Professional Responsibility Law School Legends

Professor Erwin Chemerinsky

INTRODUCTION: The Multistate Professional Responsibility Examination A. 2003 Version of the Model Rules of Professional Conduct 1. Model for states to use in regulating lawyers 2. 80-90% of the questions on the MPRE B. Model Code of Judicial Conduct 1. Provides a basis for states to use in regulating judges 2. 10-20% of the questions on the MPRE I. How does the bar regulate attorneys? A. Who regulates? 1. States regulate all aspects of the practice of law. a. There is no national regulation of lawyers. All licensing of lawyers is done at the state level. b. All rules of professional responsibility that are binding are at the state level. c. All discipline of lawyers is done at the state level. 2. Attorneys have an ethical obligation to aid in the regulation of lawyers.

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a. Attorneys have an ethical duty to report serious misconduct by other lawyers to the disciplinary authority. b. The Model Rules say that lawyers have to report violations which raise substantial questions about a lawyers honesty, trustworthiness, and fitness. B. Who may practice law in a state? 1. A state may restrict the practice of law to those who are members of that states bar. a. Exception: Pro hac vice representation Where a lawyer gets admitted to a states bar for a specific case with the permission of the court. 2. What are the permissible standards for admission to a states bar? All qualifications for admission must be rationally related to fitness to practice law. a. Educational and testing qualifications are allowed. b. Citizenship qualifications are not allowed. c. States may limit admission to those of good moral character. d. Political beliefs cannot be used to deny admission to the bar. i. Exceptions: (a) Admission can be denied for refusal to swear allegiance to the Constitution and the laws of the United States. (b) The Bar may ask if a person is actively affiliated with an association knowing of its illegal activities and with the specific intent of furthering those activities. (c) The Bar may deny admission to those who refuse to answer legitimate bar questions, who conceal information, and who make false statements. C. The Bar has the duty to prevent the unauthorized practice of law. 1. What is the unauthorized practice of law?

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a. Only an attorney can appear in court. i. Exceptions: (a) Pro se representation. (b) Law students pursuant to state student practice laws. b. Only an attorney can draft legal documents. i. Exceptions: (a) Pro se drafting of documents. (b) Non-lawyers may fill in the blanks on a form prepared by a lawyer. c. Only a lawyer may give legal advice. 2. What are the responsibilities of an attorney in preventing the unauthorized practice of law? a. An attorney cannot aid a non-lawyer in activities that constitute unauthorized practice of law. b. Attorneys cannot practice in jurisdictions where they are not admitted. i. Exceptions: (a) Pro hac vice representation (b) An attorney may practice in a jurisdiction where he is not admitted if it arises out of work in a jurisdiction where the lawyer is admitted. c. Attorneys cannot split legal fees with non-attorneys. i. Exceptions: (a) Lawyers are allowed to make payments to salaried employees.

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(b) Lawyers can make payments to the estates of deceased attorneys. (c) An attorney can share court-awarded attorney fees with a nonprofit organization if the nonprofit employed the attorney or recommended the employment of the attorney. d. Attorneys cannot enter into a partnership with a non-lawyer if any part of the partnerships business is involved in the practice of law. D. How can the Bar ensure compliance with its rules? 1. Conduct that can give rise to discipline. a. Violation of a disciplinary rule. b. A criminal act reflecting adversely on a lawyers honesty and trustworthiness. c. Conduct involving dishonesty, fraud, or deceit. d. Conduct prejudicial to the administration of justice. 2. Attorneys have the duty to make reasonable efforts to supervise subordinates and make sure that subordinate lawyers comply with the codes of professional responsibility. 3. Attorneys have the duty to make independent judgments. a. Exception: The Model Rules say that a lawyer can follow instructions from a superior on debatable ethical questions so long as the conduct is reasonable. 4. The responsibility for ethical violations of another attorney. a. If the lawyer orders or ratifies unethical conduct of another, that lawyer is responsible. b. If a lawyer in a supervisory position has knowledge of unethical behavior and does not do anything, then that lawyer is responsible.

