MPRE OUTLINE I. Regulation of the Legal Profession A. Powers of the Courts and Other Bodies to Regulate Lawyers 1.

ABA a. Voluntary membership and No disciplinary authority (cant disbar you) b. ABA Model Rules of Professional Conduct 1) Must rules mandatory (disciplinary rules) 2) Should rules advisory (ethical considerations) No punishment for violation or what would be proper 3) Types of Discipline for violating a Mandatory Rule: a) Private Reprimand/Censure: getting yelled at or a letter in your file b) Public Reprimand/Censure: getting published in a bar jounal c) Suspension (for a finite period of time): cannot practice and name cannot stay on the door d) Disbarment: name has to come off of the door 2. Judicial Exercise a. U.S. Supreme Court is ultimate authority b. States highest court determines rules for state 3. State laws moral turpitude vs. good moral character B. Admission to the Profession 1. U.S. Supreme Court says state requirements for admission to bar be rationally related to the practice fo law. a. What is rational? 1) Graduation from ABA accredited law school 2) Requirement of taking an oath to support U.S. or S.C. Constitution b. What is not rational? 1) U.S. Citizenship 2) Residency 2. Requirements on you when you apply to the bar (its a privilege not a right) a. Truth and full disclosure: including expunged offenses b. Duty to cooperate 3. Requirements on lawyers regarding applicants a. Good applicants your input is aspirational/should b. Bad applicants duty to report when asked, or to correct something you believe may have arisen in the matter C. Regulation After Admission Lawyer Discipline 1. Regulated by highest state supreme court (and through its agencies) D. Mandatory and Permissive reporting of Professional Misconduct 1. Self-Regulating Profession with two pronged duty when you know of a violation a. Must report when you know, unless protected as confidential information b. Must be available to testify (no anonymous reporting). 2. If unethical conduct is a crime, must be relevant to some aspect of practice of law. a. Dishonesty b. Breach of trust c. NOT: ex. Drunk driving 3. A lawyer who commits fraud in the conduct of a business is subject to discipline, even if the lawyer is not active in the practice of law. 4. Where a lawyer learns of bad conduct of another lawyer through representation of that lawyer as a client, the duty of confidentiality will trump the duty to report the misconduct to the bar, OR through

membership in an approved lawyers assistance program that helps lawyers and judges with substance abuse problems. E. Multi-jurisdictional Practice 1. Unauthorized practice cant do it where not admitted 2. Permissible temporary multi-jurisdictional practice a. Associate with an active local lawyer b. Special permission called pro hac vice: for this matter only c. Mediation or arbitration out of the home-state practice d. Anything reasonably related to lawyers home -state practice 1) Ex: Real estate lawyers who write contracts and do everything but the closings 3. Permissible Permanent Multi-Jurisdictional Practice a. Employed by her only client which has several offices: Corporate Lawye r or Govt Lawyer b. Legal services authorized by federal or local law: Tax Court 4. Consequences Subject to both states rules a. Not a lower standard 5. Law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. a. Ex: Letterheads with asterisk F. Responsibilities of Partners, Managers, Supervisory and Subordinate Lawyers 1. Supervisory responsible for acts of subordinates if: a. Knew of misconduct at a time when consequences can be avoided or mitigated and the lawyer fails to take remedial action (but if its too late then the supervisor cannot get in trouble) OR b. If the violation raises a substantial question as to the lawyers honesty or character and supervisor ordered or ratified the conduct 2. Subordinate not responsible for his own actions if: (how to get out of it) a. You were told to or order to do the misconduct AND b. It is arguable that what you did was okay to do. G. Unauthorized Practice of Law by Lawyers and Non-Lawyers 1. The following activities require a license (and constitute the practice of law.) a. Appearances in Judicial Proceedings and Depositions b. Drafting documents that impact substantial legal rights c. Negotiating settlements 2. The following activities do not require a license (These do not constitute the practice of law.) a. Interview clients or people or witnesses b. Filling in forms c. Writing legal memos H. Fee Division With a Non-Lawyer: (General Rule: You CANNOT do it) 1. Exceptions: a. Heirs of the deceased attorneys b. Employees in the form of salaries and as part of pension or bonus plans. c. Lawyer may share court awarded legal fees with a non-profit organization that employed, retained or recommended employment of the lawyer in the matter. I. The Law Firm and Other Forms of Practice 1. Lawyers must not imply that they are partners or otherwise associated with each other in a law firm unless they really are. As to the public, the law firm includes lawyers who frequently consult, work jointly, and have access to each others files. (Ex: Law firms sharing space) 2. Only Lawyers can be partners, or officers if were dealing with a corporation, if any part of the partnership business is the practice of law.

