PROFESSIONAL RESPONSIBILITY I. Chapter 1: Where do "Ethics" Rules Come From? Rule 8.5: Disciplinary Authority; Choice of Law A. (a): No matter where you may practice, ultimately you can always be disciplined in New York. 1. (b): Choice of law test in disciplinary matters: 2. 1. Use the rules of the tribunal wherever that tribunal sits (for conduct in a connection with a matter pending before a tribunal). 2. For other conduct, rules of the jurisdiction in which the lawyer's conduct occurred, or where the predominant effect is. Chapter 2: Defining the Client-Lawyer Relationship IS THERE A CLIENT-LAWYER RELATIONSHIP HERE? A. Elements of the Client-Lawyer Relationship: 1. Rule 1.1: Competence: Lawyers must provide "competent" representation - requires "the legal 1. knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Rarely punished. Rule 1.3: Diligence: Implies not only scope but that you do things promptly. 2. Rule 1.6: Confidentiality 3. ATTORNEY-CLIENT PRIVILEGE (evidentiary rule) B. 1. Applies only to confidential communications with counsel; not underlying factual info. 2. A client communicating to a lawyer the facts of a murder is privileged. However, the FACTS are not privileged. Communicating those facts does not make the facts privileged. 1. Can't ask about conversations occurring b/t client and lawyer, but can ask the client about facts. 3. Privilege applies if no retention ensues, and it "applies to all confidential communications made to an atty. during preliminary discussions of the prospective professional employment, as well as those made during the course of any professional relationship resulting from such discussions." 4. Client can waive privilege. C. CONFIDENCES (ethical rule; doesn't matter how you attain the knowledge) - Rule 1.6 (a) A lawyer shall not reveal info relating to the representation of a client. Unless the client gives 1. informed consent or the representation or disclosure is permitted by paragraph (b). 1. **Sphere of attorney-client confidential info: Broader than evidentiary obligation - includes privileged info AND info relating to the representation of a client. 2. Unlike evidentiary privilege, includes info learned from 3 rd parties and lawyer observations. (b) A lawyer may reveal info: (may is key word - lawyer can choose not to reveal info) 2. 1. To prevent reasonably certain death or substantial bodily harm; 1. 2. To prevent the client from committing a crime or fraud that is reasonably certain to result in 2. substantial injury to the financial interests or property of another AND in furtherance of which the client has used or is using the lawyer's services; 3. To prevent, mitigate, or rectify substantial injury to the financial interests or property of 3. another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; i. Important: can rectify, i.e. say something after Requires admission where lawyer was involved in client's commission of crime or ii. fraud. 5. To establish a claim or defense on lawyer's behalf in a controversy b/t lawyer and client, to 4. establish defense to criminal charge or civil claim against lawyer based on conduct where client was involved, or to respond to allegations in any proceeding concerning lawyer's representation of client. i. Entitles lawyer to disclose info to obtain atty.'s fees owed to him. Rule 1.13: A lawyer has the same ethical duties under Rule 1.6, whether the client is a biological person or 3. an entity like a corp., a labor union, the govt., or a partnership. Rule 1.6 does not have knowledge requirement - reasonably believes necessary. 4. Rule 8.4: Misconduct: A lawyer can't induce someone else to violate the Rules. 3. EXCEPTIONS TO THE PRIVILEGE OR ETHICAL DUTY Self-Defense: Rule 1.6(b)(5) 1. Collection of fees. 2. Client Waiver: A client may explicitly waive privilege, or implicitly waive the privilege by revelation of all or 3. part of a confidential communication. Privilege not waived for communication b/t a lawyer or client and agents of either if the purpose of the communication is to enable the lawyer to render professional legal services. Crime-Fraud Exception to A-C Evidentiary Privilege: Communications b/t clients and counsel are not 4. privileged (although they may be ethically protected) when the client has consulted the lawyer in order to further a crime or fraud, regardless of whether the crime of fraud is accomplished and even though the lawyer is unaware of the client’s objective and does nothing to advance it.
