and officers c) Notwithstanding a) lawyer can make any statement to counteract negative publicity d) No lawyer shall violate a) a) Lawyer can’t advocate if he will be witness unless:
CALBAR Rules
CA B&P Code
Rule 5-300 Rule 5-320
§ 6068b
3.5
Impartiality and Decorum of the Tribunal
Rule 5-120 Substantially same. Rule 1-320b Says no gifts to the media. No equivalent in MR?
§ 6068f
3.6
Trial Publicity
3.7
Lawyer as Witness
Rule 5-210
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RULE DESCRIPTION
COMMENTS
Testimony relates to uncontested issue Testimony relates to legal services rendered Disqualification of lawyer would be hardship on client b) A lawyer may advocate in a trial in which another lawyer in the firm is likely to be called as a witness unless precluded from doing so by 1.7 or 1.9. a) Don’t charge if no probable cause b) Make sure defendant knows he can have a lawyer c) Don’t seek waivers from unrepresented defendants d) Timely discovery to defense e) Don’t subpoena a lawyer about a client unless: No privilege Evidence is essential No other alternative f) Don’t shoot mouth off to media Make sure everyone knows you’re a lawyer and conform to 3.3a– 3.4a-c 3.5
CALBAR Rules
CA B&P Code
3.8
Special Responsibilities of a Prosecutor
3.9
Advocate in Nonadjudicative Proceedings
4
4.1 4.2 4.3
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Truthfulness in Statements to Others Communication With Person Represented by Counsel Dealing With Unrepresented Person a) No false statements of material facts b) No failure to disclose Don’t talk to someone who has their own lawyer unless court order or OK by other lawyer. Don’t fake that you are nonpartisan; no legal advice other than to get a lawyer. Rule 2-100 Says nothing about court order.
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RULE DESCRIPTION
4.4 Respect for Rights of Third Persons
COMMENTS
a) No ripping just to rip b) Must notify sender of items sent in error
CALBAR Rules
CA B&P Code
§ 6068f
5
LAW FIRMS AND ASSOCIATIONS
Partners take reasonable efforts that all lawyers in firm comply with MR b) Supervisors make reasonable assurance that subordinates comply. c) Lawyer responsible for another’s violation if: Lawyer orders or ratifies Knows but does not mitigate a) Lawyer bound by MR regardless of instructions b) Not in violation if following orders on a reasonable judgment call. a) Supervisors to ensure reasonable compliance with MR. b) Ensure subordinate conduct is compatible with yours if working together on a case. c) Responsible for subordinate errors if: Lawyer orders or ratifies Knows but does not mitigate a) Responsibilities of Partners, Managers, and Supervisory Lawyers
5.1
5.2
Responsibilities of a Subordinate Lawyer
5.3
Responsibilities Regarding Nonlawyer Assistants
a)
5.4
Professional Independence of a Lawyer
No fee-sharing w/ non-lawyer except: Time payments after death of a lawyer Payment to estate of lawyer for amounts due Firm employees in retirement plan May share court awarded legal fees w/ non-profit client
Rule 1-310 Cannot partner w/ non-lawyer if firm will practice law Rule 1-311 Cannot hire disbarred or suspended members to help render services to client in any way unless you notify everybody and their brother.