a. Except: shareholders and its only temporary by operation of law. Relationship of the Dual Profession Lawyer with Non-Lawyers a. Dual professions: okay to list dual professions b. Soliciting legal business: can use dual profession to solicit c. Attorney/client privilege: does not apply to non-lawyer work. d. Ancillary (or law related) services: OK to provide service reasonably performed in conjunction with and related to legal services, and note: 1) Non-legal and legal provided together: Rules apply to both 2) Non-legal services provided by entity controlled by the lawyer: lawyer must assure that client knows of their interest and that it is not legal services. a) Failure to provide client with notice of interest would mean that the rules apply to everything. J. Restrictions on the Right to Practice: (No non-competes) 1. Exceptions a. Retirement b. Settling a claim (dividing up a firm) K. Solo practitioner has a special duty to plan for death or disability by designating another competent lawyer to: 1. Review files 2. Notify clients 3. Determine protective actions II. The Client-Lawyer Relationship A. Formation of Client Lawyer Relationship (General Rule: Lawyers have general freedom to reject cases) 1. Exceptions to general freedom to reject cases a. Defenseless or oppressed Should b. Fair Share of Pro Bono - Should 50 hours per year recommended c. Appointments Must d. Exceptions good cause shown, i.e. should or must cases you may be able to reject: 1) Unreasonable Financial Burden 2) Duty to reject cases Must Reject a) Physical or Mental Inability b) Conflict of Interest c) Frivolous Defense or Claim d) Strong Feeling or Bias e) Incompetence/Lacking the Legal Expertise f) Exceptions: When you are able to take a case that you otherwise must reject for incompetence. (1) A: Association (2) L: Learn it (3) E: Emergency B. Scope, Objective, and Means of the Representation 1. Decision-Making Authority: Important decisions belonging to the client, whether to: a. Sue b. Settle 1) Must inform client of all settlement offers unless client has specifically with informed consent authorized a specific acceptance and rejection range. c. Testify (in a criminal case) d. Plea e. Jury/Bench 3.

f. Appeal Procedural and tactical decisions belonging to the attorney (law, tactics, and strategy) a. Which court to file in b. Depositions do we take/not take? c. Discovery whether + what to seek/produce d. Continuances whether to request or grant a request 1) Exceptions: i.e. procedural or tactical issues which belong to the client a) Case expenses client can say: I cant afford 47 depositions b) Third persons well being i.e. putting a child on the stand 3. When client is under diminished mental capacity, or is minor, client decision DO NOT shift to lawyer. Rather, you must get a GUARDIAN APPOINTED. a. But, the lawyer should both respect and involve the client as much as possible for input on decisions that impact the clients well being. C. Counsel and Assistance Within Bounds of the Law 1. Means be honest and truthful . . . subject to discipline for knowingly making a false statement of fact or law to the court or failing to correct a previously made false statement of material law or material fact. D. Termination of the Client-Lawyer Relationship 1. Need Court permission when matter is in litigation and must return clients property, including the case file and unused portion of retainer 2. Judges decision is often affected by particular stage of the matter when withdrawal is sought 3. Client has the power to fire the attorney, but we cant fire clients a. Lawyer may be able to sue though 4. Mandatory Withdrawal a. Duty to reject b. Client fraud and refusal to rectify c. Client insists on violation of law or ethical provision d. Client has begun and illegal course of action 5. Permissive Withdrawal a. Can be for any reason where theres no material harm to client, or b. If client consents, or c. Where one of these is met: 1) Client persists in criminal or fraudulent conduct 2) Client has used attorneys services to commit past crime or fraud 3) Clients objective is repugnant or imprudent 4) Client breaks promise to law to pay the fee 5) Unreasonable financial hardship for attorneys practice 6) Client will not cooperate d. But cannot abandon client. Must take proper steps to avoid material adverse effect on client. 1) Hypo: Client tells lawyer that client is going to lie under oath on the stand. a) Dissuade client b) Request permission to withdraw c) Do as instructed: client that lies, make a statement d) Give client reasonable notice to get a new lawyer E. Client-Lawyer Contracts 1. Lawyer can limit representation, i.e. only through pre -trial discovery 2. Basic rules of contract construction apply: against the drafter F. Fees: Fee arrangement (scope of representation, basis or rate of fee, and expenses for which client will be responsible) shall be communicated to client before (or within a reasonable time after) representation starts. 2.