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** p. 50: Crime-Fraud Exception to the A-C privilege is a narrow exception. Only applies when court determines that client communication in question was itself in furtherance of the crime or fraud. This is an evidentiary exception. i. (Ex: Tax fraud could require lawyer's assistance - communication of lawyer telling client how to transfer assets to Caymans). 3. It's not what the lawyer knows, or what his criminal state of mind is; it's the client's. Ethical vs. evidentiary matter: Something could be not privileged in an evidentiary sense if crime4. fraud exception applies, but could be embarrassing (a secret) and doesn't have to be disclosed. Future Crimes or Frauds: 1.6(b)(1) Noisy Withdrawal: When a lawyer must withdraw from representing a client b/c of criminal or fraudulent behavior, the lawyer may be allowed or even required to alert others that she also retracts any document or opinion the client may still be using for the illegal purpose. Identity & Fees: Usually unsuccessful, attys. sometimes seek to learn a client’s identity, the source of legal fees, the amount of the fees, and other info about the representation not involving "communications." Public Policy: Rare to find a case in which public policy requires disclosure of privileged info. Is There a Professional Relationship?: Purported client’s communication must be w/ an atty. or at least someone the client reasonably believes to be an atty.
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AGENCY: Lawyer is the client's agent. Rule 4.3: Dealing w/ Unrepresented Person: A lawyer shall not state or imply that he is disinterested. 1. When lawyer knows unrepresented person misunderstands lawyer's role, lawyer shall correct the misunderstanding. Lawyer shall not give legal advice to unrepresented person if he knows or should know interests of such a person are or have a reasonable possibility of being in conflict w/ the interests of the client. Rule 1.2(a) and case law give the client the unqualified right to decide whether to settle a civil matter 2. or enter a plea in a criminal matter. LOYALTY & DILIGENCE: Loyalty requires the lawyer to pursue, and to be free to pursue, the client’s 3. objectives unfettered by conflicting responsibilities or interest. 1.3: Diligence. CLIENT'S AUTONOMY Rule 1.2: Scope of Representation and Allocation of Authority b/t Client and Lawyer: Lawyer must 1. abide by client's wishes with regards to client's objectives and shall consult with client as to the means by which they are to be pursued. 1. Objectives w/in same provision: Lawyer shall abide by client's decision on whether to settle, whether to plea, waive jury trial, testify in criminal case. Ethics rule only requires lawyer to do so little. Duty to Inform and Advise: 2. Rule 1.4: Communication 3. (a) Lawyer shall: 1. i. Promptly inform client of any decision/circumstance w/ respect to client's informed consent. ii. Reasonably consult w/ client about means by which the client's objectives are to be accomplished. a. Almost all provisions of rule have the word "reasonably" - gray area. iii. Keep client reasonably informed about status of matter. iv. Promptly comply w/ reasonable requests for info. v. Consult with client w/ relevant info. (b) Lawyer shall explain a matter to extent reasonably necessary to permit client to make informed 2. decisions regarding the representation. Rule 1.2(c): Lawyer may limit scope of representation w/ client's informed consent. 3. 1. Obligation to refer client to consultation by another lawyer specializing in specific area of law. TERMINATION: Rule 1.16 Termination by the Lawyer: Rules recognize permissive withdrawal for "professional" reasons. 1. (a): when a lawyer must withdraw; (b) when a lawyer may withdraw 2. (a) Lawyer shall not represent a client or, where representation has commenced, shall withdraw from the 3. representation of a client if: 1. The representation will result in a violation of the rules of professional conduct. (b): Rules for when a lawyer may resign are ambiguous. 4. Rule 1.16(b)(1) - A lawyer may withdraw for the reasons cited even if the withdrawal will have a 1. "material adverse effect on the interests of the client." Lawyers who wish to withdraw from a litigation may need the court’s permission. Termination by Client: Clients may fire their lawyers for any reason or no reason but may not be permitted 5. to fire counsel close to or during trial. Termination by Drift: Some representations end for reasons other than lawyers’ or client’s choosing to end 6. them. Most probably end b/c the work ends. Implied question: Does the end of the work necessarily mean the end of the professional relationship?
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Note: Some cases find an A-C relationship during lulls in intermittent representations.