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II. How is the Formation and Ending of the Attorney/Client Relationship Regulated? A. What is the Attorneys Duty to Accept Representation? 1. General rule: There is no duty to accept representation. 2. Exception: There is a duty to accept representation if court-appointed. 3. Exception to the exception: There are a few situations where you are allowed to refuse the court. a. If representing the client is likely to result in the violation of a law or disciplinary rule. b. If representation would impose an unreasonable financial burden on the lawyer. c. If the cause is so repugnant as to interfere with effective representation. B. What is the Attorneys Duty to Reject Representation? 1. Representation will result in violation of law or a disciplinary rule. 2. Representation will require filing a frivolous claim. 3. If the attorney is not competent to handle the matter, unless: a. The lawyer believes that through adequate study, he can become competent to handle the matter. b. The lawyer retains co-counsel to handle the parts where the lawyer is not competent. C. Withdrawal from Representation: Once a matter is in litigation, withdrawal requires permission. Even if there is a situation where the lawyer is required to withdraw, once litigation has begun, the lawyer is required to ask for permission to withdraw. 1. Are there circumstances where the attorney must withdraw? a. When it becomes obvious that the clients primary purpose is to harass or delay.

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b. When representation will require violation of law or a disciplinary rule. c. When the attorneys mental or physical health makes it unreasonably difficult to provide effective representation. d. When the client fires the lawyer. 2. The circumstances where the attorney may withdraw. a. When the client pursues a course of action that the attorney believes is criminal or fraudulent. b. If the client has used the attorneys services to perpetuate a crime or a fraud. c. If the client insists on pursuing an objective that the attorney regards as repugnant or imprudent. d. If the client disregards an agreement concerning fees or expenses with reasonable warning to the client by the attorney. e. If representation will result in unreasonable financial burden on the attorney, or has been rendered unreasonably difficult by the client. f. If the client freely assents to the attorneys withdrawal. 3. Requirements when an attorney withdraws. a. The attorney must give the client timely notice and the opportunity to get another attorney. b. The attorney must return all funds not used or expended. c. The attorney must return all of the clients papers and files. III. What are the Attorneys Duties to the Client? A. The Duty to Avoid Conflicts of Interest 1. General Rules

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a. An attorney may not represent a client if the representation of the client may be materially limited by the lawyers responsibilities to another client, or to a third person, or to the lawyers own interests, unless: i. The lawyer reasonably believes that the representation will not be adversely affected; and ii. The client gives written consent. b. Rule of Imputed Disqualification: If one attorney in an office is disqualified, then all attorneys in the office are disqualified. i. Exception: The only time the Model Rules allow screening instead of disqualification is if the lawyer being disqualified is a former government lawyer or a former judge. ii. Requirements (i) The former government lawyer or judge is screened from any participation in the matter. (ii) The former government lawyer or judge is apportioned no part of the fee. (iii) Written notice is given to the former government agency or tribunal. If it is an agency, it has to consent in writing to its former lawyer participating. 2. Conflict among current clients. a. An attorney may not sue a current client even on an unrelated matter. b. An attorney may represent multiple parties in a lawsuit so long as the attorney can represent all effectively and so long as all consent. c. An attorney representing multiple parties shall not participate in an aggregate settlement or guilty plea unless each client consents in writing after being informed of all of the agreements. d. A lawyer may act as a neutral third party between clients. However, the attorney has the duty to explain his or her role.

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e. An attorney can provide an evaluation for other than the client so long as it is consistent with the lawyers duty to the client. 3. Conflicts between the attorneys interest and the clients interest. a. An attorney shall not solicit a substantial gift from a client or prepare an instrument giving a lawyer or person related to the lawyer a substantial gift from the client. i. Exception: If the client is related to the lawyer, then it is okay. b. A lawyer shall not give financial assistance to a client except that the lawyer may pay court costs and the expense of litigation or advance these costs to clients represented on a contingency fee basis. c. Business deals between lawyers and clients are always suspect. Business deals between an attorney and a client are only allowed when certain conditions are met. i. The terms of the transaction must be fair and reasonable. ii. The terms are disclosed in writing in a manner the client can reasonably understand. iii. The client must be advised in writing to seek the opinion of anther attorney and be given the chance to do so. iv. The client must consent in writing. d. Prior to the completion of representation, an attorney shall not acquire literary or media rights to a clients story. e. A lawyer shall not acquire proprietary interest in the cause of action or subject of litigation, except: i. A lien to secure the attorneys fees or expenses is allowed. ii. Reasonable contingency fees are allowed. f. A lawyer shall not act as an advocate at a trial where the lawyer is likely to be a witness, except: i. Trial or testimony relates to an uncontested issue.