Exception: When a lawyer will charge a regularly represented client on the same basis or rate in subsequent matters. 1. Excessive fees and minimum fees are prohibited 2. Factors in setting a reasonable fee: Look for lawyers not doing what they said a. Time and labor b. Difficulty and novelty of questions c. Experience, reputation and abilities d. Relationships: nature and length e. Exclusions (whether lawyer must turn away other cases if client knows of this) f. Fixed or contingent (contingent can be higher) g. Fees customarily charged 3. Contingent fee arrangements must be reasonable; signed by client a. Must not use in criminal case 1) No incentive fee: Emilio Estevez example, he can give you royalties from Mighty Ducks, just not representation 2) No percentage of publication rights based upon representation until the case is over, appeals and all. b. Must not use in domestic relations case 1) Past due support payments are debt and ther efore okay. c. Contingencies Fee must be explained in writing(s) and must notify the client of any expenses for which they are liable, whether or not the client wins the case 1) Before you take the case 2) After the case is concluded (settlement letter) 4. Lawyers can sell and buy a law practice (including good will) a. The entire practice or entire field of practice must be sold b. Seller must exercise competence in identifying a qualified purchaser c. Written notice must be given to the sellers clients regarding: 1) The sale 2) Clients right to get their files returned 3) Clients right to get new counsel 4) Consent will be presumed if the client takes no action within 90 days of the receipt of the notice. If notice cannot be given for some reason, then a court order is required to authorize the transfer of the representation. d. Seller must cease to engage in private practice of law (or at least in the sold field) or leave the jurisdiction e. Purchaser must take all client matters not just the good ones. III. Client Confidentiality A. Attorney-Client Privilege and Confidentiality 1. Privilege protects confidential communication; confidentiality covers the same AND any other information obtained by the attorney relating to representation, regardless of the source including that which may be embarrassing or derogatory to the client. a. Privilege is held by the client and not by the attorney 2. Presence of a Third Party does not destroy confidentiality if the third party was present to help further the attorney client relationship B. Work Product Doctrine 1. Material prepared by a lawyer for or in anticipation of litigation is immune from discovery unless the other side shows a substantial need for the material and an inability to gather the material without undue hardship.

A lawyers mental impressions or opinions are always immune from discovery regardless of need, unless immunity is waived. C. Disclosure Expressly or Impliedly Authorized by Client (what a client authorizes with informed consent to disclose) 1. Express authorization requires informed consent: the client agrees to proposed course of conduct after lawyer sufficiently explains material risks and reasonable alternatives. 2. Implied authorization to carry out representation (except screened member) D. Exceptions to Privilege 1. Waived by Client 2. Client seeks attorneys service to engage in or assist in future crime/fraud 3. Communication is relevant to issue of breach of attorney client relationship. (breach of contract between attorney and client) E. Other Exceptions to the Confidentiality Rule 1. Waived by Client 2. Required by law or court order 3. Informed Consent 4. Implied authority to disclose to further the representation 5. Client Fraud or Perjury 2 prongs: a. Client has committed fraud or perjury (past): CANNOT be disclosed b. Client is committing fraud or perjury: lawyer must seek to withdraw from the matter and if such effort is denied, or if withdrawal does not resolve the problem, then the lawyer must disclose the fraud to the judge. c. Exception: Lawyer has the duty to rectify false testimony until the end of the proceedings, appeals and all. 6. To obtain legal or ethical advice for lawyer. Use of hypotheticals with colleague is ok if discrete to protect the identity of client. 7. To prevent reasonably certain death or substantial bodily harm, (assumes in the future): permitted to reveal information to the extent necessary to prevent the harm which does not need to be the product of a crime. 8. To prevent substantial financial harm or fraud if the client is or has used the lawyers services in the matter. Also true if the client has already acted and disclosure can prevent or mitigate the consequent financial harm. F. Past Crimes 1. Are considered secrets and cannot disclose 2. Death of a client does not end obligations IV. Conflicts of Interest: In general lawyer cannot represent adverse interests of client or prospective client. In some instances, conflict can be cured if BOTH of the following occur: 1) Lawyer fully explains risks and alternatives (informed consent) and 2) Client agrees in writing (can be electronic). A. Current Client Conflicts: Lawyers Personal Interests or Duties 1. No loans to clients in connection with pending or contemplated litigation; no de minimus exceptions a. Exception: Advancing the costs of litigation 2. Rule of Imputation what one lawyer cant take the firm (partners, associates, and of counsel) cant take (except the lawyer as witness) and where the conflict is uniquely personal to the lawyer (sexual relationships) a. Sexual Relationships with clients that are not pre-existing to the representation are subject to discipline; consent or harm is irrelevant; not rule of imputation, but screening is required 1) Pre-existing sexual relations are okay 2) If they are your clients then you start sleeping with them, then you must withdraw, but your firm can remain. 2.