Chapter 3: Protecting the Client-Lawyer Relationship from Outside Interference NO-CONTACT RULE A. Rule 4.2: Communicating w/ Person Represented by Counsel: In representing a client, a lawyer shall not 3. communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. Rule 4.2: 5. 1. Communication must occur while the lawyer is representing a client, even if not acting in a representative capacity (ex. client dissatisfied w/ lawyer's performance can shop for new lawyer w/o worrying about other lawyer speaking with him). 2. Communicating lawyer must know that the person w/ whom she is communicating is represented by another lawyer on the subject of the communication. How clear must the lawyer's knowledge be? Comment 8: knowledge may be inferred from the circumstances - lawyer can't evade the a. requirement by closing his eyes to the obvious. 3. Communicating lawyer is only forbidden to communicate about the "subject" of the other lawyer's representation - may communicate about anything else. (comment 4). 4. Prohibition doesn't apply if other lawyer consents to the communication or if authorized by law or court order. Communication is what is forbidden. 5. 6. A violation occurs if a lawyer engages in the forbidden communication through a 3rd party (rule 8.4(a)) - even a negligent failure to prevent improper contact might cause a violation. 7. Lawyer has no obligation to discourage a client from speaking to another – good way around rule. What if a client calls opposing client's atty.? Is listening a form of communication? 7. 1. A court held that yes, there was a communication - but this is not a universal rule. Rule 4.2: "Authorized by law or a court order": a court can retroactively determine that conduct 2. was appropriate, or can go in advance to try to get a court order to permit certain kinds of inquiry. Rule 4.2 does not prohibit contacts w/ former officers or employers of a represented corp., even if they were 8. in one of the categories w/ which communication was prohibited while they were employed. But: the potentially-communicating adversary atty. must be careful not to seek to induce the former employee to violate the privilege attached to the A-C communications. Rule 3.4(f): Permits an entity lawyer to request its employees and agents to refrain from voluntarily giving relevant B. info to another party so long as the lawyer reasonably believes that the person's interests won’t be adversely affected. CHOICE OF LAW E. 8.5 (b)(1): Rules of jurisdiction where tribunal sits (NY). 1. 2. But b(2) is different. Conduct (interview) occurs in NJ, but predominant effect is in NY. Last sentence - where lawyer reasonably believes effect will occur - NY. J. IMPROPER ACQUISITION OF CONFIDENTIAL INFO 1. Lawyer can't improperly attain confidential info protected by A-C privilege. 2. A lawyer who mistakenly receives confidential info from an opposing lawyer should not examine it but should instead request and abide by opponent's instructions. The Case of the Misdirected Fax (p.114) 3. 1. Hard to figure out where written rule ethical obligation lies, and instead we talk about general rules. 2. Before specific model rule adopted in this area, people tended to rely on broad misconduct rules 8.4 (c) - concept of deceitful conduct - having something you aren't supposed to have and reading and using it can be deceitful. Not dishonesty (dishonesty implies communication). Not fraud. But deceitful? Also maybe 8.4(d) engaging in conduct prejudicial to administration of justice. Model Rule 4.4: (2) Promptly notify the sender. ABA only imposed a notification standard. Says 4. nothing about listening to what other guy says when you call them, about using the document, and if you have to return it, etc. Left these answers to case law. a. Once you notify the person that you have the document, becomes a legal issue about whether the privilege has been waived. If the privilege has been waived you can do whatever you want w/ it. If it hasn't been waived, you have to return it and can't use it. 5. When and if you realize something is not for you, you should stop reading it and make disclosure.
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Chapter 5: CONCURRENT CONFLICTS OF INTEREST 1.7: General rule for Concurrent Conflicts A. 1.7 (a): Except as provided in paragraph (b), a lawyer shall not represent a client if the representation 1. involves a concurrent conflict of interest. 1.7 (b): Waiver Provision: Notwithstanding existence of concurrent conflict in (a), lawyer may represent a 2. client if: 1. Lawyer reasonably believes lawyer will be able to provide competent and diligent representation to client.