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RULE DESCRIPTION
COMMENTS
b) Cannot partner w/ non-lawyer if firm will practice law c) Cannot allow client to direct your prof judgment d) Cannot practice as a PC or LLC if: A non-lawyer owns a piece of the business A non-lawyer is a director or officer A non-lawyer has right to direct or control lawyer’s judgment a) Cannot violate or assist in violation of local rules b) If not admitted to practice in the jurisdiction cannot: Open an office or practice continually Hold out as licensed to practice there c) Can work temporarily out of jurisdiction if: Local counsel Connected to the case ADR related to a case in your jurisdiction Other business in that jurisdiction d) May provide legal services out of area if: Your client has a presence there and it is for your client and no pro hac vice application required. In compliance with Federal Law. a) Cannot participate in offering or making: Employment arrangement that restricts to practice law upon termination Termination of right to practice is
CALBAR Rules
Rule 1-310a Financial arrangements with nonlawyers; same as MR 5.4a Rule 1-600a No fee sharing at all
CA B&P Code
Rule 1-300 Cannot aid anyone in unauthorized practice of law b) Cannot practice in a jurisdiction where doing so would be a violation of local rules. a)
§ 6104 § 6105
5.5
Unauthorized Practice of Law; Multijurisdictional Practice of Law
5.6
Restrictions on Right to Practice
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RULE DESCRIPTION
COMMENTS
element of settlement in a client controversy. a) Lawyer is subject to MR if services provided are done outside a normal client-lawyer relationship and they are services that: By the lawyer normally or Performed by any entity the lawyer controls. b) Services could legally be performed by a non lawyer. Should try to do 50 hours per year. a) 50 hours to: poor people charitable organizations b) provide additional services through: no-fee service to rights organizations reduced fees to poor people activity to improve the profession Should also give money Don’t seek court appointment to represent someone if doing so would lead to: a) Violate MR b) Unreasonable financial burden on lawyer c) Case is repugnant and would affect judgment OK to serve as officer or member of a legal services organization, even if it has interests adverse to a client as long as: a) You don’t make decisions on matters that would be incompatible with your client obligations. b) Would hose a client of the organization who is adverse to your
CALBAR Rules
CA B&P Code
5.7
Responsibilities Regarding Law-Related Services
6
PUBLIC SERVICE
6.1
Voluntary Pro Bono Publico Service
6.2
Accepting Appointments
6.3
Membership in Legal Services Organizations
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RULE DESCRIPTION
COMMENTS
regular client. OK to try and change the law if it will help your client. But you must disclose that if approved, the action will help one of your clients. a) If you provide short-term noncontinuing legal service (post earthquake advice, etc.) then you are: Subject to 1.7 & 1.9a only if you are aware of conflict-of-interest Subject to 1.10 only if you know that another firm lawyer is subject to 1.7 or 1.9a.
CALBAR Rules
CA B&P Code
6.4
Law Reform Activities Affecting Client Interests
6.5
Nonprofit and CourtAnnexed Limited Legal Services Programs
7
INFORMATION ABOUT LEGAL SERVICES
No false or misleading statements and no leaving out a fact so it won’t be materially misleading. Rule 1-400d Also, 1-400f says you keep everything 2 years
7.1
Communications Concerning a Lawyer’s Services
7.2
Advertising
a) Subject to 7.1 & 7.3, may advertise b) No gifts or payments for referrals except: May pay reasonable cost of ads Pay normal referral fees Pay for a law practice per 1.17 Refer clients to a firm with a reciprocal referral arrangement if: i) The reciprocal agreement is not exclusive and ii) The client is informed of the existence and nature of the agreement
Rule 1-320b Deals with referrals. Allows gifts if they did not lead to and were not offered in order to get the engagement. Rule 2-200b Same as MR 7.2b
Article 9 § 6152 No trolling for work around the local jail. § 6154 No runners or cappers.