B. Acquiring an Interest in Litigation (Lawyer cant acquire an interest in the case) 1. Exceptions: a. Contingency Fees b. Security Liens: Interest in Work Product C. Business Transactions With Clients (Lawyer cant enter into a business deal with a client) 1. Exceptions: a. Unless it is an ordinary transaction b. As long as terms are fair 2. Requires in writing: a. A full disclosure of terms b. Advised to get independent counsel c. Informed consent, signed by client D. Conflicting Interests Current Clients and Former Clients (Lawyer cannot have conflicting interests with current clients and former clients) 1. No interests adverse to clients a. Cannot represent client in one matter and oppose him in another b. Cannot represent client whose interests are directly adverse to another client c. Cannot represent client against former client when you acquired confidences in former representation. E. Current Client Conflicts Multiple Clients and Joint Representation 1. Must have reasonable belief of no adverse effect 2. Client gives written informed consent 3. When representing two or more clients, lawyer shall not make an aggregate settlement of claims without informed consent in writing from each client after full review of entire settlement as to all parties which includes: a. That the clients have come to an agreement among themselves about how the aggregate sum will be shared; b. Disclosure to each client of all the terms including: 1) Total amount to be paid or received by each individual 2) Detail of every other clients participation in the settlement 3) How the lawyers fees and costs must be paid 4) And the existence and nature of all claims, defenses, and pleas involved in the settlement. (what all is getting settled) c. These extensive disclosures may require the law to share one clients confidential information with the other so at the outset of the case, the lawyer should get each clients informed consent. (you will have to share information) F. Prospective Client Conflicts 1. Have an expectation of attorney-client privilege G. Third Party Compensation and Influence 1. Attorney can be paid by a third person, but requires: a. Written informed consent by client AND b. Confidences must be kept H. Imputed Conflicts 1. Lawyers related as Parent, Child, Sibling, or Spouse shall not represent adverse parties, unless full informed consent; but no rule of imputation I. Former Judge, Arbitrator, Mediator, or Other Third Party Neutral or Government Lawyer 1. Judge or government employee who later goes into private practice may not represent a party on a matter she or he worked personally, to wit: Rule: Cannot take matters where previously acted or had

substantial responsibility absent written informed consent, but not rule of imputation so long as lawyer is screened off from the case. a. Matter is specific facts with specific parties 1) Matter a lawyer in private practice can take, even though as a government lawyer/judge, he or she did the work a) Drafting laws b) Compiling statistics 2) Matter a lawyer in private practice cannot take, when as a government lawyer/judge, he did the work. However, someone else in the firm can take the case so long as the former government lawyer is timely screened. a) Previously ruled on the case b) Where you drafted a contract with the government and that contract is at issue. b. Elements of screen 1) Written disclosure to the other side 2) No working on or discussing the case or access to file by screened off attorney 3) No fee to the screened off attorney no incentive to cheat V. Competence, Legal Malpractice, and Other Civil Liability A. Maintaining Competence: Competence is a 2-pronged duty: Professional Responsibility and Malpractice; committing malpractice does not automatically mean a disciplinary rule has been violated, and visa-versa. B. Civil Liability to Client, including Malpractice 1. Recovery comes from cause of action based in: contract, tort, or fiduciary relationship. 2. Requires: money loss and causation: but for you actions I would have won. 3. Purpose of civil malpractice claim is compensation C. Distinguished from Disciplinary Process 1. Purpose is punishment 2. Doesnt require money loss of causation D. Exercising Diligence and Care: A lawyer must: 1. Reasonably consult with client about the means by which the clients objectives are to be accomplished 2. Keep client reasonably informed about status of/developments in the case 3. Promptly comply with reasonable requests for information 4. Explain matters to client to extent reasonably necessary to permit client to make informed decisions regarding representation 5. Communicate all settlement offers not specifically addressed in blanket authority from client. E. Limiting Liability for Malpractice Lawyer cant do it prospectively unless client has independent representation in making the agreement. (we are knowingly incompetent and client still wants our representation). F. Malpractice Insurance and Risk Prevention 1. Lawyers have malpractice insurance 2. Some states require you to report insurance status. VI. Litigation and Other Forms of Advocacy A. Candor to the Tribunal: Must reveal adverse decision or statute of controlling jurisdiction 1. Cant bury adverse decision 2. No explanation is required to be given to the court 3. Can distinguish away 4. Can offer a good faith argument to change the law B. Fairness to Opposing Party and Counsel: Civility, Courtesy, and Decorum are aspirational C. Meritorious Claims and Contentions: Lawyer must have good faith basis for actions; make only meritorious claims and contentions.