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2. Representation not prohibited by law. 3. Informed consent. 3. Some conflicts can’t be waived. For current clients, can't act adversely on an unrelated matter. 1.8: Specific concurrent conflict problems 1.8 (a): Doing business w/ a client - Lawyer shall not enter into business transaction w/ client or 1. acquire ownership, possessory, security, or other pecuniary interest adverse to a client unless: 1. Transaction and terms are fair and reasonable to client and fully disclosed. 2. Client advised in writing of desirability of seeking and given reasonable opportunity to seek advice of independent legal counsel. 3. Client gives informed consent in a writing signed by client. a. It's ok to enter into business w/ former clients (purpose of rule is to prevent interference w/ A-C relationship). 1.8 (b): Using confidential info to the detriment of your client. 2. 1.8 (c): Gift. Lawyer shall not solicit substantial gift from a client. But, can a lawyer accept a gift? No absolute 3. prohibition but in general discouraged. 1.8 (d): Media rights. Forbids attys. to acquire publicity rights based on subject of representation before its 4. conclusion. No prohibition from doing it after the representation is over. 1.8 (e): Can't lend money (more than ct. costs and litigation expenses) to a client except in certain 5. situations. 1. Exception: indigent client. 1.8 (f): 3rd-party payors: Lawyers sometimes get paid by one person to represent another person. Client 6. must consent to the arrangement and payor must not interfere w/ the lawyer's professional judgment (best interests of client) or A-C relationship and the lawyer must protect the client's confidences. Can't accept payment from someone else w/o informed consent. Protected by Rule 1.6 - can't 1. give info relating to representation to person who is paying. 1.8 (g): Can't settle a case in a way in which more than 1 person participates in settlement unless informed 7. consent. Problem is collusiveness - lawyer compromises one person's claim at the expense of someone else. Have to make sure everyone is on board w/ the settlement. 1.8 (h): Limits lawyer's liability to client for malpractice. 8. 1.8 (i): Prohibits acquiring financial interest in subject matter of litigation 9. 1.8 (j): No sexual relations w/ a client unless a prior relationship before lawyer-client relationship. 10. 1.8 (k): Establishes a rule for 1.8 - "spreading the taint" - while lawyers are associated in a firm, a 11. prohibition in (a) – (j) that applies to any one of them shall apply to all of them (b/c a law firm is a p’ship). Conflict rules are absolute liability rules - do not require intent. 1. Exception: Imputed conflicts - a conflict that arises only b/c of the conflict of a colleague in the same firm. Rule 1.10(a) forbids a lawyer "knowingly" to accept certain work that a conflicted colleague would have to decline. 3. To have a conflict, a lawyer must have a client. 4. The conflict rules are mostly default rules. 1. Lawyers and client may waive most of them by agreement. 2. Rules 1.7 through 1.12 recognize client consent to what the rules would otherwise forbid. 5. Competing interests: Conflict rules may be abused for strategic advantage. GENDER, RELIGION, RACE Rule 8.4 (c) and (d) are all we really have, but these rules still don't give us an answer to these questions. 1. CLIENT-CLIENT CONFLICTS Actual conflict: Rule 1.7 – (a)(1): representation of 1 client will be significantly adverse to the other or (a)(2) 1. significant risk that representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client. Conflict can't be waived if conflict is of such a serious nature that no rational D would 1. knowingly and intelligently desire that attorney's representation. IMPUTED CONFLICTS Rule 1.10(a): When one lawyer in a firm is disqualified b/c of a conflict, all lawyers are disqualified. 1. THE ADVOCATE-WITNESS RULE Rule 3.7(a): A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary 4. witness unless...(1) testimony relates to uncontested issue; (2) testimony relates to nature and value of legal services issued in case; (3) disqualification would create substantial hardship for client.
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Chapter 6: SUCCESSIVE CONFLICTS OF INTEREST A. With former clients, that sense of loyalty begins to diminish.