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ii. The testimony relates to the nature and value of legal services provided. iii. If the disqualification of the attorney would impose a substantial hardship on the client. g. A lawyer shall not have a sexual relationship with a client unless a consensual sexual relationship existed between them when the attorney-client relationship commenced. 4. Organizations and representation. a. In representing an entity, the attorney is representing the entity and not the directors, officers, or shareholders. b. If an attorneys representation of a client is paid for by other than the client, the client must consent and the representation of the client must not be interfered with. c. In dealing with an organizations directors, officers, and employees, an attorney shall explain the identity of the client where it is apparent that the organizations interests may conflict with the individuals interests. d. An attorney may represent both an entity and individuals if all consent, except: i. The entity must consent through others than those represented. e. An attorney for an entity who believes that the entity is violating the law shall act reasonably to protect the entity. i. Lawyer may ask for reconsideration of the matter. ii. Lawyer may ask for a separate legal opinion. iii. Lawyer may refer the matter to a higher authority within the organization.

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5. Conflicts with past clients. a. A lawyer shall not be materially adverse to a former client if the current matter is substantially related to the former representation. b. A lawyer shall not be adverse to a former client if the attorney acquired confidential information that is material to the current representation. B. The Duty of Competence 1. An attorney has a duty to provide competent representation to a client. 2. An attorney is subject to discipline for attempting to contractually limit malpractice liability. a. Exception: An attorney may contractually limit malpractice liability so long as the client is represented by another lawyer in entering the agreement. 3. An attorney cannot settle malpractice claims without advising the client in writing to see another attorney. C. The Duty to Follow Client Instructions 1. The client controls the ends, the attorney controls the means. 2. These are situations in which the lawyer must follow the clients instructions: a. Whether to sue in a civil case. b. Whether to accept a settlement in civil cases or whether to plead guilty in criminal cases. c. Whether to waive jury trial in criminal cases. Only the client gets to decide whether it will be a jury or a bench trial in criminal cases. d. Whether to testify in criminal cases. e. Whether to appeal. 3. Attorneys have the duty to keep clients reasonably informed.

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4. An attorney may limit the objective representation if the client consents. 5. Concerns representing a client with a disability. D. The Duty to Protect Client Confidences 1. Any information that a lawyer learns related to the representation must be kept confidential. 2. The attorney cannot disclose a clients confidential information. 3. Exceptions to the duty of confidentiality a. Waiver: If the client gives informed consent, the lawyer can disclose the confidential information. b. Future Crimes Exception: The lawyer may disclose confidential information to prevent reasonably certain death or substantial bodily harm. c. Self Defense: A lawyer may disclose confidential information to defend a claim made by a client or to defend against bar discipline or sanctions. d. To secure legal advice about the lawyers compliance with these rules. 4. How should an attorney handle the fruits in instrumentalities of a crime? a. The lawyer is not allowed to keep, hide, or alter them. 5. A lawyer who believes that a client has committed perjury has to go through a three-step process. a. The lawyer should urge the client to rectify the fraud. b. If the client refuses, then the lawyer should seek to withdraw. c. The lawyer should rectify the fraud even if it means disclosing confidential information.

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IV. How is the Integrity of the System Protected? A. Duty to Prevent Abuse of the System 1. An attorney shall not bring or defend the proceeding, or assert or controvert an issue, unless the lawyer believes there is a basis for doing so that is not frivolous. 2. An attorney shall make reasonable efforts to expedite litigation consistent with the interests of the client. 3. An attorney shall not seek to influence a judge or jury in a manner prohibited by law. 4. An attorney shall not engage in conduct intended to disrupt the tribunal. B. The Duty of Candor to Tribunal, the Duty of Honesty 1. An attorney shall not make a false statement of material fact or law to a tribunal. 2. An attorney shall not fail to disclose a material fact where disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. 3. An attorney shall not offer evidence that the lawyer knows to be false. 4. An attorney shall disclose adverse legal authority that is on point and from the controlling jurisdiction. 5. In ex parte proceedings, the attorney shall inform the tribunal of all material facts. C. Fairness to Opposing Parties 1. An attorney shall not obstruct another persons access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. 2. An attorney shall not falsify evidence or counsel a witness to testify falsely. 3. An attorney shall not make a frivolous discovery request or fail to comply with discovery in good faith.