D. Trial Publicity 1. Lawyer connected with case must not make a public statement outside courtroom that the lawyer reasonably should know would have a substantial likelihood of materially prejudicing the case. 2. Lawyer can speak publicly on what a reasonable lawyer would believe is required to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client. (respond in kind). 3. Special constraint on prosecutor: cant make extra judicial comments that have a substantial likelihood of heightening public condemnation of the accused. 4. Lawyers MAY state dry facts about the case. E. Lawyer as a witness 1. Rule: Lawyer cant be necessary witness for client 2. Exceptions a. Uncontested matter b. Legal fees (statutorily awarded) c. Substantial Hardship to Client 3. Disqualification not imputed VII. Transactions and Communications with Persons Other than Clients A. Truthfulness in Statements to Others B. Communications with Represented Persons 1. Gotta go through the clients lawyer. 2. Parties may communicate directly with each other and lawyers may inform them of this fact. (Required to encourage them). C. Communications with Un-represented Persons (Pro-se) 1. Cant give legal advice 2. Cannot appear disinterested when you are in fact an advocate/adversary 3. Can negotiate a transaction or settle clients dispute with un -represented person a. Cannot appear disinterested D. Respect for Rights of Third Persons 1. Witnesses a. Not contingent fees for experts b. Can pay reasonable expenses and lost wages, but cant condition payment on testimony (Lay People) c. No need to obtain permission of other side to interview a witness 1) Except: Corporate employees of managerial responsibility or whose acts could be imputed to corporation requires consent of organizations in-house counsel d. Can advise witnesses they dont have to voluntarily testify if: 1) Person is related to or is an agent of the party that the lawyer represents, and 2) The person will not be harmed by not volunteering 2. Jurors a. During trial: 1) No lawyer connected with the case can talk about the case with a juror unless authorized by law or court order. 2) No de minimus exception b. After trial: must not communicate if any of these 3 conditions is met: 1) Court Prohibits it 2) Juror tells law I dont want to talk to you. 3) Purpose is harassment VIII. Different Roles of the Lawyer A. Lawyer as Advisor

1. Client is entitled to all information entitled to candid advice 2. Should give legal, moral, economic, or ethical advice B. Lawyer as Evaluator 1. Must be compatible with other aspects of representation, and 2. Clients written informed consent, because the evaluation must be truthful. 3. Must be truth in the evaluation; if harmful result, get informed consent in writing C. Lawyer as negotiator 1. Documents sent to lawyer by mistake must promptly notify sender D. Lawyer as Arbitrator, Mediator or Other Third Party Neutral 1. Must explain that there is no attorney-client relationship to unrepresented party 2. If litigation, must withdraw E. Prosecutors and Other Government Lawyers 1. Must not prosecute without probable cause 2. Assure the accused is advised of his right to counsel, knows how to get counsel, and is given a chance to get counsel. 3. Must seek to remedy the conviction of a defendant in his jurisdiction if he/she knows of clear and convincing evidence that the defendant was innocent 4. Disclose new, credible and material evidence that creates a reasonable likelihood that a defendant was wrongly convicted. F. Lawyer Appearing in Non-adjudicative Proceeding 1. A lawyer may serve as a state legislator or hold other public office when permitted by law. This lawyer may not use her public office to attempt to influence a tribunal in a pending matter. 2. A lawyer may serve as a director, officer, or member of an organization involved in reform of the law or its administration, notwithstanding that the reform may affect the interests of a client of the lawyer. G. Law Reform Activities Affecting Client Interests 1. Lawyer must disclose that she is working in representative capacity 2. When lawyer works on law reform project and is asked to participate in a decision that would materially benefit a client, the lawyer must disclose that fact but not identify the client. H. Lawyer Representing an Entity or Other Organization 1. Corporate Representation you represent the corporation/entity, not an individual officer or director a. Lawyer can be a director of company, but not attorney client privilege in board meetings. b. If lawyer for organization learns that an act has been or is about to be committed in a way that violates a duty to the organization or a law in a way that might be imputed to the organization, AND if the violation is likely to cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary to protect the interests of the organization. 1) Must report violation to higher authority (president) and to outside directors if necessary. 2) May report relevant information to appropriate persons outside the organization only if, and to the extent that, the lawyer reasonably believes such reporting is necessary to prevent substantial injury to the organization 3) Narrow range of discretion: lawyer need not report violation if she reasonably believes that the organizations best interests do not require the violation to be reported. c. Security violations Sarbanes-Oxley Act: there is a duty of securities lawyers to report up the chain of command to CEO; if not appropriate response, must report to board of directors and may report to SEC. (only) IX. Safekeeping Funds and Other Property A. Establishing and Maintaining Client Trust Accounts 1. Lawyer must keep all clients money in a separate trust account in the state where the lawyer practices, (UNLESS the client: consent to the Account being in another state).