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Rule 1.9(a): A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. What does substantially related mean? Comment to 1.9: Access to confidential information. 1. Rule 1.9(b): "Take the Taint." Problem: B/c lawyer at Firm B considered to have all the conflicts of the firm (imputation), does he take all those conflicts w/ him? Rule 1.9: Law firm D might be materially adverse to B if matter is same or substantially related or A acquired 1. info protected by confidentiality rules (1.6 and 1.9(c)) about C when working for B. 2. Test: (1) Is the new thing the law firm will be working on substantially related? (2) Even if it is, if the lawyer did not obtain any confidential info, not a problem. 3. It's a former conflict for Atty. A b/c the atty. has left the firm (brought the taint). But if he brings client w/ him, it's a current conflict. Rule 1.10(b): "Leave the Taint." Attorney A leaves Law Firm B to join Law Firm D and brings client - Company C w/ him. May Law firm B be adverse to Company C? Same test: (1) Substantially related? (2) If so, can the firm establish that no one at the firm has access 1. to confidential info? Solutions: Try to get a waiver in some instances. If that doesn't work, somehow try to screen. 1. 2. Rule, w/ confidential info requirement, is intended to limit problem of imputation. When a lawyer joins a firm, he is only asked what he has worked on in the past. He doesn't have to ask about the rest of the attys. there. Rule 1.9(a): ONLY test is substantial relationship. No question about confidential info in this type of case. 1. Only when talking about lawyers coming and leaving firms do we talk about confidential info. DECLINING OR TERMINATING REPRESENTATION- Rule 1.16 1. A law firm may withdraw from a current representation, but only for reasons listed in Rule 1.16. Rule 1.16 - 2 provisions that law firms sometimes rely on - (1) b(6) & (7) 5. In general, a law firm can take opposite stances on a point (for two different clients on 1 point where the clients are not adverse to each other), unless it is in the same court. You can never be adverse to a current client. 1. Concurrent conflicts may sometimes be waived, and successive conflicts may always be waived. Rule 1.9(a). IMPUTED DISQUALIFICATION AND MIGRATORY LAWYERS 1. Model rules don't allow screens when private lawyers change firms, but permit them when govt. lawyers enter private practice. GOVERNMENT SERVICE Rule 1.11: Representation "personally and substantially" is important phrasing for govt. to private atty. 1. issues. Part (c) of 1.11: Adversity 2. Parts (a) and (b): Non-adversity - Lawyer no longer adverse to the person about whom acquired the info; 3. now wants to represent the person. (a): Lawyer who formerly served as govt. employee shall not represent a client in a matter wh ere the 1. lawyer participated personally and substantially, unless the govt. agency gives its informed consent. (b): When a lawyer is disqualified from representation under (a), no lawyer in the firm w/ which 2. lawyer is associated may knowingly undertake or continue representation in such a matter (take the taint), unless (1) disqualified lawyer timely screened from participation in the matter. a. (c): Lawyer having info the lawyer knows is confidential govt. info about a person (assume applies to 3. persons and corp. entities) acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person in a matter in which the info could be used to the material disadvantage of that person. a. Does not contain personally/substantially involved, written notice, etc. b. Rule makers want to discourage the sharing of this type of info so much that they don't even care about how personally involved and don't give notice exception. (c): Law firm will not be disqualified if the lawyer is properly screened from the matter. c. i. Absolute prohibition on being able to do this, but you can screen this person. In (a) and (b), not an absolute prohibition (ok if not personally/substantially involved, etc).
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CHAPTER 7: ETHICS IN ADVOCACY Rule 3.3: Candor Toward the Tribunal: A. (a) A lawyer shall not knowingly: 1. (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of 1. material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer 2. to be directly adverse to the position of the client and not disclosed by opposing counsel; or
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a. Only need to disclose it if it’s a controlling jurisdiction. (i.e. same circuit or Supreme Court) (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. a. Lawyers may not knowingly introduce false testimony. b. Reasonable remedial measures: can vary depending on the circumstances c. Include, if necessary, disclosure to the tribunal. You don't necessarily have to disclose if you take other steps. d. Reasonably believes is false gets confusing when you contrast it w/ part (b) (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 1. Period before the client takes the stand. 2. Permits disclosure when lawyer knows client intends to commit perjury. 3. Absent this rule, Rule 1.6 would not permit this kind of disclosure. (c) The duties stated in (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of info otherwise protected by 1.6. 1. Most important part. Means that, until the end of the representation, disclosing perjury is more important than confidentiality. Rule 8.4(c): Professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation Rule: If you know something is false, you can't directly introduce something, but there is nothing wrong w/ attacking the credibility, presenting argument that suggests witness who saw something that you know was true didn’t actually see it, etc. A lawyer who coaches a client to lie, even if not perjury, is violating ethics rules b/c rule forbids making a false statement. 3.
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APPEALS TO BIAS 1. Advocate explicitly or implicitly invites the jury to base its decision on race, religion, national origin, or similar considerations. Many jurisdictions forbid this. Rule 3.4: Lawyer shall not (e) in trial, allude to any matter the lawyer doesn't reasonably believe is relevant 2. or that won't be supported by admissible evidence... FALSE INFERENCES 1. If witness for the other side makes a statement you know is inaccurate, you do not have to correct it. It's the prosecution's mistake and burden to correct it. 2. But in DeZarn, if you don't want your witness convicted of perjury, you must correct the mistake there. You have an obligation when it’s your witness. Rule 3.3 (d): In ex parte proceeding, lawyer shall inform tribunal of all material facts known to the lawyer that 3. will enable the tribunal to make an informed decision. 1. Commentary to Rule 3.3 states that failure to make a disclosure is the equivalent of an affirmative misrepresentation.