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4. An attorney shall not make a false statement of material fact or law to a third party. 5. A lawyer who receives a document relating to representation of the lawyers client and knows or reasonably should know that the document was inadvertently sent shall notify the sender. D. Trial Tactics 1. An attorney shall not allude to any matter that is not supported by admissible evidence. 2. An attorney shall not assert personal knowledge about the justice of a cause or personal knowledge of facts, except when testifying as a witness. 3. Special duties of prosecutors. a. Only to proceed when there is probable cause. b. To make timely disclosure of all potentially exculpatory evidence including evidence that might be mitigating in sentencing. c. To make sure that an accused has been advised of the right to counsel and has been given a reasonable opportunity to find a lawyer. d. Not to seek a waiver of rights from an unrepresented person. e. Not to subpoena another lawyer before a grand jury or other proceedings unless of the following requirements are met: i. The prosecutor must believe that the information sought is not privileged. ii. The evidence must be essential to the successful completion of the proceeding. iii. There is no alternative source of the information. f. Not to make public statements that have a substantial likelihood of heightening public condemnation of the accused. E. Voluntary Pro Bono Work

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1. An attorney shall aspire to perform at least 50 hours of pro bono service per year. 2. An attorney may serve as an officer, director, or member of a legal service organization, even if it has interests adverse to the lawyers clients. F. The Attorney as Advisor 1. An attorney shall not counsel a client to engage or assist the client in conduct that the lawyer knows to be criminal or fraudulent. 2. An attorney may discuss the legal consequences of any proposed course of conduct with the client, and may assist the client to determine the means of the application of the law. 3. An attorney shall give candid advice, not only about the law, but also about moral, economic, social, and political considerations. G. What is the Permissible Nature of Communications with People Other than Clients? 1. Communications with adversaries. a. An attorney shall not communicate directly with a person who the lawyer knows is represented in the matter unless the other lawyer consents. b. An attorney can communicate directly with an opposing party, who is not represented by counsel, but cannot give legal advice or represent that he or she is disinterested. 2. Communication with witnesses. a. An attorney may contact all witnesses, even witnesses for an opposing party. b. An attorney cannot harass prospective witnesses. c. An attorney cannot encourage a witness to leave the jurisdiction to avoid testifying. d. An attorney cannot pay a non-expert witness other than reimbursing for costs of testifying.

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e. An attorney may pay an expert witness a reasonable fee in addition to expenses. 3. Communication with jurors. a. Before trial, no communication is allowed with the members of the panel from which the jury will be selected. b. During the trial, no contact with jurors is allowed except in official court proceedings. c. After trial, an attorney can contact a juror unless prohibited by law, or the juror indicates a desire to not be communicated with, or there is harassment. 4. Communications with the Court. a. Except in emergencies, ex parte communications are not allowed. b. No gifts to court personnel are allowed. 5. Communications with the press. a. A lawyer shall not make a statement that is reasonably likely to be publicly disseminated if there is a substantial likelihood of materially prejudicing an adjudicatory proceeding. V. How Should the Market for Legal Services Be Regulated? A. Advertising and Solicitation 1. Attorneys must not make false or misleading statements when they are advertising. 2. Solicitation a. Attorney-in-person solicitation of clients for profit is prohibited. Lawyers cannot do live telephone solicitation, or real-time electronic solicitations, except: i. Lawyers can solicit business from other lawyers.

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ii. Lawyers can solicit business from family members or close personal relations. iii. Lawyers can solicit business from those who the lawyer had a prior professional relationship with. b. An attorney shall not solicit if the perspective client makes it known that he or she does not want to be solicited. 3. Advertising a. Advertising is allowed so long as it is truthful and not deceptive. b. A lawyer may communicate a practice with regard to specific fields. c. A lawyer may communicate a certified specialty if accredited by a specialized body and the accrediting body is identified. B. How May the Practice of Law Be Structured? 1. Names of law firms a. Attorneys can continue to use the names of deceased lawyers unless it is deceptive to do so. b. Attorneys must remove their names from a firm if they enter public service. c. Trade names are allowed for law firms so long as they do not imply a false connection to government or legal services. 2. Firms may incorporate, if a state law permits it, but all officers, directors, and shareholders must be attorneys. 3. Buying and selling of law firms a. The seller must stop practicing in that geographic area or in the practice area of the firm. b. The firm is sold in its entirety. c. Written notice is given to clients of the proposed sale. d. There is no immediate increase of fees because of the sale.