No commingling of lawyers money with client money. For small sums, may use a Pooled Trust Account, but cannot use one clients money for the benefit of another client. For a large sum held for a long period of time, must be separate interest-bearing account with interest going to client. 3. Exception: Lawyer money can cover bank service charges 4. IOLTA (or similar) means: Interest on Lawyers Trust Accounts: Interest goes to state bar foundation. B. Safekeeping Funds and Other Property of Clients: If other than money, Lawyer must safeguard C. Disputed Claims: 1. Following the receipt of settlement, the lawyer must notify the client promptly, keep the records, render accounting, and pay out promptly. If disputed, that portion remains in the client trust account. 2. Cannot move to the operating account D. Retainer 2 types 1. Advance on fees: belongs to client and goes into trust account and any unearned portion must be returned if the lawyer is fired or withdraws. 2. Availability: belongs to attorney and goes into lawyers account. (earned immediately). E. Special Circumstances 1. Once an attorney receives payment, they may call and attempt to re-negotiate for more attorneys fees. 2. Lawyer may accept a reasonable give from client, but must not draft deed or gift or will, unless you are related to the donor. X. Communications About Legal Services A. Advertising and Other Public Communications About Legal Services 1. Advertising (information concerning the name of the lawyer/firm, the lawyers/firms address and telephone number; kinds of services offered; basis on which fees are determined including prices for specific services and payment/credit arrangements; lawyers foreign language ability; names of references; and other information that might invite the attention of persons seeking legal assistance). 2. Cannot be false or misleading applies to ads, personal communication, office signs, cards, letters, emails, etc. 3. Any communication concerning a lawyers services shall include the name and address of at least one lawyer or law firm responsible for its consent. a. Cannot create unjustified expectations in the ad even if they are true statements b. Cannot have unsubstantiated comparisons in the ad unless they are factually verifiable c. Cannot imply results by improper means in the ad 4. Firm names and letterhead a. Artificial names are okay if not misleading 1) New York Legal Services is not okay because it suggests association with the government. b. Temporarily bad or good lawyers name stays; permanently bad or good lawyers name leaves; Dead people can stay in name. (Ambassadorships are permanent) B. Referrals okay to split fees with other lawyers outside of firm as follows: 1. Work together 2. With clients written informed consent that discloses the share each lawyer will get, 3. Paid proportionally to work done (OR, some different proportion IF each lawyer assumes joint responsibility for the matter). 4. One reasonable fee in total 5. But lawyers can enter into a reciprocal referral arrangement with another lawyer, or non-lawyer professional with the following restrictions: a. Arrangement cannot be exclusive b. Referred client must be told of the arrangement and if the arrangement creates a conflict of interest for either the referring or receiving lawyer, then the lawyer must get written informed consent. c. The referral agreement must not interfere with the lawyers professional judgment as to making referrals 2.