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CHAPTER 8: REAL EVIDENCE A. "Real evidence": A document or object that may have relevance to a pending or impending case. You do not have to reveal location of evidence, but cannot alter, remove, conceal (Rule 3.4(a)) B. Chapter 10: LAWYERS FOR ENTITIES CONFLICTS AND CONFIDENTIALITY IN ENTITY REPRESENTATION A. Rule 1.13: Organization as Client 1. 2. When an atty. for a company conducts interviews for the company, who does he represent? The company. As an ethical matter, how do you deal w/ the fact that individuals being interviewed may be co nfused as to who is doing the representation? If you think there might be a conflict, you should make them aware of whom you are representing. 1.13(f): Lawyer shall explain the identity of the client when the lawyer knows or reasonably should a. know the organization's interests are adverse to those of the constituents w/ whom the lawyer is dealing. Rule 8.3: A lawyer who knows that another lawyer has committed a violation of the Rules...shall inform...But here the B. GC is not a lawyer b/c wasn't licensed at time of claim! Chapter 15: FREE SPEECH RIGHTS OF LAWYERS PUBLIC COMMENT ABOUT PENDING CASES A. 1. Lawyers who speak publicly risk discipline, contempt, or lawsuit for defamation.
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Rule 3.6: Trial Publicity 1. (a): A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b): Exceptions - things the lawyer may state. 2. 3. (c): Notwithstanding (a), may be used to protect your client from substantial prejudice from recent publicity. (d): Rule applies to firm or govt. agency the lawyer is associated w/. 4. Rule 3.8(f): Requires prosecutors to use "reasonable care" to prevent law enforcement personnel from making statements to the press that the prosecutor may not. Rule 5.3: Requires a lawyer to supervise nonlegal personnel. Rule 3.6 only covers a lawyer "who is participating or has participated in the investigation or litigation of a matter." Wouldn't restrict the speech of individuals who are lawyers and comment on a pending or impending matter.
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PUBLIC COMMENT ABOUT JUDGES AND COURTS Criticizing the Administration of Justice 1. Criticizing Particular Judges 2. 1. Supreme Ct. has held that public officials suing for defamation must prove falsity and "actual malice" - knowledge of a statement's falsity or reckless disregard for its truth. Rule 8.2(a): A lawyer shall not make a statement the lawyer knows to be false... concerning 3. the qualifications or integrity of a judge...
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REVIEW OF IMPORTANT RULES Rule 1.5 - Fees: A lawyer is not allowed to charge an unreasonable fee (factors listed in the rule). C. 1. Cts. often look at (a)(2): likelihood that acceptance of particular employment will preclude other employment by the lawyer - if lawyer spends a lot of time on 1 case can't get paid for another. (c): Must be in writing signed by the client; agreement must clearly notify client of any expenses for which 2. client will be liable whether or not the client is the prevailing party. 1. Lawyer can't have an interest in the case - can advance costs if notify client beforehand. (d): No contingency fee in domestic relations matter or criminal case. 3. 4. Splitting fees: (e) provides for it. Lawyers can divide fee if divided in relation to work performed. Rule requires each lawyer to assume joint responsibility for the representation (in case a malpractice claim). Rule 1.14: Client w/ Diminished Capacity D. 1. Lawyer should try to maintain normal A-C relationship w/ the client, but if lawyer can't adequately act in client's own interests, the lawyer may take reasonably necessary protective action (including consulting w/ parents if client is a minor, or appointing guardian ad litem). Rule 1.15: Safekeeping of Property E. 1. Requirement to keep property separate from the lawyer's own property. 1. Ex.: Escrow account for real estate. Rule 1.17: Sale of a Law Practice F. (a) Seller must agree to cease to engage in private practice of law or in area of practice that has been sold 1. (seller must basically agree to give up that practice). 1. Reason: The law is a profession, not a business; we don't want to make the obtaining of clients a business that can be sold. Don't want lawyers buying clients, then selling them off. 2. B/c it's so harsh, states can limit it to a specific geographic area or jurisdiction. (b) Lawyer must sell the entire practice, or the entire area of practice, to one or more lawyers or law firm. 2. 1. Rules are seeking to prevent bartering of clients, in which I sell you my worst clients, but I keep my best clients. So have to agree to sell entire practice and agree not to practice it again. Rule 2.1: Advisor G. 1. Lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to client's situation. 1. Reason: A safe-harbor provision to protect lawyers. Lawyers provide that kind of advice all the time. Rule 3.1: Can't bring frivolous claims, except for a good faith argument for an extension, modification or reversal of H. existing law. Rule 3.2: Can't slow down a lawsuit. I. Rule 5.5: Unauthorized practice of law (a) J. (c): temporary representation in another jurisdiction 1. Rule 3.5: Impartiality and Decorum of the Tribunal K. 1. Prevents ex parte communications w/ the court (w/ the other side not present). 2. Also prevents contacting jurors after trial if (1) prohibited by law or court order; (2) juror has indicated desire not to communicate; (3) communication involves misrepresentation, coercion, duress, or harassment.