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C. Fees 1. Fees should be set as soon as possible in the course of representation, preferably in writing. 2. A lawyers fees must be reasonable. a. Time and skill required for the representation. b. The extent of preclusion of other legal work. c. The fee customarily charged for like work in the community. d. The amount charged. e. The experience of the attorney. 3. Contingency fees: A lawyer can represent a party on a contingency basis if the party would recover funds if the representation would be successful. a. Contingency fee agreements must be in writing. b. The attorney must notify the client of expenses that the client is responsible for. c. Contingency fees are not allowed in criminal cases. d. Contingency fees are not allowed in domestic relations cases where the fee is contingent on securing a divorce, on the amount of alimony, or on the property settlement. 4. Fee splitting with other attorneys. a. The client is advised and does not object to the participation of all the lawyers. b. The total fee is reasonable. c. The fee is divided proportionate to the way the work was done or by written agreement with the clients. 5. Attorneys shall not enter into agreements that restrict the ability of other lawyers to practice after termination of their employment.

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D. What is the Attorneys Duty to Protect the Clients Money or Property? 1. An attorney must not commingle client funds and personal funds. 2. An attorney must keep a record of client funds for at least five years after representation. 3. An attorney must keep a clients property safely. 4. An attorney must pay all money owed to the client promptly. VI. Ethical Standards for Judges A. When are Judges Disqualified? 1. If the judge has personal knowledge of disputed evidentiary facts. 2. If the judge served as a lawyer in the matter in controversy. 3. If the judge has a financial interest in the case. a. This includes the financial interest of the judges spouse, children, parents, and family members living in the house. b. It must be a legal or equitable interest. c. Disqualification applies to all financial interests that the judge knows of or should know of. 4. If the judge or family member is involved in the case. a. As a party or as an officer, director, or trustee of the party. b. As a lawyer in the proceeding. c. Has more than a de minimis interest that can be substantially affected. d. Is likely to be a material witness.

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5. Exceptions a. Remittal: Where the parties voluntarily agree to let the judge participate i. The judge must disclose on the record the basis for disqualification. ii. All parties to the proceeding must voluntarily agree for the judge to continue to participate. iii. The consent must be on the record. b. The rule of necessity: If all the judges in a jurisdiction would be disqualified, then any judge can hear the case. B. What Conduct is Appropriate While Serving as Judge? 1. A judge shall comply with all constitutional, statutory, and procedural laws for the obvious reasons. 2. A judge shall require order ad decorum in all court proceedings. 3. A judge shall be patient, dignified, and courteous. 4. A judge shall perform judicial duties without bias or prejudice. 5. A judge shall not engage in ex parte communications. 6. A judge shall avoid and shall require attorneys to avoid expressing bias based on race, national origin, religion, gender, age, disability, sexual orientation, or socioeconomic status. 7. A judge shall dispose of all judicial matters promptly, efficiently, and fairly. 8. A judge shall not commend or criticize jurors for their verdict except in a court order or opinion. 9. A judge shall not disclose or use any non-public information that was gained in a judicial capacity. 10. A judge shall not make comments about any pending proceeding that could be reasonably expected to affect its outcome.

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C. What Off-the-Bench Conduct by Judges is Appropriate? 1. A judge is not allowed to engage in the practice of law. 2. A judge is not allowed to serve as a fiduciary. a. Exception: A judge can do this for a member of his immediate family if it is a matter not likely to come before him in court. 3. A judge may serve in a charitable or civic organization as long as it does not reflect adversely on the judges impartiality. a. The organization must not be for the financial or political gain of its members. b. The judge shall not participate in fundraising or membership solicitation or allow the prestige of the judicial office to be used. c. The judge shall not participate if it is likely that the organization will be involved in litigation that might come before the judge in the judges own court. 4. A judge shall not hold membership in any organization that practices discrimination based on race, sex, religion, or national origin. 5. A judge shall not appear as a character witness unless subpoenaed. 6. A judge shall not engage in financial transactions that risk a conflict of interest. a. A judge may hold and manage investments for himself and his family members. b. A judge cannot serve as an officer or director for any business other than a family close corporation. 7. A judge shall not accept, and shall urge family members not to accept, gifts from those likely to appear before the judge. 8. A judge may receive compensation for his or her non-judicial conduct where that is permitted. 9. A judge shall comply with the law in all of his or her activities.

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D. What Political Activities by Judges or Judicial Candidates are Permissible? 1. Judges and candidates for judicial office may not: a. Hold office in political organizations b. Publicly endorse or oppose candidates for office c. Make speeches on behalf of political organizations d. Attend political gatherings e. Solicit funds, make contributions, or buy tickets to political events 2. Judges must resign from the bench if running for non-judicial office. 3. In campaigning for election or retention of the bench, a judge shall not: a. Personally solicit or receive funds b. Make pledges or promises of conduct in office c. Cannot knowingly misrepresent their own qualification of facts concerning an opponent