The agreement should not be of indefinite duration and should be review periodically to be sure it complies with the Rules. C. Group Legal Services: are okay, but dont cover criminal matters. D. Quick Advice Programs sponsored by Court or non-profit organization: lawyer-client relationship exists but only through the quick advice stage and informed consent to the limited scope of relationship required. 1. Conflict of interest rules: relax because no to run conflict checks, but where a conflict is actually known to the lawyer, it cannot be ignored. 2. Actual knowledge can be inferred from the circumstances 3. Where client hires lawyer after the quick advice (for regular and continued representation), the conflict rules WILL apply. E. Solicitation: Direct Contact with Prospective Clients 1. General ban on solicitation a. Solicitation is seeking fee paying work through in-person, live telephone, or real time electronic contact with a non-lawyer prospect with whom the lawyer has no family, or previous relationship 2. Permissible Solicitations: (that is unless the prospective client has made known the lawyer a desire not to be solicited by the lawyer.) a. Targeted Direct Mails: OK to send truthful letter to a person known to face a specific problem, absent actual knowledge that the prospective client does not wish to receive the communication. 1) State or Fed can restrict; for example, requiring Advertising to appear on envelope or email. b. Group and Prepaid Legal Services so long as the memberships or subscriptions for the plan are not solicited from the persons who are known to need legal services. c. Education: OK to give seminars to educate the public provided no individualized legal advice is given d. No fee will be taken: CAN solicit e. Close friends and relatives f. Present Client g. Former Client F. Communication Regarding Fields of Practice and Specialization 1. Common law specializations are patent and admiralty must pass their bar. 2. Supreme Court Peel case (the Certified Specialist) a. Not okay, unless b. You are certified by an organization approved by the state or ABA and identify it. XI. Lawyers Duties to the Public and the Legal System A. Voluntary Pro Bono Service B. Accepting Appointments: must do so unless good cause C. Serving in Legal Services Organization D. Criticism of Judges and Adjudicating Officials very careful E. Political Contributions to Obtain Engagements of Appointments not supposed to do F. Improper Influence on Government Officials. XII. Judicial Conduct: Governs Judges, Magistrates and Referees A. Structure and Application of the Judicial Code 1. Code of Judicial Conduct (CJC) applies to judges and those who perform judicial functions including magistrates, court commissioners, referees and special masters 2. Several portions of the CJC do not apply to retired or part-time judges; but: a. Retired judges subject to recall can serve as an arbitrator, fiduciary, or mediator, but not while serving as a judge b. Part-time, periodic part-time and pro tempore part-time judges are exempt from many, but not all, CJC provisions restricting outside activities and political activities B. Maintaining the Independence and Impartiality of the Judiciary

d.

Judges are judges 24 hours a day . . . Must uphold and follow the law What is an Appearance of Impropriety? a. When judges conduct creates a reasonable perception that the CJC has been violated or that otherwise reflects adversely on the judges honesty, impartiality, temperament or fitness as a judge. 3. Must not abuse judicial prestige a. Cannot use judicial letterhead for personal business b. CAN write a letter of recommendation based on personal knowledge on official letterhead if 1) Says reference is personal 2) There is no likelihood that the letter could reasonably be perceived as an attempt to use judicial office to exert pressure. C. Performing the Duties of Judicial Office Impartially, Competently and Diligently 1. External influences must not influence or sway judicial decision making 2. Competence: Requires legal knowledge, skill, thoroughness and preparation necessary to perform duties. a. Promptly dispose of court business b. Devote adequate time to duties c. Be punctual in attending court 3. Judges can encourage settlements but cannot coerce parties to settle. 4. Judges must avoid bias, prejudice and harassment and require those who the judge directs and controls (bailiff, clerk, etc.) which includes race, sex, gender, religion, national origin, ethnicity, disability, age, socioeconomic status, marital status, sexual orientation, or political affiliation. 5. Ex-parte communication is not permitted except: a. Expressly authorized by law, Ex: Drug or mental health courts where judges assume a more interactive role with parties. b. Mediation or Settlement (with consent of the parties) c. Emergency or deminimus, okay to judge, but not to juror. d. Inadvertent Receipt of Unauthorized Ex Parte Communication Judge must notify parties and give an opportunity to respond 6. No independent investigation of facts . . .consider only evidence presented. 7. No public or nonpublic comments from judges that may affect case outcome or otherwise interfere with a fair trial 8. Regarding cases or issues likely to come before the court, judge must not make pledges, promises, or commitments inconsistent with the impartial performance of duties. 9. Judges must not criticize jurors for their verdict 10. Administrative appointments must be made impartially and based on merit, not on the basis of nepotism or favoritism 11. Judge who has actual knowledge that another judge has violated the CJC (or lawyer has violated the Rules of Professional Conduct) in a manner that raises a substantial question as to the other judges character and fitness, the judge must report; where judge receives such information from another, judge must take appropriate action. D. Disqualification: unless parties remit, the judge must offer to step down 1. Judge must disqualify herself when impartiality might reasonably (and objectively . . . not based on party whim) be questioned. 2. Judge should disclose any information that parties or lawyers might consider relevant even if the judge does not believe there is a reasonable basis for disqualification. 3. In an emergency, necessity overrides the rule of disqualification 4. Judge must step down with personal knowledge/bias of possibly disputed facts.

1. 2.