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RULE DESCRIPTION
COMMENTS
Any communication in connection with this rule must have name and office address of at least one lawyer who wrote it. a) Cannot directly contact a prospective client unless: Target is a lawyer Target is a family member or close friend b) No calls, emails, etc. to prospective client if: Target told you to leave him alone Coercion or harassment c) All envelopes, emails, etc. must begin and end with “advertising material.” d) OK to work for prepaid legal plans that use boiler room tactics. a) OK to communicate areas of specialization or areas not handled b) “Patent Attorney” c) “Proctor in Admiralty” d) Cannot claim specialist unless: Certified by State or ABA AND Name of certifying authority noted on ad. a) No use of firm name that violates 7.1 or implies public, gov’t., charitable affiliation. b) OK to list all locations but must say who practices where c) No mention of a firm member who holds public office d) No implied affiliation unless such exists. Cannot accept court appointed or government jobs if you make contributions designed to solicit same. c)
CALBAR Rules
CA B&P Code
Rule 1-400c
7.3
Direct Contact With Prospective Clients
7.4
Communication of Fields of Practice and Specialization
See standards of rule 1-400
7.5
Firm Names and Letterheads
7.6
Political Contributions to Obtain Government Legal Engagements or
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RULE DESCRIPTION
Appointments by Judges
COMMENTS
CALBAR Rules
CA B&P Code
8
MAINTAINING THE INTEGRITY OF THE PROFESSION
a) No false statements b) Must disclose facts and reply to requests for info unless conflict with MR 1.6 a) No starting rumors or making deliberate lies b) If candidate for the bench, must comply with Code of Judicial Conduct Rule 1-200 basically same. a) No false statements b) Cannot further an application for a person you know to be unqualified c) OK to serve as counsel for applicant. Rule 1-700 § 6068i
8.1
Bar Admission and Disciplinary Matters
§ 8920 § 8921
8.2
Judicial and Legal Officials
8.3
Reporting Professional Misconduct
8.4
Misconduct
Must report lawyers who you know violated MR b) Crooked judges c) Not required that you violate MR1.6 It is misconduct to: a) Violate MR or help others do so b) Engage in a criminal act that reflects adversely on your honesty or trustworthiness c) Dishonesty, fraud, deceit or misrepresentation d) Engage in conduct prejudicial to the admn. of justice; Discrimination based upon race, sex, national origin, religion, etc. is a violation of this provision. e) Imply or state you can influence the gov’t. f) Help a judge break the MR
a)
Rule 1-120 § 6068o § 6100 § 6101 § 6102
Rule 2-400 (discrimination)
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RULE DESCRIPTION
COMMENTS
You are subject to the rules of your home jurisdiction regardless of where the services were rendered. You are also subject to the rules of the jurisdiction where you rendered services regardless of whether or not you are admitted to practice there. b) Choice of Law: Local rules apply first Rules of jurisdiction where issue occurred next a)
CALBAR Rules
CA B&P Code
8.5
Disciplinary Authority: Choice of Law
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Topic Sex w/ Clients
Multiple Representations Competence Business Relations w/ Clients
Fees Side Deals – Steering Business to Associates
Sections CR 3-120c CR 3-110b MR 1.1 MR 1.7 CR 3-310c MR 1.1 MR 1.8a CR 3-300 MR 1.5 MR 1.15 MR 1.5 § 6148 MR 4-200 MR 1.8 Ordinary Rules of Agency
Hints OK if sex predates C-L relationship. Sex must not impair judgment. See list; many requirements Must be in writing. Could be malpractice. Look for unauthorized officer designation; s/b consented to in writing. Look for value of stock – is fee reasonable? Safekeeping of client property and funds. Must be reasonable and preferably negotiated in writing. Must be in writing if >$1,000. Cannot be “unconscionable” Must disclose all side deals and receive consent and give opportunity to consult independent counsel. Must disgorge profit; cannot make undisclosed profit at client’s expense. Look for misconduct. Must at least disclose and seek approval. Must report known violations unless protected by MR 1.6. See notes; if discovered, must take reasonable remedial measures. Must discuss downside to testimony w/ client. Cannot directly seek to hide evidence or advise others to do so. Don’t pretend that you are nonpartisan. Third party communications not privileged.
Side Deals – Purchasing Adjacent Property Responsibilities Suborning Perjury And Providing Documents
MR 8.4 MR 1.8 Fiduciary Duty MR 8.3 MR 8.4 MR 3.3a MR 3.4a MR 4.3 Attorney Work Product and Attorney Client Privilege
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Topic
Sections
Hints
Disqualifying Lawyers
MR 1.7 MR 1.8 MR 1.9 MR 1.10 MR 1.11 18 USCA § 207
Cannot use contacts to influence gov’t. decisions.
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