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Rules 5.1, 5.2, 5.3: Responsibilities of lawyers in a law office and their responsibility to see to it that these ethical rules are enforced. 5.1 (a) and (b): Make sure other lawyers don't violate rules. 1. 5.1(c): Lawyer responsible for another lawyer's violation of Rules if (1) the lawyer orders or ratifies the 2. conduct involved or (2) lawyer is partner or has managerial authority in the firm and knows of conduct and fails to take reasonable remedial action. 5.3: Same as 5.1 and 5.2 but applies to nonlawyer assistants - make it so lawyers can't get around ethical 3. rules by making assistants do the things they wouldn’t be allowed to. 5.2: Responsibilities of a subordinate lawyer. (a): Lawyer is bound by Rules notwithstanding that the lawyer 4. acted at the direction of another person - rule is intended to cover the client, where client told the lawyer he could do something. (b) Subordinate lawyer doesn’t violate Rules if acts in accordance w/ a supervisory lawyer's reasonable resolution of an arguable question of professional duty. Rule 5.4: Professional independence of a lawyer. Parts (a) and (b) - Lawyer or law firm shall not share legal fees w/ a nonlawyer; A lawyer shall not form a partnership w/ a nonlawyer if any of the activities of the partnership consist of the practice of law. 1. Reason: Business people in partnership won't be bound by these r ules - this is a profession, not a business, and we don't want those businesspeople influencing the lawyers' actions and bartering over clients' fees. Also don’t want them acting as lawyers - A-C privilege becomes a mess. 2. In big firms, if you hire an accountant, are you violating rule when you pay him? In small firms, referral fee? 3. Sharing a fee is not the same as paying a salary. Rule 5.6: Restrictions on Right to Practice: Prevent restrictions on the right of lawyers to practice after the termination of the relationship or settlement. Ethics Rules don’t want restrictions on lawyers where public can't get to services. Rule 6.1: Pro bono work - minimum of 50 hrs/year
Chapter 17: MARKETING LEGAL SERVICES Rule 7.3: A. (a): A lawyer shall not by in-person, live phone or real-time electronic contact solicit professional 1. employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: a. (1) is a lawyer or b. (2) has a family, close personal, or prior professional relationship w/ the lawyer (b): Can't solicit employment if 2. a. (1) prospective client has made known to lawyer a desire not to be solicited by lawyer or b. (2) the solicitation involves coercion, duress or harassment. Defining the Center: Zauderer and Shapero B. Targeted Advertisements 1. Rule 7.4: (a): A lawyer may communicate the fact that he does or doesn’t practice in particular fields 1. of law, but (d) Shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless.... Targeted Mail (aimed at a particular population and not prospective clients generally) 2. 1. Rule 7.3 permits targeted direct mail to potential clients. Limitations: (c) Where communication is aimed at a person known to be in need of legal services in a a. particular matter, the words "Advertising Material" must appear on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient is (a) a lawyer, a member of the lawyer's family, or someone w/ whom the lawyer has a "prior relationship." All of these rules apply where the lawyer's motivation is for pecuniary gain. 2.