Judge must step down if she had prior involvement as material witness, lawyer, associate of key lawyer in case, presided as judge in another court, served as government employee in a capacity concerning the proceeding. 6. Judge cannot have economic interest (personally or as fiduciary) in the matter or one of the parties before her except de minimus. a. De minimus interests: an insignificant interest that raises no reasonable question regarding the judges impartiality b. Includes interests held by judges spouse, domestic partner, parent or child (wherever the kid resides) or any other family member living in the judges home c. Exceptions: Mutual Funds (unless judge participates in the management of the fund or the proceeding could substantially affect the value of the interest; securities held by an organization, bank deposits or mutual insurance policies . . . UNLESS the proceedings could impact the value of the deposit/policy. 7. If former partner or close relative (that is within the 3 rd degree of relationship) is party, attorney, material witness, or person with more than a de minimus that could be substantially be affected by the proceeding that is before the judge. a. Too close: parent, grandparent, kids, grandkids, siblings, aunts, uncles, nieces, nephews, in-laws (wifes mother = your uncle) b. Cousins are okay 8. When judge knows a party (or attorney or law firm) has contributed more than the jurisdictions specified amount to his election campaign committee with a designated number of prior years to the judges election. 9. When judge or candidate for judge makes a public statement other than court proceeding/opinion that commits or appears to commit the judge to a particular position or result 10. Parties can remit for all the above, EXCEPT for judges personal bias to party or partys lawyer. E. Extrajudicial Activities 1. Judges personal and extra-judicial activities (while encourage) must not interfere with proper performance or otherwise appear to undermine the judges integrity or impartiality 2. Judge must not testify as a character witness, except by subpoena 3. Judge may take part in educational, religious, charitable, fraternal, or civic organization and activities not conducted for profit, Such activities include: a. Solicitation of contributions for the organization, but only from family members or other judges over whom the judge has no supervisory or appellate authority. b. Appearing or speaking at, receiving an award at, or being featured on the program of the organizations event (if the event is a fund-raiser, the event must concern the law, legal system or administration of justice). c. Serving as an officer, director, trustee or non-legal advisor unless the proceedings would ordinarily come before the judge. 4. Judges may encourage lawyers to provide pro bono services 5. Judges must not be members of organizations that discriminate on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation . . .once judge learns of the discrimination, must resign immediately a. Even if not member, must not use the benefits or facilities of that organization b. May attend an event there if it is an isolated event that cannot be perceived as an endorsement of the organizations practices c. Exception: OK to be a member of a religious organization (which is lawful exercise of freedom of religion) 6. Fiduciary relationships: generally, judge must not serve as an executor, administrator, trustee, guardian or other fiduciary except for a family member and then only where:

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a. There is no interference with official duties b. Proceedings would not ordinarily come before that judge (judges own court) or c. Matter will not involve adversary proceedings in a court under that judges appellate jurisdiction 7. Generally, a judge may not serve as an officer, director, manager, general partner, advisor, or employee of a business. But the judge may hold an manage her own investments and those of her family unless such activity will a. Interfere with official duties b. Lead to frequent disqualification of the judge c. Involve the judge in proceedings that will likely come before the judge 8. Judges may receive reasonable compensation for speaking, teaching or writing unless such payment could appear to undermine impartiality. Judges may be reimbursed for necessary expenses (travel, food, lodging, etc.) or have fees waived when associated with judges participation in permitted activities. 9. Judges must not accept gifts, loans, bequests or other things of value where prohibited by law or where such may appear to undermine impartiality a. Where not prohibited, judges may accept with reporting de minimus items (plaques, certificates), ordinary social hospitality, gifts from people whose appearance or interest in a case would lead the judge to be disqualified anyway (ex. Family members and close friends). b. Where not prohibited, judges may accept and MUST report: invitations to attend without cost an activity related to the law or legal system or an event associated with the judges educational, religious, charitable or civic activities if that invitation is offered to non-judges engaged in similar ways, and gifts, loans, bequests or other items of value if the source is someone who is likely to come before the judge. 10. Judges do not engage in the full time practice of law, except: a. Pro se b. Advice for family members (but may not act in a forum) Political and Campaign Activities of Judges and Candidates for Judge: If a judge is running for office, judge/candidate: 1. Can speak at gatherings, but must not, with respect to cases or controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with impartial performance of duties. 2. Must not hold office or make speeches on behalf of a political organization 3. Must not use court staff, facilities or court resources in a campaign 4. Must take reasonable steps to ensure others (including family members) do not do what the judge/candidate cannot do. 5. May respond to false or misleading statements issued by an opponent, or media with factually accurate response, with may be done personally, but preferably through someone else. 6. Candidates can organize a fundraiser but does so by establishing a campaign committee; does not go out personally to get money and can do so for a specified period before and a specified number of days after the election. Must meet all reporting requirements. 7. If a judges wants to run for non-judicial elective office, if law requires, must resign from bench . . . for appointed office, need not resign judgeship. 8. A judicial candidate must act with dignity, impartiality, integrity and independence expected of a judge.